Dr EA v University Hospitals Sussex NHS Foundation Trust and NHS England: 1403880/2023 and 1403881/2023

EMPLOYMENT TRIBUNALS

Case No 1403880/2023, 1403881/2023

Between

Dr EAClaimant

1) University Hospitals Sussex NHS Foundation Trust 2) NHS EnglandRespondent

Before

Employment Judge Dawson

Representing himself. for claimant

1) Mr Adjei (instructed by counsel) for respondent

Date 13 March 2025

JUDGMENT

The claimant’s claims are dismissed.

REASONS

Contents ................................................................................................................................................................ 1 Summary of Conclusions ......................................................................................................................... 3 Introduction and overview ..................................................................................................................... 3 The issues ................................................................................................................................................ 4 Conduct of the Hearing ......................................................................................................................... 10 The Law ................................................................................................................................................. 14 Findings of Fact ..................................................................................................................................... 26 Credibility .......................................................................................................................................... 26 Findings on Disability ........................................................................................................................ 27 MS ..................................................................................................................................................... 27 Dyslexia ............................................................................................................................................. 28 Anxiety .............................................................................................................................................. 30 General Findings ............................................................................................................................... 31 The Mid Sussex Healthcare GP Practice and the ARCP – 22 June 2022............................................ 39 Moving to Ouse Valley Surgery ......................................................................................................... 45 ARCP Appeal - 25 November 2022.................................................................................................... 45 Dr EA’s time at Ouse Valley Surgery ................................................................................................ 47 Dr Hardingham’s ESR ........................................................................................................................ 56 ARCP- 11 January 2023 ..................................................................................................................... 62 The Appeal on 28 March 2023 .......................................................................................................... 63 Findings on the Alleged Legitimate Aims ......................................................................................... 66 The Claimant’s Dismissal ................................................................................................................... 67 Conclusions. .......................................................................................................................................... 69 Overall Conclusions ............................................................................................................................... 91 APPENDIX- LIST OF ISSUES .................................................................................................................... 93 Summary of Conclusions

[1]The claimant was disabled by reason of dyslexia and MS at the material times but not by reason of anxiety.

[2]The claim of failure to make reasonable adjustments fails because although, in some respects, the claimant was placed at a substantial disadvantage in comparison with persons who were not disabled by PCPs of the respondents, the respondents did not fail to take reasonable steps to avoid the disadvantage.

[3]The claim of discrimination arising from disability fails because, for the most part, the unfavourable treatment of which the claimant claims was not because of something arising in consequence of his disability. On those occasions when the claimant was treated unfavourably because of something which arose from his disability, the respondents have shown that the treatment was a proportionate means of achieving a legitimate aim.

[4]The claims of direct disability discrimination and direct race discrimination fail because there are no facts from which the tribunal could conclude that the claimant was treated less favourably because of the protected characteristics of race or disability.

[5]The claims of harassment fail because any proven unwanted conduct was not related to the claimant's disability or, if it was, it did not have the purpose or effect of violating the claimant's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

[6]The claim of unfair dismissal fails because the claimant was dismissed for some other substantial reason, which is a potentially fair reason for dismissing someone and on the basis of the issues before the tribunal, having regard to the size and administrative resources of the 1st respondent, the 1st respondent acted reasonably in treating that as a sufficient reason for dismissing the claimant. Introduction and overview

[7]By claim forms presented on 15 March 2023 and 21 April 2023, the claimant has presented claims of unfair dismissal, discrimination on the grounds of disability (including direct discrimination, failure to make reasonable adjustments, discrimination arising from disability and harassment) and direct discrimination on the grounds of race. In very brief summary, the claimant was employed by the 1st respondent as a trainee GP. The 2nd respondent was responsible for the claimant’s training, including providing educational supervisors for him, placements and assessments. Ultimately, at an Annual Review of Competence Progression (ARCP) meeting on 11 January 2023 it was recommended that the claimant be released from the training programme and that he did not qualify as a GP. Thereafter, the 1st respondent dismissed the claimant because, it says, it was a term of the contract of employment that the claimant remained on the GP training programme. The majority of the claimant’s claims revolve around his training at the Ouse Valley practice when Dr Hardingham was his educational supervisor and the decisions made at the Annual Review of Competence Progression stages in 2023 but also 2022. It is alleged that;a. in the training and assessment, he was directly discriminated against because of his race and/ or disability,

b. he was subjected to unfavourable treatment because of something arising from his disability,

c. there was a failure to make reasonable adjustments for his disability,

d. he was harassed on the grounds of his disability,

e. his dismissal was unfair.

[8]The claimant says that he is disabled by reason of multiple sclerosis (MS) dyslexia and severe anxiety. The respondents accept that the claimant was disabled by reason of multiple sclerosis and dyslexia but deny that he was, at the material times, disabled by reason of anxiety. There are issues about when the respondent became aware of the claimant’s disabilities.

The issues

[9]The issues were recorded in an order following a Case Management hearing which took place on 18 June 2024. Those issues were presented by the claimant’s representative but, I was told at this hearing, were the product of agreement between the parties. That is apparent, also, from paragraph 64 of the Case Management Order made following the hearing on 18 June 2024 (page 130 of the bundle).

[10]Minor amendments had been made to the list of issues prior to this hearing and the tribunal was presented with the list of issues which is copied and pasted in the Appendix to these reasons.

[11]At the outset of the hearing, I went through the issues with the parties in detail. Subject to what is said below, all the parties agreed that the list of issues was accurate and set out the claims that I must determine, however the following clarifications were made;a. in respect of issue 1.3, the 2nd respondent accepts that it was a qualifications body and/or an employment services provider,

b. in respect of the race discrimination claim, the claimant describes himself as of Iraqi nationality and/or Middle Eastern and/or Arab ethnicity and relies upon hypothetical comparators who do not have that nationality and/or ethnicity as set out in the Amended Particulars of Claim at page 100 of the bundle,

c. in respect of issue 7.4, the respondents rely upon the aims pleaded in their responses at pages 175 and 206 of the bundle.

d. in respect of the dates of knowledge of the claimant’s disabilities, in addition to those matters set out at paragraph 8.2 of the list of issues, the 1st respondent accepts that from August 2021 it knew of the claimant dyslexia and the 2nd respondent accepts that it was aware of the dyslexia from June 2022 and that Dr Hardingham received notice of it in July 2022. Both respondents deny knowledge of the claimant’s anxiety as a disability.

[12]Having read the witness statements prior to commencement of the hearing I was concerned as to whether the claimant was making a claim of race discrimination arising out of the alleged requirement that Dr Hardingham be called by her first name (see paragraph 45 of his witness statement). He confirmed that he was not.

[13]In this case there are a significant number of issues before the tribunal, and at two case management hearings, the tribunal urged the claimant, through his barrister, to consider the wisdom and necessity of bringing such a large number of claims and instead to focus on the most serious and most recent allegations (see paragraphs 72 and 73 at page 130 of the bundle and paragraph 2 at page 231). The claimant has not reduced the list of issues in any significant way. Additional Issues in respect of the Unfair Dismissal Claim

[14]In his closing submissions, at the end of the trial, counsel for 1st respondent took issue with the claimant being permitted to pursue the procedural challenges to the fairness of his dismissal that he makes in his witness statement at paragraphs 9 and 18.

[15]Those procedural points are that the claimant was dismissed without any procedure or consideration of alternatives to his dismissal including;a. not inviting him to any meeting

b. not considering alternatives to his dismissal such as alternative employment in a non-training grade

c. a failure to conduct any other procedure.

[16]In addition, paragraph 18 of the witness statement refers to the fact that the 1st respondent did not appear to have considered that the claimant was likely to have become a permanent employee because he had been employed for 4 years.

[17]The claimant sought go a little further in his closing submissions stating that the trust had terminated his employment following the release from his training without formally notifying him until 13 April 2023 and no efforts were made to rectify the procedural unfairness.

[18]It was not disputed that these points were not in the list of issues and were mentioned for the first time in the claimant’s witness statement. It is also not in dispute that the witness statements were exchanged one week before the final hearing commenced. The list of issues is specific as to the points which are being taken in respect of the procedural failures in the unfair dismissal. It states: 3.4. Did the first respondent adopt a fair procedure? 3.5. The claimant challenges the fairness of the decision and the procedure in the following respects; 3.5.1. The material provided to the ARCP was inadequate and misleading in that it did not properly account for the claimant's disability as set in the discrimination claim identified below. 3.5.2. The ARCP failed to grant the claimant a further period of training. 3.5.3. The ARCP in its decision did not recommend any adjustment or consider any adjustments as follows: 3.5.3.1. A dyslexia workplace assessment should be conducted and any adjustments that assessment recommended should be implemented; 3.5.3.2. Psychological counselling should be considered or implemented; 3.5.3.3. A focused communication skills course or training, accounting for the Claimant's disabilities should considered or implemented. 3.5.3.4. A coaching programme, provided by someone experienced in supporting dyslexic adults in the workplace, should be considered or implemented. 3.6. If it did not use a fair procedure, would the claimant have been fairly dismissed in any event and/or to what extent and when?

[19]In my judgment it is necessary to read issue 3.4 in the light of 3.5. Issue 3.4 does not stand alone as a general enquiry into the fairness of the procedure.

[20]The first consideration for me is whether the arguments that the respondent should have had a meeting with the claimant and considered alternative employment are so obvious that I should consider them without it being necessary for them to be in a list of issues. That was my initial view. In particular I drew the attention of the parties to the decision in Bugden v The Royal Mail Group Limited (20 May 2024) where the Employment Appeal Tribunal held that in a case where someone is dismissed in the circumstances arising out of ill-health absence, consideration of alternative employment was such a familiar point in relation to a claim of unfair dismissal, it should be addressed by the employment judge even if not raised by the parties.

[21]However, Mr Adjei submits that the case is more akin to that which existed in Royal Surrey County NHS Foundation Trust v Drzymala

UKEAT/0063/17

where the Employment Appeal Tribunal held that in a case of dismissal following the end of a fixed term contract an employer does not have to raise the question of alternative employment every time such a contract expires (paragraph 57). Mr Adjei points out that a fixed [limited] term contract can end either upon the effluxion of time or upon the happening of an event. He says that in this case the event that terminated the contract was the claimant no longer being in the 2nd respondent’s training programme.

[22]Mr Adjei says that had the 1st respondent known these new points were in issue it would have called a significant amount of evidence because of the wider ramifications of the point. The current process of the 1st respondent is that when trainees reach the end of their training period, whether they “pass” or “fail”, their employment is terminated without a meeting and without consideration of alternative employment. Although most trainees will “pass”, not all of them will have alternative employment even if they are successful in their training. Nevertheless, they are still dismissed. Those who fail are also dismissed. Mr Adjei submits that is fair in all the circumstances since everyone knows what the position will be in advance and it would be enormously onerous for the 1st respondent to have to have a dismissal meeting with each of the trainees and, if appropriate, consider alternative employment. The 1st respondent does not interview the trainees in the first place, it is simply told by the 2nd respondent which trainees will arrive and when and where they will be placed. I was told by Dr Norris (Head of GP School and Deputy Primary Care Dean for Kent, Surrey and Sussex) that she is responsible for a thousand trainees (in context I infer from her answer that she meant 1000 trainees at any one time). Thus, the ramifications of a judgment that the 1st respondent is unfairly dismissing its trainees would be significant.

[23]Having considered the arguments in the context of this case, I have concluded that it cannot be said that it would be obvious that the tribunal would consider alternative employment. Indeed, one may ask rhetorically why, if the point is obvious, it was not placed in the list of issues by the claimant or his legal representative. My view is otherwise in relation to the question of whether an employer should hold a meeting with an employee to discuss their dismissal, it seems to me that it is obvious that a tribunal would consider that point in connection with the fairness of the dismissal.

[24]That is not the end of the issue, however.

[25]In my judgment even if the procedural points are so obvious that they did not need to be pleaded or taken in the list of issues (or if they were pleaded but not put in the list of issues), this is a case where the claimant has agreed a list of issues when he was represented and the list has been discussed at two case management hearings when the claimant was represented by a barrister. The respondents are entitled to assume that the points taken in the list of issues are the only ones they will have to meet. This is a case where the claimant has conducted himself in such a way as to lose the right to have the tribunal decide the new points and has thereby reduced the scope of the tribunal’s corresponding duty (as per paragraph 40 of the judgment in Moustache v Chelsea and Westminster Hospital

[2025] EWCA Civ 195

[26]It would be unfair to the 1st respondent to allow the claimant to take the points for the first time in a witness statement served a week before the final hearing where the 1st respondent has not had the opportunity to respond to the allegations.

[27]My greatest hesitation in reaching this conclusion has been caused by the fact that the 1st respondent only took the point at the end of the hearing. It should, in my judgment, have taken the point when the list of issues was being considered at the outset. In some respects that meant that the tribunal was faced with a fait accompli in that the 1st respondent was simply saying to the tribunal “we have not called the evidence which we could have done”. However, whilst that was a failure on the part of the 1st respondent, it was also a failure on the part of the claimant who confirmed that the list of issues was correct. I have concluded that had the point been raised at the outset, I would have decided that the 1st respondent would be prejudiced if the claimant was allowed to take the point. The options for me would then have been to allow the claimant to amend the list of issues, which would inevitably have led to an adjournment and re-listing the matter for a longer hearing or to refuse to allow the claimant to amend the list of issues. Givena. the length of time for which this hearing had been listed,

b. that the list of issues had been agreed or discussed at two previous case management hearings, the first of which was in June 2024

c. that the claimant was represented by a barrister at both of those hearings, I would not have adjourned the hearing and in those circumstances, I would not have permitted the claimant to amend the list of issues.

[28]My decision is, therefore, that the claimant is not permitted to rely upon these points in support of his argument that his dismissal was unfair. The Issue of Reasonable Adjustments

[29]After the hearing had concluded, but prior to giving the judgment, it became apparent in answer to a question by me that there was a dispute between the parties as to precisely what claims were contained in the claim for reasonable adjustments.

[30]The problem arises in that paragraph 8.3 of the list of issues states the issue as “did the respondents have the following PCPs from June 2022 onwards…”.

[31]The way in which the respective cases were presented had led me to understand that the allegations of failure to make reasonable adjustments related to the time when the claimant was in the Ouse Valley practice (from 3 August 2022) and also to the way in which the June 2002 ARCP panel had dealt with matters and the ARCPs thereafter. I had not understood the claimant’s case to be that there was a failure to make reasonable adjustments while the claimant was training at the Mid Sussex Healthcare GP Practice up until 3 August 2022. The only indication that the claimant’s case may be about reasonable adjustments at the Mid Sussex Healthcare GP Practice was a statement in the claimant’s witness statement, at paragraph 31, that “The ESR dated 31 May 2022 failed to acknowledge my health condition, and I was still held accountable for my performance without any reasonable adjustments.” However, that complaint is about the ESR not about the failure to make reasonable adjustments.

[32]When I clarified the point with the claimant, he said that his claim was about a failure by the Mid Sussex Healthcare GP Practice to make reasonable adjustments from June 2022. Both counsel for the respondents said that they had not understood that to be the claimant’s case and pointed out that I had heard no evidence from Dr Lynch, the claimant’s educational supervisor while he was at the Mid Sussex Healthcare GP Practice.

[33]The respondents argued that their understanding was the correct one if one looks at the list of issues as a whole. In particular for the 1st or 2nd respondent to be liable for the failures of the Mid Sussex Healthcare GP Practice it would be necessary for Dr Lynch to be their servant or agent. However, issues 1.4 and 1.5 make clear that the only question is whether Dr Hardingham is an agent of the respondents. Moreover, the amended particulars of claim only refer to Dr Hardingham as being an agent of the respondents and do not refer to Dr Lynch at all. The amended particulars of claim do refer to Mid Sussex Healthcare but only as part of a general history at paragraph 31.9. There are no specific allegations in relation to it.

[34]Although I am sympathetic to the respondents who stated they would be prejudiced if the list of issues is read in the way for which the claimant contends, I am bound to give effect to the list of issues as drafted, and the list, which was agreed by legal representatives for both respondents does not limit the claim in the way that the respondents contend.

[35]The list of issues does allow the claimant to argue that reasonable adjustments were not made for him while he was on placement at the Mid Sussex Healthcare GP Practice for the period from June onwards. Whether such a claim would be successful, given the content of the claimant’s witness statement is a different issue. Conduct of the Hearing

[36]Prior to the hearing, at a separate case management hearing, I had agreed to the joint application of the parties that the hearing would take place remotely, that was partly to accommodate the claimant’s disability of MS and partly to assist the respondent in its management of witnesses who were all medical practitioners. Separately to that, the Regional Employment Judge directed that the case would be heard by a judge sitting alone because of the lack of availability of members.

[37]At the outset of the hearing, I clarified with the claimant and the respondents whether any adjustments were needed to the hearing to accommodate any disabilities.

[38]The claimant asked for breaks of five minutes or so every hour and stated that it may take him some time to articulate his thoughts or answers as a consequence of English not being his first language. I confirmed that the claimant could ask for breaks whenever he needed them, and I would endeavour to break every hour and that the claimant could take time to articulate his thoughts, questions or answers as the case may be. The claimant confirmed that he did not need a translator. In the event of the tribunal did take a break every hour, usually for 10 minutes, sometimes for 15.

[39]I also endeavoured to make sure that the questioning of the claimant was in accordance with the principles in the Equal Treatment Bench Book and stopped the hearing on one occasion to ensure that Mr Chegwidden took account of the fact that dyslexia not only affects a person’s ability to read documents but also their short-term memory and their working memory (page 267 ETBB). In recording this, I make no criticism of Mr Chegwidden who conducted a thorough and careful crossexamination of the claimant with courtesy.

[40]At the end of the hearing the claimant thanked the tribunal for the adjustments which had been made to accommodate his disabilities

[41]The timetable which had been set down by Employment Judge Volkmer was discussed at the outset of the hearing and I explained to the parties the importance of sticking to it. All parties gave a breakdown of how long they anticipated they would cross-examine each witness for, and the timetable was reviewed as the hearing went on. I drew the claimant’s attention to the principles laid down in the Presidential Guidance for General Case Management about asking important questions first and avoiding irrelevant questions. Mr Adjei completed his cross-examination of the claimant in less time than anticipated. It was necessary for me to impose a hard deadline upon the cross examination by Mr Chegwidden which he complied with, and I was satisfied that the deadline was fair in all the circumstances. The claimant completed nearly all of his crossexaminations of the respondents’ witnesses without needing to ask for more time than we had agreed (and in circumstances where I had reassured him that I was not imposing deadlines and he had not used up all of the time he had estimated for cross-examination). The claimant took slightly longer to cross examine the final witness for the respondent than he had intended but there was no difficulty in accommodating that.

The evidence

[42]I was provided with a bundle of witness statements running to 144 pages and a bundle running to 2273 pages. Except where otherwise stated, references to page numbers in this judgment are to the hearing bundle.

[43]I heard evidence from the claimant and for the 1st respondent I heard froma. Dr Murphy, clinical tutor for Worthing Hospital and the claimant’s line manager,

b. Mr Beattie, Director of Medical Education for the 1st respondent,

c. Ms Carter, Medical Workforce Manager,

d. Ms Vaughan, Medical Education Manager.

[44]For the 2nd respondent I heard from: e. Dr Norris, Head of GP School and Deputy Primary Care Dean for Health Education England (subsequently the 2nd respondent) for Kent, Surrey & Sussex, f. Dr Hussain, Patch Associate Dean for North and West Kent, who chaired the ARCP Panel on 15 December 2021, g. Dr Hardingham, Senior GP Partner at Ouse Valley Practice, Educational Supervisor for the claimant in his final placement who wrote the final Educational Supervisor’s report (which led to the claimant not qualifying) h. Dr Wares, Postgraduate Dean for North London, who chaired the ARCP Appeal Panel on 21 November 2022, i. Dr Shaw, Patch Associate Dean for West Surrey, who chaired the ARCP Panel on 11 January 2023, j. Dr Harris, Deputy Postgraduate Dean for Thames Valley who chaired the ARCP Appeal Panel in March 2023. All job titles are stated as at the relevant time. Other Applications within the Course of the Hearing Exclusion of observers/witnesses

[45]At around 3:20 pm on the first day of giving evidence, the claimant applied for an order that all observers who were connected with the 2nd respondent should be excluded from the hearing because their presence was giving him palpitations and making giving evidence a “little difficult”. He modified that application to limit it to two particular individuals although he did not suggest that either of them had done anything inappropriate during the hearing.

[46]I indicated that my view was that on the basis of what the claimant had said to me at that stage, there were insufficient grounds to exclude either of the people from the hearing but that I would adjourn the hearing until the following morning to enable the claimant either to obtain medical evidence or to marshal his thoughts and point me to other documents in the bundle which were relevant.

[47]The next morning the claimant sent some further documentation to the tribunal but, in the hearing, indicated that he had not been able to obtain further medical evidence, that he did not want an adjournment do so and he was not pursuing the application. I indicated that the information provided so far would not have persuaded me that I should exclude those persons. I gave a brief explanation of my reasons but stated that they would not be provided in writing unless either party applied for them within 14 days of this judgment being sent to the parties. Upon reflection however, and in any event, my comments were otiose given that the claimant was not pursuing his application and I did not make a ruling. In those circumstances it is not appropriate to provide reasons, since I did not make a decision. Evidence of Dr Assoufi

[48]On the 27th February 2025 the claimant made an application to call evidence from Dr Assoufi. He submitted a file entitled “draft letter” dated 5 October 2024 which purported to be from Dr Assoufi and made comments about the occupational health recommendations made in this case and also about their application.

[49]The claimant asserted that he expected that Dr Assoufi would go further than those comments in his evidence and make comments more generally about the case. However, the claimant was clear that he was not relying upon the report to prove whether or not he had suffered from anxiety at the time of the events in issue or, if he was, whether it amounted to a disability.

