Mr S Colbert v Royal United Hospitals Bath Foundation Trust: 1402099/2021 and 1400624/2024

EMPLOYMENT TRIBUNALS

Case No 1402099/2021, 1400624/2024

Between

Mr S ColbertClaimant

Royal United Hospitals Bath Foundation TrustRespondent

Before

Regional Employment Judge Pirani

Mr Brockley (instructed by counsel) for claimant

Miss Stanley (instructed by counsel) for respondent

Date 30 May 2025

JUDGMENT

[1]The claims for unfair dismissal, wrongful dismissal, victimisation, detriments done on the ground that the claimant made protected disclosures, and automatic unfair dismissal (dismissal for reasons that the claimant made protected disclosures), do not succeed and are dismissed.

[2]The claim for harassment related to race was dismissed on withdrawal. 1 of 101

REASONS

[1]The respondent is an NHS Foundation Trust which provides acute treatment and care for the population of Bath and the surrounding towns and villages. The claimant was employed by the respondent from 2015 until 19 October 2023. At the time of the claimant’s dismissal, he was employed as a Consultant in Oral and Maxillofacial Surgery.

[2]Although the claimant has brought four claims in the Employment Tribunal, this hearing concerned just two of them. They are the first (1402099/2021) and third claim (1400624/2024). The first claim was received at the tribunal on 7 June 2021 and the dates on the relevant ACAS early conciliation certificate are 30 and 31 March 2021. That claim is for victimisation and detriments done on the grounds of qualifying disclosures. The third claim was received at the tribunal on 15 March 2024. The dates on the ACAS early conciliation certificate for this claim are 17 January until 19 February 2024. The causes of action relied on in the third claim are unfair dismissal, automatic unfair dismissal because of qualifying protected disclosures, wrongful dismissal, detriments done on the grounds of qualifying disclosures, victimisation, and harassment related to race.

Issues

[3]An agreed list of issues for both claims is at the Annex to this judgment. It was also clarified, at a previous case management preliminary hearing, that this substantive hearing would deal with liability, Polkey and contribution only. The protected disclosures relied on are referred to as “PD” with the corresponding number. PD4 was withdrawn on 17 March 2024. Harassment related to race was also withdrawn during the hearing. Documents and witnesses

[4]The tribunal was provided with an agreed bundle which ended at page 1748. We were also provided with additions to the bundle throughout the course of the hearing by both parties. We took the view, in accordance with the overriding objective and the interests of justice, that the additional documents should be admitted. In all but one instance the documents were submitted by agreement. The additional bundles were numbered as follows: S (1749-1794), A (8 pages), B (6 pages), C (6 pages), IB (44 pages), D (5 pages), E (2 pages), F (29 pages), and G (4 pages). Some of the pages in the supplemental bundles were 2 of 101 duplicates of those in the main bundle. The bundle was not in chronological order, making it much harder for both the panel and counsel to navigate it.

[5]The claimant made a late application to rely on a statement from Lynne Howes which was given to the respondent after an already delayed mutual date of exchange. The claimant’s representatives said that since the recent late disclosure of the unredacted Atkinson report, on 30 January 2025, they had difficulty preparing for this claim. The statement provided was said to be relevant to the allegations against the claimant and, in particular, goes to redactions not previously known to the claimant. The respondent objected to the late admission of the statement. Among other things, they pointed to the importance of compliance with case management orders, the fact that there were previous extensions to the date of exchange and said its admission may impinge on the Tribunal timetable. The panel determined that it was in the interests of justice and in accordance with the overriding objective to permit the claimant to rely on the statement. It was clearly relevant to the issues and the prejudice to the respondent was minimal as they would have sufficient time to prepare and crossexamine. We also took into account that parts of the statement were in response to late disclosure. Although the statement was exchanged after the claimant had seen the respondent’s statements it does not appear to be written in response to those statements.

[6]On 24 March 2025 the respondent made an application to produce two letters to and from Mrs Howes. The letters are dated 11 August and 11 September 2021. The claimant argued that the documents were not relevant as they did not pertain to the claimant. We determined that the documents were potentially relevant to credibility and reliability. We also noted that the claimant and Mrs Howes had plenty of time to prepare for questions about them. Accordingly, we determined that it was in accordance with the overriding objective and in the interest of justice to admit the documents to evidence in bundle G.

[7]For the claimant, we heard from the claimant himself and Lynne Howes. For the respondent, we heard from the following witnesses: Liz Cunningham, Jon McFarlane, Louisa Hopkins, Simon Atkinson, Bernie Marden, Graeme Tremblett-Willis, Claire Radley, Alfredo Thompson, Andrew Felstead, Chris Dyer and Libby Walters. The respondent also provided a written statement from Maggie Bruniges and invited us to read it although they did not call her as a witness. Because Ms Bruniges was not available to be cross examined we decided that it would be unfair to take it into account and therefore excluded it from our deliberations.

Findings of fact

[8]We made the following relevant findings of fact on the balance of probabilities. Some of our findings on disputed issues are dealt with in the conclusions section. 3 of 101

[9]The claimant was appointed as a consultant in oral and maxillofacial surgery (OMFS) at the respondent on 14 September 2015. At this time, the clinical lead for OMFS was Tony Ireland. Jon McFarlane was head of the surgical division and, in that role, was responsible for overseeing all surgical specialities including those at OMFS. In July 2019 Derek Robinson took over from Mr McFarlane. The claimant was appointed as clinical lead of OFMS in 2017. Prior to the claimant’s appointment in 2015 Andrew Felstead, who joined the Trust in 2012, was the sole consultant in OMFS. Bernie Marden was appointed as the Trust’s medical director on acting up basis in December 2017 and was then made permanent in early 2018. Dr Marden was therefore the senior professional lead for doctors at the Trust dealing with operational advice and strategy. He was also the responsible officer and had direct responsibility for appraisals and revalidations.

[10]Policies: Although the Trust has a whistleblowing policy it does not form part of the factual matrix in this case and was not included in the bundle.

[11]The Trust’s code of expectations for employees supplements codes of conduct and standards of behaviour as defined by relevant professional bodies. According to the said code, employees are expected, at all times, to deal respectfully with all patients, public and other employees. Aggressive, abusive, rude, threatening or violent behaviour will not be tolerated. The code also includes examples of gross misconduct. Such examples are said to include abusive behaviour towards an employee as well as unauthorised covert surveillance.

[12]The Trust has a bullying and harassment policy. It makes reference to Code of Expectations of Employees and sets out the values and expected behaviours of conduct from all Trust employees.

[13]The ‘Trust Values’ are said to be “Everyone Matters, Working Together, Making a Difference”. Within that heading, reference is made to communicating clearly, openly, honestly, sensitively and in a timely way. Under the heading “everyone matters” reference is made to being friendly and polite as well as valuing and having respect for others.

[14]The bullying policy provides that all employees have the right to be treated with consideration, dignity and respect, and that bullying and harassment will not be tolerated by the Trust in any form. It states that bullying may be characterised as offensive, intimidating, malicious or insulting behaviour or an abuse of authority through means intended to undermine, humiliate, denigrate or injure the recipient. Examples are said to include: undermining an individual’s self-esteem by condescending, patronising or threatening behaviour; unfair and destructive criticism; and, undermining an individual’s self-esteem by condescending, patronising or threatening behaviour. 4 of 101

[15]The Managing Conduct Policy provides a process for the management of misconduct matters in the Trust. Among other things, it deals with suspension and exclusion from work duties. It also provides a framework for disciplinary procedures as well as further definitions of misconduct and gross misconduct.

[16]In December 2003, the Department of Health issued the document Maintaining High Professional Standards in the Modern NHS; a framework for the initial handling of concerns about doctors and dentists in the NHS. Local trust procedures for handling an individual’s conduct must reflect the framework set out in that document.

[17]That document also makes reference to formal exclusion and provides that it: may only take place after the case manager has first considered whether there is a case to answer and then considered, at a case conference, whether there is reasonable and proper cause to exclude. The National Clinical Assessment Authority (NCAA) must be consulted where formal exclusion is being considered. If a case investigator has been appointed he or she must produce a preliminary report as soon as is possible to be available for the case conference.

[18]In early October 2017 the claimant raised concerns regarding Mark VardonOdonkor, an associate specialist and clinical lecturer in oral surgery. These concerns were initially raised with the medical director and divisional manager for the surgery division. Mr McFarlane then met with the claimant on 11 October 2017 to discuss his concerns. The meeting was followed up by an email sent from the claimant to Mr McFarlane on 16 October 2017. The email summarised the claimant’s concerns. They concerned what was said by the claimant to be aggressive behaviour, disrespect, bizarre behaviour and not being a team player. In addition, the claimant referred to what were described as patient safety concerns. This related to “charting the wrong teeth” on the consent form for a child operated on the week before. According to the claimant, junior doctors told Mr Vardon-Odonkor three times before it registered and the change was then made.

[19]At around the same time, Laura MacDonald, the divisional manager for the surgery division, emailed a file note to the medical director on 8 October after a meeting on 6 October 2017. The note references the escalation of the matter to the medical director as it was felt there were grounds for suspension due to capability/ill-health. Next steps were listed as including for Mr McFarlane to contact the National Clinical Assessment Service (NCAS) about the appropriate basis of any investigation (1201).

[20]Mr McFarlane then met with Mr Vardon-Odonkor on 25 October 2017 together with an HR business partner. At this meeting Mr Vardon-Odonkor was informed that serious concerns were raised regarding professional competence which may be related to health. Mr Vardon-Odonkor provided his initial responses to four allegations discussed at that meeting. Included in those responses was the 5 of 101 fact that he had some personal issues with his clinical lead, the claimant. It was confirmed that a preliminary investigation would be undertaken in relation to four allegations said to have taken place between August and October 2017. During the investigation Mr Vardon-Odonkor was not permitted to perform any operative procedures.

[21]At this time, and during the investigation, the claimant remained Mr VardonOdonkor’s line manager. The claimant was also asked to oversee his practice despite Mr Vardon-Odonkor’s objections. Mr Vardon-Odonkor expressed concern that that claimant had “an obvious conflict of interest” and was someone about whom he had previously complained. In an email to Mr McFarlane, Mr Vardon-Odonkor said that, in his view, he had been referred to Mr McFarlane not because of any concerns about the safety of patients, but because he had previously told the claimant that he found his behaviour unacceptable.

[22]The claimant also says that he made a verbal disclosure to Mr McFarlane in December 2017 in similar terms, namely that he believed that Mr VardonOdonkor’s practice was endangering patient safety, on the basis that he was undertaking a number of acts which, if true, constituted professional negligence (PD1 in claim 1). Although Mr McFarlane accepts that the claimant said and wrote similar things, his evidence was that there was no such further verbal discussion in December 2017. The dispute is one of timing only, as Mr Mcfarlane accepts that the issues were raised with him on 11 October which were then followed up in writing on 16 October 2017.

[23]The claimant refers, in his statement, to a request by Mr McFarlane to confirm staff concerns to him by email after “formally” raising these issues with Mr McFarlane in December 2017 (paragraph 7). The emails referred to in the claimant’s statement (paragraph 7) whereby he forwards staff concerns are dated 31 October 2017 and 1, 6 and 7 November 2017. These therefore all predate the alleged discussion in December 2017. We were not taken to any document where the disputed December 2017 disclosure was first raised. It appears in the first claim form at paragraph 5.

[24]We conclude, on the balance of probabilities, there was no such further verbal complaint made to Mr McFarlane by the claimant in December 2017. It is out of kilter with the surrounding documents.

[25]An investigation outcome meeting was held by Mr McFarlane with Mr VardonOdonkor on 30 May 2018. This was followed by a letter to Mr Vardon-Odonkor dated 7 June 2018. The findings of the preliminary process were reviewed by Mr McFarlane, NCAS (now Practitioner Performance Advice - who provide expertise to the NHS on resolving concerns fairly) and the Trust’s decision making group in March 2018. Of the now seven allegations dealt with, it was decided there was not sufficient evidence to support three, but four of the allegations were proceeded with under the Trust’s conduct policy. These 6 of 101 included displaying “unprofessional behaviour” in front of a patient to a dental nurse colleague. Another of the allegations proceeded with involved failing to act in line with Trust “values and behaviours”. This included allegations that staff found him rude and aggressive.

[26]The sanction applied was an informal warning to remain on file for 12 months. Further recommendations included signing a behavioural contract (which was refused by Vardon-Odonkor) and participation in formal mediation with the claimant. The letter noted that the investigation team recognised the relationship difficulties between Mr Vardon-Odonkor and the claimant.

[27]During the outcome meeting Mr Vardon-Odonkor again expressed concern about the claimant. Mr McFarlane assured Mr Vardon-Odonkor in the meeting, and in the subsequent letter, that the investigation team considered his relationship with the claimant and found no evidence of the claimant pressurising staff to raise allegations against him. Accordingly, Mr Vardon-Odonkor was “strongly advised” to consider mediation with the claimant to rectify their working relationship.

[28]Due to the confidential nature of the investigation process the detail of the investigation outcome was not shared with the claimant. Nonetheless, the claimant was informed of the recommendations which concerned him.

[29]Unfortunately, the mediation process was not successful. It dragged on for some time and, by June 2020, the mediator expressed the view that there was no point in trying to proceed. Mr Vardon-Odonkor complained to Mr McFarlane on 4 June 2020 that the claimant had cancelled a mediation arranged for the day before. He said the meeting had been proposed two weeks previously after the claimant cancelled an earlier meeting. Subsequently, Mr McFarlane emailed the claimant on 16 June 2020 expressing disappointment that he had not fully engaged in the process. The claimant replied saying, among other things, he was awaiting a response from the mediator regarding the ongoing process. He then set out a detailed timeline. According to the email the claimant had not received a response regarding a potential date in June.

[30]Subsequently, Mr McFarlane spoke to the mediator about the process. Mr McFarlane was informed, rightly or wrongly, that it was the claimant who was not engaging sufficiently with the process.

[31]Moving back in the chronology, in January 2019 the claimant undertook 360° feedback analysis. Fifteen people took part, all of whom rated the claimant outstanding as a team player. Thirteen rated him outstanding for leadership. His average rater score for all categories outscored the average rater for his speciality. The comments included that the claimant “has always shown professionalism with a genuine empathy and care for his patients and staff alike”. Another commented that the claimant was “an excellent team player who is 7 of 101 actively involved in all aspects of the maxillofacial surgery”. One wrote that the claimant was “incredibly patient and understanding with colleagues of all levels, sets an example of how to work with and manage a team”.

[32]A meeting to discuss departmental issues took place on 3 May 2019. Present were the claimant, Nicky Ashton, the Divisional Director of Operations, and Stuart Gillett, a Consultant ENT Surgeon. On 21 May 2019 Mr Gillett sent the attendees a summary of the meeting. Ms Ashton explained there was a general upset within the Department including episodes which left a number of staff members very upset. Reference, in particular, was made to a meeting at which Natalie Gillett, the Deputy Specialist Manager in ENT and Ophthalmology, felt she was not listened to, was spoken over and left feeling very upset. During the meeting the claimant explained that he was not aware that Ms Gillett was upset. Ms Ashton asked the claimant to consider his approach to other staff as it had been mentioned that it could be seen as “threatening”. It was also noted that it could appear that the claimant did not listen always or was “inclined speak over people”. The email summary goes on to say that Mr Gillett noted that the claimant’s attitude towards him during the meeting itself was an example of this.

[33]In August 2019 Mr Gillett emailed Mr Robinson following a meeting which took place 14 August. Mr Gillett complained that the claimant repeatedly talked over him and refused to answer questions. Mr Robinson then met the claimant on 16 October 2019. In a follow-up email, sent to the claimant on 30 October 2019, Mr Robinson explained to the claimant that he would like to see a “demonstrable” improvement in relations between the claimant and both Mr Gillett and Ms Gillett (they are not related). He also went on to say that the issues in relation to Mr Vardon-Odonkor were “complex” and that Mr Vardon-Odonkor had requested a change in management because he did not think he was being treated fairly.

[34]During a clinical governance meeting, which took place on 8 January 2020, the claimant explained that a complaint had been made in relation to an orbital floor fracture operation undertaken by Mr Felstead. Mr Felstead was not present at the meeting and his apologies were noted. The claimant went on to say, as is recorded in the minutes, that the concerns were raised because it was the third case Mr Felstead had performed the operation “where there had been complications”. The claimant questioned whether Mr Felstead was “safe to perform [an] orbital fracture repair” and that he felt the issue “needs investigating”.

[35]After another meeting between Mr Robinson and the claimant on 22 January 2020 the claimant sent a long email to Mr Robinson on 24 January 2020. In the body of the mail, the claimant complained that he was the subject of false accusations by Mr Gillett. He also said that Mr Robinson was disinclined to offer him support. The email also includes the following paragraph: 8 of 101 At this point you told me that you hear 'too much noise' about me. I asked you who was making the noise to which you replied 'Stuart and Mark Vardon'. I explained to you in the past the complexity of the situation regarding Mark Vardon. During my time as lead numerous patient safety concerns regarding Mark Vardon have been raised. I have always endeavoured to manage these professionally and fairly seeking Trust guidance throughout. However these are not issues that have arisen during my leadership. I explained that Marks [sic] previous line manager Tony Ireland had had to deal with the same issues, as did Jon McFarlane and Monica Baird before him. I recommended that you to [sic] contact them because I think there is merit in confirming that this has been an ongoing problem.

[36]The claimant says that he made complaints to Mr Ireland, Mr Handel, Ms Lindegaard (his BMA representative) and Mr Tom Simpson (Consultant Anaesthetist) verbally that Mr Derek Robinson was harassing him by accusing him of ‘making noise’ when the Claimant raised patient safety concerns (PD5 claim 3).The Claimant leads the only positive evidence in respect of this disclosure as the other witnesses were not called.

[37]The claimant has provided no date or specifics for this disclosure in his witness evidence. There is no dispute that Ms Lindegaard is not employed by the respondent. There was a later reference to the same issue by the claimant during a meeting on 4 November 2020 when the claimant read out a script. However, in the same meeting and script the claimant does not say that he raised this as matter of concern to Mr Ireland, Mr Handel or Mr Simpson. None of those individuals contacted Mr Marden about any such concerns. This was despite the fact that Dr Handel spoke to Mr Marden about what he regarded as unfair treatment when the claimant was stood down as clinical lead.

[38]After a meeting with the claimant on 4 March 2020 Mr Robinson emailed Mr Marden expressing concern. Mr Robinson explained that he met with the claimant to discuss datix (risk management) incidents regarding possible delay in diagnosis. The claimant then left and returned with sister Lynn Howells. According to the Mr Robinson’s email, the claimant then spent 35 minutes explaining how Mr Robinson had failed him, acted inappropriately and ignored his concerns. Among other things, Mr Robinson said: “I found his manner to be threatening, aggressive and insulting. I have dealt with many different colleagues in different situations but I’ve never been spoken to in this manner in my entire career and certainly not while I have held any managerial position at the RUH”.

[39]Soon after, on 23 April 2020, Ms Gillet wrote to Mr Robinson raising a formal complaint, pursuant to the Trust’s bullying and harassment policy, about the claimant’s conduct towards her. In the email she explained that although the relevant policy notes that every effort should be made to resolve matters informally she had already tried to manage incidents informally through 9 of 101 escalation through her seniors. Among other things, she says in the email that after meetings with the claimant she regularly felt “intimidated and vulnerable”. In her letter of complaint Ms Gillett went on to explain that she had sleepless nights every Thursday at the thought of having a Friday morning meeting with the claimant. Attached to her email was a list of incidents she said were relevant. The 18 incidents highlighted start on 25 March 2019 and end on 27 March 2020. Included in the allegations are that on 22 November 2019 the claimant confronted her during a team meeting with others about the fact that he had been told that she found him intimidating. According to Ms Gillett the conversation was intimidating and concluded with the claimant asking her to confirm by email that “she did not feel ignored, disregarded or not listened to”.

[40]Mr Robinson then wrote to the claimant on 11 May 2020, following a meeting which took place on the same day, explaining that the Ms Gillett complaint would be formally investigated by Graeme Tremblett-Willis, Head of Information Governance. The letter also explained that Mr Robinson took the decision to remove the claimant’s management role from his portfolio during the currency of the investigation. Accordingly, the claimant was, from that point, no longer clinical lead and instead Mr Felstead was appointed to the senior role. The claimant’s BMA representative subsequently emailed Mr Robinson on 18 May 2020 saying the claimant regarded the action of removing him as clinical lead as “bullying and undermining behaviour”. Concern was also expressed about a failure to exhaust the internal process as set out in the bullying harassment policy. Mr Robinson replied on 21 May 2020 saying if a member of staff who is raising concerns feels as though they have exhausted their options to try and resolve their concerns informally they are entitled to raise a formal complaint. In relation to the clinical lead issue, Mr Robinson explained that he felt it was a reasonable action temporarily to remove the claimant’s clinical leadership duties to ensure a fair process. A request by Ms Lingaard for an external investigation team was later refused by Dr Marden.

[41]Terms of reference for the investigation were drawn up by Mr Tremblett-Willis with the help of an HR business partner. Ms Gillett was spoken to first. During her recollection of the events, she broke down in tears. Subsequently, Mr Tremblett-Willis interviewed the claimant who was accompanied by his BMA representative. In total Mr Tremblett-Willis conducted about 9 interviews and also received statements from other related individuals.

[42]The resulting report was concluded in about December 2020. Not all the allegations were upheld. However, Mr Tremblett-Willis concluded, as part of his preliminary investigation, that there were examples of exclusion and intimidation towards Ms Gillett and therefore there was a “case to answer” under the bullying and harassment policy. Seven out of 17 of the allegations were recommended as going forwards, either partially or fully. One of the allegations which was upheld at the investigation stage related to a meeting on 24 January 2020 when it was alleged that the claimant requested all those present to email him to 10 of 101 confirm he was engaged with management and happy with the way the department and meetings were run and managed. An email was sent by Ms Gillett to the claimant on the same day expressing her concern. The same incident was discussed by Ms Gillett during an interview with Ms Cunningham, who was instructed later in the chronology, at a meeting on 14 May 2021. In his report, Mr Tremblett-Willis notes that another person present was also very clear that the claimant’s actions during this conversation were inappropriate and intimidating. While a third person did not herself feel intimidated Mr TremblettWillis concluded he could see how Ms Gillett may have felt this way, given that the claimant made it clear that his request was as a consequence of Mr Robinson raising the fact that Ms Gillett felt that she could not engage with the claimant.

