Dr J Macanovic v Portsmouth Hospital NHS Trust: 1400232/2018

EMPLOYMENT TRIBUNALS

Case No 1400232/2018

Venue Southampton

Hearing 13 to 15 January 2020

Between

Dr J MacanovicClaimant

Portsmouth Hospital NHS TrustRespondent

Before

Employment Judge Gray

Mr J Allsop (instructed by Counsel) for claimant

Mr R Hignett (instructed by Counsel) for respondent

Date 17 January 2021

JUDGMENT

The judgment of the tribunal is that disclosures 1 to 5 and 10 are protected disclosures that qualify for protection pursuant to sections 43B and 43C of the Employment Rights Act 1996 and that disclosures 6 and 7 are protected disclosures that qualify for protection pursuant to sections 43B and 43F of the Employment Rights Act 1996. Alleged disclosure 9 is not a protected disclosure. The amendment application to include alleged disclosure 11 is refused.

REASONS

[1]In this case the Claimant Dr Macanovic claims that she has made disclosures that qualify for protection pursuant to sections 43B and 43C or 43F of the Employment Rights Act 1996. The Respondent contests that all of the alleged disclosures that the Claimant says she made are disclosures that qualify for protection.

[2]This reserved judgment deals with the preliminary issue of whether the Claimant made disclosures of information that are protected qualifying disclosures within the meaning of the Employment Rights Act 1996.

[3]It also deals with considering the Claimant’s application to amend her claim to include a further alleged protected disclosure (referred to as disclosure number 10 by the parties), where the application to amend was made in February 2019 and was listed to be an issue at this hearing; and an application to amend that was made at this hearing to include a further alleged protected disclosure (referred to as disclosure number 11 by the parties).

[4]For the hearing I was provided with:a. An agreed bundle of some 600 pages (it is not possible to confirm the exact number of pages as the bundle was a filleted version of the bundle that had been prepared for the final hearing previously listed that ran to 1942 pages);

b. The Claimant’s suggested reading list;

c. An agreed outline chronology;

d. An agreed cast list;

e. A document titled “Appendix A: parties’ position in respect of alleged Protected Disclosures.”;

f. Witness statement of the Claimant (which was submitted with yellow highlighting of the parts to be read and taken into account in relation to the preliminary matters to be determined at this hearing);

g. Witness Statement of Mr Paul Gibbs;

h. Supplemental Witness Statement of Mr Paul Gibbs;

i. [later in the hearing] a copy of the Claimant’s amended grounds of claim; and

j. Skeleton arguments with copy case authorities from both Counsel.

[5]The issues as agreed by the parties (save for the parts in square brackets) were identified as follows in relation to the questions of whether qualifying protected disclosures had been made or not:a. “The Claimant asserts that she made [10] protected disclosures. In respect of each alleged protected disclosure (C and R’s positions outlined in … Appendix A): i. Did the Claimant make a disclosure which included information? ii. Did the Claimant reasonably believe that the disclosure was in the public interest? iii. Did the Claimant reasonably believe that the disclosure tended to show one or more of the categories listed in section 43B(1) Employment Rights Act 1996 (‘ERA 1996’)? 1. The Claimant submits that the Respondent had failed to comply with a legal obligation in [relation to the obtaining of consent in relation to the use of Buttonholing technique on patients]; 2. The Claimant submits that the health or safety of patients had been, was being, or was likely to be endangered by the Buttonholing technique. iv. If so, was the disclosure made to: 1. the employer under section 43C ERA 1996; 2. prescribed persons under section 43F namely the: a. General Medical Council;

b. Care Quality Commission.”

[6]For reference at the hearing and within this judgment it was agreed that the alleged disclosures would be referred to by the way they are numbered in the document provided at the commencement of the hearing titled “Appendix A: Parties’ positions in respect of alleged Protected Disclosures” (i.e. 1 to 11), but would be considered in chronological order.

[7]I heard from the Claimant, and I heard from Mr Paul Gibbs on behalf of the Respondent.

[8]There was a degree of conflict on the evidence. I heard the witnesses give their evidence and observed their demeanour in the witness box. I found the following facts proven on the balance of probabilities after considering the whole of the evidence, both oral and documentary, and after listening to the factual and legal submissions made by and on behalf of the respective parties.

Findings of fact

[9]The Respondent is an acute NHS Trust responsible for providing healthcare to the population of Portsmouth and the surrounding area from the Queen Alexandra Hospital.

[10]The Renal and Transplantation Department at the Respondent is known as the Wessex Kidney Centre (WKC).

[11]The Claimant worked for a period of 17 years (until 5 March 2018) for the Respondent and from October 2005 she worked there as a Consultant Nephrologist (a doctor who diagnoses and treats diseases of the kidneys). The Claimant now has a permanent position in Oxford.

[12]There are outpatient nephrology clinics which are based through the Wessex region. Consultant Nephrologists in the department would attend clinics at other hospitals in the Wessex region. The Respondent provides nephrology services at 8 hospitals in the region, including the Queen Alexandra Hospital.

[13]Of relevance to this case are two types of kidney dialysis process.

[14]As the Claimant explains in her witness statement Kidney dialysis is used to remove toxins, excessive fluid and electrolytes from the body where the kidneys have failed. In order to undertake haemodialysis, patients need to connect to a dialysis machine that filters out toxins and excessive fluid. This connection requires insertion of needles into patient’s circulation via surgically created arteriovenous fistula (AVF) or arteriovenous grafts (AVG).

[15]An AVF is a surgically created connection made between an artery and a vein. An AVG is an artificial plastic tube that is placed surgically to connect an artery to a vein. Generally, the type of AV graft used is a PTFE graft.

[16]Patients usually undertake the dialysis process using two sharp needles which will be inserted into the fistula or graft at different places. This technique is known as “rope laddering”.

[18]The primary dispute of opinion in this case relates to the use of the buttonholing technique by those dialysing with an AVG. The differing views are presented in this case by the Claimant and the Respondent’s witness Mr Paul Gibbs.

[19]Mr Gibbs who gave evidence for the Respondent was at the relevant time for this case engaged by the Respondent in the role of clinical director (vascular and renal). Since April 2017 he has been the president of the vascular access Society of Britain and Ireland (VASBI).

[20]Mr Gibbs describes how he carries out approximately 20 renal transplants and about 100 vascular access procedures per year. He works alongside consultant nephrologist colleagues looking after patients.

[21]The Claimant and Mr Gibbs have very different views on the use of buttonholing technique by those dialysing with an AVG. It is this that forms the backbone of the Claimant’s alleged disclosures in that she asserts she disclosed information that showed the Respondent had failed to comply with a legal obligation in relation to the obtaining of consent in relation to the use of the Buttonholing technique on patients with AVGs and that the health or safety of patients had been, was being, or was likely to be endangered by the Buttonholing technique being used on AVGs.

[22]In her witness statement (at paragraph 338) the Claimant says, “the categories of wrongdoing that” she believed she highlighted included:a. (at paragraph

338.1 ) “Breach of a legal obligation, i.e. obligation to obtain a patient’s informed consent and The Health and Social Care (Safety and Quality) Act 2015…” she then refers to paragraph 31 of her statement which reads in respect of that Act “…..The Health and Social Care (Safety and Quality) Act 2015 Section 1(2) provides that “The Secretary of State must by regulations impose requirements that the Secretary of State considers necessary to secure that services provided in the carrying on of regulated activities cause no avoidable harm to the persons for whom the services are provided” [Claimant’s emphasis added]; and

b. (at paragraph

338.2 ) “Danger to the health and safety of any individual. In this regard I believe that the Buttonholing Technique was a serious danger to the health and safety of the Respondent’s patients who were undergoing the Buttonholing Technique or who might have undergone the Buttonholing Technique had I not raised my concerns….”

[23]The Claimant explains why she considers her belief in the above to be reasonable at paragraphs 361 to 363 of her witness statement and why it is in the public interest at paragraph 364 of her witness statement.

[24]At paragraph 361 she explains “I had no doubt whatsoever that the Buttonholing Technique was damaging and I was shocked when I was told at the start of September 2016 that the Buttonholing Technique had been introduced without the renal consultant’s knowledge or agreement.”

[25]Paragraph 362 “All of the national and international guidelines supported my view about the Buttonholing Technique and, indeed, even a manufacturer said that the Buttonholing Technique was contraindicated.”

[26]Paragraph 363 “Subjectively, I felt extremely strongly that the Buttonholing Technique was a serious risk to the health and safety of patients at the Respondent. I also felt extremely strongly (as pointed out on numerous occasions) that patients had not given their informed consents. Objectively I was entirely correct, taking into account the audit data and the fact that this practice is seen as an absolute contraindication in the rest of the world.”

[27]Paragraph 364 “……I was not acting on my own motives, I was acting in the interests of patients at the Respondent who I felt were being subjected to an extremely risky technique without giving their informed consent (as I have described above). I always felt and still feel, that it was in the public interest to be aware of the fact that the Respondent was acting in a way that it was. The Buttonholing Technique affected existing patients at the Respondent (at the time) and any person in the region who might come under the care of the Department in the future.”

[28]It is clear that as a background to the differing views of the Claimant and Mr Gibbs about buttonholing there was also a difficult working relationship between them. It was the focus of a formal investigation conducted by SH the Chief of Service (Emergency Medicine) at the Respondent. The investigation outcome report is at pages 230 to 248 of the bundle and it notes in its terms of reference (page 230) “On 11 August 2016 [SH] was appointed …. in respect of a range of allegations around patient care, probity, behaviour lack of due process …made by [the Claimant] …” As acknowledged by Mr Gibbs in his witness statement (paragraph 13) the report did conclude (page 248) by identifying some governance issues within the renal unit as a whole that could be improved but it was unrelated to him as an individual.

[29]At paragraph 10 of Mr Gibbs’ statement he describes his view on his relationship with the Claimant, “to my knowledge the breakdown of my personal and professional relationship with [the Claimant] pre-dates the introduction of buttonholing within the WKC and is not solely related to the differences in professional opinion we have over the buttonholing of AV grafts. The increased tension between myself and the [Claimant] was palpable from 2014 onwards, together we chaired the transplant sub-group meetings as she was the medical lead for transplantation and I was the surgical lead. It became apparent in 2014 and 2015 that on occasions when I was absent from the meetings she would make disparaging statements about me and my leadership.”

[30]The Claimant’s position on her relationship with Mr Gibbs is articulated by her in what is referred to as her alleged disclosure number 5 which is a letter from her to SH (pages 334 to 336) – emailed at 12:54 on the 17 October 2016. The relevant part of that letter reads “……Since, I have become the subject of organized campaign to vilify me and present me as the source of problems in the unit, orchestrated by Mr Gibbs. My most genuine concerns in regard to patient safety have been manipulated into ‘a private bickering’…..The timing of these events is most unfortunate as they coincided with the commencement of the investigation commissioned by [Mr H / Dr L] [(Dr L is at that time Chief of Service Renal CSC at the Respondent)] looking into concerns expressed in an email to [Dr L] that led to my resignation from the leadership role within the transplant team. I am certain that both [Dr L] and Mr Gibbs counted on my silence in regard to this matter as they thought that I would be concerned not to be seen as a ‘trouble maker’. However, the use of the technique and the way it was introduced in clinical practice represented by anyone’s standard the most serious breach of clinical, professional and research code of conduct, that I simply could not remain silent.”

[31]The Claimant was asked about her relationship with Mr Gibbs in cross examination and she accepted that she does not like him now. It was put to her that she used her opposition to buttonholing to get at Mr Gibbs. The Claimant did not accept that and it was then put to her that she was not concerned as to patient safety to which she responded she would raise the concerns even if it were against her own brother who is a doctor as well.

[32]The Claimant became aware of the use of the buttonholing technique on AVGs on 31 August 2016 when the project was presented at the department meeting by Sr K a vascular access nurse specialist.

[33]It was at a Consultant meeting on the 7 September 2016 chaired by Dr L as Chief of Service that the Claimant expressed concern that AVG were being buttonholed. The minutes from this meeting are at page 290 of the agreed bundle.

[34]The minutes note that the Claimant “expressed concern that AV grafts were being buttonholed in contravention of accepted best practice and explicit guideline recommendations. She was also concerned that the technique was being introduced without prior agreement or knowledge of the consultants and without informed consent of the patients.” The minutes further note that three other consultants at the meeting “expressed the view that there is a dearth of evidence to support or reject the practice hence the need to innovate. After a long discussion it was agreed that:- o All patients currently being buttonholed should be contacted by letter to ask if they wished to continue. The letter will be explicit about current practice and possible demerits of buttonholing. o If these patients wish to continue buttonholing they can do this provided they have their consultant’s explicit approval. [the Claimant and another consultant] stated that they would not give this. Other colleagues were prepared to consider it. o Any new patient wishing to have their graft buttonholed needs to be given the facts (as they stand) and to give written consent. They will also need the explicit approval of their consultant. o VADAR will initiate a research study into the utility of buttonholing which will be subject to standard research governance (protocol, ethics etc). Once a research study is approved by the consultant body the patients will be inducted into it on behalf of the unit.”

[35]In her witness statement the Claimant explains (at paragraph 30) that at the consultant meeting on 7 September 2016 “we had spoken about and agreed the need for patients to give their informed written consent before the buttonholing technique would continue. As a doctor, it is my responsibility to ensure that a patient has consented to his or her treatment. I’ve always understood this to be a legal obligation imposed on doctors. The General Medical Council provides guidelines in connection with consent and an extract from the guidelines are a page 222A [of the bundle]. As the guidelines say, before accepting the patient’s consent, a doctor must consider whether the patient has been given the information they want or need or how well they understand the details and implication of what is proposed. In cases involving high risk (which is the case with the Buttonholing Technique), it is important that the doctor gets the patient’s written consent, so that everyone involved, especially the patient, properly understands what was explained and what was agreed.”

[36](paragraph 31) “Whilst it was agreed at the time that any patient wishing to continue with the Buttonholing Technique would need to give their written consent, as I looked into this further, my strong opinion was that the Department should not be undertaking this practice at all. I felt that it was extremely unsafe and an unacceptable risk to patients. I did not feel that any patient who was given the true facts about the Buttonholing Technique would ever give their consent to it….”

[37]Following the meeting there is then an email exchange when Mr Gibbs emails the Claimant amongst others (on 7 September 2016 as seen at page 292) saying “having just read the EB PG on haemodialysis, the vascular access Society guidelines on haemodialysis, the NKF KDOQI guidelines on vascular access and the renal Association guidelines for vascular access for haemodialysis I cannot find any comment that says not to use the buttonhole technique on AV grafts. Please can you show me where in any of the guidelines it states that buttonholing AVG’s is not recommended. I apologise for not being able to find it. Thanks for your help.”

[38]The Claimant replies to Mr Gibbs by email dated 8 September 2016 (page 292) and says “just Google it. RA guideline 6.1; EBPG 4.4; NKF/KDOQI available on website kidney.org.uk.”. This email is also copied to Dr L amongst others at the Respondent.

[39]In her statement the Claimant says (at paragraph 33) that guideline 6.1 says “we recommend that the rope-ladder and buttonhole techniques should be used for cannulation of AVF and rope-ladder for AVG”. The Claimant says, “in other words the Buttonholing Technique is not recommended for use with AV Grafts.”. The Claimant also referred to the EBPG (European Best Practice Guideline 4.4) together with the resource on the website Kidney.org.uk. which states: “The Buttonhole technique can only be used by patients with an AV fistula, and cannot be used by those with an AV Graft”.

[40]In her statement the Claimant says (paragraph 34) “My concern at this time (on discovering that the Buttonholing Technique was being used in the Department) was that….” a. “…This would cause serious harm to patients due to the fact that it was a risky and contraindicated practice. In this regard: -… “ i. “A plastic artificial AV graft is much more prone to infections than a native fistula, and button hole needling technique at least triples that risk according to the best available medical evidence.” ii. “Secondly, because the hole made through the AV Graft plastic cannot naturally heal, and as it is not physically possible to maintain position with needling, the holes created in the AV Graft would enlarge with time so the process becomes inherently insecure, as the risk of uncontrolled bleeding increases. Enlargement of the holes as well leads to prolonged bleeding post needle removal and need to apply pressure to stop bleeding increases the risk of graft clotting….”

[41](and Paragraph 34.2) “The patients who were being buttonholed had not given informed consent. Even if they did, the practice was introduced and run with complete disregard of the law governing introduction of ‘innovative techniques’”

[42]Mr Gibbs at paragraph 7 of his supplemental statement explains why he disagrees with the Claimant’s view as to the harm the technique may cause: “[the Claimant] has stated …. that buttonholing cannot be carried out safely in patients with AV grafts. This is unsubstantiated and reflects her inability to recognise the group of the Respondents patients have now been buttonholing safely for a period of over four years. I would further deny that any results presented to date or communicated to the relevant external bodies have been misrepresented as she has alleged in her statement. The reality is that dialysis is an inherently risky process which is an unfortunate daily necessity for a significant number of renal patients. Buttonholing and rope ladder techniques on both AV grafts and fistula is dangerous and complications are inevitable because the patient is having large needles inserted around six times a week. I would like to emphasise in response to [The Claimant’s] position that there are issues with AV grafts regardless of the needling technique used. Every time a sharp needle is placed into a AV graft it makes a small hole in the graft. Over time, with at least six needles placed in the graft each week, the graft is slowly destroyed. Eventually there is little of the front wall of the AV graft left increasing the bleeding and thrombosis risk. When using the buttonhole technique this is not the case as long as the needle is placed through the same small hole in the AV graft every time. Something we have confirmed in one explanted graft and with our regular scanning of the grafts that are being cannulated using the buttonhole technique. I believe that there is less risk of enlarging the hole in the graft by using blunt needles and this is a safe technique. I would agree that repeated cannulation in the same area with a sharp needle is indeed dangerous, and should not be encouraged, but that is different to the buttonhole technique that uses exactly the same hole.”

[43]At page 292a of the bundle there is an email from a nurse Sister at the Totton dialysis unit dated 8 September 2016 to the Claimant. It reads “…. [X] had had so many access problems late 2014 early 2015. Once these settled she had started to self cannulate. However she was not so much rope laddering as area puncturing which concerned me. Additionally her graft is not of great length and on her upper arm so can be a little restrictive to the ease of self needling. Hearing of the monitoring and success in QAH of buttonholing grafts I had enquired and had discussions with the Surgeons/ Access Specialist Nurse which resulted in [X] switching to Buttonholing August 2015. That you were not consulted or informed is an omission on my part that I apologise for…”

[44]The Claimant replies on the 8 September 2016 (page 292a) to the nurse Sister saying “……I absolutely appreciate the decision to move to buttonhole technique was discussed with vascular access nurse specialist and my surgical colleagues and was not unilateral. If rope laddering is not possible due to the length of her graft, I would not oppose buttonhole technique but she needs to be aware of the risks and the fact that the technique used (BH) is novel not currently recommended by the Renal Association or other relevant bodies….”

[45]I refer now to the alleged disclosures in chronological order by their numbers as agreed by the parties in their “Appendix A” document.

[46]By email dated 9 September 2016 (timed at 10:46) the Claimant makes her first alleged disclosure (page 293). It is addressed to Dr L the Chief of Service Renal CSC. In the email she says: “Dear [Dr L], I did not want to engage in a protracted and in my experience often futile, email exchange with Paul about the buttonholed needling of AVG’s and I do not want my concerns to be misinterpreted but would like to formally register them. If we objectively analyse the situation we have here an uncontrolled experiment, done without prior knowledge or agreement of the consultant team and without informed consent of the patients, with practice that is not in keeping with the current national and international guidelines or recommendations from the manufacturer, in which one of the participants died and that was then misreported at a national meeting. This is wrong on so many levels. As I clearly stated at the meeting, I cannot support the continuation of the project as I do not believe that the technique is suitable for AVG’s and that is in line with views of the vast majority of practising clinicians worldwide reflected in the current guidelines. If patients under my care feel very strongly, I will facilitate a smooth handover of their care to [Dr S]. If we manage to organise a proper study with R&D and ethics approval and scientific rigour (even if it is an observational study) I would be happy for my patients to be approached.”

[47]In his response dated 9 September 2016 (timed at 11:58) Dr L states that the Claimant’s “concerns are duly noted” and that he has already taken action as follows:a. “Asked [S] to stop buttonholing unless patients

(a) express a wish to try/continue it,

(b) give informed consent and

b. “Asked the vascular team to prepare evidence-based document which provides unbiased information for patients and consultants. This will provide the basis of the consent process and will serve to avoid any suggestion of bias (you will see this soon and will have an opportunity to comment/amend)”

c. “Asked the vascular team to make this innovation henceforth the subject of a proper clinical study under the umbrella of research governance as advised by the trusts R&I department” “We need to encourage initiative and innovation and one cannot do this without deviating from accepted practice. The key judgement is whether such deviation constitutes an unacceptable risk. Opinions on this will obviously differ, but as Paul is our expert in vascular access, I believe he should make that call and (where clear evidence is lacking as in this case) we should trust his judgement. He has accepted on reflection that he was remiss in not discussing the project more widely before its initiation. In my judgement, this was just a failure of usual professional courtesy and I don’t think he intentionally disregarded his colleagues in order to avoid having to justify what he was doing. Thank you for voicing your concerns which I believe have brought important rigour to this subject. You have now discharged your professional duty and I hope my response reassures you (as it has our other consultant colleagues with the sole exception of MDU) that sufficient action has been taken to minimise the risk to patients and the renal unit whilst not stifling innovation.”

[48]In cross examination the Claimant accepted that at the point of writing the first alleged disclosure she had not reviewed any of the data of the 15 patients using the BH in AVGs. She explained though that she did meet one of her patients on the 6 September 2016 and had a telephone call with another. She says that when she spoke to her patients they did not know about infection risks so she does not believe they would have given informed consent. She also said that other consultant colleagues shared her concern and they discussed this before she sent her email on the 9 September 2016.

[49]The Respondent says that the Claimant’s asserted belief that there was a lack of informed consent is unreasonable as they say it was obtained for all the patients concerned before undertaking the procedure, and their position is confirmed by reference to what is recorded the nurses say they said to the patients in the Respondent’s External Review of the matter dated 28 July 2017 (at page 670 paragraph 5.3) and based on what the 4 patients interviewed are recorded as having said about risk being explained (at page 672 paragraph 6.3) in the Respondent’s External Review.

[50]However, I have not had any witness evidence from these nurses or patients presented to me and have not been presented with medical records of the patients by the Respondent that record any of this. As the Claimant highlighted in her replies when being cross examined she could accept that it may be the case for 4 of the patients but not the other 11 (who were not interviewed).

[51]Dr L does not challenge the Claimant’s statement that she makes about informed consent in his reply to her alleged first disclosure. Dr L says in his reply “Thank you for voicing your concerns which I believe have brought important rigour to this subject.”. It is also of note that the minutes recording the issue on the 7 September 2016 do not go on to note that the Claimant’s assertion as to informed consent must be unfounded because there is evidence of such informed consent. The Claimant’s position is also consistent with what she says to the sister nurse at Totton in her email dated 8 September 2016 (as referred to in paragraph 44 above), that the patient needs to be aware of the risks.

[52]Considering what the Claimant has said under oath and the Respondent not disproving this, I accept what she says about her belief about the lack of informed consent.

[53]The Respondent also says it is not reasonable for the Claimant to believe that one of the participants (subsequently referred to as “MW” or “Mr W”) died of infection due to BH. In her replies to this issue in cross examination the Claimant maintained that her belief could not be categorically ruled out, just as it could not be categorically ruled in as not being due to BH. It was the unknowns about the death that was the issue for her, rather than the known.

[54]As to the guidelines the Respondent says the national guidelines are silent on BH AV Grafts (as can be seen at page 372B) which is correct in that it only recommends “rope-ladder for AVG” and does not expressly state BH must not be used. As already found though the Claimant had looked at guidelines and debated this point with Mr Gibbs (see paragraphs 37 to 39 above) before she made her first alleged disclosure and some do expressly state against BH AVGs.

[55]The Respondent also asserts that the GMC confirmed that there is “no absolute requirement to follow guidelines” (see page 1573). The GMC does state this in its outcome report but goes on to note: “if a procedure is introduced that does not follow them there should be a justification for this and participation in a governance framework to ensure patient safety. The department acknowledged at the governance review meeting on 1 February 2017 that this had not been done and it took steps to ensure that appropriate processes would be followed in future.” (pages 1573 to 1574).

[56]Regarding the reference the Claimant makes to manufacturers and experts the Respondent says that manufacturers would only confirm their product can be used within its licence (and as it was not licenced for use with BH AVGs, they would not say anything differently) and the Claimant had not gathered expert opinion at that time so therefore had no evidence to support what she says.

[57]It is after her first alleged disclosure that the Claimant sends an email to an expert involved in the guidelines, Dr F at Derby, on 10 September 2016 (page 295) about BH AVGs. His reply on 10 September 2016 (page 295) says “I would have to go back and check but we would never advise BH for grafts – only for AVF. The latest guideline is here [LINK] They tightened up the words from the 2011 guidance which was edited down – the text in 2011 said ‘It is therefore recommended that the buttonhole technique is the preferred method for fistula cannulation’…. So, no please don’t use BH for AVG.”. The Claimant then forwards this to the team on the 11 September 2016 (page 299). What Dr F says is not inconsistent with what the Claimant has said.

[58]This gets an acknowledgment email from Dr L on the 17 September 2016 (page 299). “Whist [Dr F’s] opinions are sort of interesting, what we need are facts. He provides none – and yet presumes to tell us not to do something which our experts (who do surgery rather than preside over committees) feel is appropriate”. “As long as patients are asking for a change in practice and expert clinicians can see some virtue in what they say, our duty in the renal community is to explore this in the safest possible way. I think our guys are doing this; in line with [Dr F’s] oft-repeated demand for us to be more patient-centric” “As long as I am assured that this initiative is done to the highest professional standards, there is nothing that has come to light so far that induces me to ask our colleagues to stop. I hope you can support my position on this”.

[59]The Claimant also made an enquiry of Royal Berkshire NHS Foundation Trust (at Reading) (10 September 2016) page 297, which is then responded to by AS a Renal Vascular Access Nurse at Royal Berkshire (page 296) confirming that “We don’t do any buttonholing of av grafts at RBH”. The Claimant then forwards the response to Dr S of the Respondent on 14 September 2016 as he had suggested it was undertaken at the Royal Berkshire. The position at Reading is not inconsistent with the Claimant’s stated position.

[60]The second alleged disclosure is by an email the Claimant sends on 17 September 2016 at 16:36 (pages 298 to 299). This is addressed to what appears to be most of the consultants at the Respondent and is again to Dr L and also now Mr Gibbs.

[61]“Dear [Dr L] … I have some sympathy with your views and desire to promote innovation. Unfortunately I am not able to support your view in this instance as a. The practice is considered inappropriate by the vast majority of experts in the field of vascular access b. No other renal unit in the country is using button hole needling for AV grafts (we were misled last week by [Dr S] that the practice is used in Reading). Some units have abandoned the technique for AVF too due to risk of infection. c. National guidelines and all international guidelines indicate that the technique is only appropriate to use in native fistulas due to risk of infection, pseudo-aneurysm formation and risk of exsanguination d. Manufacturers do not recommend its use e. Patients have not been given any information regarding the experimental nature of this practice, including quite substantial risks f. We were misled last week that our outcomes are excellent, in fact the practice is in my view a dangerous experiment on 14 patients during which I understand” i. “2 patients died (I do not know the cause; 58 and 48 years of age)” ii. “1 patient almost died of sepsis from the infected graft that had to be removed; His clinical state was complicated by multiple septic emboli” iii. “1 patient developed pseudo-aneurysm” iv. “I did not have the time to review records of the remaining 10 patients, but considering what has happened here, that should be done as a matter of urgency” g. “Our ‘great experience’ was misreported in an abstract submitted to the national meeting and therefore this issue has become an issue for the British renal community. I am sure you will understand the implications of ’research’ misreporting h. I cannot put lives of my patients at risk, my morality, ethics, professionalism will be destroyed if I turn a blind eye to the most serious breaches in clinical, professional and research code of conduct. As stated before the highest professional standards demand the proper study with R&D and ethics approval. If such is organised, I would be happy for my patients to be approached, but I suspect that you will struggle to get the ethics approval on the basis of an anecdote from a single unit in Belgium (unpublished).”

[62]The Alleged disclosure 3 (dated 23 September 2016) is made during the Claimant’s investigation hearing with SH Chief of Service on the 23 September 2016 and what was said by the Claimant is recorded in the investigation notes (pages 322 and 323) “SH requested a discussion regarding current unsafe practice and queried what these were. JM reported that in the last few weeks it had come to their attention that the Unit is using buttonhole technique for needling of the AV grafts for dialysis. JM explained that this only became apparent when a nurse presented the Unit’s results at the departmental meeting that she was preparing for a presentation at a national meeting. JM stated that she was extremely shocked by this information, highlighting that all guidelines state that this technique is completely and totally inappropriate. JM expressed this view and detailed the risks it presented (risk of infection, pseudo-aneurysm formation and exsanguination). JM explained that when she raised this issue at a consultant meeting, it appeared no one was aware of this practice. Patients were also unaware meaning they had not given informed consent. This practice is so inappropriate that there is not a single publication in the worldwide literature supporting its use. JM noted that Paul somehow thought this would be a fun thing to do so no discussion with his colleagues who are legally responsible for patients care and their well-being; no informed consent of the patients that this is an experimental practice, no assessment of risk. Following JM escalating her concerns, Paul Gibbs proceeded to argue with JM for two hours about what the guidelines say (this technique has been established 30 years ago for use in AV fistula but is unsuitable for use with PTFE grafts. The results of the ‘experiment was misrepresented to the Unit and then misrepresented in an abstract to be presented at the national meeting and JM was sure that the GMC takes this issue seriously. SH queried whether there were any other unsafe practices he should be aware of. JM confirmed that she could not think of any others.”

