Mr L Basquill v University Hospitals Plymouth NHS Trust: 1403647/2022

EMPLOYMENT TRIBUNALS

Case No 1403647/2022

Between

In PersonClaimant

Miss Karen Moss, CounselRespondent

Before

Employment Judge Smail

In person for claimant

Miss Karen Moss (instructed by Counsel) for respondent

Date 14 February 2026

JUDGMENT

The Claimant’s claims fail and are dismissed.

REASONS

[1]By a claim from presented on 16 November 2022 the Claimant brought claims of age and sexual orientation discrimination. The age discrimination claims have not been pursued. They were withdrawn by the Claimant (together with victimisation claims) on 15 December 2023. The Claimant is a gay man.

[2]The Claimant was employed by the Respondent between 6 September 2021 and 11 July 2022 as a Trainee Nursing Associate. The engagement was on a fixed term contract from 6 September 2021 and due to expire on 31 August 2023. In the event, the Claimant resigned on 23 June 2022, notice expiring on 11 July 2022.

THE ISSUES

[3]These were restated and finalised at a Preliminary Hearing before Employment

Judge Roper on 4 November 2025, as follows:

[1]Time limits1.1 The claim form was presented on 16 November 2022. The claimant commenced the Early Conciliation process with ACAS on 5 September 2022 (Day A). The Early Conciliation Certificate was issued on 17 October 2022 (Day B). Accordingly, any act or omission which took place before 6 June 2022 (which allows for any extension under the Early Conciliation provisions) is potentially out of time so that the Tribunal may not have jurisdiction to hear that complaint.

1.2 Were the discrimination and victimisation complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:1.2.1 Was the claim made to the Tribunal within three months (plus the Early Conciliation extension) of the act or omission to which the complaint relates?

1.2.2 If not, was there conduct extending over a period?

1.2.3 If so, was the claim made to the Tribunal within three months (plus the Early Conciliation extension) of the end of that period?

1.2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:1.2.4.1 Why were the complaints not made to the Tribunal in time?

1.2.4.2 In any event, is it just and equitable in all the circumstances to extend time?

[2]Direct Sexual Orientation Discrimination (s 13 Equality Act 2010)2.1 The claimant describes himself as a gay man.

2.2 Did the respondent do the following things:2.2.1 On an unknown date (prior to the claimant’s meeting on 16 November 2021 with Ms Rutherford), and thereafter on an ongoing basis, was the claimant regularly asked by unknown staff who he was “seeing, dating, living with”; and

2.2.2 On an unknown date (prior to the claimant’s meeting on 30 November 2021 with Ms Rutherford and Ms Ferguson), after morning handover in the Doctors’ room, did someone (unknown) in the team loudly put the claimant’s name forward as a potential husband in response to someone else he was referring to looking for a husband? Did Sister Teena Rice shout that the claimant “being with a woman would never happen”; and

2.2.3 On an unknown date (prior to the claimant’s meeting on 30 November 2021 with Ms Rutherford and Ms Ferguson), did Staff Nurse Lily Edwards show the claimant Facebook photographs from Donna Rutherford’s Facebook page and ask the claimant if he was seeing/sleeping with various men who were friends of Ms Rutherford? Did she tell him that he was seeing/having a relationship with Colleague A; and

2.2.4 In November 2021 did Ms Rutherford and Kerry Haigh tell Sister Beena Paulose to “fail” the claimant and threaten her to do so as her registration was on the line; and

2.2.5 During a meeting on 30 November 2021 with Ms Rutherford and Ms Ferguson,

2.2.6 Was false and misleading data created about the claimant in the following ten respects: (i) exit documents completed by both Ms Camilla McDaniel and Ms Charlie Hennah (ii) notes of the meeting of 13 November 2021 created by Ms Ferguson;

2.2.7 Whilst he was on Lynher Ward from 1 March 2022 was the claimant asked on an ongoing basis (but with dates unknown) by various staff unacceptable questions about his sexuality, for example, do you live on your own, who do you live with, do you have a partner, what’s his name, such and such a doctor, nurse, HCA etc (all males), do you like him, fancy him, know him etc; are you going out with such and such?

2.2.8 Whilst he was on Lynher Ward did the claimant receive no training and support with his course including not appointing an assessor and being supportive when he tested positive with Covid-19 and the health issues related to his dog; and

2.2.9 Did the respondent fail to respond to the claimant’s requests (on dates unknown) for a meeting related to his Action Plan on Lynher Ward: and

2.2.10 Did Ms Hennah fail to respond and appoint an assessor despite repeated requests from the claimant on unknown dates until Ms Gibbons was appointed; and

2.2.11 From 21 May 2022 when the claimant advised that he had tested positive for Covid-19 and until he resigned, was the claimant victimised by Ms Hennah in that (i) he was initially told by Ms Hennah that he was negative on the day that he informed her of his two lateral flow tests and he sent proof of his previous status via documents from the ONS; (ii) Ms Hennah then insisted that he have a 90 minute turnaround test, which was not common practice; (iii) he was told not to go home but to wait 90 minutes and to then get back on the Ward; and (iv) he was implicitly forced to send Ms Hennah lateral flow test results daily being told the other Ward staff were back before their isolation was due to end; and