[50]I explained to the claimant that it was necessary for witness statements to be served in advance of parties calling witnesses so that the respondents were not taken by surprise. I could not see that the draft letter advanced matters on behalf of the claimant since I could read for myself what the occupational health recommendations had been in this case and make a decision about whether they had been implemented or not and, if not, whether that had adversely affected the claimant at work. If Dr Assoufi was to say more than that, it was necessary for a witness statement to be provided setting out what he would say. In those circumstances the claimant sought only to rely upon his report and not to call him. The 1st respondent did not object to the document being placed in the bundle. The 2nd respondent did. I considered it was in the interests of justice for the document to be produced in evidence since it was evidence which did not prejudice the respondents, but I would take note of the fact that it was not signed and place on it such reliance as I thought fit. Plans of the Ouse Valley Surgery

[51]Part-way through the claimant’s evidence (on the 5th day of the hearing, 20 February 2025), the 2nd respondent sought permission to adduce a plan of the Ouse Valley Surgery to demonstrate where the claimant’s room was in relation to other features of the surgery.

[52]The claimant resisted the application on the basis that he had not had time to consider it. There was no good reason for the plan not having been disclosed and placed in the bundle earlier. The plan was a little complicated in that it had a number of symbols, some of which were explained and some were not. In my judgment it was unfair to the claimant, taking account of his disability of dyslexia, to admit the plan and expect him to be able to assimilate it and answer questions on it at the stage the application was made. I was of the view that the plan may well be helpful, not least to me, to understand the various evidence but it was not necessary for the plan to be admitted in order to consider those matters. Weighing all of those factors I declined to admit the plan but stated that I would review my decision if the situation changed and the plan became more necessary. No further application was made. The Law Approach To Evidence

The Law

[53]In Gestmin SGPS SA v Credit Suisse (UK) Ltd, Leggatt J gave the following helpful guidance Evidence Based on Recollection [16] While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people's memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose:(1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and

(2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate. [17] Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called ‘flashbulb’ memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description ‘flashbulb’ memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External information can intrude into a witness’s memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory) … [22] In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. ... Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth. I have approached the evidence in that way, whilst bearing in mind that in an employment context it is likely there are less documents and there would be in a commercial case. The Definition of Disability

[54]Disability is defined in section 6 of the Equality Act 2010. A person has a disability if they have a physical or mental impairment and that impairment has a substantial and long term adverse effect on their ability to carry out day-to-day activities.

[55]“Substantial” means more than minor or trivial (section 212 (1) Equality Act 2010)

[56]Paragraph 2 of Schedule 1 Equality Act 2010 provides:(1) The effect of an impairment is long-term if— (a) it has lasted for at least 12 months, (b) it is likely to last for at least 12 months, or (c) it is likely to last for the rest of the life of the person affected.

(2) If an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.

[57]In Aderemi v London and South Eastern Railway

[2013] ICR 591

, Langstaff P stated “It is clear first from the definition in section 6(1)(b) of the Equality Act 2010, that what a Tribunal has to consider is an adverse effect, and that it is an adverse effect not upon his carrying out normal day-to-day activities but upon his ability to do so. Because the effect is adverse, the focus of a Tribunal must necessarily be upon that which a Claimant maintains he cannot do as a result of his physical or mental impairment. Once he has established that there is an effect, that it is adverse, that it is an effect upon his ability, that is to carry out normal day-to-day activities, a Tribunal has then to assess whether that is or is not substantial. Here, however, it has to bear in mind the definition of substantial which is contained in section 212(1) of the Act. It means more than minor or trivial. In other words, the Act itself does not create a spectrum running smoothly from those matters which are clearly of substantial effect to those matters which are clearly trivial but provides for a bifurcation: unless a matter can be classified as within the heading “trivial” or “insubstantial”, it must be treated as substantial. There is therefore little room for any form of sliding scale between one and the other'. (paragraph 14)

[58]The approach in determining whether a person has a disability is to consider: — Whether the person has a physical or mental impairment; — Whether the impairment affects the person's ability to carry out normal day-to-day activities; — The effect on such activities must be 'substantial'; — The effects must be 'long term'. Goodwin v The Patent Office

[1999] ICR 302

Direct discrimination

[59]As for the claims of direct discrimination, section 13 of the Equality Act 2010 provides: 13 A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

[60]In the victimisation case of Chief Constable of West Yorkshire Police v Khan

[2001] IRLR 830

, Lord Nicholls considered that the test (in the context of victimisation) must be what was the reason why the alleged discriminator acted as they did? What, consciously or unconsciously was their reason?

[61]In considering questions of causation, in Nagarajan

[1999] IRLR 572

, the House of Lords held that that if the protected characteristic had a 'significant influence' on the outcome, discrimination would be made out. The crucial question in every case was, 'why the complainant received less favourable treatment … Was it on grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job?'

[62]In respect of whether someone has been subjected to a detriment (see s39 Equality Act 2010 ) in Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] UKHL 11

it was stated; "As May LJ put it in De Souza v Automobile Association

[1986] ICR 514

, 522 g, the court or tribunal must find that by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work. But once this requirement is satisfied, the only other limitation that can be read into the word is that indicated by Brightman LJ. As he put it in Ministry of Defence v Jeremiah

[1980] ICR 13

, 30, one must take all the circumstances into account. This is a test of materiality. Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment? An unjustified sense of grievance cannot amount to "detriment": Barclays Bank plc v Kapur (No 2)

[1995] IRLR 87

. But, contrary to the view that was expressed in Lord Chancellor v Coker

[2001] ICR 507

on which the Court of Appeal relied, it is not necessary to demonstrate some physical or economic consequence. (Paragraph 34 to 35). Discrimination Arising from Disability

[63]In respect of a claim for discrimination arising from disability, under section 15(1) of the Equality Act 2010 a person(a) (A) discriminates against a disabled person

(b) (B) if A treats B unfavourably because of something arising in consequence of B's disability, and A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

[64]Section 15(1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.

[65]The proper approach to section 15 claims was considered by Simler P in the case of Pnaiser v NHS England at paragraph 31. She held:(a) A tribunal must first identify whether there was unfavourable treatment and by whom: in other words, it must ask whether A treated B unfavourably in the respects relied on by B. No question of comparison arises.

(b) The tribunal must determine what caused the impugned treatment, or what was the reason for it. The focus at this stage is on the reason in the mind of A. An examination of the conscious or unconscious thought processes of A is likely to be required, just as it is in a direct discrimination case. Again, just as there may be more than one reason or cause for impugned treatment in a direct discrimination context, so too, there may be more than one reason in a s.15 case. The 'something' that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it.

(c) Motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment and A's motive in acting as he or she did is simply irrelevant: see Nagarajan v London Regional Transport

[1999] IRLR 572

. A discriminatory motive is emphatically not (and never has been) a core consideration before any prima facie case of discrimination arises, contrary to Miss Jeram's submission (for example at paragraph 17 of her skeleton).

(d) The tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is 'something arising in consequence of B's disability'. That expression 'arising in consequence of' could describe a range of causal links. Having regard to the legislative history of s.15 of the Act (described comprehensively by Elisabeth Laing J in Hall), the statutory purpose which appears from the wording of s.15, namely to provide protection in cases where the consequence or effects of a disability lead to unfavourable treatment, and the availability of a justification defence, the causal link between the something that causes unfavourable treatment and the disability may include more than one link. In other words, more than one relevant consequence of the disability may require consideration, and it will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of disability.

(e) For example, in Land Registry v Houghton

UKEAT/0149/14

[2015] All ER (D) 284

(Feb) a bonus payment was refused by A because B had a warning. The warning was given for absence by a different manager. The absence arose from disability. The tribunal and HHJ Clark in the EAT had no difficulty in concluding that the statutory test was met. However, the more links in the chain there are between the disability and the reason for the impugned treatment, the harder it is likely to be to establish the requisite connection as a matter of fact.

(f) This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator.

(g) Miss Jeram argued that 'a subjective approach infects the whole of section 15' by virtue of the requirement of knowledge in s.15(2) so that there must be, as she put it, 'discriminatory motivation' and the alleged discriminator must know that the 'something' that causes the treatment arises in consequence of disability. She relied on paragraphs 26-34 of Weerasinghe as supporting this approach, but in my judgment those paragraphs read properly do not support her submission, and indeed paragraph 34 highlights the difference between the two stages - the 'because of' stage involving A's explanation for the treatment (and conscious or unconscious reasons for it) and the 'something arising in consequence' stage involving consideration of whether (as a matter of fact rather than belief) the 'something' was a consequence of the disability.

(h) Moreover, the statutory language of s.15(2) makes clear (as Miss Jeram accepts) that the knowledge required is of the disability only and does not extend to a requirement of knowledge that the 'something' leading to the unfavourable treatment is a consequence of the disability. Had this been required the statute would have said so. Moreover, the effect of s.15 would be substantially restricted on Miss Jeram's construction, and there would be little or no difference between a direct disability discrimination claim under s.13 and a discrimination arising from disability claim under s.15.

(i) As Langstaff P held in Weerasinghe, it does not matter precisely in which order these questions are addressed. Depending on the facts, a tribunal might ask why A treated the claimant in the unfavourable way alleged in order to answer the question whether it was because of 'something arising in consequence of the claimant's disability'. Alternatively, it might ask whether the disability has a particular consequence for a claimant that leads to 'something' that caused the unfavourable treatment.

[66]In Private Medicine Intermediaries Ltd v Hodkinson, HHJ Eady QC held [24] The protection afforded by s 15 applies where the employee is treated "unfavourably". It does not necessitate the kind of comparison required by the use of the term "less favourable treatment" as in other forms of direct discrimination protection; neither is it to be understood as being the same as "detriment". "Unfavourable treatment" suggests the placing of a hurdle in front of, or creating a particular difficulty or disadvantage for, a person because of something arising in consequence of their disability. It will be for an ET to assess, but treatment that is advantageous will not be unfavourable merely because it might have been more advantageous. Justification

[67]In Dr J Ali v Drs Torrosian, Lechi, Ebeid & Doshi t/a Bedford Hill Family Practice Appeal No.

UKEAT/0029/18/JOJ

, HHJ Eady QC summarised the principles in relation to justification as follows.15. Section 15(1)(b) thus allows that the unfavourable treatment relevantly identified for the purposes of section 15(1)(a) - here, the Claimant's dismissal - might be justified if it is a proportionate means of achieving a legitimate aim. To be proportionate, the conduct in question has to be both an appropriate means of achieving a legitimate aim and a reasonably necessary means of doing so (see Chief Constable of West Yorkshire Police & Another v Homer

[2012] ICR 704

SC , and Allonby v Accrington & Rossendale College & Others

[2001] ICR 1189

CA ).

16. Justification of the unfavourable treatment requires there to be an objective balance between the discriminatory effect and the reasonable needs of the employer (see Ojutiku v Manpower Services Commission

[1982] ICR 661

CA per Stephenson LJ at page 674B-C, Land Registry v Houghton & Others

UKEAT/0149/14

at paragraphs 8 and 9, and Hensman v Ministry of Defence

UKEAT/0067/14

at paragraphs 41, 42 and 44).

17. It is, further, common ground that when determining whether or not a measure is proportionate it will be relevant for the ET to consider whether or not any lesser measure might nevertheless have served the employer's legitimate aim (see the EAT's judgment in Naeem v Secretary of State for Justice

[2014] ICR 472

18. More specifically, the case law acknowledges that it will be for the ET to undertake a fair and detailed assessment of the working practices and business considerations involved, and to have regard to the business needs of the employer (see Hensman at paragraph 44). In that context, the severity of the impact on the employer of the continuing absence of an employee who is on long-term sickness absence will, no doubt, be a significant element in the balance that will determine the point at which their dismissal becomes justified, albeit, the evidence that may be required in this respect will be primarily a matter for the ET (see per Underhill LJ at paragraph 45 of O'Brien v Bolton St Catherine's Academy

[2017] ICR 737

CA ). 19…. 20. As to the time at which justification needs to be established, that is when the unfavourable treatment in question is applied (see Trustees of Swansea University Pension and Assurance Scheme v Williams

[2015] ICR 1197

EAT at paragraph 42). When the putative discriminator has not even considered questions of proportionality at that time, it is likely to be more difficult for them to establish justification (see Ministry of Justice v O'Brien

[2013] UKSC 6

, see in particular the judgment of the Court at paragraph 48; although the test remains an objective one, see O'Brien at paragraph 47).

[68]In Crime Reduction Initiatives (CRI) v Lawrence

UKEAT/0319/13/DA

UKEAT/0321/13/DA

the EAT held that the question of justification is objective and purely procedural questions are irrelevant to dealing with justification. It quoted Belfast City Council v Miss Behavin' Ltd

[2007] UKHL 19

that "what matters in any case is the practical outcome, not the quality of the decision-making process that led to it" (para 13)

[69]The following provisions of the Equality Act 2010 are relevant 20 Duty to make adjustments(1) …

(2) The duty comprises the following three requirements.

(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

(4) The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

(5) ….

(6) Where the first or third requirement relates to the provision of information, the steps which it is reasonable for A to have to take include steps for ensuring that in the circumstances concerned the information is provided in an accessible format. … (8) A reference in section 21 or 22 or an applicable Schedule to the first, second or third requirement is to be construed in accordance with this section. (9) In relation to the second requirement, a reference in this section or an applicable Schedule to avoiding a substantial disadvantage includes a reference to- (a) removing the physical feature in question, (b) altering it, or (c) providing a reasonable means of avoiding it. (10) A reference in this section, section 21 or 22 or an applicable Schedule (apart from paragraphs 2 to 4 of Schedule 4) to a physical feature is a reference to- (a) a feature arising from the design or construction of a building, (b) a feature of an approach to, exit from or access to a building, (c) a fixture or fitting, or furniture, furnishings, materials, equipment or other chattels, in or on premises, or (d) any other physical element or quality. … 21 Failure to comply with duty (1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person.

[70]Paragraph 20 of Schedule 8 to the Equality Act 2010 provides (1) A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know- (a) in the case of an applicant or potential applicant, that an interested disabled person is or may be an applicant for the work in question; (b) [in any case referred to in Part 2 of this Schedule], that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement.

[71]The Equality Act 2010 provides that a substantial disadvantage is one which is more than minor or trivial: see s 212(1).

[72]In Tarbuck v Sainsbury Supermarkets Ltd

[2006] IRLR 664

, the EAT held "the only question is, objectively, whether the employer has complied with his obligations or not. That seems to us to be entirely in accordance with the decision of the House of Lords in Archibald v Fife Council

[2004] IRLR 651

. If he does what is required of him, then the fact that he failed to consult about it or did not know that the obligation existed is irrelevant. It may be an entirely fortuitous and unconsidered compliance: but that is enough. Conversely, if he fails to do what is reasonably required, it avails him nothing that he has consulted the employee." (para 71).

[73]In Royal Bank of Scotland v Ashton

[2011] ICR 632

the EAT held: 15 The duty, given that disadvantage and the fact that it is substantial are both identified, is to take such steps as are reasonable to prevent the provision, criterion or practice (which will, of course, have been identified for this purpose) having the proscribed effect - that is the effect of creating that disadvantage when compared to those who are not disabled. It is not, therefore, a section which obliges an employer to take reasonable steps to assist a disabled person or to help the disabled person overcome the effects of their disability, except insofar as the terms to which we have referred permit it

[74]It went on 24 Thus, so far as reasonable adjustment is concerned, the focus of the tribunal is, and both advocates before us agree, an objective one. The focus is upon the practical result of the measures which can be taken. It is not-and it is an error-for the focus to be upon the process of reasoning by which a possible adjustment was considered. As the cases indicate, and as a careful reading of the statute would show, it is irrelevant to consider the employer's thought processes or other processes leading to the making or failure to make a reasonable adjustment. It is an adjustment which objectively is reasonable, not one for the making of which, or the failure to make which, the employer had (or did not have) good reasons.

[75]The EAT in Project Management Institute v Latif

[2007] IRLR 579

, the EAT observed that while the nature of the adjustment that is lacking need not itself come from the claimant, there must at least be before the tribunal facts from which, absent any innocent explanation, it could be inferred that a particular adjustment could have been made. Otherwise, the respondent would be placed in the 'impossible position' of having to prove the negative proposition that there was no reasonable adjustment that could have been made. Harassment

[76]The definition of harassment is found in section 26 of the Equality Act 2010. A person(a) (A) harasses another

(b) (B) if A engages in unwanted conduct related to a relevant protected characteristic, and the conduct has the purpose or effect of violating B's dignity, or creating an intimidating, hostile, degrading, and humiliating or offensive environment for B.

[77]By virtue of section 26(4) in deciding whether conduct has the effect referred to it is necessary to take into account the perception of the employee, the circumstances of the case and whether it is reasonable for the conduct to have had that effect. General Provisions

[78]Some parts of the Equality Act 2010 apply to more than one type of discrimination. They include the following sections: 39 Employees and applicants (2) An employer(a) (A) must not discriminate against an employee of A's

(b) (B) - (a) as to B's terms of employment; (b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;

(d) by subjecting B to any other detriment. 53 Qualifications bodies (1) A qualifications body (A) must not discriminate against a person (B)— (a) in the arrangements A makes for deciding upon whom to confer a relevant qualification; (b) …; (c) by not conferring a relevant qualification on B. .... (6) A duty to make reasonable adjustments applies to a qualifications body. (7) The application by a qualifications body of a competence standard to a disabled person is not disability discrimination unless it is discrimination by virtue of section 19. 109 Liability of employers and principals (1) Anything done by a person (A) in the course of A's employment must be treated as also done by the employer. (2) Anything done by an agent for a principal, with the authority of the principal, must be treated as also done by the principal. 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. The Burden of Proof and drawing of inferences

[79]In Madarassy v Nomura International plc

[2007] IRLR 246

, the Court of Appeal held, at paragraphs 56-57, "The court in Igen v Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the tribunal could conclude that the respondent 'could have' committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal 'could conclude' that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination. 57 'Could conclude' in s.63A(2) must mean that 'a reasonable tribunal could properly conclude' from all the evidence before it. This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint. Subject only to the statutory 'absence of an adequate explanation' at this stage (which I shall discuss later), the tribunal would need to consider all the evidence relevant to the discrimination complaint; for example, evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required by s.5(3) of the 1975 Act; and available evidence of the reasons for the differential treatment. Knowledge

[80]I have already set out the statutory provisions in relation to knowledge in respect of claims under sections 15 and 21 Equality Act 2010. In the case of direct disability discrimination, the respondent also has to have had actual or constructive knowledge of the claimant's disability before a claim under section 13 can succeed - see Morgan v Armadillo Managed Services Ltd [2012]

UKEAT/057/12/RN

[81]Knowledge of disability, whether actual or constructive, must be knowledge of the following matters: the physical or mental impairment; that it is of sufficient long-standing or likely to last 12 months at least; and that it sufficiently interfered with the individual's normal day-to-day activities to amount to a disability. However, there is no need for the employer to be aware of the specific diagnosis of the condition that creates the impairment - see Jennings v Barts and the London NHS Trust EAT 0056/12.

[82]Ignorance is not a defence under these sections. I must ask whether the respondent knew or ought reasonably to have known that the claimant was disabled. In relation to the second part of that test, I have had to consider whether, in the light of Gallop v Newport City Council

[2014] IRLR 211

and Donelien v Liberata UK Ltd

[2018] IRLR 535

, the employer could reasonably have been expected to have known of the disability. In that regard I must consider whether the respondent ought reasonably to have asked more questions on the basis of what it already knew. I must also consider what the respondent would have discovered had asked the questions it should do (A v Z

UKEAT/0273/18

)

[83]Section 98 Employment Rights Act 1996 provides that it is for the Respondent to show the reason for dismissal and that it is a potentially fair reason. Under s 98(1)(b) a dismissal may be for a fair reason if the employer can show that it is 'for some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held'.

[84]Section 98(4) states that "The determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)- depends on whether in the circumstances (including the size and 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 shall be determined in accordance with equity and the substantial merits of the case". Findings of Fact

Credibility

[85]In certain respects, I did not find the claimant to be a good historian. Although I do not consider that he deliberately set out to mislead, in my judgment there is evidence that he was willing to make statements which would advance his case without being overly concerned about the precise accuracy of them. I give the following two examples.a. On 4 July 2022 the claimant wrote to Dr Hardingham stating that he had been signed off for “all 13” competencies by a previous educational supervisor (page 859). That was untrue, the claimant had never been signed off for all 13 competencies. When asked about that the claimant said that it was a mistake.

b. As I set out below, at an appeal meeting in March 2023, he stated that at the Ouse Valley practice he had been without a toilet for 2 weeks (page 1506). In cross-examination he accepted that the correct period was 3 days but explained that it had “felt like 2 weeks”.

[86]That does not mean that I disregard all of the evidence which the claimant gave, but I do take those matters into account when weighing the evidence which he gave. Findings on Disability MS

[87]The respondents admit that Dr EA was disabled by reason of MS at the times material to this claim.

[88]The difficulty with Dr EA's leg pains was referred to in an occupational health report dated 16 July 2018 but that report states "apart from the "anxiety" of long drives he has no other symptoms suggesting ill-health." The report goes on to state "If you are hoping for a label to "justify" his symptoms then there is no label available other than describing what it is, which is a stress/anxiety around long drives" (page 263).

[89]An occupational health report made following a telephone call on 14 September 2021 suggested that Dr EA would benefit from working at a location closer to his home and, if operationally feasible, temporarily restricted from undertaking home visits. (Page 2038).