[43]Dr Marden then wrote to the claimant on 26 January 2021, after meeting with the claimant on 17 December 2020, when the outcome of the investigation was shared. The letter explains that Dr Marden concluded that the behaviour described warranted referral to the Trust’s managing conduct policy as a potential disciplinary offence. As such, Dr Marden explained that he would be scheduling a hearing in line with the policy and would be in further contact once the details of the hearing had been arranged.

[44]Jumping forwards in the chronology, when the claimant was eventually invited to a disciplinary hearing by letter dated 20 December 2022, it was explained that the allegations previously set out were amended such that he would not be required to respond to the separate bullying and harassment complaint made by Ms Gillett within that or any further disciplinary process. In other words, those allegations were not, in the event, proceeded with except to the extent that they overlapped with those identified in the other investigatory process.

[45]In April 2022 Louisa Hopkins was made the Trust’s permanent Freedom to Speak Up Guardian, although she had been initially seconded into the post since about 2019. Her role was to promote openness and transparency with regards to speaking up matters. Individuals approached the Freedom to Speak Up Service when they were experiencing barriers to speaking up in the organisation. After initial contact with the claimant, Ms Hopkins met with him on or about 30 June 2020. During the meeting the claimant shared concerns that he was being bullied after raising concerns about Mr Vardon-Odonkor’s practice and, in particular, concerns relating to patient safety. He went on to explain that he was no longer the clinical lead following subsequent allegations of bullying. With the claimant’s express permission, Ms Hopkins raised cultural issues of bullying and the pattern of behaviour the claimant said was connected to him speaking up, to Dr Marden and Claire Radley, the Director for People at the time.

[46]The claimant says that during his conversation with Ms Hopkins he complained about a bullying culture in the respondent Trust and that complaints about Mr Vardon-Odonkor had not been dealt with adequately or at all (PD2 claim 1 and PD6 claim 3). The only dispute, as set out in the issues, relates to whether or 11 of 101 not the claimant said that the complaints about Mr Vardon-Odonkor had not been dealt with adequately or at all. However, when her giving evidence, Ms Hopkins confirmed that the claimant did say that concerns he raised about Mr VardonOdonkor were not being dealt with adequately or at all. She also believed that that the claimant was raising patient safety concerns “honestly”.

[47]Around the same time Ms Hopkins started to receive concerns from other members of staff also. They included concerns from other clinicians, an HCA (Health Care Assistant) and nursing staff about, among other things, what they regarded as bullying as well as a fear of raising their concerns locally.

[48]On 4 November 2020 Ms Hopkins met the claimant again, this time in the presence of Dr Marden, the medical director. During the meeting the claimant read directly from a script (PD3 claim 1 and PD7 claim 2). The script notes are included in the bundle and run to nearly 6 pages. The notes start off with the claimant saying he wanted to talk about patient safety concerns in the department. The note then splits patient safety concerns into two groups. First, patient safety and divisional manager decisions including a staff member accessing a service the public are unable to access. The second group of concerns were said to relate to inequality, discrimination and racism. The inequality was said to include sex discrimination because one speciality grade doctor within the Department was offered to double his wage whereas a female in the same position was not. The allegation of racism was said to be someone referring to the claimant as doing “a grand job”. The claimant said he perceived this as racism towards him, due to his Irish nationality. Towards the end of the note the claimant says he highlighted patient safety concerns to Ms Hopkins and the BMA because no one else was listening to him. He also goes on to say that the Head of Division told him he was “making noise” and that he had been removed from his position. There was, according to the claimant, no reasonable explanation for this other than bias against him.

[49]A short time later, in November 2020, Ms Hopkins raised these and other concerns with the Trust Executive Team. She emailed Dr Radley and Dr Marden on 9 November 2020 with a list of concerns she discussed with them that morning. In total, 7 different staff members raised 12 concerns about OMFS. Included in the long list of concerns was the fact that the claimant had raised patient safety concerns around theatre lists and divisional manager decisions. The email also included details of concerns raised by other individuals.

[50]One of the concerns raised by the claimant, in the meeting which took place on 4 November 2020, related to an alleged refusal by a clinical manager to allow the OMFS department to treat skin cancer cases until the backlog of routine dental extraction had been cleared. After the meeting, Dr Marden sent an email on 6 November 2020 seeking internal clarification about whether the Trust was always prioritising cancer operating appropriately or whether there were “other pressures clouding [the trust’s] ability to schedule operating in a way that 12 of 101 facilitates this”. Dr Marden requested specific assurance relating to OMFS. A reply came back on 10 November 2020 reassuring Dr Marden that no specific issues with operating capacity or scheduling had been identified for OMFS.

[51]Dr Radley and Dr Marden then met on 12 November 2020 to discuss the way forward. Because of the variety of different issues raised by a range of people they determined it was difficult to work out what was precisely going on in the department. Nonetheless, they concluded that the behaviour and cultural issues raised were connected. They therefore decided to commission a review into the OMFS department. Dr Radley had previous experience of a cultural review in the health sector. It was decided to commission a review, as opposed to a formal investigation, because they wanted to understand the background of what was happening rather than dealing with particular allegations. This cultural review did not form part of any disciplinary process and was not conducted pursuant to any particular Trust policy.

[52]Simon Atkinson, a former police detective superintendent, was selected to undertake the review. He was engaged via the Trust’s temporary staffing bank. Mr Atkinson was chosen because of his previous experience and also because he was independent, in the sense that he did not know any of the individuals within the OMFS department. The Trust had previous experience of instructing Mr Atkinson in various capacities. Both Dr Radley and Dr Marden agreed that Mr Atkinson would be well suited to the cultural review. This was because, among other things, he had inspired confidence during his previous engagements, including what was described as a “listening event” in the Emergency Department. Because of his background, Mr Atkinson did not have expert medical knowledge. The review undertaken by Mr Atkinson of the OMFS was not a listening event and was not described as such.

[53]In an initial email from Dr Radley to Mr Atkinson, sent on 12 November 2020, a request was made to conduct a review of the “oral surgery department”, as opposed to the more correct and fuller description of OMFS. It was suggested to Mr Atkinson that he speak to a number of people including Ms Hopkins who had received a number of concerns through the freedom to speak up (FTSU) route.

[54]After receiving some initial documents from the Trust, Mr Atkinson drafted the terms of reference (ToR) for the review and provided them to Dr Radley on 18 November 2020. The ToR were only available to the Oversight Group and were not provided to those taking part in the Review. They included that “during the course of 2020, staff have raised a number of concerns relating to the Oral Surgery Department at the RUH. These concerns have predominantly related to a suggested culture of bullying, as well as issues relating to patient safety”. The ToR go on to say, “in recognition of the number of issues raised, the complexity and interdependencies of these, and the concern that in itself the culture may be 13 of 101 creating an environment in which staff find it difficult to speak up, the executive team have commissioned an independent review”.

[55]The first objective of the ToR was set out as: “To undertake a review that addresses the issues raised concerning the Oral Surgery Department including but not limited to a). a culture of bullying and inappropriate work-based behaviour b). any identified consequence of such behaviour on patient safety”. One of the terms of reference was, “to consider any outstanding or recent issues relating to both patient safety concerns and HR within the context of the wider concerns being raised”. The ToR also noted that an oversight group, comprising the medical director, director of nursing and midwifery, chief operating officer and director for people would be created and supported by human resources. Among other things, the oversight group was to ensure that appropriate HR policies were followed and steer the reviewer based on any emerging findings and issues.

[56]The Trust also drafted a communication about the review for those involved. It was headed “review into concerns raised within the oral surgery department”. Details were provided of Mr Atkinson and the communication went on to say that he would be starting with no assumptions and would welcome contact from anyone who either works in the oral surgery team or interacts with that team. The communication also explained that conversations with Mr Atkinson would be confidential. Mr Atkinson’s address email was also provided for those wishing to “arrange a conversation”.

[57]Dr Radley forwarded Mr Atkinson an email from Ms Hopkins, sent on 9 November 2020, outlining some of the concerns raised. As set out above, they totalled 12 concerns from 7 different staff members. In this email the claimant was recorded as raising patient safety concerns around theatre lists and divisional manager decisions.

[58]The conversations with Mr Atkinson took place in person, by zoom and by phone. There was no HR representative present at any of the meetings. When the claimant had his conversation he was accompanied by his trade union representative. Some others were supported and accompanied by colleagues. Mr Atkinson was given a relatively short timescale to complete his report. He was not provided with any administrative support and made his own notes of conversations which he then typed up and shared with the individuals he spoke to, so they could make amendments. The conversations lasted between one and four hours.

[59]The claimant’s BMA Representative emailed Dr Marden on 13 January 2021 expressing concern about the way Mr Atkinson was undertaking his review. The absence of anyone from HR during interviews was said to “leave the trust vulnerable to criticism, in the event that there is any disagreement as to what was said during an interview and is … extremely poor employment practice”. 14 of 101 Further, the BMA Representative said she was aware of at least one individual who had been approached by Mr Atkinson with direct questions relating to the claimant. This, it was suggested, was a leading approach and an opportunity to build a case against the claimant rather than a fact finding review.

[60]Dr Marden responded on 21 January 2021. He explained that any report produced would be strictly confidential and not be shared within the Department to protect people’s confidentiality. In response to concerns about the interviews, Dr Marden explained that notes were taken of the interviews and then sent back to individuals to check in order to ensure an accurate record. The email ended by saying the Trust decided not to include HR in the process as they wanted to ensure the individual conducting the review was completely impartial.

[61]The claimant was contacted directly by Mr Atkinson, although he was not the only the individual to have been contacted in this way. A number of junior doctors also contacted Mr Atkinson stating that the claimant had asked them to make contact with him. During the course of the review Mr Atkinson concluded that the claimant’s alleged conduct became a central theme of information provided to him. The meeting with the claimant took place on 20 January 2021 and lasted a little over 3 hours). Mr Atkinson took his own notes during the course of the meeting. This was made somewhat difficult because, as the claimant himself explained in the meeting, he had “come at” Mr Atkinson “at 100mph”. After the meeting the claimant was given a copy of the notes and he made amendments and additions to them. Others who were spoken to also made amendments to their notes.

[62]In Mr Atkinson’s initial notes, among other things, it was noted that the claimant said that he was being targeted and bullied by Mr Robinson. This part was not amended by the claimant. When the notes were returned the claimant added an addendum saying that on Friday, 29 January 2021, the team of OMFS junior doctors raised patient safety concerns about lack of appropriately trained staff in clinics. The note produced by the claimant goes on to say that he engaged with the Trust lead for patient safety and the Trust lead for governance about this issue who supported the junior doctors’ concerns. The claimant also notes that Mr Felstead “dismissed these concerns” and that his “whereabouts were unknown”.

[63]The claimant also provided a “post interview note” in the following terms (309): I am concerned with frequency of inaccuracies in SAs notes – please see the numerous references to “incorrectly recorded” in editing above. I am concerned that SA has presented his notes in an erroneous manner that could mislead the case manager. I am concerned that this demonstrates a lack of neutrality. I am concerned that SA notes taken from meeting with others will demonstrate a similar bias/lack of neutrality. I am concerned that this is an unfair process. 15 of 101

[64]Some of the further text added by the claimant was additional information not discussed at the meeting with Mr Atkinson.

[65]During the review process Mr Atkinson became particularly concerned about an HCA who was previously a secretary to the OMFS department. At the beginning of her interview, she explained that she was told by the claimant, among others, that the review was taking place and that she should “speak up”. She goes on to explain that she always got on well with the claimant and still did. In the notes of her interview, which she later approved, she went on to set out a number of disturbing details. When shown a copy of notes of the clinical governance meeting which took place on 8 January 2020 she explained that although the claimant, whom she described as a good doctor and a friend, acted “unacceptably” that day. She said Mr Felstead was not there to defend himself and this was a “sly dig” at him. She goes on to say that the claimant “tends to flip” and she referred to a “major bust up” with Mr Gillett which she thought was going to “kick off” physically. She further comments that once the claimant dislikes you “he will set out to destroy you”. The notes go on to say that the claimant “has great ideas and if you’re on his good side it’s okay but if you’re not your fucked. You don’t say no to [the claimant]”. She explains that she knows the claimant has a “vendetta” against Mr Vardon-Odonkor too. The notes record that the claimant wants to “destroy” Mr Gillett, Mr Felstead, Mr Vardon-Odonkor and Miss Fox. The notes then record “you have to be in [the claimant’s] camp or you are fucked. I’m terrified. It’s one of the most terrifying things to be on the wrong side of him”.

[66]After the meeting with the ex-secretary Mr Atkinson telephoned to check on her welfare. She explained the claimant had contacted her as she expected. A few weeks after her interview, she texted Mr Atkinson in mid-Jnauary 2021 saying she no longer wanted to be part of the investigation. She also sought confirmation from Mr Atkinson that her statement had been removed from the process. Because of this, her statement was noted as being withdrawn from the report.

[67]The HCA then wrote an email to the claimant’s BMA Representative on 23 January 2021 saying she wants to raise concerns about “an investigation that is occurring within the RUH and Serryth Colbert”. The email went on: “To begin with [Mr Atkinson] explained that he was there to review patient safety and the culture of bullying within the MaxFax Department. I was not offered a third party to sit in whilst having this meeting and he was taking notes. As time went on it was very clear to me that this was not about the culture of bullying and was aimed against Serryth. A lot of his questions were aimed towards Serryth and his work and relationships with other members of staff. The questions were made to manipulate it into leading me down a path to stitch up Serryth with the accusation of inappropriate behaviour”. The email ended: “I feel that this is a biased and unfair investigation toward Serryth who is a kind man and an 16 of 101 excellent doctor who will help anyone. Simon is in the wrong here as it was clear he was not concerned with any other people other than Serryth and this is unfair to other members of staff who are at fault”.

[68]The email was then referred to Dr Marden who then highlighted the fact that she was not happy with her statement to Mr Atkinson. Dr Radley then emailed Mr Atkinson on 28 January 2021 explaining that concerns had been been raised by the BMA on behalf of two individuals. Dr Radley stressed that the expectation of the oversight group was that Mr Atkinson would pursue all lines of enquiry and that his review would be fact-based and comprehensive thereby giving the Trust confidence in taking forward any review findings. The email ended saying Dr Radley would welcome assurance and any examples without compromising anonymity. Mr Atkinson replied the next day explaining that after typing up the notes of conversations he shared them with the individuals who were able to add or alter what had been said. He went on to say that he was not surprised by the response and that he was suspicious that some individuals were being encouraged to engage with the BMA to discredit the review.

[69]This was the first time that Dr Radley had encountered an HCA approaching the trade union representative of a clinician. Unsurprisingly, both Mr Atkinson and Dr Radley formed the opinion that the claimant had been involved in persuading the HCA to alter or retract her statement. These suspicions were not included in the report because the statement was withdrawn.

[70]The Atkinson review was completed in February 2021. The report referenced OMFS correctly and was marked strictly private and confidential. It included a document list which ran to D124. The list included notes of the conversations he had made. In the introduction it was emphasised that it was a review and not an investigation. The review included a subheading entitled “patient concerns and patient safety”. Mr Atkinson noted that the issue of patient safety was often raised with the review in “loose and broad terms”. A further subheading is devoted to the claimant. Mr Atkinson concluded that the claimant “is without question a divisive character with many people disliking him describing bullish, entrenched behaviour and others finding him charming, supportive and caring; there is little or no middle ground”. One of those interviewd reported that Mr Felstead “hates” the claimant.

[71]Those that were supportive of the claimant were said to be in almost exclusively junior doctor positions. In his conclusions section, Mr Atkinson says his review exposed concerning examples of an alleged culture of bullying and patient safety issues. He goes on to say that division and fractured relationships dominate, which was impacting on the experiences of all members of the department.

[72]The report ends with a number of specific recommendations. Some of these related to the OMFS department as a whole. One of the recommendations under this section is that the Trust should look to reinforce the organisational values 17 of 101 and behaviours within OMFS through facilitated group or team meetings. There follow a number of recommendations which relate to individuals. The first such recommendation is that the Trust considers formally investigating the claimant for his potential bullying/inappropriate behaviour. There are also recommendations relating to further investigation of four other individuals. One of these related to the circumstances surrounding the referral and treatment of a speciality manager by Mr Felstead. The recommendations included further investigation of individuals for potentially inappropriate behaviour and that consideration be given to providing others with appropriate management words of advice in relation to behavioural issues identified in the review. Mr Atkinson also said it was important for the Trust to pay attention to the welfare of all staff following the review.

[73]At this point in the chronology the claimant emailed Mr Felstead on 4 February 2021(PD4 in claim 1 and PD8 in claim 2). Paragraph 2 of that email, which was copied to Karen Driscoll, the Speciality Magager, was in the following terms: Raising concern - following the mismanagement of the junior and middle grade doctors on Friday 29th of January for raising concerns for patient safety, they have lost confidence in the leadership and management of the department. It has been highlighted that following the manner in which their concerns were addressed on Friday some no longer feel comfortable raising such concerns. This is the opposite of the culture we would wish for. This places our junior doctors under exceptional levels of added mental stress- additional to the stress of the on-going pandemic. I have addressed their concerns but cannot emphasise how important it is to reestablish their confidence in the Dept, leadership and management. An apology should be offered to the junior and middle grade doctors as the first step to making this happen.

[74]Mr Felstead replied on 7 February 2021 saying operational decisions often have to be made at very short notice in response to the ever-changing situation that one faces with regard to staff changes during the pandemic. He went on to explain that where necessary such decisions were made by a collaborative group including himself, the senior sister for OMFS, the speciality manager, the deputy divisional director for surgery and matron. The email went on to say: A running theme throughout your lengthy email was that of concern for patient safety. It is very easy to use this to hide behind and to utilize this as some form of validation for your actions, however it is entirely without substance and I would request that you refrain from continuing to push this agenda.

[75]The incident referred to on 29 January 2021 related to a “staffing crisis” during the pandemic. Seven nurses had been “lost” the day before. Orthodontic clinics were cancelled. Treatment rooms were kept open in OMFS for certain 18 of 101 treatments. Because of the lack of staff one member of the reception staff, who was also an HCA and worked on the bank for the Trust, was to act as patient escort and chaperone in clinics. These duties were normally undertaken by nurses. This information was relayed by Mr Felstead to the Department by email at 9:09 and 29 January 2021). The email ended in the following terms: “This has had to be discussed at very short notice and there may be one or two issues that have not yet sprung to mind. If anyone has any concerns with the above or alternative positive solutions please do share them with Ruby, Lynn or myself”.

[76]The claimant says, after speaking to the junior doctors, he raised concerns of inappropriate and unsafe ‘promotion’ of reception staff to act as registered staff nurses verbally to Jaspall Phull (Consultant Urologist and Lead of Governance for the Trust) and Lesley Jordan (Consultant Anaesthetist and Patient Safety Lead) (PD2 claim 3).

[77]In his witness statement, the claimant says at paragraph 155 that he approached both of them to disclose patient safety issues in relation to what had occurred on 29 January 2021. The respondent did not call Mr Phul or Miss Jordan as witnesses to the tribunal. However, they were spoken to as part of the Cunningham investigation, which we deal with below. Mr Phull confirmed that he spoke to the claimant that day although did not remember all the details of the reception staff issue. Nonetheless, he says he signposted the claimant to the interim director of nursing for the division of surgery. Miss Jordan also accepts she took a call from the claimant and then called him back, which accords with the claimant’s recollection. She goes on to say that the claimant informed her there was a crisis with the dental nurses, management has suggested receptionist step into the role and the junior doctors were not happy. Accordingly, we conclude that the concerns were raised by the claimant with Mr Phull and Miss Jordan

[78]After Mr Atkinson reported his findings, Dr Marden met with the claimant and his BMA Representative on 8 March 2021. At the meeting, Dr Marden explained that due to significant concerns there would follow an investigation under a Maintaining High Professional Standards (MHPS) process. Dr Marden also told the claimant that he would be excluded from work with immediate effect. This decision was taken because of the wish to protect the interests of staff involved in the investigation. Details of the meeting were then confirmed to the claimant and his BMA Representative in a letter dated 11 March 2021. The matters said to be investigated including bullying and harassment, controlling/coercive behaviour and breach of the GMC code of conduct. Dr Marden explained that he would act as a case manager for the purposes of the investigation. The exclusion from work was said to be for initial period of 4 weeks from 8 March 2021. It was then subject to review. The letter also explained that the claimant would continue to receive his full salary and benefits provided that he remained ready and available for work. 19 of 101

[79]Prior to meeting the claimant on 8 March 2021, Dr Marden spoke to a practitioner performance advisor who then wrote to Dr Marden on 2 March 2021 setting out the advice provided. The letter detailed that Dr Marden was advised to consider that the other investigation report (in relation to Ms Gillett) be put on hold pending the new investigation.

[80]An external organisation, Ibex Gale, was then instructed to undertake the MHPS investigation. Dr Marden decided to use an external provider because of the combination of pressures on internal resources caused by Covid together with the complexity of the issues to be addressed. Terms of reference were drawn up by Dr Marden who then provided them to the appointed investigator, Miss Cunningham, a barrister with experience of investigative work. The terms of reference comprised 19 individual allegations. They included what were alleged to be bullying and inappropriate behaviour under five subheadings, as well as some broader allegations that there had been a cumulative impact on individuals and a cumulative negative impact on the working environment, including a direct relationship between the claimant’s behaviour and an unwillingness of staff to raise patient safety issues. Miss Cunningham was also provided with a suggested list of witnesses, although she was expressly told that any other witnesses seen as necessary and relevant to the investigation could be added. At the claimant’s request, an amendment to the terms of reference was made to include the fact that the claimant had raised patient safety concerns during the cultural review.