[63]The alleged disclosure 4 is an email dated 3 October 2016 (page 326) to Dr L the Chief of Service timed at 08:47 (The Respondent accepts this discloses information):

[64]“Dear [Dr L], Thank you for the email and for meeting me in person to discuss is content last Thursday. I would like to express my deep disappointment that my most genuine concern about the introduction of untested and intuitively risky procedure without knowledge of the consultant body or the informed consent of the patients was manipulated into a ‘private bickering’. This technique is against all published guidelines and in native fistula associated with 3-4 fold increase in infective complications, and therefore wisdom of its introduction in the most vulnerable patients with AV grafts (9/14 with leg loops) has to be questioned. I am relieved that you are taking full responsibility for its continued use as the Chief of Service and I trust that you will do what is right for the patients, the unit and in particular now - British renal community. As I stated last Thursday, the results were misreported:”  The authors have failed to mention JKJ and the fact that she developed the most feared complication of the technique - pseudoaneurysm, detected by angiography on 21st June. The abstract was submitted on 23rd at 12:44. From the abstract it looks that they have simply forgotten that she had been using the technique for more than 3 months.  They failed to report that MD developed infection of the graft. They attributed graft removal (rightly or wrongly) to staphylococcal septicaemia related to ‘surgical wound’ but failed to mention that enterococcus was isolated from the tissue culture of the graft, probably the same enterococcus isolated from his needling site in early days of buttonhole technique use (19/06/15). Wisdom of the graft and buttonhole needling in someone with permanently infected arm wound I do not have the energy to discuss here.  Death of Mr W was described as unrelated to BH, but without PM (which she should have had if she was a trial participant) no one would be able to say with certainty if her septic death with respiratory failure was related to septic pulmonary emboli (as we have seen it in 2 patients with leg loops) or infective exasperation of COPD.  Even cursory look at the data spreadsheet is sufficient to identify multiple inconsistencies and therefore minor ‘errors’ pale into insignificance, but I attach them for your reference. As for the letter sent to the patients that we were meant to see and amend - I feel that it will not pass external scrutiny (that is highly likely following VASBI meeting) as it does not explain the risks, experimental nature of the practice and our experience is misrepresented. But I do not have any patients using the technique now, and I feel that I have done my best to highlight the issue and therefore I have fulfilled my professional obligations and will drop the matter now. Concealing serious professional misconduct is above my pay grade but I intend to make no further comments on this matter.”

[65]The acknowledgment email from Dr L on the 3 October 2016 timed at 09:54 says “Thank you Jasna. This is a very comprehensive account of your concerns. I will ask the authors of the abstract to give me the facts of each case and allow them a chance to rebut your concerns. If they cannot, then be assured further action will follow”.

[66]The alleged disclosure 5 is a letter to SH (pages 334 to 336) – emailed at 12:54 on the 17 October 2016 the relevant parts to the alleged disclosures are:

[67]“Dear [SH], I thought I needed to explain my concerns in regard to buttonhole technique used the needling of AV grafts for haemodialysis access in more detail as it is on your list of issues to investigate. Mr Gibbs initiated the practice for arterio- venous grafts in haemodialysis patients without any discussion with his colleagues or informed consent of the patients. Use of buttonhole technique for AV grafts is against all national and international guidelines due to increased risk of infection, severe consequences of infection in the presence of artificial material, risk of pseudo-aneurysm formation and exsanguination. There is no published evidence to support its use and in recent years strong calls have been made to minimise its use even for patient dialysing using native vein AV fistulas due to publication of multiple trials indicating significant increase of infective episodes with its use. 13 patients were involved so far out of which 1 has died (female, age 58), 1 patient almost died with sepsis multiple septic pulmonary emboli and required removal of the graft and one patient developed pseudo-aneurysm. He then misinterpreted the results to the unit (presentation clearly stated that there were no infective episodes and the patient with pseudo-aneurysm was not mentioned) The patient who died has been simply brushed off as a ‘drop-out’. (Relevant slide from the presentation given by Sr K with comments attached) ….. …………. Mr Gibbs……… proceeded to question the existing guidelines and oppose the decision of the consultant body that the patient involved should be given full explanation and asked to sign the consent if they wish to continue with buttonhole technique use. He tried to manipulate the wording of the guidelines published in 2011 that led me to seek the clarification from the co-author and the most recent National Director for renal care Dr [F]. In his reply he stated very clearly that BH should not be used for grafts (‘we would never recommend…) and ask us to stop. (Dr [F] is highly regarded in the field of vascular access for dialysis and is recognised nationally and internationally for an enormous contribution in this area of renal clinical practice) …. ……. Unfortunately, despite of the concerns expressed, the practice is still continuing. I have struggled to remove the only patient under my care who was involved, but I am worried that lives of other patients are put at risk. It has been suggested that the technique is preferable to at least some of the patients, but I firmly believe that they have not been informed of the experimental nature of the practice and the 3-4 fold increase in the risk of infections that in the presence of artificial material is likely to lead to loss of vascular access. The situation is made worse with the misrepresentation of our experience at VASBI meeting as the colleagues in other units may decide to embark up the similar path, and therefore, there is a need for urgent action…... ……. The buttonhole technique is not safe or appropriate for use with PTFE AV grafts. Dr [L]’s trust in Mr Gibbs as ‘our vascular expert’ is misplaced as he had to familiarise himself with the guidelines only on my prompting. Two colleagues who were aware of its use have less of 2 years of the experience at the consultant level between them and unfortunately did not research the topic before allowing its introduction. The introduction of the techniques represents, in my view, the most serious abuse of the trust colleagues and patients place in Mr Gibbs. We trusted him to do the best for our patients, but instead, without any thought, prior research of the topic or discussion with the colleagues who are ultimately responsible for patients care he pursued the risky path for no valid clinical reasons. This practice would be indefensible if any of the patients with developed sepsis, endocarditis, bleed to death for pseudo-aneurysm and therefore it is essential that the practice is reviewed, or at least, make sure that the patients are aware of the experimental nature of the practice and significant risks.”

[68]There is then a Consultants meeting on the 4 January 2017 where consultants (including the Claimant) are informed of the outcome of a Care Quality Commission (CQC) BH investigation (page 370). “PG has received feedback from the CQC following anonymous complaint about ‘unsafe practice of button holing grafts’. The CQC are happy that there is no unsafe practice case and will not stop us from continuing this practice. PG is planning to meet with the VASTECH group to see what needs to be done to prove safety weather [SIC] this is publishing are [SIC] existing data or a prospective trial. PG will feedback following this. In the mean time all existing PTFE button hole patients have been counselled and are aware that this deviates from protocol and have this clearly documented in their notes”. As already noted above The Respondent has not produced copies of such notes to support this statement.

[69]Chronologically there is then an email from the manufacturer of the grafts dated 6 January 2017 (page 371) “…. The Buttonhole technique can only be used by patients with an AV fistula, and cannot be used by those with an AV Graft. Damage to the graft would be the result of attempting to buttonhole it. Infections and aneurysms are listed as a possible adverse reaction in our instructions for use, but I do not have data that shows the number of patients that developed infections or aneurysms.”.

[70]Mr Gibbs on behalf of the Respondent says about the manufacturer’s email “I am unsurprised by this response. For legal reasons when manufacturers produce a device they authorise its use for (usually) quite a narrow range of treatments. However, within the medical profession I would estimate that up to 40% of medical devices and drugs are used ‘off licence’ having been initially introduced for a specific purpose. A different example of this would be the use of the Gore Viabahn Endoprothesis. This is a stent graft licensed for use in AVFs and AVGs to treat complex and persistent stenoses. On its product website there is no information on its use to treat ruptured AVFs or AVGs, or its use to treat false aneurysms in the AV access circuit. However, this is the go to stent graft in many high volume access centres in the UK, including our own and beyond. A recognised off licence use. In summary, the Tribunal should not place too much significance on the fact that the manufacturer does not recommend buttonholing AV grafts as it will not have tested this technique on its grafts and will not have a suitable licence for that purpose”.

[71]On the 16 January 2017 Dr L shares an extract of the outcome of the CQC final report with the consultants by email (page 375) which acknowledges that the CQC findings (that no safety concerns arise with the use of buttonholing) is based on the information the Respondent provided to the CQC. The Claimant by email in reply requests a copy of the Respondent’s “rebuttal letter” (page 375). This is refused by Dr L (email at page 374 dated 16 January 2017).

[72]At a consultants meeting on the 18 January 2017 (page 376) (which the Claimant attended) action steps are recorded:

[73]“1. With regards buttonholing a. a letter will be composed by the Unit to be sent to patients using the technique on grafts, explaining the developments regarding ongoing safety concerns. It will contain potential risks and that we, the WKC, take the position that it stop until an in-depth review of the available data has taken place. Once that has taken place, a decision will be made as to whether it should continue and then how to move forward (process), if the use of the technique is to be explored.- ALL”

[74]The Action steps then note that an internal meeting is to be set for the 1 February 2017 to review the details of the 14 patients currently using the BH AVG technique.

[75]The Claimant though is signed off work sick on the 18 January 2017 for two weeks (as confirmed in the agreed chronology and the Claimant’s oral evidence) and this is noted in her email dated 31 January 2017 at pages 418A and 418B. The Claimant confirmed during cross examination that it was because she was on sick leave at that time she could not take part in the review on the 1 February 2017.

[76]Notes from the governance review of BH needling of grafts on the 1 February 2017 are at pages 419 and 420. The notes record “Conclusions …a. The investigation revealed no compelling evidence that BH is associated with additional harm (although, because of small sample and short duration of BH, neither did it rule this out as a possibility)

b. there were no grounds for mandating that this form of needling should be completely abandoned immediately on safety grounds……. In summary:) The initiation of BH had not been handled ideally. This has been recognised. It has already been concluded that the introduction of novel techniques/practices must be discussed at the consultant meeting and submitted to governance in the future. 2) No further patients will be offered BH until the safety of BH can be firmly established. 3) Patients currently receiving BH can continue provided they give informed consent and understand the potential risks. It was decided that: a. As the existing letter of consent (September 2016) was considered inadequate by some, it will be replaced (Action PG). b. the individual’s named consultant nephrologist is responsible for ensuring their patients are suitably informed about potential risks….”.

[77]The Claimant says at paragraph 84 of her statement that colleagues described the governance meeting as a “whitewash” and this can be seen at pages 1327 as comments made by Dr G and also that the results were watered down and this is noted as comments by Dr U at page 1299.

[78]There is an email dated 10 February 2017 from Dr U to Dr L and the consultants (page 433) about the 1 February 2017 governance meeting and it notes in relation to some of the conclusions made “we identified complications which have occurred in several patients for which button holing was an additional risk factor and therefore may or may not have contributed. This is debatable. It is on this basis that I am relieved that the consensus decision was to stop offering button holing of AV grafts in this unit until we know more from Pauls data analysis.” Also, “with regard to point (3) … Patients receiving BH should continue to be offered it provided they give informed consent clearly understand the potential risks…. My own opinion on this is that buttonholing should also be stopped in existing patients as well. It doesn’t make any sense to me to discontinue a procedure on safety grounds yet still offer it to certain individuals and I think the unit could remain open to criticism for doing this. I appreciate the difficulties faced by colleagues in dealing with patients already undergoing the procedure. Giving the option to continue it provided there was informed consent seem to be a reasonable compromise. However on reflection I am concerned that in continuing to provide the procedure colleagues would be assuming a clinical responsibility which would trump any type of informed consent. It strikes me that there is plenty of precedent for this in case law and perhaps the trust solicitors should be consulted to ensure that this approach is watertight in order to protect our colleagues taking it forward.”

[79]There is then an email from Mr Gibbs dated 11 February 2017 (page 435) that responds to Dr U on the two issues he raises: “Having met up with a clinical trials expert on Tue, as promised from the Sept meeting, we are unable to draw any conclusions from the existing data as it is too “messy” …..” “With regard to point 3…. I am obviously going to disagree on this point. I believe that we have stopped recruiting because of safety concerns not safety grounds - a subtle but important difference in my opinion) that are as yet unproven, and likely to remain that way for some time, if ever resolved to everyone’s satisfaction… “

[80]There is then an exchange of emails between the Claimant and Mr Gibbs on the 20 and 21 February 2017 (pages 441 and 442) about the drafting of an updating letter to patients and in her email at page 441 the Claimant notes “if patients are going to continue to use the technique, they deserve and need full and unbiased information so they can make an informed decision. Not anecdotes, discussions, scientific papers. Just clear and concise information in 10 sentences. The letter outlining complication should have been sent to the patients before they were recruited. Unfortunately that has not happened and this needs to be rectified.” … “I have discussed the issue with my colleagues (medical and surgical), both here and in other units and have reviewed all guidelines and publications, so I do not think there is a debate going on in regard to use of BH technique for grafts. BH use with grafts is an absolute contraindication and that is why it has not been used in the last 40 years of BH existence….”

[81]We then move chronologically to alleged disclosure 10 [which the Respondent confirmed during the hearing could be allowed in pursuant to the amendment application made by the Claimant provided the parts relevant to the alleged disclosures were focused on only] which is the letter DMH Stallard (the Claimant’s former solicitors) sent to IC the Chairman and TP the Chief Executive of the Respondent dated the 9 March 2017 (pages 462 to 464). In her statement the Claimant says (at paragraph 351) that “The DMH Stallard letter did not disclose anything new but, on reflection, I believe it was a protected disclosure in its own right.”

[82]Considering therefore the relevant parts of that letter –

[83]“……. My client’s concern relates to the use of button hole needling technique for haemodialysis access for patients dialysing via AV grafts, a practice that is still ongoing in a number of patients treated at the Wessex kidney Centre. This practice is contraindicated in this setting and has been introduced as an uncontrolled experiment with detrimental effect to majority of patients involved. I refer to clause 3.1 of the Policy. My client’s concerns come within the categories of “Poor quality care”, “Malpractice of Care”, and “Negligence”. My client’s primary objectives are to stop the unsafe practice and that the Trust’s legal duty of candour to the patients exposed to the unsafe practice is fulfilled, especially as the majority have experienced significant complication and detrimental effect on their vascular access for haemodialysis.”

[84]There are then nine bullet points that list how the Claimant has expressed her concerns, those that appear to contain details of those concerns are the fifth bullet point: “Verbally on 23 September 2016 to [SH] (who was running an internal investigation in regard to conduct and probity of Mr Gibbs on behalf of the Trust);” the seventh bullet point: “Reporting her concerns again to [SH] in December 2016 and on 13th January 2017, when she informed him of serious complications she had observed. He assured her then that he had informed the head of HR, Medical Director of the Trust and the Trust’s solicitor of her concerns…” and the eighth bullet point: “Sending a copy of her email outlying serious complication to the Medical Director … on 5th February 2017.”

[85]Then the sentence “Notwithstanding the above, the practice is still continuing and I have advised my client that it is now appropriate to consider wider disclosures….”

[86]There is then an email from BB who is an associate Professor at the Department of Microbiology and Immunology, Faculty of Medicine of KU Leuben, Belgium dated 20 March 2017 (page 473) (which is referred to in paragraph 106 of the Claimant’s statement) and he says, “I think buttonhole and grafts is a problem indeed”.

[87]There is then an email from a doctor who is a specialist nephrologist from Saint-Luc UCL in Brussels dated 22 March 2017 (page 474) (which is referred to in paragraph 112 of the Claimant’s statement) “we don’t use (and have never used) buttonhole needling in AV grafts in our in-center HD patients. Ideed [SIC], there is absolutely no published experience concerning this technique in AV grafts, so we prefer to be careful...”.

[88]There is then a further consultants meeting on 22 March 2017 (page 476 to 477) and it is noted from that (page 477) “…. A further discussion relating to buttonholing PTFE graft, seeking assurance that all patients that continue to BH must told it’s against guidelines and holds safety concerns. [the Claimant] stated the patient should be told it is contraindicated and that we have observed 3/15 pseudo-aneurysms, 2/15 grafts removed and 15 times increased rate of infection, [the Claimant] feels that all complications that have arisen since September could have been prevented if her patient safety concerns had been addressed. [The Claimant] felt our results were insulting to both professional competence and practice. It was brought up that all cases were individually reviewed, that the CQC had been satisfied, NHS England were now involved. All remaining patients will receive a letter from [Mr Gibbs] and all have and will continue to be spoken to by their nephrologist. No definitive resolution beyond this was reached.”

[89]There is then the alleged disclosure 11 [which remains subject to an amendment application by the Claimant for it to be included but is considered chronologically here for subsequent consideration of the amendment application the Claimant has made at that start of this hearing] which is a letter from DMH Stallard to the Respondent’s solicitors Mills & Reeves dated 29 March 2017 (pages 479 to 491). It is noted within that letter that “I enclose my client’s comments to your letter which set out again the concerns she had previously expressed.”. Although this was the subject of an amendment application to include it as a disclosure as at the start of this hearing, the Claimant did not refer to this being a disclosure in her evidence at this hearing.

[90]Chronologically there is then email from Dr AD of the UCL Centre for Nephrology at the Royal Free Hospital dated 6 April 2017 (page 496) which says “as far as I am aware buttonhole cannulation has never been advocated for A-V grafts, as repeated needling in one site will risk damage to the graft material and risk pseudo-aneurysm formation, but I will check with our own surgical team (who have developed a new synthetic material with UCL). Although I was very pleased with our initial experience, we late ran into problems with infections, which have been a problem despite repeated education programs. A-V grafts are recognised to have a higher infection rate compared to A-V fistula with standard needling”. Disclosures 6 and 7

[91]The alleged disclosures 6 and 7 are letters to the relevant external bodies (CQC and GMC) dated 9 March 2017 (pages 499 to 506) but they are not sent until 19 April 2017 (page 507) to CQC and submitted online to GMC at the same time (paragraph 121 of the Claimant’s statement). For these disclosures the Claimant also needs to reasonably believe that the information disclosed, and any allegation contained in it, are substantially true. The Respondent says that by the time of these letters there had already been consideration by the CQC and the internal review on the 1 February 2017 (as referred to above) had concluded that the practice of BH AV Grafts was not unsafe and could continue, so the Claimant could not reasonably believe that the information disclosed, and any allegation contained in it, are substantially true.

[92]The Claimant explains why she sent her letters to the CQC and GMC at that time (in paragraph 115 of her statement). “The aggressive nature of the letter from Mills and Reeves [(in response to her alleged disclosure 10)] and the way the Respondent was dealing with my concerns shocked and upset me. I felt that I had no option to report the matter further. In April 2017, therefore I wrote to both the GMC and the CQC.”

[93]The letter is 8 pages long – it opens: “I’m writing to you as a whistleblower to report severe substantial wrongdoing at the Portsmouth hospitals NHS trust; within the Wessex kidney Centre (“Centre”), during the last two years, which has unfortunately put at least 15 patients at substantial and unnecessary risk and which has resulted in serious complications for a majority of the patients involved.”

[94]Then under a heading “The Complaint” the Claimant sets out her concerns in particular “the use of buttonhole needling technique by the Centre for patients dialysing with AV Grafts (“Technique”)”.

[95]The Claimant refers to the Technique being contraindicated due to health concerns. She says that the practice is continuing in a number of patients. She also says that informed consent was not obtained (page 500) “They failed to obtain the informed consent of the patients for the introduction of such an experimental practice and failed to act in this regard when concerns were expressed”.

[96]The letter then goes on to provide a detailed summary of the matter which the Claimant says in her letter is “the facts of what to my knowledge has so far occurred at the Centre in relation to the use of the Technique”.

[97]Then under a heading “Actual complications with Patients at the Centre as a result of the Technique” (page 503) the Claimant sets out in paragraphs a) to n) (pages 503 to 504) detail collected in early February 2017 about the 15 patients. She concludes by saying “Even if we had no complications at all, in my view it is unethical to put patients’ lives and health at substantial risk through the use of this Technique, especially bearing in mind the risks of septicaemia, fatal bleeding and graft destruction.”.

[98]The Claimant then under a heading “Summary of national and international guidelines for the Technique” lists references to 8 sets of guidelines, including the International society of Haemodialysis which says that “The BH technique is not recommended for all patients and is contraindicated in patients with arteriovenous grafts (AVGs).” – there is a copy of this extract in the agreed bundle at page 1675.

[99]Mr Gibbs’ position in respect of these guidelines is set out in his witness statement at paragraph 7 “the national guidance on cannulation does not expressly mention buttonholing PTFE grafts. However, these guidelines also do not state that PTFE grafts cannot be buttonholed. In order to feature in these guidelines you need evidence supporting the method. In short, as I have always understood it, as the guidelines do not prohibit the use of the buttonholing method, my view is that it can be used, but for it to be mentioned in the guidelines evidence to support the method is needed. The difference of interpretation between my own approach and that of [the Claimant] is that [she] considered that because the guidelines did not refer to buttonholing it should not be carried out. I read that as being no evidence one way or another. The progression of medical techniques and treatment relies on innovation and medical professionals applying different techniques and generally trying to improve the patient experience. As a unit the WKC are keen to progress new techniques and innovate, we recognise that dialysis is a challenging process for patients and we are continually searching for ways to improve this. For example my colleague [NS] is currently developing an app to assist with home dialysis. It is within this context that the discussions regarding buttonholing AV grafts started.”. Mr Gibbs did though accept during cross examination, that the International society of Haemodialysis guidelines (as referred to at paragraph 98 above) do state that BH is contraindicated in patients with AVGs.

[100]In conclusion the Claimant says in her letter (page 506) “My sole motivation in raising my concerns about the practice at the very beginning was for the welfare and safety of patients in the Centre. At that time I was not even aware of any complications. Now, 7 months and many complications later, the practice is still continuing and the Trust and its medical director have not taken any action to remedy the matter.”

[101]The Claimant then sends further documents to the GMC regarding her BH complaint by letter dated 13 June 2017 at page 589 to 590. This includes the “record of complications concerning every individual patient involved in the experiment together with the timing of the complications…” and “Notes from the “Governance” meeting” which is the one that took place on the 1 February 2017.

[102]There was a telephone conversation between the Claimant and the GMC on the 15 June 2017 (as can be seen by the telephone note at page 591A) which records “I asked [the Claimant] about the table of instances where a problem occurred that she sent yesterday. She said she had compiled this herself using the hospital monitoring system, and the notes in italic are direct quotes from the system…. She added that previously there had only been one patient that hadn’t had any complications, however on 8 June they were found in a pool of blood at their home and have now been taken to Southampton Trust and are in a critical condition. If the patient dies then this will be a direct result of the procedure…. She said she had seen the patients after the procedure and they have holes on their arms. She also added that the patients aren’t being advised it’s against medical advice to undergo the procedure...”.

[103]The GMC outcome concerning the investigation into Dr L is at pages 1564 to 1575 (dated 15 January 2018) and the outcome concerning the investigation into Mr Gibbs is at pages 1589 to 1600 (dated 16 January 2018). In both of those outcome reports the same comments are made about the Claimant (see pages 1569 and 1594): “We are of course mindful of the findings of the independent whistleblowers review the GMC commissioned from Sir Anthony Hooper. Having considered the correspondence disclosed to the GMC by the trust: and by Dr Macanovic, it appears Dr Macanovic first raised her concerns locally and that it was only after she concluded, in her view, that her concerns were not being adequately addressed locally that she made her complaint to the GMC. In doing so Dr Macanovic was no doubt aware, amongst other things, of the guidance at paragraph 25 of the good medical practice that doctors ‘must take prompt action if you think that patient safety, dignity or comfort is or may be seriously compromised’. In the event Dr Macanovic generally considered there was a risk to patient safety, and it appears to us that she did consider such a risk existed, but she had not raised her concerns through whatever mechanism was available to her locally and/or if she deemed it necessary to GMC, she would in our view have been rightly criticised by the public and by the GMC for failing to do so.”.

[104]The GMC outcome also notes (at page 1571) “… it appears in light of these results that the contention that there have been ‘no infections is no longer sustainable. There have now been several infections, one of which was unequivocally identified as having been a buttonhole infection….”

[105]The GMC outcome further notes (at page 1574) “…. The buttonholing technique was not consistent with professional guidelines and some of the patients developed complications. However the evidence indicates the Dr [L] took safety concerns into account, and there is no evidence in our view of any actions or omissions in this regard that would be considered to be serious enough to warrant action on his registration. The realistic prospect test is not satisfied”

[106]Matters against Dr L and Mr Gibbs are not upheld as the GMC found that there was insufficient evidence of misconduct for a warning to be appropriate. The cases against them were closed with no further action.

[107]The Claimant describes at paragraph 168 of her witness statement that four of her consultant colleagues (Dr B, Dr U, Dr G and Dr Sy) met with Dr K (the new medical director) and TP the acting CEO on the 26 June 2017. The discussion they had is documented in a letter dated 4 July 2017 at pages 604 to 605 of the bundle. The letter records: “As you are aware, there are both clinical and manufacturer guidelines against this practice. We have had concerns about the introduction of a contraindicated practice into our Unit without a research governance structure in place, i.e.  Due consideration of the available guidelines,  Design of a methodical research proposal to introduce the technique,  Ethical approval to commence this technique in patients and  Fully informed patient consent regarding the risks, in accordance with Good Clinical Practice guidelines…… ……. Since February, we have had continuing concerns about observed clinical events in this group of patients. We have not yet received a formal departmental update on these patients by the Vascular Group; to reassure us this practice is safe to continue. Therefore, we have verbally expressed to you on Monday 26th June, our concerns about the ongoing use of this technique and queried whether consideration should be given to suspending this practice, pending the proposed external review…… …. We remain of the opinion the practice should cease, though do understand this would be unpopular with patients involved and the Vascular Group…Our primary concerns are with regard to patient safety…We respect our colleagues and do not seek to conflict with them; we would like to re-iterate that we have no concerns regarding their clinical skills. We simply feel that judgement on the practice of BH-AVG has been misguided.”

[108]The next alleged disclosure (alleged disclosure number 8) dated the 18 August 2017 is no longer relied upon by the Claimant.

[109]There is then an external review report dated 28 July 2017 at pages 665 to 720. Within the Executive Summary of that review report (page 667) it is noted “….. The practice appears to have been initiated through a patient driven need to self-cannulate, avoid area puncture and use dull needles for ease of pain and cannulation. Patients we met expressed a strong preference for BH technique for AVG due to a number of factors including previous positive experience with BH, ease of cannulation and less pain, being able to self-cannulate and be at home and concern about inadvertent area puncture instead of rope-ladder used in difficult circumstances with its associated complications. These patients were fully aware about risks and complications of BH in AVG and had recently signed consent forms to continue with BH for AVG. All the interviewed patients expressed strong feelings in relation to how this practice had transformed their lives. They expressed full confidence and trust in the team and their overall care. Most of these patients have had kidney failure over several years………. There has been extensive work done within the Department with available documentation on patient information, consent, BH practice protocols and Standard Operating Procedure [SOP] and guidance within the unit. An internal review of all 15 patients who had AVG cannulation using BH technique concluded that there was no additional harm to patients that was above and beyond expected in the clinical circumstances, from analysis of recorded complication rates from a button hole cannulation”

[110]This external review report was then circulated to Consultants on the 26 September 2017 (this is referred to in the email at page 753).

[111]There is then an email dated 3 October 2017 sent by four of the consultants (not including the Claimant) to the Medical director at the Respondent about this external report (pages 764 to 765). It notes: “You were asking us to tell you our concerns regarding the external report on buttonholing of AV grafts. We completely agree that we need to move forward as a unit and heal. Therefore our focus is on how we do that, rather than on arguing about errors in the report. We agree that the external team did their best to provide a fair report with the information they were given, and we do not think that asking them further questions is likely to be helpful. We would like to point out the following: 1) The repeated statement that this was a patient led initiative and was a response to an unmet patient need is factually incorrect. It is true for the index patient who started the technique, but it is not the case for the majority of the other 15 patients. This group included patients who were not self needling and who had had no problems with their grafts being rope laddered, and patients starting out on dialysis who would not have been familiar with the concept of buttonholing. 2) The report states that no harm was done if robust governance and monitoring was in place. There was no governance or monitoring in place until this year, and this was only initiated in response to the patient safety concerns raised. The report indirectly acknowledges this by citing “recent consent”. 3) The interpretation of the observed complications being no higher than expected for a similar patient cohort not buttonholing is problematic, as this comparison was never attempted in our unit, despite our insistence during the internal review subsequently that excess harm could only be established in this way…… Having highlighted these issues we are sure you will understand why we are uncomfortable from a professional point of view with accepting the entire content of the report. However, for the purposes of moving our unit forward we agree with the clinical conclusions reached in the executive summary.”

[112]On the 18 October 2017 a position statement is signed as agreed by the relevant medical professionals at the Respondent in connection with BH of AVG (pages 776 to 779). This position statement confirms that BH technique “should not be actively encouraged or promoted outside of a formal clinical trial”. The Claimant signs this position statement and says in her statement that she was content to sign it so that from October 2017 there was an agreement amongst all the renal consultants about the BH technique (paragraph 202).

[113]The alleged disclosure 9 is a repeat of the alleged disclosure 5 in that a copy of the letter that had been sent to SH is sent to the Corporate HR Manager by email dated 3 November 2017 (page 784) as an “FYI”. So, the purpose of the communication does not appear to be to disclose information about the issues the Claimant was originally concerned about (as the position statement on BH was agreed in October 2017), but to relay that she had (in her view) made disclosures. At paragraph 350 of her witness statement the Claimant states about this alleged disclosure “I sent a copy of my previous disclosure made on the 17 October 2016 to [SH]”.