[90]An OH report following a consultation on 23 August 2022, from Dr Boakye, stated that Dr EA now had a working diagnosis of possible multiple sclerosis and referred to problems "standing and walking for prolonged periods and has difficulty going up and down stairs. "(Page 2049). It recommended:a. conducting consultations in a ground floor clinic room

b. Dr EA was medically fit to undertake home visits as long as he was not required to drive for more than 20 minutes and not required to go up and down stairs or walk on uneven surfaces,

c. Dr EA should avoid tasks that require standing and/or walking for prolonged periods which include any clinical duties/tasks,

d. 15-minute consultation appointments,

e. speech to text software and possibly a dyslexia workplace assessment (involving access to work),

f. maintaining regular contact with the line manager or senior colleague to ensure that he was coping..

[91]It will be seen that some of those recommendations refer to Dr EA's dyslexia, to which I refer below.

[92]Dr EA notified Dr Hardingham of his diagnosis on 20 July 2022 (page 870). He did not provide her with either of the occupational health reports.

[93]Dr EA says in his abridged impact statement (and I accept given that it was not challenged) that he became aware of the symptoms of his MS in or about January 2017. He developed pins and needles in his legs which had become continuous. He underwent a number of tests which he sets out in his witness statement and his main statement he states that Dr Kimber diagnosed the MS on 10 March 2022.

[94]Dr EA says in his witness statement that the MS causes fatigue, difficulty walking, difficulty standing for prolonged periods and difficulty going up and down stairs. Dr EA says from about January 2022 his symptoms had worsened the point where he could not walk for more than a few minutes without pain and weakness. The respondent did not, generally, challenge those assertions except in relation to walking. They point to the occupational health report of Dr Boakye dated August 2022 (page 2047) which refers to walking for prolonged periods.

[95]Dr EA gave evidence that he could walk 20m from his room at the Ouse Valley GP practice to the reception area to collect patients and then walk back with them. He was not challenged in detail as to how much further he could walk and it is difficult to know exactly what Dr Boakye meant by prolonged periods. However, Dr Boakye does say that Dr EA should not be required to stand or walk for prolonged periods including clinical duties/tasks which suggests that he did not think that Dr EA could walk for significant differences. If he believed that Dr EA was capable of walking significant distances he would not have needed to make reference to clinical duties/tasks.

[96]On the evidence which I have heard it is difficult to make a more definitive finding of fact than to say that I am satisfied that Dr EA could walk 40m, notwithstanding his MS but I find that it would have been difficult for him to walk much further. Dyslexia

[97]Again, the respondents accept that Dr EA was disabled by reason of dyslexia at the material times.

[98]In his witness statement Dr EA says that the dyslexia has a significant adverse effect on his reading performance, understanding and memory and that he has cognitive weaknesses, particularly in symbolic processing speed and naming ability. He says that his reading accuracy skills are competent although not automatic and he has difficulty with silent reading speed and fluent comprehension. Not all of that is consistent with the report of Professor McLoughlin. For instance the report does not say that Dr EA has a significant adverse effect on his reading performance, it says that Dr EA had good verbal ability as well as strength in visual reasoning, his reading accuracy skills were competent but he had difficulty with silent reading speed and fluent comprehension and proofreading. He was described as having the kinds of abilities that should ensure that he was able to work competently in practical areas. Where there is any difference between the report and the witness statement of Dr EA, I prefer the report.

[99]The report recommended the following:a. an extra 25% time to complete examinations

b. provision of blank paper during exams

c. acknowledgement that in exams he struggled to word find

d. assistance with proof-reading

e. a coaching programme provided by somebody experienced in supporting dyslexic adults in the workplace, which targeted the specific tasks he was finding challenging

f. voice recognition software

g. not underestimating how long literacy and learning tasks can take.

[100]Although the report was dated February 2021, Dr EA did not send it to either respondent until 29 October 2022. On that occasion it was sent to Kim Baker, of the 2nd respondent (1184). He did not provide a copy to Dr Hardingham.

[101]In October 2019, it had been suggested to Dr EA that he should go on a communication course (page 456). That cannot, however, have been a communication course in connection with dyslexia since Dr EA’s dyslexia was not diagnosed at that point.

[102]In 2020, Dr EA had been provided with links to contact a specialist clinical and communication skills facilitator via the professional support unit. The purpose was to ensure that verbal and written emails met the accepted professional standards of communication (page 1562).

[103]It is apparent from a file note dated 11 February 2021 which records a meeting between Dr Greg Middleton (claimant’s educational supervisor at that point) and Dr Michael Banna (GP training programme director) that those connected with the 2nd respondent were aware that the claimant had a diagnosis of dyslexia. Dr EA’s position in February 2021 was that although he had a dyslexia diagnosis, he did not agree with it and at that point he would rather not have an extra half hour in the exam or more time with patients (pages 665, 1482). As Dr EA says, that changed and ultimately, he did accept extra assistance. That is evident from the entry at page 1759 which stated that Dr EA had emailed the RCGP regarding his dyslexia diagnosis and extra time and that he had had one session with the PSU for exam prep/dyslexia coaching and that he had another one planned that day. That is consistent with page 1789 of the bundle which refers to one session in respect of clinical and communication skills having been completed in January 2022.

[104]In August 2021, a meeting took place between Dr EA and Dr Middleton at which it was recorded that Dr EA had now managed to arrange coaching sessions via the PSU in respect of the dyslexia, reference was also made to the fact that Dr EA was sometimes using dictation software (page 763). Anxiety

[105]In respect of his assertion that he is disabled by reason of anxiety, Dr EA refers to a OH report from Dr Boakye dated 18 December 2018. The report states that he has a long-standing history of problems with anxiety related symptoms which had worsened in the last five months which may be related to struggling with long-distance driving and a recent bereavement (page 2021). The report does not state what the effect on day-to-day activities are. Dr EA's abridged impact statement states that his symptoms are heart palpitations, overthinking things, ruminations, difficulties with concentration, concerns about travel to work and concerns with overnight call duties.

[106]I note that the report of 18 December 2018 stated that Dr EA may benefit from psychological therapy and Dr EA had been advised to discuss the possibility of being referred for such therapy with his GP or to access it through the Practitioner Health Programme (page 2021).

[107]In addition to that evidence there is the occupational health report dated 16 July 2018 quoted above. That report quotes a message from Mrs Soltanifard in which Dr EA was described, as unable to drive long distances due to high levels of anxiety. However, the next message records that Dr EA was unable to drive for more than 30 minutes due to leg pains and because no physical cause could be found he was told that it was stress-related. The report concluded that Dr EA was unable to drive for more than 30 minutes but linked that to leg pains (page 262). It stated that Dr EA does not have any recognised mental health diagnoses in his past nor at the moment. Apart from the "anxiety" of long drives he has no other symptoms suggesting ill health.

[108]The evidence shows that Dr EA has not received medication in respect of his anxiety since 17 December 2018. He did not see his general practitioner about anxiety in 2019 or 2020. Although he saw his general practitioner about anxiety in February 2021, that was specifically about him being anxious about whether or not he had cancer. Dr EA agreed that he had not seen his GP about anxiety other than on that one occasion in 2021 or at all in 2022. It was put to him that was because he was not suffering from symptoms of anxiety and he said that one of the most common side-effects of medication was drowsiness and because he was having to drive four hours a day, he would rather deal with his anxiety without medication and be drowsy.

[109]Dr EA said, for the first time in his evidence, that he had undergone private CBT therapy. There is no evidence of that in the bundle and I do not accept it as being accurate. It seems to be highly unlikely that if it had happened, Dr EA would not have referred to it in his witness statement and adduced evidence about it in the bundle.

[110]On 19 July 2022, Dr EA wrote to Dr Norris complaining about an ARCP outcome which he had been given. He made reference to problems caused by dyslexia and problems caused by issues with his lower limbs but made no reference to being anxious (page 868). At the ARCP panel in January 2023, Dr EA referred to MS and dyslexia as being disabilities but made no mention of anxiety. An appeal was written by solicitors on Dr EA's behalf following the ARCP panel in January 2023 which dealt in some detail with MS and dyslexia but made no reference to anxiety (page 1420).

[111]Dr EA agrees that in his first claim to this tribunal he made no reference to anxiety nor did he in the second claim, the reference to anxiety was only brought in by way of amendment. When it was put to Dr EA that between 22 June 2022 and the end of March 2023 he was not disabled by reason of severe anxiety he said that he was but he did not mention it and that it was not severe at the time it was more moderate to mild.

[112]Whilst I accept that Dr EA may have had some symptoms of anxiety during those periods, I am not satisfied on the evidence that it had a substantial adverse effect on his day-to-day activities, even bearing in mind that substantial means more than minor or trivial. Given all of the circumstances and the fact that Dr EA was fighting for his professional career as a GP, I have no doubt that if he had been suffering from anxiety which had anything more than a trivial effect on his day-today activities he would have told the respondent. General Findings

[113]Dr EA, who is a qualified doctor, applied to join the GP trainee scheme and was successful. His appointment to the scheme was from 1 August 2018.

[114]Dr EA was employed by the 1st respondent, but training was organised by a predecessor of the 2nd respondent , Health Education England. For the sake of convenience I generally refer to the 2nd respondent in these reasons as meaning either Health Education England or NHS England as appropriate. It is the 2nd respondent which decided where Dr EA would be placed for his training rotations, who Dr EA’s educational supervisors would be and whether or not Dr EA had achieved the relevant standards.

[115]The training was a “run through” post, intended to lead to a Certificate of Completion of Training (CCT). The training was intended to take three years and in each year the trainee is referred to as ST1, ST2 or ST3 as appropriate. Obtaining a CCT enables the trainee to be registered as a general practitioner with the GMC and be appointed as a GP within the health service.

[116]Progress of the trainee is monitored by the 2nd respondent . In order to successfully complete the training, it is necessary for a trainee to be successful in two exams, being Applied Knowledge and Recorded Consultation Assessment and in workplace-based assessments. Trainees must show competence in 13 required capabilities, and they are assessed on those competencies at the end of each year or more frequently if appropriate. They must demonstrate the 13 capabilities at a progressively higher level in each training year and therefore achievement of the capability during one year does not necessarily mean that the same capability will be achieved in a subsequent year or at a subsequent assessment.

[117]Training and qualification is governed by a document generally referred to as the Gold Guide, its full name is “A Reference Guide for Postgraduate Foundation and Speciality Training in the UK” (page 1847). It is not in dispute that the Gold Guide is maintained by the Conference of Postgraduate Medical Deans on behalf of the health departments within the nations of the United Kingdom. The syllabus is approved by the Royal College of General Practitioners. Dr EA agreed with counsel for the 2nd respondent that amendments to the Gold Guide can only be drafted with the agreement of all four countries representatives and that neither the first nor the 2nd respondent could unilaterally vary the Gold Guide.

[118]Training requires there to be educational supervisors. Each placement requires the provision of an educational supervisor and it is not in dispute that during the period in which Dr EA was training, he had four educational supervisors as well as an external educational supervisor (see, for instance, paragraph 80 of the witness statement of Dr Elizabeth Norris) . The Gold Guide states “The educational supervisor is the crucial link between the trainee’s educational progress, workplacebased formative assessment processes … and summative assessment processes since the educational supervisor’s report provides the summary of the assessment evidence for the ARCP process”” (page 1903).

[119]The ARCP process (Annual Review of Competence Progression) is the assessment of the competencies which should take place at least annually. The educational supervisor completes an ESR (Educational Supervisor’s Report) which informs the ARCP, although the ARCP panel which carries out the assessment is different from the educational supervisor.

[120]At each ARCP meeting an outcome is awarded. A number of possible outcomes exist as set out in the gold guide (page 1910), the relevant ones for the purposes of this case area. outcome 1, where there is satisfactory progress,

b. outcome 2- development of specific capabilities is required but additional training time is not required,

c. outcome 3 - insufficient progress has been made and additional training time is required,

d. outcome 4- a person is released from the training programme, where there is insufficient and sustained lack of progress despite having had additional training to address concerns over progress,

e. outcome 6 - where the person has gained all required capabilities and will be recommended for a CCT,

f. outcome 10- where a trainee is achieving progress and the development of capabilities at the expected rate with the acquisition of some capabilities has been delayed by the impact of a national emergency. It was agreed that outcome was introduced during the covid pandemic.

[121]For a trainee GP, at least some time is spent in GP practices. Those practices are separate to the 1st respondent, they are independent partnerships or businesses. As stated, it is the 2nd respondent which decides where Dr EA will be placed for his training rotations, who Dr EA’s educational supervisors will be and whether or not Dr EA has achieved the relevant standards.

[122]Thus, there is a somewhat unusual arrangement. The 2nd respondent is responsible for training Dr EA and deciding whether or not he can continue with his training and for at least some of his time Dr EA will find himself working on premises which are not operated by either the 1st or 2nd respondent but by an independent GP practice. However, the 1st respondent remains Dr EA’s employer and there is no dispute that Dr EA has a line manager within the 1st respondent who is, at least, responsible for arranging referral to occupational health when they are needed. I was told by Mr Beattie that it is the 1st respondent who will deal with issues such as misconduct whereas the 2nd respondent deals with issues in respect of education. I have no reason to doubt that that is how matters operate in practice, Dr EA has not challenged that description and the contemporaneous documents (for instance the email from Mr Beattie to Jo Parsonage at page 469 of the bundle) tend to support that being the practice.

[123]The relationship between the 1st and 2nd respondents and independent GP practices is governed by a service level agreement. The relevant service level agreement in this case is the one at page 1934 made between Health Education England Kent Surrey & Sussex Primary Care Department (The Authority), the 1st respondent and Ouse Valley Practice (the GP practice). The agreement was made on 5 August 2022 and has a number of appendices. As indicated, Health Education England is referred to as The Authority, the 1st respondent is referred to as the Lead employer and Ouse Valley is referred to as The Host Organisation. It has not been suggested that Health Education England Kent Surrey & Sussex Primary Care Department is a separate legal entity to Health Education England and I understand “Kent Surrey & Sussex” to be a reference to the way Health Education England was organising itself for administrative purposes. The Service Level Agreement contains a definition of GP Trainers as those GPs approved by Health Education England as GP Educational Supervisors and KSS [Kent Surrey & Sussex] agents as individual doctors employed by or acting for on behalf for under the management of Health Education England in connection with the delivery of postgraduate education. KSS was also commonly referred to as the deanery.

[124]The agreement provides that the lead employer will employ all ST1, ST2 and ST3 trainee GPs throughout the length of their training programme including any extension to training and that the lead employer will comply with Equal Opportunities requirements and terms and conditions of employment as pertinent to each employee. Equal Opportunities Requirements is defined as including any relevant, current or forthcoming legislation preventing unlawful discrimination in the provision of the services and in the employment of trainees.a. Appendix A sets out the services which the 1st respondent provides under the agreement and requires that trainees have access to occupational health, requires them to issue rotation placement details following receipt of written instructions from the 2nd respondent and work with GP training programme directors. Paragraph 14.1 of appendix A states that concerns about the conduct, performance and health of GP trainees must “be handled in accordance with the relevant policy and scheme of delegation (appendix D)”.

b. Appendix B sets out financial arrangements.

c. Appendix C sets out quality standards to support the performance framework.

d. Appendix D sets out the relevant policies which includes one on management of attendance and one on equal opportunities. The author of those policies is the 1st respondent . I have not been referred to the equal opportunities policy.

e. Appendix E sets out the obligations of the 2nd respondent .

f. Appendix F sets out the obligations of host organisations and paragraph 6.1 thereof requires them to inform the 1st respondent of any concerns relating to the conduct and behaviour of a trainee.

[125]When Dr EA was in a GP practice his educational supervisor was a general practitioner, who it is agreed, did not work for the 1st respondent .

[126]Within the ESR, the educational supervisor rates or grades the trainee against the 13 competencies. It was explained to me by Dr Norris that the ratings which can be given include:a. competent,

b. needing further development, below expectations and

c. needing further development, meets expectations.

[127]A grade of competent means that the trainee is competent to be licensed as a GP. A grade of “needing further development, meets expectations” means that the trainee is at the expected standard for where they are in the training programme but that they still need development until they are competent to be licensed. A grading of “needing further development, below expectations” means that they are not where they should be in terms of their training, e.g. at the standard for a ST2 trainee. As a shorthand many ESRs refer only to competent, below expectations or meets expectations. It follows from what has been said that by the end of the ST3 year it would not be appropriate for somebody to be awarded a “needing further development, meets expectations” grade. At that point if they meet their expectations, they would be competent for licensing.

[128]That detailed explanation of what the ratings means does not appear in any documentation in the bundle to which I was taken nor in the witness statements of the parties. However, I accept it as being accurate for the following reasons:a. the evidence was given spontaneously by Dr Elizabeth Norris and did not appear to be anything than a statement of what is well known,

b. it is consistent with the document at page 40 which sets out different types of grading,

c. the ESR’s show all three terms being used

d. Dr EA did not suggest that evidence was wrong.

[129]Throughout his time as a trainee GP, Dr EA was consistently graded as below expectations in at least some of the 13 competencies and save in the first ARCP he did not obtain an outcome 1 at any ARCP. A summary of the ESRs and ARCPs which were completed during Dr EA’s period of training is set out in the table below.

Event	Date	Outcome	Page in bundle
ESR	31.1.19	Below expectations in 1. maintaining an ethical approach 2. clinical examination and procedural skills 3. clinical management 4. managing medical complexity 5. Maintaining performance, learning and teaching 6. organisation, management and leadership 7. practising holistically, promoting health and safeguarding 8. community orientation	373
ARCP	20.02.19	outcome 1	398
ESR	31.3.20	Claimant rated below expectations in 1. Maintaining an ethical approach Communication and consultation skills 2. Data gathering and interpretation 3. Clinical examination and procedural skills 4. Managing medical complexity 5. Working with teams and in colleagues 6. Organisation, management and leadership 7. Community orientation	520
ARCP	22.04.20	Outcome 3 - 6m extension to training	534
ESR	8.12.20	1. Claimant below expectations in 2. Fitness to practice 3. Communication and consultation skills 4. Clinical management 5. Working with colleagues and in teams 6. Maintaining performance, learning and teaching 7. Organisation, management and leadership	618
ARCP	11.12.20	Outcome 2	632
ESR	29.5.21	Claimant below expectations in: Organisation, management and leadership (the overall recommendation of the educational supervisor was “unsatisfactory” with concerns being noted in relation to failing the AKT and having not started the ST3 assessments.	711
ARCP	25.6.21	Outcome 2	729
ESR	6.12.21	Claimant below expectations in: 1. Communication and consultation skills 2. Data gathering and interpretation 3. Clinical management	768
ARCP	15.12.21	Outcome 3- 6m extension to training in order to pass RCA exam	787
ESR	31.5.22	Claimant below expectations in: 1. Managing medical complexity 2. Working with colleagues and in teams 3. Organisation, management and leadership	825
ARCP	22.6.22	Outcome 3- 6m extension to training	842
ESR	3.1.23	Claimant below expectations in: 1. fitness to practice 2. clinical management 3. Working with colleagues and in teams
ARCP	11.1.23	Outcome 4	2187

[130]The Gold Guide allows for extensions to the standard training period, which is 3 years. The Gold Guide sets out that there can be an extension to that training of 12 months and in exceptional circumstances, which must be approved by the Postgraduate Dean, a further six months can be granted, giving a total extension period of 18 months. Thus, Dr EA should have completed his training by August 2021, subject to any extension being granted.

[131]In April 2020, the panel carrying out the ARCP recommended a six month extension to the training time (page 535), Dr EA was given a further six month extension in December 2021 (the ARCP noting that Dr EA had mitigating circumstances of a dyslexia diagnosis and muscular issues which were being investigated) and in June 2021 a further six months was awarded, after approval had been sought and given by Professor Warwick (page 842). Mitigating circumstances referred to in June 2022 were “chronic physical health condition – stable”.

[132]The respondent’s case is that no further extensions could be granted under the Gold Guide..

[133]Paragraph 4.108 of the Gold Guide lends itself to that view, it states: 4.108 The length of time that training can be extended depends on the type of programme the trainee is following (e.g. foundation, core or run-through training). Trainees may be offered extensions to training up to the maximum limits detailed below. However, trainees should not anticipate that they will be offered the exceptional additional training time as it is dependent on the approval of the Postgraduate Dean and such approval will only be granted in exceptional circumstances. Two years is the maximum permitted additional training time for both run-through training and the combined core plus higher specialty training programmes. This does not include additional time that might be required because of statutory leave such as ill health or maternity/paternity/adoption leave. It then sets out, in tabular form, the extensions to which I have referred above.

[134]However, Dr EA refers to paragraphs 1.11 and 1.12 of the guide which state: 1.11 The Guide will not cover every eventuality. There are occasions where it may be necessary to derogate from the guidance defined in this Guide. 1.12 The Postgraduate Dean has discretion to offer flexibility in making derogations from the Gold Guide/Purple Guide in exceptional circumstances and for sound educational reasons such as to accommodate changes and innovations in training delivery. Examples might include (but are not limited to) additional experience/ capabilities through credentialing programmes, and ‘step in and out of training’ options including Out of Programme – Pause (OOP Pause).

[135]It is also necessary to take account of paragraph 3.9: 3.9 Postgraduate Deans and TPDs are encouraged to tailor individual training programmes to help trainees with disabilities to meet the requirements for satisfactory completion. The outcomes set out in the relevant curriculum should be assessed to the same standard but reasonable adjustments may need to be made to the method of education, training and assessment.

[136]In answer to those points the respondents argue that paragraph 1.11 does not apply because Dr EA has not met his competencies which is an eventuality which is covered by the guide. They also say that paragraph 3.9 does not assist Dr EA because it refers to the “method” of education, training and assessment which does not include “period” of assessment..