2.2.12 At a meeting on 9 June 2022 did Ms Hennah and Ms Ferguson dismiss the claimant’s concerns that he had been contacted by the respondent’s Occupational Health Department asking questions about Ms Hennah and Infection Control on the Ward; and

2.2.13 When the claimant caught Covid-19 did Ms Hennah via WhatsApp message tell him that he was not infectious and should return to work; and

2.2.14 On 21 May 2022 did Ms Hennah organise a 90-minute PCR test and tell him not to leave the hospital car park, and get back to the Ward when his test came back; and

2.2.15 Following the claimant’s return to work after having Covid-19 and prior to the meeting of 8 June 2022 with Ms McDaniel and Ms Gibbons, did Ms McDaniel try to put the claimant off meeting her when he asked to see her and did she give him five minutes in a corridor; and

2.2.16 At a meeting on 8 June 2022 did was Gibbons and Ms McDaniel (i) inform the claimant that they were “referring him” that is to say failing him; (ii) inform the claimant that he was being failed because he put patients in danger and that they were not required to provide him with evidence about this; and (iii) not take into account his explanation for the issue relating to the tympanic thermometer in deciding to refer him.

(i) was the claimant told he was the problem and was it suggested that he was mentally ill (or words to that effect);

(ii) was the claimant asked if he was in a sexual relationship with Colleague A by Ms Ferguson, and did she threaten the claimant that he should not say anything about Colleague A to anyone as he had a highly thought of reputation and standing in the respondent; and

(iii) investigation outcome letter by Matron Sue Johnson (dated 26 August 2022);

(iv) in respect of the reasons provided for the claimant being “referred” at a meeting on 8 June 2022;

(v) in May 2022 did Ms Hennah deny saying “why didn’t they kill it yesterday” when referring to the claimant’s dog;

(vi) in a covert recording of the meeting which took place on 9 June 2022 with Ms Hannah and Ms Ferguson was the claimant told that he had not been failed;

(vii) did Ms Hennah claim that the claimant did not turn up for work, and that whilst at work, the claimant tried to get off the Ward and that he was a danger to patients, and was this reported to the claimant at meetings with Ms Gibbons and Ms McDaniel on 8 June 2022 and noted in the Action Plan by Ms Ferguson;

(viii) in that he was told by Ms McDaniel on 20 June 2022 that his email to Matron Allen on 11 June 2022 requesting a coffee and chat was inappropriate;

(ix) the Action Plan that was created for the claimant; and

(x) Ms McDaniel having no recollection of talking to the claimant in the corridor when the claimant explained his concerns and unhappiness; and

2.3 Was that less favourable treatment? The Tribunal will have to decide whether the claimant was treated worse than someone else was treated, known as the claimant’s comparator. There must be no material difference between the circumstances of this comparator and those of the claimant. The comparator can be an actual person, or if there is no actual comparator then someone hypothetically. That is to say a hypothetical comparator whom the claimant says would not have been treated in the (less favourable) way in which the claimant was treated. The claimant relies on an hypothetical comparator.

2.4 If the claimant did suffer less favourable treatment above, was this because of sexual orientation? Is the respondent able to prove that it was for a non-discriminatory reason unconnected to the protected characteristic in question?

[3]Harassment Related to Sexual Orientation (s 26 Equality Act 2010)3.1 The claimant repeats the allegations of direct discrimination which are set out above as also being harassment related to sexual orientation. Did the respondent do any of those things?

3.2 If so, was that unwanted conduct?

3.3 Did it relate to the claimant’s protected characteristic, namely his sexual orientation?

3.4 Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?

3.5 If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

[4]Duplication of Harassment and Direct Discrimination4.1 The claimant’s complaints are presented as both harassment and/or direct discrimination, and the tribunal will determine these allegations in the following manner.

4.2 In the first place the allegations will be considered as allegations of harassment. If any specific factual allegation is not proven, then it will be dismissed as an allegation of both harassment and direct discrimination.

4.3 If the factual allegation is proven, then the tribunal will apply the statutory test for harassment under section 26 EqA. If that allegation of harassment is made out, then it will be dismissed as an allegation of direct discrimination because under section 212(1) EqA the definition of detriment does not include conduct which amounts to harassment.

4.4 If the factual allegation is proven, but the statutory test for harassment is not made out, the tribunal will then consider whether that allegation amounts to direct discrimination under the relevant statutory test. THE PROCEDURAL HISTORY 4. The Procedural history of this claim has been challenging. The Claimant informed us that he suffers from multiple health issues which have presented obstacles to both the listing and the conduct of the hearing. The Claimant has not produced medical evidence of any inability to attend or conduct proceedings. He has asserted it, however. Because some of the appointments involved attendance at the Respondent, those matters could be verified as appointments. The details of the medical issues, of course, could not be verified without consent.