[114]In evidence I was directed to a letter of Professor M, a Professor of Medicine and Epidemiology at the Western University, London Ontario, Associate Chair, Division of Nephrology at pages 1630 to 1630B of the bundle dated 21 February 2018. Her opinion as expressed at page 1630B notes “1. The use of BHC in AV-fistula has been proven to increase the risk of infection and provides minimal patient benefit….2. The PTFE graft is not approved for BHC. In fact the manufacturer recommends against the use of a cannulation method that does not rotate the sites…… Based on the literature review above and the manufacturers recommendations for use, any use of BHC in grafts renders significant patient risk and safety concerns. In vitro testing of the integrity and safety of the PTFE graft material with repeat cannulation should be a first step before considering its use patients. Any proposed “innovative” use of BHC of AV grafts must be approached with significant caution, with full disclosure to the patient regarding the increased risk and off label use. The reporting of outcomes of BHC in AV grafts must meet the highest level of surveillance and reporting of risk and harm. This should be a set intention at the start of use. The steps above do not appear to have been met in the renal unit in question.”.

[115]Although this view from Professor M is presented after the Claimant’s alleged disclosures have been made, and after the internal and external reviews and the agreed position statement on practice has been put in place, the Claimant asserts that as the view of Professor M is the same as hers it shows objectively that what she believed she disclosed to the Respondent, CQC and GMC was reasonable. The amendment application

[116]As to the amendment application as already said the Respondent has now consented to the alleged disclosure 10 being considered as an “alleged disclosure”. It opposed the application for alleged disclosure 11 to be included. It was explained to me that the amendment was raised with Respondent’s Counsel on the 10 January 2020 and the application was then made at the beginning of this hearing. Claimant’s counsel confirmed that the reason for it being made now was because the Respondent continued to object to the Claimant’s amendment to include the alleged disclosure 10. The assertion by the Respondent that the Claimant’s solicitors, who made the application to amend in February 2019 to include disclosure 10, would have known about disclosure 11 at that time also, was not challenged by the Claimant. It could therefore have been included then as part of that application.

The Law

[117]Under section 43A of the Employment Rights Act 1996 a protected disclosure is a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H.

[118]Section 43B(1) provides that a qualifying disclosure means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and 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,

(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, or is likely to be deliberately concealed.

[119]Under Section 43C(1) a qualifying disclosure becomes a protected disclosure if it is made in accordance with this section if the worker makes the disclosure –(a) to his employer, or

(b) where the worker reasonably believes that the relevant failure relates solely or mainly to – (i) the conduct of a person other than his employer, or (ii) any other matter for which a person other than his employer has legal responsibility, to that other person.

[120]Under Section 43F(1) of the Act a qualifying disclosure becomes a protected disclosure if it is made in accordance with this section if the worker –(a) makes the disclosure …to a person prescribed by an order made by the Secretary of State for the purposes of this section, and

(b) reasonably believes – (i) that the relevant failure falls within any description of matters in respect of which that person is so prescribed, and (ii) that the information disclosed, and any allegation contained in it, are substantially true. Both the Care Quality Commission (“the CQC”) and the General Medical Council (GMC) are “prescribed persons” for matters relating to the provision of health and social care.

[121]I was presented with helpful skeleton arguments by both Counsel in this matter and they referred to the following case authorities within their submissions:a. Kilraine v London Borough of Wandsworth

[2018] IRLR 846

b. Cavendish Munro Professional Risks Management Ltd v Geduld

c. Simpson v Cantor Fitzgerald Europe

[2019] UKEAT 0016

18 2016

d. Babula v Waltham Forest College

[2007] EWCA Civ 174

e. Korashi v Abertawe Bro Morgannwg University Health Board

[2012] IRLR 4

f. Darnton v University of Surrey

[2002] UKEAT 882

01 1112

g. Nese v Airbus Operations Ltd

[2015] UKEAT 0477

13 2701

h. Chesterton Global Ltd and Anor v Nurmohamed UKEAT/2015 (and as discussed in Parsons v Airplus International Ltd UKEAT 0111 17

i. Montgomery v Lanarkshire Health Board

j. Blackboy Ventures Ltd v Gahir

[2014] IRLR 416

k. Dr Y-A-Soh v Imperial College

UKEAT/0350/14/DM

l. Eiger Securities LLP -v- Korshunova

[2017] IRLR 115

m. Selkent Bus Co Ltd -v- Moore

[1996] ICR 836

EAT

[122]Both Counsel in their submissions identified three separate elements to be considered when determining if a qualifying protected disclosure has been made:a. Did the Claimant disclose any information?

b. If so did she reasonably believe the information tended to show at least one of the relevant failures? Plus, for the alleged disclosures 6 and 7 did she reasonably believe the information disclosed, and any allegation contained in it, are substantially true?

c. If so did she reasonably believe that the disclosure was made in the public interest? Disclosure of Information

[123]As noted by the EAT in Kilraine, tribunals should be careful when applying the EAT’s ruling in Cavendish that, to be protected, a disclosure must involve information and not simply voice a concern or raise an allegation. The legislation does not distinguish between "information" and "allegations". The question is simply whether the disclosure imparts information, and the fact that it is also an allegation is irrelevant.

[124]On this matter Claimant’s counsel referred me to Eiger – paragraphs 32 and 35:

[125]“32. Mr Cordrey, counsel for the Claimant, submitted that the decision as to whether the Claimant had disclosed information to the Respondent was a straightforward issue of fact. The ET had correctly considered Cavendish Munro and Kilraine and reached a permissible conclusion on the facts. Mr Cordrey contended that, applying Kilraine , a statement by an employee that “your treatment of me is disgusting” would not be a disclosure of information. However saying “your treatment of me in locking me out of the office is disgusting” would be a disclosure of information. In Kilraine Mr Justice Langstaff held: “that the words in issue in that case said nothing that was specific. They were ‘there have been numerous incidents of inappropriate behaviour towards me’.” The Judge had no difficulty in concluding that the ET had not erred in holding that the Claimant had not conveyed information within the meaning of the ERA . However it was said that the Claimant's words to Mr Ashton were specific and went beyond what he already knew. She told him that clients did not like him communicating from her computer without identifying himself. “35. The Claimant stated to Mr Ashton that it was wrong for him to trade from her personally designated computer without making it clear that she is not the person making the trade and identifying himself. If the statement had stopped there it may have been no more than an allegation of wrongdoing. However the Claimant went on to tell Mr Ashton what her clients thought of his behaviour. This was new information given to Mr Ashton. The two sentences should be read together and considered in their context. This is an example of the situation envisaged by Mr Justice Langstaff in Kilraine in which allegation and information are intertwined. Whether such words are to be regarded as “disclosure of information” within the meanings of ERA section 43B(1) depends on the context and the circumstances in which they are spoken. The decision as to whether such words which include some allegations cross the statutory threshold of disclosure of information is essentially a question of fact for the Employment Tribunal which has heard evidence.”

[126]Both counsel referred to Kilraine and in particular: “28. The EAT in Cavendish Munro correctly noted at [20] that in section 43F , set out above, the ERA recognises that there can be a distinction between "information" (the word used in section 43B(1) ) and an "allegation". Both words are used in section 43F . At [24]-[26] the EAT said this:"24. Further, the ordinary meaning of giving "information" is conveying facts. In the course of the hearing before us, a hypothetical was advanced regarding communicating information about the state of a hospital. Communicating "information" would be "The wards have not been cleaned for the past two weeks. Yesterday, sharps were left lying around". Contrasted with that would be a statement that "you are not complying with Health and Safety requirements". In our view this would be an allegation not information.

25. In the employment context, an employee may be dissatisfied, as here, with the way he is being treated. He or his solicitor may complain to the employer that if they are not going to be treated better, they will resign and claim constructive dismissal. Assume that the employer, having received that outline of the employee's position from him or from his solicitor, then dismisses the employee. In our judgment, that dismissal does not follow from any disclosure of information. It follows a statement of the employee's position. In our judgment, that situation would not fall within the scope of the Employment Rights Act section 43 .

26. The Tribunal based its conclusion that Mr Geduld was dismissed because, through his solicitor's letter of 4 February 2008, he made a protected disclosure. In our judgment the letter sets out a statement of the position of Mr Geduld. In order to fall within the statutory definition of protected disclosure there must be disclosure of information. In our judgment, the letter of 4 February 2008 does not convey information as contemplated by the legislation let alone disclose information. It is a statement of position quite naturally and properly communicated in the course of negotiations between the parties."….. 31. On the other hand, although sometimes a statement which can be characterised as an allegation will also constitute "information" and amount to a qualifying disclosure within section 43B(1) , not every statement involving an allegation will do so. Whether a particular allegation amounts to a qualifying disclosure under section 43B(1) will depend on whether it falls within the language used in that provision. ……. 35. The question in each case in relation to section 43B(1) (as it stood prior to amendment in 2013) is whether a particular statement or disclosure is a "disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the [matters set out in sub-paragraphs (a) to (f)]". Grammatically, the word "information" has to be read with the qualifying phrase, "which tends to show [etc]" (as, for example, in the present case, information which tends to show "that a person has failed or is likely to fail to comply with any legal obligation to which he is subject"). In order for a statement or disclosure to be a qualifying disclosure according to this language, it has to have a sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection (1). The statements in the solicitors' letter in Cavendish Munro did not meet that standard. 36. Whether an identified statement or disclosure in any particular case does meet that standard will be a matter for evaluative judgment by a tribunal in the light of all the facts of the case. It is a question which is likely to be closely aligned with the other requirement set out in section 43B(1) , namely that the worker making the disclosure should have the reasonable belief that the information he discloses does tend to show one of the listed matters. As explained by Underhill LJ in Chesterton Global at [8], this has both a subjective and an objective element. If the worker subjectively believes that the information he discloses does tend to show one of the listed matters and the statement or disclosure he makes has a sufficient factual content and specificity such that it is capable of tending to show that listed matter, it is likely that his belief will be a reasonable belief.”

[127]Respondent’s counsel highlighted from Simpson that disclosures which are speculative or are based on assumptions are unlikely to have the required level of specific content (paragraph 70). Reasonable belief

[128]Claimant’s counsel again referred to Eiger and paragraph 46 “46. In my judgment it is not obvious that not informing a client of the identity of the person whom they are dealing if the employee is trading from another person's computer is, as in Bolton , plainly a breach of a legal obligation. That being so, in order to fall within ERA section 43 B(1)(b) , as explained in Blackbay the ET should have identified the source of the legal obligation to which the Claimant believed Mr Ashton or the Respondent were subject and how they had failed to comply with it. The identification of the obligation does not have to be detailed or precise but it must be more that a belief that certain actions are wrong. Actions may be considered to be wrong because they are immoral, undesirable or in breach of guidance without being in breach of a legal obligation. However, in my judgment the ET failed to decide whether and if so what legal obligation the Claimant believed to have been breached.”

[129]Respondent’s counsel highlighted that reasonable belief is both objective and subjective. I must be satisfied that the Claimant subjectively believed that informed consent was required but not obtained before undertaking BH on AVGs and/or that BH endangered patient safety but also that it was reasonable for her to hold those beliefs. It is not enough for the Claimant to rely on an assertion as to her subjective belief (as per Simpson – paragraph 69). “69. 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.”

[130]The reasonableness of Claimant’s belief is to be judged by the information that would be available to a consultant nephrologist at the time of her disclosure and her ability (given her qualification and experience) to assess the information and reach reasoned conclusions about it (paragraph 9 of the Respondent’s skeleton and also referred to at paragraph 40 of the Claimant’s Skeleton). Reference is made to paragraph 62 of Korashi: “62. This filter appears in many areas of the law. It requires consideration of the personal circumstances facing the relevant person at the time. Bringing it into our own case, it requires consideration of what a staff grade O&G doctor knows and ought to know about the circumstances of the matters disclosed. To take a simple example: a healthy young man who is taken into hospital for an orthopaedic athletic injury should not die on the operating table. A whistleblower who says that that tends to show a breach of duty is required to demonstrate that such belief is reasonable. On the other hand, a surgeon who knows the risk of such procedure and possibly the results of meta-analysis of such procedure is in a good position to evaluate whether there has been such a breach. While it might be reasonable for our lay observer to believe that such death from a simple procedure was the product of a breach of duty, an experienced surgeon might take an entirely different view of what was reasonable given what further information he or she knows about what happened at the table. So in our judgment what is reasonable in s43B involves of course an objective standard — that is the whole point of the use of the adjective reasonable – and its application to the personal circumstances of the discloser. It works both ways. Our lay observer must expect to be tested on the reasonableness of his belief that some surgical procedure has gone wrong is a breach of duty. Our consultant surgeon is entitled to respect for his view, knowing what he does from his experience and training, but is expected to look at all the material including the records before making such a disclosure. To bring this back to our own case, many whistleblowers are insiders. That means that they are so much more informed about the goings-on of the organisation of which they make complaint than outsiders, and that that insight entitles their views to respect. Since the test is their “reasonable” belief, that belief must be subject to what a person in their position would reasonably believe to be wrong-doing.”

[131]Determining the factual accuracy of the information in the disclosures is an important tool for determining whether Claimant had a reasonable belief or not (Darnton paragraphs 28 and 29): “28. In our opinion, it is essential to keep the words of the statute firmly in mind; a qualifying disclosure is defined, as we have noted on a number of occasions, as meaning any disclosure of information which in the reasonable belief of the worker making the disclosure tends to show a relevant failure. It is not helpful if these simple words become encrusted with a great deal of authority. We are unable to accept Mr Kallipetis's submission that the worker's belief in the truth of the factual allegations he makes, as opposed to what the allegations “tend to show”, is always irrelevant to the issue of reasonable belief, but is only relevant as to whether the disclosure is made in good faith. We are equally unable to accept Mr Sutton's submission that the worker must believe in the accuracy of the factual basis of the disclosure on reasonable grounds. Circumstances that give rise to a worker reporting a protected disclosure will vary enormously from case to case. The circumstances will range from cases in which a worker reports matters which he claims are within his own knowledge, or have been seen or heard by him. At the other extreme will be cases where the worker passes on what has been reported to him, or what he believes has been observed by other persons.” “29. In our opinion, the determination of the factual accuracy of the disclosure by the tribunal will, in many cases, be an important tool in determining whether the worker held the reasonable belief that the disclosure tended to show a relevant failure. Thus, if an employment tribunal find that an employee's factual allegation of something he claims to have seen himself is false, that will be highly relevant to the question of the worker's reasonable belief. It is extremely difficult to see how a worker can reasonably believe that an allegation tends to show that there has been a relevant failure if he knew or believed that the factual basis was false, unless there may somehow have been an honest mistake on his part. The relevance and extent of the employment tribunal's inquiry into the factual accuracy of the disclosure will, therefore, necessarily depend on the circumstances of each case. In many cases, it will be an important tool to decide whether the worker held the reasonable belief that is required by section 43B(1) . We cannot accept Mr Kallipetis's submission that reasonable belief applies only to the question of whether the alleged facts tend to disclose a relevant failure. We consider that as a matter of both law and common sense all circumstances must be considered together in determining whether the worker holds the reasonable belief. The circumstances will include his belief in the factual basis of the information disclosed as well as what those facts tend to show. The more the worker claims to have direct knowledge of the matters which are the subject of the disclosure, the more relevant will be his belief in the truth of what he says in determining whether he holds that reasonable belief.”

[132]The Respondent asserts that it would be reasonable to expect the Claimant to look at all the patient records and data pertaining to the 15 patients (as per paragraph 62 in Korashi) and also referred to the comment from paragraph 76 “…if the Claimant had not examined the patient’s records, the Tribunal was entitled to form the view that the Claimant acted without objectively reasonable belief in the truth of his allegations.”

[133]Respondent’s counsel submits that where others with equivalent or greater knowledge and expertise would not regard the information as showing that BH was unsafe, then that would be relevant in determining whether the Claimant’s belief was reasonable – paragraph 55 Simpson “55. Thus, the Claimant's 'insider status' means that respect is to be afforded to his view that there is or is likely to be a breach of some regulatory obligation, but that status also means that the Claimant can be expected to apply his knowledge and expertise in properly considering all the material available to him before making the disclosure. The views of others in the organization are not irrelevant for the purposes of determining whether the Claimant's belief is reasonable. If the evidence suggests that others with equivalent or greater knowledge and expertise of the industry would not regard the information as tending to show a breach, then that would be relevant in determining whether the Claimant's belief was reasonable. Insider status does not mean that the whistle-blower's subjective view that the information tends to show a breach is sufficient; the test remains an objective one. However, one only gets to the stage of applying the objective test if the employee establishes that the belief was genuinely held. If the employee did not actually believe that the information tends to show a breach then the claim that there was a protected disclosure will not get off the ground.” Reasonable belief in public interest

[134]The “public interest test” was considered by the EAT in Chesterton. The test is not whether the disclosure per se was in the public interest, but whether the worker making the disclosure had a reasonable belief that it was. The language of “reasonable belief” pre-dated the June 2013 amendment to the statutory provisions and had remained the same since. Cases such as Babula remain relevant. The workers’ belief that the disclosure was made in the public interest has to be objectively reasonable.

[135]Respondent’s Counsel referred me to discussion of Chesteron in Parsons – paragraph 25 as quoted below (and which also includes the references made to Chesterton by Claimant’s counsel):

[136]“25. More generally, in Chesterton , Underhill LJ offered the following guidance. First, as to the approach that has to be taken in general: "27. First, and at the risk of stating the obvious, the words added by the 2013 Act fit into the structure of s.43B as expounded in Babula (see paragraph 8 above). The tribunal thus has to ask (a) whether the worker believed, at the time that he was making it, that the disclosure was in the public interest and (b) whether, if so, that belief was reasonable. 28. Second, and hardly moving much further from the obvious, element (b) in that exercise requires the tribunal to recognise, as in the case of any other reasonableness review, that there may be more than one reasonable view as to whether a particular disclosure was in the public interest; and that is perhaps particularly so given that that question is of its nature so broad-textured. The parties in their oral submissions referred both to the 'range of reasonable responses' approach applied in considering whether a dismissal is unfair under Part X of the 1996 Act and to 'the Wednesbury approach' employed in (some) public law cases. Of course we are in essentially the same territory, but I do not believe that resort to tests formulated in different contexts is helpful. All that matters is that the tribunal should be careful not to substitute its own view of whether the disclosure was in the public interest for that of the worker. That does not mean that it is illegitimate for the tribunal to form its own view on that question, as part of its thinking - that is indeed often difficult to avoid - but only that that view is not as such determinative. 29. Third, the necessary belief is simply that the disclosure is in the public interest. The particular reasons why the worker believes that to be so are not of the essence. That means that a disclosure does not cease to qualify simply because the worker seeks, as not uncommonly happens, to justify it after the event by reference to specific matters which the tribunal finds were not in his head at the time he made it. Of course, if he cannot give credible reasons for why he thought at the time that the disclosure was in the public interest, that may cast doubt on whether he really thought so at all; but the significance is evidential not substantive. Likewise, in principle a tribunal might find that the particular reasons why the worker believed the disclosure to be in the public interest did not reasonably justify his belief, but nevertheless find it to have been reasonable for different reasons which he had not articulated to himself at the time: all that matters is that his (subjective) belief was (objectively) reasonable. 30. Fourth, while the worker must have a genuine (and reasonable) belief that the disclosure is in the public interest, that does not have to be his or her predominant motive in making it: otherwise, as pointed out at paragraph 17 above, the new ss.49(6A) and 103(6A) would have no role. I am inclined to think that the belief does not in fact have to form any part of the worker's motivation - the phrase ' in the belief' is not the same as 'motivated by the belief'; but it is hard to see that the point will arise in practice, since where a worker believes that a disclosure is in the public interest it would be odd if that did not form at least some part of their motivation in making it."” Law concerning the amendment application

[137]As confirmed in Selkent when determining whether to grant an application to amend, the Employment Tribunal must always carry out a careful balancing exercise of all the relevant factors, having regard to the interests of justice and to the relative hardship that would be caused to the parties by granting or refusing the amendment. Relevant factors include:a. The tribunal has to decide whether the amendment sought is a minor matter or a substantial alteration pleading a new cause of action; and

b. if a new claim or cause of action is proposed to be added by way of amendment, it may be necessary for the tribunal to consider whether that claim or cause of action is out of time and, if so, whether the time limit should be extended; and

c. an application should not be refused solely because there has been a delay in making it as amendments may be made at any stage of the proceedings. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made: for example, the discovery of new facts or new information appearing from documents disclosed on discovery. The decision

[138]Before addressing the three questions posed by respective Counsel (see paragraph 122 above) I can record that (as is accepted by the parties and apparent from the submissions they made both in writing and orally and with reference to the Appendix A document) the alleged disclosures 1 to 5, 9 and 10 were made to her employer so fall under Section 43C(1)(a). Alleged disclosures 6 and 7 were made to prescribed persons (the CQC and GMC) so fall under Section 47F and they are the correct “prescribed persons” for matters relating to the provision of health and social care, but have the additional requirement that the Claimant reasonably believes the information to be substantially true.

[139]The alleged disclosure 11 (which is subject to the Claimant’s amendment application) was a letter to the Respondent’s solicitors and is addressed further in my decision on the Claimant’s amendment application below.

[140]It is accepted by the Claimant that disclosure 8 is no longer relied upon so I will not address that one further.

[141]So, reminding myself of the relevant wording of Section 43B relevant to this claim “a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following – … (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject…. (d) that the health or safety of any individual has been, is being or is likely to be endangered….”.

[142]Information - The Claimant says that all her alleged disclosures tend to show:a. Breach of a legal obligation: i. (Paragraph

338.1 ) an “obligation to obtain a patient’s informed consent”. Then further the Claimant explains in her witness statement (at paragraph 30) “… As a doctor, it is my responsibility to ensure that a patient has consented to his or her treatment. I’ve always understood this to be a legal obligation imposed on doctors. The General Medical Council provides guidelines in connection with consent and an extract from the guidelines are a page 222A [of the bundle]. As the guidelines say, before accepting the patient’s consent, a doctor must consider whether the patient has been given the information they want or need or how well they understand the details and implication of what is proposed. In cases involving high risk (which is the case with the Buttonholing Technique), it is important that the doctor gets the patient’s written consent, so that everyone involved, especially the patient, properly understands what was explained and what was agreed.”; and ii. (Paragraph 338.1) The Health and Social Care (Safety and Quality) Act 2015…” which then refers to paragraph 31 of her statement which reads in respect of that Act “…..The Health and Social Care (Safety and Quality) Act 2015 Section 1(2) provides that “The Secretary of State must by regulations impose requirements that the Secretary of State considers necessary to secure that services provided in the carrying on of regulated activities cause no avoidable harm to the persons for whom the services are provided” [Claimant’s emphasis added];

b. Health and Safety (at paragraph

[143]So, did the Claimant disclose information that tended to show the above?

[144]As noted in Eigar (paragraph 35) I can consider the context and the circumstances in which the words are conveyed and the “decision as to whether such words which include some allegations cross the statutory threshold of disclosure of information is essentially a question of fact for the Employment Tribunal which has heard evidence.”

[145]As noted in Kilraine - “28. The EAT in Cavendish Munro correctly noted at [20] that in section 43F, set out above, the ERA recognises that there can be a distinction between "information" (the word used in section 43B(1) ) and an "allegation". Both words are used in section 43F”.

[146]However, the question to consider is simply whether the disclosure imparts information, and the fact that it is also an allegation is irrelevant.

[147]Paragraph 35 of Kilraine - “35. …. In order for a statement or disclosure to be a qualifying disclosure according to this language, it has to have a sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection (1). ….”

[148]The Respondent asserts that disclosures 1, 2 and 3 are allegations without substance and so do not disclose information that has sufficient factual content and specificity such as is capable of tending to show that:a. a person has failed to comply with any legal obligation to which he is subject - where one of the legal obligations is to get informed consent and the other is to not undertake activities that cause avoidable harm;

b. that the health or safety of any individual (in this case the patients) has been, is being or is likely to be endangered.

[149]Alleged disclosure 1 does in my view appear to be more than just an allegation. It does link back to what was discussed at the meeting on the 7 September 2016 to put what is said in context and states “If we objectively analyse the situation we have here an uncontrolled experiment, done without prior knowledge or agreement of the consultant team and without informed consent of the patients, with practice that is not in keeping with the current national and international guidelines or recommendations from the manufacturer….”.

[150]It is in the context of the “uncontrolled experiment”, that is the BH of AVG grafts, that the Claimant says there has not been the informed consent of the patients, so in my view this is information tending to show that a legal obligation has failed to be complied with (i.e. the need to obtain informed consent from patients). It is also said to be counter to national and international guidelines and the recommendations from the manufacturer which in my view would be information tending to show the health or safety of the patients has been, is being or is likely to be endangered.

[151]This is clearly more than the Claimant just saying, for example, you are not complying with Health and Safety requirements. It is also of note that a lack of information is not something that is raised by Dr L in his response to the Claimant’s first alleged disclosure and that actions have been taken about the matters, as confirmed in his response to what the Claimant says. To say actions have been taken in response to what the Claimant says would require an understanding of what the Claimant was informing the Respondent about.

[152]Alleged disclosure 2 does also in my view appear to be more than just an allegation. It says “National guidelines and all international guidelines indicate that the technique is only appropriate to use in native fistulas due to risk of infection, pseudo-aneurysm formation and risk of exsanguination …. Manufacturers do not recommend its use …. Patients have not been given any information regarding the experimental nature of this practice, including quite substantial risks.”. The Claimant then goes on to describe what she says she understands has happened to the 14 patients.

[153]Alleged disclosure 3 does also in my view appear to be more than just an allegation. “…. all guidelines state that this technique is completely and totally inappropriate. JM expressed this view and detailed the risks it presented (risk of infection, pseudo-aneurysm formation and exsanguination). JM explained that when she raised this issue at a consultant meeting, it appeared no one was aware of this practice. Patients were also unaware meaning they had not given informed consent. This practice is so inappropriate that there is not a single publication in the worldwide literature supporting its use…... no informed consent of the patients that this is an experimental practice, no assessment of risk…….”

[154]The Respondent accepts that alleged disclosure 4 is a disclosure of information.

[155]As to alleged disclosures 5, 6, 7 and 9 they clearly contain more information than 1, 2, and 3 and are at a level of content like, or greater than, that in alleged disclosure 4 about informed consent and the health and safety of patients when considered against various guidelines. Further, the Respondent does not appear to assert in Appendix A that those alleged disclosures do not disclose any information. It is my view that those disclosures do have sufficient factual content and specificity such as is capable of being information tending to show the matters the Claimant relies upon from subsection 1 of section 43B, that is the legal obligation to obtain informed consent and health and safety endangerment.

[156]The alleged disclosure 10 contains similar information to alleged disclosures 1, 2 and 3 plus in addition also confirms that there has been a continuation of BH AVGs. With that additional information it is in my view also of sufficient factual content and specificity to be information tending to show the health or safety of the patients has been, is being or is likely to be endangered.

[157]As to the other legal obligation referred to by the Claimant in her witness statement (as to avoidable harm as detailed in paragraph 31 of her statement) information about that is not apparent from the words the Claimant has used in the information she discloses, which does seem to focus on the legal obligation to obtain informed consent and the health and safety concerns about the patients. Therefore, the disclosures do not appear to disclose information tending to show that the Respondent is in breach of the Health and Social Care (Safety and Quality) Act 2015 causing avoidable harm in breach of regulations as the Claimant has referred to in paragraph 31 of her statement. I have also noted that this legal obligation is not expressly referred to in the issues presented to me at the start of this hearing, or the Claimant’s oral evidence at this hearing. Further, her statement at paragraph 363 confirms her subjective position as being concerned about the health and safety of patients and the need for informed consent.

[158]Reasonable belief - Did the Claimant reasonably believe that the disclosures tended to show one or more of the categories listed in section 43B(1) of the Employment Rights Act 1996? Again, in reminding myself on what the Claimant says the information she disclosed tends to show, that the:a. Respondent had failed to comply with a legal obligation in relation to the obtaining of informed consent in relation to the use of Buttonholing technique on patients;

b. health or safety of patients had been, was being, or was likely to be endangered by the Buttonholing technique.

[159]I must be satisfied that the Claimant subjectively believed that informed consent was required but not obtained before undertaking BH on AVGs and/or that BH AVGs endangered patient safety but also that it was reasonable for her to hold those beliefs. It is not enough for the Claimant to rely on an assertion as to her subjective belief (as per Simpson – paragraph 69).

[160]Then considering Korashi – “Since the test is their “reasonable” belief, that belief must be subject to what a person in their position would reasonably believe to be wrong-doing.” The Claimant’s belief is therefore to be judged by looking at her as a consultant nephrologist.

[161]Then considering Darnton - did the Claimant know or believe that the factual basis was false?

[162]The Claimant accepts that she had not looked at all the patient records, but what she did do before her first alleged disclosure was see one of her patients and speak to another on the phone. She also spoke to colleagues after the meeting on the 7 September 2016. I have not been presented with any witness evidence from the patients or their medical records that record they gave informed consent before they started to BH with AVGs.

[163]Dr L does not challenge the Claimant’s statement that she makes about informed consent in his reply to her alleged first disclosure. Dr L says in his reply “Thank you for voicing your concerns which I believe have brought important rigour to this subject.”. It is also of note that the minutes recording the issue on the 7 September 2016 do not go on to note that the Claimant’s assertion as to informed consent must be unfounded because there is evidence of such informed consent. The Claimant’s position is also consistent with what she says to the sister nurse at Totton in her email dated 8 September 2016, that the patient needs to be aware of the risks.

[164]Considering what the Claimant has said under oath and the Respondent not disproving this, as stated in my findings of fact, I accept what she says about her belief about the lack of informed consent and as a consequence of my factual findings conclude that this belief is reasonable both subjectively and objectively.