[137]In my judgment, whilst the respondents may be correct about paragraph 1.11, an extension beyond 18 months could be granted under paragraph 1.12 or paragraph 3.9 of the Gold Guide. Paragraph 1.12 expressly anticipates that a Postgraduate Dean may make derogations from the Gold Guide. The potential derogations are not limited by the Gold Guide. That position is eminently sensible, it cannot be seriously suggested that the framers of the Gold Guide could think of every possible circumstance and legislate for it.

[138]Moreover, I do not see any reason to interpret the reference to the “method” of assessment as excluding the period of assessment. The method of assessment in respect of a GP trainee is to assess their competencies over a period of three years. If they display those competencies and pass exams they are recommended for being awarded the CCT. The period of assessment is part of the method of the assessment in my judgment.

[139]On 29th January 2019, a letter was written from Dr EA’s clinical tutor, Ms Crocker, to Dr EA stating that he had not made an appointment with his GP to be referred to a therapist and he had not investigated counselling through the practitioner health programme. It was recorded that going forward Dr EA would make an appointment with his GP to expedite the OH recommendation to be referred to see a therapist (page 372). Dr EA accepted in cross-examination that he did not use the selfreferral method. Ms Carter, in her evidence, confirmed that the 1st respondent provides counselling services for its staff. The Mid Sussex Healthcare GP Practice and the ARCP – 22 June 2022

[140]Between February 2022 and August 2022, Dr EA was placed at the Mid Sussex Healthcare GP Practice. That was an unusual placement in that it is considered out of the area of the 1st respondent but I find, having regard to the evidence of Ms Vaughan (witness statement paragraph 42) that it is likely it was chosen in order to be closer to Dr EA’s home. He had, in the past, struggled with long commute times as set out above.

[141]As can be seen from the table set out above, on 31 May 2022 an Educational Supervisor’s Report was completed. It is not in dispute that it was created by Dr Terry Lynch (although if proof is needed it is at page 823). Dr Lynch graded Dr EA as being below expectations in managing medical complexity, working with colleagues and in teams and organisation, management and leadership.

[142]In his witness statement Dr EA says that Dr Lynch was dismissive towards him and did not listen to his concerns about his dyslexia. He goes further and states that Dr Lynch told him that it was not his [Dr Lynch’s] problem that Dr EA had dyslexia and that he should be faster with patients. Dr EA cites pages 868 and 686 in support of that assertion.

[143]It was put to Dr EA in cross-examination that nowhere in the amended particulars of claim, drafted by counsel on Dr EA’s behalf, did it say that Dr Lynch had made the comment that Dr EA’s dyslexia was not his problem and that he should be faster with patients. It was put to him that he had not raised those comments before now and that they did not happen.

[144]Dr EA referred to the part of the document at page 868 which states “the problem is my current educational supervisor didn’t listen to my dyslexia concerns and wanted me to limit my consultation time to 10 minutes instead of 15 or 20 minutes”. The document goes on to state that Dr EA refused to have the consultation time reduced and that his current supervisor (Dr Lynch) did not sign off for that competency which is discrimination against him. However, page 868 does not say that Dr Lynch said that the dyslexia was not his problem.

[145]Dr EA was asked where on page 686 the comment is evidenced and was unable to point anywhere on the page. Indeed, there appears to be nothing from Dr Lynch on page 686, there is what appears to be a copy of an email from Dr Mike Banna which states “your report will allow you the standard extra time offered, you only need a letter if you require extra time ON TOP of the standard adjustment offered for dyslexia.” Thus, if anything that page suggests the 2nd respondent was making adjustments for Dr EA’s dyslexia.

[146]In the May 2022 Educational supervisors Report, Dr Terry Lynch stated: KB has a diagnosis of dyslexia (although he reports he does not feel that this is true) and feels unable to develop his typing a skills further. He has expressed that note keeping is a real challenge to his consultation time management - see entry 08/03/2022. I would appreciate panel review of how his dyslexia in particular should be mitigated to ensure he is able to work safely and effectively as an independent GP. (p835)

[147]In my judgment if Dr Lynch had said to Dr EA words to the effect that his dyslexia was not Dr Lynch’s problem, it would have been referred to at some point prior to Dr EA’s witness statement. I do not accept the evidence of Dr EA in this respect.

[148]Although Dr EA says that Dr Lynch spoke to him about reducing his consultations with patients to 10 minutes, that was never imposed upon Dr EA, and he was allowed to continue to see patients for 15- minute consultations. That was an adjustment made in relation to Dr EA’s dyslexia and he does not suggest that he needed longer than 15- minute consultations.

[149]Dr Norris, in answer to Dr EA’s questions, said it would not be unusual for an educational supervisor to have a discussion with a trainee about reducing the time for consultations to 10 minutes, which is the standard consultation time in the examinations which candidates must take. She pointed out that some trainees with dyslexia are able to deal with matters in 10 minutes but 20% are given extra time. Her view was that it was not unreasonable for Dr Lynch to have the conversation with Dr EA. On the evidence available to me, and on the balance of probabilities, I take the view that Dr Norris is right. It is clear from the Educational Supervisor’s Report at page 835 that Dr Lynch was seeking to obtain assistance for Dr EA in terms of mitigating his dyslexia. There is no evidence that he was behaving in any way unpleasantly in asking the questions that he did, there is nothing wrong with asking the questions as long as they are asked appropriately.

[150]As stated, Dr Lynch in his Educational Supervisors Report rated Dr EA as below expectations in:a. managing medical complexity

b. working with colleagues and in teams

c. organisation management and leadership.

[151]It is necessary to consider to what extent Dr Lynch took account of matters which arose from Dr EA’s disability. If he did and that led to Dr EA receiving an outcome 3 at the subsequent ARCP panel, that would be relevant to the question of whether Dr EA was treated unfavourably because of something arising from his disability.

[152]In respect of managing medical complexity Dr Lynch stated: EA has not presented evidence to demonstrate management of complex care. His one case he presents is a learning event analysis for which he received a complaint. (Page 833)

[153]Dr EA addresses this in paragraph 31 of his witness statement but makes no suggestion that such a lack of evidence was anything to do with his disability. In his appeal against the ARCP decision (which was based on the report by Dr Lynch), Dr EA stated that 2 of the 3 competencies that Dr Lynch graded as below expectations were because of his dyslexia and physical health issues with his lower limbs (page 2183). He made the same point in an email of 29 October 2022 (page 1180). In cross examination Dr EA agreed that the capability of managing complexity was unaffected by his dyslexia and/or multiple sclerosis.

[154]In rating Dr EA “below expectations” in respect of “Working with colleagues and in teams”, Dr Lynch said : 18/03/2022: Shows basic awareness of working within a team rather than in isolation. KB will seek help if uncertain or needs help but doesn't proactively communicate with colleagues or other team members regularly. EA works in a very isolated fashion. He rarely leaves his room. My fellow GPs, nurses and my administration team do not see him day to day unless they go to his room. KB has told me that he doesn't like walking as it causes him lower limb pain and as such doesn't want to exacerbate his symptoms. See entry 01/03/2022 His entry 'home visits with ongoing health issues' demonstrates he has personal health concerns that impact his decision making re patient care as well as his concerns re driving. Speaking today 31/05/22 EA has expressed that he feels I am criticising him for not wasting time by talking to people when he doesn't need to. I have conveyed that I am worried about him being isolated as a risk for future complaints and untowards events. (page 834).

[155]Dr Lynch stated that he would appreciate ARCP advice as to how Dr EA’s personal health concerns should be factored into his ability to work with wider health and social care teams (page 835).

[156]Dr EA says, in his witness statement, that he believes that these weaknesses were likely to be a feature of his dyslexia, anxiety and the limitations imposed upon him by his MS. He notes that Dr Lynch referenced his inability to walk as part of the reason for being isolated and remaining in his room. (Paragraph 31)

[157]The way Dr EA phrases his witness statement causes me some concern as to the amount of weight I should give it. Dr EA does not explain why his dyslexia meant that he could not communicate proactively and relies upon the statement of Dr Lynch as to why the MS might be a reason for him being isolated without any expansion. I have been provided with no evidence as to the layout of Dr Lynch’s surgery and how far Dr EA had to travel to communicate with colleagueswhether it involved prolonged walking or not. It is something of a surprise that I have not heard from Dr Lynch in this respect, but the burden of proof is on Dr EA to show facts from which I could conclude that his disabilities were the reason for his weaknesses in working with

[158]As I set out above, when Dr EA was at the Ouse Valley practice he could walk 20m to pick up a patient and then walk back to his room. The occupational health report only refers to problems with prolonged walking. I am, therefore, slightly sceptical as to whether Dr EA was unable to walk to speak with colleagues when he was working with Dr Lynch.

[159]However, Dr Lynch’s entries do not suggest that he disbelieves Dr EA or that he is of the view that Dr EA is behaving unreasonably when he says that he does not like walking because of his lower limb pain and he asks for advice as to how Dr EA’s personal health concerns should be factored into his ability to work. Therefore, I find, on the evidence presented to me, that it is more likely than not that Dr EA’s MS was a factor in the grade of “below expectations” in respect of “working with colleagues and in teams”.

[160]In respect of “Organisation Management and leadership”, Dr Lynch states: Please see CBD 24/05/22 - KB uses cut and paste templates to save him having to type. Sometimes he does not delete examination details that he has not completed KB has a diagnosis of dyslexia (although he reports he doesn't feel that this is true) and feels unable to develop his typing skills further. He has expressed that note keeping is a real challenge to his consultation time management - see entry 08/03/2022. I would appreciate panel review of how his dyslexia in particular should be mitigated to ensure he is able to work safely and effectively as an independent GP.

[161]Thus, again, Dr Lynch appears to accept that there is a link between the lack of evidence of this competency and Dr EA’s disability of dyslexia and I find accordingly.

[162]The claimant does not, in his witness statement, make reference to any adjustments which he says should have been made for him whilst at the Mid Sussex Healthcare GP Practice. He did not put to any of the respondents’ witnesses that adjustments should have been made for him at that time and the reasonable adjustments contended for in paragraph 8.7 of the list of issues do not specifically refer to any adjustments that would relate to his time there. Although the claimant asserts in paragraph 8.7.3.4 of the list of issues that specialist advice should have been sought and recommendations implemented, he does not say what those recommendations would have been. The claimant has given me no evidence as to whether any meetings took place at Mid Sussex Healthcare GP Practice otherwise than on the ground floor or whether there was any difficulty with home visits in the period from 1 June 2023 onwards.

[163]The ESR report was then used at the ARCP panel on 22 June 2022 (page 842). The report, in the section “Recommended Outcomes” gave outcome 3 and noted that Dr EA had mitigating circumstances in terms of “chronic physical health condition” which are described as stable. It recommended a 6-month extension to achieve competency.

[164]The ARCP panel was chaired by Dr Hussain.

[165]Dr Hussain’s view was that the ARCP panel was simply deciding whether or not Dr EA had reached the required competencies. The question of whether the appropriate reasonable adjustments had been made was not one for the panel, that was for resolution within the placement. He also gave evidence that:a. the ARCP panel could not change the recommendation from that of the ESR,

b. if Dr EA provided mitigation in his portfolio that would be provided to the Postgraduate Dean,

c. mitigation which the trainee wants to have taken into account at the ARCP stage must be stated orally at the ARCP meeting, even if there was reference to it in the documentation before the ARCP panel; it would not be referred to as a mitigating circumstance unless Dr EA expressly referred to it within the ARCP meeting.

[166]The recommended outcomes at page 844 of the ARCP report suggest that the panel took account of Dr EA’s physical ill-health because that was referred to by him but not of his dyslexia and I find accordingly.

[167]Dr Hussain did not reply to the request for advice by Dr Lynch, he took the view that was not the role of the ARCP panel, he stated that at the end of the process the educational supervisor and the Dean receives a letter explaining the outcome and it would be for them to consider any appropriate adjustments. However, in answer to my question about the request by Dr Lynch about how Dr EA’s dyslexia should be mitigated to ensure he was able to work safely and effectively as an independent GP, Dr Hussain said that the panel gave the 6 month extension to the training period. Moving to Ouse Valley Surgery

[168]Dr EA then moved placement to the Ouse Valley Practice, where he was supervised by Dr Hardingham. I was told by both Mr Beattie and Dr Norris, and it was not challenged by Dr EA, that Dr Hardingham was chosen as Dr EA’s next educational supervisor to give him a fresh start, both with a different supervisor and geographically. It was considered advantageous to somebody in the position of Dr EA to have such a fresh start. Having regard to the issues in this case it is not necessary for me to express an opinion on whether I consider that to be right or not.

[169]A Teams meeting took place on 12 July 2022 between Dr EA and Dr Hardingham, before Dr EA’s placement started. The note of the meeting at page 865 shows that there was an agreement that Dr EA would have 15 minute appointments, that Dr EA was happy to drive to the practice and it is recorded that “you [Dr EA] have explained in brief your health issues and I have asked you to let me know if and when your health affects your ability to work. Dictation software: I am working on providing this for you…”

[170]On 29 July 2022, Dr Brydie, Patch Associate Dean GP School West Sussex, wrote to Dr Hardingham stating that Dr EA would require a risk assessment and consideration should be given to making reasonable adjustments with regard to his educational disability and health issues. Dr Hardingham replied stating that she had had a chat with Dr EA about that and the new diagnosis of MS and asked whether she needed formal documentation of the diagnosis. She wrote “how do I know what’s reasonable as I have no OH training? I can just go by what he says he can and can’t do??” (Page 912). Dr Hardingham confirmed in evidence that she could not recall receiving any reply to that request. I have not been taken to any such reply in the bundle and find that the request was not replied to. ARCP Appeal - 25 November 2022

[171]On 19 July 2022 Dr EA appealed against the ARCP panel decision of June 2022. As I have said, he indicated that at least 2 of the 3 failed competencies “was made based on decisions that involve discriminating against myself either directly or indirectly due to ongoing physical and learning difficulties issues.”

[172]In relation to the managing medical complexity competence Dr EA said that he had not been given complicated cases in his surgery. In referring to his disabilities in connection with this competence he simply said “despite the fact of my ongoing physical health issues with my lower limbs and my learning difficulties with my dyslexia but I worked very hard without his support to try and pass the exam and I did pass the exam.” (sic, page 867). There is no suggestion that the lack of success in the managing medical complexity competence was because of his disabilities. It is not in dispute that, by that time, Dr EA had passed the relevant exams.

[173]Dr EA did link his failure in the category of Working with Colleagues and in Teams with his multiple sclerosis stating: “MS was is affecting my mobility which means that it would be very difficult for me to go and walk all the time and chitchat to the receptionist and the nursing staff do all the things that are fit and healthy person we do.” (Page 868, sic)

[174]In respect of organisation, management and leadership, Dr EA said that he was being discriminated against because of his dyslexia and stated that his supervisor had wanted to limit his consultation time to 10 minutes. He stated that doctors with dyslexia usually get up to 20 minutes with each patient and 15 minutes with each patient “is not bad at all”. (Page 868)

[175]The appeal was heard on 21 November 2022, the minutes of which are at page 1154, the chair was Dr Wares. The minutes show that Dr EA had largely repeated what he had set in his appeal email and he was asked a number of questions by the appeal panel. The “school” (the deanery) presented its case asserting that Dr EA had had at least four occupational health referrals and that concerns around organisation and management had been ongoing for 4 years. It said that Dr EA had been moved to different rotations due to underperformance and that in respect of his dyslexia Dr EA had initially been reluctant to go for a dyslexia assessment and then did not want to accept the diagnosis until the placement with Dr Lynch. All of the educational supervisors reports had reported on competencies which needed improvement and Dr Lynch’s was actually the most positive to date. It was pointed out that Dr EA was now on his 4th supervisor. The school representative was asked what support had been put in place and stated the dyslexia coaching/counselling had been offered but that Dr EA had not taken the school upon those sessions.

[176]Given the issues in the case it is not necessary for me to make significant findings as to the assertions that there had been concerns around organisation and management for 4 years, or other similar issues. Such issues were referred to in the evidence of Mr Beattie and Dr Elizabeth Norris and the claimant did not substantially challenge the points made by them as to his previous successes and failures. I accept, that the was substance to the points about the claimant’s history presented at the appeal, but I do not need to go further than that.

[177]The minutes of the panel discussion show that although there was acknowledgement of Dr EA’s health difficulties, there was also a view that there was a consistent pattern of underachieving, Dr EA was not passing all of the competencies and therefore the outcome 3 was appropriate. I have no reason to doubt that those views were genuinely held by the panel, there is no evidence to suggest that they were not genuinely held and the claimant did not suggest that at this hearing when he questioned the respondent’s witnesses. Dr EA’s time at Ouse Valley Surgery

[178]Following the discussions with Dr Hardingham that I have referred to above, Dr EA started on 3 August 2022.

[179]A meeting took place on 3 August 2022 between Dr EA and Dr Hardingham which included noting when the ARCP review was and the fact that it would be necessary to do an educational supervisor’s review by 20 November 2022. It was recorded that Dr EA was happy to have a mixture of face-to-face and telephone consultation with 6 patients per clinic moving up to 8 patients in week 2 and that Dr EA was happy with 15-minute appointments. Dr Hardingham stated that she had allocated her dictation licence to Dr EA but that the software had not been set up yet and it would be provided to Dr EA “as soon as we can”. There was reference to a risk assessment and it is apparent there was discussion about Dr EA being happy to do face-to-face appointments, his use of a mask and the use of the hot room. Dr EA stated that he agreed that home visits would be feasible but only by discussion and agreement and it was agreed that Dr EA would be sited in the ground floor consultation suite but claimant stated he might be able to work upstairs if needed. Dr Hardingham suggested to Dr EA that he met with his GP colleagues on a Monday for lunch (Page 921). I find that Dr Hardingham was taking her responsibilities as an educational supervisor seriously and also trying to ensure that she took on board Dr EA’s disabilities. It will be recalled that in July she had told Dr EA to let her know if and when his health affected his work. This meeting amounted to a workplace assessment meeting although no formal paperwork was completed thereafter.

[180]Although the dictation software was not available initially it was available by 23 August 2022. Dr Hardingham was able to make that arrangement because the practice had, separately to any issues regarding Dr EA, obtained a limited number of licences to use a digital dictation software package and she nominated Dr EA as a user under that licence instead of her. It was put to Dr EA that he had had a twoweek induction at the practice, he did not agree. The witness statement of Dr Hardingham refers to a “short induction programme”. There is no contemporaneous evidence of the length of the induction programme and I am inclined to think that it was less than 2 weeks given the reference by Dr Hardingham to “short” and the lack of any other references to it in the bundle. However, it is clear that the dictation software was provided within a relatively short period of the claimant starting at the practice.

[181]It is apparent that, relatively quickly, an issue arose in relation to annual leave. On 25 August 2022, Dr EA wrote to Dr Hardingham with a copy of his annual leave form. He had asked to take off Mondays and Thursdays on most weeks which meant that he was doing virtually no Mondays, which was Dr Hardingham’s main clinical day. She therefore declined that request, explaining why, and stating that the policy was to ask doctors to take full weeks wherever possible and, if taking individual days, spread them out over the week. She asked whether there was a particular reason for requesting the Mondays and Thursdays (page 943).

[182]Dr EA replied suggesting other dates on 14, 15, 21, 22, 28 and 29th September, 5, 6, 13, 19, 20 October 24 November and 21, 22, 28 and 29 December. It is apparent, therefore, that he had not responded to the request that he take full weeks, he gave no explanation for that and he did not answer the question as to whether there was any particular reason for his request to take Mondays and Thursdays.

[183]Dr Hardingham then forwarded the email chain to Ms Ratcliffe at the 1st respondent asking for advice. It appears that there must have been discussion, to some extent, between Dr EA and Dr Hardingham outside the email chains. That is not surprising given the way they worked together. She pointed out that having initially requested Dr EA not to take Mondays and Tuesdays, he had now asked to take Wednesday and Thursday nearly every week until Christmas and that Dr EA was avoiding Fridays as this was his private study day. Tuesday was his half day. The practical effect of that was that Dr EA worked on a Monday and Tuesday morning and would not be in the practice on Fridays because it was a private study day. That would make it difficult to do work placed based assessments and he would not be available for a tutorial which would take place on Wednesdays. As Ms Ratcliffe noted in her reply, on that basis Dr EA would be working for 1 ½ days a week until his ARCP.

[184]Dr Brydie , GP Patch Associate Dean for West Sussex attended a meeting with Dr Hardingham and Dr EA on 20 September 2022 at which (amongst other things to which I will return) the question of annual leave was discussed and Dr EA was told that leave had to include educational days, preferably in week long blocks. (Page 981).

[185]It is apparent from Dr EA’s witness statement that he is critical of Dr Hardingham’s approach to his annual leave. I find that surprising. It seems to me to be obvious that taking leave in the way that Dr EA sought to would be detrimental to his ability to learn and the way that he dealt with the issue with Dr Hardingham also shows a lack of insight into the situation. I would have expected somebody in Dr EA’s position, who was in their final extension of training, to accept all of the advice that he was given and be responsive to it.

[186]When Dr EA was in the surgery and seeing patients, he and Dr Hardingham had consulting rooms opposite each other. Dr EA was given a room on the ground floor to consult from and that is where the computer was situated with his voice dictation software. It appears from Dr EA’s evidence (which I accept) that when he started to use that room, another GP took the view that was inappropriate since she had been using that room until that time. There was clearly a discussion between her and Dr EA, which in this tribunal Dr EA complained about. The outcome of the discussion was that Dr EA remained in the room and there were no further discussions. It appears, therefore, that although Dr EA may have found the discussion uncomfortable, he prevailed and was not prevented from using that room.

[187]The practice in the surgery was that doctors walk to reception and collect their patients. Dr EA accepts, as I have said, that there was a 20m walk each way and he was able to do that walk. It is not in dispute that there was a toilet close to the room which Dr EA was consulting from but on the way to pick up patients he passed at least one other toilet.