[5]The case was first listed for final hearing over 5 to 16 February 2024. This was vacated by the Tribunal on 1 February 2024. The case was next listed for final hearing over 2 to 14 August 2024. This was vacated on 19 July 2024 upon the application of the Claimant because of spinal surgery. The witnesses in the case on each occasion will have made themselves available to give evidence and preparing to do so.

[6]In the lead up to the present listing of the final hearing, it was unclear that this hearing could take place because of physical ailments asserted by the Claimant. He was again asking for an adjournment. If it could not take place over this listing, I had asked the question in correspondence on 19 November 2025, based on the Claimant’s position, whether it could ever take place. I ordered, that if the Claimant were to suggest that he could not attend in December 2025, then medical evidence ought to be provided which should(a) demonstrate an appreciation that Court hearing time is a very rare commodity and there are many other cases in the system; and

(b) consider whether the Claimant’s health would ever be such as to make the hearing of his claims viable, if not in December 2025.

[7]No such medical evidence was served; instead at a video hearing on 27 November 2025 between the Claimant, Miss Moss and myself, the following timetable was agreed: we would sit on 1, 2, 3, 8, 9, 11 and add 12 December 2025. This was around medical appointments the Claimant had. The Claimant would give evidence on 1 to 3 December; the Respondent’s witnesses on 8, 9, 11 December; with submissions on 12 December 2025. The Hearing would be by Video by way of adjustment. It was envisaged that the Claimant would be present on all of those days.

[8]The Hearing duly started. The Claimant completed his evidence over 1-3 December 2025. He did not attend on 8 and 9 December 2025. He informed us by email, giving consent for verification, that he was in Derriford’s Emergency Day Care centre for exploration of heart-related matters on 8 and 9 December 2025. Derriford is the Respondent’s hospital in Plymouth.

[9]On 9 December 2025, I rejected the Respondent’s application to dismiss the case because of the Claimant’s non-attendance. I acceded to the application to hear the case in the Claimant’s absence on days he did not attend. I did so for the following reasons:(a) the history of postponements;

(b) the absence of medical evidence to the effect that the Claimant could not participate;

(c) the fact that the Claimant was not asking for a further postponement; instead he was asking to submit written observations on the Respondent’s witness statements;

(d) the age of the case;

(e) the absence of any medical evidence to the effect that he might be in a better place in the foreseeable future;

(f) the fact that all the Respondent’s witnesses (save for 2 who had good medical reasons for not attending (Charlie Hennah and Dena Gibbons) were available and had taken time out off work to be so;

(g) I had by then heard the Claimant’s evidence and was in position to form a provisional view whether his evidence established prima facie discrimination and a provisional view whether his evidence, prima facie, was reliable.

[10]Accordingly, I issued the following case management order: 1. The Respondent’s application to have the claim dismissed was itself dismissed. 2. The Respondent’s application to continue with the remainder of the hearing in the Claimant’s absence, as necessary, was granted. 3. The evidence of Susan Haigh, Donna Rutherford, Teena Rice, Lily Edwards, Beena Paulose, Henrietta Ferguson, Catherine Allen, Sue Palmer (Johnson at work) was admitted into evidence today by them confirming the truth of the contents of their witness statements together with the odd correction to bundle page numbers. No additional evidence was given. 4. The evidence of Charlie Hennah and Dena Gibbons was today admitted into evidence without their attendance, for medical reasons accepted by the Judge. 5. The evidence of Camilla McDaniel (Smith) will he heard online at 10 am on Thursday 11 December 2025 at 10am. The Claimant, if he is able, may of course cross-examine her. 6. By 5pm on Thursday 11 December 2025 the Respondent must, and the Claimant may, if he is able, email written submissions to the other side and the Tribunal, dealing with what the result in the case should be and why as against the 16 factual issues in the case. 7. Final oral submissions in the case will be heard online on Friday 12 December 2025 at 10am. Each side has a maximum of 1 hour in which to make their submissions.

[11]In answer to further correspondence from the Claimant, I confirmed I would take into account all written information submitted by him by 10am on 12 December 2025.

[12]So, the Claimant attended for his own evidence and closing submissions. He was not in attendance to cross-examine the Respondent’s witnesses. Plainly, that is sub-optimal. He had the opportunity to cross-examine them. Instead, he made further written representations. I have had to do the best I can. The reliability of the Claimant’s evidence is something I have had to have regard to.

THE LAW

[13]The relevant statutory provisions in the Equality Act 2010 to liability are:- Section 26 Harassment(1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. (5) The relevant protected characteristics [include]-  sexual orientation. Section 13 Direct discrimination (1 ) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. Section 136 Burden of proof (1) This section applies to any proceedings relating to a contravention of this Act.

(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision.

[14]For liability to be established there has to be unwanted conduct related to the fact that the Claimant is a gay man which is harassment; or less favourable treatment because the Claimant is a gay man. That the Claimant, a gay man, disapproves of something is not enough to found liability. FINDINGS OF FACT ON

THE ISSUES

[15]On 6 September 2021 the Claimant embarked upon a 2-year course that would lead to a FDSC, a Foundation Degree in Science (Nursing). It would also qualify him as a Registered Nursing Assistant whereby he could perform some essentially supervised nursing roles on the ward. During the 2-year course he would be a Trainee Nursing Associate Apprentice (TNA). This stage was bridging the gap between a Healthcare Assistant (HCA) and a qualified nurse. Thereafter he could apply to undertake a further 2-year course leading to a BSc in Nursing and full qualification as a Registered Nurse. This route into nursing is commonly adopted by those in middle age and older. The Claimant now is 61 years of age. The Claimant resigned before the end of his first year in the Foundation Degree, at a relatively early stage, therefore, in the process to become a Registered Nurse.