[81]Dr Marden undertook the first exclusion review on 19 April 2021. A short delay was caused by an inability to meet with the claimant’s representative. It was noted that the considerations at the date of the initial conclusion remained valid reasons to continue the exclusion. The fourth review took place on 28 June 2021, although the claimant was unable to attend as he was on a flight to Glasgow. It was then agreed, after consultation with the claimant, that the next review meeting would be on 2 August 2021.

[82]Dr Dyer, the Associate Medical Director, then took over as case manager on 5 May 2021 as it was thought that Dr Marden might be a relevant witness in the investigation process. The terms of reference were later revised in June 2021 after input from the claimant and Miss Cunningham.

[83]Miss Cunningham was provided with an unredacted version of Mr Atkinson’s report on 26 April 2021. She was also sent some, but not all, of the appendices to the report. Where relevant she noted the accounts given to Mr Atkinson although she ran her investigation independently. Miss Cunningham was also mindful of the fact that Mr Atkinson conducted a review rather than an investigation. During her investigation she decided not to speak to Mr Atkinson as she felt it was important to be at arm’s length from his report. 20 of 101

[84]In the meantime, via a DSAR (data subject access request) the claimant was provided with a heavily redacted version of the Atkinson report on 29 June 2021. The letter enclosing the redacted report explained that, “Under the right of Subject Access you are only entitled to your own personal data. We have therefore redacted the data of other individuals as to disclose it to you would be a breach of their Data Protection Act rights”. The letter went on to explain that the report and appendices also contained “mixed data”, which related to the claimant and another individual jointly. Where it was not possible, according to the letter, to anonymise the mixed data, or extract the claimant’s data from the mixed data, the Trust was “not obliged” to share it with the claimant.

[85]An Assistant Director of HR from the Trust then forwarded the redacted version of the report to Dr Dyer and Miss Cunningham on 30 June 2021. The email went on to explain that the Assistant Director felt that Miss Cunningham should see the same documentation as the claimant has, as she was due to meet him shortly.

[86]Miss Cunningham commenced her investigation by interviewing some 20 witnesses. In addition to those set out in the terms of reference the claimant suggested a further 6 witnesses for Miss Cunningham to contact. Of those who were relevant to the issues to be determined only one replied to her and he was interviewed. Some of the witnesses asked that they remain anonymous. Miss Cunningham attached less weight to their evidence.

[87]During Mr Robinson’s interview with Miss Cunningham, he explained that, in his view, it was unfair of the claimant to raise concerns about Mr Felstead’s capability at the clinical governance meeting on 8 January 2020. Although the fact of the complaint ought to have been acknowledged Mr Robinson said the claimant should not say in terms that his colleague needs investigating.

[88]The claimant was interviewed on three occasions for the Cunningham investigation: 2 , 9 and 19 July 2021. On each occasion he was accompanied by both his legal and BMA Representative. A note taker was present for all interviews and participants were given the opportunity to review and comment on the notes. Documents were provided not only by the Trust but also by interviewees as well as the claimant. At the first meeting, the claimant’s legal representative observed that it was important to have in mind the fact that the Atkinson investigation was the Trust’s response to a meeting at which the claimant raised patient safety issue incidents. The claimant made a similar point later on in the interview when the notes record him as saying: “I made protected disclosures on serious and significant shortcomings – patient safety concerns relating to multiple members of staff I’m here today because they did not like that I raise concerns regarding their shortcomings. I raised significant concerns and shortcomings and misconduct issues concerning a lot of people on 4 November 2020 to the medical director”. 21 of 101

[89]A covert recording by Mr Felstead of a conversation between him and the claimant on 29 June 2020 was given to Miss Cunningham along with a transcript. The recording documented a discussion between the two individuals, and also some interactions between the claimant and some junior doctors who came into the room at one point. Neither the recording nor the transcripts were provided to the claimant during the investigative process.

[90]When considering the claimant’s evidence to her, Miss Cunningham concluded that, on a number of occasions, he failed to answer the question put and demonstrated a tendency to deflect and minimise his own personal accountability. Miss Cunningham also made findings that some of the evidence given by the claimant was disingenuous, insecure and lacking in credibility.

[91]Miss Cunningham also concluded that some of the allegations against the claimant were insufficiently evidenced. For example, the allegations that the claimant deviated from defined clinical pathways and that individuals would not raise patient safety concerns due to his behaviour. Further, she concluded that some of the allegations were not established on the balance of probabilities.

[92]In relation to the covert recording, she concluded it included “approximately fifteen minutes of relentless baiting of [Mr Felstead] by [the claimant] characterised by [the claimant] interrupting [Mr Felstead], [the claimant] sarcastically repeating what [Mr Felstead] says in a mocking, patronising tone of voice.” In her evidence to the tribunal, Miss Cunningham explained that she considered the recording to be insightful as there was an interruption to the exchange by some junior doctors entering the room. She went on to say that the claimant spoke to them in an appropriate, professional and supportive manner which she considered probative evidence of the difference between how he spoke to some colleagues and how he spoke to Mr Felstead when he was alone with him.

[93]The conclusions of Miss Cunningham are set out in an executive summary to the report. Paragraph B of the summary provides as follows: The investigation has found, on the balance of probabilities, that [the claimant] has displayed intimidating and what could be considered bullying behaviour towards Derek Robinson (‘DR’), Stuart Gillett (‘SG’), Andrew Felstead (‘AF’) and Nicky Ashton (‘NA’). In respect of AF, SC’s bullying and intimidating behaviour includes, but is not limited to, subjecting AF to unwanted physical contact on two occasions. SC is found to have subjected SG and DR to inappropriate and upsetting behaviour. In respect of NA, the behaviour that SC demonstrated towards her on 3 May 2019 was threatening and intimidating. As such, SC may be considered to be in breach of paragraphs 10 and 11 of the Code of Conduct of the General Medical Council (‘GMC’) and in breach of the Trust Bullying and Harassment Policy. 22 of 101

[94]Paragraph D of the executive summary states: The investigation established that, on the balance of probability, SC intentionally undermined and dissented from the authority the of departmental and divisional leadership in failing to properly engage with SG upon SG’s appointment as Clinical Director (‘CD’) and in the unpleasant and aggressive manner in which he spoke to SG at two OMFS Clinical Governance Meetings. Further, on the balance of probability, SC’s insulting and aggressive behaviour towards to [sic] DR in a meeting on 4 March 2020, in the presence of Lynn Howes (‘LH’), served to undermine the proper authority divisional leadership. In this regard, SC may be considered to be in beach of paragraphs 10 and a 11 of the Code of the Conduct of the GMC.

[95]However, Miss Cunningham also concluded, as set out in the executive summary, that the claimant is an excellent clinician and, to many, is an inspirational surgeon, teacher, mentor and colleague. She goes on to say that his skill, energy, tenacity and vision are widely recognised and valued by many with whom he works.

[96]The background to the complaints from Mr Gillett, the clinical director of the head and neck division, stemmed from meetings which took place in 2019. On 8 August 2019 Mr Gillett emailed Mr Robinson saying he was struggling for a number of months at getting engagement from the claimant. He went on to explain that the claimant’s attitude towards him was somewhat dismissive and aggressive. After another meeting which took place on 14 August 2019, Mr Gillett emailed Mr Robinson, copying in Mr McFarlane and others, saying that although he wished to discuss difficulties he was having in getting information from the claimant, the meeting had to be cut short due to the claimant’s behaviour. According to Mr Gillett the claimant repeatedly talked over him and refused to answer questions. At one point Mr Gillett says the claimant was “quite aggressive leaning across the table towards [him] and [he] had to sit back”. In the email Mr Gillett says he has significant concerns about this behaviour as it has been displayed to him before and is also aware that similar behaviour has been displayed to others in the hospital.

[97]There followed a meeting on 16 October 2019 between the claimant and Mr Robinson. This was followed up by an email to the claimant from Mr Robinson on 30 October 2019. In the email Mr Robinson explains that although there was never a single complaint or issue about the claimant’s clinical work there were concerns about his role as clinical lead. The difficult relationship with Mr Gillett was noted. Among the actions Mr Robinson said he would like to see were demonstrable improvements in relations between the claimant and Ms Gillett as well as Mr Gillett. 23 of 101

[98]Relations between Mr Robinson and the claimant then deteriorated further. On 5 March 2020 Mr Robinson emailed Dr Martin raising concerns about the meeting which took place that day. The meeting was to discuss potential delay in diagnosis. When the claimant discovered the substance of what was to be discussed the claimant left the room and returned with Sister Howes to act as a witness. Mr Robinson says, in his email, that for 35 minutes the claimant proceeded to explain how Mr Robinson had failed him, acted inappropriately and ignored his concerns. In the lengthy email he goes on to say that “I found the claimant’s manner to be threatening, aggressive and insulting. I have dealt with many different colleagues in difficult situations but I have never been spoken to in this manner in my entire career and certainly not while I have held any managerial position at the RUH”.

[99]Nicky Ashton, who had overall operational responsibility for the provision of surgery (non-clinical divisional director of operations), gave evidence to Miss Cunningham about a meeting which took place on 3 May 2019. The agreed notes of the meeting with Miss Cunningham on 8 June 2021 record the following about the May 2019 meeting: I am sat opposite SG and SC is there and we are in a triangle, perhaps six feet apart. I am sitting back in my chair. SC leans forward towards us when he speaks and far too close to me … and waving his arms which are very long. His face was angry and he stood up at one point over me, about a foot from me, and I had to push back in my chair and then I stood up and I put my hand up and said ‘you need to sit down’. I did think he might… I thought he might strike me.

[100]The unwanted physical contact referenced by Miss Cunningham in relation to Mr Felstead relates to two incidents which Miss Cunningham found to have occurred on 3 May 2019 on 29 June 2020, both described as “a ‘bear hug’ and ruffling of hair”. Both these alleged incidents were considered in some detail by Miss Cunningham. Paragraph 175 of her conclusions she says: I find that AF was subjected to unwanted physical contact from SC in the form of a bear hug and having his hair ruffled, on 29 June. I found AF’s account to be measured and credible. I considered the email he sent to KD the following day, describing what had happened, to be supportive evidence of this finding. Whilst the allegations of unwanted physical contact do not stand or fall together – I have considered them each separately – the accounts from AF in respect of the two dates are similar and corroborate one another in their consistency. I acknowledge that SC refutes the allegation of unwanted physical contact but I find, as I have done on a number of occasions in this report, that SC’s evidence of how he interacted with AF after the meeting with KD lacks credibility. 24 of 101

[101]The first draft of the Cunningham report was published in September 2021. The claimant was then permitted to comment on the factual content of the report. He did so in a document running to 7 pages whilst also providing comment on the “logical interpretation” of the information provided. Among other things, the claimant pointed out that it ought to be stated that findings were made on the balance of probabilities only. The claimant also pointed out that the covert conversation was recorded over a year before the claimant was asked about it. It was also said that the case investigator minimised Mr Felstead’s poor conduct in relation to the recorded conversation and “accentuated” that of the claimant which implies the “investigator’s objectivity has been compromised”.

[102]The claimant’s factual accuracy comments were provided under cover of a letter dated 26 October 2021 from the claimant’s BMA representative. Included in that letter was the following paragraph: Leaving aside issues which are disputed, Mr Colbert has taken time to reflect on the content of the report and the recording which was recently disclosed. Having done so he would wish to formally acknowledge that he has behaved at times in manner which does not [sic] himself credit, indeed he is embarrassed by aspects of his own conduct which he very much regrets. It is clear to Mr Colbert that there are lessons to be learnt and he would like to make it clear that he is very much open to exploring avenues for further training and professional development. He has, on his own initiative, already engaged a behavioural coach to benefit from their insights. He recognises that that process may well be challenging but his preference is to move forward in a constructive way. We will be sharing this letter with NHSR and seeking any further guidance which they might offer to assist Mr Colbert in formulating an appropriate PDP.

[103]Miss Cunningham provided a written response to the claimant’s comments in November 2021. The detailed analysis runs to some 14 pages. In response to the claimant’s point about intention being required to meet the Trust’s policies definition of bullying, Miss Cunningham said: I am satisfied that the examples of SC’s behaviour that I have found, (on the balance of probabilities) to have taken place were carried out by means intended to be offensive, intimidating, malicious or insulting. Those means include: written and spoken communications and absence of communications.

[104]The claimant also alleged that it was not within Miss Cunningham’s remit to comment on his capacity to develop insight. In response, Miss Cunningham set out the basis of her observation that the claimant was not likely to develop insight. She goes on to say she considered it to be within her competency to conclude that the written and verbal evidence the investigation yielded suggested the claimant did not understand the impact of his behaviour on others 25 of 101 to the extent that someone who had “insight”, or the potential to develop it, would. Miss Cunningham also clarified that it was correct that the claimant had not listened to the covert recording at the time of the interviews, and that this was made clear in the report.

[105]A final version of the report was then provided in November 2021. Having read the report Dr Dyer decided that it clearly painted a picture of a pattern of unacceptable behaviour. He was satisfied that the investigation was well conducted and thorough and provided lots of examples of bullying behaviour found to taken place on the balance of probabilities. He listened to the covert recording and agreed with Miss Cunningham’s assessment that it evidenced intimidating and aggressive behaviour.

[106]Accordingly, Dr Dyer wrote to the claimant on 16 December 2021 providing a final copy of the report. The letter indicated that Dr Dyer considered there was a case to answer in relation to the majority of the allegations, and the case would proceed to a disciplinary panel. Dr Dyer set out the allegations found proven on the balance of probabilities by Miss Cunningham and explained these were the ones which would be taken forward. He went on to say that “if found these allegations could be in breach of the Trust's Values and Behaviours, the Trust’s Bullying and Harassment Policy and the GMC Code of Conduct Sections 10 and 11 and could amount to gross misconduct under the Trust’s Managing Conduct Policy”.

[107]The same letter also explained that the allegations relating to Ms Gillett would be considered at the same time. It was also confirmed that although his exclusion was lifted the claimant was now working under restrictive practice to allow him to perform clinical activity on a Thursday at another trust, subject to the claimant confirming the identity of the trust.

[108]There followed a lengthy period of delay until the disciplinary hearing. This was caused by without prejudice discussions between the parties as well as injunctive proceedings brought by the claimant.

[109]In the meantime, the claimant had asked to work for a locum agency at another trust on his non-working day from January 2022 onwards. Previously, Dr Dyer has expressed his support to the claimant’s BMA representative about the claimant undertaking clinical work outside the Bath area.

[110]The disciplinary hearing was subsequently arranged for January 2023 and then re-arranged for 11 October 2023.

[111]The concern about a staff member accessing a procedure in surgery without the normal process of a GP referral was sought to be closed off as an FTSU referral by Ms Hopkins on 19 April 2022 (825). She emailed Mr Robinson citing the fact that one of the recommendations of the Atkinson review was to address the lack 26 of 101 of process in relation to what was described as minor surgery. She explained that although she understood that this had been actioned she wanted to document the learning from the perspective of freedom to speak up records. Mr Robinson replied the same day saying the staff member was treated in a standard manner for staff members. According to Mr Robinson, Mr Felstead assessed the manager in his own time and no other patient was disadvantaged. As the manager had a history of cancer and was concerned regarding the growth, Mr Felstead proceeded to remove the lump in his own time with a minor procedure under local anaesthetic. Accordingly, it was considered that no other action was required.

[112]On 12 January 2023 a letter was sent to the Trust by the claimant’s then barrister. The Respondent acceded to the Claimant's request that the hearing scheduled for 25 January 2023 be postponed. Initially, the Trust declined to permit the claimant to be represented by his barrister at the disciplinary hearing. The claimant then brought an interim injunction application on 30 May 2023 against the Trust in the High Court, claiming that his employer had breached obligations under MHPS and its own disciplinary policy. The application came to hearing on 19 June 2023.

[113]At the hearing the claimant indicated that he wanted 11 named individuals within the Management Statement of Case to be present at the hearing to allow for cross examination by his counsel. The Trust refused this request but told the claimant that he could make representations to the disciplinary panel who could, if they thought it appropriate, call some or all of those witnesses to give evidence. The claimant indicated that he intended to call around “30 additional witness subject to their availability”. The second issue, before the High Court, was whether the claimant was entitled to disclosure of specific documents as part of the disciplinary process, and in particular to an unredacted copy of the Atkinson report. The claimant alleged that the way the Trust dealt with those two matters breached express contractual obligations.

[114]In response to the application, a few days before the High Court hearing, the Respondent then acceded to the claimant’s request that he represented by his barrister at the disciplinary hearing. In relation to "calling of management witnesses", the same letter repeated the respondent's position that there was no contractual provision which entitled the Claimant to require 'management witnesses' be called, but stated "ultimately … it is for the [disciplinary] panel to decide what evidence is relevant and which witnesses they wish to hear from", and that any arrangements for calling witnesses "would be at the discretion of the chair of the panel."

[115]In the event, the application before the High Court on 4 July 2023 did not succeed. It was determined that the claimant did not have a real prospect of establishing a breach of contract. The judge concluded that the claimant did not 27 of 101 have an unqualified contractual right to have the unredacted report disclosed to

[116]PD10 in claim 3 is that “In May 2023 the Claimant made written disclosures to his MP, Wera Hobhouse, and the Respondent’s CQC Inspector, Amie Dew, regarding the patient safety issues, the Respondent’s failure to action them, and the detriments he had suffered as a result. Ms Hobhouse approached Ms Cara Banks (CEO) requesting an investigation into the same”. The agreed list of issues indicated that the respondent did not accept that the statements were made. Although the claimant makes reference to this disclosure at paragraph 279 of his statement no reference to any accompanying documents in the bundle was included. It was not until this was queried by the Tribunal, during the claimant’s evidence, that relevant documents were then disclosed on 8 March 2025.

[117]The newly disclosed documents show that on 29 May 2023 the claimant emailed Amie Dew, a CQC Inspector. Attached to the email was the document he read out to Dr Marden on 8 November 2020. He also attached a document which dealt with allegations of unsafe procedures, practices, conduct, standard of care and behaviours at the respondent which the claimant said ultimately put patients and staff at risk.

[118]On the 2 June 2023, rather than in May, the claimant emailed his MP, Wera Hobhouse. Although the email refers to an earlier email no such email was disclosed. The email goes on to say that the “specific concerns are matters of public interest which impact on the care of the public in Bath”. The email then goes on to list 12 matters which include “fraud being committed in a public organisation in Bath”, “misappropriation of funds in the public organisation in Bath”, “bribery in a public organisation in Bath”, “putting the public at harm by a bullying managerial culture in a public organisation in Bath”, and “repeated acts of gross misconduct harming the public and staff in a public organisation in Bath.”

[119]There is no mention of fraud or misappropriation of funds anywhere in the claimant’s statement. Further, the qualifying disclosure set out in the issues is phrased in terms of patient safety issues and the failure to action them only. It seems that a meeting then took place between the claimant, his MP and his then legal representative on 9 June 2023 via Zoom.

[120]Libby Walters¸ Director of Finance at the Trust, was asked to Chair the disciplinary hearing. Ms Walters was assisted on the panel by Duncan Murray, Deputy Chief Medical Officer from Salisbury NHS Foundation Trust, and Matt Foxon Associate Director for People at the Trust. The letter, inviting the claimant to the rearranged hearing was sent on 12 September 2023. The hearing was listed from 9:30 AM to 5 PM at the respondent’s premises on 11 October 2023. The claimant was informed that he was welcome to attend in person or via 28 of 101 Microsoft Teams. The respondent requested any documents the claimant wished to rely on by 29 September 2023. The letter also explained that the claimant could ask witnesses to attend the hearing on his behalf, and went on to say that he was required to arrange attendance with any witness that he wished to ask to attend.

[121]The claimant was also asked to confirm his attendance by no later than 29 September 2023. Included in the letter were references to the respondent’s code of expectations, bullying and harassment policy as well as the GMC code of conduct. The claimant was also informed that at the end of the hearing, disciplinary action may be taken against him, up to and including summary dismissal.

[122]Ms Walters received no response to the invite letter. After taking advice from HR, she sent chasing emails to the claimant on the 29 September 2023 and then again on 5 October 2023 to notify him that the hearing would go ahead if he did not attend, and to check he had all of the information required and offer the option of virtual attendance. As no reply was received the Trust also emailed the claimant’s then barrister on 10 October 2023 asking him to confirm whether he had received the claimant’s instructions and whether he and or the claimant would be attending either in person or via Teams. Again, no reply was received either from the claimant or from his then barrister.

[123]Prior to the hearing, 7 October 2023, Mr Murray, a medical member of the disciplinary panel, emailed the panel, copying in Dr Dyer and Miss Cunningham, pointing out that references in the Cunningham report to the “GMC code of conduct” were incorrect. The document referred to relates only to actual members of the GMC and is not relevant to the conduct of medical practitioners. The correct document was the Good Medical Practice document which was also produced by the GMC. Although Mr Murray went on to say that this although did not alter the facts of the case, as set out in the report, the strength of the investigation was “almost certainly undermined”. Dr Dyer responded enclosing a link to the right document from the GMC and listing the relevant paragraphs. He went on to say that he did not think any of the conclusions in the report would be affected.

[124]In the event, neither the claimant nor his legal representative attended the disciplinary hearing. No reason or even notice was provided for their nonattendance. The disciplinary panel decided to proceed in the claimant’s absence. Dr Dyer presented the management case. Miss Cunningham was also in attendance to present her findings.

[125]During the hearing, the panel listened to the covert recording made by Mr Felstead. The panel was, mistakenly, provided with an unredacted copy of the Atkinson report together with many, but not all, of its appendices. Each of the allegations against the claimant was discussed by the panel. Questions were 29 of 101 asked to test the evidence. In particular, Ms Walters wanted to ascertain whether the alleged behaviour of the claimant was linked to or was a result of any patient safety concerns raised by the claimant. The panel deliberated in total for about two days. Among other things, they were struck by the fact that a number of senior, experienced male colleagues had become visibly upset in recalling their interactions with the claimant, many months on from when they had taken place. Although they concluded that genuine patient safety issues were raised they also found that the respondent had followed them up and dealt with them appropriately.