[188]There were 5 surgeries a week and in every surgery Dr Hardingham scheduled a meeting of 15 to 30 minutes between her and Dr EA to discuss the patients which he had seen.

[189]By September 2022, Dr EA was seeing 20 patients a day, a mixture between telephone and face-to-face consultations. He recorded that situation in an electronic entry on his portfolio dated 4 September 2022. He referred to also being given 10 patient -related letters, going through 10 prescription tasks, reviewing 5 – 10 blood tests and doing additional tasks. He stated “so I am seeing much more patience than my other colleagues are seeing in the surgery who are at the same level of my training which is very helpful and encouraging also the fact that I am learning new things in each surgery and I'm working at the level of not just other trainees in the surgery but even other much more senior GPs” (sic page 957). When he cross-examined Dr Hardingham, Dr EA said that his workload was not proper for a doctor with dyslexia. Dr Hardingham disagreed stating that trainees who were approaching the CCT would be seeing 12 patients in a morning and evening, even those with dyslexia.

[190]The entry at page 957 does not seem to me to be written by someone who was struggling to complete the tasks. Dr EA is advancing his workload as being a positive thing to demonstrate his competence. Whilst, of course, Dr EA might be choosing to put a positive spin on things in order to secure a positive ARCP outcome, there is no evidence that his workload was too great at that stage and the list of issues does not assert that an appropriate reasonable adjustment would have been to reduce his workload.

[191]At the Ouse Valley practice, Dr EA’s fellow GPs were based downstairs as was the reception team. The admin staff and practice manager was upstairs. In addition, on the 1st floor, were larger rooms which were used for tutorials and larger meetings and Dr Hardingham also had a room which she would use. There would be one clinical meeting upstairs each week and one tutorial upstairs each week.

[192]The practice at the surgery was for tutorials to be held upstairs as well as clinical meetings. In order to assist Dr EA Dr Hardingham would sign her laptop into a VPN in order to go into his room to discuss matters and her evidence was that she told Dr EA that he did not have to go upstairs for clinical meetings. However, it is apparent from paragraph 58 of the witness statement of Dr Hardingham that she did ask Dr EA to attend tutorials upstairs because they could not be held elsewhere. Her evidence, which I accept, was that she discussed going upstairs for tutorials and clinical meetings and Dr EA was happy to do so. It would have been possible to conduct at least some of the meetings remotely but Dr EA wanted to demonstrate his involvement which she thought was "great". She said that she complimented him on the way he interacted with other registrars whilst waiting for the meetings to start. I accept that evidence since it was given spontaneously during the time when Dr EA was cross-examining her and Dr EA did not challenge it as being untrue. Indeed he shifted his position during his cross examination to say that he been told in previous placements by Dr Lynch and Dr Middleton that he would have to attend clinical meetings and that it would be the same when he came to Ouse Valley practice. He did not say that he had been told by Dr Hardingham that he had to attend those meetings.

[193]For a significant period of time, although no one was able to give me the precise dates, the lift in the practice was not working. The person who is able to give the most precise evidence is Dr Norris who states that the lift failed its safety check in September and was not fixed until February. She gave that evidence to the appeal against the final ARCP in March 2023 and since there is no evidence to gainsay it, I accept it as correct.

[194]On 8 September 2022, Dr Hardingham returned from holiday. She received an email from Dr Briggs which raised training issues which had come up while she was away. They included that Dr EA was “VERY” angry with a colleague about the way he or she had behaved although Dr Briggs would not have done anything different to that colleague. Dr EA had struggled with doing four face-to-face consultations in a row and he declined to go on a home visit for a complex end-of-life case with Dr Briggs because he had enough complex cases. Dr Briggs stated “I don’t mind but just thought was a great opportunity for him”

[195]There is an email in the bundle dated 15 September 2022 from Dr Hardingham to Dr Brydie (page 970). The email is too long to reproduce in this judgment and needs to be read for its full effect. However it starts by stating that Dr Hardingham is finding it very difficult to help Dr EA and that she has written the most of the email at 4 AM as it was churning away in her head. She was reluctant to convert her thoughts into an educator’s notes (on Dr EA portfolio) because it risked demoralising Dr EA further. She notes;a. that Dr EA had expressed dissatisfaction with the way the clinics are structured and asked for several changes,

b. that although there had been an agreement that Dr EA would have 10 letters allocated to him a day, on 2 occasions he had been allocated 15, Dr EA had complained that although he had capacity to cover all of the 15 it was outside the agreed number, which Dr Hardingham felt represented a lack of flexibility

c. that Dr EA had declined to do joint clinics with Dr Hardingham and therefore she had had to put in one tutorial with him once per month in order to obtain evidence to support the CCT

d. that she was concerned about Dr EA’s ability to accept constructive feedback, and made particular reference to 2 very difficult conversations with him, including one about annual leave,

e. that Dr EA became defensive and start to call her Dr Hardingham despite the fact she has asked him on several occasions to call her Janet, and that when he found a conversation difficult he used the phrase “so it is all Dr EA’s fault”

f. that Dr EA had failed to join a prearranged meeting with Dr Brydie because he had not received a phone call, he had been sent a link to join the Teams meeting but not done so because that was never how it had been done previously and he found it difficult to accept his responsibility for non-attendance,

g. that the secretary had raised concerns about the content of referrals because they seem to be disorganised and difficult to interpret

h. that Dr EA’s consultation notes were unclear

i. that Dr EA stayed in his room all the time, had not attended any Monday lunchtime get-togethers and she had not seen him having any social conversations with staff members and he had not offered to help colleagues,

j. that Dr EA was critical of reception staff and lacked flexibility

k. that in general she was finding it difficult to help Dr EA who was very defensive, constantly referred to how it had been done differently elsewhere and had been offered a huge degree of flexibility on his part.

[196]It is difficult to see any reason why Dr Hardingham would write such an email if it did not reflect her views. Moreover, the views set out in that email are evidenced with examples. In those circumstances I find that it is more likely than not that the email is a reasonably accurate reflection of how Dr EA was progressing within this placement.

[197]On 16 September 2022 Dr Brydie wrote to Dr EA stating that she would come to the Ouse Valley practice for a face-to-face meeting to discuss what progress he had made, any ongoing concerns and trainer feedback. That meeting took place on 20 September 2022 and there is a record of it at at page 980. It is recorded that the note was entered by Dr Brydie . It is apparent that Dr Brydie took the lead at the meeting and set out a number of concerns.

[198]The record shows that when Dr Brydie raised the question of Dr EA failing to refer to Dr Hardingham by her first name Dr EA said “in my culture we treat people with respect”. Dr EA agrees that he made that comment although when he put it to Dr Hardingham in cross examination, she could not recall it being said. The record by Dr Brydie goes on to state “Totally choosing to ignore the ESs request would suggest he is disrespecting her views and appears reluctant to adapt to UK norms of working, citing culture as an issue”.

[199]It is necessary to make a finding as to what happened in this respect. It is an allegation of race discrimination that in the meeting Dr Hardingham criticised Dr EA, telling him that he was trying to enforce his cultures on her and saying that he had ignored her request to call her by her first name and that he was reluctant to adapt to the UK norms of working and culture (issue 6.1.12). That is denied.

[200]The record of the meeting does not show that Dr Hardingham was raising any issues of culture, Dr EA did and the record of the meeting then records a comment by Dr Brydie. Dr EA’s evidence was, initially, somewhat equivocal in cross examination, but when it was put to him that Dr Hardingham had said nothing about his culture he replied “not at this meeting no” and when it was put to him that she had never said that he said “I can’t say that for sure”.

[201]Dr EA’s witness statement is relatively brief on the point. It says “At a meeting on 20 September 2022 Dr Hardingham informed me that I was disrespecting of her views and appeared reluctant to adapt to UK norms of working, citing culture as an issue. [pp980 and 1745]”

[202]The record of Dr Brydie was written on 21 September 2022 at 10:19, it is therefore not contemporaneous but it was written close to the time. It is more likely that Dr Brydie’s note is accurate than Dr EA’s subsequent recollection and, on the balance of probabilities, I find that Dr EA’s recollection has changed having seen the note from Dr Brydie. I do not accept Dr EA’s evidence on this point.

[203]On 22 September 2022, Dr Hardingham sent an email to Dr EA stating that she had found a conversation with him that day very difficult. The email recorded that she had asked what changes Dr EA felt needed to be made and he had replied “we shall see in 4 weeks time”. Dr Hardingham asked what support he needed from her, reiterating that she was there to support him and that her wish was that he would CCT successfully. He did not respond with any requests for help. Dr Hardingham said she was concerned that he might be depressed or struggling and asked if he had considered counselling or the PHP to which he replied “here we go again”. Dr EA had said “its better for everyone that I fail” and that it was “all a game”. Dr EA then went on to say that if he failed it would not stop there and mentioned lawyers. (Page 989). Dr EA subsequently sent an email of apology and referred to recently being diagnosed with MS and having a pregnant wife as well as an 18 month child. He stated that he hoped they could sort the issue out that if they could not he could ask for a transfer. Dr Hardingham stated that she was happy to work on the issues as discussed but if he wished to apply for transfer he should speak to Dr Brydie (page 995).

[204]On 4 October 2022 an email exchange took place between Dr EA and Dr Hardingham about paternity leave. He had written to the practice manager about paternity leave who had, on 3rd October, asked him if he was going to be taking annual leave as well. Notwithstanding the earlier discussions about annual leave, Dr EA appears not to, in fact, have taken any.

[205]Dr EA wrote to Dr Hardingham stating that paternity leave would start around 24 October and because he did not know when his paternity leave would finish,it would be difficult for him to decide when his annual leave started. Dr Hardingham replied stating Your ARCP is due 8/12/22 so we need to do the review about last week Nov so there should be time to take leave as well as pat leave? We could aim for the review on 22 or 29 Nov? Would you have a preference?

[206]Dr EA had no preference and, in fact, took paternity leave and annual leave between 7 November 2022 and the 5 December 2022.

[207]On Tuesday 11 October 2024 Dr EA undertook a home visit.

[208]On 13 October 2022 Dr Hardingham wrote to Dr EA stating that she was concerned that in respect of a patient, Dr EA had criticised all 3 of the doctors involved in her care in a clinical case review which was inappropriate. She noted that Dr EA was quite critical of staff at the practice verbally as well. She made reference to a difficult conversation the previous Tuesday when she had had difficulty giving Dr EA feedback (page 1062).

[209]On 13 October 2022 Dr EA replied thanking her for her email and stating “I was actually happy and excited that I managed to get the home visit done and have no issues in doing more home visits” (1061).

[210]A further discussion took place on 20 October 2022 during which Dr Hardingham told Dr EA she did not currently feel that she could sign him off, she was still concerned about the lack of willingness to accept feedback and was also concerned about his progress in becoming part of the team. She said that she had seen little evidence of Dr EA making any good working relationships with staff, other than of the trainees while waiting to start the tutorial. She said that she remained concerned that he was critical of receptionists. She noted that Dr EA had said that it was MS that stopped him from going upstairs to talk to secretaries etc and that he had been advised to avoid doing this. He communicated electronically instead. She stated “I feel this is adversely affecting your ability to work in the team” she went on to state that she had asked Dr EA not write anything critical of other doctors in the notes and that another doctor had given her anecdotal evidence of that happening. She recorded that Dr EA had said that she was not signing him off because he did not like her. (Page 1089).

[211]On the same day Dr Hardingham wrote to Dr Brydie setting out her thoughts in relation to capabilities. That document is balanced in the sense that it contains positive as well as negative comments on Dr EA.

[212]On 21 October 2022 Dr Brydie met with Dr EA and in the note that she made following that meeting she recorded that Dr EA felt the practice had been supportive (1091).

[213]While Dr EA was on annual leave, he came into the surgery with his wife and 2 children to meet Dr Hardingham. Dr EA’s wife bought trays of snacks in. That meeting took place upstairs and Dr Hardingham spent around 15 minutes with Dr EA and his wife and children. I asked Dr Hardingham why she did not come downstairs to meet Dr EA given his MS (and the fact his wife just had a caesarean section). She said that she had been working upstairs, that Dr EA was an adult and could have asked her to come downstairs if he had wanted to but that there would not have been a room available downstairs to use, given the number of people involved. If she had come downstairs it would be necessary for everyone to stand in the corridor. Although I have no reason to doubt the truth of Dr Hardingham’s explanation, it does reflect the approach on her part to dealing with reasonable adjustments, which was that she largely left the ball in Dr EA’s court to say what he wanted. She was not proactive in going to Dr EA with suggestions as to how the surgery could help him overcome his difficulties but expected him to say to her what he wanted. I do find, however, that when Dr EA did say what he wanted, such as the voice recognition software and the ground floor consultation room, she was happy to accommodate him.

[214]On 5 December 2022, a surgery took place when Dr Hardingham was not present. Dr Camilleri worked with Dr EA and provided feedback to Dr Hardingham. Although she made some positive comments she referred to a superficial history taken by Dr EA and gave an example of his failure to get the whole picture in respect of a child on omeprazole, that he did not do a sufficient review of a woman on HRT, displayed shortcomings in relation to a review of the patient with gout, failed to clarify whether a child had warts on his feet or verrucas and, taking the view they were warts, failed to consider immunosuppression. Dr Hardingham was concerned that, in respect to some of the patients seen on 5th December 22, Dr EA had brought them back the next day to clarify matters (pages 129 – 120, witness them to Dr Hardingham paragraph 34).

[215]On 13 December 2002 an email conversation took place about Dr EA’s competencies that needed to be demonstrated for the ARCP. Dr EA’s email is difficult to follow. The first paragraph which starts the email states so as per Sadhana advice I think It is a good idea to know exactly what competencies that needs to be assessed in the following few days before the ARCP so that I would know which areas that needs to be passed and that wasnt there in the competencies that was addressed by Dr.Kane (page 1244)

[216]Dr Hardingham replied: Pls refer to the educators note I made on 25 October 2022 as that details my concerns. I have only had 3 weeks or so working with you since that date due to paternity leave/annual leave. My main concerns centre around …

[217]I suggested to Dr Hardingham during evidence that there appears to be a contradiction between that email and the statement in paragraph 22 of Dr Hardingham’s witness statement that in October she had told Dr EA that there was plenty of time for him to take annual leave as well as paternity leave. Upon reflection I do not consider that such criticism is fair. Dr Hardingham is not saying at page 1244 that she has not had time to assess Dr EA because he took annual leave and paternity leave, she is simply saying that from her point of view little has changed since she made the educators note on the 25 October 2022.

[218]Further concerns were expressed about Dr EA’s abilities by Dr Briggs on 16 December 2022. She wrote to Dr Hardingham wondering whether there should be a reduction in the number of patients he saw because she did not feel fully confident in many of the assessments/management decisions that she had witnessed the day before. She noted that on 2 occasions he had prescribed the incorrect dose of “Pen V”, in respect of one of them he had noticed and sent a text message to the patient advising them to crush half a tablet rather than a whole tablet and had to be told to telephone the parent of the child in question. She also told him to phone the parent of another child. He was reluctant to do so because he had sent messages and, in fact, did not do so before he went home which meant that Dr Briggs had telephoned them at which point she discovered that they had not received or read the text messages. She made a number of other criticisms. (Page 1249)

[219]On 22 December 2022, Dr Hardingham noted that Dr EA had prescribed the incorrect antibiotic dosage for a child. When she asked him to check he argued that he was correct and that Dr Hardingham was wrong. In evidence Dr Hardingham explained that she had to insist that Dr EA change the dose because he was unwilling to do so. Dr EA had been of the view that for a child who was 4 years and 3 months old the correct dosage was the dose for a 5 year old child rather than a 4-yearold child (page 1271).

[220]Dr Hardingham then produced a draft ESR and met with Dr EA to discuss it on 3 January 2022. She had concluded that in the 3 of the 13 competencies there remain significant concerns namely:a. fitness to practice

b. working with colleagues and

c. clinical management.

[221]Dr Hardingham’s witness statement asserts that Dr EA behaved badly in the meeting but nothing turns on that for the purposes of this case and I make no findings. Dr EA, thereafter, went on sick leave.

[222]Dr Hardingham’s undisputed evidence was that she had not been provided with the occupational health reports in relation to Dr EA nor the reports of Professor McLoughlin. Dr Hardingham’s ESR

[223]The ESR produced by Dr Hardingham is at page 1318 of the bundle.

[224]Paragraph 5.1.4 of the list of issues lists 13 respects in which it is said that the report is critical of Dr EA. I make the following findingsa. the report is critical (or at least expresses concerns) about Dr EA’s fitness to practice, working with colleagues and in teams and clinical management, his engagement with Dr Hardingham and others, his reliance upon electronic communications and his reluctance to talk to colleagues face-to-face, his working in isolation and his lack of appreciation for the value of the team. The latter criticisms are, however, generally criticisms within the first 3 capabilities.

b. the report does not criticise claimant’s understanding, concentration, timekeeping, attendance at meetings or engagement in meetings.

[225]Dr Hardingham assessed Dr EA as “below expectations” in the competencies of:a. fitness to practice

b. clinical management

c. Working with colleagues and in teams

[226]Dr Hardingham graded Dr EA as competent in the competencies of:a. maintaining an ethical approach

b. communication and consultation skills

c. data gathering and interpretation

d. clinical examination and procedural skills

e. making a diagnosis

f. managing medical complexity

g. maintaining, performance, learning and teaching

h. organisation management and leadership

i. practising holistically

j. community orientation

[227]It is necessary to consider why Dr Hardingham rated Dr EA as below expectations in 3 categories because it is necessary to consider whether there is a causative link between Dr EA’s disabilities and the reasons why Dr Hardingham rated him as she did. To do so it is necessary to quote extensively from the report

[228]In respect of Fitness to Practice the ESR stated: Overall reflections on Fitness to practice: You are managing your own health issues, of MS and dyslexia, proactively, You are aware of these and you have taken steps to minimise impact on patient care. You have ensured that all staff are aware eg of the difficulties of getting up the stairs (educators note 1/11/22) and have requested a downstairs consulting room, which has been provided for you. You use electronic methods to communicate with colleagues. You use dictation software provided by the practice to write in the notes. Good time management. Not late. You have shown that you are aware of accepted codes pf practice to promote patient safety eg contributing to daily work of looking at pathology results for drs who are away. You work very hard, accepting work that is allocated to you. You have been reluctant to take leave despite my encouraging you to do so. You suggested leave which did not fit the accepted protocols (you asked to book 2 days per week for several weeks and the leave request did not include educational days). You found it very difficult to accept when I asked you to revise your leave request. See educators notes 22/9/22 and 17/10/22. Dr Brydie confirmed that your leave needs to include educational and clinical time in the appropriate proportions. I was very keen for you to take leave following the birth of your child however you told me you did not need to. Once your wife had delivered you then requested two weeks annual leave following the paternity leave, which was granted. You have not always responded to concerns about consultations appropriately. You frequently become defensive and and seem to perceive feedback as critical. This has led to several difficult conversations regarding patients and also about annual leave. (Educators notes 22/9/22, 17/10/22, 20/10/22). We have discussed virtually every patient you have seen in Ouse Valley Practice and have made suggestions about management. You have frequently responded when asked why you are managing the patient in a particular way by saying that that is what you have been told to do, by a previous Dr. You have frequently argued when being given feedback. EG Patient who texted in some very high blood pressures that you just filed without taking any action. You initially argued that you would never do this, but when you looked at the notes you realised that you had done this. You were able to accept this as a mistake and expressed that you were sorry this had happened. You apologised to a dr who had asked you to help sort this out. You also reflected in the portfolio and demonstrated insight. You disputed the correct dose of antibiotics for a child and argued with me over this before backing down. See educators note 22/12/22. Reception have commented that you start a new task rather than replying to existing task. This was noted in your MSQ. Evidence presented reflects your ways of managing your health issues and also your time keeping to maximise work life balance. Your MSF in October 2022 showed a spread of ratings and a low average. Improvement is noted in working with colleagues and accepting feedback. Development point: I suggest you talk to the programme directors about how to improve your ability to accept feedback as this is a recurrent theme in your GP training.

[229]If one considers the occupational health reports and the reports of Professor McLoughlin, there is nothing in any of the reports which would suggest that the weaknesses identified in the ESR arise from either Dr EA’s MS or his dyslexia. Dr EA has not suggested that they do, indeed at paragraph 40 of his witness statement, the claimant argues that the assessment in respect of fitness to practice is wrong, not that it is right but because of his disabilities. The thrust of the criticism in the ESR is about Dr EA’s refusal to accept feedback and his argumentative nature. In the context of this case, it is not for me to say whether Dr Hardingham was right or not to conclude that those matters rendered Dr EA below expectations for fitness to practice, but I am satisfied that those matters are not connected with or arise from something to do with Dr EA’s disability.

[230]In respect of clinical management the ESR states: You develop management plans in conjunction with the patient and seek their engagement. The patients are happy with your management plans. You have sometimes reflected that you give the patients what they want in order to avoid a complaint or to make the patients happy. This was noted in the feedback from the EES. Sometimes the management plan is too narrow or inappropriate as you have not gathered enough data or thought broadly enough. There are 2 examples of recent errors in antibiotic dosage. One fed back to me by another ES in practice. One referenced in educators notes, 22/12/22. There have been significant concerns expressed to me in the last few weeks regarding clinical safety, leading to another Dr feeling that the risks of supervision were too high and too time consuming to give you a full clinical caseload and requesting that we reduce patient numbers (currently 9/10 per clinic). I note that we have discussed nearly every case you have seen in OVP since Aug as we have not felt confident enough in your clinical management to reduce the level of supervision, eg COT 19/12/22 when inhaled steroids instead of oral steroids were suggested as a management plan. When I asked you about this you said that it was because I had suggested that doubling the oral ICS could be appropriate in another case and therefore was applicable to this case. I sat in on the consultation 19/12/22 and felt I had to intervene to change the management. CCR 20/12/22 text from pt high bp readings filed and not managed as needed. You have accepted the error and reflected. Evidence presented reflects this capability but there are significant concerns from other sources. Development point: you could spend more time reflecting on cases where another Dr has suggested a different management plan, and discuss cases more widely with the team when unsure, you could sit in with an experienced Dr to gain skills.,

[231]Again, there is nothing in the occupational health report or reports of Professor McLoughlin which suggest that the errors being referred to here and the significant concerns regarding safety were because of Dr EA’s dyslexia or multiple sclerosis or anything arising from them. Again Dr EA has not asserted otherwise in his witness statement, at paragraph 40 he says that the statement that his clinical planning was too narrow is unfounded, that whilst he was in A&E he could work autonomously and he always followed NICE guidelines. Dr EA’s complaint is that Dr Hardingham has wrongly assessed him, not that he has any weaknesses or difficulties which arise from his disabilities.