[165]As to her concerns as to patient health and safety this appears to have been informed before her first alleged disclosure by her research of the guidelines. The Claimant by email dated 8 September 2016 (page 292) directs Mr Gibbs to “just Google it. RA guideline 6.1; EBPG 4.4; NKF/KDOQI available on website kidney.org.uk.”. In her statement the Claimant says (at paragraph 33) that guideline 6.1 says “we recommend that the rope-ladder and buttonhole techniques should be used for cannulation of AVF and ropeladder for AVG”. The Claimant says, “in other words the Buttonholing Technique is not recommended for use with AV Grafts.”. The Claimant also referred to the EBPG (European Best Practice Guideline 4.4) together with the resource on the website Kidney.org.uk. which states: “The Buttonhole technique can only be used by patients with an AV fistula, and cannot be used by those with an AV Graft”.

[166]It is after her first alleged disclosure that the Claimant sends an email to Dr F an expert involved in the guidelines on 10 September 2016 (page 295) about BH AVGs. His reply on 10 September 2016 (page 295) says “I would have to go back and check but we would never advise BH for grafts – only for AVF. The latest guideline is here [LINK] They tightened up the words from the 2011 guidance which was edited down – the text in 2011 said ‘It is therefore recommended that the buttonhole technique is the preferred method for fistula cannulation’….. So, no please don’t use BH for AVG.”.

[167]Mr Gibbs’ view in respect of these guidelines is that because the national guidelines do not prohibit the use of the buttonholing method, it can be used. As noted within my findings of fact the International society of Haemodialysis guidelines state that “The BH technique is not recommended for all patients and is contraindicated in patients with arteriovenous grafts (AVGs).” Mr Gibbs did accept during crossexamination that these guidelines do state BH is contraindicated in patients with AVGs. In my view having national guidelines that are silent on BH AVGs (so they have not expressly stated it can be used) and with other guidelines expressly confirming it is contraindicated, the belief of the Claimant that using BH in AVGs is counter to guidelines is reasonable both subjectively and objectively.

[168]In relation to the guidance from the Manufacturer. There is an email from the manufacturer of the grafts dated 6 January 2017 (so after disclosures 1 to 5) (at page 371) “…. The Buttonhole technique can only be used by patients with an AV fistula, and cannot be used by those with an AV Graft. Damage to the graft would be the result of attempting to buttonhole it. Infections and aneurysms are listed as a possible adverse reaction in our instructions for use, but I do not have data that shows the number of patients that developed infections or aneurysms.”. Although this email post-dates the Claimant’s first disclosure it does support her position.

[169]Mr Gibbs’ view about the manufactures position is that it would not approve its device for use outside of its licence and that it is common for the medical profession to use medical devices beyond that recommended by a manufacturer. He refers to the use of the Gore Viabahn Endoprothesis as an example, in that it “is a stent graft licensed for use in AVFs and AVGs to treat complex and persistent stenoses, but on its product website there is no information on its use to treat ruptured AVFs or AVGs, or its use to treat false aneurysms in the AV access circuit. However, this is the go to stent graft in many high volume access centres in the UK, including our own and beyond. A recognised off licence use. In summary, the Tribunal should not place too much significance on the fact that the manufacturer does not recommend buttonholing AV grafts as it will not have tested this technique on its grafts and will not have a suitable licence for that purpose”. In my view I do not think the manufacturers email can be dismissed in this way as it specifically states that the buttonholing technique would damage the graft. This is not being silent on the matter as is the case with the uses of the Gore Viabahn Endoprothesis.

[170]As to the belief of the Claimant in this information tending to show that patients had been, were being, or were likely to be endangered by the Buttonholing technique, this the Respondent says could not be objectively held because of the findings of the CQC in January 2017, which said that no safety concerns arise with the use of buttonholing, and based on the findings of the internal review on the 1 February 2017 and of the external review on the 28 July 2017.

[171]When considering the Claimant’s belief it can be seen from when the second alleged disclosure is read in the context of what was being communicated at the time (particularly the response from Dr L dated 9 September 2016 in response to the Claimant’s alleged first disclosure) that the Claimant does not accept the reassurances given by Dr L, maintaining that she is still concerned that patients are not adequately informed and BH AVG poses a risk to patient health and is contrary to guidelines. This is made clear by the way she opens her second alleged disclosure addressed to Dr L. So, do the findings of the CQC in January 2017, the internal review on the 1 February 2017 and the external review on the 28 July 2017 mean that the Claimant’s continued asserted beliefs are objectively unreasonable?

[172]As to the CQC review on the 16 January 2017 Dr L shares an extract of the outcome of the CQC final report with the consultants by email (page 375) which acknowledges that the CQC findings (that no safety concerns arise with the use of buttonholing) is based on the information the Respondent provided to the CQC. The Claimant by email in reply requests a copy of the Respondent’s “rebuttal letter” (page 375). This is refused by Dr L (email at page 374 dated 16 January 2017). The Claimant’s request for the “rebuttal letter” is based on her not accepting the basis of the CQC’s conclusion. As Dr L did not provide her with the “rebuttal letter” the Claimant has no evidential basis to suggest she cannot continue to reasonably believe her position.

[173]The conclusions of the Governance Review on the 1 Feb 2017 do not rule out the Claimant’s position and therefore suggest it is unreasonable. It reads “Conclusions … a. The investigation revealed no compelling evidence that BH is associated with additional harm (although, because of small sample and short duration of BH, neither did it rule this out as a possibility) [emphasis added].

[174]The external review process concludes on the 28 July 2017, after all the alleged disclosures have been made, save for disclosure number 9. The findings of that review are not universally accepted as can be seen by the email dated 3 October 2017 sent by four of the consultants (not including the Claimant) to the Medical director at the Respondent (pages 764 to 765). It notes having highlighted a number of issues with certain findings of the external review that “….Having highlighted these issues we are sure you will understand why we are uncomfortable from a professional point of view with accepting the entire content of the report.”.

[175]Despite the apparent difficult working relationship between the Claimant and Mr Gibbs it is not suggested when the Claimant’s alleged disclosures are responded to at the time they are made, that she is only saying what she is saying because of her dislike for Mr Gibbs.

[176]Dr L acknowledges the Claimant’s first alleged disclosure by saying “Thank you for voicing your concerns which I believe have brought important rigour to this subject. You have now discharged your professional duty and I hope my response reassures you (as it has our other consultant colleagues with the sole exception of MDU) that sufficient action has been taken to minimise the risk to patients and the renal unit whilst not stifling innovation”.

[177]As already referred to in relation to the findings on informed consent the Respondent does not challenge the Claimant’s statement about informed consent at the time by recording it is unfounded, either in the responses of Dr L to her disclosures, or in the minutes recording the issue on the 7 September 2016. The consistency in what the Claimant says about BH AVGs and the reasons for that do appear to transcend what she may personally feel about Mr Gibbs as she confirmed in her responses to crossexamination about this matter.

[178]Considering paragraph 55 of Simpson – “The views of others in the organization are not irrelevant for the purposes of determining whether the Claimant's belief is reasonable. If the evidence suggests that others with equivalent or greater knowledge and expertise of the industry would not regard the information as tending to show a breach, then that would be relevant in determining whether the Claimant's belief was reasonable.”

[179]Clearly the position of the Claimant and Mr Gibbs as to the risks of using BH in AVGs, is different. But, there is not a unanimous view one way or the other within the Respondent and it certainly cannot be said that the other consultants are unanimously behind Mr Gibbs.

[180]As found as fact the Claimant’s views are consistent with a number of her consultant colleagues (please see paragraphs 78 (about the internal review), 107 (generally), and 111 (about the external review) above). The position is also not definitively agreed within the Respondent until the position statement is signed on 18 October 2017.

[181]The Claimant has highlighted that not all of her consultant colleagues felt the governance meeting on the 1 February 2017 was a fair review process of BH AVGs, as she says at paragraph 84 of her statement one colleague described the governance meeting as a “whitewash” and this can be seen at page 1327 as comments made by Dr G and another that the results were watered down and this is noted as comments by Dr U at page 1299.

[182]Mr Gibbs himself acknowledges in his email dated 11 February 2017 (at page 435) where he responds to Dr U on the two issues he raised about the internal review:

[183]“Having met up with a clinical trials expert on Tue, as promised from the Sept meeting, we are unable to draw any conclusions from the existing data as it is too “messy” …..”

[184]“With regard to point 3…. I am obviously going to disagree on this point. I believe that we have stopped recruiting because of safety concerns not safety grounds - a subtle but important difference in my opinion) that are as yet unproven, and likely to remain that way for some time, if ever resolved to everyone’s satisfaction… “

[185]It recognises that his own data is “messy” and that patient “safety” is at the heart of why the BH of AVGs has been stopped, which does objectively justify the Claimant’s position.

[186]There is then a further consultants meeting on 22 March 2017 (page 476 to 477) and it is noted from that (page 477) “…. A further discussion relating to buttonholing PTFE graft, seeking assurance that all patients that continue to BH must told it’s against guidelines and holds safety concerns. [the Claimant] stated the patient should be told it is contraindicated and that we have observed 3/15 pseudo-aneurysms, 2/15 grafts removed and 15 times increased rate of infection, [the Claimant] feels that all complications that have arisen since September could have been prevented if her patient safety concerns had been addressed. [The Claimant] felt our results were insulting to both professional competence and practice. It was brought up that all cases were individually reviewed, that the CQC had been satisfied, NHS England were now involved. All remaining patients will receive a letter from [Mr Gibbs] and all have and will continue to be spoken to by their nephrologist. No definitive resolution beyond this was reached.” [emphasis added].

[187]If the Claimant’s beliefs were unreasonable and therefore her position on this matter unreasonable then it would be logical to think that a definitive resolution would have been reached in favour of BH AVGs at this consultants’ meeting.

[188]There are also external colleagues and bodies that agree with the Claimant, such as:a. An expert involved in the guidelines (as per paragraph 57 above);

b. A Renal Vascular Access Nurse at Royal Berkshire NHS Foundation Trust (as per paragraph 59 above);

c. An associate Professor at the Department of Microbiology and Immunology in Belgium (as per paragraph 86 above);

d. A specialist nephrologist from Saint-Luc UCL in Brussels (as per paragraph 87 above);

e. A doctor at the UCL Centre for Nephrology at the Royal Free Hospital (as per paragraph 90 above).

[189]There is also Professor M’s email, albeit after all the alleged disclosures had been made, but she also agrees with the Claimant’s position.

[190]Of significance are the findings of the GMC about the Claimant’s alleged disclosures. Both GMC outcome reports make the same comments about the Claimant (see pages 1569 and 1594):

[191]“We are of course mindful of the findings of the independent whistleblowers review the GMC commissioned from Sir Anthony Hooper. Having considered the correspondence disclosed to the GMC by the trust: and by Dr Macanovic, it appears Dr Macanovic first raised her concerns locally and that it was only after she concluded, in her view, that her concerns were not being adequately addressed locally that she made her complaint to the GMC. In doing so Dr Macanovic was no doubt aware, amongst other things, of the guidance at paragraph 25 of the good medical practice that doctors ‘must take prompt action if you think that patient safety, dignity or comfort is or may be seriously compromised’.

[192]In the event Dr Macanovic generally considered there was a risk to patient safety, and it appears to us that she did consider such a risk existed, but she had not raised her concerns through whatever mechanism was available to her locally and/or if she deemed it necessary to GMC, she would in our view have been rightly criticised by the public and by the GMC for failing to do so.”.[Emphasis added]

[193]The GMC outcome also notes (at page 1571) “… it appears in light of these results that the contention that there have been ‘no infections is no longer sustainable. There have now been several infections, one of which was unequivocally identified as having been a buttonhole infection….” [Emphasis added]

[194]The GMC outcome further notes (at page 1574) “…. The buttonholing technique was not consistent with professional guidelines and some of the patients developed complications. However the evidence indicates the Dr [L] took safety concerns into account, and there is no evidence in our view of any actions or omissions in this regard that would be considered to be serious enough to warrant action on his registration. The realistic prospect test is not satisfied.” [Emphasis added]

[195]This all supports the position that both subjectively and objectively the belief of the Claimant that she had disclosed information in alleged disclosures 1 to 5 and 10 that was tending to show the Respondent had failed to comply with a legal obligation in relation to the obtaining of informed consent in relation to the use of Buttonholing technique on patients and the health or safety of patients had been, was being, or was likely to be endangered by the Buttonholing technique was reasonable.

[196]Further, it also shows that what she informs the GMC and CQC (in alleged disclosures 6 and 7) about, she reasonably believed the information to be substantially true. The GMC in its investigation into the matter notes it appeared to them that the Claimant did consider there to be a risk to patient safety and she would have been criticised for not raising it. This does not support the Respondent’s position that the Claimant could not reasonably believe matters.

[197]The ninth alleged disclosure is after the Respondent’s position statement had been agreed and signed by the consultants (including the Claimant) on the 18 October 2017. Objectively therefore the Respondent’s practice regarding BH AVGs moving forward had been settled. This alleged disclosure is a repeat of the alleged disclosure 5 in that a copy of the letter that had been sent to SH is sent to the Corporate HR Manager by email dated 3 November 2017 (page 784) as an “FYI”. It does appear that the purpose of the communication is not to disclose information about the issues the Claimant was originally concerned about (as the position statement on BH AVGs was agreed in October 2017), but to relay that she had (in her view) made disclosures. At paragraph 350 of her witness statement the Claimant states about this alleged disclosure “I sent a copy of my previous disclosure made on the 17 October 2016 to [SH]”. The Claimant does not herself refer to it as a protected disclosure at that point, so does not appear to hold a reasonable belief that this is a disclosure tending to show one of the matters listed in subsection (1) of 43B.

[198]Reasonable belief in public interest - Did the Claimant reasonably believe that the disclosure was in the public interest?

[199]Chesterton – “The tribunal thus has to ask(a) whether the worker believed, at the time that he was making it, that the disclosure was in the public interest and

(b) whether, if so, that belief was reasonable.”

[200]The Claimant’s subjective belief as to why she says it was in the public interest is articulated in paragraph 364 of her statement “……I was not acting on my own motives, I was acting in the interests of patients at the Respondent who I felt were being subjected to an extremely risky technique without giving their informed consent (as I have described above). I always felt and still feel, that it was in the public interest to be aware of the fact that the Respondent was acting in a way that it was. The Buttonholing Technique affected existing patients at the Respondent (at the time) and any person in the region who might come under the care of the Department in the future.”.

[201]The findings as to why the Claimant could maintain her belief in the disclosures as detailed above are also relevant here, but of significance as to whether that belief was in the public interest was reasonable is that it was not until the 18 October 2017 that a position statement was agreed about BH AVGs at the Respondent, this was after all the disclosures the Claimant alleges, save for disclosure 9. Until that position statement is in place it does seem reasonable for the Claimant to hold her belief that it is in the public interest for patients to be aware of the risks the Claimant believed BH AVGs posed and that the process needed informed consent. Further, there is nothing to suggest in the findings of the GMC that it would not be in the public interest as noted in its report if “…. she had not raised her concerns through whatever mechanism was available to her locally and/or if she deemed it necessary to GMC, she would in our view have been rightly criticised by the public and by the GMC for failing to do so” [emphasis added].

[202]Therefore, her subjective belief it was in the public interest does appear to be objectively reasonable.

[203]For these reasons I find that disclosures 1 to 5 and 10 are protected disclosures that qualify for protection pursuant to sections 43B and 43C and that disclosures 6 and 7 are protected disclosures that qualify for protection pursuant to sections 43B and 43F. I do not find that disclosure 9 is a protected disclosure.

[204]The amendment application - Dealing then with the amendment application. It was agreed by the Respondent during this hearing that disclosure 10 could be included as an alleged disclosure. The Respondent maintained its objection to the amendment to include disclosure 11 saying that it was more prejudicial to it to allow it in, as the application was late and the basis of asserting the alleged disclosure was a qualifying protected disclosure was unclear, so it could not properly challenge the position as to its status at this hearing and was therefore prejudiced.

[205]It is unclear on what basis disclosure 11 is asserted by the Claimant to be a qualifying protected disclosure. It is a letter to the Respondent’s solicitors from the Claimant’s then solicitors and is not evidentially described as a protected disclosure by the Claimant. The amendment does not appear to be introducing a new head of claim. The amended grounds of claim that were presented to me at this hearing record the amendment as being to refer to disclosures 10 and 11 as qualifying protected disclosures. On this basis the amendment sought would not appear to raise a time limit issue.

[206]However, as part of balancing exercise of all the relevant factors, having regard to the interests of justice and to the relative hardship that would be caused to the parties by granting or refusing the amendment, I need to consider why the application was not made earlier and why it is now being made. The reason for this, as presented by the Claimant, is that as the Respondent had continued to object to the amendment to include disclosure 10 before this hearing, it was decided to argue that disclosure 11 should be included by amendment. It is clear that alleged disclosure 11 would have been known of when the application to include disclosure 10 was made (so in February 2019). So, now making a late application without clarity as to why evidentially it is asserted as being a qualifying protected disclosure does in my view cause more hardship for the Respondent at this hearing than it does to the Claimant by not allowing it, and therefore it is not in the interest of justice to allow the amendment.

[207]For the purposes of Rule 62(5) of the Employment Tribunals Rules of Procedure 2013, the issues which the tribunal determined are at paragraphs 1 and 3; the findings of fact made in relation to those issues are at paragraphs 9 to 116; a concise identification of the relevant law is at paragraphs 117 to 137; how that law has been applied to those findings in order to decide the issues is at paragraphs 138 to 206.

The Law

[1]The claimant was unfairly dismissed for making a protected disclosure.

[2]The claimant was subject to detriments for making a protected disclosure.

[3]Arrangements for a remedy hearing shall be notified to the parties shortly. Page 1 of 43

Introduction

[1]Dr Macanovic worked for the Trust as a consultant nephrologist, or kidney specialist. In September 2016 a dispute arose over the use of a new technique known as buttonholing. It divided opinion among the consultants at the Wessex Kidney Centre. She was strongly opposed, and made a series of complaints about it. When that failed, she reported it to the CQC, but they were happy for it continue. The Trust also commissioned its own review, to the same effect. So, in May 2017 she reported her colleagues to the GMC.

[2]Meanwhile, the Trust began its own investigation into her behaviour. They felt that she had become unmanageable. Whether as a result of her complaints (as Dr Macanovic contends) or the way in which they were fought out (as the Trust contends) relations at work were poisoned. Some of her colleagues said they could not work with her any more. A disciplinary investigation began, which led to a hearing on 28 February 2018, and her dismissal a few days later.

[3]The complaints presented are therefore:a. unfair dismissal under section 98 Employment Rights Act 1996, alternatively under section 103A Employment Rights Act 1996 for making protected disclosures; and

b. detriments at work, under section 47B Employment Rights Act, for making protected disclosures.

[4]She first made her claim to this tribunal on 16 January 2018, while she was still employed. Later it was amended to include her dismissal. A preliminary hearing took place on 13 to 15 January 2020 when Employment Judge Gray held, with the exception of one complaint which was duplicated, that nine separate protected disclosures had been made. Hence, we are no longer concerned with whether the complaints were made, or whether Dr Macanovic reasonably believed that they placed the health and safety of patients at risk, or whether the disclosures were in the public interest. Those points have been decided in her favour. The focus of this hearing is on why Dr Macanovic was dismissed and why earlier measures were taken against her, such as excluding her from consultants meetings.

[5]In this judgment we will refer to the various disclosures and detriments as we relate the events in question. Some of the alleged detriments have been withdrawn. A full list of disclosures and alleged detriments is set out in the Agreed Revised List of Issues, at page 115M-3 to 115M-7 of the bundle and there is now a separate table of detriments. In most cases the Trust accepts that the event in question occurred and that it amounted to a detriment but we will address the disputed ones as they arise. The judgment of Employment Judge Gray also details each of them. Page 2 of 43

[6]The buttonholing technique itself was also explained by Employment

Judge Gray as follows:

[16]Patients usually undertake the dialysis process using two sharp needles which will be inserted into the fistula or graft at different places. This technique is known as “rope laddering”.

[17]There is also an alternative process known as buttonholing (“BH”). As the Claimant explains, buttonholing is where patients cannulate (insert needles) using blunt needles. The blunt needles are placed in exactly the same holes in the fistula every time that the patient has to have dialysis. A track or tunnel is created through the skin to the fistula. Over time this may be less painful than using sharp needles because a patient is not making new holes on regular occasions. The buttonholing technique can be less painful and more convenient for patients. 7. It is agreed that buttonholing is a valid technique for patients with an AV Fistula, where the connection between vein and artery is constructed of tissue and can heal. The dispute is over those with an AV Graft, since the PTFE material can tear or degrade. That can cause leaks and an increased risk of infection. Patients need to be made aware of these risks to give informed consent. The probuttonholing school of thought is that using one blunt needle is better than repeated sharp needle entries, since over time these can damage the tissue and make it more difficult to find an entry site. Also, some patients prefer it to having a fresh jab each time. 8. It is not our task to decide on the merits of this dispute. The approach ultimately taken, and recorded in an agreed statement by all the consultants (p.776), was that it should not be actively encouraged and that safeguards would be applied for those patients who insisted on continuing with it. Procedure and evidence 9. The hearing was originally listed for 12 days, but was compressed to eight days due to lack of a tribunal for the full period. Deliberations were therefore adjourned and occupied three further days. We were provided with a bundle of 2,172 pages and heard evidence from Dr Macanovic and ten witnesses on behalf of the Trust:a. Mr Mark Cubbon, former Chief Executive Officer; Page 3 of 43

b. Professor Theresa Murphy, former Chief Nurse, who heard the disciplinary hearing;

c. Dr John Knighton, Medical Director, who oversaw the disciplinary process;

d. Dr Matthew Wood, a Consultant Anaesthetist, who carried out the disciplinary investigation;

e. Dr Robert Lewis, head of the Renal Unit;

f. Mr Paul Gibbs, Consultant Renal Transplant Surgeon;

g. Dr Nicholas Sangala, Consultant Nephrologist

h. Dr Jacqueline Nevols, Consultant Nephrologist;

i. Mr Keith Graetz, Consultant Renal Transplant Surgeon; and

j. Ms Susie Lowe, Corporate HR Manager. Overview 10. The reasons given by the Trust for dismissing Dr Macanovic were set out in their letter of 5 March 2018 (p.1814). One of them was, expressly, that she had reported colleagues to the GMC. That is the main protected disclosure. The other behaviours are all linked to the buttonholing dispute. In those circumstances, the plain and obvious conclusion seems to us that she was indeed dismissed for making these disclosures. 11. One of the themes of this case is the extreme anxiety and emotion caused by any referral to the GMC. When the unit head, Dr Robert Lewis, told the other consultants that he would have to attend a Fitness to Practice hearing, one of them emailed to say: I am completely shocked, enraged and deeply saddened to read this email. I cannot believe that one of our colleagues would sink so low but it only goes to prove what a dysfunctional and destructive individual [Dr Macanovic] is with no thought whatsoever to the impact that her actions are having, not only on individuals but also on the whole department. … I am sure the GMC will see this for what it is - a vindictive and purposeful attack on an individual colleague for no reason other than her own self satisfaction.” 12. Dr Lewis himself, in his evidence to us, described her referral as frankly defamatory. Several witnesses were in tears describing these events, years later. A day-long mediation failed to resolve things, with (we find) great pressure applied to Dr Macanovic to withdraw this GMC referral. The Medical Director was summoned urgently to attend the meeting as it drew to a close. He told us that it was a scene Page 4 of 43 of total disarray. He had never seen a group of professionals so distressed. All, as far as he could see, were in tears or had been, including the external mediator. The whole process was unique in his experience. 13. But the fact that strong feelings were aroused, as they undoubtedly were, only strengthens the connection between the disclosure and the dismissal. People are less likely to be dismissed for pointing out a trifling problem, or when they cause no inconvenience to others. 14. The main plank of the respondent’s case is that Dr Macanovic was not dismissed for making these disclosures but for the manner in which she did so. But that distinction was not apparent in the dismissal letter, nor to any great extent during the disciplinary proceedings, and does not seem to us to be justified in hindsight. The plain fact is that after over twenty years of excellent service in the NHS, Dr Macanovic was dismissed from her post shortly after raising a series of protected disclosures about this one issue. It is no answer to a claim of whistleblowing to say that feelings ran so high that working relationships broke down completely, and so the whistleblower had to be dismissed. The position is sufficient clear that we thought it best, unusually, to set out these views in summary form at the outset. Our detailed findings of fact and conclusions are set out below. As ever, not all points raised in evidence are dealt with, only those necessary for our conclusions. Findings of Fact Background 15. Dr Macanovic joined the Trust in 2001 and was made consultant in 2005. Originally from the former Yugoslavia, English is her third language. Even those she fell out with, and there were a number, agree that she is extremely gifted. In Dr Lewis’s witness statement he mentions that they had a disagreement shortly after she was made consultant and she barely spoke to him for several years. Equally however, until the buttonholing controversy arose, no formal concern was raised about her conduct or about her interactions with colleagues. As with all consultants, she had to have regular 360° appraisals and these were all positive, with a good deal of praise. The view we formed was of a highly principled, dedicated, extremely forthright individual, an acknowledged expert even among her fellow consultants, proud of her standing and reputation, often impatient with or dismissive of other points of view, and not given to compromise. 16. Dr Lewis, as head of the renal unit – the Chief of Service – was her line manager. This was a role he held from 2001 to 2008, then again from 2016 when the unit was going through a difficult period. He took up the reins again to try to restore the reputation of the Wessex Kidney Centre and rebuild some harmony among the consultants. The unit had grown in recent years from six consultants to about 20. As well as nephrologists like Dr Macanovic, it included consultant surgeons who were involved in installing the grafts and fistulae – vascular access procedures - as Page 5 of 43 well as carrying out transplants. Consultants meetings were held every week or two. Mr Lewis had responsibility for the whole unit, not just the consultants; they were led by a Clinical Director, and for most of the period in question this was Mr Paul Gibbs. Complaint against Nursing Sister 17. In 2015 Dr Macanovic made a complaint against a nursing sister. She accused the sister of bullying and making untrue statements. This led to an investigation by the previous Clinical Director (not Mr Gibbs). Performance management steps were then put in place for the sister, an outcome which Dr Macanovic thought entirely inadequate. In fact, she felt that the Clinical Director had protected the sister and raised a further complaint about his behaviour. In the course of that grievance she questioned his probity and described his behaviour as “entirely dishonest, deliberate and unprofessional” (p.277). All that sounds very contentious, but in fact she seems to have enjoyed the support of Dr Lewis on this issue. His views appear in a conciliatory email (p.276) sent on 4 July 2016, in which he said that the sister had lost the trust of the entire consultant body. As to the Clinical Director, who had by then agreed to stand down, Dr Lewis felt that for the greater good of the unit he should not be punished any further.

Background

[18]The episode is relied on by the Trust as an example of the sort of difficult behaviour for which Dr Macanovic was dismissed, although in fact her concerns appear to have been valid, or at least to have had some real foundation. It also shows that she was no respecter of authority. She attached a high priority to honesty and integrity and where she felt this was lacking she was unafraid to say so, if necessarily loudly and publicly. Nor was she prepared to be fobbed off. Mr Lewis, on the other hand, while no less honest, was principally concerned with the reputation of the renal unit, and harmonious relations among the staff. He explained to us that the unit had gone through a difficult period and he “did not want it to spill out into the outside world.” So, while Dr Macanovic was perfectly prepared to rock the boat, Dr Lewis was at the helm, trying above all to keep it steady. Resignation from the Renal Transplant Team

[19]Dr Macanovic, together with Mr Gibbs, and another surgeon colleague, Mr Graetz, was a member of a regional group, the Renal Transplant Team. She resigned in early July 2016 when she discovered that two “red incidents” – i.e. serious clinical failings - had occurred and had not been reported by either surgeon. She also felt that Mr Gibbs had misled the Trust’s Medical Director over this issue. She did not however simply resign privately. She gave her reasons very publicly in a meeting. These were allegations of the most serious kind. They clearly had a major effect on her working relationship with Mr Graetz and Mr Gibbs. Both were angry and upset with her. Nevertheless, on 31 July (p.286) she raised a formal complaint about them both to Ms Susie Lowe, the head of Employee Relations team at the Trust, to ensure that her concerns were acted on. Mr Gibbs approached Mr Lewis about a right of reply, and that led to a further internal investigation, this time carried out by a Mr Simon Hunter. Page 6 of 43 The Hunter Report

[20]This was a substantial exercise, enquiring into the treatment of the two patients in question. It was carried out under the Trust’s whistleblowing policy. When Dr Macanovic was interviewed she was asked about any other clinical concerns she had, and took the opportunity to raise the issue of buttonholing (Disclosure 3). Although she regarded herself as a mere witness, Mr Hunter compiled a list of the 23 points raised by her in that interview before making findings on each one.

[21]Buttonholing had been going on in the unit since 2014 although most of the consultants were unaware of it. It seems to have been pioneered by the vascular access nurses and surgeons in Portsmouth. Mr Gibbs was the President of the Vascular Access Society of Britain & Ireland (VASBI). They hold an annual conference each September, and in 2015 one of the Portsmouth vascular access nurse specialists, SK, gave a presentation on it. The following year she planned to give a follow-up report. Dr Sangala was keen on this new approach and suggested she present her findings at a consultants meeting on 30 August 2016, which she did.