[16]The Claimant has had a varied career. He taught science and religious studies, and held management roles, in secondary education for 23 years. He worked for a while in care homes and then at Tavistock Memorial Hospital, working with terminal patients with neurological conditions. In 2014 he joined BA as long-haul cabin crew. He did a course on aviation medicine there. Following a BA career of approximately 8 years, he planned to return to hospital work, by undertaking the course the subject of this claim. 1. On an unknown date (prior to the claimant’s meeting on 16 November 2021 with Ms Rutherford), and thereafter on an ongoing basis, was the claimant regularly asked by unknown staff who he was “seeing, dating, living with”.

[17]The phrases ‘unknown date’ and ‘unknown staff’ do not assist the Tribunal. There are no further details in the Claimant’s witness statement. From September 2021 until February 2022 the Claimant was attached to Norfolk ward, which is an acute gastrointestinal ward. He enjoyed his time there, as he recorded in emails. He raised no grievance or complaint then that he was subject to homophobic harassment or less favourable treatment compared with a hypothetical heterosexual person. There is no prima facie case. 2. On an unknown date (prior to the claimant’s meeting on 30 November 2021 with Ms Rutherford and Ms Ferguson), after morning handover in the Doctors’ room, did someone (unknown) in the team loudly put the claimant’s name forward as a potential husband in response to someone else he was referring to looking for a husband? Did Sister Teena Rice shout that the claimant “being with a woman would never happen.”

[18]Again, the phrases ‘unknown date’ and ‘someone (unknown)’ do not assist. Teena Rice, a Senior Sister and Ward Manager for Norfolk ward confirms, as one would expect, that staff will chat generally between themselves about work and personal matters. She adds that she had not seen any conversations of an inappropriate or discriminatory nature taking place. She has no recollection of the exchange put forward in the issue. The Claimant did not raise any concerns with her about staff, including her, making unwanted comments about his sexuality. On 1 August 2022, after he had left the TNA role, the Claimant contacted Ms Rice to bear him in mind for HCA shifts as he ‘loved Norfolk’. I accept what Ms Rice tells me.

[19]The Claimant raised no complaint or grievance at the time. He does not prove any unwanted conduct which had the purpose or effect of violating his dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for him; or which amounted to less favourable treatment than a hypothetical heterosexual person. There is no prima facie case. 3. On an unknown date (prior to the claimant’s meeting on 30 November 2021 with Ms Rutherford and Ms Ferguson), did Staff Nurse Lily Edwards show the claimant Facebook photographs from Donna Rutherford’s Facebook page and ask the claimant if he was seeing/sleeping with various men who were friends of Ms Rutherford? Did she tell him that he was seeing/having a relationship with Colleague A.

[20]Lily Edwards is a Band 6 nurse. She tells me that it was the Claimant who told her that he was seeing someone and was happy. He was sleeping with someone that worked in the Trust but it was all ‘hush hush’. The Claimant mentioned this to her on a regular basis. He would say he was having an affair with someone she knew and had she worked out who it was.

[21]On one occasion the Claimant came up to her and a colleague at the nurse’s desk and told them that he was having an affair with someone who was a senior employee working for the Trust, and it was all ‘top secret’. She was asked to guess who it was. He later came up to them and said that either Ms Rutherford or Teena Rice were connected with them on Facebook. Someone opened Facebook and pages were scrolled through. Eventually the Claimant pointed to a picture of a male person. The person looked familiar to Ms Edwards, she had seen him round the hospital, but she did not know his name.

[22]By then the Claimant was openly sharing with other staff that he was seeing someone he should not be seeing. He identified colleague A, certainly to Ms Edwards. She reported the matter to Ms Rutherford, who asked her to keep it confidential.

[23]I accept Ms Edwards’ account that it was the Claimant who revealed the matter and not her.

[24]I reject the Claimant’s account and allegation. It is not true on the facts. Ms Edwards did not discriminate against the Claimant. 4. In November 2021 did Ms Rutherford and Kerry Haigh tell Sister Beena Paulose to “fail” the claimant and threaten her to do so as her registration was on the line.

[25]It is a common theme of the Claimant’s work that he enjoyed spending time chatting to patients. He would do so for a long time. He did so at the expense of performing other duties in a timely manner such as updating patient notes. Mrs Paulose informed the Claimant of this. She denies that Ms Donna Rutherford (Senior Sister and Ward Manager) and Kerry Haigh (Clinical Educator) told her to fail the Claimant and threatened that her resignation was on the line.