[126]A letter confirming the outcome was sent to the claimant on 19 October 2023. Each of the allegations are dealt with under bullet points. Three of the allegations were rejected by the panel but 11 were upheld. Reasons for upholding allegations were explained in the letter which went on to say that the conclusion of the panel was that the actions of the claimant constituted gross misconduct under the Trust’s managing conduct policy and that the claimant was dismissed with immediate effect. A right of appeal was provided within 14 days of receipt of the letter.

[127]The allegations of misconduct which were upheld by the panel were: i. Bullying and aggressive behaviour directed towards Stuart Gillett in meetings with him and others on the 3 May 2019 and the 14th August 2019 causing upset and distress ii. Acting in a rude, insulting and oppressive manner in a meeting with Derek Robinson on 4 March 2020 including falsely representing interactions with him to other senior clinicians causing him embarrassment and distress iii. Subjecting Andrew Felstead to unwanted physical contact (bear hugs towards AF on 3 May 2019 and ruffling of hair on 29 June 2020). iv. Acting in a threatening and intimidating fashion towards Nicky Ashton on 3 May 2019 causing fear and distress v. Undermining the agreed departmental response to a nursing crisis and undermining Andrew Felstead’s leadership on the 29 January 2021 contrary to GMC Code of Conduct paragraph 10 vi. Refusing to meet and/or reply to Stuart Gillett in his role as Departmental Clinical Director. vii. Acting in a dismissive and aggressive way towards Stuart Gillett during OMFS Clinical Governance meeting viii. Using threatening, aggressive and insulting behaviour towards Derek Robinson at a meeting on 4 March 2020 ix. Inappropriate use of Trust processes in particular, pressurising nurses to write statements in a conduct investigation x. Being rude and dismissive about Karen Driscoll in her role as Speciality Manager to a clinical colleague in e mail correspondence in October 2020 xi. Being rude to Derek Robinson in front of a nursing sister in a meeting on the 4 March 2020 30 of 101 xii. Acting in a dismissive and aggressive way towards Stuart Gillett in a Clinical Governance Meeting xiii. The request at a departmental meeting for staff to write supportive material in relation to a managerial disagreement in January 2020

[128]In response to the offer of an appeal, the claimant’s then barrister wrote on 27 October 2023 saying the claimant was not able to provide “full grounds supporting an appeal” until full notes of the disciplinary hearing, previously requested on 23 October 2023, were provided. Notes of the hearing were sent to the claimant on 13 December 2023 and a provisional date for the appeal hearing was suggested as 1 February 2024. The claimant’s barrister was asked to confirm by 18 December 2023 whether he and the claimant would be available and, if not, to provide other suitable dates. The same letter indicated that grounds of appeal should be sent by 5 January 2024. On 15 December the claimant’s barrister indicated that he could attend on 1 February 2024, although nothing was said in relation to the claimant’s attendance either by the claimant himself or his barrister. Because no grounds of appeal were submitted the claimant’s barrister was chased on 25 January 2024 asking whether he was planning to send any.

[129]Then, on 26 January 2024, a new law firm indicated they were now representing the claimant. They asked for the 1 February hearing to be re-arranged. Alfredo Thompson, Chief People Officer at the Trust, replied on 29 January 2024 pointing out that the 1 February 2024 date had been agreed with the claimant’s previous representative but as no grounds of appeal were received by 6 January 2024 that date was then cancelled. Mr Thompson went on to state that it was concerning that this Trust had still not received the claimant’s written grounds of appeal which should have been provided by 5 January 2024. The email goes on to say that if the claimant would like the Trust to rearrange the appeal hearing written grounds of appeal should be provided by no later than 9 February 2024.

[130]On 13 February 2024 the claimant wrote to Mr Thompson himself. The email says that the Trust will be aware that the claimant “broadcast last Friday on Newsnight a considerable tranche of [his] experience having made PIDA disclosures to ex MD Bernie Marden”. He goes on to say that “the evidence gathering around the appointment and engagement of Simon Atkinson is still underway which will of course inform [his] action against [the Trust] and any 'supposed' disciplinary proceedings”. Mr Thompson replied on 14 February 2024, copying in the claimant’s law firm, saying that as the deadline for grounds of appeal had passed, despite being previously extended, the trust would assume that the claimant no longer wished to appeal. Accordingly, no appeal hearing took place.

[131]After the claimant’s appearance on Newsnight the Trust issued a notification to all staff regarding the claimant’s dismissal. The link was also provided to the 31 of 101 High Court judgement as well as reference to the upcoming Employment Tribunal hearing. The notification included the following: Whilst the Royal United Hospitals Bath NHS Foundation Trust would not ordinarily share information about internal disciplinary processes, it is a matter of public record that the Trust has conducted a disciplinary process after an external investigation made findings that Dr Serryth Colbert had displayed intimidating and bullying behaviour towards a number of colleagues. In June 2023, Dr Colbert sought an interim injunction relating to the manner in which the Trust had conducted the disciplinary proceedings. This application was considered by a High Court Judge at a hearing and Dr Colbert’s application for an injunction was dismissed. The Judgment can be found online and this includes the factual background. A spokesperson for the Trust said, “We have a zero-tolerance approach to intimidation and bullying. We encourage staff to speak up whenever they feel they are being, or have been, bullied. Our zero-tolerance approach is designed to stop bullying and promote a healthy working environment. It is also intended to stop the development of toxic working environments because we know such environments can adversely affect outcomes for our patients.” The spokesperson added, “We also encourage staff to speak up whenever they see anything that causes concern and we have a number of ways in which staff can do this, including our Freedom to Speak Up service. We will always investigate any such concern. We have never dismissed anybody for whistle blowing and we never will.”

[132]Eventually, concerns raised by the claimant on 8 January 2020 about an operation undertaken by Mr Felstead were the subject of an independent clinical review carried out by the Royal College of surgeons on behalf of the individual patient. The patient was written to on 10 October 2024 by the Chief Medical Officer of the respondent, who informed the patient that the results of the review showed that the patient did not receive optimal treatment. The review itself indicates that the team concluded that the case resulted in a notably poor outcome and the complexity of the case did not excuse the sub optimal surgical results, suggesting that more experienced hands might have achieved a better outcome. Summary of relevant law i. Protected disclosures

[133]The law relating to protected disclosures has a statutory basis in the Employment Rights Act 1996 (ERA) as follows: 32 of 101 43B Disclosures qualifying for protection. (1)In this Part a “ qualifying disclosure ” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, 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, is being or is likely to be deliberately concealed 43FDisclosure to prescribed person. (1)A qualifying disclosure 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. (2)An order prescribing persons for the purposes of this section may specify persons or descriptions of persons, and shall specify the descriptions of matters in respect of which each person, or persons of each description, is or are prescribed 43GDisclosure in other cases. (1)A qualifying disclosure is made in accordance with this section if— (a ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b)[ the worker] reasonably believes that the information disclosed, and any allegation contained in it, are substantially true, (c)he does not make the disclosure for purposes of personal gain, (d)any of the conditions in subsection (2) is met, and (e)in all the circumstances of the case, it is reasonable for him to make the disclosure. (2)The conditions referred to in subsection (1)(d) are— 33 of 101 (a)that, at the time he makes the disclosure, the worker reasonably believes that he will be subjected to a detriment by his employer if he makes a disclosure to his employer or in accordance with section 43F, (b)that, in a case where no person is prescribed for the purposes of section 43F in relation to the relevant failure, the worker reasonably believes that it is likely that evidence relating to the relevant failure will be concealed or destroyed if he makes a disclosure to his employer, or (c)that the worker has previously made a disclosure of substantially the same information— (i)to his employer, or (ii)in accordance with section 43F. (3)In determining for the purposes of subsection (1)(e) whether it is reasonable for the worker to make the disclosure, regard shall be had, in particular, to— (a)the identity of the person to whom the disclosure is made, (b)the seriousness of the relevant failure, (c)whether the relevant failure is continuing or is likely to occur in the future, (d)whether the disclosure is made in breach of a duty of confidentiality owed by the employer to any other person, (e)in a case falling within subsection (2)(c)(i) or (ii), any action which the employer or the person to whom the previous disclosure in accordance with section 43F was made has taken or might reasonably be expected to have taken as a result of the previous disclosure, and (f)in a case falling within subsection (2)(c)(i), whether in making the disclosure to the employer the worker complied with any procedure whose use by him was authorised by the employer. (4)For the purposes of this section a subsequent disclosure may be regarded as a disclosure of substantially the same information as that disclosed by a previous disclosure as mentioned in subsection (2)(c) even though the subsequent disclosure extends to information about action taken or not taken by any person as a result of the previous disclosure 43HDisclosure of exceptionally serious failure. (1)A qualifying disclosure is made in accordance with this section if— (b) the worker reasonably believes that the information disclosed, and any allegation contained in it, are substantially true, (c)he does not make the disclosure for purposes of personal gain, (d)the relevant failure is of an exceptionally serious nature, and (e)in all the circumstances of the case, it is reasonable for him to make the disclosure. 34 of 101 (2)In determining for the purposes of subsection (1)(e) whether it is reasonable for the worker to make the disclosure, regard shall be had, in particular, to the identity of the person to whom the disclosure is made 47B Protected disclosures. (1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. 48 Complaints to employment tribunals (1A)A worker may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 47B. …… (2) On a complaint under subsection… (1A)… it is for the employer to show the ground on which any act, or deliberate failure to act, was done. (3) An employment tribunal shall not consider a complaint under this section unless it is presented— (a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or (b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. (4)For the purposes of subsection (3)— (a) where an act extends over a period, the “date of the act” means the last day of that period, and (b) a deliberate failure to act shall be treated as done when it was decided on; and, in the absence of evidence establishing the contrary, an employer, a temporary work agency or a hirer shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done.

[134]Section 43A of the ERA provides that a protected disclosure means a qualifying disclosure as defined by section 43B. Section 43B(1) then goes on to say 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 various matters set out in that section.

[135]The only matters relied on in this case are:(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, and (d) that the health or safety of any individual has been, is being or is likely to be endangered.

[136]In order for a disclosure to be protected under the ERA three conditions must be met:(i) it must be a disclosure of information,

(ii) it must be a qualifying disclosure, as set out above , and

(iii) it must be made in accordance with one of the 6 specified methods of disclosure ( sections 43C–43H ERA). A qualifying disclosure that is made to the worker’s employer will be a protected disclosure. 35 of 101

[137]In Cavendish Munro Professional Risks-v-Geduld, it was held there must be a disclosure of facts not simply voicing a concern, raising an issue or setting out an objection. In Kilrane-v-London Borough of Wandsworth

[2018] ICR 1850

, the Court of Appeal held that ‘information’ in the context of section 43B is capable of covering statements which might also be characterised as allegations. Thus, information’ and ‘allegation’ are not mutually exclusive categories of communication, rather only that a statement which is general and devoid of specific factual content cannot be said to be a disclosure of information tending to show a relevant failure. It was said that ‘it would be a pity if tribunals were too easily seduced into asking whether it was one or the other when reality and experience suggest that very often information and allegation are intertwined’.

[138]The public interest requirement in section 43B(1) can be satisfied even where the basis of the public interest disclosure is wrong and/or there was no public interest in the disclosure being made, provided that the worker’s belief that the disclosure was made in the public interest was objectively reasonable. ii. Detriments on grounds of protected disclosures

[139]Section 47B ERA provides that 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.

[140]Detriment is to be interpreted widely: Warburton-v-Chief Constable of Northamptonshire Police

[2022] EAT 42

. Although it is not a wholly objective test, it is enough that a reasonable worker might have taken the view that what occurred is detriment.

[141]The claimant must prove that they have made a protected disclosure and that there has been detrimental treatment on the balance of probabilities.

[142]A causal nexus between the fact of making a protected disclosure and the decision of the employer to subject the worker to the detriment is required. However, the Respondent then has the burden of proving the reason for the detrimental treatment if the Claimant meets the threshold. Section 48(2) ERA provides: it is for the employer to show the ground on which any act, or deliberate failure to act, was done.

[143]In International Petroleum Ltd & Ors v Osipov & Ors

UKEAT/0058/17

the Judge said: “84. Under s.48(2) ERA 1996 where a claim under s.47B is made, "it is for the employer to show the ground on which the act or deliberate failure to act was done". In the absence of a satisfactory explanation from the employer which discharges that burden, tribunals may, but are not required to, draw an adverse inference: see by analogy Kuzel v. Roche Products Ltd

[2008] IRLR 36

of 101 530 at paragraph 59 dealing with a claim under s.103A ERA 1996 relating to dismissal for making a protected disclosure.

[144]Section 47B is infringed where the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer's treatment of the individual concerned: see Fecitt and others v NHS Manchester

[2011] EWCA Civ 1190

[2012] ICR 372

[145]The tribunal is mindful of the proper approach to dealing with a multiple protected disclosures detriment claim as identified in Blackbay Ventures Ltd (T/A Chemistree) v Gahir

[2014] IRLR 416

requiring a tribunal to identify each disclosure relied upon together with the alleged or likely failure to comply with an obligation and to identify the nature of the obligation; to address the basis upon which the disclosure was said to be protected and qualifying; to determine whether the claimant had the necessary reasonable belief (Babula v Waltham Forest College

[2007] IRLR 346

) to determine, as appropriate, whether the claimant acted in good faith or whether the disclosure was made in the public interest (Chesterton Global Ltd (t/a Chestertons) and anor v Nurmohamed (Public Concern at Work intervening)

2018 ICR 731

, CA); and where a detriment short of dismissal was alleged, identify the detriment and the date of the act or deliberate failure to act.

[146]The tribunal also notes that two communications can be aggregated so that together they convey sufficient factual content to establish a qualifying disclosure, the factual question (Simpson v Cantor Fitzgerald Europe

[2020] EWCA Civ 1601

) being whether they can be read together.

[147]The law relating to whether an employer can be liable even if the individual or individuals who made the decision causing the claimant to suffer detriment even if they did not know about the claimant’s protected disclosure is not entirely settled. The cases which are the subject of debate tend to involve issues relating to retaliation and manipulation of decision makers. However, in this case it was clarified that the claimant does not pursue a case along the lines of Royal Mail Group Ltd v Jhuti

2020 ICR 731

, SC either for the detriment or the dismissal

claims.

[148]There is a difference between the disclosure or protected act itself and the manner in which the disclosure or protected act is carried out. The cases of Martin v Devonshire Solicitors

[2011] ICR 352

and Panayiotou v Chief Constable of Hampshire Police

[2014] IRLR 500

are the leading authorities on this topic, though Kong v. Gulf International Bank (UK) Ltd

[2022] ICR 1513

also has an important guidance for tribunals to bear in mind.

[149]Therefore, in an appropriate case, an employer can take action against a worker who makes a protected disclosure in what is regarded as an unreasonable or unacceptable manner, or who acts in an unacceptable way in relation to a protected disclosure; and in such cases it is legitimate for tribunals to find that 37 of 101 although the reason for dismissal is related to the disclosure, it is not in fact because of the disclosure itself.

[150]However, where the whistleblower is subject to a detriment without being at fault in any way, tribunals will need to look with a critical and sceptical eye to see whether the innocent explanation given by the employer for the adverse treatment is indeed the genuine explanation. The detrimental treatment of an innocent whistle-blower necessarily provides a strong prima facie case that the action has been taken because of the protected disclosure and it cries out for an explanation from the employer.

[151]As explained by Simler LJ in the Gulf case: Once the reasons for particular treatment have been identified by the fact-finding tribunal, it must evaluate whether the reasons so identified are separate from the protected disclosure, or whether they are so closely connected with it that a distinction cannot fairly and sensibly be drawn. iii. Automatic unfair dismissal

[152]Section 103A ERA provides: An employee who is dismissed shall be regarded for the purposes of this Part 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

[153]This therefore renders the dismissal of an employee automatically unfair where the reason (or, if more than one reason, the principal reason) for his dismissal is that he made a protected disclosure. In such cases the reasonableness or otherwise of the dismissal is not relevant.

[154]Reason for a dismissal connotes the factor or factors operating on the mind of the decision maker which cause them to take the decision. An employee will only succeed in a claim of automatically unfair dismissal if the tribunal is satisfied, on the evidence, that the ‘principal’ reason is that the employee made a protected disclosure. The principal reason is the reason that operated on the employer’s mind at the time of the dismissal.

[155]In this case, as the claimant has sufficient service, the burden is on the employer to show the reason for dismissal. iv. Ordinary unfair dismissal

[156]In relation to “ordinary” unfair dismissal, section 98(1) ERA states that it is for the employer to show the reason for the dismissal and that that reason falls within subsection 2 or is some other substantial reason of a kind so as to justify the dismissal. In relation to the fairness of the dismissal section 98(4) states: 38 of 101 “where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –(a) depends on whether in the circumstances (including the size of the administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case”

[157]It is not for the Tribunal to substitute its judgment for that of a reasonable employer in deciding whether or not the employer acted reasonably for the purpose of section 98(4). Rather, the Tribunal should ask itself whether or not the decision to dismiss fell with the range of reasonable responses of a reasonable employer.

[158]The approach to be adopted by an Employment Tribunal where an employee is dismissed on the ground that the employer had entertained a suspicion or belief of misconduct by the employee was explained by (Arnold J) in British Home Stores Ltd v Burchell

[1978] IRLR 314

: “What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.”

[159]Since Burchell only the burden of proving the reason for dismissal is on the employer. The other questions have neutral burdens.

[160]In Sainsbury’s Supermarkets Ltd v Mr P J Hitt

[2002] EWCA Civ 1588

Mummery LJ made clear that it is necessary to apply the objective standards of the reasonable employer to all aspects of the question whether the employee had been fairly and reasonably dismissed (para 29). At paragraph 30 Mummery LJ stated: “… the range of reasonable responses test (or, to put it another way, 39 of 101 the need to apply the objective standards of the reasonable employer) apply as much to the question of whether the investigation into the suspected misconduct was reasonable in all the circumstances as it does to the reasonableness of the decision to dismiss for the conduct reason.”.

[161]A tribunal is not bound to hold that any procedural failure by the employer rendered the dismissal unfair: it is one of the factors to be weighed by the tribunal in deciding whether or not the dismissal was reasonable within section 98(4) ERA. The weight to be attached to such procedural failure should depend upon the circumstances known to the employer at the time of dismissal, not on the actual consequence of such failure. v. Victimisation

[162]Section 27(1) of the Equality Act 2020 (EqA) provides: ‘A person(a) (A) victimises another person

(b) (B) if A subjects B to a detriment because (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.’ Protected act includes making an allegation (whether or not express) that A (the alleged victimiser) or another person has contravened the EqA (section 27(2)).

[163]Victimisation claims under the EqA are subject to the ‘shifting burden of proof’ set out in section 136 of the Act. This provides that the initial burden is on the claimant to prove facts from which the tribunal could decide, in the absence of any other explanation, that the respondent has contravened a provision of the Act (a ‘prima facie case’). The burden then passes or ‘shifts’ to the respondent to prove that discrimination did not occur. If the respondent is unable to do so, the tribunal is obliged to uphold the discrimination claim. vi. Wrongful dismissal

[164]The test for determining if there is a repudiatory breach of contract is not whether an employer reasonably believes there has been such a breach but proof that there has actually been such a breach.

[165]The issue here is whether Respondent dismissed the Claimant in breach of contract, specifically in breach of its obligation to provide him with notice. The test for determining if there is a repudiatory breach of contract is not whether an employer reasonably believes there has been such a breach but proof that there has actually been such a breach. Repudiatory conduct is conduct undermining the trust and confidence which is inherent in the particular contract of employment such that the employer should no longer be required to retain the employee in his employment. In determining whether an employee has repudiated the contract of employment, factors such the nature of the employment and the employee’s past conduct might be relevant. Motivation for wanting to dismiss summarily is not relevant. 40 of 101

Conclusions

[166]In essence, the claimant’s case is that after he raised legitimate concerns about patient safety, rather than acknowledging and acting on those concerns, the respondent, as is asserted to be common in other “conservative institutions”, sought to alienate him and close down his complaints. Unlike some of his colleagues, there was never an issue of clinical competence affecting the claimant. The claimant also describes these events as a “covering backs” culture which was “ingrained” at the respondent.

[167]Although it is conceded by the claimant that there is a “paucity of direct evidence” which connects the respondent’s witnesses to the disclosures which the claimant relies upon it is also pointed out that such evidence is rarely overt. However, what is clear is that the claimant was subject to three processes of investigation after the point in time at which he had raised one or more of the protected disclosures relied on. It is also said that the evidence Miss Cunningham gave at the tribunal, which paved the way for a disciplinary hearing, was “unpersuasive”. For example, she denied that the covert recording amounted to a “sting” even though Mr Felstead conceded in his interview that he knew the claimant was going to come and see him and therefore must have pressed record before the conversation started.

[168]Further, as we have found, just prior to the chronology of events set out above, the claimant’s skills and abilities, both in relation to clinical and nonclinical aspects, were affirmed by some of his colleagues in a 360° review. This, the claimant says, is in stark contrast to the picture painted of him by other colleagues whom he says were influenced by the fact that he raised patient safety concerns. The claimant also says many, if not all, of the allegations against him were “extremely minor” in nature and would not have been pursued but for the fact that he had raised such concerns. Moreover, the claimant says that when he was covertly recorded by a colleague, rather than treating the incident as amounting to gross misconduct, as is suggested by the respondent’s “code of expectations” policy, no formal action was taken against the relevant individual at all. This, the claimant says, is more than suggestive of differential treatment. Instead, the claimant says he was “targeted” by subsequent reviews and investigations after which information was unfairly redacted preventing him from being able to defend himself adequately.

[169]We also note that formal complaints were not brought against him by Mr Felstead, Mr Gillet or Mr Robinson. Within emails, at least, Mr Felstead nonetheless conceded that he was able to respond to the claimant in forceful terms. Added to this were the ongoing issues relating to disclosure both during and prior to the litigation process. It was not until relatively recently that it was revealed to the claimant that the documents he was provided prior to the disciplinary hearing differed from those given to the panel. 41 of 101

[170]Undoubtedly, whatever the legal niceties relating to the law of qualifying disclosures, the claimant raised some genuine and legitimate concerns about patient safety and clinical competence. However, it was the claimant who ended up being the subject of disciplinary proceedings and was ultimately dismissed. Accordingly, and somewhat understandably, the claimant concludes that the underlying cause of all the detriments, unfavourable treatment and his dismissal was the fact that he raised concerns about, among other things, patient safety.