[22]Dr Macanovic had immediate concerns. Dr Sangala spoke to her afterwards and she was quite abrupt with him, telling him that it was dangerous and against national guidance. At the next meeting on 7 September she repeated this and complained that it was being introduced without the knowledge of the consultants or the informed consent of the patients. Some of her colleagues, such as Dr Uniacke, said that they would not support it. Others said that they would advise their patients to change back to the established technique. Dr Lewis was neutral on the issue, at least at that stage; his priority was to achieve a consensus if possible. Even those who supported it, principally Dr Sangala, Mr Gibbs and Mr Graetz, accepted that there was a lack of evidence about its effects but were keen to innovate. Dr Sangala noted that it was also being done in Reading. In the end they agreed (p.295) that patients would be warned about the risks and asked if they wanted to continue. They could carry on if their consultant agreed. Finally, a research study would be carried out.

[23]Dr Macanovic was not content with that and put her concerns in writing to Dr Lewis (Disclosure 1). One patient, she alleged, had died as a result of buttonholing and this had been misreported at the VASBI conference. However, if her patients felt strongly enough about it she would arrange a smooth handover to Dr Sangala. And if a robust study was carried out, she would be happy for her patients to be approached.

[24]She later sent the team the national guidelines about buttonholing. This led to further exchanges, and she emailed again on 17 September (Disclosure 2) with the results of her own research, stating that the practice was considered inappropriate by the vast majority of experts in the field and that no other renal unit in the country was doing it for AV grafts. In fact, they had been misled by Dr Sangala - she had Page 7 of 43 heard back from Reading and they were not doing it for AG grafts. Worse still, she said, patients had been told that the outcomes were excellent, whereas of the 14 patients using it, two had died, two had developed serious complications, and she had not had time to review the other ten.

[25]In our view Dr Macanovic is correct that this was not being done at Reading. She emailed a colleague there about it and he passed it to a vascular access nurse who confirmed that they did not. Dr Macanovic then forwarded this to Dr Sangala to make the point. We also have some minutes of a clinical governance meeting at Reading (pp.350A and 350B) which show that the impetus for buttonholing came from Portsmouth. According to these notes, Reading used it on two patients as a research project after seeing the Portsmouth presentation at the 2015 VASBI conference; however, Renal Association Guidelines did not recommend it and so they stopped.

[26]Dr Sangala’s evidence was that he knew the vascular access nurse at Reading and knew she going to say this, but they were still doing buttonholing at Reading, they were just denying it to “avoid it [the controversy] spilling out to Reading”. It seems to us unlikely that one hospital would mislead another in this way, and the position is confirmed by these internal minutes. If Dr Sangala knew otherwise at the time, he did not say so.

[27]Disclosure 4 came on 3 October 2016 in another email to Dr Lewis (p.97). Dr Macanovic attached the powerpoint presentation given to VASBI in 2016. She felt that it was unduly positive and failed to recognise a number of complications. The death of the patient had not been attributed to buttonholing, but there had been no post-mortem. She also felt that there were multiple inconsistencies in the data. However, she ended by stating that she had fulfilled her professional obligations and would let the matter drop, although that did not prove to be the case.

[28]Disclosure 5, the last one in 2016, was an email to Dr Hunter on 17 October. This was a restatement of her concerns about the outcomes for patients and the misrepresentation of data. The initial CQC investigation

[29]By then, someone had raised this with the CQC. Dr Macanovic was asked during the subsequent disciplinary investigation if it was her and she would neither confirm nor deny it. It is not one of the protected disclosures so we do not need to resolve the point, and it was not put to her at this hearing. The CQC wrote to the Trust for more information and the Trust wrote back on 16 October. That letter was drafted by Mr Gibbs, with some input from Dr Lewis. By way of overview it stated: “The presentation given at VASBI this year clearly states that there were two patient deaths and that a graft was removed due to infection. These details were in no way concealed.” Page 8 of 43

[30]It went on to explain Mr Gibbs’ view that these deaths and infection were not due to buttonholing. On the issue of informed consent it stated: Recently, concerns have been raised about the safety of button-holing by a member of staff within renal services. Accordingly, the renal team have met with all the patients currently using the button-hole needling technique, numbering 11. They have reiterated that the technique is outside current guidelines, have explained the theoretical increased risks of the technique and have updated them on the experience to date. The patients have signed letters to confirm their ongoing agreement and desire to continue with the button-hole technique.”

[31]Presented with this response the CQC did not carry out any further enquiry, and wrote back on 22 December 2016 (p.368) to say that they were satisfied that there were no safety concerns and that appropriate governance had been followed. Dr Lewis reported this to the consultants by email on 16 January 2017 (p.375) – addressing it to “Dear Jasna and Colleagues”. But he did not attach the letter from the CQC, on the basis that this would then be “dissected or disputed”. In fact, any request to see it would, he said, be to question his probity and that of Mr Gibbs.

[32]This refusal seems to us misjudged. Opinion among consultants was divided on buttonholing, if not openly sceptical. It was being championed by Mr Gibbs, and he prepared this response to the CQC which the others were not allowed to see. Dr Macanovic was not to be deflected and asked to see a copy. Dr Lewis responded by cutting and pasting the short summary paragraph from the CQC letter saying that they were satisfied that there were no safety concerns or governance issues. This did not allay her concerns either. The Hunter Report

[33]The Hunter report followed, after several months in the pipeline. On the buttonholing issue Mr Hunter found (p.239): Given my limited expertise within this area and given that the response provided by the Trust addressing the anonymous has been accepted by the CQC, there is a careful monitoring process in place and all significant events which were known when the investigation commenced have been investigated and this evidence provided to the CQC, I do not think any further interpretation by myself would help in this.

[34]Hence, the Hunter report rested on the CQC conclusions, which rested in turn on Mr Gibbs’ letter. The Trust suggest that the Hunter report found against Dr Macanovic on most issues, and that she unreasonably refused to accept its conclusions, but in fact many of the conclusions supported her views, or found that she was right to raise them, and it called for a more detailed internal review of buttonholing.

[35]Of the original allegations, there was no doubt that the red incidents had occurred and had not been reported at the time, but Mr Hunter concluded that this was the Page 9 of 43 result of failures in training, procedure and governance, rather than by individuals. Dr Macanovic, was unhappy with the guarded terms of the report while Mr Gibbs was understandably relieved and felt vindicated. Exchange with Mr Graetz – 18 January

[36]No doubt Mr Graetz felt similar emotions. Two days later Dr Macanovic was on the receiving end of an outburst from him. She was in her office at about 08.00 am when he arrived at the door and started shouting at her. He said that he was going home because he was too stressed, and that she was to blame. This was accompanied by a good deal of swearing, repeatedly telling her to ‘f’ off. She was left shaking and at the point of tears, and was still shaking 30 minutes later when her colleague, Dr Synodinou, came in. (This outburst is the first detriment from a chronological point of view, although it is listed as Detriment 2 in the agreed table of detriments.)

[37]Dr Lewis then emailed Dr Macanovic (p.380) to tell her that Mr Graetz had gone off sick with stress. Far from sympathising with her, he went on: “However, it does bring to a head an issue which has been simmering for some time; namely your interaction with Paul and several other members of the consultant team. I think we should have a discussion about this — including some feedback from Simon Hunter's investigation. [emphasis added]

[38]This email confirms that the outcome of the Hunter investigation was known by then. It went on to ask her to meet him the next day. Consultants Meeting on 18 January

[39]Also that day there was another consultants meeting, which turned again to the issue of buttonholing. They had avoided this topic for the last few meetings, perhaps pending the outcome Hunter report or CQC verdict, but those in favour of buttonholing were now in the ascendant. Dr Sangala had been collating his own data on patients and presented his findings. Dr Macanovic did not accept the data and said they been lied to by Dr Sangala; she then apologised, and said they had been misled. In response he complained to the others about the intimidation he was receiving.

[40]The meeting clearly became heated. In the subsequent disciplinary investigation, Dr Uniacke described them as “a pack of wolves”, with five consultants “going at her and she was trying to hold her ground so much that the rest of us were gob smacked at the atmosphere – it was just awful.” Afterwards Dr Macanovic was shaking and in tears. The next day Dr Macanovic went to see her GP and was signed off sick for two weeks. Nevertheless, she did secure an agreement that a letter would be sent to the patients explaining the ongoing safety concerns. The use of buttonholing would also stop until there had been an in-depth review of the data. This is very Page 10 of 43 similar to the terms of the previous agreement, so it seems that little had been done to allay her concerns. Email from Mr Gibbs

[41]On 19 January, having received the Hunter report, Mr Gibbs sent an email to all of the consultants except Dr Macanovic (p.386). This is Detriment 1. His email began: Over the last 8 months a single colleague of ours has discussed me with the GMC and reported me to the MD [Medical Director]. As a result, several areas of my practice have been independently investigated. I have been accused of gross clinic (sic) negligence, covering up an amber SUI, threatening and physically abusive behaviour, repeatedly called a liar in one form or another, accused of being responsible for the departures of [three members of staff], deceiving the whole of the National renal community, ethical misconduct, misappropriation of funds, attempting to negatively influence the appointment of a medical colleague, covering up mistakes by both my partner and a colleague to prevent them being investigated and causing harm and putting patients lives at risk by initiating PTFE buttonholing. My leadership style has been repeatedly questioned as well. I was even accused of throwing a set of notes at a student nurse back in 2006. The button holing issues have also been anonymously reported to the CQC, which I have had to answer. This has all put a huge amount of pressure and stress on me both at work and at home. This has been while doing a full time vascular and renal transplant job. I have recently been cleared of any wrong doing on all counts. This now allows me to bring it to your attention.

[42]He went on to describe how other colleagues had told him that they felt intimidated for agreeing to this method of needling; he took issue with the proposed reexamination of data for patients, and ended with an emotional appeal, essentially to take sides with him against Dr Macanovic: As someone who has worked tirelessly for the last 12 years in this unit and has given virtually everything I have to offer, this makes me feel so sad; that it has all been for nothing. If you question my integrity over one aspect of my work you question it over every aspect. You either trust me and think I have I professional integrity or you don’t. You cannot pick and chose. (sic) The buttonhole issue follows on the back of a huge number of other unsubstantiated accusations. If you really believe the questions raised about this innovation are related to governance or concern for patient welfare, rather than a (sic) opportunistic attempt to discredit me, I believe you are being naive. I now have 10 days off to think about my future in the unit. I suggest you all do the same and take this opportunity to speak out. I fear it may be our last chance. Page 11 of 43

[43]This email caused gave rise to a flurry of emotive and supportive emails, particularly from Dr Nevols to Dr Macanovic, ending: “Innovation is what patients need. And want. This was all done with patients’ best interests at heart. No malice, lies or negligence occurred. Why you and Paul have such a deep seated personality clash, I don’t want to know. But it has to stop now. Before this unit rips apart.”

[44]She followed this with a text to Dr Macanovic the next day, 21 January: “You really have done the best you can. Thank you for your reply. I will talk to Paul. I completely agree with your thoughts on BH, I really do. But I can’t stand the animosity that it generates anymore. …”

[45]Dr Macanovic replied on 23 January, (p.402) stating: I find Paul very easy to get on with, respect his surgical skills and appreciate his hard work. However, on the BH issue I wish he had some friends to offer him advice. The BH business is absolutely and totally not a private issue. It has never been. I feel so cross even that I had to spend some time looking things up. Paul should have listened to what I had to say on 7 September. The project is a lunacy and will end up in tears for all involved. I am trying to get some sense so we do not end up as headline news. I have researched the topic and sought opinions; I have reviewed our data. The data is shocking. If this gets out, all of us, doctors, nurses, interventional radiologist, vascular lab techs will be gone ...”

[46]She then went into considerable detail about the serious complications patients had, in her view experienced, with excessive bleeding, clotting and one unexpected death, ending with her own exhortation to give this issue the seriousness it deserved.

[47]In fact, she had by then written to the CQC (p.393) to ask how they had reached their conclusion: “…I find it almost unbelievable that CQC National specialist advisor would give a green light to the technique in direct contradiction to the National and international guidelines and advise that I personally obtained from the most recent National Director for Renal Care Dr Fluck who co-authored the national guidelines in 2011 ( e mail attached). This experiment was not done as a proper study, not even a pilot project and no discussion within the unit took place. So I am astonished that there is a reference to ‘appropriate governance processes being followed’ in the extract from your report.”

[48]She followed this, on 22 January, with an email to Dr Lewis and a Mr Duffield, Renal General Manager, attaching her medical certificate which signed her work off until 2 February. She added that her absence had been caused by “unprecedented bullying and harassment by Dr Lewis and (sic) campaign he orchestrated and directly related to my opposition to the unsafe practice in the unit …” Page 12 of 43

[49]During her absence the consultants met again on 25 January and 1 February to discuss the risks around buttonholing. At the second meeting they went over Dr Sangala’s data, reviewing each patient in turn, with the treating consultant describing the case in detail. The consensus was, in the words of Dr Sangala’s witness statement, that no serious harm was being done to patients. It was, however, agreed that further steps were needed to address the risks. The existing letter for patients to be revised. Consultants were under no obligation to carry out buttonholing. They also planned to carry out a rigorous clinical trial and to publish their findings in a peer-reviewed journal. This confirms that Dr Macanovic was not alone in her concerns. Indeed the majority were at least sceptical about it.

[50]Dr Macanovic was back for the next consultants meeting on 22 February. This time the discussion was largely about the terms of the warning letter for patients. A text was agreed and Mr Gibbs then circulated it (p.447A), describing it as a productive discussion and expressing the hope that they could all now move on.

[51]Over the next two weeks Dr Lewis investigated the shouting incident. He concluded (p.461A) that: Your accusation about Mr Graetz is troubling on two counts. Firstly, you were clearly a source of great stress to him at the time and yet you categorically and vehemently state that you were not. You have not sought to find out why Mr Graetz felt as he did and have not considered the possibility that you might be at fault. Instead you state that the fault is entirely Mr Graetz’s because he does not cope well with stress (rather unfair since you took a much longer period of stress-related leave over the same issue than he did). Secondly, and more importantly, you are clearly unable to distinguish between abuse and someone challenging you with an opinion which you find uncomfortable.

[52]The last sentence has a certain irony given the way in which the Trust have put their case. The fact is that it was abuse, not Mr Graetz challenging her with an opinion. He accepted to us that his behaviour had been inexcusable and he apologised to her a few days later. He also accepted that he had not had any particular contact with Dr Macanovic for several months before this incident, so her only ‘fault’, in our view, was to raise allegations about him in the course of the Hunter investigation.

[53]That day a letter was received from Dr Macanovic’s solicitors, DMH Stallard (p.462). This is Disclosure 10. It was sent to the Trust’s Chairman and Chief Executive and raised a formal complaint under the whistleblowing policy about buttonholing. It ended: This letter is therefore to inform you that unless my client receives confirmation by 12 noon on 21 March 2017 that:(a) the practice is to be stopped Page 13 of 43

(b) patients involved are given full written information about the nature of the practice and serious complications observed to date as outlined in the e mail to the medical director

(c) appropriate disciplinary action and referral to the professional regulator is made concerning medical practitioners involved and responsible for the practice my client will comply with her professional obligations and in accordance with the Policy, report her concerns to the GMC. Consultants Meeting 15 March 2017

[54]This was a surprising escalation. There was then a further consultants meetings on 15 March (minutes p.467) where they had another heated discussion over the data. Once again, she accused Dr Sangala of misrepresenting it and he accused her of intimidation. He recounted an incident from the previous September when he had gone into her office to discuss it. He said he felt intimidated and Dr Macanovic had responded with words to the effect “I wish I could intimidate you more”.

[55]In her evidence to us Dr Macanovic did not dispute the remark but attempted to put it into context: she meant that if she had been more intimidating she could have made him look more closely at the data. Some allowance has to be made for the fact that English is not her first language, and this was certainly not on a par with the abuse she had from Mr Graetz, but it was nevertheless an inappropriate remark.

[56]Meanwhile, correspondence between solicitors developed. The Trust’s solicitors responded within the stated deadline, on 17 March (p.469), disputing the risks of buttonholing and alleging that Dr Macanovic was not acting good faith - in fact she “could not possibly reasonably believe” what she was saying. The reply from DMH Stallard on 29 March (p.479) was equally uncompromising and demanded full details of this allegation (Disclosure 11). Assembling the Disciplinary Evidence

[57]This decided response from the Trust was, in our view, the prelude to a counteroffensive. Within the next few weeks, written complaints were assembled against Dr Macanovic from Mr Gibbs, Dr Sangala, and Dr Nevols (Detriment 3). The first two were in the form of undated Word documents. Dr Sangala’s (p.811) stated: I am sorry to say that I am finding it increasingly difficult to function at full capacity at work due to the behaviour of Dr Macanovic towards me. This behaviour has escalated over the last few months during which, as you know, she has accused me of lying both in public in this unit, and in private. More recently she told me in private that she had “tried to teach me a lesson in a nice way” and that she “had no concerns whatsoever” about the fact I found her intimidating. I have tried, for the sake of unity within the unit, to put our differences aside. I can no longer do this as her behaviour has become increasingly aggressive and intimidating with the most extreme example being the consultant meeting on the Page 14 of 43 15th March 2017. Once again Dr Macanovic publicly accused me of lying, after which she re-affirmed publicly that she was not at all concerned that I found her intimidating, and openly stated that she wished she knew how to intimidate me more. Her comments about the minutes written in her own words confirm this and in this week’s meeting she had an opportunity to withdraw her statement but instead chose to defend it. I should not have to came to (sic) in fear of one of my senior colleagues. This is unacceptable and I request that you do what you can immediately to rectify the situation.”

[58]Mr Gibbs (p.812) stated: “I fear opening my e-mails as I never know what she will have accused me of next. I am constantly questioning every decision I make, in and out of theatre, “Will this pass the Jasna test?” I dread on calls in case I have to discuss a patient with her for fear of being accused of further wrong doing. Operating on her patients is so stressful, “what if I have a complication?” I lie in bed most mornings not wanting to come into work. Colleagues tell me that she “wants to bring you down”. My relationships with my partner, my family and my children have all been negatively impacted upon. Life is miserable.”

[59]The complaint from Dr Sangala was sent in on about 24 March, and Mr Gibbs’ complaint followed on about 28 March. The fact that nothing was done with them for the next week or two supports the view that complaints were being assembled.

[60]On 6 April 2017 Dr Lewis emailed the Medical Director, Dr Simon Holmes (p.498) and Dr John Knighton, who has about to take over that role, to tell them that he was worried about Mr Gibbs.: Six consultant colleagues have spoken to me in confidence in the last 2 weeks about feeling intimidated by Dr Macanovic, so clearly Paul’s fears are widely shared and I think well-founded. As these consultants are recent appointees, they are understandably reluctant to lodge a formal written complaint against Dr Macanovic, which makes dealing with this issue through the recognised channels difficult. It nonetheless should go on record that I have had these conversations. I have spoken at length to Paul and he has reassured me that he remains safe to operate and does not feel a period of absence will do much to help him. He does not believe that he should reduce his current work commitments or enlist additional help from his surgical colleagues. It is my judgement that he is right, although the deep emotional distress displayed today was a cause of great concern. I will of course keep close tabs on him, supporting him through his job, plan changes etc. Nonetheless, I think you should know that one of your senior surgeons has been pushed very close to the edge by Dr Macanovic’s continuing intimidation and threats. It has been reported to me by a consultant colleague that Dr Macanovic has recently stated that she will “bring the renal unit to its knees” if necessary. I guess this is how she intends to do it.” Page 15 of 43

[61]Concerning as this is, the reference to six colleagues being reluctant to lodge a formal written complaint indicates that their opinions had also been canvassed. Dr Nevols’ email followed the next day (p.810). It is longer than the others, but the main concerns were as follows: “The main reason for writing is this: I now have concerns that the usual running of the renal unit has been compromised. Thus, I have potential concerns about patient care. 1. Consultant meetings — these meetings have been monopolised, on occasion, by Dr Macanovic. She has used aggressive and rude behaviour to intimidate other colleagues to get her point across. There has not been time to discuss other issues affecting patient care. There has been shouting. People have walked out. This cannot go on. 2. Fear — I have heard that colleagues are anxious about how they manage patients, in case of being accused wrong doing and other consequences. 3. Low morale and low mood amongst colleagues. This surely spreads to the rest of the unit and potentially affects patient care. 4. Highly skilled and respected colleagues (I need mention no names) have talked about resigning because of this issue.”

[62]There is no attempt here to disguise Dr Lewis’s opposition to Dr Macanovic, with its reference to continuing intimidation and threats, and he was happy to share it with more senior management, indicating that it was common ground.

[63]In summary therefore, Mr Gibbs expressed his apprehension or dread about future remarks or scrutiny from Dr Macanovic, Dr Sangala raised the fact that he had been accused of lying and that she was not concerned about him feeling intimidated, and Dr Nevols was concerned about the effect of all this on the renal unit, particularly on consultants meetings. Report to the GMC

[64]On 19 April, while these complaints were being considered by the Medical Director, Dr Macanovic carried out her threat to report matters to the GMC. She sent the same letter wrote to the CQC. (Disclosures 6 and 7 - p.499). It named Dr Lewis as the Chief of Service who “assumed full responsibility for this uncontrolled experiment” and also mentioned the Medical Director, at that time Mr Holmes. Mr Gibbs and Dr Sangala were also named as those leading the practice. She accused them of a coverup, of lying and dishonesty. It was by any standards a serious step, and might have led to them being suspended or struck off. Disciplinary Action

[65]On 2 May, Dr Holmes, the Medical Director, and Ms Susie Lowe, Head of the Employee Relations team, took some telephone advice from NCAS - the National Clinical Assessment Service. They are a division of NHS Resolution (the Page 16 of 43 replacement body for the NHS Litigation Service), and they generally advise on doctors who are perceived to be under-performing in some way. Their written response to Dr Holmes (p.572) on 4 May confirmed their discussion: The Trust is mindful that Dr 19339 is a whistle blower, but concerns have been expressed by her colleagues about her behaviour and you have received 3 letters of complaint alleging that she exhibits aggressive, bullying and intimidating behaviour. … The issue is, as you are aware, complicated by Dr 19339 whistle blowing status and it will be important to document carefully the preliminary information which has been received so that this is available for future scrutiny if required. Potentially it may be necessary for the Trust to be able to demonstrate that Dr 19339 is not being victimised for having raised concerns. I advised that to avoid any allegations of bias, it may also be useful for the role of Case Manager, to be delegated so that the person making any decision about how to proceed is free of any real or perceived conflict of interest. Likewise the Case Investigator should be suitably senior, experienced and independent.

[66]The key principles were correctly stated in this letter – any action taken should not relate to the allegations but to her conduct, it should be investigated at a senior level, and the Case Manager should oversee things to ensure that this distinction was upheld. The letter also invited them to share their advice with Dr Macanovic, though this was not done.

[67]Armed with this advice, a decision was taken to initiate disciplinary action (Detriment 4). Dr Macanovic was invited to a meeting with Dr Holmes on 15 May, and afterwards his replacement, Dr Knighton, wrote to her (p.578) to confirm that an investigation into her conduct would be carried out by Dr Matthew Wood, Chief of Service for the Anaesthetists. It was to be a Level 3 investigation, i.e. one that could lead to her dismissal. HR support would be provided by Ms Lowe and Dr Knighton was to oversee all this as the Case Manager. This must have been decided at a high level given their seniority. Dr Knighton, as Medical Director, reported directly to the Chief Executive, Mr Cubbon.

[68]Dr Macanovic emailed on 21 May (p.581) to make Dr Knighton aware that she had made her referral to the GMC. She claimed protection under the whistleblowing policy, entitled Freedom to Speak Up, which provides: Feel safe to raise your concern If you raise a genuine concern under this policy, you will not be at risk of losing your job or suffering any form of reprisal as a result. We will not tolerate the harassment or victimisation of anyone raising a concern. Nor will we tolerate any attempt to bully you into not raising any such concern. Any such behaviour is a breach of our values as an organisation and, if upheld following investigation, could result in disciplinary action. Page 17 of 43

[69]She also referred him to the Trust’s Dignity at Work policy, according to which a nonexecutive board member should have been appointed to make sure that she was not left unsupported. In due course, a non-executive director was appointed, but although she was copied in to some emails, she made no contact with Dr Macanovic.

[70]The GMC referral was eventually made known to Dr Lewis. In a surprising decision, he elected to read it out in its entirety to the consultants at a meeting on 7 June (Detriment 5). Dr Macanovic was there to hear it. The exercise must have taken some time since the referral letter covers eight pages. In his evidence to us Dr Lewis said that any summary would have risked further objection from Dr Macanovic, but we see no reason why he could not just have said that she had referred him, or others, to the GMC over the buttonholing issue. In choosing to give such publicity to her complaints, he was in our view, stoking anger against her and seeking to isolate her from her colleagues. She was left shaken by this episode.

[71]Dr Lewis followed this announcement with emails to colleagues who were not there. He received many messages of support, including the one quoted at the outset (paragraph 11) from Dr Armstrong, stating that she was “shocked, enraged and very saddened.” Asked about this at the hearing Dr Lewis said words to the effect that Dr Macanovic had taught him well, this was how she operated, he needed a record of things and that by then “the gloves were off”. The Wood Investigation

[72]Dr Nevols was interviewed on 5 June and Dr Sangala the next day. Dr Lewis was interviewed on 6 June, the day before he read out the GMC referral at the consultants meetings, and Mr Gibbs was interviewed on the day of the consultants’ meeting itself. Hence, all of Dr Macanovic’s opponents had their say at the outset. She was interviewed on 8 June, accompanied by her partner, Mr Heilpern; Dr Wood was accompanied by Ms Lowe, the Corporate HR Manager. His intention was to have an initial discussion, and identify those witnesses Dr Macanovic felt that he should interview. However, it soon became a general discussion of the buttonholing issue with Dr Macanovic making various dismissive comments about her accusers.

[73]On 15 June Dr Lewis went to Manchester with Mr Gibbs to attend a GMC hearing. This was an ‘Interim Orders’ hearing, to decide whether some interim steps such as suspension should be taken pending a final hearing. It is not clear exactly what happened that day but there was a two hour delay while the panel looked into further information, with the result that there was no time for Mr Gibbs and he had to come back a couple of weeks later. The delay was due to a phone call to Dr Macanovic. The GMC wanted to know about a table of patient complications she had sent the previous day. According to this, only one patient had not had any complications. In the course of the telephone conversation she told them that this patient had since been taken to hospital in a critical condition. It was suggested that she had deliberately timed this revelation to make things difficult for Dr Lewis at the hearing Page 18 of 43 but we see no basis for that view. She was responding to a call from them about information previously provided. Mediation

[74]This was the background to the attempt at mediation, referred to at the outset, which Dr Knighton attended at the end and found almost everyone in tears or close to tears. We were invited to disregard this episode on the basis that it involved ‘without prejudice’ discussions but we do not accept that. It was an attempt at workplace mediation, not to settle a legal claim between the Trust and Dr Macanovic. No solicitors were involved, or any non-clinical managers from the Trust. It was just the consultants, with an external mediator, to see if they could restore working relationships. No financial proposals were made, nor, as far as we know, was there any discussion about Dr Macanovic leaving. It is well established that the without prejudice rule only applies once the parties are in dispute, and that raising a grievance at work does not suffice. Dr Macanovic had not raised a legal claim at this stage, and certainly not against her fellow consultants.

[75]During this meeting concerted efforts were made to get Dr Macanovic to withdraw her complaint to the GMC. That was seen as the stumbling block to better relations. Dr Nevols told us that this was ‘not the entire focus’ of the event, but that supports the view that it was the main point under discussion. This refusal on her part must therefore have been the cause of the consternation on the part of the other consultants and even the mediator. We can only conclude that they all lost sight of the important principle that this was a protected disclosure and as such it was wrong to pressure her into withdrawing it. Exclusion of Dr Macanovic

[76]The next day Dr Knighton consulted NCAS (p.595) to update them on the position and discuss excluding Dr Macanovic. Their written response that day confirmed the discussion: You told me that, prior to the referrals to the GMC, the department, including Dr 19339, had requested the help of an external mediator. Everyone was keen to do this and so the Trust organised an external mediation which took place yesterday. You said you attended the start and conclusion. You described how at the end of the day everyone attending seemed stressed, anxious and some were physically shaking. One member of staff had to leave the room because he was so distressed. There appeared to be an absolute breakdown in trust between Dr 19339 and the rest of the department and the result of this led you to be concerned for the health of all in the department. You considered that the breakdown in relationships in a team who need to have confidence in each other to ensure patient safely constitutes a risk to that safety. … Page 19 of 43 However, the Trust will wish to assure itself that any action it takes to mitigate potential safety risks within the department is not construed as being a detriment to Dr 19339 as a result of her declaration to the CQC that she is a whistle blower. … Any prolonged exclusion from clinical work can lead to de-skilling and I suggested that the Trust might wish to look for a placement in another Trust or department while the investigation is ongoing and the GMC comes to a decision as to whether it will take any action against the colleagues of Dr 19339.

[77]They also suggested that the Trust take legal advice and, again, to share their advice with Dr Macanovic. Again, this was not done. Armed with this advice, and on the same day, Dr Knighton summoned Dr Macanovic to a meeting. His secretary told her to come and see him without delay (Detriment 6). She then cancelled a clinic which was due to start in 15 minutes time. It seems to us that there was some miscommunication here; Dr Knighton wanted to see her as soon as possible but not at the expense of cancelling a clinic.

[78]The meeting was to decide what to do next, given the failure of the mediation. Dr Macanovic was accompanied by a colleague, Dr Christine Gast. Dr Knighton felt that exclusion was the least damaging option. Dr Macanovic said that she was the victim of bullying by Dr Lewis, but he did not accept that that was the case. Dr Gast proposed that she could simply be excluded from consultants meetings and after a pause to consider, Dr Knighton agreed that that would be a better option. After that meeting Dr Macanovic was unwell and could not resume work. She had a panic attack and spent the afternoon in the outpatients department where she had an ECG. However, she was not signed off sick.