[26]WhatsApp messages show that Mrs Paulose and the Claimant had a good friendship. He would talk about his dog. She would talk about her son. They talked about BA tickets. There are references to Donna Rutherford along the lines of her being a demanding manager. There is nothing about instructing Mrs Paulose to ‘fail’ the Claimant.

[27]On 16 November 2021 Ms Rutherford fedback to the Claimant that he needed to spend less time chatting to the patients and to concentrate on performing all of his clinical duties in a timely manner. The role was different from the HCA role. By email dated 21 November 2021 the Claimant challenged the feedback. He said no one had ever treated him like that before. It was clear to him that Ms Rutherford had obtained data about him from others and he required to see it under GDPR. The Claimant did not respond positively to the criticism.

[28]This led to a meeting on 30 November 2021, which is dealt with below.

[29]Ms Haigh did wonder whether Mrs Paulose might find it difficult to supervise the Claimant. There was no issue about failing the Claimant. He was on course to, and did complete, the placement on Norfolk ward.

[30]I reject the suggestion that Donna Rutherford and Kerry Haigh told Mrs Paulose to fail the Claimant because her registration was on the line. It is false.

[31]The allegation, furthermore, has nothing to do with the Claimant’s sexuality. 5. During a meeting on 30 November 2021 with Ms Rutherford and Ms Ferguson,(i) was the claimant told he was the problem and was it suggested that he was mentally ill (or words to that effect);

[32]Owing to his email of 21 November 2021, and other emails, the Claimant was invited to a meeting with Donna Rutherford and Henrietta Ferguson (Placement Development Team Manager) on 30 November 2021. They did tell him that it was reported that he was discussing an affair with Colleague A openly. He was advised that he needed to respect the confidentiality of any relationship and maintain professional boundaries. He was asked if he had any concerns with his mental health as they were concerned about the volume and content of his emails. It was appropriate for these managers to raise these topics in the manner they did. They were doing their job. They would have dealt with a heterosexual person in the same way. Their raising these matters was not reasonably regarded as harassment. They did not criticise or in any way victimise a gay relationship. They did say the Claimant had to observe professional boundaries. That is entirely fair enough. These allegations fail.

[33]I will deal with allegation 6 at the end because it covers a multitude of periods of the Claimant’s employment. 7. Whilst he was on Lynher Ward from 1 March 2022 was the claimant asked on an ongoing basis (but with dates unknown) by various staff unacceptable questions about his sexuality, for example, do you live on your own, who do you live with, do you have a partner, what’s his name, such and such a doctor, nurse, HCA etc (all males), do you like him, fancy him, know him etc; are you going out with such and such?

[34]Again, the non-specific nature of the allegation (missing dates and people) does not help. Such concerns were not raised by the Claimant to, for example, Henrietta Ferguson, who was the Placement Development Team Manager with responsibility for supporting TNAs. The allegations were also not raised with Camilla McDaniel, who was a TNA educator, working between Henrietta Ferguson and the clinical teams led by the ward managers. Part of her role was to provide pastoral support. The issues he raised with her were related to his poorly dog and dealing with his late mother’s estate. Nothing to do with his sexual orientation.

[35]The allegation is not proved. It fails. 8. Whilst he was on Lynher Ward did the claimant receive no training and support with his course including not appointing an assessor and being supportive when he tested positive with Covid-19 and the health issues related to his dog.

[36]The Claimant started on Lynher ward in February 2022. He undertook a community placement in Yelverton, Devon between 28 March 2022 and 8 April 2022. In mid-April the Claimant said he was loving the ward. He was off sick 22 April to 1 May 2022. He had annual leave 4 to 8 and 10 May 2022. The Claimant’s dog passed away on 30 May and he had crisis leave for 30 May to 1 June 2022.

[37]Around 20 May 2022, Charlie Hennah, ward manager for Lynher ward, raised concerns about the Claimant’s practice and professional conduct on the ward. He was not turning up to scheduled shifts, repeatedly asking for last minute leave and time off the ward, and emailing/texting her late into the evening and on the weekends. Clinically, he was not performing some observations or doing some of the rounds in his bay, according to feedback from colleagues. These matters were impacting on his ability to demonstrate his NMC professional values, which formed part of his assessment.

[38]Lynher ward specialises in Urology, Acute reconstructive, ENT and Maxillary Facial Surgery.

[39]It was resolved to ‘refer’ him at his midpoint (formative) stage of the placement on Lynher ward. ‘Refer’ does not mean fail or require retakes. It does involve being placed on an action plan.

[40]The TNA course made the students responsible for their own learning. Camilla McDaniel was available to provide support, as were Kate WellsMcCulloch (Practice Educator Apprenticeships (Health)) as well as Charlie Hennah, the ward manager.

[41]There was no formal process for appointing an assessor. The Claimant was mainly being supported and assessed by Hannah Barton, a clinical educator, as well as the staff in the ward. The Claimant approached Ms Dena Gibbons (now Slinger) to be his assessor. This was agreed.

[42]Following referral, the action plan listed the matters that needed addressing. The matters were:(a) Carry out clinical observations and intentional rounds at the specific intervals for the cohort of patients under your care. In this connection, to repeat News2 E-learning as a refresher of the importance of establishing a base line and monitoring for deterioration. Complete a reflection how you would manage this better in the future.