[171]However, this summary of the claimant’s case ignores the fact that he failed, without notice or explanation, even to attend his disciplinary hearing. Although he was given numerous extensions and opportunities, he also failed to lodge any grounds of appeal against his dismissal. Despite this, the claimant said in his evidence to the tribunal that he was “dismissed in the most vicious and aggressive way ever”. His views differ significantly from the reality of what occurred.

[172]Prior to the disciplinary hearing the claimant, via an email from his BMA representative on 26 October 2021, accepted some wrongdoing on his part. The email explained that he was not only embarrassed by but also acknowledged that there were aspects of his behaviour that he regretted. This, however, was not the evidence the claimant gave to the tribunal. Despite the BMA representative referring to the recording, the claimant’s case, both during his own cross-examination and in relation to what was put to the respondent’s witnesses, was that there was “nothing inappropriate or aggressive” in what the claimant did or said during the recording. This is in stark contrast to the conclusions of Miss Cunningham and also what we heard for ourselves. The behaviour displayed by the claimant towards his colleague was a long way from the type of interaction employees and managers are entitled to expect in the workplace. Mr Felstead would have felt intimidated during the during the antagonistic exchange.

[173]During cross-examination the claimant failed to make sensible concessions. He would not accept that even if some of the allegations were true that they amounted to wrongdoing on his part. One example related to an allegation that he wheeled his chair up to a dental nurse, came “right up to [her] face” and “pointed his finger”. This, according to the claimant, if true, was not “inappropriate” behaviour. This impacted on his evidence as a whole.

[174]In terms of any “cover up”, although unknown to the claimant at the time, concerns about patient safety and clinical competence were investigated and pursued by the respondent. The Freedom to Seak up Guardian, Ms Hopkins, who has since left the Trust, concluded that the respondent was “very open and responsive to speaking up matters”. The documents we have seen illustrate that when matters raised by the claimant were pursued by Ms Hopkins the Trust, and individuals within it, were responsive to the concerns highlighted. There is evidence of delay, but not of any cover-up. 42 of 101

[175]It is somewhat telling that when the claimant was taken, during crossexamination, to the report commissioned by the Trust into, among other things, concerns raised by him about the clinical practice of Mr Vardon-Odonkor, the claimant explained that he had not even read it after it had been disclosed to him as part of this litigation. Had he done so he may have been comforted to some extent both by the findings in relation to Mr Vardon-Odonkor, but the report’s conclusions that there was “no evidence” that the claimant’s intentions in raising such concerns were “malicious” but were instead “out of patient safety and care”.

[176]The claimant saw conspiracy even when clearly there was none. For example, he regarded it as “odd” and “bizarre” that the disciplinary panel failed to uphold all the allegations against him despite the fact that he did not attend or be represented at the hearing. We conclude this is indicative of a detailed reasoning process which is articulated in the outcome letter and notes of the hearing, rather than any attempt to do the claimant down.

[177]However, we also carefully noted that Mr Vardon-Odonkor only received an informal warning for conduct and behaviour which, among other things, was found to be “rude” and “unprofessional”. Further, although the concerns relating to Mr Vardon-Odonkor were raised by the claimant in early 2017 it was not until June 2018 that the preliminary investigation was concluded. Similarly, the investigation into the clinical conduct of Mr Felstead was not completed until October 2024 despite initial concerns being raised in January 2020. Although it was concluded there was a poor outcome no disciplinary or capability procedure was instigated against Mr Felstead.

[178]There were also behavioural allegations made against Mr Felstead, albeit, during the disciplinary investigation of the claimant. For example, Miss Cunnigham said in the conclusions of her report: It is appropriate to point out that [a junior doctor] gave a very compelling account of an unpleasant conversation with [Mr Felstead] that took place at his request over lunch time on this date. [The junior doctor] became upset as she recalled the occasion and, in summary, she stated that [Mr Felstead] was very angry and cross with her and spoke to her in way that she had not been spoken to before at work.

[179]We balance this with Mr Marden’s evidence that although the outcome of the Felstead investigation was a tragedy for the individual patient concerned it was important to “assess the complications and be curious and open”. Failing to do so may lead to a cover up. In the circumstances of that particular case, it was determined that it was not appropriate to move forward with a disciplinary investigation. Similarly, the evidence about Mr Felstead’s behaviour was not only uncovered as part of the Cunningham investigation but was not downplayed and instead was included in the conclusions section of her report. 43 of 101

[180]Where there were factual issues in dispute, especially in relation to the reasons why both the respondent and claimant did things, we not only listened carefully to the content of the oral evidence, but we also considered the extent to which the evidence was consistent with other factual accounts and documents. We also assessed other indicators relevant to whether we could have confidence in the testimony and witness statements. For example, we considered whether the witnesses gave straightforward, non-evasive answers to questions, rather than seeking to evade, deflect or argue. We also considered the potential for evidence to be affected by unconscious bias and what, if anything, the witness has to gain or lose through their evidence being accepted and whether the witness was trying to help the tribunal independently of their personal interests or allegiances.

[181]We move on to consider the individual qualifying disclosures relied on. These were clarified and distilled from claims 1 and 3 and set out in the agreed lists of issues. There was no application to change or amend them during the course of the hearing. PD4 in claim 3 which concerned a number of oral disclosures (a – k) to his BMA representative, and therefore not his employer, was withdrawn during the hearing. Very helpfully, both parties set out their respective positions in relation to the disclosures both in the agreed lists of issues and, after the evidence was heard, in their closing written submissions.

[182]There were omissions in the claimant’s statement. The claimant failed to set out anywhere in his statement whether and why he believed the disputed disclosures were in the public intertest. Consequently, he was not crossexamined on this issue, even though it was clearly a matter of dispute in some cases due to his motivation. However, we also noted that endangerment of health is, by its very nature, a matter of public interest. The claimant also failed to articulate, either in his statement or oral evidence, any legal obligation he was relying on pursuant to section 43B(1)(b) ERA. As is set out above, even though disclosures to his MP and the CQC were disputed, as a matter of fact, the relevant documents were disclosed for the first time during the claimant’s evidence. The disclosure took place after the tribunal queried why the relevant documents were not referred to in the paragraph dealing with the said

[183]PD1 in claims one and three is a verbal disclosure said to be made in December 2017 to Mr McFarlane. The content of the alleged disclosure relates to concerns raised by the claimant about the clinical practice of Mr Vardon-Odonkor whom the claimant was saying was endangering patient safety. We concluded this disclosure did not take place. However, the respondent conceded that concerns, which were substantively the same as the alleged conversation, were raised with Mr McFarlane in October 2017. These concerns were later summarised in the claimant’s emails also sent in October 2017. The respondent accepts that the October 2017 conversation, and it must follow therefore the emails, were disclosures of information which the claimant reasonably believed was made in 44 of 101 the public interest and tended to show that the health or safety of an individual has been, was being or is likely to be in endangered.

[184]PD3 in claim 3 is a verbal disclosure in February 2020 to Dr Marden (CEO) that Ceri Hughes (OMFS Cons Bristol and Oncology MDT lead in Bristol) delayed the treatment of a cancer patient for no good reason. At paragraph 7 of his statement Dr Marden says he does not recall the claimant raising such a concern with him in February 2020, or at any other time. The claimant deals with the disclosure at paragraphs 52 to 54 of his statement. The claimant explains that Mr Hughes was “furious” with him and alleged that the claimant was undermining him. The claimant goes on to explain that Mr Hughes then emailed a number of people about the issue. In terms of the verbal disclosure to Mr Marden, all the claimant says is that he “disclosed it” to Mr Marden. It is also referred to at paragraph 7 of the third claim in terms that Mr Hughes delayed the treatment of a cancer patient for no good reason.

[185]Although Dr Marden made an incorrect reference in his statement to what he recalled was a contrary state of affairs we are not satisfied, on the balance of probabilities, that the disclosure was made to him by the claimant in February 2020, or at any other time. We were not taken to any contemporaneous or corroborating evidence about the February 2020 verbal disclosure. The third claim form in which the disclosure appears was received at the tribunal on 15 March 2024. The first claim form, which was presented on 7 June 2021, well over a year after the alleged disclosure, makes no reference to it at all.

[186]PD4 in claim 3 refers to oral disclosures to Sheena Lindegaard of the BMA regarding patient harm. This disclosure is no longer relied on.

[187]PD5 in claim 3 is the claimant made complaints to Mr Ireland, Mr Handel, Ms Lindegaard and Mr Tom Simpson (Consultant Anaesthetist) verbally that Mr Derek Robinson was harassing him by accusing him of ‘making noise’ when the claimant raised patient safety concerns. The claimant leads the only positive evidence in respect of this disclosure. The respondent does not accept this communication happened.

[188]The allegation about noisemaking was also put to Mr Robinson directly in an email of 24 January 2020. The email states: “at this point you told me that you hear too much noise about me. I asked you who was making the noise to which you reply Stuart and Mark Vardon”. The claimant went on to explain that he felt hunted by Mr Gillett and that patient safety concerns have arose in relation to Mr Vardon. There is also a reference to the allegation of “noise” in the script read out by the claimant on 4 November 2020.

[189]At paragraph 59 of the claimant’s statement is simply one sentence in which he says he disclosed this to “Prof Ireland, Dr Handel Dr Thornton and Dr Simpson.” He does not say when or in what circumstances he raised the issue. We are not 45 of 101 persuaded, on the balance of probabilities, that the disclosure was made verbally to these individuals. If it was made to Ms Lindegaard, she is not an employee of the respondent and it is not suggested that the further qualifying criteria for such a disclosure were met. The claimant provided no details at all in relation to the date, even over a period of months, when the disclosure or disclosures were said to have been made. However, ultimately, this makes very little difference to the claimant’s overall case because it is conceded that a disclosure was made in similar terms to Dr Marden and Ms Hopkins on 4 November 2020.

[190]PD2 in claim one (which is also PD6 in claim three) “is a verbal disclosure, on 30 June 2020 to Louisa Hopkins, Freedom to Speak Up Guardian, where the Claimant complained of a bullying culture in the Respondent Trust and that their concerns that his complaints about Mr Vardon-Odonkor (the subject of PD1) had not been dealt with adequately or at all”.

[191]There is no dispute that the communication was made (although it was initially disputed in the list of issues). In her statement, Ms Hopkins says the claimant “shared concerns that he was being bullied after raising concerns about Mr Vardon-Odonkor’s practice”. However, the respondent says it does not accept that the claimant reasonably believed that this disclosure was in the public interest or that it tended to show a relevant failure. The respondent says the claimant approached the Freedom to Speak up Guardian as a consequence of, and in retaliation against, the respondent’s actions in commencing an investigation into Miss Gillett’s complaints.

[192]At this time the claimant had been removed from his position as Clinical Lead pending investigation of Ms Gillett’s complaints on or around 11 May 2020. The preliminary investigation report into Mr Vardon-Odonkor’s practice, which was completed in about June 2018, conducted by the deputy head of medicine concluded there was no evidence that the claimant’s intentions in raising concerns were malicious but were, instead, “out of patient safety and care”. This was in spite of the fact that the investigation also records that Mr VardonOdonkor strongly believed that the allegations were wilfully malicious towards

[193]In her evidence to the tribunal Miss Hopkins said she also believed that the claimant raised patent safety concerns honestly. The preliminary investigation recommended that allegations were progressed to the formal stage of maintaining high professional standards).

[194]There was also some delay in dealing with the Vardon-Odonkor issues. Mr McFarlane explained in his evidence that, “the investigation took quite a while to be completed, for various reasons including periods of sickness absence, Mr Vardon-Odonkor only working at the Trust one day per week, the availability of Mr Vardon-Odonkor’s BMA representative and the investigator’s clinical work”. The outcome, which was eventually sent on 7 June 2018, was not forwarded to 46 of 101 the claimant as investigations of these sorts are nearly always confidential. Although the claimant was informed of the recommendations which concerned him, his knowledge was very limited. The claimant also believed that the breakdown of the mediation process was not his fault.

[195]In relation to this disclosure we conclude that the claimant did reasonably believe that his complaints about clinical practice were not dealt with adequately or at all. That was a disclosure of information which tended to show that the health and safety of patients has been, was being or was likely to be endangered. We also conclude that the claimant reasonably believed that such failings were in the public interest.

[196]PD3 in claim one (PD7 in claim 3) is a verbal disclosure on 4 November 2020 to Dr Marden, Medical Director, and Miss Hopkins, Freedom to Speak up Guardian. Although this was a verbal disclosure, as we have set out above, the claimant read out a prepared note at the meeting. Accordingly, there is no dispute about what was said. Within the verbal disclosure there are some 5 different disclosures are relied on. Although it was initially submitted by the respondent that the communication was not on all fours with the precise terms alleged by the claimant, both parties now accept the script reflects what was said by the claimant on 4 November 2020.

[197]The respondent says this does not amount to a qualifying disclosure because the claimant approached Dr Marden and Miss Hopkins in consequence of, and retaliation against, the respondent’s actions in commencing an investigation into Ms Gillett’s complaints. Accordingly, the respondent says the claimant did not reasonably believe that the disclosure was either in the public interest or that it tended to show a relevant failure. The respondent relies on the fact that the claimant read from a script. Also, within the script the claimant wrongly suggests that he was removed from his role as clinical lead after speaking to Miss Hopkins, which misstates the sequence of events.

[198]However, in his evidence, Dr Marden, who was heavily involved in the facts of this case, accepted that the issues and complaints raised at the meeting were made “in good faith”. Miss Hopkins also accepted that the claimant raised concerns at the meeting “honestly”. There is nothing in her email, written on 9 November 2020, a few days after the meeting, to suggest otherwise. In her statement to the tribunal, Miss Hopkins explains that “having heard [the claimant’s] concerns, and by then other staff concerns that included concerns about Surgery division management ability to tackle issues, I believed I should raise this to the Chief Executive so she and other members of the executive had oversite of the issues raised”.

[199]In our view, clearly the claimant believed that part of the reason for his “removal” related to the fact that he had raised patient safety concerns. He also reasonably believed that double standards may have been applied to other colleagues 47 of 101 relating to ad hoc clinical procedures undertaken by one member of staff on another. Similarly, the articulation of a concern about sex discrimination in relation to the differential treatment of two full-time speciality grade doctors was something which was reasonably believed by him. Although there may have been mixed motives and the claimant’s allegations were, at least in part, a defence mechanism, that does not detract from the fact that he reasonably believed both that there were breaches of legal obligations, relating to discrimination law, and issues relating to health and safety which were also in the public interest. Despite the rather unsatisfactory state of the evidence we are satisfied, in this instance, that the test is met.

[200]PD2 in claim three is a verbal disclosure to Jaspall Phull (Consultant Urologist and Lead of Governance for the Trust) and Lesley Jordan (Consultant Anaesthetist and Patient Safety Lead) in January 2021 of inappropriate and unsafe ‘promotion’ of reception staff to act as registered staff nurses. There is no dispute that a communication was made between the claimant and the two individuals separately on 29 January 2021. The respondent also accepts that although the claimant’s evidence as to what he precisely said is opaque the claimant did, nonetheless, communicate to the two individuals that a member of reception staff was being used in an inappropriate or unsafe manner. This, the respondent concedes, also falls within the pleaded ambit of the disclosure relied on. However, the respondent disputes that the claimant genuinely believed that the staffing plan presented a risk or, if it did so, that that such a belief was reasonable.

[201]The staffing plan involved the utilisation of a trained HCA to undertake some minimal duties during a staffing crisis caused by covid. The claimant raised concerns with Mr Phull and Ms Jordan without emailing, speaking to or taking the time to seek out Mr Felstead who had agreed the rota with Sister Howes. When questioned on this issue during cross examination, the claimant failed to engage with the distinction between whether such duties were normally carried out by nurses and whether it was unsafe if such limited duties were carried out by a trained HCA. We regarded his evidence as evasive on this point. When giving evidence at the tribunal, on behalf of the claimant, Sister Howes explained that she was disappointed and angry with the reaction of some of the junior doctors. We conclude that the claimant, a senior consultant with leadership experience, would have appreciated the urgent need to do something to deal with the nursing shortage. There was nothing which ought to have been regarded as controversial in the context of a staffing crisis in the middle of covid. The claimant was, we find, in this instance, unduly motivated by a desire to undermine Mr Felstead. We therefore conclude that the claimant did not believe and/or reasonably believe, what was in reality an innocuous proposal, was unsafe or placed anyone’s health and safety at risk. Although the claimant had not seen Mr Felstead’s email about the proposal sent at 9:09 that morning, had his concerns been genuine he would have sought out Mr Felstead 48 of 101 to seek to understand better what had occurred in the midst of a national and local crisis rather than escalating the matter.

[202]Our findings accord, in the main part, with those of Miss Cunningham who dealt with this allegation in a relatively lengthy section of her investigation report after interviewing relevant witnesses and reviewing the documentation. Despite some criticism about the communication of the plan to those affected by Mr Felstead, she concluded that by speaking to Mr Phull and Ms Jordan the claimant was “provocatively” taking what may have been genuine concerns of the junior doctors and tried to escalate them in order to undemine the decision taken by Mr Felstead. In summary, she considered that the claimant “disruptively” stoked up the issue and failed to observe the department’s leadership structure thereby undermining Mr Felstead’s authority.

[203]Accordingly, we conclude that PD2 in claim three is not a qualifying protected disclosure.

[204]PD4 in claim one (PD 8 in claim 3) is a written disclosure on 4 February 2021 to Mr Felstead, Interim Clinical Lead of the Oral and Maxillofacial and Orthodontics Department, where the claimant observed a lack of adequate staffing and expressed concerns relating to the safety of working with diminishing staff numbers which they say was raised on behalf of junior doctors who did not feel comfortable raising these concerns themselves.

[205]In his evidence, the claimant clarified that the written disclosure relates to the email sent to Mr Felstead. The relevant paragraph of the email states as follows: Raising concern - following the mismanagement of the junior and middle grade doctors on Friday 29th of January for raising concerns for patient safety, they have lost confidence in the leadership and management of the department. It has been highlighted that following the manner in which their concerns were addressed on Friday some no longer feel comfortable raising such concerns. This is the opposite of the culture we would wish for. This places our junior doctors under exceptional levels of added mental stress-additional to the stress of the on-going pandemic. I have addressed their concerns but cannot emphasis [sic] how important it is to re-establish their confidence in the Dept, leadership and management. An apology should be offered to the junior and middle grade doctors as the first step to making this happen.

[206]By the time the claimant had written this email he had read the email from Mr Felstead which explained the decisions made and “discussed at very short notice”. The Felstead email also invited discussion about concerns or “alternative positive solutions”. 49 of 101

[207]The claimant’s email does not tend to show that in his reasonable belief lack of adequate staffing or concerns relating to diminishing staff numbers were a cause of concern. In any event, in part, for the reasons set out above, we find that the claimant did not genuinely or reasonably believe that the information conveyed about the events of 29 January 2021 tended to show a relevant failure or any such disclosure was in the public interest. By this time, of course, the claimant had the email from Mr Felstead but failed to engage with its contents.

[208]PD9 in claim 3 is the claimant’s Employment Tribunal claim issued on 7 June 2021. Among other things, in that claim form, the claimant raises the disclosures at the meetings on 30 June 2020 and 4 November 2020. We have already found that those disclosures amount to protected qualifying disclosures. Therefore, to this extent, the first claim form was a relevant qualifying disclosure, at least in part.

[209]PD10 in claim 3 is that in May 2023 the claimant made written disclosures to his MP, Wera Hobhouse, and the Respondent’s CQC Inspector, Amie Dew, regarding the patient safety issues, the Respondent’s failure to action them, and the detriments he had suffered as a result. Ms Hobhouse approached Ms Cara Banks (CEO) requesting an investigation into the same.

[210]As set out above, the disclosures were only provided to the respondent and the tribunal during the course of the hearing. These disclosures were not made directly to the claimant’s employer.

[211]The claimant simply says at paragraph 279 of his statement that “In May 2023 I made disclosures to my MP and the Respondent CQC Inspector Amie Dew regarding the patient safety issues, the Respondent’s failure to action them, and the detriments I had suffered”. Allegations not set out anywhere else in the tribunal bundle were included in those communications. They included, for example, allegations of fraud. Reference is made in the written closing submissions on behalf of the claimant to the Fraud Act 2006. Because the claimant gave no evidence in relation to these issues he was not crossexamined on them. No reference is made to section 43F ERA in the list of issues. However, without warning, reference was made to section 43F ERA in the claimant’s closing submissions. The claimant gave no evidence as to how sections 43G and H might be engaged. Had he done so he would have been cross-examined on them. Accordingly, we conclude that the claimant has not established that these two disclosures amount to protected qualifying

[212]PD11 in claim 3 is the claimant’s second Employment Tribunal (140502/2023) proceedings issued on 18 September 2023. Inexplicably, but unsurprisingly, this claim form was not even included in the bundle before the tribunal. The claimant’s only evidence on this disclosure is at paragraph 280 of his statement. He simply says, “In September 2023 I issued my second ET claim.” It is pleaded 50 of 101 in similar terms at paragraph 34 of the grounds of the third claim. The claimant’s closing submissions, seemingly erroneously, refer to the claim form in claim 3.

[213]The claimant was not questioned on this disclosure in cross-examination, presumably due to the paucity of evidence and information provided. The claim is for arrears of pay. It relates to what is said to be under payment of wages from December 2022 to date. Within the claim form the claimant explains that he was wrongly advised by his then BMA Representative who believed he was not entitled to be paid whilst on special leave. He goes on to say that the respondent’s special leave policy was used inappropriately.