[79]Dr Knighton wrote to her recording his decision (p.598) and blaming it on the failed mediation meeting, which he described. If we are wrong in concluding that this was not a ‘without prejudice’ event, our view is that both parties have waived any privilege by discussing it so openly. Dr Macanovic has described it in her witness statement, and Dr Knighton has mentioned it in this open correspondence.

[80]He also recorded that she felt that her working relationships generally were good and had only broken down with three of her colleagues, i.e. Dr Lewis, Dr Sangala and Mr Gibbs. The outcome was that she was to adhere to the following requirements:• To refrain from attending MDT [Multi-disciplinary Team] and Consultant meetings

• To minimise your contact with your Consultant colleagues and limit your conversations to professional patient based discussions

• To avoid further informal discussions about buttonholing pending the external investigations that are pending Page 20 of 43

[81]These restrictions comprise Detriment 7. Although stated in the letter to be an agreement, this was an alternative to being excluded (i.e. suspended) and so Dr Macanovic had no real choice in the matter. It was an imposition by Dr Knighton. (Detriment 8 was the continuation of these restrictions. In August Dr Knighton refused to lift them (p.740 to 742) but on 5 September he agreed that she could resume attending some Multi-disciplinary Training meetings.)

[82]This partial exclusion was not uniformly welcomed. Four of the consultants met Dr Knighton urgently that day (26 June) to raise their concerns about buttonholing. Having heard them, Dr Knighton decided that the practice should cease immediately. The next day a consultants meeting was arranged at short notice, which he also attended. Some agreed with the decision to stop it, but Dr Borman and Dr Lewis put the counter case that several patients had chosen buttonholing. Mr Gibbs and Dr Sangala also emphasised that this was patient driven, and in the end Dr Knighton accepted the view that it could do more harm to reverse it immediately. So, he reversed the decision.

[83]Dr Macanovic felt that Dr Wood should also look into her allegations of bullying against Mr Lewis. Dr Knighton responded to her email (p.722) agreeing that they would “include looking at all behaviours within the department that might be inappropriate or contributing to the current situation.”

[84]From this point onwards, the active phase of the dispute over buttonholing ended. The Woods investigation continued, but Dr Macanovic carried on with her duties without attending any meetings. Her dismissal was not to take place for another ten months, but the passage of time does not seem to have reduced any of the animosity towards her.

[85]An external review was also underway. This had been commissioned by the previous Medical Director, Dr Simon Holmes, although it is not clear when. The review was led by a team of three clinicians led by a Dr Sandip Mitra, a consultant nephrologist in Manchester, and the panel came to Portsmouth on 28 July to speak to the staff, including Dr Macanovic. They also examined the patient records in detail. Meeting with Mr Cubbon

[86]In August Dr Macanovic had a meeting with the Chief Executive, Mr Cubbon, and the Trust’s Chairman, Mr Nelthorpe. Also present was the ‘Freedom to Speak Up Guardian’ Mrs Booth. Dr Macanovic then wrote to Mr Cubbon on 26 August, summarising their discussions. She alleged, again, that she was being bullied by Dr Lewis, that the disciplinary investigation into her was an act of victimisation, and asked him to remove the restrictions to her practice. He replied on 21 September (p.760) stating that the allegations against Dr Lewis would be fully investigated by an independent investigating officer, that Dr Knighton would look into her Page 21 of 43 restrictions, but refusing to intervene in the ongoing investigation. (This delay in responding is Detriment 11a.)

[87]This represented a change from the position adopted by Dr Knighton, that the Wood investigation would look into all allegations. Afterwards, Mr Cubbon had discussions with Mr Tim Powell, Director of Workforce and Organisational Development, i.e. the overall head of HR at the Trust. After that, he too changed his mind, and decided not to have a separate investigation. This decision, however, was not communicated to Dr Macanovic; Mr Cubbon thought this had been done by Mr Powell or Dr Knighton. The result was that Dr Macanovic was left under the mistaken impression that there would be a separate investigation.

[88]She wrote to Mark Cubbon about this on 23 October (p.787) and made various criticisms of the Wood investigation and the continuing restrictions, but he did not respond at all (Detriment 11b). Detriment 12 is the failure to disclose Mr Powell’s report, but no such report was ever prepared. Nor were any disciplinary allegations ever framed against anyone else in the course of Dr Wood’s investigation. The decision to single her out in this way is Detriment 10.

[89]During this time Dr Macanovic had her second interview with Dr Wood. It was on 19 September, and again she was accompanied by Mr Heilpern. (The notes are at page 948.) The questions were not confined to the 3 complaints against her but went over a wide range of matters: her earlier complaints; why her colleagues found her intimidating; whether she would retire if the GMC found against her; and the use of the phrase “being Jasna’d”. This phrase had been explored in interviews with Dr Lewis and Dr Sangala, and with the previous Clinical Director who had stepped down after her earlier grievance. Dr Gast did not recognise it, nor did Dr Macanovic. It referred to being spoken over and bombarded with arguments. Mr Lewis had described it as “being argued at rather than with, being given a string of usually high volume or highpressure facts which may be opinion or supported by evidence and not allowed to respond or if you do you are not listened to.”

[90]For her part, Dr Macanovic felt that the use of this term was bullying behaviour and she pointed to the fact that she had trained hundreds of doctors without any complaint against her. The External Review

[91]The panel led by Dr Mitra completed its external review in early October. It made 9 recommendations, the first of which was 1. BH cannot be recommended as routine practice for all patients with AVG.

[92]Otherwise, they concluded, it could still be used where there was a strong desire by the patient and as part of an informed decision making process, risk assessed by Page 22 of 43 MDT and the responsible clinician. This was also subject to “rigorous data collection, robust monitoring and audit of complication rates”, with other recommendations about quality assurance, operating procedures, further research and, ultimately, a clinical trial to examine the long-term outcomes. All this was very similar to the internal arrangements which had been agreed.

[93]Despite the safeguards proposed by this report it was the opponents of buttonholing who had most concerns with it. Dr Gast emailed on behalf of herself and three other colleagues with her objections on 3 October 2017 (p.765). They took issue with the repeated emphasis on it being patient-led, the view that monitoring and better governance was sufficient and the statement in the report that there had been no “infective complications”. However, they were happy to “forgive past mistakes and move on” and set out some detailed proposals for improved patient information, in particular that it should not be promoted and that consultants could opt out it they were against it.

[94]Dr Lewis was correspondingly pleased with the outcome of this review. Asked about it in his further interview with Dr Wood (p.1187) he said: Personally, of course I was triumphant for two reasons: first of all, because someone who had trying to destroy Paul Gibbs had pretty much been sent away with her tail between her legs and that gives you a certain satisfaction. The other thing of course is that with the GMC, I had been accused of running a study that had caused definite harm and here was a document saying it is not a study, you did not run it and it did not cause harm. So as far as I was concerned that was my defence.

[95]Shortly afterwards, on 23 October, Dr Lewis had a further interview with Dr Wood. This was to examine the allegation from Dr Macanovic of a bullying culture in the unit. To this end he was asked about his control of consultants meetings but the tone was one of enquiry and no accusations of bullying were put to him. It soon tailed off into an account of the reception of the external report, which was discussed by the consultants in the absence of Dr Macanovic, given her exclusion. He described his efforts to achieve a consensus, and the difficulty posed with one group who were “vehement”, (identified as Dr Sangala, Mr Gibbs and Mr Graetz) and another group were not saying very much. On the GMC referral he was asked in a roundabout way why he had read it all out at a consultants meeting, described as a meeting at which he “broke the news”. He accepted that he had not discussed this with Dr Macanovic beforehand and maintained that that was the right approach – the others needed to know about these attempts to destroy people’s careers. He also mentioned the solicitor’s letter which had threatened this referral, which he described as blackmail. Otherwise, there was some general rumination about the cause of the personality clash between Dr Macanovic and Mr Gibbs and a discussion about the way the Trust had handled things.

[96]The Wood investigation concluded the following month. It had involved interviewing all the consultant nephrologists still in post, all the consultant surgeons, haemodialysis nurse specialists, members of the renal administration team and a Page 23 of 43 junior doctor. Dr Wood also interviewed the previous Medical Director, Dr Holmes. The report (p.796) identified four allegations:a. Accusing Dr Sangala of misleading and lying to the department about the data on buttonholing and its use in Reading at the consultants meeting on 18 January.

b. Intimidating him and others, in particular telling her in a meeting that she wished she could intimidate him more. (This was the incident he related at the consultants meeting on 15 March 2017). Other examples of intimidating conduct were found to be: i. making threats to refer people to the GMC ii. her behaviour in meetings, including shouting and raising her voice; dismissing Dr Sangala by telling him: ‘be quiet I'm not talking to you’; iii. people leaving the meetings because of the atmosphere; iv. the results of a Happiness Survey; v. her recording a consultants meeting; vi. her persistent questioning of a trainee doctor about buttonholing at a memorial event where she gave a talk on it; and vii. her ‘pressure of speech’ etc – a reference to the ‘being Jasna’d’ allegation.

c. The complaint from Dr Nevols that she monopolising these meetings to raise her concerns about button-holing despite the internal and external reviews, and in doing so, behaving in an aggressive, rude and intimidating manner.

d. The complaint from Mr Gibbs that she had made multiple, unsubstantiated claims about his personal conduct, probity, professional skills and ethics leading to him feeling bullied, intimidated and harassed.

[97]There is of course a good deal of overlap in these allegations, and they centre around the two consultants meetings when tempers were raised. The first allegation about lying/misleading was upheld on the basis that it was recorded in the minutes and was admitted, although she apologised at the time for the word lying. The second allegation about the remark to Dr Sangala was upheld too as it was also admitted, although she explained that she had been trying to get him to look harder at the data. On the other particulars of intimidation, it noted that the minutes of the meeting on 15 March record her threat to refer them to the GMC and that she then actually did so. That was therefore regarded as an act of intimidation. On the other particulars of intimidation, the report simply referred to the relevant person’s interview record as support for the conclusion. On the third (Dr Nevols) allegation, this overlapped with the others, but Dr Wood noted that even Dr Macanovic’s supporters accepted that her manner could be aggressive and intimidating but attributed it to English not being her first language and that she felt under attack by Page 24 of 43 other colleagues on the buttonholing question. Finally, on the fourth (Gibbs) allegation, Dr Wood noted the previous investigations, her refusal to accept that her concerns were unfounded and that Mr Gibbs was innocent. He concluded that the persistence of these claims, against the opinion of the vast majority, supported the allegation. The decision to proceed to a disciplinary hearing

[98]The Trust’s disciplinary policy (p.173) provides for a review of the Investigation Report before proceeding to a disciplinary hearing. Section 6.7.7 (p.184) states: The case manager will review the report and, through further consultation with Medical Director, Director of HR and LNC Chair, or their nominated deputies, where the Medical Director is not acting as case manager, determine whether or not there is a case to answer. Where it is determined that there is a case to answer, the case manager will consider whether restrictions on practice or exclusion from work should be considered, notwithstanding that this action may already have been taken.

[99]This review took place on 6 December 2017. The LNC is the Local Negotiating Committee, a staff consultative body, and on this occasion the two co-chairs were invited, both of them consultants. Neither was able to attend that day and no consideration was given to rearranging it. Those present were Dr Knighton, Mr Powell, Dr Wood and Ms Lowe, although the policy did not provide for the last two to attend. They had been the ones engaged in producing the report and the aim of the review meeting was, to use the NCAS description, “so that the person making any decision about how to proceed is free of any real or perceived conflict of interest” (para. 65 above). Consequently, instead of the decision being taken at one remove from the investigating team, and in consultation with staff representatives, the opposite occurred. There is a record of the discussion at p.1559A. It contains no mention of any bullying of Dr Macanovic and in fact Dr Wood’s view was that there was “no mitigation”. Dr Knighton decided to proceed with the Level 3 hearing (Detriment 9). The GMC Outcome

[100]There followed a considerable delay. The Trust were wating for the outcome of the GMC investigation which arrived on 15 January (p.1564). It was a comprehensive exercise, reviewing all of the information provided by Dr Macanovic, the findings of the CQC and the Hunter report, and found: With hindsight, it could be argued that it would have been a good idea to introduce the button holing/graft access method as a research project with a formal protocol and ethical review under the research governance framework. However, because of the gradual way in which it was introduced it was not introduced in this way. As it was not conceived as a research project, the fact that it did not follow the research governance framework does not raise any serious concerns. Page 25 of 43 The button holing/graft access method was an innovative technique, and should therefore have been introduced with appropriate controls, records and safety assurance, according to the relevant local policies. The method was introduced two years before Dr Lewis became chief of service and therefore he was not responsible its introduction. Indeed, all the governance measures that were eventually introduced were introduced as a direct or indirect result of his intervention, starting at the consultant meeting on 7 September 2016.

[101]The key passage from Dr Macanovic’s point of view stated: We are of course mindful of the findings of the independent whistleblowers review the GMC commissioned from Sir Anthony Hooper. Having considered the correspondence disclosed to the GMC by the trust and by Dr Macanovic, it appears Dr Macanovic first raised her concerns locally and that it was only after she concluded, in her view, that her concerns were not being adequately addressed locally that she made her complaint to the GMC. In doing so Dr Macanovic was no doubt aware, amongst other things, of the guidance at paragraph 25 of Good medical practice that doctors must take prompt action if you think that patient safety, dignity or comfort is or may be seriously compromised.” In the event Dr Macanovic genuinely considered there was a risk to patient safety, and it appears to us that she did consider such a risk existed, but she had not raised her concerns through whatever mechanism was available to her locally and/or if she deemed it necessary to the GMC, she would in our view have been rightly criticised by the public and by the GMC for failing to do so.

[102]In our view she did genuinely consider that there was a risk to patient safety. That is implicit in the previous finding that this referral amounted to a protected disclosure. Although it was suggested to us that this fell short of an express statement from the GMC that she was right to make this referral, that seems to us its practical effect. The approaching hearing

[103]Within a few days of this decision, which removed the threat hanging over Dr Lewis and others, Dr Macanovic was invited to a disciplinary hearing. It was to take place on 28 February. No decision-maker had been identified but the letter (p.1608) explained that Dr Knighton would be presenting the management case and Dr Wood would also be there to present the findings of the investigation. Dr Lewis (alone) would be called as a witness for the management side. The disciplinary policy does not prescribe who should attend, although there seems no reason for this duplication. Separate roles are prescribed for the Case Manager and Case Investigator and the role of the former is described (p.179) as one who “coordinates the investigation, organises its administrative support and ensures the investigation is completed to a timetable.” Dr Knighton however largely took over the reins at this stage and prepared a three-page Management Statement of Case ahead of the hearing (p.1610) which recommended dismissal. Page 26 of 43

[104]Dr Macanovic’s solicitors wrote to Dr Knighton, attempting to deflect this process. They pointed out that there had been no difficulties at work over the many months since Dr Macanovic had been excluded from meetings and suggested Alternative Dispute Resolution (ADR), or at least a postponement. Mills & Reeve responded for the Trust on 16 February (p.1627) rejecting these proposals and responding, somewhat surprisingly: “First, to date your client has never articulated her specific concerns in relation to button holing to our client.”

[105]They also claimed that she had referred colleagues to the GMC ‘with no good reason’. This response is Detriment 13.

[106]Professor Theresa Murphy was appointed to hold the disciplinary hearing. She was the Trust’s Chief Nurse and had recently joined the Trust at the invitation of the Chief Executive, Mr Cubbon. She was also part of the cabinet group who reported to directly to him, as did Dr Knighton and Mr Powell, and like them had offices on the same corridor, attending morning planning meetings together.

[107]Dr Macanovic set about preparing in earnest for this hearing, assembling as much support as she could from colleagues. Six of them, Dr Bostock, Dr Uniacke, Dr Synodinou, Dr Dingley and Dr Gast agreed to be witnesses and attended the hearing on her behalf and many others agreed to provide character references. They included a senior nurse, who said it was a genuine pleasure to work with Dr Macanovic; a sister who described her as kind and sympathetic to patients and nurses alike; a nurse who said she was “a steady and relentless support to me”; another who described her care and empathy as exemplary; a consultant surgeon from Nottingham who spoke in glowing terms of her; and many similar comments from former colleagues in all roles and disciplines. There are 22 such references in the bundle, aside from those provided by her witnesses. She also submitted a written response to the management case (p.1641) explaining, among other things, that outside meetings she had not spoken to Dr Sangala since September 2016, nor Mr Gibbs since July 2016. Similarly, her only private communication with Dr Nevols had been the text message exchange in January 2017 after Dr Nevols had emailed her and copied in all the other consultants. The disciplinary hearing

[108]The hearing went ahead as planned on 28 February. Professor Murphy was accompanied by Ms Rebecca Kopecek, Deputy Director of Workforce plus the fourperson investigation/case-management team. Once again Dr Macanovic was accompanied by her partner, Mr Heilpern. With so many witnesses the hearing was a lengthy one. It lasted over eight hours and the transcript is nearly 100 pages long (pp.1718 to 1813).

[109]One concern raised by Dr Macanovic was the vagueness of the allegations. These were not confined to the original three complaints. The invitation letter did not Page 27 of 43 identify them beyond a reference to the Investigation Report and the Management Statement of Case also said “There is no need to repeat the specific allegations here, they are set out in the Report.” Those allegations have been summarised already, but the management statement went on to say (p.1612): The concerns are her general conduct towards colleagues, not acting professionally, not working collegiately, abuse, intimidation and being wholly unreasonable in persisting with imposing her views about the use of button holing, despite no evidence to support what she says and in fact, to the contrary following both internal and external reviews. There was no justification in the threat to report colleagues to the GMC and certainly no justification for actually reporting them. Not surprisingly colleagues are not prepared to work normally with JM.

[110]Dr Lewis gave his evidence first. Professor Murphy explained to us that she saw him as a representative of the three complainants. He went over the history of the dispute, giving his views about the atmosphere in the department, how shocked people were at the referral to the GMC, the failed mediation, and how her exclusion had been welcomed. The questions were led by Dr Knighton, who then summarised things as follows: JK - So in summary I think Dr Lewis has described some of the atmosphere that has been pervasive over the course of the last year. I think that in conjunction with some of the witness statements and testimony investigation does describe a pervading culture of fear and intimidation resulting in a reluctance to speak up and defensive changes in clinical practice resulted from that because people are fearful of the way that practice may be changed, an inability to discuss serious and important clinical as well as non-clinical issues relating to the service and its development. I think sadly there is significant evidence Jasna that you have not worked actively with your colleagues, that you haven't respected their skills or treated them fairly or with respect and also that you have shown a lack of insight and indeed reflection on how your behaviour may have affected others and the working of the team. Potentially at least given the appearance that you don’t care about those things as well. I think I am afraid therefore that in summary I have to say that I believe your behaviour has caused irreparable damage to the function of the renal service and to the Trust within the consultant body and therefore the management case is that unless you wish to reconsider your position and resign to pursue a career elsewhere the management case would be that the Trust must seek your dismissal, with great regret. [Emphasis added]

[111]This extensive summary of the management case came at an early stage. It shows that the focus was not on particular behaviours on particular days or at particular meetings, but on working relationships generally, in the context of this dispute. It culminated in this offer to resign. Professor Murphy told us that she knew that this offer would be made by Dr Knighton, so clearly they had discussed things in advance.

[112]There were questions to Dr Lewis interspersed with some long statements from Dr Macanovic, but in the absence of any more specific allegations these served a Page 28 of 43 limited purpose. The six witnesses for Dr Macanovic were then called in turn. Some more focus was applied to the consultants meetings in question, of which the main ones were on 7 September 2016 and 18 January 2017. On the first of these, the technique had only just been revealed whereas at the second there was a general and heated discussion of the data. As may be expected, Dr Bostock was supportive. Dr Samson, not one of Dr Macanovic’s group of supporters, said that there were heated exchanges on every side. Dr Uniacke said that anything she said was met with anger and aggression, and gave his evidence about there being a pack of wolves. Dr Synodinou and Dr Dingley did not believe that Dr Macanovic was louder or more aggressive than the others. Dr Gast said that after other consultants meetings, when Dr Macanovic was not there, she was left crying afterwards, with the pro-buttonholers denying that there were guidelines and ignoring patient safety concerns. Having heard this evidence, and towards the end of the hearing, Dr Knighton referred again to his suggestion of resigning with a good reference.

[113]So matters rested for a few days while the outcome was awaited. In that period, on 2 March, Dr Bostock, Dr Uniacke, Dr Synodinou, and Dr Gast emailed Mr Cubbon, to ask him to step in to prevent her dismissal (p.1716). Dr Gast was the author. She said that these complaints were from a minority of staff, and were an attempt to silence and discredit Dr Macanovic as a whistleblower. He declined to intervene (Detriment 20).

[114]The hearing resumed on 5 March 2018 when Professor Murphy gave her decision. At the outset, she also reminded Dr Macanovic that she could instead choose to resign with a good reference. The main passages from the dismissal letter (p.1814) are as follows: The general thrust of the Management case was that the behaviours complained of were witnessed by others, were your usual way of interacting when challenged and that you had an ‘I'm right, you're wrong’ attitude. Things were either done your way or they were not being done correctly. I then heard you case. It became very evident that you interpreted the Management case as “colleagues won't work with you”; despite Mr John Knighton repeatedly making the point that colleagues find it difficult to work with you due to your behaviour, making them very anxious and that as a result good patient care is threatened. In fact, it was noteworthy that all of the witnesses who appeared at the hearing, including yours, agreed that the atmosphere in the Renal Unit has become very difficult and, in your words, “dreadful”. Throughout the hearing you asserted that all your behaviour was as a result of your opposition to button holing. I do not intend to go into great detail about button holing in this letter. It is however very clear to me that the Trust had no concerns with the fact that you raised concerns and indeed it has gone to great lengths to investigate the use of button holing a number of times, resulting in an internal review and three Page 29 of 43 external reviews to try to resolve the concerns. Despite the internal and external reviews, it was evident at the hearing, which was dominated by your assertion that button holing is a patient safety issue, that this remained your focus rather than your behaviour and how it had impacted on your colleagues, which was the focus of Management concerns. You produced a list of patients and on questioning you confirmed that although they were not your patients, you were nevertheless continuing to monitor them in relation to button holing. This is not appropriate and a further example of your continuing focus on button holing as an issue despite the Unit Position statement on button holing being agreed last October and which you have signed and subsequently stated dealt with your concerns. As you are aware you have no right to look at patient data not pertaining to your own patients without patient consent. This is a breach of information governance and confidentiality, which the Trust has every right to take very seriously. Your witnesses were supportive to your position and spoke about your clinical excellence and support as a peer and mentor. For clarity the Trust has never doubted your clinical skills and has no concerns in that regard. … I have made a number of key findings in this case, which are, in summary:• The behaviours complained of by Dr Nick Sangala, Dr Jacqui Nevols and Mr Paul Gibbs did occur;

• Whilst you make a point of saying that you did not call a colleague a ‘liar’ you accept that you have accused a colleague of lying and to my mind this is a distinction without a difference;

• You are aware of the fact that you intimidate people and have stated that you wished you were more intimidating;

• Despite internal and external confirmation that button holing is not contraindicated and carries no specific risks, and despite you not being an expert in vascular access, you not only continue to disagree with its use, but you also referred colleagues to the GMC for using/supporting its use and I do not feel you acted professionally in this regard;

• Relationships between you and a number of consultants in the Renal Unit have broken beyond repair as a result of your behaviour. [Emphasis added]

[115]So, as noted at the outset, the misconduct included the fact that she made the GMC referral. Other contentious points in this letter include the statement that the Trust had “no concerns with the fact that you raised concerns” and the dismissal of the evidence of her supporters as only relevant to her clinical competence.

[116]Dr Macanovic was found guilty of ‘serious misconduct’ rather than gross misconduct and paid in lieu of notice. There was a right of appeal to Mr Powell, who had appointed Professor Murphy, but Dr Macanovic chose not to press her case any further, and so her employment ended. Page 30 of 43

[117]A number of further detriments have been alleged arising from this disciplinary process, each of them an argument about the fairness of the process. Of those remaining:a. Detriment 14 involves various alleged failures to follow the Trust’s policies, considered further below.

b. Detriment 16 was the alleged failure to consider alternatives to dismissal.

c. Detriment 18 is an allegation of pre-judging the outcome.

d. Detriment 19 is an allegation of failing to consider ADR. Applicable Law

[118]The primary claim here is of unfair dismissal. Although reference is often made to ‘ordinary unfair dismissal’ and ‘automatically unfair dismissal’ there is just a single right, provided by section 94 Employment Rights Act 1996, not to be unfairly dismissed. Section 103A provides that: “An employee who is dismissed shall be regarded … as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.”

[119]For such an ‘automatically unfair dismissal’ it is not necessary to have two years’ qualifying service. Those without two years’ service have the burden of proving this principal reason. As explained by the Court of Appeal in Kuzel v Roche Products Ltd

[2008] IRLR 530

, those with two years’ service (as here) just have to provide some evidence to show that it was for a different reason – i.e. whistleblowing. The tribunal may agree, or find that it was for another reason altogether. Here, there are two clear alternatives – whistleblowing or behaviour. (Section 98 of the Act sets out the potentially fair reasons for dismissal, including conduct, capability and ‘some other substantial reason’. These are relied on by the Trust but we use the term ‘behaviour’ for convenience.)

[120]Conduct etc are merely the relevant categories or headings. The principal reason is the reason that “operated on the employer’s mind at the time of the dismissal”: per Lord Denning MR in Abernethy v Mott, Hay and Anderson

1974 ICR 323

, CA. So, for example, in Kuzel, the tribunal found that the principal reason was simply that the line manager lost his temper. We therefore need to address the reason that operated on the mind of the employer, i.e. on the mind of Professor Murphy.

[121]If the reason was a fair reason (behaviour) we then need to consider whether the dismissal was fair under the ordinary principles relating to unfair dismissal, i.e., applying the established principles, in a case of alleged gross misconduct it depends on whether the decision-maker had a genuine belief in her guilt, based on reasonable grounds, formed after as much investigation as was reasonable in the Page 31 of 43 circumstances, and whether dismissal was within what is known as the range of reasonable responses.

[122]As to the alleged detriments, section 47B Employment Rights Act 1996 provides: (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. [Emphasis added]

[123]Again, there was little disagreement over the applicable legal principles. As decided by the Court of Appeal in Fecitt v NHS Manchester [2012] IRLR, this test was held to mean that the disclosure must have had a ‘material influence’ on the detriment. That is an easier test to meet than for a dismissal. Time Limits

[124]Finally, time limits have to be considered in relation to the detriment claim. Section 48 Employment Rights Act 1996 provides that a detriment complaint must be presented within three months of act or failure to act in question, “or, where that act or failure is part of a series of similar acts or failures, the last of them.”

[125]That three month period is now extended by section 207B to allow for time spent in early conciliation. That period can be further extended where the claim form is submitted within one month of the end of early conciliation (known as Day B), but that did not happen here. Day B was on 1 November 2017 but the claim form was not submitted until 16 January 2018.

[126]The period of early conciliation lasted a month, from 1 October to 1 November 2017, so the three month time period was extended to exactly four months. Hence, any act which took place more than four months before the claim being lodged on 16 January 2018 is potentially out of time, i.e. on or before 17 September 2017. That includes the first eight detriments. The only way around this for the claimant is if it was not reasonably practicable for her to bring her claim sooner, which has not been alleged, or that the detriments are part of a series, and the last act of that series was in time.

Conclusions

[127]We will start with the dismissal claim, and the reason operating on the mind of Professor Murphy. That is a question of fact. It does not depend on the way in which the case is now presented. As already described, the allegation has been cast in various forms in the course of the disciplinary process. The letter inviting her to the disciplinary hearing (para. 67) stated that three complaints had been received and: “they have cited; aggression, fear and intimidation, accusations of lying and threats of being reported to the GMC.” Page 32 of 43

[128]The Wood report (p.796) opened with an introductory paragraph in almost identical terms, referring to the three complaints and adding: “They referred to aggression, fear and intimidation. They said that JM had made accusations of lying and threats of referral to the General Medical Council.”

[129]The Wood report broke this down into four allegations, set out at para. 96 above. Those four allegations were also summarised at the review meeting on 6 December 2017. Again, the main points are her conduct at consultants meetings (in the context of the buttonholing dispute), the accusations that Dr Sangala lied to or misled them, and the threat to refer people to the GMC. This is borne out by the wording in the management statement of case set out at paragraph 109 above. At the risk of repetition, this was about: “her general conduct towards colleagues, not acting professionally, not working collegiately, abuse, intimidation and being wholly unreasonable in persisting with imposing her views about the use of button holing, despite no evidence to support what she says and in fact, to the contrary following both internal and external reviews. There was no justification in the threat to report colleagues to the GMC and certainly no justification for actually reporting them. Not surprisingly colleagues are not prepared to work normally with JM.

[130]If anything, this further highlights the buttonholing issue and the concern over any involvement by the GMC. The invitation to the disciplinary hearing (p.1608) repeated the original wording: The purpose of the hearing is for us to formally discuss your conduct in relation to allegations made by senior members of the Renal Department with regard to conduct towards them and intimidating behaviour (citing aggression, fear and intimidation, accusations of lying and threats of being reported to the GMC).

[131]Finally, the outcome letter itself has just been quoted. It upheld the allegations and also referred to the GMC expressly.

[132]Taking all this together, we conclude that the reason for dismissal was the breakdown in working relationships caused by the buttonholing controversy. This is turn resulted mainly from fear that Dr Macanovic would report colleagues to the GMC and a sense of outrage that she actually did so. That is the only context in which we can make any sense of the sense of fear and intimidation which is repeatedly mentioned. They were afraid of the GMC. Dr Wood made this connection between intimidation and the GMC in his findings on allegation 2. That was the cause of the stress and outrage, not fear of personal violence or even of a verbal tirade from Dr Macanovic. This outrage was particularly stressed in the management statement of case, emphasising that she had no justification for this referral, although the GMC view was different.