(b) Only communicate out of hours in an emergency or when requested. Use and maintain a professional and courteous tone at all times when communicating with colleagues.

(d) Prioritise tasks appropriately according to clinical and operation demands. Seek clarification if unsure.

(e) Take responsibility for own actions and omissions and show evidence of this in reflection.

(f) Demonstrate your ability to receive and process feedback and make changes in practice accordingly.

(g) Use appropriate communication skills to avoid causing distress. The action plan both identified the problems and provided support in the sense that the Claimant knew precisely what he needed to do to pass the placement.

[43]The Claimant obtained crisis leave for his dog.

[44]On 21 May 2022, the Personnel hub instructed the Claimant to self-isolate in accordance with the Covid rules at the time. This delayed his mid-point review of the placement but he was advised to meet Ms Gibbons and Ms McDaniel upon return. This took place on 8 June 2022, at which meeting the action plan was discussed.

[45]The Claimant did receive training and support in connection with the course. Dena Gibbons was his assessor. A variety of nurse clinicians and educators were available to be asked for help. Intervention came when the Claimant was referred with the assistance of the action plan. Support was also provided and facilitated then.

[46]The Claimant does not prove the factual content of these allegations. He shows no prima facie case, furthermore, that these matters had any connection with his sexual orientation. This set of allegations fail. 9. Did the respondent fail to respond to the claimant’s requests (on dates unknown) for a meeting related to his Action Plan on Lynher Ward.

[47]Prior to the mind-point review meeting on 8 June 2022, Camilla McDaniel spoke to the Claimant on the ward. This was on or shortly after 2 June 2022. He said he felt that he had not entirely gelled on the ward, in contrast to Norfolk ward. He said he wanted to get to know Ms Ferguson better. The mid-point review indeed took place on 8 June 2022. The action plan was discussed. Dena Gibbons had sought feedback about the Claimant before the meeting from ward staff. The general theme was that the Claimant was spending too much time chatting to patients and not performing his clinical tasks of patient observations and temperature checks. He was not balancing his patient care duties. He was not demonstrating urgency for example in terms of turning round beds for new patients. There were concerns about tone and volume of emails. He was behind on training and paperwork that would show he was working towards meeting the objectives of the placement.

[48]At the meeting Ms McDaniel and Ms Gibbons started with the positive feedback that the Claimant was good with the patients before turning to the matters of concern. The Claimant was not happy with all of the feedback.

[49]It was agreed that one-to-one support would be put in place by Dena Gibbons. Ms Ferguson agreed to up-date the action plan, at the request of the Claimant. Ms Ferguson was not aware that any requests for a meeting were being ignored.

[50]The Claimant was keeping Ms Gibbons updated and was, in her opinion, engaging with the points in the action plan.

[51]Indeed, it is the opinion of the relevant Respondent witnesses that there was no reason why he would not have passed this placement.

[52]Instead, the Claimant resigned from the course in June 2022.

[53]The Claimant does not prove that the Respondent failed to respond to his requests for a meeting about the action plan. In any event, the allegation has no connection with the Claimant’s sexual orientation. The claim fails as an allegation of discrimination. 10. Did Ms Hennah fail to respond and appoint an assessor despite repeated requests from the claimant on unknown dates until Ms Gibbons was appointed

[54]As stated above, there was no formal process for appointing an assessor. The Claimant was mainly being supported and assessed by Hannah Barton, a clinical educator, as well as the staff on the ward. The Claimant was responsible for performing his own online training. The Claimant approached Ms Dena Gibbons to be his assessor. This was agreed.

[55]The Claimant does not prove that the Respondent failed to appoint an assessor earlier than it did. It was under no obligation to do so.

[56]And of course, the appointment or otherwise of an assessor has nothing whatsoever to do with sexual orientation. This allegation also fails as one of discrimination. 15.Following the claimant’s return to work after having Covid-19 and prior to the meeting of 8 June 2022 with Ms McDaniel and Ms Gibbons, did Ms McDaniel try to put the claimant off meeting her when he asked to see her and did she give him five minutes in a corridor; and 16. At a meeting on 8 June 2022 did was Gibbons and Ms McDaniel(i) inform the claimant that they were “referring him” that is to say failing him;

(ii) inform the claimant that he was being failed because he put patients in danger and that they were not required to provide him with evidence about this; and

(iii) not take into account his explanation for the issue relating to the tympanic thermometer in deciding to refer him.

[57]It is sensible to deal with these allegations here. As found above, prior to the mind-point review meeting on 8 June 2022, Camilla McDaniel spoke to the Claimant on the ward, in a corridor. This was on or shortly after 2 June 2022. The Claimant had asked for a meeting on 2 June 2022. Initially, Ms McDaniel stated that she would see him at the midpoint review. The Claimant persisted that he wanted to see her beforehand, and so they met on the ward. The Claimant said he felt that he had not entirely gelled on the ward, in contrast to Norfolk ward. He felt that he did not have enough protected time. He said he wanted to get to know Ms Ferguson better to assist him to feel more of the team. The mid-point review then took place with Ms McDaniel and Ms Gibbons.