[214]There is no dispute that the claim relates to wages. However, the claimant has given no evidence as to why his private law claim for wages against his employer is in the public interest. His belief, reasonable or otherwise, has simply not been articulated. Accordingly, we do not find this was a qualifying protected disclosure. Detriment and Victimisation claims

[215]We move on to consider the detriment and victimisation claims. The claimant has not sought to establish, either in his own evidence or via cross-examination, a specific link between particular protected disclosures or protected acts and detriments relied on. It was conceded on behalf of the claimant, in closing submissions, that there is no documentary evidence to show there was a causal link between any alleged disclosure and any alleged detriment.

[216]Although we have found that not all of the disclosures relied on amount to protected qualifying disclosures we will assume, for the purposes of the detriment claims, that all the disclosures which predate a particular detriment are qualifying. In other words, we will consider the claim at its high point and assume that the claimant has succeeded in establishing all the qualifying Detriment 1 claim 1: On or around 11 May 2020, remove the Claimant from his position as Clinical Lead pending investigation of Natalie Gillett’s

complaints

[217]The only qualifying disclosure pre-dating this decision is PD1. It is conceded that removal of the claimant from the clinical lead role amounts to a detriment. Dr Marden, in conjunction with Mr Robinson, took the decision to stand the claimant down as clinical lead of the OMFS department pending the determination of Ms Gillett’s complaint which was presented on 23 April 2020. After being challenged on the issue by the claimant’s BMA representative, Mr Robinson further articulated his reasoning in a letter dated 21 May 2020. In his evidence to the tribunal, Dr Marden went on to explain that Ms Gillett’s 51 of 101 complaints related to how the claimant performed his role of clinical lead, particularly in relation to her as a more junior member of staff.

[218]The claimant says the complaint from Ms Gillett was a “ruse” and there was no “lawful basis” on which it should have proceeded. It is also pointed out that ultimately the complaints were not taken forward by the disciplinary panel before Ms Walters.

[219]The decision makers took relevant advice from HR, who were copied into the letter notifying the claimant of the decision. In her letter of complaint, Ms Gillett explains that she had already tried to manage the incidents informally, as we have noted, and attached to the complaint were a list of what she considered were relevant incidents.

[220]It is difficult to see how either Mr Robinson or Mr Marden failed to proceed on a lawful basis. Their actions were in line with the respondent’s policies and standard HR advice. It was also made clear that the claimant’s case focuses on the decision-makers themselves. We conclude that the respondent has established that this decision had nothing whatever to do with any protected disclosure. It was not materially influenced by any disclosure. Detriment 2 claim 1: On or around 7 December 2020, subjecting the Claimant to the Simon Atkinson review and the manner in which it was conducted

[221]As we have found, 7 different staff members raised 12 concerns about the OMFS department. The variety of different issues raised by a range of people meant it was difficult to work out precisely what was going on. Accordingly, the decision to commission a review of the whole department was entirely logical and sensible. We conclude that the respondent’s decision to undertake a review of the OMFS department was sound, sensible and not materially tainted in any way by any protected act or qualifying disclosures.

[222]The claimant goes on to allege a number of different detriments under this subheading. We will deal with each in turn. (i) No published terms of reference for the Simon Atkinson review despite the Claimant and his trade union representative asking repeatedly

[223]No terms of reference were provided to anyone outside the oversight group. Because Mr Atkinson was conducting a cultural review it was not covered by the respondent’s standard grievance or investigation procedure. Dr Radley explained, and we accept, that the oversight group did not want to share the terms of reference with some and not others. The purpose and rationale of the review, as well as how people could contribute, was sent to all members of the Department. Although it was objectively reasonable for the claimant to view the 52 of 101 absence of shared terms of review as a detriment, we are satisfied that had nothing whatsoever to do with any qualifying disclosures or protected acts. (ii) Direct approach to Claimant by Simon Atkinson by email even though he concerns in the NHS’

[224]The claimant contends that if the review were to be regarded as being a process which sat outside the formality of a disciplinary investigation, then there should have been no need to contact the claimant directly.

[225]As one of the two consultants in the department, it was inevitable that Mr Atkinson would need to speak to the claimant when conducting his review. It was not a listening event and Mr Atkinson did not describe it as such. Mr Atkinson contacted the claimant and others directly by email. It is not reasonable to regard direct email contact as a detriment. In any event, we are entirely satisfied that it had nothing whatever to do with any qualifying disclosures or protected acts. (iii) Simon Atkinson conducted interviews with members of staff without a HR representative present.

[226]The claimant says because the review was conducted as an investigation the failure to be afforded the advantage of an HR representative being present was to his disadvantage. As we have found, the claimant’s BMA representative emailed on 13 January 2021 expressing concerns about the absence of an HR representative during the meetings with Mr Atkinson. Dr Marden replied on 21 January 2021 setting out the respondent’s reasoning for the absence of HR representatives. There was no policy requirement for the presence of an HR representative. We accept the evidence of Mr Atkinson that having HR present would have sent the wrong tone and it would be unhelpful to his review. Although it is reasonable for the claimant to regard the absence of such a representative as a detriment, we conclude that the absence of HR had nothing whatsoever to do with any qualifying disclosures or protected acts. (iv) Inaccurate minutes of meeting Simon Atkinson conducted with Claimant. from other interviews.

[227]The claimant says the taking of inaccurate minutes produced an incorrect account of the discussion which occurred and is so regardless of whether there were additions made by the Claimant which went beyond the matters discussed.

[228]The claimant added extensively to the notes of his meeting with Mr Atkinson. In some instances, the claimant says what was written was incorrectly recorded. 53 of 101 In other cases, the claimant added comments and things which were not said during the meeting. The claimant also provided an addendum as well as what is described as a post-interview note. Within the latter the claimant says he was concerned that Mr Atkinson presented his notes in an erroneous manner that could mislead the case manager. This, it was said, demonstrates a lack of neutrality. It is not suggested that the notes significantly distort what was said during the meeting.

[229]Mr Atkinson did not have administrative support. He was unable to take verbatim notes during any of his meetings. Instead, he later wrote down the main points of the discussion and then provided these notes to the interviewees. The meeting with the claimant lasted for over 3 hours. The subject matter was relatively complex and wide-ranging. At the claimant’s own admission, he came at Mr Atkinson “at 100 mph”.

[230]One of the examples of “incorrect recording” is in reference to the following note: SC felt very much as if he was the victim yet they make out that they are. There is no one to support him and this isn’t normal SC said he was tense.

[231]The claimant then added to the notes in green as follows: this is incorrectly recorded – SC states that those who should support him as CL have not just been unsupportive, but have demonstrated bias and prejudice towards SC – this has resulted in mismanagement and escalation issues that could and should have been managed and resolved locally by middle management and the head of division. SC states that he has spoken quickly to give a complete picture to SA with all relevant content re-sees concerns and that this appeared as tense – but that this was not SCs usual disposition.

[232]We see nothing untoward in the original note. What was added does not suggest that Mr Atkinson was trying to suppress any evidence. Further, Mr Atkinson made the notes in the expectation that they could be added to by the interviewees.

[233]We conclude that there is nothing suspicious or untoward about the notes made by Mr Atkinson of the claimant’s interview. What is described as an incorrect recording is more often than not a sensible précis of what the claimant claims to have said. It would not have been realistic for Mr Atkinson to write down everything the claimant said. Understandably, incorrect or miss-recording could objectively be regarded as a detriment. This is despite the fact that the claimant had the chance to alter the notes which were taken. In any event, we are satisfied that the way in which the notes were recorded, whether inaccurate or not, were not influenced in any way by any qualifying disclosures or protected acts. 54 of 101 (v) Simon Atkinson had no obvious relevant medical or other NHS experience to qualify him to lead an investigation into patient safety issues / bullying in the NHS.

[234]The claimant says that when judged by an individual without relevant industry experience he could not be satisfied with the findings which Mr Atkinson might make (and which he was not competent to make, when for example patient pathways were discussed).

[235]We found that both Dr Radley and Dr Marden agreed that Mr Atkinson would be well suited to the cultural review. Mr Atkinson was chosen because of his previous experience and also because he was independent, in the sense that he did not know any of the individuals within the OMFS department. The Trust had previous experience of instructing Mr Atkinson in various capacities.

[236]We are satisfied that the selection of Mr Atkinson, who was experienced in conducting such reviews in medical environments, had nothing whatsoever to do with any qualifying disclosures or protected acts. (vi) Simon Atkinson referred to the Department as ‘Oral Surgery’. The Claimant’s Department is ‘Oral and Maxillofacial Surgery and Orthodontics’. Further he did not appear to understand what a clinical lead is or what an OMFS surgeon is.

[237]The claimant says that the use of the incorrect title for the Department in which the claimant worked was a detriment as this revealed a misunderstanding of what the Department did and how the claimant operated within it.

[238]Mr Atkinson used the term oral surgery because others had done so. It was used by, for example, Dr Radley, when communicating the nature of the review to the Department. Everyone understood that the review related to OMFS. We are satisfied that Mr Atkinson, and everybody else, knew what department he was referring to when the term oral surgery was used. It cannot sensibly be said that this was a detriment. In any event, we conclude that use of the incorrect term had nothing whatsoever to do with qualifying protected disclosures or protected acts. (vii) Simon Atkinson insisted on referring to his review as a ‘listening event’ although it felt to the Claimant and others to be an investigation

[239]We have found that Mr Atkinson did not refer to the review as a listening event. Accordingly, the alleged detriment did not occur. (viii) Simon Atkinson did not approach his review with an open mind, he appeared to have preconceived ideas particularly about the Claimant 55 of 101

[240]It was submitted, on behalf of the claimant, that it is plain from Mr Atkinson’s early involvement that he had a closed mind and intended to “do the Claimant down”. This is said to be apparent from the chronology of Mr Atkinson’s involvement, and was to the claimant’s disadvantage. Of particular concern is that prior to even meeting the claimant Mr Atkinson conducted some internet research on the claimant and produce a summary document. The claimant also regards the resulting report as a being effectively an investigation into him, rather than the department as a whole. Many of the recommendations concerning individuals were directed at the claimant.

[241]We do not regard it as surprising that the claimant featured so heavily in the report because, as Mr Atkinson explained in his evidence, the claimant’s name came up in virtually every interview he did, one way or another. Therefore, the claimant was, as Mr Atkinson described, “centric” to the issues in the review. The claimant, as clinical lead, would set the cultural tone for the Department. Accordingly, it was entirely reasonable for Mr Atkinson to have, to some extent, concentrated on the claimant.

[242]Although Mr Atkinson was not directly aware of the alleged qualifying disclosures, which took place before his report, he was, nonetheless, aware of the substance, particularly of the matters discussed and disclosed by the claimant on 4 November 2020, because these were also discussed with Mr Atkinson during his interview with the claimant.

[243]When determining whether Mr Atkinson was in any way motivated or influenced by qualifying disclosures or protected acts or complaints relating to patient safety we considered why he would be motivated to act in such a way. We also considered subconscious reasoning. He was brought in to conduct an independent review. Mr Atkinson was keen to impress on the tribunal that he was not “anybody’s man” and was therefore not in any way inclined to come to a particular conclusion. When instructed on previous occasions he had informed the Trust they had “got things wrong”. Mr Atkinson was open and candid during his evidence to the tribunal. Further, he would have known that his review would not be determinative of any issues and likely to result in further investigation by a different person.

[244]Of the eight recommendations relating to individuals four related to the claimant. Mr Atkinson also recommended further investigation into the behaviour of others for what he described as potentially inappropriate behaviour and circumstances surrounding the referral and treatment of a member of staff. He recorded and reported on what was told to him by those he interviewed.

[245]We therefore conclude that, contrary to the allegations advanced by the claimant, Mr Atkinson did not approach the review with a closed mind or had preconceived ideas about the claimant. In any event, we also conclude that he was not influenced in any way by any qualifying disclosures or protected acts. 56 of 101 (ix) Simon Atkinson contacted witnesses saying he was to ‘investigate’ claims that the Claimant was bullying yet he told the Claimant he was conducting a listening process.

[246]The claimant says that referring to the fact that the Claimant was being investigated (which sits with the early focus upon the Claimant) was to the claimant’s detriment. We conclude that Mr Atkinson did not tell any participant that he was going to “investigate” anything. We were not taken to any document to indicate that he did. (x) Simon Atkinson refused to include statements supportive of the Claimant from members of staff who expressed concerns about 'lies being circulated about Mr Colbert around the Trust'

[247]At paragraphs 166-7 of his statement the claimant says: Mr Atkinson noted a number of junior doctors wanted to contribute, but it was agreed if Mr Atkinson didn’t get round to seeing them in three days they’d be excluded and just sent to the FTSU guardian. That gave him the opportunity to simply exclude them, which the Respondent wanted. Ramanjot Chahal confirmed no issues and she was well supported by me. (1581) She referred to me pushing to make sure urgent cancer patients did not go under the radar and to make sure all staff were protected. I did.

[248]Minutes of the oversight meeting on 9 February 2021 include the entry: SA [Mr Atkinson] had been contacted in the last few days by a number of junior doctors who would like to contribute to the review. SA had invited them to make a written submission, albeit that one individual wanted to meet SA via zoom. The group agreed they would not want to ‘close the door’ to anyone however, a deadline of Friday 12th February 2021 was agreed in order to finalise the report. SA would signpost anyone coming forward after this date to the FTSU service.

[249]Mr Atkinson then interviewed Ms Chahal on 12 February 2021. That interview forms one of the annexes to this report. Ms Chahal, who had been provided with Mr Atkinson’s contact details by the claimant, emailed Mr Atkinson on 13 February 2021. Among other things, she said she found the claimant to be very passionate about the service and he wanted to improve the Department for both staff and patients. She goes on to say that she always found him polite and respectful. Again, this was included as one of the annexes to the report even though it postdated the deadline. Supportive statements were therefore included. Further, in his conclusions, Mr Atkinson clarified that the trainees and 57 of 101 some other medical staff were clear about the benefits they experienced from significant educational attention and nurturing they received from the claimant. (xi) The Claimant expressed concerns to Simon Atkinson about ‘bullying and patient safety concerns’, but none of them were included in his report.

[250]This allegation is simply incorrect.

[251]As Mr Atkinson set out in in his statement at paragraph 25: References to Mr Colbert feeling bullied can be found at paragraphs 7.174, 7.185, 7.186, 7.187, 7.197, 7.203, 7.211, 7.223 and 7.305. Mr Colbert’s concerns about Mr Vardon can be found between paragraphs 7.76-7.117 of my report. Specific clinical concerns Mr Colbert spoke about are referenced at paragraphs 7.45, 7.141-7.145, 7.272.

[252]The claimant’s written submissions say: “There are some references to patient safety issues but not all of them have been included” and “these were issues raised by the Claimant, but which were excluded [which] was to the Claimant’s detriment”. However, the allegation is that “none were included”. Further, the claimant does not say which ones were excluded. No detriment has been established. (xii) Other witnesses told the BMA after their interviews that Simon Atkinson was targeting the Claimant. Others complained of loaded questions against the Claimant and inaccurate minutes. One witness who contacted Simon Atkinson at the end of January 2020 asking to give a statement was told ‘I am closing the investigation now and don’t need your statement. I have what I want’.

[253]The Claimant’s closing submissions say the targeting of the Claimant was detrimental to him.

[254]The BMA wrote to the trust highlighting concerns about the questioning. Those concerns were then relayed to Mr Atkinson. One of the concerns raised on behalf of the claimant related to Dr Torofdar. During her interview with Miss Cunningham Dr Torofdar explained that not only was she not happy with her interview with Mr Atkinson but she felt it was really just about getting at the claimant and anything positive she said was brushed aside. However, Dr Torofdar, like all those who were interviewed, was given the opportunity to amend the notes of her interview. The amended notes do not significantly or materially change those originally provided by Mr Atkinson. Crucially, positive comments about the claimant were included in the original notes. The questions asked by Mr Atkinson were mostly open questions. 58 of 101

[255]We conclude that Mr Atkinson did not ask “loaded” questions. Examples of the loaded questions were not provided by the claimant. The notes do not evidence any such questions. All those interviewed had the ability to amend notes of the interviews, which were then attached to the report. We were not taken to any evidence indicating that Mr Atkinson said he was closing down the investigation and did not need a statement. As we have said, evidence was admitted even after the deadline. No detriment has been established. (xiii) The Claimant has only seen Simon Atkinson’s heavily redacted report. It does not read like a report into bullying / patient safety concerns in the NHS. It reads like a targeted investigation into the Claimant designed to intentionally damage and undermine him

[256]For the reasons already set out above, we do not find that the report was a targeted investigation into the claimant. D3 claim 1: On or around 17 December 2020, the outcome of the investigation by Graeme Tremblett-Willis

[257]Mr Tremblett-Willis concluded there was a case to answer in relation to the bullying and harassment allegations. This amounts to a detriment.

[258]The claimant says, among other things, that the way in which Mr TremblettWillis gave evidence to the tribunal was “wholly incredible”. It is said that he “had no idea how the respondent’s relevant policy documents were engaged”, failed to notice that the original complaint was not submitted by use of the relevant document and had included stale allegations. Further, it is said that the policy referred to in his statement makes reference to sections which do not appear to be incorporated. For example, the section relating to harassment advisors refers to section 7.1 which does not appear to be in the copy of the bullying and harassment policy included in the bundle.

[259]In his statement, the claimant also highlights evidence that was favourable towards him during the investigation. For example, one of the allegations relates to an incident said to have occurred on 24 April 2019. The claimant is said to have questioned Ms Gillett in an intimidating manner. Witness evidence which the claimant says “fundamentally disagrees with the allegations” made about him include those of Mr Ireland who says, in relation to the same meeting, that he did not recall any inappropriate behaviour by the claimant. However, not only does Mr Tremblett-Willis include such statements as appendices to the report but also references them in his conclusions. An explanation is then given by Mr Tremblett-Willis in his report why he prefers the evidence of other witnesses. He also explained during his evidence to us that he recalled Ms Gillet being visibly upset during the investigation. 59 of 101

[260]Mr Tremblett-Willis was not part of the OMFS department. His report is detailed and reasoned. Explanations were provided in relation to each of the allegations in his conclusions section. Not all the allegations were upheld. Relevant witnesses were questioned about each of the alleged incidents. Although his explanation of the application of the relevant policy is questionable this does not undermine the logic of his investigatory report. Mr Tremblett-Willis explained that it “would be up to management to take the case forward”. It is difficult to see why he would be influenced by qualifying disclosures or complaints about patient safety.

[261]In any event, we conclude that Mr Tremblett-Willis knew nothing at all of any of the alleged qualifying disclosures or protected acts. The report was concluded in December 2020. It was put to him in cross examination that he was aware of PD 2 (verbal disclosure in December 2017 to Jon McFarlane ) and PD3 (a verbal disclosure, on 30 June 2020 to Louisa Hopkins ) in claim 3. There is nothing linking Mr Tremblett-Willis to these alleged disclosures. We conclude that the outcome of his report had nothing to do with any protected disclosure or protected act. D4 claim 1: Informing the Claimant on 8 February 2021 that he would be disciplined

[262]On 26 January 2021 Dr Marden wrote to the claimant in relation to Mr TremblettWillis’ investigation. The letter refers to a meeting which took place on 17 December 2020 with the claimant and his BMA Representative when the outcome of the investigation was shared. The letter goes on to say that Dr Marden “concluded that the behaviour described does warrant referral to the Trust Managing Conduct Policy as a potential disciplinary offence”. Dr Marden explained that he would therefore be scheduling a hearing in line with said policy.

[263]In the claimant’s closing submissions, it was said that: “There was no basis for [Dr Marden] writing to the Claimant indicating that he should be subject to an investigation based upon the NG allegations which were at best trivial and at worse wholly contrived”.

[264]The claimant was not told at any stage that he “would be disciplined” in relation to these allegations either on 8 February 2021 or at any other time. In any event, the contents of the letter have nothing to do with any qualifying disclosures or protected acts and are unsurprising in light of the contents of the investigation. D5 claim 1: On 8 March 2021, excluding the Claimant from practice and telling him that he would be subject to the MHPS Procedure

[265]Details of the conversation on 8 March 2021 between Dr Marden and the claimant, who was accompanied by his BMA Representative, are recorded in 60 of 101 the letter of 11 March 2021. The letter explains that Dr Marden concluded that, as a result of the Atkinson review, there were significant and many issues of concern related to the claimant which require further investigation and would be dealt with through Maintaining High Professional Standards. The same letter also confirmed that the claimant would be “excluded from all work with immediate effect” although this was a “a neutral act” and not “disciplinary action”. The reason given was the desire to protect the interests of staff involved in the investigation, including the claimant’s, and also to ensure that the investigation process was not included in any way.

[266]The claimant says the exclusion was the subject of a “contrivance” as it was a result of a recommendation made by Mr Atkinson. We have already concluded that Mr Atkinson was not influenced by any qualifying disclosures or protected acts. The decision of Dr Marden was taken after receipt of the report and also after discussion with a Practitioner Performance adviser at NHS resolution as well as input from the Trust’s HR department. In his statement, Dr Marden says the breadth of the allegations and the fact that OMFS was a small department led him to conclude that exclusion was the appropriate course of action. Although Dr Marden was aware of the substance of some of the alleged qualifying disclosures and the protected acts, we conclude that they had no influence whatsoever on his decision to proceed in the way set out in the letter. Given the recommendation of Mr Atkinson, the decisions were reasonable and unremarkable. It would have been surprising if no further investigation was undertaken. Bearing in mind the nature of the allegations, there was nothing remarkable about the decision to exclude the claimant on full pay. D6 Claim 1: Continuing the Claimant’s exclusion (claim 1 was issued on 7 June 2021)

[267]The letter of 11 March 2021 provided as follows: Your exclusion from work will be for an initial period of 4 weeks from 8th March 2021 to 4th April 2021. Your exclusion will be reviewed prior to the end of this initial 4 week period and I will confirm to you the outcome of the review. If you wish you can raise any concerns that you have with this exclusion at any time to the designated board member appointed in relation to this case

[268]An exclusion report was produced by Dr Marden. Dr Dyer then met with the claimant in accordance with Trust policy to review the exclusion. Those meetings were followed up by detailed letters setting out what had been discussed. On 5 August 2021 Dr Dyer wrote “the principal reason for continuing the exclusion is that these are serious allegations, the substance of which has not yet been determined by the investigation and essentially the reason for the initial exclusion remain valid”. 61 of 101

[269]Both the exclusion and its continuation were detriments to the claimant. Nothing changed during the continuance of the MHPS investigation to alter the circumstances of the exclusion. It would have made no sense to end the exclusion before a determination had been made about the allegations. We conclude that continuing the exclusion had nothing whatever to do with any qualifying disclosures or protected acts. D7 claim 1: Commencing the disciplinary process against the Claimant

[270]After receipt of the Cunnigham report Dr Dyer wrote to the claimant on 16 December 2021 saying he considered there was a case to answer in relation to the majority of the allegations, and the case would proceed to a disciplinary panel. Dr Dyer explains in his statement that he was “shocked” by the report and the decision that there was a case to answer was “not a difficult one to make based on the evidence”. He also referred to the fact that there were “lots of examples” of bullying behaviour that had been found to have taken place on the balance of probabilities. Dr Dyer says he was satisfied that the investigation was thorough and well conducted. Dr Dyer also listened to the recording of the conversation with Mr Felstead and concluded that the claimant “behaved in an intimidating and aggressive manner”.