[133]At this hearing the Trust’s case was rather different. They argued that it was all about the manner in which she raised her allegations. Hence, they accept that this Page 33 of 43 was really all in the context of buttonholing. The extent to which the Trust’s case rests on this distinction is seen from Mr Hignett’s closing written submissions: Distinction between the disclosure and other separable matters evidenced by it 12. Whistleblowing law has long recognised a distinction between a person making disclosures and their conduct in making those disclosures. This distinction is at heart of [the respondent’s] defence to the claims in these proceedings. 13. This central idea is discussed in Whistleblowing Law and Practice, Second Edition, Bowers & Others at Chapters 7.68 – 7.72 and 7.79 – 7.100 and in IDS Employment Law Handbook Whistleblowing at work Dec 2018 5.52 – 5.54 (relating to detriment) and 6.17 – 6.20 (in relation to dismissal). Bowers summarises it in this way: PIDA protects disclosures but it does not protect other conduct by the employee even if that other conduct is connected in some way to the disclosure. 14. From the highlighted passages above the following cases are worthy of mention. Bolton v Evans 15. An early example of the distinction being drawn is Bolton School v Evans 2006 EWCA 1653

[2007] IRLR 140

. This case concerned a technology teacher who hacked into the school’s IT system in an attempt to prove it was insecure. A distinction was drawn by the [Employment Appeal Tribunal (EAT)] and the [Court of Appeal] between the making of the disclosure that the system was vulnerable and the misconduct involved in hacking into the system. Mr Evans was dismissed for his misconduct in hacking into the system not for making his disclosure that the system was vulnerable. His claims for detriment and dismissal both failed on this reasoning. Importantly, the Court of Appeal rejected the suggestion that ‘a special purposive meaning’ should be given to the term disclosure so as not to encompass Mr Evans’ act of hacking into the system. Panayiotu v Chief Constable of Hampshire Police 16. Now regarded as the lead case on the distinction is Panayiotu v Chief Constable of Hampshire Police and Another

2014 IRLR 500

. Here the EAT upheld the ET’s decision that the reason for dismissal and detriments was not the fact that P, a police officer, made protected disclosures but the manner in which he pursued his complaints. The Tribunal found that whilst his employer took action in relation to his concerns, P would then relentlessly campaign if dissatisfied with the action taken by the employer following his disclosures; further that he would strive to ensure that all complaints were dealt with in a way that he considered appropriate. He continued to press his concerns resulting in the employer having to devote a great deal of time to his correspondence. 17. In Panayiotou the EAT emphasized that a tribunal must be astute to ensure that the factors relied on(a) are genuinely separable from the fact of making the protected disclosures, and

(b) are in fact the reasons why the employer acted as it did. These were held to be issues of fact for the Tribunal. Page 34 of 43 18. The distinction between the making of a disclosure and the manner in which a disclosure is made continues to be approved of in a plethora of appellate cases: Barton v Royal Borough of Greenwich EAT 0041/14 B, Parsons v Airplus International Limited EAT 0111/17, Gibson v Hounslow LBC and others UKEAT/0033/18BA; Beatt v Croydon Health Services NHS Trust v

[2017] IRLR 748

; Robinson v His Highness Sheikh Khalid Bin Saqr Al Qasim

2020 IRLR 345

. 19. The distinction has been maintained. 20. The Panayiotou distinction was applied in Parsons v Airplus International

UKEAT/0111/17/JOJ

, 13 October 2017. Ms Parsons, a qualified non-practising barrister, was employed by the respondent as its Legal and Compliance Officer, subject to a six-month probationary period. From early in her employment she raised numerous concerns. Her managers became increasingly concerned as to the way in which she was raising matters, her inability to work with others and her rudeness. After attempting to reassure Ms Parsons and to remove some of the pressure on her, the respondent was unable to see any improvement and decided she should be dismissed. The EAT upheld the ET’s judgment that the reason for dismissal was not her disclosures but her reaction thereafter; her inability to explain her concerns, her failure to listen to others and her rudeness, which were genuinely separable factors. 21. The Panayiotou distinction was applied in Fertsch v Schultz ET Case No.2602017/16 (discussed IDS HB page 199). An ET found that F had not been dismissed for the disclosures he made concerning racist and sexist comments made to him but the manner in which he sort (sic) to complain about such matters to his manager. The ET accepted the manner in which the disclosure had been conveyed, F had acted in an intimidating and threatening manner. 22. Mr Alsop contends that it is only ‘conceptually possible’ for a distinction to be drawn between a protected disclosure and the manner in which it is pursued (JA skeleton para 21) but the case law shows that the Panayiotou distinction is much more than a mere concept. It is used over and over again to draw the boundary line between the protection afforded to whistleblowers and the commission of misconduct. 23. Contrary to the submissions by JA in his skeleton argument (JA 21), the Panayiotou distinction has been applied, made and approved of in a number of in cases involving NHS whistleblowers. 24. For example, Idu v Ipswich Hospitals NHS Trust Case 3400400/16 (discussed IDS HB page 198). This case involved a consultant who made disclosures about patient safety and the clinical competence of her colleagues that lay behind it. She was dismissed for misconduct when the Trust concluded that she had become unmanageable because of the deliberate tone and style of her communications with colleagues, her clear challenges to any attempt to exert authority, her refusal to accept any alternative innocent explanations for events and her refusal to adjust her behaviour when she was provided with a clear explanation as to why it was unacceptable and how it affected those around her. The Tribunal accepted that the reason for dismissal was connected to one of the disclosures but that the manner of the disclosure was separable. The Tribunal noted in that case it was important to recognise that the Trust was not hostile to Ms Idu’s disclosures. Page 35 of 43 25. By way of further example, LJ Underhill approved of the Panayiotou distinction in the NHS whistleblowing case of Beatt v Croydon Health Services NHS Trust v

[2017] IRLR 748

para 94: Employers should proceed to the dismissal of a whistleblower only where they are as confident as they reasonably can be that the disclosures in question are not protected (or, in a case where Panayiotou is in play, that a distinction can clearly be made between the fact of the disclosures and the manner in which they are made).

[134]This passage from Beatt was also quoted by Mr Allsop. It highlights the key point for us to decide, which is whether the distinction can “clearly be made” between the fact of the disclosures and the manner in which they were made. More generally, this section shows that there was little difference between the parties on the legal principles, only differences of emphasis as to how ready we should be to draw this distinction. We shall compare and contrast these other cases with Dr Macanovic’s situation below, but the question of whether this distinction can clearly be made is one of fact, after an assessment of all the circumstances of the case.

[135]In Bolton School v Evans, Mr Evans went further than simply raising the disclosure; he hacked into the schools computer system to prove that it was vulnerable. To do that he had to decode the passwords, which he did with the help of a former student. He then told the headmaster what he had done, but failed to tell ICT. When they discovered the intrusion the whole system was shut down, causing a loss of £1,000. The headmaster concluded that he had hacked into the system without authority and issued him with a written warning, at which point Mr Evans resigned claiming that he had been constructively dismissed for making a protective disclosure. The employment tribunal agreed, and felt that his hacking was part and parcel of the disclosure. At the Court of Appeal it was argued on behalf of the claimant that a broad meaning should be given to the word disclosure in the Act, to ensure protection for whistleblowers. Lord Justice Buxton disagreed. “Disclosure” should be given its normal meaning. He was satisfied that Mr Evans was disciplined for the physical act of accessing the computer system, and hence that was the principal reason for his dismissal, rather than the disclosure itself. He added: “While I agree that the tribunal should look with care at arguments that say that the dismissal was because of acts related to the disclosure rather than because of the disclosure itself, in this case there is no reason to attribute ulterior motives to the employer.”

[136]Hence, it will be a relatively rare case when the actions of an employee in making a disclosure can genuinely be separated from the disclosure itself, but this is one case where that distinction can clearly be made, given the commission of an offence.

[137]For Panayiotou itself, the headnote sets out the relevant facts: Mr Panayiotou was a police officer on the Isle of Wight, where his wife had established hospitality businesses. There were rules governing police officers having business Page 36 of 43 interests and Mr Panayiotou applied for and was granted permission to be associated with his wife's businesses. In around 2000, Mr Panayiotou made disclosures to senior officers concerning the attitude of certain officers in respect of the treatment of race and the treatment of victims of rape, child abuse and domestic violence. There was an investigation and he was found to be largely correct in his concerns. However, he was not happy with the outcome and began to campaign for the force to take actions that he believed were appropriate. When the force did not take that action, he believed that matters were being covered up and this made him more determined to try other channels to secure redress. For example, he sought support from officers in representative bodies and made many lengthy complaints. He made other disclosures, including a complaint in October 2005 that there had not been a proper investigation of a racially motivated attack on a Lithuanian national. From about October 2006, the police force revoked, refused, or would not consider Mr Panayiotou's applications for permission to be involved in his wife's businesses. In that month, Mr Panayiotou was at home on sick leave when he was arrested at his home, the alleged offence being that he was receiving sick pay whilst working without authorisation in his wife's business. A specific police operation involving a huge amount of work was set up to investigate him. The relevant officers in the force decided to recommend that he be dismissed on the basis that he had an incompatible business interest.

[138]Both parties in this case took fairly extreme steps. The campaigning activities by Mr Panayiotou covered a period of several years, and included elaborate conspiracy theories that senior officers had been bought off with honours to stop helping him. At the same time the actions of the Police Service were heavily criticised. After his arrest, two officers carried out surveillance on his wife’s market stall in their own time to try to catch him helping her. However, ultimately the Tribunal concluded that the main reason for dismissal was exasperation that Mr Panayiotou had worked so little in the years that he had been with them, while being paid, and while seeking to be involved with the family business. The judgment noted: 52. Those authorities demonstrate that, in certain circumstances, it will be permissible to separate out factors or consequences following from the making of a protected disclosure from the making of the protected disclosure itself. The employment tribunal will, however, need to ensure that the factors relied upon are genuinely separable from the fact of making the protected disclosure and are in fact the reasons why the employer acted as it did. [Emphasis added]

[139]In Parsons v Airplus International Ltd EAT 0111/17 the distinction was again upheld. The Tribunal held that Ms Parsons was fairly dismissed for her conduct rather than the content of her disclosure. The claimant there worked for the company in Compliance, and the conduct in question was her rude and confrontational behaviour. The Employment Appeal Tribunal observed, at paragraph 45, that: “The Respondent was, rather, concerned with what the Claimant did after she had made her disclosure; with her unresearched assumptions and demands; her conduct at meetings and failure to give rational, cogent reasons for her beliefs; her irrational fixation on her personal liability; and her inability to listen or take on board what her colleagues had to say. Of course, all of this was in the context of the Claimant’s role Page 37 of 43 in compliance, but the ET was clear: it was not what the Claimant was raising in that respect, but the way in which she was raising it and then, thereafter, conducting herself.

[140]Again, these are distinct and severable features of the case. Some of those features are present in the present case, but to a much lesser degree. Concerns were of course raised about the conduct of Dr Macanovic at meetings, and perhaps also failure to take on board what colleagues had to say, but the outcome of the dispute was largely to accept and agree that her concerns were valid. She did not fail to give cogent or rational explanations for her beliefs although there was a dispute over the data. More importantly, the case of Ms Parsons involved a succession of compliance issues: Dr Macanovic was concerned with one main issue, potentially a matter of life and death. She raised her concerns against a dominant management group and at two meetings there were heated exchanges. Tempers were raised on both sides. The findings of the disciplinary process were, in our view, very onesided, reflecting a determination to remove Dr Macanovic as the source of the problem, but that is very different from one individual making a disproportionate fuss about things that concern them. Regard must be had to the scale of the issues at stake in deciding between the message and the method used.

[141]Fertsch v Schultz is an unreported decision of an employment tribunal. According to the report in the IDS brief: The disclosure concerned racist and sexual comments made to F, a Polish national, by non-Polish colleagues. F had gone into W’s office to complain about these incidents and, in doing so, stood very close to W, stared directly at him and stated that he knew how to ‘handle himself’. The tribunal accepted that W found F’s behaviour to be menacing, intimidating and threatening and found that this this, rather than the disclosure itself, was the principal reason for dismissal.

[142]Again, that conclusion seems uncontroversial. Idu v Ipswich Hospitals NHS Trust is also a first instance decision, described in IDS. Ms Idu - also a hospital consultant – “was dismissed for gross misconduct when the Trust concluded that she had become unmanageable because of the deliberate tone and style of her communications with colleagues, her clear challenges to any attempt to exert authority, her refusal to accept any alternative innocent explanation for events, and her refusal to adjust her behaviour even when she was provided with a clear explanation as to why it was unacceptable and how it affected those around her. The employment tribunal accepted that this was the real principal reason for dismissal and rejected I’s assertion that her protected disclosures about patient safety and the clinical competence of her colleagues lay behind it. The tribunal accepted that part of the reason for dismissal was connected to one of the disclosures — namely, I raising patient safety issues by email to colleagues rather than through the proper channels — but found that the subject matter of the disclosure and the manner in which I had raised it were properly separable. [She] had been expressly asked not to cause unnecessary disruption by disclosing her concerns to all and sundry but to make disclosures to her line manager Page 38 of 43 who would then deal with it appropriately. That was a reasonable request, given I’s tendency to cause upset by her widespread and often inaccurate communication to colleagues. The tribunal noted that it was important to recognise that the Trust was not hostile to I’s disclosures — indeed, on occasion, it thanked her for them, told her that it had investigated or was doing so, and indicated that her concerns for patient safety were shared by others.

[143]Again, there are some similarities here, but again the main missing element is the very serious and single concern pursued by Dr Macanovic over buttonholing. It was not a case of her raising concerns to all and sundry. She escalated them, but only when she felt that no appropriate action was being taken, i.e. that the Trust was simply carrying on regardless. We note too unlike Ms Idu, Dr Macanovic encountered clear hostility, as shown by the conduct of the mediation meeting and the plethora of highly emotional and critical emails about her.

[144]A case on the other side of the line, already referred to, is Croydon Health Services NHS Trust v Beatt. In that case the claimant was dismissed by a letter setting out the charges found proved, three of which related directly to making unsubstantiated allegations of unsafe staffing levels, so there was little doubt about the reason for dismissal. At paragraph 94, Underhill LJ stated: “I wish to add this. It comes through very clearly from the papers that the trust regarded the claimant as a trouble-maker, who had unfairly and unreasonably taken against colleagues and managers who were doing their best to do their own jobs properly. I do not read the tribunal as having found that that belief was anything other than sincere, even though it found that it was unreasonable. But it is all too easy for an employer to allow its view of a whistleblower as a difficult colleague or an awkward personality (as whistleblowers sometimes are) to cloud its judgment about whether the disclosures in question do in fact have a reasonable basis or are made (under the old law) in good faith or (under the new law) in the public interest.

[145]Those comments apply with equal force in this case. And this is the nub of the matter. Although some valid concerns were raised in the disciplinary process, particularly about her accusing Dr Sangala of lying or misleading them, she apologised at the time and there was no comment or complaint about this at the time. The context of lying about Reading is also important and was not considered at all in the investigation or disciplinary hearing. It was only when the buttonholing issue came to a head that disciplinary steps were taken over these points. The complaints were raised in March 2017, long after the consultants meetings in September 2016 and January 2017, suggesting that this allegation and the remark about intimidation, were not a spontaneous response. She did, we accept, make reference on occasion to making a referral to the GMC. That was not in our view an attempt to intimidate, only to demonstrate the seriousness of the situation. It has to be remembered that this was an innovative procedure and a substantial number of others shared her concerns. Page 39 of 43

[146]It is true that in the course of the referral to the GMC and in the previous whistleblowing complaints she did make quite scathing personal criticisms of Mr Gibbs and Dr Lewis and was often dismissive of other people’s views or expertise. She was never an easy colleague. But it is artificial to try to distinguish between the manner of raising the concerns from the concerns themselves, and that was not how it was seen at the time. The email from Dr Armstrong, quoted at the outset, expresses simple outrage at the GMC referral. It is not qualified by any suggestion that this was of course her right to do so, perhaps coupled with a statement that it was the manner or wording of the referral which was outrageous. That sort of sentiment is not to be found in any of the three complaints raised against her, or anywhere in the evidence we have seen.

[147]This view is supported by the degree of co-ordination shown in the assembly of evidence against Dr Macanovic and the subsequent departures from their policies. Straightforward concerns about her behaviour would not have required any such departure or the bypassing of the various safeguards. And had the concerns about her behaviour been the overriding concern it is surprising that the Trust was willing to make repeated offers of a favourable reference.

[148]One particular point raised on behalf of the Trust was that they took the buttonholing issue seriously, indicating that it was a separate matter. In fact, our view is that the consultant body in the renal unit were led by Mr Gibbs as Clinical Director, and he was a strong proponent. Dr Lewis gave Mr Gibbs his backing on this issue, and so Mr Gibbs was the one in a position to respond to the CQC. That is not so much treating her concerns seriously as attempting to resist or deflect them. It does not affect our view of the main reason for dismissal or the concern generated by the GMC referral.

[149]Reliance was also placed on the pattern of previous behaviour, particularly over the nursing sister and the Hunter investigation. We have made our findings on those points, and would just add that they did not feature to any real extent at the dismissal stage.

[150]Given our view that the Trust have not shown a potentially fair reason for dismissal, there is no basis for a reduction on the basis that a fairer process would have led to the same result (a Polkey deduction) or to contributory fault on her part. ‘Ordinary unfair dismissal’

[151]If we are wrong that the principal reason for dismissal was the protected disclosures, particularly the GMC referral, we consider that the dismissal was unfair under ordinary principles. There were a number of serious failings in the process adopted here, the most conspicuous is the fact that she was offered the opportunity to resign during the disciplinary hearing itself. This was done by Dr Knighton with the knowledge and (we presume) prior approval of Professor Murphy. That follows from Page 40 of 43 the fact that it was then repeated by Professor Murphy on the day of the outcome itself. That offer can only mean that the outcome was a foregone conclusion.

[152]A number of procedural errors were identified on behalf of Dr Macanovic, all of which seem to us valid:a. The scope of the investigation was confined to her behaviour, and there was no separate investigation into her complaints of bullying, contrary to the policy on Freedom to Speak Up.

b. The review meeting involved Dr Wood and did not involve the LNC representatives, so this safeguard was bypassed.

c. Dr Knighton took over the conduct of the disciplinary hearing, a senior manager at the same level as Professor Murphy.

d. The decision should have been taken by a ‘panel’ and although not defined in the policy, it is in our view implicit that this should have been more than one person. Again, this was a safeguard which was bypassed.

e. The weight of evidence at the hearing was all in Dr Macanovic’s favour. Although numbers are not decisive, none of the three complainants attended to answer questions about their relatively short complaints. By contrast, no consideration appears to have been given to the supporting evidence for Dr Macanovic, which was not confined to her clinical competence.

f. A number of aspects were not fully considered, or considered at all. These include her length of service; the fact it was a first ‘offence’; that the disputes arose in the buttonholing context, when tempers were raised on both sides and where real concerns existed about patient safety; the context of the accusation of lying over its use in Reading; the length period since the consultants meetings in question, during which there had been no further disagreements; and whether there were any alternatives to dismissal. (Given the fact that the outcome was one of serious rather than gross misconduct we are not satisfied that Professor Murphy felt that it was sufficiently serious by itself to justify dismissal.)

[153]Other indications of a predetermined decision, which cannot have been confined to Professor Murphy given her late involvement, are the fact that the three complaints were assembled by or for Dr Lewis in the way described, after an interval of weeks or months. There is also the fact that her exclusion began hard on the heels of the failed mediation, i.e. her refusal to withdraw the GMC referral. All this combines to show that a decision had been taken to solve the problem caused by the dreadful atmosphere in the unit by removing Dr Macanovic. Page 41 of 43 Detriments

[154]It follows that the various detriments are also upheld, since it is only necessary to show that they were ‘materially influenced’ by the disclosures. Reviewing them briefly, the first five disclosures were all in late 2016 – the emails to Dr Lewis on 9 September, 17 September, and 3 October, and the allegations made to Mr Hunter, both in interview and later in writing on 17 October. By then the dispute was already highly contentious. We accept therefore that the subsequent detriments – the incident with Mr Graetz and the emotional email from Mr Gibbs the following January – were connected. The latter was expressly about her and her complaints.

[155]The further disclosures comprised the letters to the CQC and GMC, on 9 March 2017, together with her solicitors’ letter that day and on 29 March. All this was shortly before the three allegations of misconduct were assembled against her (Detriment 3), then the decision to initiate disciplinary proceedings (4) and Dr Lewis reading the terms of the GMC referral out at the consultants meeting (5). We accept that there was no need for her to cancel her clinic at short notice (6) but that was followed by the decision to exclude her from meetings (7) and later continue those restrictions (8). They followed the failed mediation and so were in the context of her refusing to withdraw her GMC referral.

[156]Given that the disciplinary hearing and process were in our view designed to remove her for making these disclosures, it follows that the various shortcomings were also materially influenced by them. That includes the review meeting in favour of proceeding to a disciplinary hearing (9), the failure to investigate allegations against her, i.e. singling her out (10), and the response by the Trust ‘s solicitors stating that her allegations were not made in good faith.

[157]In other respects the net has been cast too wide. Delays by Mark Cubbon do not seem to us attributable to the allegations. More likely it was simply a very difficult situation and there was some miscommunication (11 a and b). As already noted, there was no Powell Investigation Report (12) to disclose. The failure to resort to ADR (19) is also a difficult claim. A refusal to seek agreement is difficult to describe as a detriment, however desirable that might have been. Similarly we can understand why Mark Cubbon failed or declined to intervene in the disciplinary policy at the 11th hour, as requested (20).

[158]However there were then various departures from policy (14), including the lack of any real investigation into incident with Mr Graetz and the consultants meetings that day, which led to her being signed off sick for two weeks, the failure to consider alternatives to dismissal (16), the pre-judgment (18), and the offer to resign (21), all of which are in our view made out.

[159]Those are essentially housekeeping matters given our findings in relation to the dismissal. In closing, we repeat that the broad lines of this case were apparent at the outset and emerge clearly from the dismissal letter. The attempt to distinguish Page 42 of 43 Dr Macanovic’s conduct from the subject matter of her complaints was not apparent at the time, and cannot now be sustained. There is no doubt that Dr Macanovic could have raised her concerns more diplomatically and less personally. The terms of her referral to the GMC were bound to offend her colleagues, regardless of her justification or perceived justification. Nevertheless, it was established before this hearing started that she was entitled to take those complaints to the GMC and that, we are satisfied, was the main reason for her dismissal, not the manner in which she did so.

[160]Notice will be sent to the parties shortly of a case management preliminary hearing to give directions for a hearing on remedy. The outstanding costs application relating to a previous adjourned hearing can also be considered at that hearing.

Conclusions

[1]The claimant is awarded compensation for unfair dismissal in the sum of £186,697

[2]The claimant is awarded compensation for injury to feelings following unlawful detriments for raising protected disclosures in the sum of £33,000. Hence, the overall total due is £219,697

Introduction

[1]This hearing is to decide on the compensation to be awarded to Dr Macanovic. It follows several years of litigation which began in January 2018, shortly before her dismissal on 5 March 2018. At the liability hearing in November 2021 we found that she had been unfairly dismissed from her post in Hampshire as a consultant nephrologist. The principal reason for her dismissal was that she had made a series Page 1 of 21 of disclosures about a clinical technique known as buttonholing, and in particular had reported two of her senior colleagues to the GMC. We also found that she had been subjected to a series of detriments at work over a period of a year or more before her dismissal.

[2]At the start of this hearing, Mr Sutton KC, for the respondent, apologised to Dr Macanovic for the approach which the Trust had taken in relation to her case and for the harm caused. The Trust say that their Board has since commissioned a review from leading counsel to understand the lessons learned and that the findings made in that review were being percolated throughout the Trust. Procedure and evidence

[3]Another point raised at the outset concerned contributory fault. Throughout these proceedings the main argument on behalf of the Trust has been that Dr Macanovic was not dismissed for making protected disclosures but because of the way she went about it. In our decision on liability we rejected that argument very firmly, and we also rejected the argument that her compensation should be reduced to any extent because her behaviour caused or contributed to her dismissal.

[4]Mr Sutton KC referred us to section 49(5) Employment Rights Act 1996 which provides that when considering compensation for any detriment: “Where the tribunal finds that the act, or failure to act, to which the complaint relates was to any extent caused or contributed to by action of the complainant, it shall reduce the amount of the compensation by such proportion as it considers just and equitable having regard to that finding.”

[5]The terms of that section, he submitted, are mandatory and so ought now to be considered. As he noted, there was no detailed consideration of contributory fault at the last hearing; it was dealt with briefly at paragraph 150, in the context of the claim of unfair dismissal, and rejected on the basis that the Trust had not shown its reason for the dismissal.

[6]Mr Allsop objected that contributory fault is a liability issue, and that the claimant was entitled to regard it as concluded. Further, the Trust had not pleaded any reliance on section 49(5), and for that reason only it did not appear in the list of issues for the liability hearing.

[7]He also referred us to the Presidential Guidance on Case Management, under the heading Submissions on Pokey and Contributory Fault, which states at paragraph 19: “Generally the tribunal will decide these issues at the same time as it reaches its decision on the merits of the claim. Sometimes this will be done at a separate remedy hearing. The tribunal will usually explain at the start of the hearing which of those options it will Page 2 of 21 follow. If it does not then the parties should ask for clarification on when they are expected to give evidence and to make submissions on these matters.”

[8]We agree that this ought to have been raised and resolved at the liability hearing if it was felt that different considerations applied to the detriment claim. The wording of section 49(5), quoted above, is very similar to the wording at s.123(6) in relation to dismissal. It would in our view be wrong for the question of contributory fault to be dealt with as a liability issue for the complaint of unfair dismissal and for it to be raised as an issue of remedy in connection with the complaint of unlawful detriments.

[9]The agreed list of issues for the liability hearing was detailed, and followed two case management hearings prior to the three day preliminary hearing to decide whether the alleged disclosures were protected. The importance of adhering to lists of issues was reinforced by the Employment Appeal Tribunal in London Luton Airport Operations Limited v Levick

UKEAT/0270/18/LA

, which held that “Parties are entitled to expect that employment litigation will be conducted in accordance with issues which have been defined at a preliminary hearing. The list of issues can of course can be amended or augmented; but whether to do so is a matter of case management which should not be ignored.”

[10]Since the main liability hearing there have been two further case management hearings. This issue was not raised on either occasion. It was only raised in correspondence this month, after arrangements for this hearing were well advanced. In those circumstances we felt that there was a serious risk of unfairness to the claimant in allowing this issue to be reopened. The question of why working relationships at the Trust broke down so comprehensively was the broad underlying question we had to resolve at the last hearing. That involved hearing from ten witnesses for the Trust. It would not, we concluded, be right for us to start to unpick those findings on the basis of some further questions to Dr Macanovic alone. In any event, we saw no reason to revise or alter our previous conclusions.

[11]At this hearing we heard some further evidence from Dr Macanovic and from:(a) Mr Nigel Heilpern, her partner, who supported her through the discliplinary process and subsequent litigation; and

(b) Ms Rebecca Kopecek (Deputy Director of Workforce and Organisational Development), who advised the Trust during the disciplinary process.

[12]Mr Heilpern’s evidence supported that of Dr Macanovic about the emotional impact of her dismissal and about the way in which she had been treated by the Trust during the litigation process. Ms Kopecek’s evidence was mainly concerned with how a consultant’s salary can be increased with additional awards for Clinical Excellence and by extra sessions each week, or Programmed Activities. This was relevant to Dr Macanovic’s claim that she had lost out on some elements of her pay Page 3 of 21 following her move to a consultant’s role at Oxford University Hospitals NHS Foundation Trust. Her new employer has now agreed to match her terms with the Trust, and the only remaining difference is that she is doing slightly less in the way of Programmed Activities.

[13]During this hearing Dr Macanovic and the Trust were able to agree some figures for her loss of earnings covering the transition to her working at Oxford, and there is a remaining gap in connection with her slightly lower earnings over the last three and a half years. That gap has closed further more recently, and on that basis Dr Macanovic has withdrawn any claim for future loss beyond the end of this month, and with it her claim for pension loss; she remains in the same NHS pension scheme as before.

[14]The main remaining issues we have to decide comprise her claims for:(a) the costs incurred in relocating, some of which are also agreed,

(b) legal and other fees incurred prior to her dismissal (as losses attributable to her detriment claim),

(d) aggravated damages,

(e) an uplift for breaches of the ACAS Code,

(f) interest, and

(g) an uplift for tax payable over £30,000

[15]There was also a bundle of about 500 pages. Having considered this evidence and the submissions on each side, we made the following further findings, limited to those we need to make in relation to remedy.

Findings of Fact

[16]At the time of her dismissal Dr Macanovic was 49. She had been working at the Trust in Hampshire for 17 years, the last 13 of them as a consultant. We have already described her impressive career and the range of responsibilities she had taken on.

[17]On a personal level she was and is a mother to two children. Her partner, Mr Heilpern, has a residence in London, where he works during the week. They had between them bought a substantial property in the Meon Valley; a large, period home in a gated community, which meant that they could enjoy the grounds without any need of maintenance. (Having a full-time job as well as being the main carer for her children, Dr Macanovic had no spare time for such extra work). She Page 4 of 21 described it as her dream home, and it was bought with a view to her retirement. She intended to work at the Trust until she was 67, a further 18 years.