[232]In respect of working with colleagues and in teams the ESR states: Overall reflections on Working with colleagues and in teams: You communicate with team members electronically as a preference which is what you have been advised to do in view of your dyslexia/MS. You are reluctant to talk to them face to face. You usually respond to the communications from other team members in a timely and constructive manner. However the receptionists have fed back that you do not always respond to instant messages sent to you. They also note that you do not often reply to the task thus maintaining the thread but open a new task. You go into the dispensary very morning to collect your scripts and say hello. You give some support to team members. You occasionally message drs at end of the day offering support but I have observed this happening the day after you have been advised you need to address this competency. You did a home visit when asked e.g. 11/10/2022 which was a very positive contribution. This caused you to stay late on your half day and you did this without complaint. You have recently offered to come in as an extra half day to help out with a clinic. See educators note 17/12/22. You always sign scripts when asked to do so by the dispensers. I have seen improvement in the previously noted criticism of other team members e.g. receptionists and clinicalstaff management in the patient's notes. This demonstrates a willingness to change. The feedback I have received is that this does not happen in a proactive manner but only when asked. You do not engage proactively with 'end of the day group tasks’ like path results, signing scripts, helping others with their letters. You work in isolation. Eg This week we have had no water. All staff have been aware of this and there have been multiple discussions amongst team members about how to manage the situation. I caught up with you 24 hours after the water cut was noted and you were not aware of this. I made sure that you were able to manage your needs to access toileting facilities and drinking water by letting you know what the plan was. I feel this demonstrates a lack of engagement with the rest of the team. Doesn’t appreciate the value of the team. Makes critical comments about reception and clinical staff. Has made negative comments re others drs management in clinical notes, and eportfolio, however I have asked you not to do this and I have not seen any recent examples of this in the clinical notes. Evidence presented shows some progression in this capability, eg MSF which notes that you are polite, respectful and helpful. There are also comments re improving communication.

[233]In this respect, at paragraph 40 of his witness statement, Dr EA states that his preferred method of communication, electronic messaging, was due to his disabilities (MS and dyslexia) which made face-to-face interaction more challenging. He states that there is no evidence to support claims that he is disengaged or unwilling to communicate. He says that the workplace did not accommodate his mobility needs, specifically the lack of a working lift, he says that despite those challenges he made efforts to engage with his colleagues, attending clinics and meetings when possible. He refers to a lack of understanding about his condition.

[234]The occupational health reports and the reports of Professor McLoughlin do not suggest that Dr EA has difficulty communicating face-to-face, in the sense that there is any physical difficulty with speech or ability to say what he intends to. Professor McLoughlin says that although Dr EA speaks with an accent his communication skills in English are good and that he has sufficient competence in English to suggest that his literary skills in the language should be at least normally developed. He states that Dr EA has good verbal ability, as well as strength in visual reasoning although there is some difficulty in the processing of information in working memory. In the 2nd report (page 2031) Professor McLoughlin says that the inefficiency with Dr EA’s working memory can impact on verbal communication - the naming aspect of working memory and associated with word finding. The reports of Dr Boakye not suggest any problems in communication as a result of MS but, of course, Dr EA does have problems standing and walking for prolonged periods and difficulty going up and down stairs. Neither set of reports suggest that it would be a reasonable adjustment for Dr EA to primarily communicate electronically with colleagues.

[235]Dr EA’s GP colleagues were all situated on the ground floor at Ouse Valley as were reception staff. It was only the admin team and the practice manager who were situated upstairs. Dr EA was required to go upstairs on 2 occasions each week for tutorials and clinical meetings (one of each) but although I accept Dr EA found going upstairs difficult, the medical evidence is not that he could not manage to do so. That is significant because I have found that Dr EA had said he was happy to go upstairs for meetings. At the end of the ESR Dr EA makes comments on his supervisor’s report. At page 1344, Dr EA make comments on working with colleagues and although he refers to his physical disability when talking about using modern technology, he makes the point that he attends weekly clinic meetings and lunch meetings and clinic meetings without any suggestion that he finds it difficult to do so.

[236]The ESR did not criticise Dr EA for failing to communicate with staff who were upstairs face-to-face. To that extent, it does not repeat the observations made by Dr Hardingham in October 2022. I do not find that Dr Hardingham was taking any failure to go upstairs to communicate face-to-face with surgery staff into account when she graded Dr EA in respect of this criteria.

[237]Thus, it is difficult to find any clear causative link between Dr EA’s dyslexia or MS and his isolation from GP colleagues or reception staff. It is impossible to see any link between his disabilities and the critical comments he makes about reception and clinical staff and about other doctors management. It is also difficult to see any link between Dr EA’s disabilities and his failure to engage proactively with end of the day tasks and Dr EA does not suggest that there is any link at paragraph 40 of his witness statement. I find that Dr Hardingham’s grade in this respect was not because of something which arose from the claimant’s disability ARCP- 11 January 2023

[238]Dr EA’s final ARCP took place on 11 January 2023. It was chaired by Dr Shaw.

[239]Dr Shaw’s witness statement states that had Dr EA been very close to achieving the competencies required, he would have taken advice from the head of school/primary care Dean regarding options to allow him to complete training. However he said that Dr EA’s progression was significantly below that needed in multiple areas.

[240]Somewhat surprisingly, there are no minutes of the discussions between Dr Shaw and his colleagues in respect of the ARCP, the only document available being the document at page 1385. The only mention of Dr EA’s disabilities within that document is in the “Recommended Outcomes” section where it states “Mitigating Circumstances (if any): Dr EA briefly mentioned MS and dyslexia in his interview.”

[241]I asked Dr Shaw about that brief entry and he told me that the reason it was only mentioned briefly was because Dr EA walked out midsentence when he was being told what the meeting had decided. That seemed curious since I would have expected mitigating circumstances to be considered before the recommended outcome was given, particularly in this case as the recommended outcome was outcome 4, that Dr EA be released from training. Once it had been decided that Dr EA had, in effect, failed and would be released from training, the question of mitigating circumstances was redundant. Dr Shaw was not suggesting that the panel might have changed its mind about the outcome after mitigating circumstances had been discussed. Indeed, to the contrary, he told me that mitigation is relevant but would not alter the outcome in the case. It is difficult to see, therefore, how it is relevant.

[242]I asked Dr Shaw whether he had seen page 1089 and the statement by Dr Hardingham that Dr EA had said that it was his MS that had stopped him going upstairs and that Dr Hardingham felt that was adversely affecting his ability to work in the team. Dr Shaw told me that it would have been part of the portfolio but there was a lot of information within the portfolio and it is difficult for him to know whether he had seen everything. He expected it would have been discussed as a panel but he could not say for sure.

[243]I regret to say that in circumstances where the ARCP was terminating Dr EA’s training, I find the approach of the panel on this occasion to have been unsatisfactory. It gave no consideration to Dr EA’s disabilities and whether any reasonable adjustments were necessary, it kept no record of its discussions (if there were any) and the chair cannot even say whether all of the documents in the electronic portfolio were considered. It is difficult to know what function this panel performed beyond rubber-stamping the Educational Supervisors Report. The Appeal on 28 March 2023

[244]Dr EA appealed against the decision made by the ARCP in January and enlisted the help of Didlaw solicitors to do so. As I have already indicated, they focused on Dr EA’s MS and dyslexia.

[245]The minutes of the appeal meeting are at page 1504. Dr Harris chaired the appeal and the panel included Dr Bonavia, college representative, Dr Phag-Udom, same speciality doctor, Dr Nsiah , senior trainee representative and Mr McKenzie, lay representative. In addition to those minutes Dr Harris took her own notes which appear at page 1490.

[246]The notes show that the meeting was thorough in the sense that there was a pre-meeting between the members of the panel where, having read the relevant documentation, the panel members discussed what areas they wanted to explore, Dr EA was then given the opportunity to present his case to the panel and Dr Norris, for the deanery, presented her case. There was then a panel review, again, just with the members of the panel and the outcome was delivered.

[247]The minutes show that during the course of the appeal, the panel members (by Dr Bonavia) asked Dr EA about the adjustments in the reports of Professor McLoughlin of February 2021. Dr EA confirmed that he had been given an extra 25% in the exam, that he had been given a blank paper, that he was given 15 minutes with patients, that he let people know that he would need assistance with proof-reading and asked them to speak slowly, that he had participated in two coaching sessions before the RCA exam. It was recorded that Dr EA had been provided with software in his last placement. Dr EA also confirmed that in respect of the August 2022 occupational health report of Dr Laurence Boakye he had been given a ground floor consultation room, home visits were no more than 20 minute drives, he had needed to go upstairs to participate in meetings and sometimes he declined to do so but no other clinical duties required long-standing and that there had been an issue with the toilet.

[248]The issue with the toilet is two-fold. For a period in October 2022 the toilet closest to Dr EA was not working. During that period he had to use alternative toilets. However, it was not ultimately disputed by Dr EA that every time went to collect a patient he walked past an alternative toilet. Instead, he asserted (as I understood what he was saying) that in the same way that if one needs a disabled parking place, it should be the closest to the building, if one needs the use of a toilet because of disabilities then it should be the toilet closest to one’s consultation room. Dr EA did not suggest that he was put at any particular disadvantage by the fact that the toilet closest to him was out of order.

[249]The 2nd issue with the toilet is that for a period of time the town in which the Ouse Valley practice is situated was without water. According to the witness statement of Dr Norris the practice was impacted for 3 working days. Dr Hardingham caught up with Dr EA 24 hours after the water was cut off and he was not aware of it (page 1276) and Dr Hardingham told him what the plans were.

[250]Dr EA’s evidence to the appeal was recorded as follows: KB goes on to explain he was asked to use the toilet once a day. Some doctors went to another surgery. This lasted approximately 2 weeks during which time KB went on parental leave. KB reports prior to his leave he had to use the supermarket to wash hands. As a workaround he brought in wipes to work (page 1506).

[251]When it was put to Dr EA in cross examination that the outage had lasted 3 days not 2 weeks, Dr EA’s only reply was that “it felt like 2 weeks”. In my judgment Dr EA was not being wholly frank with the appeal panel.

[252]Thus, having gone through the adjustments suggested in the occupational health report and the report of Professor McLoughlin, Dr EA confirmed that the relevant ones had been made.

[253]Whilst the appeal panel clearly took on board the fact of Dr EA’s disability, the recorded discussion (in the section of the minutes entitled “panel review”) does not record any discussion about the impact of the disabilities on Dr EA’s capabilities. I asked Dr Harris about that and she referred to her own notes at page 1503 and, in particular, the statement “not helped by no access to specific reports”.

[254]The outcome letter (page 1534) refers to Dr EA’s dyslexia and his MS. The outcome letter states 3.9…The panel interrogated the evidence presented by Dr EA and the school case. This included understanding the timings of the diagnoses, their subsequent disclosure to HEE and the training programme and whether the reasonable adjustments recommended by both an educational psychologist and Occupational Health were implemented. … 4.1 The ARCP appeal panel concur with the ARCP panel that the requirements for completion of specialist training were not met for the reasons detailed and that relevant mitigating factors have been considered appropriately (3.9 ).

[255]Dr Harris was asked about the possibility of extending time for completion further. She said that the panel went through Dr EA’s mitigation and noted that he had had a full year extra to the normal training and then a further 6 months. The panel asked themselves if there was anything which they felt impacted on Dr EA’s ability to meet the requirements, they went through all of his adjustments and the mitigation referred to and did not consider that any further training time was appropriate. I understood Dr Harris’ evidence to be that had there been something sufficiently exceptional to warrant an extension of time it would have been granted. Thus, to that extent, she did not support the submission made by counsel for the 2nd respondent that it was not possible to extend the time beyond 4.5 years. Dr Harris pointed out that even if a trainee has mitigation it is still necessary for them to meet the relevant standards and, in any event, the panel did not feel that Dr EA’s MS or dyslexia impacted upon his fitness to practice or his working with colleagues or his clinical management. She pointed out that Dr EA had had 4 or 5 educational supervisors who had shared similar views on Dr EA’s competence and therefore the position had been, in her words, triangulated from a number of people and there had also been feedback from multiple sources. Findings on the Alleged Legitimate Aims

[256]In respect of the 2nd respondent’s treatment of Dr EA, it’s Amended Response at page 206 states that it relies upon the following aims: a) Ensuring that trainees have the appropriate skills, knowledge and competencies to practice at the relevant level of training; b) Ensuring that trainees engaged in training are progressing in a timely manner in accordance with the expectations of the Gold Guide and the relevant curriculum; c) Maintaining the requisite standards of practise as a means of protecting patients, colleagues and trainees themselves; d) Ensuring that trainees are not unreasonably detained within a programme where the prospects of successful completion are low; e) Safeguarding the continuous flow of trainees through completion of training to ensure the ongoing supply of appropriately trained and competent doctors to the NHS; f) Ensuring that the 2nd respondent ’s resources are used efficiently with a view to progressing trainees through to completion of training

[257]The 1st respondent relies upon the following aims:a. Ensuring that doctors employed in a postgraduate training programme hold a place on that programme;

b. Ensuing doctors sit and pass such examinations as are required for the completion of their training in accordance with the curriculum and within the timescale approved by the General Medical Council (GMC);

c. The efficient operation of the business;

d. Delivering high quality patient care.

[258]Mr Beattie gave evidence that it is a requirement for GPs to communicate with colleagues, including face-to-face, in order to ensure that the trust can properly operate and deliver high quality patient care. He states that poor communication is a key concern for the trust in its operation of its services. He also points to the GMC’s Good Medical Practice which requires practitioners to communicate clearly and work effectively with colleagues in the interests of patients. He also told me that teamwork is essential to ensure that the trust can properly operate and deliver high quality patient care and again referred to the GMC’s good medical practice which requires colleagues to listen to each other and work collaboratively. I accept that evidence which was unchallenged and in many respects is a statement of the obvious.

[259]It was also the case that all of the respondents’ witnesses’ evidence was infused with a determination to only award a CCT to doctors who can treat patients safely. I accept that all of the respondent’s witnesses had a genuine view that trainees who do not meet the relevant competencies will present a risk to the public and should not, therefore, be given a CCT.

[260]Mr Beattie also made the point, in the context of his belief that Dr EA would never meet the competencies, that it was right to release the national training number (that is to say Dr EA’s number) to a trainee who could meet the standards. Again, I accept that that was a genuinely held view of the respondents. It is obviously expensive to train doctors and there are a limited number of placements available, it is legitimate to take the view that a point must be reached where the trainee can not go on having repeated attempts to qualify but should, instead, make way for other more able candidates. The Claimant’s Dismissal

[261]It will be seen from the table above that on 11 January 2023 the panel recommended that Dr EA be awarded outcome 4- that he be released from the training because of sufficient and sustained lack of progress.

[262]On 12 January 2023, the 2nd respondent emailed Dr EA with a copy of a letter regarding his ARCP and the outcome 4 as well as a guidance document. Ms Sam Vaughan, Medical Education Manager for the 1st respondent was copied in. As a consequence on 13 January 2023 she wrote to the medical HR team (being the part of respondent HR teams that deal with doctors) stating Dr EA received an outcome 4 for his last ARCP on the 11th of January 23. This means he is being released from GP training. Please can I, therefore, ask you, as per the dates on the outcome letters attached arrange for his contract and pay to be terminated as of 2nd of February 2023.

[263]It does not appear that a dismissal letter was sent and, on 3 February 2023 the trust was told that Dr EA had appealed and therefore his CCT date had been extended to 6 March 2023.

[264]The appeal date was then put back to April 2023 and Dr EA continued being paid.

[265]On 29 March 2023 the 1st respondent was told that the appeal been dismissed the previous day and Ms Vaughan wrote to medical HR stating “please can you ensure Dr EA is not on the payroll as of today please? Last working day to be paid 28.3.23” (page 1547)

[266]On 13 April 2023 a letter was sent addressed “to whom may it may concern” setting out some basic information about Dr EA and giving his end date as 30 March 2023.

[267]Ms Vaughan told me, and I accept, that whether a trainee GP receives outcome 6 and a CCT or outcome 4, as soon as the 1st respondent is notified, the contract between the 1st respondent and the trainee is terminated. Those doctors who have passed tend to have alternative employment to go to (but not always). She told me that this was the first time she had dealt with somebody who had received an outcome 4.

[268]Ms Vaughan told me (and again I accept) that she regarded the termination of the contract of employment as being automatic as soon as the outcome of the training was communicated. She did not consider involving Dr EA’s line manager (who at that time was Dr Murphy), she did not give any consideration as to whether there could be alternative employment for Dr EA within the trust. I find that Ms Vaughan gave no consideration to whether the decision of the ARCP panel or the ARCP appeal panel was fair or unfair, she simply caused termination of the employment to be actioned. I find that in so acting Ms Vaughan was making the decision to dismiss Dr EA on behalf of the trust. She was the dismissing officer.

[269]Ms Vaughan also told me, and I see no reason to doubt, that if Dr EA had asked her she could have directed him to HR or recruitment to explore other options for employment.

[270]Dr EA was called to no meeting in respect of the decision to dismiss him and was given no right of appeal against the decision.

[271]The 1st respondent relies upon clause 1.4 of Dr EA’s contract of employment which states “Your employment is conditional upon you continuing to hold a place in an approved postgraduate training programme.”

[272]The contract refers to the National Terms and Conditions of Service for Doctors and Dentists in Training (2016) which in Schedule 11 provides: Grounds for termination of employment 10. A doctor’s employment may be terminated for the following reasons:a. Conduct.

b. Capability (including as defined by HEE)

c. Redundancy.

d. In order to comply with a statute or other statutory regulation.

e. Failure to hold or maintain a requisite qualification, registration, place on a General Medical Council approved training programme and/or license to practise.

f. Where there is some other substantial reason to do so in a particular case. Conclusions.

[273]I will set out my conclusions by reference to the list of issues, however, I do not consider that the order of the list of issues is the most helpful for analysing the case. I address the issues, therefore, in the following order:a. disability

b. reasonable adjustments

c. discrimination because of something arising from disability

d. direct disability discrimination

e. direct race discrimination

f. harassment

g. unfair dismissal

h. other issues. Disability

[274]As indicated there is no dispute that Dr EA was disabled by reason of dyslexia and multiple sclerosis at the relevant times.

[275]I accept that Dr EA had symptoms of anxiety from time to time during the relevant period, and had done so before the relevant period and that he had a mental impairment in that respect.

[276]I accept that in July 2018, Dr EA was described, in an occupational health report, as unable to drive long distances due to high levels of anxiety, but it seems to me, and I conclude, that on a proper analysis of the report, Dr EA was having leg pains which meant that he could not drive for beyond 30 minutes and that caused him anxiety. It was not the anxiety which prevented Dr EA driving but the inability to drive which caused Dr EA anxiety. Thus, at that stage, I do not consider that Dr EA had a mental impairment of anxiety which was having a substantial adverse effect on his day-to-day activities.

[277]I am not satisfied, on the evidence which I have seen, that Dr EA’s anxiety affected his day-to-day activities during the material time which is from June 2022 to March 2023. Even if it did, I am not satisfied that any impact was more than minor or trivial.

[278]Further, even if Dr EA should be treated as having had an impairment which had a substantial adverse effect on his day-to-day activities in 2018, I find from the medical evidence that it ceased to have that substantial adverse effect after 2018. Had it done so, the claimant would have seen his GP about it and would have raised it in his communications with the respondents. There is no evidence that, as at 2018, any substantial adverse effect was likely to recur, and as I have concluded, it did not, in fact recur.

[279]In the circumstances I conclude that Dr EA was not disabled by reason of anxiety.

[280]In respect of issue 8.2, as set out above, the 1st respondent accepted that it knew of the claimant’s dyslexia from August 2021. I conclude that the 2nd respondent knew of it, at the latest, by August 2021 when the claimant met with Dr Middleton, as set out above. In respect of the claimant’s MS, I accept that the 2nd respondent knew of the claimant’s condition from 31 July 2022. The position of the 1st respondent is slightly more nuanced. It knew that the claimant was having problems with his legs and the occupational health report of 23 May 2022 stated that there was possible demyelination (page 2043). However, that report stated that the claimant was waiting on results from further investigations and would have a follow-up appointment. In the next Occupational Health report on 23 August 2022 the first respondent was told that a neurologist had made a working diagnosis of possible multiple sclerosis. The 1st respondent had taken proper steps to appraise itself of the claimant’s condition, it did not delay and I accept that it did not know nor ought it to have known of the claimant’s MS before 23 August 2022.

[281]In respect of issue 8.3, it is important to note that the issue which I must decide is in relation to PCPs which were in existence from June 2022 onwards. That covers the end of the period when the claimant was at the Mid Sussex Healthcare GP Practice with Dr Lynch as his educational supervisor.