[271]In the claimant’s closing submissions, it is said that there was “no basis” on which the allegations proceeded.

[272]The first time the claimant raised the qualifying disclosure points with Miss Cunningham was in July 2021, when the claimant’s representative explained that, in their view, the Atkinson review was the Trust’s response to a meeting in which the claimant raised patient safety issues. When she was told that there was a note of a meeting on 4 November 2020 in which the claimant raised patient safety issues, Miss Cunningham said she would really like to see it and described it as “very probative”.

[273]Later on, in the same interview on 2 July 2021, the claimant said to Miss Cunningham: I made protected disclosures on serious and significant shortcomings / patient safety concerns relating to multiple members of staff I’m here today because they did not like that I raised concerns regarding their shortcomings.

[274]Miss Cunningham’s interviews had begun on or about 12 May 2021. We conclude that the Cunningham report was detailed, thorough and wellreasoned. Where there was a conflict in the evidence an explanation was given in the conclusions section why a particular account was preferred. It was not suggested, during Miss Cunningham’s cross-examination, that her reasoning was irrational or that her conclusions were not reasonable ones to come to in light of the evidence before her. Although not a point advanced by the claimant, clearly some of the allegations involve the ways in which the claimant raised 62 of 101 patient safety concerns. For example, one of the allegations investigated by Miss Cunningham was whether the claimant undermined colleagues and was openly critical of their practice. She concluded that the claimant undermined Mr Felstead by publicly questioning and expressing doubt about his safety to practice at a governance meeting. Although the claimant does not rely on what was said at the governance meeting as a qualifying disclosure, it echoes his previous concerns. In any event, the findings on this and other points by Miss Cunningham go to both the manner and the forum in which the claimant made his concerns known. Her conclusions were that the claimant’s explanations for his actions in this regard were disingenuous, evasive and lacking in cogency.

[275]Whether this allegation is directed at Miss Cunnigham or Dr Dyer, we conclude that the disclosures and protected acts had nothing at all to do with the decision to proceed with the disciplinary process. D1 claim 3: On 12 September 2023 the Respondent wrote to the Claimant arranging a disciplinary hearing for the 11 October 2023, advising that the Management Case for the hearing would follow. The allegations dated back to 2019 and 2020.

[276]Moving to a disciplinary hearing is a detriment. The decision making behind this allegation and detriment follows on from the decision to commence the disciplinary process which we have already found not to be tainted by any influence of qualifying disclosures or protected acts. They delay was caused by discussion between the parties.

[277]The letter of 12 September 2023 was sent by Miss Walters, the chair of the disciplinary panel. It makes references to previous letters in which the claimant was notified that a disciplinary hearing would be convened. The hearing was rearranged at the claimant’s convenience. Miss Walters was not previously involved in the case. Her involvement in, and drafting of, the letter had nothing to do with protected acts or qualifying disclosures. For the reasons already set out, we are satisfied that this letter, and the decisions behind it, had nothing at all to do with qualifying protected disclosures or protected acts. D2(i) claim 3: The Respondent refused to provide an unredacted copy of the report upon which the disciplinary was to be based, or to provide the Claimant with other requested documentation. The other documentation which the Claimant requested was(a) copy of Atkinson report

(b) documents in response to a freedom of info request put in by the BMA on or around March 2021.

[278]When employees in OMFS department were informed about the Atkinson review they were told that conversations would be confidential. It is therefore not surprising that the claimant was not originally provided with a report containing the personal information of others and the notes of all the interviews. 63 of 101

[279]What was described as a “suitably redacted” report was sent to the claimant with the outcome of the Cunningham formal investigation on 16 December 2021. Prior to that, the claimant was provided with a more extensively redacted Atkinson report in response to his DSAR request in June 2021.

[280]We accept Dr Radley’s evidence that the purpose of the June 2021 redactions was simply to comply with relevant data protection legislation. In other words, personal data and data which was mixed with personal data, was redacted. This had nothing to do with qualifying disclosures or protected acts. Although the validity of some of the redactions is questionable, for example paragraphs relating to workplace behaviours and relationships being complex, we, nonetheless, conclude that the respondent simply sought to comply with the relevant legislation when providing the claimant, a copy of the more heavily redacted report in June 2021.

[281]Fewer redactions were made to the report provided to the claimant in December 2021. Dr Dyer explained that the redactions made for the December 2021 version were undertaken by the respondent’s solicitors. These redactions, and the un-redactions, were undertaken with a view to providing the claimant with the information he needed to answer the disciplinary case. Dr Dyer says that the parts which remained redacted were not relevant to the allegations he proposed to take forward. In contrast, the claimant says in closing submissions that “the unredacted Atkinson report utterly prevented the claimant from challenging the allegations which were made/ the criticisms which were directed towards him”.

[282]We accept Dr Dyer’s evidence, which was unchallenged, relating to the purpose and reasons behind the redactions undertaken in December 2021. They were not made because the claimant made any protected disclosures or did any protected acts. The reasons had nothing whatever to do with acts or disclosures.

[283]When coming to our conclusion on this issue we take into account that although the claimant was provided with a completely unredacted report, albeit late on in the disclosure process, he was unable, when questioned, to identify any part of the redactions which impacted on his ability to challenge the disciplinary allegations. The redactions the respondent’s witnesses were taken to related allegations which formed no part of the disciplinary case against the claimant.

[284]Further, the disciplinary hearing was not “based” on the Atkinson report. It was based on the Cunningham report which contained the detail of the allegations and the conclusions of the investigator. Matters initially uncovered by the Atkinson report were then investigated in detail by the Cunningham report. 64 of 101

[285]Accordingly, the provision of the redacted reports and/or the failure to provide an unreacted report when requested had nothing whatever to do with qualifying disclosures or protected acts. D2 (ii) The Respondent said that the Respondent’s employees who were conducting the hearing would determine what information they wished to look at.

[286]It is not entirely clear what this detriment is said to be. In closing submissions, the claimant points of the fact that Miss Cunningham explained that she would only interview those witnesses whom she considered relevant.

[287]However, the allegation relates to those conducting the “hearing”. In the invite letter of 12 September 2023 from Ms Walters the claimant was informed that he could call witnesses and submit documents to the disciplinary hearing. Accordingly, it is simply not the case that the respondent said those conducting the hearing would “determine what information they wished to look at”.

[288]In an earlier letter sent by the Trust’s solicitors, in response to pre-action correspondence pertaining to the injunction, it was explained that the only witness the Trust intended to call was Miss Cunningham. However, the letter went on to explain that, ultimately, it was a matter for the panel as to the evidence they wished to hear and, should they decide that it would be appropriate for them to hear from some or all of the witnesses the claimant suggests, arrangements would then be made for their attendance. If the claimant is referring to this, we also find that it had nothing whatever to do with qualifying disclosures or protected acts. D3 claim 3: The Respondent proceeded with the disciplinary hearing in the Claimant’s absence.

[289]As we have found, although the respondent rescheduled the disciplinary hearing and made every effort to facilitate the claimant’s attendance, not only did he fail to attend but he also failed to inform the respondent that he would not be attending. In the 12 September 2023 letter setting out the date for the rearranged hearing the claimant was informed that he may also attend remotely.

[290]Ms Walters explained that when the claimant failed to respond to the invite letters, she spent time liaising with HR to ensure that she was comfortable that the claimant had been given sufficient opportunity either to attend or confirm that he would not be attending. We accept her evidence that she did not want to go ahead with a hearing in the claimant’s absence if it could be avoided. In the event, after taking advice, she decided to proceed with the hearing in his absence. Not only that, on 5 October 2023 she emailed the claimant explaining that if he did not attend the hearing would take place in his absence. 65 of 101

[291]We conclude that the decision to proceed in the claimant’s absence had nothing whatever to do with qualifying disclosures or protected acts. D4 claim 3: The Claimant was dismissed on 19 October 2023.

[292]It is accepted that dismissal cannot be a detriment for the purposes of a claim under section 47B of the Employment Rights Act 1996 D5 claim 3: Refusing to provide the requested disclosure, which was(i) the disclosure requested previously (see D2 above) and

(ii) the disclosure requested by David Welch by email following the disciplinary hearing, when these documents were requested after the disciplinary hearing for the Claimant to properly present his case in order to appeal his dismissal. The Respondent thereby preventing him (the Claimant says) from drafting his grounds of appeal against a dismissal based on a report that he only had a redacted version of.

[293]After the disciplinary hearing, the claimant’s barrister, Mr Welch, emailed Mr Thompson on 27 October 2023 saying he wrote on behalf of the claimant to appeal the disciplinary hearing but was not able to provide full grounds supporting an appeal until he received “full notes of the hearing”. This was a repeat of a request he made on 23 October 2023. The respondent then replied on 13 December 2023 with a copy of the disciplinary hearing notes.

[294]These were the only documents requested by Mr Welch following the disciplinary hearing. They were provided by the respondent. Prior to the disciplinary hearing, on 12 January 2023, Mr Welch wrote to the respondent requesting an unredacted version of the Atkinson report. This then became the subject of the injunctive proceedings.

[295]In closing submissions, the claimant says that in order to consider and draft the grounds of appeal the claimant required both the notes of the disciplinary hearing and “underlying documents which gave rise to the sanction of dismissal”. However, no further documents were requested. The claimant already had copies of the Atkinson report, albeit redacted, and the Cunningham report. The disclosure requested following the hearing was provided. D6 claim 3: When the Claimant continued to press for the requested disclosure the Respondent’s Alfredo Thompson asserted that it had closed his appeal and would not respond further.

[296]As we have set out, the dismissal letter, dated 19 October 2023, provided that the claimant could appeal within 14 days of receipt of the said letter. Hearing notes, which were requested, were sent to the claimant on 13 December 2023. The claimant’s barrister explained that he could attend an appeal hearing on 1 February 2024. The respondent chased grounds of appeal on a number of 66 of 101 occasions. On 25 January 2024 the Trust emailed the claimant’s counsel directly, copying in the claimant, pointing out that they had yet to receive any grounds and asking whether they planned to send any. Because there was no reply, the Trust wrote again on 26 January 2024 saying that because they had not received the grounds, which were due by 5 January 2024, the 1 February date would be postponed. The same email asked the claimant to confirm by 31 January whether he had decided not to proceed with the appeal and, if he wished to proceed, when the respondent would receive the grounds for appeal. The email also explained that once grounds were received they could rearrange the appeal hearing for another date. When new lawyers were instructed by the claimant, Mr Thompson wrote on 29 January 2024 extending the date yet further. In his email Mr Thompson explained that if the claimant would like the respondent to rearrange the appeal hearing written grounds should be provided by no later than 9 February 2024. They were not provided. In the event, Mr Thompson wrote the claimant on 14 February 2024 saying as no grounds for appeal were received the trust will assume that the claimant no longer wishes to appeal.

[297]In closing submissions the claimant says, “It is plain that [Mr Thomson] did state that the Respondent considered the appeal process to be at an end”. We conclude that Mr Thomson’s decision had nothing whatever to do with protected disclosures or protected acts. The Trust provided the documents requested in relation to the appeal and extended the deadline on multiple occasions. There was nothing stopping the claimant pursuing his appeal. D7 claim 3: In November 2023 did someone from HR within the Respondent speak with a HR representative of Belfast Royal Ulster Hospital which the Claimant says caused his post to be terminated.

[298]The claimant says in his statement at paragraphs 269-270: I continued to look for opportunities to mitigate the impact on my career and professional development. This included an opportunity in Belfast, for which I attended an interview and was given good feedback. Regrettably the Respondent intervened again and I was told subsequently the ‘mood music’ had changed.

[299]During submissions, it was sensibly conceded that the claimant’s own evidence in this regard was “compromised”. The claimant has simply not provided sufficient evidence to show that a post was even offered by Belfast RUH which was then “terminated”. No detriment has been established on the balance of probabilities. The only evidence the claimant provided was a text message indicating that since the claimant was interviewed the “mood music” had changed. Further, no mention is made of the respondent. D8 claim 3: In February 2024 the Respondent sent out an internal 67 of 101 communication to all staff advising that the Claimant had been dismissed.

[300]In his statement, the claimant says, “They made a public announcement I had been dismissed for intimidating and bullying behaviour, gloating about the High Court decision”. This was said to be “an extraordinary step for the Respondent to take and it was detrimental to the Claimant”.

[301]Prior to the internal communication, the claimant had appeared on the television programme Newsnight saying that he had been dismissed because of whistleblowing. His dismissal was therefore already in the public domain. Mr Thompson explained in his statement that: “These [the claimant’s] allegations were not true and the Trust felt the need to provide reassurance to its staff that we value and actively encourage people to speak up when they have concerns, and staff are not dismissed for doing so.”

[302]The communication itself explains that the Trust would not ordinarily share information about internal disciplinary processes, but the matter had become a matter of public record. It also emphasises that the Trust encourages staff to speak up whenever they see anything that causes concern. This is not suggestive of retaliation for whistleblowing. After the claimant appeared on television, staff at the Trust would understandably be concerned about allegations made by the claimant. It is not at all surprising or unreasonable that the Trust sought to communicate with the staff in this manner. Although written from the Trust’s point of view, the communication was factual. We conclude that the respondent would have done similar had the claimant not been complaining about ill-treatment due to whistleblowing. There was a clear communications need to set the record straight from their perspective. Further, we are satisfied that the communication was not done because of or was influenced by any qualifying disclosures or protected acts relied on by the claimant. If it was, then it was restricted to the manner rather than the substance of the disclosures.

[303]In summary, we have concluded that, for those detriments which have been established, the respondent was not materially influenced by any of the alleged protected disclosures or protected acts. We would have also concluded the same for any of the detriments which have not been established. Automatic unfair dismissal/victimisation

[304]We are required to determine whether the reason or principal reason for dismissal was that the Claimant made a protected disclosure or disclosures. The clamant relies on some or all of the protected disclosure. In addition, or in the alternative, we are also to determine whether the claimant was dismissed because he had done the agreed protected acts (articulated by the claimant at a meeting involving his Freedom to Speak Up Guardian on 4 November 2020). Again, for the purposes of this claim, we will assume that the claimant has been successful in establishing all the qualifying protected disclosures he relies on. 68 of 101

[305]It was clarified, on behalf of the claimant, that this case, including the allegations relating to dismissal, is not pleaded or run in the Tribunal as a Jhuti type of case. Accordingly, our focus is on the minds of the decision making panel.

[306]Although the claimant did not attend the disciplinary hearing the panel, nonetheless, spent a considerable amount of time going through each of the allegations and making relevant findings. Not all the allegations against the claimant were upheld. The reasons were provided for the conclusions reached.

[307]In her evidence to the tribunal Ms Walters, the chair of the panel, explained that the panel was certainly aware of and had access to PD7 before their decision. They were also aware of the two protected acts.

[308]The claimant points to the fact the disciplinary hearing minutes show that Dr Dyer and Miss Cunningham say, in answer to a direct question from Ms Walters, that the claimant did not raise clinical patient safety concerns during the investigation. However, that quote must be put into context. Immediately prior to that exchange Dr Dyer set out details of four patient safety concerns raised by the claimant. The disciplinary panel considered what Ms Walters described as “patient safety “ issues to see if there was anything which could act as “mitigation” for the claimant’s behaviour. We conclude that that the panel were concerned to see whether issues about patient safety either explained, or in some way excused, the behaviour the claimant was accused of. This evidence accords with the notes of the hearing during which Ms Walters says that she wants to try and understand any link between patient safety concerns and the claimant’s behaviours.

[309]The claimant also points to a number of procedural faults which, he says, should have caused the respondent to stop the disciplinary process. This is said to give rise to an adverse inference of victimisation or qualifying disclosures being the real reason or principal reason for dismissal. As has been set out, the wrong GMC code was referred to in the invite letter. This is said to have undermined the disciplinary investigation. It is also said, on behalf of the claimant, that there was no basis to find that the claimant was guilty of the misconduct alleged and, as such, the respondent believed in such misconduct was a “contrivance”.

[310]However, the claimant’s submissions, evidence and cross-examination of Ms Walters, Dr Dyer and Miss Cunningham failed seriously to grapple with the reasoning process of the disciplinary panel as identified in the extensive notes and decision letter. Where there is overlap the decision-making can be traced back to the conclusions of the Cunningham report. There was no serious contention that the disciplinary panel could not have reasonably come to the conclusions they did on the basis of the detailed evidence before them. That evidence was the result of an extensive and detailed investigation undertaken by Miss Cunningham. Because the claimant failed to attend or even provide 69 of 101 written submissions or additional evidence, the disciplinary panel was presented with very little with which they could undermine, attack or dispute the Cunningham report.

[311]Where there was, as we have concluded, clear corroborative evidence of bullying behaviour, such as the covert recording, this was simply brushed off by the claimant during the Tribunal hearing. The claimant’s submission in relation to the recording is that it was evidence of “nothing inappropriate or aggressive”.

[312]We also carefully noted that PD2 in claim 3 was part of the underlying factual matrix in relation to the allegation of the claimant’s conduct on 29 January 2021 and was upheld as a disciplinary allegation. For reasons already set out, we have concluded that this was not a qualifying disclosure. Our reasoning accords with that of Miss Cunningham and the disciplinary panel. However, as set out above, for the purposes of our considerations we will assume that PD2 was made out. The letter set out that the panel concluded that the claimant’s actions were intended to undermine the departmental management structure and Mr Felstead’s authority. The decision to dismiss in relation to this alleged qualifying disclosure was because the panel believed the claimant’s actions were intended to undermine his colleague and not because of any qualifying disclosure. Even if the claimant reasonably believed that health and safety was being put at risk or that a legal obligation was being breached, what was in the mind of the panel, when they made their decision, was the fact that the claimant “intended to undermine the departmental management structure and [Mr Felstead’s] authority”. This was because the claimant made no attempt to contact Mr Felstead even though he was close by in the department. The decision of the panel was based on the analysis of the evidence by Miss Cunningham who concluded that the claimant had “disruptively stoked up” the issue and wanted to “raise something of a ‘hue and cry’ that would show [Mr Felstead] in a poor light”.

[313]It has not been suggested that there is anything which might cause the burden of proof to shift in the victimisation claim. Nonetheless, we are able to determine the reason why the decision to dismiss was made even assuming that the burden shifted to the respondent. We conclude that the reason for the dismissal were the findings in the dismissal letter and that any protected disclosures or protected acts by the Claimant played no part at all in the decision to dismiss Unfair dismissal

[314]We remind ourselves that procedural fairness is an integral part of the reasonableness test as set out by section 98 ERA. Although the claimant challenges every aspect of the dismissal, his case on ordinary unfair dismissal centres on a number of specific procedural/substantive defects. 70 of 101

[315]First, although the investigating officer, Miss Cunningham, had a copy of the unredacted Atkinson report, the claimant did not.

[316]Secondly, and unknown to the panel at the time, the claimant was sent a partially redacted copy of the Atkinson report prior to the disciplinary whereas the panel had an unredacted copy.

[317]Thirdly, the investigation report and invitation letter referred to the wrong GMC code of conduct.

[318]In addition, the claimant also relies on what he regards as the differential treatment of Mr Felstead. Although the respondent’s code of conduct provides that covert recording can amount to gross misconduct no action whatever was taken against Mr Felstead in this regard.

[319]The ultimate test, as set out in section 98 ERA, is whether the respondent acted reasonably in dismissing the employee for the reason given. The ACAS guide emphasises that the more serious the allegations against the employee, the more thorough the investigation conducted by the employer ought to be. The guide goes on to say that, when investigating cases, it is important to keep an open mind and look for evidence which supports the employee’s case as well as evidence against. We also note that it is particularly important that employers take into consideration how an employee’s reputation or ability to work in their chosen field of employment is likely to be affected by a finding of misconduct.

[320]When considering reasonableness and procedural fairness we do not consider whether it would make any difference to the result. Such a question is irrelevant to the issue of reasonableness. In a case involving misconduct it is necessary for the employer to investigate fully and fairly. However, not every procedural defect will render a dismissal unfair. Procedural flaws must be examined in the overall context to consider their implications for the overall reasonableness of the employer’s decision to dismiss.

[321]We deal first with the fact that the claimant was not provided with an unredacted copy of the Atkinson investigation. The Atkinson report was not part of any disciplinary investigation. It was a review which recommended, among other things, that the respondent consider formally investigating the claimant for potential bullying/inappropriate behaviour. Those who took part in the review were informed that it was a confidential process. Therefore, the respondent had to take this into account when deciding whether or not to provide the claimant with unfettered access to the entirety of the resulting report.

[322]There followed a formal investigation by Miss Cunningham who herself was not provided with all the appendices to the Atkinson report. Miss Cunningham did not rely on the conclusions of the Atkinson report. Moreover, the method of her investigation was not informed by the Atkinson report. Where relevant, Miss 71 of 101 Cunningham noted the accounts interviewees had given to Mr Atkinson. The Cunningham investigation was therefore a new and different process. In our experience, is not uncommon for an investigating officer to have material which the employee under investigation does not have. We conclude that the Cunningham investigation was full, fair and extremely detailed. Like the disciplinary panel after her, Miss Cunningham considered the evidence very carefully. For example, although she found one colleague to have felt “upset and distressed” she, nonetheless, concluded in that instance that the claimant’s behaviour was not within the range of what is capable of being described as ‘bullying’.