[58]That Ms McDaniel spoke with the Claimant on or shortly after 2 June 2022 on the ward in a corridor has nothing whatsoever to do with the Claimant’s sexual orientation. There is no comparator there was no unwanted conduct related to the Claimant’s sexual orientation.

[59]As explained above, ‘referring’ the Claimant did not mean failing; it meant intervening with an action plan to get the Claimant to standard. He was not performing the patient observations that were required of him. It was more than just a matter of a thermometer. None of this had anything whatsoever with the Claimant’s sexual orientation. Again, the Claimant proves no prima facie case that his sexual orientation had anything to do with these matters. There is no comparator there was no unwanted conduct related to the Claimant’s sexual orientation. 11. From 21 May 2022 when the claimant advised that he had tested positive for Covid-19 and until he resigned, was the claimant victimised by Ms Hennah in that(i) he was initially told by Ms Hennah that he was negative on the day that he informed her of his two lateral flow tests and he sent proof of his previous status via documents from the ONS;

(ii) Ms Hennah then insisted that he have a 90 minute turnaround test, which was not common practice;

(iii) he was told not to go home but to wait 90 minutes and to then get back on the Ward; and

(iv) he was implicitly forced to send Ms Hennah lateral flow test results daily being told the other Ward staff were back before their isolation was due to end; 13. When the claimant caught Covid-19 did Ms Hennah via WhatsApp message tell him that he was not infectious and should return to work; and 14.On 21 May 2022 did Ms Hennah organise a 90-minute PCR test and tell him not to leave the hospital car park, and get back to the Ward when his test came back.

[60]These, then, are 3 allegations relating to the handling of Covid-19 in May 2022. The Claimant does not establish a prima facie case of any relationship to his sexual orientation in respect of these matters. This is not unwanted conduct connected to his sexual orientation. There is no comparator against which any less favourable treatment can be established. Plainly, the allegations fail as allegations of sexual orientation discrimination.

[61]There was initial confusion as to whether the Claimant was informing Ms Hennah of positive or negative tests. Ms Hennah was seeking to establish the staffing requirements for her ward, i.e. whether she had to find cover or not. If the Claimant cold work, she wanted him to do so. In the event, the personnel hub directed that the Claimant had to self-isolate. This issue is no more complicated than that. 12. At a meeting on 9 June 2022 did Ms Hennah and Ms Ferguson dismiss the claimant’s concerns that he had been contacted by the respondent’s Occupational Health Department asking questions about Ms Hennah and Infection Control on the Ward

[62]Ms Ferguson recalls that the Claimant objected to having received a call from what he believed was the Respondent’s occupational health about Covid, including about whom he lived and mixed with. The call was cut off and the Claimant contacted the personnel hub and occupational health who had no record of the call. Ms Hennah explained that the call was likely from NHS England as part of Covid control. The latter seems likely.

[63]In any event, the Claimant does not prove the Respondent was responsible for the enquiry and the matter had nothing whatsoever to do with the Claimant’s sexual orientation. It had everything to do with the fact that he had tested positive for Covid. 6. Was false and misleading data created about the claimant in the following ten respects:(i) exit documents completed by both Ms Camilla McDaniel and Ms Charlie Hennah

(ii) notes of the meeting of 13 November 2021 created by Ms Ferguson;

(iii) investigation outcome letter by Matron Sue Johnson (dated 26 August 2022);

(iv) in respect of the reasons provided for the claimant being “referred” at a meeting on 8 June 2022;

(v) in May 2022 did Ms Hennah deny saying “why didn’t they kill it yesterday” when referring to the claimant’s dog;

(vi) in a covert recording of the meeting which took place on 9 June 2022 with Ms Hannah and Ms Ferguson was the claimant told that he had not been failed;

(viii) in that he was told by Ms McDaniel on 20 June 2022 that his email to Matron Allen on 11 June 2022 requesting a coffee and chat was inappropriate;

(ix) the Action Plan that was created for the claimant; and

(x) Ms McDaniel having no recollection of talking to the claimant in the corridor when the claimant explained his concerns and unhappiness

[64]This allegation covers a range of matters.(i) This allegation is not understood. Exit documentation was not prepared by either of these. An exit interview with the Organisational Development Team was offered by letter dated 30 June 2022.

(ii) Henrietta Ferguson made notes of meetings on 30 November 2021 and 9 June 2022 retrospectively following a SAR request made by the Claimant on 2 August 2022. She maintains they are accurate. In any event, there is no prima facie sexual orientation harassment or less favourable treatment on the grounds of sexual orientation in the production or content of the notes.

(iii) Susan Johnson was asked to look into concerns the Claimant raised in a densely typed 7 page email to the Interim Associate Chief Nursing Officer on 12 July 2022. She was provided with the Claimant’s personnel file, documents relating to his training, his Action Plan evidence log, the record of proficiencies achieved, his ePortfolio and both PAD’s for his summative 1 and 2. She interviewed Sister Hennah, Matron Catherine Allen, Henrietta Ferguson and Camilla McDaniel. Ms Johnson did not uphold his claims in her outcome dated 26 August 2022. I find she acted in good faith. Further, she observes that in his complaint, the Claimant did not allege that he had been treated less favourably due to his sexual orientation. Susan Johnson did not harass the Claimant. She did not treat him less favourably on the ground of his sexual orientation. This claim fails.