[282]I will address at the same time the questions of whether there was a PCP as alleged and whether or not PCP placed Dr EA at a disadvantage. PCP 8.3.1- Undertake his training, the training placements and his work to a sufficient standard to achieve an outcome 6 as provided by the provision of the Gold Guide; in particular achieve the competencies of:a. Fitness to Practise, Clinical Management and Working with

b. Managing Medical Complexity, Working with Colleagues and in Teams and Organisation, Management, and Leadership”

[283]There is no dispute that the 2nd respondent applied this PCP, there is a dispute as to whether the 1st respondent applied such a PCP, since the 1st respondent says that it was applied by the Gold Guide which was out of its control.

[284]In my judgment the 1st respondent did apply this PCP because it was a term of Dr EA’s contract of employment that he must retain a place on the training contract and it was implicit, therefore that he must undertake his training so as to achieve a sufficient standard to achieve an outcome 6.

[285]However, for the reasons I have set out above, I am not satisfied that this PCP put Dr EA at a disadvantage compared to somebody without his disabilities. I have found that Dr EA was not graded as below expectations by Dr Hardingham in these competencies because of his disabilities or anything which arose from them. PCP 8.3.2 – Complete the training programme and / or his employment in the time period (3 years), plus the additional time period (of 18 months) provided for by the additional time provisions of the Gold Guide

[286]Again, and for the same reasons, I find that there was such a PCP of both the 1st and 2nd respondent. However, I do not find that Dr EA was put at a disadvantage compared to somebody without his disability by the PCP. Dr EA’s disabilities did not prevent him completing the training program within the 4.5 years training that was given to him. PCP 8.3.2- Communicate with colleagues and / or communicate orally and / or face to face with colleague.

[287]I find that there was such a PCP and, because it was an integral part of the training, I find it was a PCP applied by the 1st and 2nd

[288]I find that Dr EA was put at a disadvantage by this PCP when he was working at the surgery of Dr Terry Lynch in that Dr Lynch’s ESR stated that he worked in an isolated fashion which the claimant had said was because of his lower limb pain.

[289]To the extent that Dr EA was required to communicate face-toface with colleagues on the ground floor at the Ouse Valley practice, being his GP colleagues and the reception staff, I do not find that Dr EA was put at a disadvantage compared to people without his disability. He was able to walk a sufficiently long distance to be able to communicate face-to-face with those colleagues.

[290]I accept that Dr EA was required to communicate, at least to a limited extent, with colleagues upstairs at the Ouse Valley practice and it would be more difficult for him to go upstairs. However, he was willing and able to go upstairs on at least 2 occasions each week when he could have spoken to colleagues face-to-face and there was no embargo upon him communicating electronically at other times. I repeat my finding that the failure by Dr EA to go upstairs was not a reason why Dr Hardingham did not find Dr EA to be competent in respect of the capability of Working with Colleagues and in teams.

[291]Having said that, if a trainee cannot simply go up and down the stairs at will to speak to the admin team or the practice manager, he is put at a disadvantage by a PCP which requires him to communicate with colleagues face-to-face. Whilst using electronic communications might be a workaround, it is nevertheless a workaround to overcome a disadvantage. PCP 8.3.4. Work with Colleagues and / or work in Teams.

[292]Again, I find that there was such a PCP and, because it was an integral part of training, I find it was a PCP applied by the 1st and 2nd

[293]I find that Dr EA was put at a disadvantage by this PCP when he was working at Mid Sussex Healthcare GP Practice in that Dr Lynch’s ESR stated that he worked in an isolated fashion which the claimant had said was because of his lower limb pain

[294]For the reasons I have given, I do not consider that anything which arose from Dr EA’s disabilities made it more difficult for him to work with colleagues and/or work in teams at the Ouse Valley practice except that he found it more difficult go upstairs.

[295]Further, I conclude that Dr EA would not have behaved differently even without his disabilities at the Ouse Valley practice. Given that he did not work in a team with his colleagues on the ground floor, there is no reason to suppose that, without his disabilities, he would have done so with colleagues on the first floor. The criticisms which were made of Dr EA by Dr Hardingham about his inability to work with colleagues and/or in teams went far beyond (and ultimately did not include) his failure to speak face-to-face with the admin staff and the practice manager, the criticisms were more about the way he criticised colleagues and his failure to help out with “end of the day” tasks. I have, therefore, concluded that this PCP did not place Dr EA at a disadvantage compared to non-disabled people while at Ouse Valley.

[296]I have considered whether there is a logical inconsistency between my finding that the claimant was put at a disadvantage by this PCP when he was at the surgery of Dr Lynch, but not when he was at the Ouse Valley practice. The difference in findings is because of the difference in evidence. There is clear evidence that at the Ouse Valley practice the claimant did not seek to work in a team with colleagues even when his disability did not prevent him from doing so. The same evidence does not exist in relation to the claimant’s time at Mid Sussex Healthcare GP Practice and I am unwilling to assume that he behaved in the same way at the Mid Sussex Healthcare GP Practice as he did at the Ouse Valley practice. PCP 8.3.5. Complete his daily obligations efficiently, expeditiously and promptly, in a timely manner

[297]I accept that Dr EA’s dyslexia meant that he had more difficulties than others in completing his daily obligations. That is why it was recommended that he was provided voice dictation software, I have made reference above to the report by Professor McLoughlin which does show that the dyslexia had an effect on matters such as assimilating and retaining information efficiently through reading.

[298]It is apparent from the Educational Supervisor’s Report of Dr Lynch that in respect of Organisation Management and Leadership the claimant’s dyslexia was affecting his typing skills which was, in turn, affecting that aspect of his work.

[299]This criteria did, therefore, put the claimant at a disadvantage compared to somebody without his disability of dyslexia.

[300]The 2nd respondent accepts that this was a PCP which it applied.

[301]The 1st respondent does not accept that this was a PCP which it applied. It argues that this was a PCP applied by the Gold Guide, not by it. In my judgment this argument is incorrect. The 1st respondent required the claimant to undertake his training and his work to a sufficient standard, that included completing his daily obligations efficiently, expeditiously and promptly, in a timely manner. PCP 8.3.6. Attend meetings, including clinical and educational meetings, on the first floor at the Ouse Valley practice during Dr EA's placement between 3 August 2022 and 2 February 2023

[302]Dr Hardingham’s practice was to hold clinical meetings and tutorials on the first floor due to the lack of space downstairs. That was a PCP of the 2nd respondent. Although Dr EA was told that he could attend those meetings remotely, the practice of Ouse Valley was that the meetings were held upstairs. Dr EA was put at a disadvantage in that respect since it was more difficult for him to get upstairs than it would have been for other people. However, it was possible for him to get upstairs.

[303]I do not find that this was a PCP applied by the first respondent. 8.3.7. Attend home visits.

[304]The 2nd respondent accepts that there was a PCP that Dr EA attend home visits. It is not clear to me whether successfully attending home visits is necessary to be considered competent in the 13 competencies and gain a CCT; whilst it would seem logical that it is, having been taken to no evidence to that effect I am unwilling to conclude that this was a PCP of the 1st respondent.

[305]However, there is no evidence that in the period from June 2022 this PCP but Dr EA at a disadvantage. The occupational health report of Dr Boakye stated that Dr EA was fit to undertake home visits as long as he was not required to drive for longer than 20 minutes and was not required to go up and down the stairs or walk on uneven surfaces. It is not suggested that any home visits after June 2022 had such a requirement and, as set out above, on 30 October 2022 Dr EA stated that he was happy and excited that he had managed to get the home visit done and he had no issues in doing further home visits. Disadvantage

[306]In respect of issue 8.4 although I have set out above some of the disadvantages listed by Dr EA, there are some which I have not addressed. I do so now.a. In respect of issue 8.4.3, I do not find that the PCPs that Dr EA communicate with colleagues, work with colleagues and in teams, complete his daily obligations efficiently, attend meetings on the first floor and attend home visits put him at a disadvantage because they used up the periods of training placements and limited and curtailed Dr EA’s ability to advance in his training. Those PCPs were an integral part of the training placement and the training programme. It cannot be said that they used up the periods of training any more than it can be said that seeing patients used up the period of training.

b. In respect of issue 8.4.4, for the reasons I have given the grades given by Dr Lynch were affected by the claimant’s disabilities and did, therefore, result in an unfavourable outcome at the ARCP in June 2022 and appeal in November 2022. To that extent the PCPs put Dr EA at a risk of outcome 2– 5 in the ARCP compared to non-disabled trainees. Dr EA’s disabilities did not, however, impact upon his ability to obtain a competent grade at the time of the Educational Supervisors Report in January 2023.

c. In respect of issue 8.4.5, although the ESR made unfavourable comments about Dr EA, that was not because of his disability or anything arising from it and, therefore, Dr EA was not put at a substantial disadvantage compared to non-disabled trainees. The same point can be made in relation to 8.4.6.

d. In respect of issue 8.4.8, although Dr EA’s restricted ability to drive and/or walk may well have placed him at a disadvantage compared with non-disabled people generally, there is no evidence that it did so in the context of his training environment except to the extent I have set out in relation to the Mid Sussex Healthcare GP Practice. Physical Features

[307]In respect of issue 8.5, I accept that the stairs at the Ouse Valley practice put Dr EA at a substantial disadvantage compared to somebody without his disability because it was more difficult for him to climb stairs. Knowledge of the Disadvantage

[308]In respect of issue 8.6, for the reasons I have given, I find that both respondents had knowledge of the claimant’s disability of dyslexia by June 2022. Moreover, the 2nd respondent had knowledge that the claimant used voice dictation software. The first respondent obtained an occupational health report on 23 May 2022 which referred to possible demyelination and stated that the claimant was waiting on further results. Dr Lynch knew, at least by the time of his ESR on 31 May 2022 that the dyslexia was causing the claimant difficulties as was the difficulty in walking. The Required Adjustments

[309]In respect of issue 8.7.1, at the ARCP on 22 June 2022 the time available to Dr EA was extended by 6 months. The event of the 25 November 2022 was simply the appeal against that decision by Dr EA and the extended time remained available to him. Thus the adjustment contended for was made to that extent.

[310]The training period was not extended on 11 January 2023 or 29 March 2023. In my judgment it would not have been a reasonable adjustment to extend the time further. The first and most obvious point is that I have found that the reasons why Dr EA was not deemed competent to be awarded a CCT were not connected with his disabilities. Thus, there was no need to extend the time for training. Moreover, I accept the view of Dr Harris, that it was inappropriate to extend the time further. Dr EA had been given 4 ½ years to complete the training which should have been done in 3 years. He was still some way from becoming competent. Even if an extension of time to the training period was a reasonable adjustment, that reasonable adjustment had been made when Dr EA was given an extra 18 months to complete training. Having regard to the inevitable costs involved in training, the fact that Dr EA had had four educational supervisors and the ongoing lack of competencies throughout Dr EA’s training period, it would not have been a reasonable adjustment to extend time further.

[311]Issue 8.7.2.1 suggests that at the ARCP in January 2023 (or the later appeal) Dr EA should have been awarded outcome 3 and been given extra time. That is, therefore, a repetition of the adjustment to which I have referred in issue 8.7.1. I repeat my conclusions. The alternative step contended for is that the claimant should have been awarded outcome N13 which appears in the Gold Guide at page 2264. The Gold Guide states that N codes are for trainees who did not have an annual ARCP review. In this case, however, Dr EA did have an annual ARCP review. There would be no reason to use the N13 code and it would not have been a reasonable adjustment to do so. Moreover, Dr EA seeks to use it simply to obtain more time and, therefore, I repeat the matters which I have already set out.

[312]In respect of issue 8.7.3.1, the evidence set out above shows that focused communication skills courses were available for Dr EA and he had arranged to go on at least 2 of them. There is no suggestion that he could not have gone on more if he had wanted to. This adjustment was, therefore, carried out.

[313]In respect of issue 8.7.3.2, a somewhat cursory workplace assessment was carried out in so far as Dr Hardingham discussed matters with Dr EA on 3 August 2022 (page 921). However, and in any event, I consider that carrying out a workplace assessment is akin to obtaining an occupational health report. Such exercises may be invaluable in understanding what adjustments can be made for a disabled employee but they are not, of themselves, adjustments.

[314]In respect of the provision of psychological counselling, the option of psychological counselling was given to Dr EA via the Practitioner Health Programme and he was reminded of it on 29 January 2019. When Dr Hardingham was concerned about Dr EA’s mental health, she suggested he consider counselling to which he replied “here we go again”. There was no failure to make reasonable adjustments in this

[315]In respect of issue 8.7.3.4, again seeking advice is not, in itself, a reasonable adjustment. However, as a matter of fact, the 1st respondent did seek specialist advice in respect of the multiple sclerosis through its occupational health service. It was provided, in October 2022, with the specialist advice from Professor McLoughlin in relation to Dr EA’s dyslexia.a. In respect of the reports into the claimant’s multiple sclerosis, the report of 23 May 2022 did not suggest any adjustments to the claimant’s workplace apart from postural breaks, manual handling and pacing. Those adjustments would not have assisted the claimant. Thus it was not a failure to make a reasonable adjustment to fail to implement those recommendations. The recommendations in the report of 12 August 2022 were implemented.

b. Subject to what I say next, the recommendations in the reports of Professor McLoughlin were implemented, as was accepted by Dr EA at the appeal in March 2023. The caveat, however, is that the report of Professor McLoughlin did suggest the provision of voice recognition software and that was not provided until the 23 August 2022. Thus there was a period between June 2022 and 23 August 2022 when the claimant was without voice dictation software. Had either of the respondents promptly sought a specialist report on the claimant’s dyslexia in August 2021, they would have known about the adjustment of voice dictation software before June 2022.

[316]The difficulty in respect of this issue is that the claimant has not asserted in the list of issues that it would have been a reasonable adjustment to provide him with the voice dictation software sooner than he was. That omission is consistent with the claimant’s witness statement. At paragraph 26 of his statement Dr EA states “The recommendations of Professor McLoughlin were not implemented. While I accept I was provided with voice software in my last rotation at Ouse Valley it did not work properly or effectively.” Dr EA did not actively pursue in this hearing the assertion that the software did not work properly or effectively and did not put that to any of the respondent’s witnesses. He gives no particulars as to why it did not work properly or effectively and I do not accept that allegation is made out. As significantly, however, he does not suggest that he needed voice dictation software before it was provided to him, either at Mid Sussex Healthcare GP Practice or at Ouse Valley. That is not an idle point since it is clear from p763 that the claimant did sometimes have access to voice dictation software. While it might seem obvious that the 1st and/or 2nd respondent should have provided voice dictation systems well before June 2022 given that they both knew that the claimant had dyslexia, that is not the case which has been presented. I observe that, in any event, subject to the tribunal finding a continuing act, it is likely that any such failure to provide voice dictation software would be out of time.

[317]I do not consider that there was any failure to make reasonable adjustments in respect of issue 8.7.3.4.

[318]In respect of issue 8.7.3.5, the only adjusted times which were necessary after June 2022 were that Dr EA was permitted 15 minute consultations. He confirmed in his evidence that he was. Thus that adjustment was made.

[319]In respect of issue 8.7.3.6, Dr EA did not suggest in evidence that he was required to carry out any clinical duties or tasks which needed adjustment, he did not suggest that he had been required to stand for prolonged periods or walk for prolonged periods. The walking which was involved at the Ouse Valley practice was walking to and from reception to collect patients, which Dr EA confirmed that he could do. He did not suggest at the hearing (or at any other time as far as I am aware) that there should have been any adjustment to that walk. I find, therefore, that this adjustment was made.

[320]In respect of issue 8.7.3.7,a. The claimant gave no evidence that meetings took place in a way that he found difficult at the Mid Sussex Healthcare GP Practice,

b. At Ouse Valley the meetings between Dr EA and Dr Hardingham took place on the ground floor. Dr EA’s consultations took place on the ground floor. The clinical meetings and tutorials could not take place on the ground floor because there was not a large enough room. Dr EA was given the option of attending some of those meetings remotely but chose to climb the stairs. Dr EA was able to climb stairs and was only required to do so on 2 occasions a week. In my judgment in failing to hold clinical and educational meetings downstairs the respondent did not fail to make a reasonable adjustment, there was no space to do so and the claimant could attend the meetings on the first floor and he was only required to do so twice a week.

[321]In respect of issue 8.7.3.8, there is no evidence that the claimant was asked to do any home visits after June 2022 which caused him difficulties and, therefore, I conclude that the adjustment was made (or not needed).

[322]The suggestion in issue 8.7.4.1 is that the assessment of Dr EA’s capabilities in the ESRs should be adjusted to reflect Dr EA’s abilities to undertake the training programme and/or the effect of his disabilities and/or the mitigation available to him. It is not entirely clear what Dr EA contends should have been done. If it is suggested that the report should inaccurately state Dr EA’s abilities by inflating them because of his disability then that would not be a reasonable adjustment. The respondents are entitled to require their physicians to be of a sufficient standard to ensure not only that the public is not put at risk but that the health service operates efficiently. If it is to be suggested that the standards should be lowered then, again, I do not consider that would be reasonable. People should only be classed as being competent to qualify as a General Practitioner if they have met the standards which the Royal College of General Practitioners says is appropriate.

[323]In respect of issue 8.7.4.2, Dr Hardingham did not criticise Dr EA for not attending meetings and therefore there was no need to disregard that. To the extent that this issue impacts upon her assessment of Dr EA’s ability to communicate with his colleagues and work in teams, as I have already said I do not consider that Dr EA failed to obtain a “competent” grade because of his disability or any reasons arising from them.

[324]For those reasons the claim of failure to make reasonable adjustments fails. The 1st and 2nd respondent made the necessary reasonable adjustments. Discrimination arising from Disability. Unfavourable Treatment

[325]In respect of issues 7.1.1.1 – 7.1.1.2, in my judgment Dr EA was treated unfavourably by the decision of the ARCP panel on 29 March 2023 toa. dismiss Dr EA’s appeal against the decision of 11 January 2023, and

b. uphold the decision that Dr EA had not achieved the required capabilities,

[326]In respect of issue 7.1.1.3, the appeal panel did not refuse or fail to have regard or take account of the impairments of Dr EA from his disabilities (or some of them). It took proper account of the impairments caused by the disabilities .

[327]In respect of issue 7.1.1.4, the panel did decide not to extend time for Dr EA’s training which was unfavourable to Dr EA.

[328]In respect of issue 7.1.1.5, there had not been a failure by Dr Hardingham to make reasonable adjustments and therefore it cannot have been unfavourable treatment to fail to consider any such failures.

[329]In respect of issue 7.1.2, the ARCP panel in January 2023 did issue an outcome 4 to Dr EA and fail to issue an outcome 6 and decided that Dr EA had not achieved the required capabilities for training (issues 7.1.2.1- 7.1.2.3). That was unfavourable treatment.

[330]In respect of issue 7.1.2.4, I repeat my finding above that the way the panel dealt with Dr EA’s assessment on this occasion was unsatisfactory. It did not consider Dr EA’s disabilities at all or make any allowance for them. Although I have concluded that the failure by Dr EA to achieve the required competencies was not because of Dr EA’s disabilities, the failure by the panel to consider those disabilities before it reached its outcome was unfavourable treatment to Dr EA. He was entitled to have his disabilities taken into consideration by the ARCP panel.

[331]In respect of issue 7.1.2.5, the panel did decide that it could not further extend time for Dr EA’s training which was unfavourable treatment in the sense that it was a hurdle (indeed an absolute bar) to Dr EA in obtaining his CCT.

[332]In respect of issue 7.1.2.6, I repeat what I have set out above namely that there had not been a failure by Dr Hardingham to make reasonable adjustments and therefore it cannot have been unfavourable treatment to fail to consider any such failures.

[333]In respect of issue 7.1.3 it was unfavourable treatment for Dr Hardingham to prepare an Educational Supervisors Report setting out that Dr EA had not achieved the required competence as a GP because it placed of a hurdle in front of him achieving his CCT.

[334]In respect of issue 7.1.4, to the extent that in my findings of fact I have found that the Educational Supervisor’s Report did make some unfavourable comments and/or express concerns about Dr EA’s capability and competence in training, that was unfavourable treatment.

[335]In respect of issue 7.1.5, Dr Hardingham generally did not fail to take account of the impairments arising from Dr EA’s disabilities either during his training or in her assessment of him. Dr Hardingham did make adjustments for Dr EA and asked him to let her know if his health was causing difficulties.

[336]Dr EA’s case at its highest is that in her note of 20 October 2022, Dr Hardingham stated that not going upstairs to talk to secretaries etc was affecting his ability to work in the team and it was his MS that caused him to do that. The offending part of the document, however, needs to be read in the context of the document as a whole and the view stated there did not form part of the ESR in January 2023. It is necessary to address the question of whether, if Dr Hardingham did feel that the electronic communication was affecting Dr EA’s ability to work in the team, it was unfavourable treatment to tell him so. If an employer believes that a consequence of somebody’s disability is affecting their ability to work in a team, it is not necessarily unfavourable treatment to tell the employee that. It is not the law that employers have to be so sensitive that they are not able to mention an employee’s disability and the consequences of it to the employee. Context, however, is everything. Talking to an employee about the consequences of their disability in the context of offering reasonable adjustments, or asking about what accommodation can be made, is very different from simply telling them that a consequence of their disability is something undesirable.

[337]In my judgment, Dr Hardingham’s comment falls between those two extremes. She was not speaking to Dr EA about his failure to go to the first floor because she was seeking to make adjustments for him, but nor was she speaking to him about it gratuitously. She was reviewing his performance and giving him feedback on that performance. In my judgment in giving Dr EA honest feedback on his performance, even though some of that feedback arose because of his disability, Dr Hardingham was not treating Dr EA unfavourably. The feedback did not impede his progress on the training course.