[323]Although the disciplinary panel had access to the unreacted version of the Atkinson report due to an administrative error, it was only used to understand the context, i.e. why the Cunningham investigation had been commissioned. The same context was evident from the partially redacted report provided to the claimant. The panel also knew that Miss Cunningham had come to her own conclusions and not relied on the Atkinson report. Both the panel and the claimant were aware from the invitation letter of 16 December 2021 that the disciplinary allegations related to the findings and conclusions in the Cunningham report only. Failure to provide the claimant with an unredacted version of the Atkinson report did not materially influence any defence to the allegations against him. The claimant was not prevented from fully defending himself.

[324]Turning to the recording. The respondent took advice and decided not to proceed with a disciplinary investigation regarding the covert recording of the conversation with the claimant. We conclude this is not an unreasonable position for the respondent to have taken, despite what it says in the relevant policy. The circumstances of the recording were that Mr Felstead wanted to obtain evidence of the way in which he was being treated by the claimant. It was also reasonable for Miss Cunningham and the disciplinary panel to consider the covert recording. It was clearly probative and relevant to the issues under investigation. The integrity of the content of the material was not compromised by the way it was obtained. Although the claimant was not given a copy or informed about the recording during the investigation, he was told that it would be played at the disciplinary hearing. It was, of course, dealt with in the Cunningham report on which the claimant was given an opportunity to comment. The recording is also referred to in the response by the claimant’s BMA representative. It was open to the claimant to make submissions about its evidential weight. In her report, Miss Cunningham dealt explicitly with her reasoned decision not to disclose the fact of the recording and transcript to the claimant during the investigative process.

[325]The respondent agreed that the wrong code was referred to in the Cunnigham report. Both the Cunningham report and the letter inviting the claimant to the disciplinary hearing made reference to the GMC code of conduct whereas the 72 of 101 document which binds doctors regulated by the GMC is Good Medical Practice. Both the letter and the report also referred to the respondent’s Bullying and Harassment Policy, which was the correct document. Mr Murray, a medical member of the disciplinary panel, identified the error prior to the disciplinary hearing which he flagged up in this email of 7 October 2023. Mr Murray also explained that this did not alter the facts of the case as set out in the report. Dr Dyer, who was presenting the management case, clarified the correct references in the same email chain and explained that he did not think that any of the conclusions were affected.

[326]However, the claimant was not informed of this prior to the hearing. Because he did not attend the hearing he could not be appraised of this fact during the hearing. Had the claimant attended it is unlikely there would have been an issue. Reference was then made to the Good Medical Practice document in the dismissal letter of 19 October 2023 although they reference was also made to the GMC code of conduct in the allegations detailed in the same letter.

[327]The claimant was not informed of the code he was to be judged by prior to the disciplinary hearing. However, he was on proper notice of the allegations that he faced. Reference to the wrong code did not adversely affect the reasonableness of the factual investigation. Although the claimant did not attend, the position was clarified at the start of the disciplinary hearing. Further, the essential policy, in terms of gross misconduct, was referred to, the Trust’s bullying and harassment policy, which was the correct one. Reference to the GMC was for potential regulatory purposes. There is also little substantive difference, in terms of the allegations, between the two GMC codes. Overall, the procedure was a reasonable one.

[328]We accept that the reasons for dismissal were those set out in the letter from Ms Walters of 19 October 2023. The claimant was dismissed for conduct related reasons. We also conclude that the panel believed that the claimant committed the misconduct set out in the same letter. Their conclusions were reached after lengthy and careful deliberations. The minutes of the disciplinary hearing, as well as the letter, evidence that the panel substantively engaged in the evidence and allegations. They did not simply accept what Miss Cunningham had concluded at face value. The panel wanted to test the evidence. In a number of areas, their conclusions differ from those of Miss Cunningham. We conclude the belief of the panel was based on a reasonable investigation. The investigation was careful and conscientious. Not only did the panel consider the detailed and extensive report of Miss Cunningham but they also added to the analysis of the allegations during the disciplinary hearing itself. Not all of the allegations were upheld. The evidence was tested and probed. The conclusions were reasoned. It was not seriously put to Miss Cunningham or Ms Walters that the conclusions they reached were at all unreasonable on the evidence before them.

[329]We turn to the reasonableness of the dismissal itself. The claimant says there 73 of 101 was no consideration of any matter of mitigation which might have led to the imposition of a lesser sanction. The panel concluded that the claimant’s actions repeatedly breached the bullying and harassment policy. The claimant was found to have repeatedly and persistently demonstrated serious bullying behaviours across a range of roles and seniority. They also found that the said behaviour resulted in a profound impact on the number of people generating a culture where colleagues were fearful to raise issues.

[330]Others may well have concluded that the circumstances of this case warranted action short of dismissal. The bullying was not in the most serious bracket of such cases. It was of a lower level. Formal grievances were not brought against the claimant by Mr Felstead, Mr Gillet or Mr Robinson. We might have also factored in the claimant’s undisputed excellent clinical skills. It was also clear that there were other employees of the Trust who considered him to be not only a thoughtful and helpful colleague but also a good leader. Coaching or other intervention might have enabled the Department and the claimant to overcome these issues.

[331]However, when considering the range of reasonable responses in relation to the decision to dismiss we remind ourselves that we must not substitute ourselves for the employer. Substitution happens when the tribunal panel decides what they would have done if they had been the employer. Our function is to judge the fairness of the actions of the employer objectively.

[332]In her evidence to us, Miss Walters explained that the panel did consider whether action short of dismissal was appropriate in these circumstances including whether to give the claimant a final written warning. The panel took into account the fact that the claimant had previously received feedback but did not alter his behaviour. Mediation had been tried but did not work. Further, the panel reasonably concluded that the claimant appeared to show little insight into his behaviour.

[333]The allegations upheld by the panel included that the claimant had been rude and dismissive, used threatening, aggressive and insulting behaviour, acted so as to undermine a departmental response to a nursing crisis, and subjected a colleague to unwanted physical contact. Although there was evidence before them that some colleagues missed him being around and that he was “always available for support” they were also faced with the evidence of his most senior colleague in the department who said to the investigation that “my relationship with him is irrevocably broken. His relationships with so many are broken. There is no way I can foresee he and I ever being able to work together”.

[334]We conclude that, even though others may have taken a different decision, it was not unreasonable to dismiss in these circumstances. Dismissal was within the range of reasonable responses open to the respondent. 74 of 101

[335]If we are wrong about any of the procedural aspects of the unfair dismissal claim, we would have, nonetheless, found that even if they were rectified the claimant would have been dismissed in any event. It was not suggested that there was any relevant substantive difference between the two GMC codes. Had the claimant been informed of the correct code prior to the hearing it would not have impacted on the chances of dismissal. Similarly, there was nothing in the unreacted version of the Atkinson report which would have made any difference to the way in which the claimant could have presented his case. Accordingly, we would have made a 100% Polkey deduction. Wrongful dismissal

[336]We are concerned, when considering whether the dismissal was wrongful, not with the reasonableness of the employer’s decision to dismiss but with the factual question: was the claimant guilty of conduct so serious as to amount to a repudiatory breach of the contract of employment entitling the employer to summarily terminate the contract?

[337]The burden is on the employer to establish such conduct which warrants summary dismissal (without notice). The conduct ‘must so undermine the trust and confidence which is inherent in the particular contract of employment that the [employer] should no longer be required to retain the [employee] in his employment’: Neary and anor v Dean of Westminster

1999 IRLR 288

. The said conduct must be viewed objectively.

[338]The claimant highlights the fact that the respondent did not deploy additional evidence from clinicians and, indeed, other oral evidence which reflects the behaviours attributed to the Claimant, which are said to have amounted to conduct issues.

[339]Even though Mr Felstead gave evidence to the tribunal, the claimant says his evidence was “not plausible”. For example, in his statement Mr Felstead says he was terrified to raise a formal complaint about the claimant. However, Miss Gillett had already raised her complaint and the suggestion of being terrified does not sit with what are described as cordial and supportive WhatsApp messages between him and the claimant at this time. Further, there is evidence in the email communications that Mr Felstead was able to respond to the claimant in forceful terms. For example, when he replied to the claimant’s email about the 29 January 2021 incidents Mr Felstead wrote “a running theme throughout your lengthy email was that of concern for patient safety. It is very easy to use this to hide behind utilise this as some sort of validation for your actions, however it is entirely without substance I would request that you refrain from continuing to push this agenda”).

[340]Another example provided was that Mr Felstead also accepted in evidence that when, during the Atkinson investigation, he suggested that although he 75 of 101 experienced an awful complication with a particular type of surgery he had done the same operation “150 plus times before with no issues”, this was an exaggeration.

[341]The allegations the respondent particularly relies on in relation to wrongful dismissal are the unwanted physical contact, the allegations in relation to the claimant’s conduct on 29 January 2021, what is described as a rude and dismissive email of 12 October 2020 and allegations relating to coercive behaviour and, in particular, the request at a departmental meeting to write supportive material in relation to a managerial disagreement. These are a subset of those upheld by the disciplinary panel. Reliance is placed on these allegations because it is said they are sufficiently evidenced before this tribunal.

[342]The unwanted physical contact concerns bear hugs and ruffling of hair on 3 May 2019 and 29 June 2020. These incidents are therefore over a year apart. The respondent says the unwanted contact was degrading and humiliating for Mr Felstead. The second contact occurred on the same day as the covert recording. This is what Miss Cunningham described as “approximately fifteen minutes of relentless baiting of [Mr Felstead] by [Mr Colbert] characterised by [Mr Colbert] interrupting [Mr Felstead], [Mr Colbert] sarcastically repeating what [Mr Felstead] says in a mocking, patronising tone of voice.” The evidential basis for both allegations is set out in the Cunningham report.

[343]The allegations were put to the claimant by Miss Cunningham during the investigation. In relation to the first allegation the claimant explained that he put his hand on Mr Felstead’s shoulder but refuted that there was “a bear hug contact”. Later the claimant explained that he never ruffled Mr Felstead’s hair, hugged him or a bearhugged him.

[344]The first incident occurred at a meeting to discuss a long-running and unresolved conflict about annual leave. It could be sensibly be described as a squabble. Although the nature of the physical contact was, on the face of it unremarkable, during his interview Mr Felstead explained that he was frightened, in part, because the claimant was unpleasant by saying the complete opposite of what he was thinking, namely that Mr Felstead “was great and that they made a great team”. In her report, Miss Cunningham explained that she struggled to reconcile the accounts given by the claimant of the conversation before the incident because it made no sense for the claimant to have taken it out of the room if he had just wanted to give Mr Felstead what he wanted in relation to the annual leave. She concluded that the unwanted embrace was not an everyday gesture, given the sustained hostility between the two men and that the claimant must, or ought to have known, that Mr Felstead would not and did not want to be subject to it. Further, she concluded that the claimant did ruffle Mr Felstead’s hair in an act of unwanted, inappropriate and patronising physical contact. Miss Cunnigham also concluded that by removing Mr Felstead from the meeting the claimant positioned himself to treat Mr Felstead in an 76 of 101 intimidating and bullying manner.

[345]There was a contemporaneous note indicating that the holiday issue had still yet to be resolved. On the same day it was relayed to the claimant by Mr Gillett that the working relationship between the claimant and Mr Felstead was having a negative impact on the whole department.

[346]Neither the evidence of the claimant or that of Mr Felstead was entirely satisfactory when given to the tribunal. Mr Felstead repeated in his written statement what he had said to Miss Cunningham. The claimant denied that it occurred. As well as the previous detailed investigation we take into account the fact that the claimant denied there was anything untoward or inappropriate about the contents of the covert recording. Mr Felstead has exaggerated about some other minor things but has been consistent on these matters. Overall, we prefer the evidence of Mr Felstead on this issue and conclude that the incident was as he described.

[347]After the second incident, on 29 June 2020, Mr Felstead sent an email the following day describing what has happened in the following terms: ‘[w]hen we have met previously and also in my meetings with John McFarlane, Derek Robinson and Lily Cowen, I have likened my relationship with Serryth to that as [sic] a victim of domestic abuse. I will stress that again that this is in no way intended to belittle such an important issue. I have explained that whenever I challenge his behaviour to senior management, he will follow up an unpleasant confrontation by suddenly telling me that he thinks I’m great, the best colleague anyone could have and that all he ever wants is for us to get along. He will then insist on hugging me and has on occasion ruffled my hair. Three hours after attempting to eviscerate me in front of you yesterday [the meeting at lunchtime on 29 June], I returned to the office where this scenario was played out once again. He will of course justify this as evidence that he is reaching out to me and building bridges, however I frankly find such a change in attitude to be simply disturbing. I just felt on this occasion this needed to be formally documented, until the next time.’

[348]The covert recording, made on the same day, was also considered by Miss Cunningham to be evidence capable of supporting accounts given by some other colleagues of the claimant’s overbearing and intimidating conduct in some exchanges.

[349]The evidence we saw on paper and heard pointed towards the accounts given by Mr Felstead. There was some contemporaneous corroborative evidence both by way of the recording and the email. For the reasons articulated by Miss Cunningham, the accounts given by the claimant were less credible. We also considered the evidence we heard from both witnesses at the tribunal. The 77 of 101 claimant tended to downplay both his actions and the effect of his actions. He asserted that there was nothing untoward about his behaviour during the covert recording. The claimant also distanced himself from any contrition previously expressed on his behalf by his BMA Representative. Further, when the claimant gave oral evidence he often responded to questions by making serious allegations of improper conduct against other individuals. Sometimes these were allegations not previously made in this litigation and do not occur in any documents or in the claimant’s statement.

[350]The next allegation was of being rude and dismissive about the role of a speciality manager to a clinical colleague was contained in email correspondence in October 2020. In September and October 2020 there were some emails exchanged between clinicians and management within the OMFS and the Dermatology Department. On 21 September, Dr Woodrow, started an email thread in which she raised the fact that the claimant had told her that he could take some surgical cases from dermatology into OMFS the following week if there were any that were suitable.

[351]On 2 October 2020 the Speciality Manager of Dermatology, Ceri Lloyd, joined the email thread and stated that, following a discussion with OMFS Specialty Manager, Karen Driscoll, OMFS can only send OMFS ‘really urgent patients…they are unable to support us to clear any backlog…can I please ask that any potential patients are triaged to this criteria before being sent across’.

[352]Later, on 12 October in an email to an Associate Specialist in Dermatology the claimant wrote: Can you please see our vacant slots in October? Our manger emailed refusing to allow our Dept to treat skin cancer until we get through the backlog of routine dental extractions. I asked that our manager is informed that as a clinician I do not accept that routine benign cases are seen and treated before cancer cases. I asked for our manager to be reminded that chasing target dates at the expense of urgent cases by a bullying managerial culture happened in Mid Staffordshire and that we must learn from their mistakes and not repeat them. Thought you should know so the patients who need prioritisation for cancer treatment are prioritised.’

[353]The Associate Specialist, and recipient of the email, was concerned about the content and so forwarded it to Mr Felstead for discussion. Subsequently, after meeting with Mr Felstead and Ms Driscoll on 16 October 2022, the Associate Specialist emailed the relevant departments saying she had been assured that OMFS are happy to accept new referrals for urgent and non-urgent skin cancer patients. The email ended in the following terms: “we have worked very hard over the years to establish a synergistic working relationship between both departments and this is working very well for both clinicians and patients. We are both keen to build on that and keep communication channels open with 78 of 101 consistent messages”.

[354]As the “rude and dismissive” allegation relates to an email the facts are relatively easy to determine. As for the context, Miss Cunningham concluded that the content of the claimant’s email contained professionally and personally inappropriate remarks and that the claimant intended to communicate to the Associate Specialist a lack of respect and even contempt for the manager making a decision with which he did not agree.

[355]When these allegations were discussed with the claimant his first comment to Miss Cunningham was that she was the “temporary” manager at that stage. It is said, by the respondent, that the email implies that the manager could be aligned with a bullying culture at another trust. It is also said that the email was provocative and unnecessary and undermines and criticises the manager in a tone that is inappropriate and contravenes the trust’s values of Working Together. As Miss Cunningham pointed out, the Associate Specialist was copied into the earlier email from Mr Lloyd sent on 2 October 2020. Therefore, the Associate Specialist would have known already about the issues and did not need to be “reminded”.

[356]Just prior to these emails, on 23 September 2020, Dr Woodrow emailed the claimant saying, “yes it appears that medical expertise in terms of making decisions on urgency are outweighed by managerial ideas”. However, this does not explain the tone of the email sent by the claimant on 12 October, some weeks later.

[357]In his statement, the claimant failed to address the allegation against him pertaining to the email which was the subject of the allegation. In his oral evidence he explained that the email “was not rude but just expressed concern”.

[358]The Trust’s code of expectations of employees applies to all staff. Among other things, the code is said to supplement the code of conduct and underpin the trust vision and values including that of working together. It provides, in relation to general conduct, that employees are expected, at all times, to deal respectfully with all patients, public and other employees.

[359]The email is evidence that the claimant intended to communicate a lack of respect, and even contempt, for the manager in question. Although not anywhere near the upper end of the scale of discourtesy and rudeness it was a breach of the code of expectations.

[360]We have already dealt with the events of 29 January 2021 in relation to disclosures. For the reasons set out above we concluded that the claimant, on that day, was unduly motivated by a desire to undermine Mr Felstead. Had his concerns been genuine he would have sought out Mr Felstead to seek to understand better what had occurred in the midst of a national and local crisis 79 of 101 rather than escalating the matter. The claimant disruptively and provocatively stoked up the issue and failed to observe the department’s leadership structure thereby undermining Mr Felstead’s authority.

[361]The next allegation, we were asked to concentrate on for the purposes of wrongful dismissal, concerned a request at a departmental meeting for staff to write supportive material in relation to a managerial disagreement in January 2020.

[362]Prior to these events, at the end of October 2019, Mr Robinson wrote to the claimant saying, among other things, he would like to see a demonstrable improvement in the relations between him and Ms Gillett. After the meeting on 24 January 2020, which is the subject of the allegation, Ms Gillett wrote to the claimant saying that his request for an email to say staff feel like he was engaged with the team and, in particular, with management was not reasonable. In the same email she attached a previous email sent on 5 December 2019 detailing how she felt to which she received no reply.

[363]The claimant replied to Ms Gillett on 24 January 2020 saying, “I am sorry that you thought that I asked you to document prescribed feelings, I did not and never would ask a colleague to do so. This was not my intention. My intention is to actively improve working relationships and channels of communication within senior departmental management and one of the first stages in doing so is to gain feedback on how others think I engage with them so we can proceed to move forward”. In his statement and evidence to the tribunal the claimant repeats that he “asked staff for feedback” and to send him “thoughts in writing”. In addition, in his statement, the claimant references instances when he says Ms Gillet behaved unreasonably including when he says she was inadvertently not copied into an email.

[364]There is therefore a dispute as to what the claimant asked. Miss Cunningham and the panel concluded that what Ms Gillett was saying was correct because three of those present said it was a request for a “positive account”. Miss Cunningham also concluded that the claimant’s email to Mr Robinson on the same date suggested that he was planning to put together accounts from colleagues to rebut allegations. Sister Howes, who gave evidence on behalf of the claimant at the tribunal, was one of those who told Miss Cunningham that she recalls being asked to write an email saying management works well with the claimant. In response to the question why the claimant asked this, Sister Howes responded to Miss Cunningham: “Someone had said to him that he was not engaging with staff and management and that he was not communicating effectively with his core team. I asked SC why he had asked for the email. He said he had been challenged and he wanted it in writing”.

[365]In her evidence to Miss Cunningham, Ms Gillet explained that prior to the meeting in question Mr Robinson had raised concerns with the claimant about 80 of 101 his relationship with Ms Gillett. She was concerned that there might be a backlash and so she asked others to be present for support at that particular meeting if anything happens. According to Ms Gillett, the claimant did not explain why he wanted such an email but she thought it must have been because he had been spoken to by Mr Robinson.

[366]Ms Fox, another attendee at the meeting, said to Miss Cunningham that she was “absolutely frozen” and “pretty horrified” at what they were being asked and the manner in which it was requested. She goes on to say that the claimant was very insistent that they should send him the email and that the claimant went “round the table” asking each of them individually if they would send the email.

[367]We conclude that the weight of the evidence points in the direction of the claimant having made a prescriptive request for positive feedback. Even on the claimant’s case requesting junior staff to provide him with written feedback direct to him is, to say the least, unusual and likely to be intimidating. Three of those present, including someone supportive to the claimant and who gave evidence on his behalf at the tribunal, confirmed that the prescriptive request was made.

[368]Although, on the face of it relatively low level, we agree that this was poorly judged, coercive behaviour that does not reflect the Trust values of working together and everyone matters. The claimant knew that Ms Gillett had expressed concerns about him. Putting her on the spot and asking that she write an email to the contrary was likely to be regarded by her as “another form of intimidation”.

[369]The issue is then whether, in light of these finings of fact, the claimant was guilty of conduct so serious as to amount to a repudiatory breach of the contract of employment entitling the employer to terminate the contract summarily. Some of this conduct is more serious than others. An isolated rude email is clearly insufficient to warrant summary dismissal. Low level unwanted physical contact might also be regarded as somewhat innocuous. Similarly, the fact that the claimant raised issues brought to him by junior doctors with someone other than the clinical lead in the department, may seem a long way from repudiatory conduct.

[370]However, once the context, intention and impact are considered, the conduct, taken collectively, does, we conclude, amount to repudiatory breach. The claimant acted in a way which was coercive to junior colleagues, undermined a senior colleague and was intimidating. These things happened to a variety of people in different contexts over a period of time. Although, there is no doubt at all, that his treatment of other colleagues was exemplary, beneficial and inspiring, that does not detract from our findings. 81 of 101