(iv) The reasons for the Claimant being referred at the meeting of 8 June 2022 were honestly held by the professional nurses and educators concerned. There was a belief genuinely held that the Claimant was not performing to the required standard. There was no prima facie sexual orientation harassment or less favourable treatment on the grounds of sexual orientation.

(v) The Claimant’s dog was ill and was, very sadly, to be put down. This affected the Claimant. Charlie Hennah denies making the comment attributed to her. Without corroboration, I find the claim unproved on the balance of probability. However, whether or not she said it, and I have found this not to be proved, there was no prima facie sexual orientation harassment or less favourable treatment on the grounds of sexual orientation. The comment, even if made, had nothing whatsoever to do with the Claimant’s sexual orientation.

(vi) The Claimant had not been failed. He had been referred to an action plan so that he could pass the placement. It is the Respondent’s case that it is likely that he would have passed the placement. The claim fails on the facts and on the basis that there is no relationship whatsoever with the Claimant’s sexuality.

(vii) It was noted that the Claimant was not performing his clinical duties. He was chatting to the patients but not performing his clinical observations in a timely manner. That matter, and others, needed addressing in the action plan. In respect of the early shift on 23 April there was confusion about the Claimant’s covid status. In respect of trying to get off the ward, it was the perception of colleagues on Lynher ward that the Claimant was keen to get off the ward and do his e-learning and study outside the times that were protected for him to do that. These are all operational matters having nothing whatsoever to do with the Claimant’s sexual orientation.

(viii) Ms McDaniel did cite the email to Matron Allen requesting a ‘coffee and a chat’ as an example of an inappropriate communication with management. If necessary, the Claimant could approach Matron in a professional manner if he needed to raise anything. Requesting an informal ‘coffee and chat’ was not the way for this to be done. It was over familiar and unprofessional. The sort of matter raised in the action plan. It had nothing whatsoever to do with his sexual orientation.

(ix) The action plan was a bona fide effort by management to correct the performance and behaviours of the Claimant to make them professional and up to standard. There was no prima facie sexual orientation harassment or less favourable treatment on the grounds of sexual orientation in the terms of the action plan.

(x) Ms McDaniel does have recollection of speaking to the Claimant in the corridor on or about 2 June 2022 as documented above. She had a fuller conversation on 8 June 2022. The allegation is rejected non the facts and has nothing whatsoever to do with the Claimant’s sexual orientation. The resignation.

[65]The Claimant maintained before me that in effect he had to resign because he was not going to get an extension of time to provide the required work for his summative assessment for his second placement under the extenuating circumstances provisions. Disclosure revealed, however, that he was invited to apply for an extension of 10 days to provide the work. There would be ample time to provide the work and hence pass the placement. The Claimant’s evidence on this was unsatisfactory. He was not a reliable historian on this, and generally.

[66]I formed the view that his resignation was unnecessary in the sense that he could still pass the placement and the course if he wanted to. That was the Respondent’s position. There was, unfortunately, a degree of petulance about the resignation; in a fit of pique about being placed on an action plan. Reporting the Respondent’s witnesses to the Nursing and Midwifery Council

[67]The Claimant reported all the nurses in this case to the Nursing and Midwifery Council, alleging misconduct. That was without justification and vindictive. I have gained the strong impression in this case that the body of nurses and educators who dealt with the Claimant did so entirely professionally with view to maintaining high standards of clinical practice and behaviour on the wards. They did not deserve the stress involved in having been reported to the NMC. I am told, unsurprisingly, that there was no case to answer in every case.

[68]The Claimant was wrong to submit in closing that ‘this group of women should be ashamed of themselves’. He was also wrong to submit that Counsel for the Respondent had ‘officiated over a sham.’

CONCLUSIONS

[69]This claim fails. Most of the claims relate to matters the Claimant objected to in terms of being managed by leadership nurses and nursing educators. His position appears to be that because he is a gay man, if he disapproves of something, that amounts to sexual orientation discrimination. That is a misconceived position, however. Acts of alleged harassment have to be related to sexual orientation and acts of alleged direct discrimination have to be less favourable treatment on the grounds of sexual orientation. There was none of that in this case. The body of nurses and educators who dealt with the Claimant did so entirely professionally with view to maintaining high standards of clinical practice and behaviour on the wards. This had nothing whatsoever to do with the Claimant’s sexual orientation.

[70]Matters of gossip might have engaged protection against sexual orientation discrimination. I have found, however, that the Claimant invited gossip and in no way can be said to have been the subject of unwanted conduct or less favourable treatment on the grounds of sexual orientation.

[71]A particularly unfortunate aspect of the history of the case is the unwarranted reporting by the Claimant of the nurses in this case to the NMC. That was vindictive behaviour.