[338]Analysis of issue 7.1.6 must take account of the fact that Dr Hardingham had not seen the report of Dr Boakye. Thus to the extent that the allegation is that she refused to implement or maintain the adjustments contained therein, she was unaware of them. However, as it happens and as Dr EA accepted in the appeal in March 2023, as a matter of fact the adjustments were implemented. If one looks to the report at page 2049 (23 August 2022):a. Dr EA had a ground floor consultation room

b. Dr EA was not asked to do home visits which required a drive of longer than 20 minutes or required him to go up or down stairs or walk on uneven surfaces

c. Dr EA was not required to carry out any task that required standing and/or walking for prolonged periods

d. Dr EA undertook 15 minute consultations

e. Dr EA was provided with speech to text software

f. Dr EA had regular contact with a senior colleague, namely Dr Hardingham to ensure that he was coping. If one looks to the report of 18 December 2018 (page 2021) a. Dr EA was offered psychological therapy by Dr Hardingham, as he had been previously b. there was no need for Dr EA to be offered at a later start time at Ouse Valley c. there were no overnight on-call duties. There was no unfavourable treatment in this respect.

[339]In relation to issue 7.1.7, again Dr Hardingham did not see the reports of Professor McLoughlin. The adjustments contended for by Professor McLoughlin were largely made.a. Extra time for exams was not needed

b. Dr EA was not taking multiple choice tests with Dr Hardingham

c. Dr EA was not taking verbal examinations

d. Dr EA does not suggest that he needed assistance with proofreading but, at the appeal in March 2023 stated that he let people know about that requirement and asked them to speak slowly. He does not suggest that was not done.

e. Dr EA had been given coaching assistance before joining Dr Hardingham, there is no suggestion that that assistance was removed, and by not referring to it again, Dr Hardingham did not treat Dr EA unfavourably. There was no unfavourable treatment in this respect.

[340]In respect of issue 7.1.8, although Dr Hardingham did not instigate any substantial workplace assessment or an access to work scheme, Dr EA never raised any issues which might suggest there was a need for one. There is no evidence that there was any detriment to Dr EA from not having a workplace assessment or an access to work scheme assessment. In my judgment this was not unfavourable treatment. I repeat what I have said about the enquiry by Dr Hardingham as to whether Dr EA wanted psychological type therapy and his response that indicated he did not. Dr EA had already had access to a focused communication skills course/coaching programme and he had not sought further access. There was no unfavourable treatment in this

[341]In respect of issue 7.1.9, Dr Hardingham did not require Dr EA to attend all meetings with her upstairs. The only meetings which always took place upstairs were the clinical meetings and the tutor meetings which took place each once a week. Dr EA was told he could attend some remotely. To the extent that remote attendance was not ideal or always possible, Dr EA was, however, treated somewhat unfavourably in that he found it difficult to climb stairs.

[342]In respect of issues 7.1.10.1- 7.1.10.3, it is right that the ARCP panel in June 2022 issued an outcome 3 to Dr EA, did not issue an outcome 6 and did decide that Dr EA had not received the required capabilities for training. Those were matters of unfavourable treatment.

[343]In respect of issue 7.1.10.4, the panel did not make substantial reference to Dr EA’s disabilities. It made no reference to Dr EA’s dyslexia and referred in general terms to his physical ill-health. It adopted that approach based on what Dr EA had said to it during the panel meeting. The dyslexia was, however, set out in Dr EA’s comments on the ESR which Dr EA was entitled to assume had been read (page 839). In my judgment the ARCP panel fell short. If there was evidence of Dr EA’s dyslexia then, in deciding whether or not to extend the training time, his dyslexia should have been taken into account. The failure to do so was unfavourable treatment.

[344]However, as it happened, the panel did extend the training time for 6 months. In all the circumstances that was reasonable. It could not deem that Dr EA had met the relevant competences if he had not, it would not be safe to do so.

[345]In respect of issue 7.1.10.5, it is right to say that the ARCP did not recommend reasonable adjustments for Dr EA, even though Dr Terry Lynch had asked for advice. I conclude that Dr Hussain’s opinion was right, namely that that issue was not for the ARCP to engage in. It was not a specialist in disabilities or reasonable adjustments, it was reviewing the academic progress of Dr EA. In my judgment it is not unfavourable treatment for the panel to fail to do something which it was not designed to do.

[346]In respect of issue 7.1.11.1-7.1.11.3, I accept that Dr EA’s appeal was dismissed in November 2022, the decision of the June 2022 panel was upheld and Dr EA was not awarded an outcome 6. All of those things were unfavourable treatment.

[347]In respect of issue 7.1.11.4, the appeal panel did take account of the impairments of Dr EA from his disabilities and did make allowances for them to the extent they considered appropriate. That was not unfavourable treatment.

[348]In respect of issue 7.1.11.5, the appeal panel did not recommend reasonable adjustments, but for the reasons I have given above in respect of the initial ARCP panel, I do not consider that is unfavourable treatment. Things arising in Consequence of Dr EA’s Disability

[349]I accept that Dr EA has numbness or tingling in his lower limbs, and the other symptoms set out in issue 7.2.1.

[350]The way in which Dr EA has written issue 7.2.2 makes it difficult to properly engage with. For instance, it is right to say that he has an information-processing problem (issue 7.2.2.1) but there is no evidence that it has a significant adverse effect on his reading performance- but there are some issues with reading as set out at page 2028. The reports of Professor McLoughlin do not admit of a pithy summary in this judgment (or the list of issues). I accept the findings in Professor McLoughlin’s report and that the difficulties set out therein arose from Dr EA’s dyslexia.

[351]In respect of issue 7.2.3, do not accept that the symptoms set out therein arise from a disability of anxiety.

[352]In respect of issue 7.2.4, I accept that Dr EA would find it difficult to complete tasks and written documents quickly, I do not accept that Dr EA finds it difficult to participate in communications including orally or face-to-face (except to the extent that it was difficult for him to move around to do so), I make the same point in relation to Dr EA’s participation in teams.

[353]In respect of the assertion that Dr EA’s disabilities make it difficult for him to participate in the work of a GP, I accept it may be more difficult for him to do so.

[354]In respect of issue 7.2.4.5, I find that Dr EA’s disabilities prevented him participating in the training programme to the limited extent set out in these reasons which were largely overcome by making adjustments. Was the unfavourable treatment because of those things

[355]In respect of issues7.1.1.1 –

7.1.1.2 and 7.1.1.4, the decision by the ARCP panel on 29th March 2023 to dismiss Dr EA’s appeal was not because of something which arose from Dr EA’s disability. The cause of the decision was that the appeal panel felt that the original decision was correct. In circumstances where Dr EA had not achieved the required competencies, it concluded outcome 4 was the only proper outcome. To the extent that the ARCP panel in January 2023 made its decision based upon the report of Dr Hardingham, the reason why Dr EA did not achieve the relevant competences was not because of something which arose from his disabilities. I have explained my findings in that respect above. Thus in respect of issues 7.1.1.1 , 7.1.1.2 and 7.1.1.4, the unfavourable treatment was not because of something which arose from Dr EA’s disability.

[356]In respect of issue 7.1.2.1-7.1.2.3, the decision of the January 2023 ARCP panel was based upon the report of Dr Hardingham. Dr EA’s failure to achieve the required competencies was not because of anything which arose from his disabilities.

[357]In respect of issue 7.1.2.4, which is the failure of the January 2023 ARCP panel to take account of the impairments of Dr EA arising from his disabilities when it reached its decision, there is no evidence that the failures of the panel were because of something which arose from Dr EA’s disability. It has not been suggested that in some way the symptoms of, or the fact of, Dr EA’s disabilities caused the panel to decide to treat him unfavourably.

[358]In respect of issue 7.1.2.5 the decision of the ARCP panel not to extend the time for Dr EA’s training was because Dr EA’s progression was significantly below that needed in multiple areas. That lack of progression, as identified by Dr Hardingham, was, as I have said, not because of something which arose from Dr EA’s disabilities.

[359]In respect of issue 7.1.3 and 7.1.4, as I have set out in my findings of fact, the failings set out in Dr Hardingham’s report were not because of matters which arose from Dr EA’s disabilities.

[360]In respect of issue 7.1.9, the reason why the meetings were held upstairs was not because of something which arose from Dr EA’s disability but because of the lack of space on the ground floor of Ouse Valley practice.

[361]In respect of issues 7.1.10.1 – 7.1.10.3 the decision by the ARCP panel to issue outcome 3 and not outcome 6 was because of something which arose from Dr EA’s disability, namely two of the gradings of “below expectations” by Dr Lynch.

[362]The failure by the panel to adequately take account of Dr EA’s dyslexia (issue 7.1.10.4) was not because of anything arising from Dr EA’s disability but because Dr Hussain took the view that the panel should not consider anything which was not referred to orally.

[363]The decisions of the appeal panel as set out in issues 7.1.11.1- 7.1.11.3 were because of something which arose from Dr EA’s disability, namely his failings in 2 of the 3 competencies which Dr Lynch said work below expectations.

[364]Thus, to summarise, the decisions by the ARCP panel in June 2022 and the appeal panel in November 2022 to issue an outcome 3 rather than an outcome 6 were unfavourable treatment because of something which arose from Dr EA’s disability, the other decisions of the 2nd respondent may have been unfavourable treatment but they were not because of something which arose from the claimant’s disability. Justification Defence

[365]It is then necessary to consider whether those decisions were a proportionate means of achieving a legitimate aim (Issue 7.3).

[366]I find that it was a legitimate aim for both respondents to want to maintain the requisite standards of practise as a means of protecting patients, colleagues and trainees themselves. Refusing to issue an outcome 6 to somebody who is not meeting the relevant standards is appropriate whether or not they have a disability. In particular it cannot be said that it is in any way inappropriate to want to protect the public who will be visiting GPs. The statement by Dr EA made during his evidence, that he was getting better and that only being failed in 3 out of 13 competences was not too bad, fails to properly appreciate the importance of the general public having confidence in their doctor and the importance of doctors being fully competent.

[367]Thus, in June 2022 there were really only two options open to the 2nd respondent. Dr EA could be issued an outcome 4 and removed from training or he could be given further time to develop (outcome 3). Dr EA was given that time. An extension of 6 months was extraordinary at that stage, but it was appropriate given Dr EA’s disabilities. It was also an extension for an appropriate length of time. Dr EA could not be given an open-ended extension given the respondents’ other legitimate aims of ensuring the continuous flow of trainees through completion of training to ensure the ongoing supply of appropriately trained and competent doctors to the NHS and ensuring that the 2nd respondent ’s resources were used efficiently with a view to progressing trainees through to completion of training. An extension of 6 months was relatively generous and, as events subsequently proved, was sufficient to ensure that at the next assessment (that by Dr Hardingham) Dr EA’s disabilities were not adversely affecting his performance.

[368]In those circumstances, issuing outcome 3 and refusing to issue outcome 6 balanced the discriminatory effect of the requirement that all GPs must meet a minimum standard and the reasonable needs of the respondents, that members of the public must be safe in the hands of their GP and it is necessary to train a continual stream of GPs. There was no lesser measure than outcome 3 which would have served the aims of the respondents and therefore that outcome was a proportionate means of achieving a legitimate aim.

[369]Therefore the claim of discrimination because of something arising from disability fails. Direct Disability Discrimination

[370]I can deal with this more briefly. The allegations of detriment are a repetition of the allegations of unfavourable treatment.

[371]To succeed in this claim, there must be facts from which I could conclude that somebody who was in the same position as Dr EA would have received better treatment than Dr EA did.

[372]Dr EA has not adduced any evidence from which I could conclude that at the appeal panel in March 2023, somebody who was in the same position as Dr EA, who had received the same educational supervisor’s report as Dr EA, who had been given the same extensions to training as Dr EA had, but who was not disabled in the way that Dr EA was, would have received any different treatment. There are no facts from which I could conclude that an actual hypothetical comparator would have been treated better than Dr EA.

[373]Likewise there are no facts from which I could conclude that somebody in the position of Dr EA appearing at the ARCP panel in January 2023, who was in the same position as Dr EA, who had received the same educational supervisor’s report as Dr EA, who had been given the same extensions to training as Dr EA but who was not disabled in the way that Dr EA was, would have been treated better than Dr EA.

[374]There are no facts from which I could conclude that Dr Hardingham would have prepared a more favourable educational supervisors report, in respect of a trainee who had performed in exactly the same way as Dr EA and interacted with colleagues in the same way as Dr EA but who was not disabled. Indeed, the evidence shows that her assessment of the claimant was consistent with the education supervisors reports which had gone before and the evidence shows that she was attempting to support the claimant, rather than the reverse.

[375]Moreover, there are no facts on which I could conclude that Dr Hardingham would have treated a non-disabled claimant more favourably in respect of the way she organised and ran Dr EA’s training at Ouse Valley practice or in the adjustments which she made.

[376]There is no evidence that a non-disabled employee, whose material circumstances were the same as Dr EA’s would have been treated any more favourably than Dr EA was at the ARCP panel in June 2022 or the appeal in November 2022.

[377]This claim is dismissed. Direct Race Discrimination Claim

[378]During his evidence, Dr EA was being cross-examined about why he said some of his allegations were because of his race and became confused as to why he was being asked questions. At one point he said that racism did not arise until he was with Dr Hardingham and later he said that race was not an issue for anything apart from the comment about Dr Hardingham and culture. At that point I explained to Dr EA that the list of issues required the tribunal to consider whether everything, from June 2022 onwards, was because of his race. I invited him to consider withdrawing the race discrimination allegations apart from those relating to Dr Hardingham and the discrimination comment and had a break for Dr EA to consider that. Dr EA returned to say that he wished to continue with all of his allegations.

[379]Again, there are no facts from which I could conclude that somebody in the same circumstances as Dr EA but who was not of the same race as Dr EA would have been treated in any way more favourably by the ARCP panels in June 2022 and January 2023 and the ARCP panels in November 2022 and March 2023.

[380]Moreover, having found that Dr Hardingham did not raise the question of culture with Dr EA, there are no facts from which I could conclude that she treated Dr EA less favourably because of his race or that she would have treated anybody who was in the same situation as Dr EA but who was, say, white British differently to Dr EA.

[381]Indeed, I have concluded that Dr Hardingham went out of her way to be fair to Dr EA. The fact that she was worrying about him at 4 AM on one occasion suggests that this is not an individual who was discriminating against somebody because of his race. Dr Hardingham was able to give explanations for the decisions that she made and there are rational bases for those decisions. I did not form the view that she was seeking to mislead the tribunal in any way. In reaching that conclusion I have borne in mind that often people who discriminate against others on the grounds of their race do not acknowledge they are doing so, even to themselves. It is trite to say that discrimination can often be subconscious. However, even taking that into account, there are no facts from which I could conclude that Dr Hardingham discriminated against the claimant on the grounds of race.

[382]The list of issues presents a further allegation of direct race discrimination at issue 6.1.13 where it is alleged that Dr Hardingham criticised Dr EA for taking paternity leave. I have found that she did not criticise Dr EA for taking paternity leave when matters are considered in the appropriate context, however, even if she did, there is no evidence that she would have treated a person of a different race to Dr EA in any way differently. Harassment Related to Disability

[383]The first allegations of harassment (issues9.1 and

9.2 ) are in relation to the unfavourable comments and criticisms of Dr EA made in Dr Hardingham’s report of 3 January 2023.

[384]There were some criticisms of Dr EA in the report and I accept that, in those circumstances, the content of the report was unwanted conduct. However, for the reasons I have set out above the content was not related to Dr EA’s disability. It was in relation to matters other than Dr EA’s disability.

[385]In case I am wrong in that respect, I consider section 26(1)(b) of the 2010 Act. I conclude that the report was an honest and reasonable statement of Dr Hardingham’s views of Dr EA. Dr Hardingham gave evidence-based opinions. An educational supervisor is bound to give an accurate statement as to their views of a trainee’s competence, even if the matters which give rise to those views arise out of the claimant’s disability and are, therefore, related to it. The purpose of writing the report was not to violate the claimant’s dignity or create the proscribed environment. Although the content of the report was undoubtedly upsetting for the claimant, given that it was an honest opinion based on evidence, it was not reasonable for it to have had the effect of violating the claimant’s dignity or creating the proscribed atmosphere for him. An honest and reasonable report by somebody who is required to assess someone else’s competence is not an act of harassment, even if it does not say what the assessed person would want it to.

[386]In respect of allegation 9.1.3, this allegation arises from Dr EA’s assertion that she told him that he was trying to enforce his culture on her, which I have found is not factually made out. This was not, therefore, unwanted conduct.

[387]In respect of allegation 9.1.4, it is asserted that it was an act of harassment when Dr EA was criticised for taking paternity leave. I have not found that Dr EA was criticised for taking paternity leave and therefore there was no unwanted conduct. Even if there was criticism by Dr Hardingham there would be no basis for me finding that that criticism was in any way related to Dr EA’s disability.

[388]In respect of allegation 9.1.5,a. Dr Hardingham did not refuse or fail to make reasonable adjustments for Dr EA. The claimant had access to the communication skills course referred to in issue 9.1.5.1 and therefore there was no unwanted conduct in that respect.

b. A brief workplace assessment was carried out by Dr Hardingham but, in any event, given the adjustments which have been implemented there was no need for a further one. There was no unwanted conduct in this respect

c. The claimant had been provided with the opportunities for psychological counselling and/or specialist advice and when Dr Hardingham attempted to raise the matter again Dr EA merely said “here we go again”. There was no unwanted conduct in this

d. The claimant could easily have provided Dr Hardingham with the specialist reports he had from Dr Laurence Boakye and Professor McLoughlin, for reasons which were not explained in the course of the trial he never did so. His failure to do that suggests that he did not think specialist advice was needed by Dr Hardingham and I conclude that the fact that Dr Hardingham did not seek additional specialist advice was not unwanted conduct. In any event the adjustments which were required by those reports were implemented and there is no suggestion that any other reports would have resulted in different recommendations. Thus, there was no unwanted conduct in this respect and, even if there was, I do not find the failure to obtain further specialist advice had the purpose or effect of violating the claimant’s dignity or creating the proscribed atmosphere for him.

e. In respect of issue 9.1.5.5, adjusted times were implemented and there was no unwanted conduct in this respect.

f. In respect of issue 9.1.5.6, there is no evidence that the claimant was required to do any tasks that involved standing and/or walking for prolonged periods by Dr Hardingham, or anyone else between 3 August 2022 and 3 February 2023. Thus there was no unwanted conduct.

g. I accept that the clinical meetings and tutorials took place on the first floor which may have been unwanted conduct for the claimant. The reason why those were not moved to the ground floor work was because of the layout of the practice, not for a reason related to Dr EA’s disability.

h. There is no evidence that the claimant was required to undertake home visits which did not accord with restrictions caused by his disabilities, indeed the evidence is to the contrary. Thus there was no unwanted conduct in this respect.

[389]For those reasons the harassment claim fails.

[390]There is no dispute that the claimant was dismissed by the first respondent. I accept that the reason why he was dismissed was because he was no longer on the GP training course. That was the purpose of his employment.

[391]In those circumstances dismissal once the training period is over would be a dismissal for some other substantial reason and so a potentially fair reason for dismissal.

[392]I must then consider whether the dismissal was actually fair by reference to the list of issues. In terms of the issues set out in paragraph 3.5 of the list of issues;a. I have not found that the material provided to any of the ARCPs was inadequate or misleading,

b. although the final ARCP panel failed to grant the claimant a further period of training, in my judgment it was appropriate for it to do so,

c. in respect of the final ARCP (being the one which led to the claimant’s dismissal) whilst it did not recommend any adjustments or consider any adjustments, I have found that the reasons why the claimant was unsuccessful at that panel were not related to his disability and therefore reasonable adjustments were not necessary.

[393]In circumstances where the claimant was employed for the purpose of being on the GP training scheme and where the claimant was no longer on the GP training scheme, his dismissal was well within the range of reasonable responses as per issue 3.3.

[394]Thus, those matters listed as being the issues in respect of the dismissal do not mean that the decision to dismiss was unfair even having regard to the size and administrative resources of the first

[395]The failure by the first respondent to meet with the claimant prior to his dismissal or consider suitable alternative roles to the claimant might have been of more concern but, for the reasons I have given at the outset of the judgment, I do not consider it is appropriate for me to decide the case on that basis. Other Matters

[396]I have not needed to consider questions of agency in respect of the first respondent nor time limits. Overall Conclusions

[397]The claimant was disabled by reason of dyslexia and MS at the material times but not by reason of anxiety.

[398]The claim of failure to make reasonable adjustments fails because although, in some respects, the claimant was placed at a substantial disadvantage in comparison with persons who were not disabled by PCPs of the respondents, the respondents did not fail to take reasonable steps to avoid the disadvantage.

[399]The claim of discrimination arising from disability fails because, for the most part, the unfavourable treatment of which the claimant claims was not because of something arising in consequence of his disability. On those occasions when the claimant was treated unfavourably because of something which arose from his disability, the respondents have shown that the treatment was a proportionate means of achieving a legitimate aim.

[400]The claims of direct disability discrimination and direct race discrimination fail because there are no facts from which the tribunal could conclude that the claimant was treated less favourably because of the protected characteristics of race or disability.

[401]The claims of harassment fail because any proven unwanted conduct was not related to the claimant's disability or, if it was, it did not have the purpose or effect of violating the claimant's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

[402]The claim of unfair dismissal fails because the claimant was dismissed for some other substantial reason, which is a potentially fair reason for dismissing someone and on the basis of the issues before the tribunal, having regard to the size and administrative resources of the 1st respondent, the 1st respondent acted reasonably in treating that as a sufficient reason for dismissing the claimant.

[403]I express my gratitude to Dr EA, Mr Adjei and Mr Chegwidden for the careful and conscientious way they all presented their respective cases and their cooperation with the tribunal in doing so.