[18]That intention is clear to us from the determination she showed to remain in post despite the series of detriments she experienced in her last year of employment. During that period she was excluded from consultants’ meetings and carried on with her clinics as best she could. As we have already noted, she was invited to resign with a favourable reference at the disciplinary hearing and even then refused. From a practical point of view, dismissal was little short of disastrous. The Trust was the sole employer of consultant nephrologists in the area and it was almost inevitable that she would need to move house to get a similar post. There must have been the real risk that she could not find an alternative somewhere else, having been dismissed for serious misconduct. And moving house also meant uprooting her daughter, who had grown up in the area, and who had to move schools and leave all their friends behind her. (Her son at least was able to complete his education without moving.)

[19]But she did manage to find alternative work, and with impressive speed. The Trust accept that she took all reasonable steps to mitigate her loss of earnings, and indeed her loss could well have been very must greater. In June 2018 she began locum work in Acute Medicine at the Great Western Hospital in Swindon. It meant a long daily commute from her home in Hampshire, but she was earning again, and back in the NHS.

[20]By August she had secured a locum role in her own discipline, nephrology. This was with Oxford University Hospitals, working three days a week. On the other two days she carried on at Swindon. Then in June 2019, to her great relief, she was offered a permanent post at Oxford University Hospitals as a consultant nephrologist.

[21]Working at Oxford, even as a locum, meant that a daily commute was no longer viable. She put her house on the market in October 2018 and moved into rented accommodation near work. That cut down on the commuting and meant that her daughter could start a new school in Oxford at the start of the school year. Like her previous school, it was fee-paying, and the need to give a term’s notice at her old school meant the loss of a term’s fees. She rented that property for eight months, together with an adjoining parking space.

[22]By the following summer her purchase of a new house had gone through and they moved again. The new house was less expensive. It was also considerably smaller – a newly built terraced house with less than half the previous floor space. It needed new curtains. The old ones were far too long and had been made or ordered for much longer windows in a period home. Consequently they had been left in place for the new owner. She also needed some new furniture. Her old furniture was not a good match for the new house, and some of it was too big to get in, so it had been Page 5 of 21 sold off or given away. So, she bought a new dining table and chairs and a sideboard.

[23]In common with most Trusts, Oxford University Hospitals has a relocation policy and in appropriate cases will pay up to £8,000 for new joiners. It did not occur to Dr Macanovic that she might be eligible for such a grant, but recent correspondence from them suggests that she would have been eligible to apply within 12 months of taking up her consultant’s post, and might have been successful. It seems to us understandable that she was not aware of this, and did not enquire into it, given that she was transferring to them from a locum role at the same Trust. Accordingly we find no failure to mitigate her loss in that respect.

[24]The only difference between her current role and her previous one concerns the number of Programmed Activities (PAs). Without going into too much detail, a PA is generally a period of four hours, or three hours at nights and on weekends. A consultant working less than ten PAs a week is considered to be part-time. If they want to work more than ten, they can ask for extra PAs. While in Hampshire, Dr Macanovic had 11, and while at Oxford she had until recently 10.41 PAs a week. Recently, this has increased to 10.752 PAs per week in recognition of her on-call work, and this has been backdated to 1 April 2021.

[25]It follows that we are in the unusual position, nearly five years after this case began, of knowing how it all ended before assessing compensation. There is no need for any speculation about whether Dr Macanovic is going to get another job or what she will be earning. The financial impact of her dismissal can be assessed with some certainty, together with the emotional impact of the various detriments, and it should only remain to assess the extent to which the Trust is liable.

[26]However, the Trust also contended at this hearing that her compensation ought to be reduced on the basis that she would not have been able to continue working in Hampshire for very much longer, given the degree of animosity with her colleagues and her insistence on fighting over buttonholing. They point to the fact that about two years after she left them she was in contact with the wife of a patient who died, having undergone this procedure, as evidence that she would not leave things alone.

[27]We will deal with that broad, general point at the outset. As already noted, we previously concluded that no deduction should be made for contributory fault, on the basis that the real reason for her dismissal was not misconduct at all, and so there was no place for a deduction to reflect any misconduct on her part. Mr Sutton KC reminded us however there are various points in our judgement we made reflections upon the approach adopted by Dr Macanovic. He has set them out at paragraph 40 of his skeleton argument, and there are 23 in total. Without mentioning each, they include: Page 6 of 21(a) a reference to the poisoned state of departmental relationships,

(b) the distress felt by her colleagues at the failed mediation meeting,

(d) the accusation she made at a consultant’s meeting that Dr Sangala had lied about whether this practise was being conducted in Reading,

(e) a subsequent remark to him that she wished she could have intimidated him more,

(f) the extent of the accusations she made during the Hunter investigation about Mr Gibbs,

(g) her refusal to accept the CQC findings, and

(h) the referral letters to the GMC which alleged a cover up and that colleagues were guilty of lying and dishonesty.

[28]All of these points have been dealt with in our judgement on liability. Each has to be considered in context, which we have already explained, that a certain group of consultants in a senior position within the renal unit were intent on pursuing this technique, about which Dr Macanovic had serious concerns, on reasonable grounds, and where she felt that the risks were being ignored. Hence, she also raised concerns about the way the results were presented at conferences, the lack of investigation into at least one death of a patient undergoing this treatment and the lack of explanation of the risks to patients. Once again, she was not alone in her concerns. The consultant body were fairly evenly divided. She, however, went further than others, and where she believed that risks were being downplayed she did not hesitate to describe this as a cover up or an act of dishonesty. Most people would not use that language, and it did cause very serious offence, but it had a specific meaning. It was not a general slur.

[29]Mr Gibbs in particular was the subject of criticism. The GMC (at page 1593 of the original bundle) summarise the allegations against him as including(a) misleading the CQC (mainly for stating that “after about two years, no significant harm has been observed”);

(b) leading a campaign of bullying and vilification against her; and

[30]Those were the personal criticisms, and they are all in the context of the button holding controversy. The GMC found that: Page 7 of 21(a) His comments about button holding did not appear to be unreasonable given the explanatory text and the other information available at the time

(b) There was no evidence about bullying and vilification in the e-mail correspondence provided by Dr Macanovic;

(c) The information they had about information presented at conferences was limited and it could not be said on the balance of probability that Mr Gibbs had misrepresented outcomes.

[31]That ought not in our view to have led to an irretrievable breakdown in working relations. However upsetting it was for Mr Gibbs to be put through this process, Dr Macanovic had a professional duty to raise her concerns. It does not follow that these allegations were the result of personal hostility rather than that proper clinical concern. It is true that she was unwilling to accept these conclusions of the GMC, but it is the responsibility of the Trust to manage their staff. As we have already described, the Trust waited for the GMC report and then used it as the basis for disciplinary proceedings against Dr Macanovic. There was no attempt then at mediation. The only attempted mediation had been earlier, to prevent this being raised with the GMC at all.

[32]Another feature we have to draw out in laying this issue to rest is the dismissive approach taken by the Trust towards Dr Macanovic throughout. It appears to have been assumed by the most senior consultants in the team that she could not possibly be correct in what she was saying, and their view was adopted by more senior management without any real exploration. It was the view of Dr Lewis which formed the basis of the management case against her at the disciplinary hearing.

[33]We are now invited to consider what would have happened if Dr Macanovic had not been dismissed, and to conclude that her employment would not have lasted for very much longer in any event. Firstly, if that had been our view we would have considered it as part of our findings on liability, at the same time as dealing with contributory fault and Polkey. Secondly, in trying to reconstruct what would have happened if she had not been dismissed – the counter-factual position – it seems to us that we must consider things on the basis that none of the detriments occurred. That detrimental treatment, it seems to us, was predominantly responsible for the poisoned atmosphere within the department. Had there been an internal investigation which was open to the possibility that her concerns were valid, rather than merely inquiring as to the more senior people made of them, there would have been a good deal less frustration on her part and perhaps less of a polarising effect within the team.

[34]Fundamentally however, it is for the Trust to ensure that such disputes do not get out of hand. These points were raised with the GMC, who made their findings. At that point it ought to have been perfectly viable, whether through mediation or Page 8 of 21 otherwise, to ensure that working relationships continued to operate satisfactorily. We bear in mind that Dr Macanovic had put up with being excluded from consultants meetings for a lengthy period before the disciplinary process began, so on a dayto-day basis she was not making any difficulty for the management. We also bear in mind the points made earlier about her intention to remain in post in Hampshire until her retirement and to avoid at all costs the need to relocate at that stage in her career. In those circumstances we see no basis to reduce her compensation on the basis that she would have left through resignation by today’s date or by way of dismissal because of the breakdown of working relations.

[35]Turning to the detail, and before considering the applicable law, it may be helpful to set out in more detail those sums which have been agreed and which have not. There is a schedule of loss from the claimant and a counter schedule recording these points. Unfair dismissal

[36]We will start with the claim of unfair dismissal. As already noted, the calculation of the basic award is agreed at £11,736.

[37]There is no claim for breach of contract, but losses of £2,652.29 have been agreed to the end of her notice period. There is then a further shortfall for the period from 2 June 2018 to 1 June 2019, agreed in the sum of £5,916.28. This covers the period in which Dr Macanovic was working as a locum.

[38]The last period runs from the start of her permanent appointment at Oxford University Hospitals to the end of this month, a period of nearly three and a half years. It relates solely to the difference in PAs during that period. On the basis of the latest increase from Oxford University Hospitals, the figure for Dr Macanovic is put at £10,172.53. Of this, £2,025.64 is for the resulting loss of pension. The Trust say that extra PAs do not attract extra pension, so the correct figure is at most £8,146.89. That is the only dispute over loss of earnings.

[39]Then there are the relocation expenses. The Trust say that that liability ended at the point when the claimant decided to move out of a rental accommodation into the new home in Oxford. They say they should not be liable to pay for those extra costs.

[40]Some items have been agreed, as follows:(a) Travel expenses during her commute from Hampshire, of £2,931.30

(b) Rental payments of £17,000

(d) Royal Mail re-direction of £133.98 Page 9 of 21

(e) Additional school fees of £5,206.57

(f) Van hire of £71.38

[41]The items which remain in dispute are as follows:(a) The estate agents costs from the sale of the home in Hampshire, in the sum of £28,350

(b) Additional marketing costs of £834.78

(d) Storage costs of £2,437.60 – for which £1,040 is offered

(e) Removal expenses out of Hampshire into rented accommodation of £1,730 – for which £272.98 is offered

(f) Removal expenses out of rented accommodation into the new home in Oxford of £1,920

(g) Van hire of £604.80

(h) Furniture costs of £11.992.50

(i) Curtains of £11,313.50

[42]There is a further element to the claim, which concerns expenses said to have been incurred as a result of the detrimental treatment. They comprise:(a) Legal costs incurred prior to the issue of proceedings in the sum of £15,324

(b) Three days of medico-legal training prior to attendance at the GMC hearing in the sum of £1,147.20

(c) A medical legal report from a Professor Moist on the subject of buttonholing, which was presented as part of her response to the management case at the disciplinary hearing, in the sum of £2,720, and

(d) Travel and associated costs of £244.50 – presumably in connection with attending the training.

[43]Other outstanding issues relate to the ACAS Code of practice, injury to feelings, aggravated damages, interest and the effect of tax on the total. It will be more convenient if we deal with each of these aspects in turn, setting out the relevant law and our conclusions in sequence. Page 10 of 21 Loss of earnings

[44]The claim for the £8,146.89 for the pay gap to date is a claim for compensation resulting from the dismissal. By section 123 Employment Rights Act 1996, “ the amount of compensation awarded shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal insofar as that losses attributable to action taken by the employer.”

[45]Normally this is a straightforward calculation. If the new job pays less than the old job then the difference is recoverable. We accept however that she could have sought additional duties to match those at Hampshire so as to close the gap over time. Dr Macanovic’s position is that she is not seeking any increase due to being worn down by the litigation and her dismissal. She is happy as she is. In those circumstances the difference is more attributable to the mental and emotional toll of the process, which are not recoverable in a claim of unfair dismissal, rather than the availability of hours. That view is reinforced by the fact that her claim for ongoing losses is not pursued beyond the end of this month, and on that basis this head of claim is not allowed. Removal Costs

[46]Turning to the disputed costs of moving house, Dr Macanovic had a duty to mitigate her loss. Section 123(4) provides that in calculating the employee's loss, tribunals shall apply 'the same rule concerning the duty of a person to mitigate his loss as to damages recoverable under the common law'.

[47]In the employment context this normally involves no more than making reasonable efforts to find alternative employment. But here, Dr Macanovic had to go to considerable expense in finding that employment. The normal rule is that the burden is on the employer to show that an employee has failed to mitigate her loss. Although we were not addressed specifically on this point, it seems to us that the burden remains on the employer to show that any such expense was unreasonably incurred.

[48]On any view however, we accept that she needed to move house in order to find an alternative post over the longer term and so the reasonable costs of doing so are recoverable. Mitigating her loss also involved finding suitable long term accommodation, i.e. buying another house. It is not clear to us why the Trust have taken the view that her losses ended once she has found suitable alternative rental accommodation, particularly as they have agreed to pay eight months of those rental costs. If she had not moved out of that rental accommodation then, it is difficult to understand where they would propose drawing the line. Anyone who has owned their own home will want to avoid a return to renting, and had Dr Macanovic been in a position to move directly to a comparable house in Oxford these extra Page 11 of 21 rental costs would have been avoided. No doubt that cost was very unwelcome at the time. But she needed to take up her new post without delay and so that was not possible. In those circumstances the reasonable costs of the next stage, of moving from her rental accommodation into her new home, also seemed to us recoverable in principle.

[49]We note too that not everything claimed is receipted but that is not a bar to recovery. We have already found that Dr Macanovic is a credible witness. By way of example, she has provided quotes for removal services but no evidence of payment although we are happy to accept that she went ahead with those quotes.

[50]Taking each element in turn, the estate agents costs are allowed. This represents 2.5% of the sale price of the former home, which was the price agreed for a joint instruction, i.e. she went with more than one agency in order to ensure a good price and a quick sale. We heard no evidence about typical rates but that matches our expectations. It is quite possible that Dr Macanovic could have spent less on estate agents but then perhaps more on rent. Applying the principle that it is for the respondent to show that any particular cost is unreasonable, we see no reason to discount this element, however large it may be.

[51]The same considerations apply to the additional marketing costs, the legal costs of the sale, the storage costs, removal costs and van hire. All seem reasonable in amount and reasonably incurred, or at least the contrary has not been shown.

[52]The main item of challenge concerned furniture and curtains. These are each substantial sums. There is a risk here of a degree of betterment in replacing older items with new ones.

[53]For the curtains, we accept Dr Macanovic’s evidence that the previous curtains were adapted for the former home and we’re much too long. Consequently they were left in the home in Hampshire and new ones bought from John Lewis. Although the total cost amounted to £11,313.50, individual items are typically for a few hundred pounds. The only misgiving we have is that the old curtains would have added to the purchase price of the former home and that credit should be given for this. The value of old curtains may be modest and on that basis we discount the sum claimed by £2000, in what is inevitably a broad brush approach.

[54]We take the same approach in respect of the furniture. Again, we accept Dr Macanovic’s evidence that some of her old furniture had to be discarded because it was too big for the new property or simply unsuitable for a new build home, and she got no money for it; in fact she had to pay Oxfam to take it away. Nevertheless this is a considerable outlay of £11,992.50 for a sideboard, dining table and six chairs. Making every allowance for the high standard of furnishing previously enjoyed, there seems likely to be some degree of betterment here, and we deduct a further £2000 on that basis. Page 12 of 21 Legal and other expenses

[55]Section 49 (2) provides that the tribunal may make an award of compensation for such loss as is attributable to the infringement, and 49 (3) provides that this loss shall be taken to include “ any expenses reasonably incurred by the complainant in consequence of the act, or failure to act, to which the complaint relates.”

[56]It follows that there needs to be a close connection between the expense and the complaint. A more typical example would be an employee who suffers the detriment of being moved to another place of work and incurs additional travel expenses. Here the expenses relate to legal costs, a professional report and additional training.

[57]The first objection to a claim for legal costs is that separate rules apply to costs and they are not generally recoverable. There is no exception for pre-action legal costs. Indeed in Health Development Agency v Parish

[2004] IRLR 550

Lord Justice Mummery concluded that pre-action costs could be recovered, once costs protection was lost. They are therefore part and parcel of the costs regime. An expert report prepared for the purposes of litigation would also normally fall within the scope of such costs.

[58]More fundamentally however, none of these expenses appear to us to have been incurred in consequence of the detriments in question. The expert report and training costs were incurred in the course of Dr Macanovic’s efforts to challenge the practise of buttonholing at the Trust and to bolster her case, not in response to the verbal abuse she received, for example, or the email urging staff to take sides against her, or in consequence of her exclusion from meetings. It might be argued that the legal costs were an attempt to respond to those measures, since her solicitors raised the fact that she was a whistleblower, but that response still seems to us too general to fall within this definition. Accordingly, these elements are not recoverable. Injury to feelings

[59]The general guidelines that apply to compensation in discrimination claims were set out by the Court of Appeal in Vento v Chief Constable of West Yorkshire Police

2003 ICR 318

, CA. These guidelines provide for three broad bands:(a) a top band applicable to the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment;

(b) a middle band applicable to serious cases that do not merit an award in the higher band; and Page 13 of 21

(c) a lower band applicable to less serious cases, such as where the act of discrimination is an isolated incident or one-off occurrence.

[60]The President of the Employment Tribunals issues periodic guidance on the appropriate award in each Vento band, and the most recent applies to for claims submitted after 6 April 2018. This provides that:(a) awards in the lower band should fall between £800 to £8,400;

(b) awards in the middle band should fall between £8,400 to £25,200; and

(c) awards in the upper band should fall between £25,200 to £42,000, with the most exceptional cases capable of exceeding that upper limit.

[61]In Virgo Fidelis Senior School v Boyle

2004 ICR 1210

, EAT, the Employment Appeal Tribunal held that it was appropriate to adopt the same approach to compensation in whistleblowing detriment claims as has been taken in discrimination cases.

[62]Unlike in discrimination cases however, compensation can be awarded for detrimental treatment up to the point of dismissal, but not for the dismissal itself. That may seem illogical, but workers are entitled to bring a complaint of such detrimental treatment without being dismissed or resigning, and in those circumstances the only remedy generally available to a tribunal is to make an award for injury to feelings. The law on unfair dismissal however, which is of older origin, has always excluded any such award in dismissal cases. These two different approaches therefore have to be reconciled and the main question here is where to draw the line, particularly as many of the detriments relate to the dismissal procedure.

[63]Section 47B(2) provides that the right not to be subjected to a detriment does not apply where the detriment in question amounts to a dismissal. Dismissal is given the same definition under Part X of the Act, and so includes constructive dismissals. We were referred to the case of Melia v Magna Kansei Ltd

2006 ICR 410

, CA on this issue, a case involving a constructive dismissal complaint. Chadwick LJ observed: “The tribunal could not award within compensation for unfair dismissal a sum of money to reflect the injury to feelings or even psychiatric damage caused by the manner, still less the fact, of that dismissal”.

[64]In Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2012] 2 A.C. 22 per Lord Dyson JSC at para.40, it was held by the Supreme Court that: “The manner may be unfair because it was done in a humiliating manner or because the procedure adopted was unfair, inter alia, because the agreed disciplinary procedure which led to the dismissal was not followed. Page 14 of 21

[65]Hence, the “manner” includes the procedure followed. That case involved a consultant surgeon disciplined for an inappropriate examination of a female patient. Mr Edwards complained about the failure of the trust in that case to adhere to its disciplinary policies and also about the composition of the panel which dismissed him. None of that was held to give rise to any entitlement to damages for injury to feelings; it all came within the scope of the manner of his dismissal. That reflected the clear statutory intention to limit the scope of claims for unfair dismissal. Those limits also included strict time limits and financial limits on the amount of compensation which can be awarded. It was held that claiming damages for the manner of the dismissal as a separate breach of contract would be an impermissible attempt to circumvent these limits. That decision is of the highest authority and it relates to a similar case, i.e. one of actual dismissal. In those circumstances we conclude that some of the detriments do not sound in damages. These are mainly those which were criticised at the last hearing as being essentially fairness points.

[66]It may assist to summarised the detriments which were upheld at this stage. They were as follows:(a) Detriment 1 involved the e-mail from Mr Gibbs to the consultant body urging them to take sides against Dr Macanovic,

(b) Detriment 2 involved the verbal abuse from Mr Graetz,

(c) Detriment 3 involved the assembling of complaints from Mr Gibbs, Dr Sangala and Doctor Nevolls which furnished the basis for the disciplinary allegations,

(d) Detriment 4 was the decision to initiate the disciplinary investigation,

(e) Detriment 5 involved D Lewis reading out loud to the consultant body the terms of Dr Macanovic’s referral to the GMC,

(f) Detriment 7 involve her exclusion from consultants meetings,

(g) Detriment 8 involved the refusal to lift those restrictions in September 2017,

(h) Detriment 9 involved the decision to initiate the disciplinary proceedings at the review meeting,

(i) Detriment 10 involved the failure to include the conduct of others in the investigation,

(j) Detriment 13 concerned the response from the solicitors for the Trust to complaints about the process,

(k) Detriment 14 involved the Trust’s failure to follow its own disciplinary and whistleblowing policies, Page 15 of 21

(l) Detriment 16 involved refusing to consider ADR before the hearing,

(m) Detriment 18 involved the prejudgment of the disciplinary decision,

(n) Detriment 21 involved the offer made at the disciplinary hearing for her to resign.

[67]Having reviewed the guidance in Edwards, we conclude that all those detriments from and including detriment 9 - the decision to proceed to a disciplinary hearing - come within the manner of the dismissal and so no award of injury to feelings can be made. (Parliament has however provided a remedy for defective procedures at section 207A of the Trade Union & Labour Relations Consolidation Act 1992, where there has been a breach of the ACAS Code of Practice, considered below.)

[68]How much then to award for detriments 1 to 8? These are significant and damaging events. We heard that Dr Macanovic had to seek medical help after the verbal assault by Mr Graetz. After the consultant’s meeting that day she was signed off sick for two weeks. After Dr Lewis chose to read out the terms of her referral to the GMC, she was left shaken. The exclusion from subsequent consultants meetings’ was itself a significant personal and professional slight but it also made it obvious to her colleagues that she was persona non grata within the department. That degree of exclusion must have taken a significant toll on her. It undermined the whole basis of her role as a respected and trusted clinician, working as part of the team.

[69]We remind ourselves that the purpose of such an award is compensation rather than to punish the employer. No specific cases were cited to us on similar facts, and these are very unusual facts. Most employees might have resigned long before matters reached this degree of isolation and exclusion. Mr Allsop urged us to place this in the upper band, whereas Mr Sutton KC submitted that the middle of the middle band was the maximum applicable.

[70]The main question is how much effect it had on Dr Macanovic. There is relatively little medical evidence to show a significant or lasting effects, reflecting her resilience, and so we did not feel it appropriate to place this in the upper band. Her own evidence included details of the demoralising effect of all this, but it was all in the context of her dismissal. Trying to strip out that aspect from the whole is no easy task, even for the victim.

[71]We take the view that this is a serious case involving a lengthy series of detriments which might fairly be described as a campaign of harassment. The top of the middle band is £25,200. We concluded that a figure towards the top of that band would be appropriate.

[72]We took into account the totality of the award and the potential application of uplifts for breach of the ACAS Code and aggravated damages. Anticipating our conclusions on those points, we made no award of aggravated damages and a 10% uplift in Page 16 of 21 respect of the ACAS Code, so there is no reason to revise our view that an award towards the top of the middle band is appropriate.

[73]We also have to take into account interest. In Virgo the Employment Appeal Tribunal held that as far as possible compensation for injury to feelings in cases like this should be the same as those for discrimination cases (paragraphs 45 and 48). The upshot was that in assessing the amount of the compensatory award, and by extension any award for injury to feelings, account should be taken of the loss of value of the award over the passage of time. Had this been an award for discrimination, interest would have been awarded at 8%. Over the period in question, which is now nearly five years, an award of interest on an award of £24,000 would be slightly over £9,000. On that basis we assess this overall head of loss at £33,000, making that notional allowance for interest. Aggravated damages

[74]This award can be further bolstered by an award of aggravated damages in certain circumstances. Such damages are not intended to be punitive but to set out under a separate heading the effect of injury to feelings caused by aggravating features of the case attributable to the employer. Consequently only those detriments for which an award of injury to feelings can be made are capable of being aggravated.

[75]The main points raised by the claimant under this heading are:(a) the way in which the Trust operated its internal procedures,

(b) the letter from its solicitors at detriment 13 disputing that she had a reasonable belief in her disclosures,

[76]The first two are not covered by applicable detriments and we accept that the Trust has now made an apology, and has sought to learn lessons from this episode. Accordingly, we find no basis for an award any aggravated damages. The ACAS Code

[77]The next issue concerns the application of the ACAS code. Tribunals are required to have regard to this in considering fairness. It sets out principles for handling disciplinary procedures in the workplace including the need to:(a) establish the facts of each case

(b) inform the employee of the problem

(d) allow the employee to be accompanied at the meeting

(e) decide on appropriate action, and

(f) provide the employee with an opportunity to appeal.

[78]Mr Sutton submitted that the Code was of no application because the real reason for the disciplinary process was (as found) the making of the disclosures rather than any actual misconduct. Thus, although he did not describe in those terms, the Trust should be entitled to take advantage of its own default.

[79]That proposition is based on two cases. In Holmes v QinetiQ Ltd, [2016] I.C.R. 1016 Simler P. held that: “In other words, the Code applies to all cases where an employee's alleged actions or omissions involve culpable conduct or performance on his part that requires correction or punishment. Where there is no conduct or performance on the part of an employee that requires correction or punishment giving rise to a disciplinary.”

[80]In Ikejiaku v British Institute of Technology Ltd, the Employment Appeal Tribunal held that the disciplinary procedure aspects of the Code did not apply to a dismissal on the ground of a protected disclosure, as such a disclosure cannot properly be a ground for disciplinary action.

[81]However, that case concerned someone who was dismissed on purported grounds of redundancy the day after making a protected disclosure. There was no attempt to invoke the disciplinary process. The key point, it seems to us, is whether or not disciplinary allegations were made and a disciplinary process followed. If so, the failure to conduct it in accordance with the Code may result in an uplift. We note too that Dr Macanovic succeeded in her claim of unfair dismissal on ordinary principles, independently of her claim to be a whistleblower, and it would be wrong for her to receive less compensation as a result. Accordingly, we conclude that the Code does apply in this case.

[82]Given that view, the Trust also submitted that a deduction should be made on account of Dr Macanovic’s failure to appeal. We have already concluded on the last occasion that it was perfectly understandable for her not to do so given the predetermined nature of the outcome, as revealed by the offer to resign and the close involvement of the handful of more senior personnel in arranging the disciplinary hearing. We make no such deduction.

[83]Mr Allsop on the other hand submitted that the Trust were in breach in two particular respects: Page 18 of 21(a) Dr Macanovic was not given sufficient information about the alleged misconduct to answer the case against her at the disciplinary hearing, contrary to paragraph 9, and

(b) Paragraph 18 provides that after the meeting the employer should decide whether or not disciplinary action is justified, whereas in this case the decision was made beforehand.

[84]Again, we have already noted the vagueness of the allegations and the difficulty that gave rise to in providing evidence in response. The need to make a decision after hearing from the employee is arguably a description of the sequence of events, but the terms of the Code seemed sufficiently clear to cover a predetermined outcome, and this is perhaps the key aspect of fairness in the process. On that basis, and having regard to the totality of the award, we apply an uplift of 10%. This augments the losses for unfair dismissal only. It would be illogical to increase the award of damages on this basis for the detriments, since those detriments all took place before the disciplinary process began and were unconnected with it. Interest

[85]A final point concerned the availability of interest on damages for unfair dismissal. In a discrimination case interest is awarded on financial and non-financial losses alike. Mr Allsop submitted that the same approach should apply here, adopting the principle in Virgo, that the same treatment should be applied in whistle blowing as in discrimination cases. The point was considered in detail in Melia at paragraphs 38 to 42, which supported that view.

[86]However, that decision rested on the fact that the tribunal discounted future losses for early receipt. It was therefore only fair to increase the award for interest on past losses: “43. It may be necessary, in a future case, to consider whether that approach should be adopted in circumstances in which the tribunal is not also awarding compensation for future loss. But in the present case the unfairness of the employment tribunal’s approach is very striking; and it seems to me, that was an unfairness which the appeal tribunal were entitled to redress.”

[87]This is not a case involving future loss, let alone one where those losses were discounted for accelerated receipt, and given the lack of any statutory basis to award interest in unfair dismissal cases, we must decline to do so. The just and equitable test does not provide a gateway generally for the award of interest in such cases. Calculations

[88]The relevant figures for compensation are as follows: Page 19 of 21 Unfair dismissal The basic award is £11,736.00

[90]The compensatory award comprises:(a) Loss of earnings £8,568.57

(b) Agreed relocation costs £28,649.23

(d) Loss of Statutory Rights £500.00 The total is therefore £95,310.58

[92]Hence, the total award for unfair dismissal is £107,046.58 To this has to be added a 10% uplift: £10,704.66 Amended total £117,751.24 Detriment claim The award for injury to feelings is £33,000.00

[96]Hence, the total award for unfair dismissal and detriments, pre-tax, is £150,751.24 Grossing up

[97]The final stage is to increase this sum to ensure that, after tax, the same net amount is received. After giving these reasons verbally on the day of the hearing, the parties asked for time to carry out the necessary calculations in detail and have agreed that the total amount due, after grossing-up for tax, is £219,697, i.e. an additional £68,945.76

[98]The award for the detriments is unaffected by tax and so the two elements can be broken down as follows:(a) compensation for unfair dismissal in the sum of £186,697

(b) compensation for unlawful detriments in the sum of £33,000