Dr A Chind v Portsmouth Hospitals University NHS Trust: 1403943/2023

EMPLOYMENT TRIBUNALS

Case No 1403943/2023

Between

Dr A ChindClaimant

Portsmouth Hospitals University NHS TrustRespondent

Before

Employment Judge Rayner

Ms D Van Den Berg (instructed by Counsel) for claimant

Ms C Jennings (instructed by Counsel) for respondent

Date 9 October 2025

JUDGMENT

[1]The claim that the claimant was victimised by termination of his assignment is well-founded and succeeds.

[2]All other claims of victimisation are not well founded and are dismissed.

REASONS

[1]Oral reasons were given to the parties at the conclusion of the hearing.

[2]The following reasons are provided following a request for written reasons.

[3]The claimant filed a claim to the employment tribunal on 5 June 2023, having previously contacted ACAS on 24 April 2023 and received his ACAS certificate on 5 June 2023

[4]Following a case management hearing before Employment Judge Dawson on 4 July 2024 the issues in the case were identified. The Claimant alleged that he had been subject to detrimental or unfavourable treatment either because he had made a public interest disclosure and or because he had done a protected act and had been victimised.

[5]During the course of the hearing the claimant narrowed his claim and withdrew in its entirety his claim that he had been subjected to detriment for making a public interest disclosure. Those claims are therefore dismissed upon withdrawal by the claimant.

[6]In addition, the claimant withdrew an allegation that he had been subject to detriment by reason of a failure by the respondent to provide documentation the claimant had requested in a subject access request of the 3 March 2023 and the respondents continued delay in providing the information.

[7]The claims before the employment tribunal which we had to determine where therefore as follows:

[8]Time limits 8.1. The claim form was presented on 5 July 2023. The claimant commenced the Early Conciliation process with ACAS on 24 April 2023 (Day A). The Early Conciliation Certificate was issued on 5 June 2023 (Day B). Accordingly, any act or omission which took place before 25 January 2025 (which allows for any extension under the Early Conciliation provisions) is potentially out of time so that the Tribunal may not have jurisdiction to hear that complaint. 8.2. Were the discrimination and victimisation complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide: 8.2.1. Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act or omission to which the complaint relates? 8.2.2. If not, was there conduct extending over a period? 8.2.3. If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period? 8.2.4. If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide: 8.2.4.1. Why were the complaints not made to the Tribunal in time? 8.2.4.2. In any event, is it just and equitable in all the circumstances to extend time?

[9]Victimisation 9.1. Did the Claimant do a protected act as follows: 9.1.1. Making an allegation that the respondent had contravened the Equality Act 2010 in his email to Ms Downham on 24 January 2023, in particular the claimant alleged that the respondent contravened the public sector equality duty; 9.1.2. The respondent accepts that the claimant did a protected act. 9.2. Did the Respondent do the following things: 9.2.1. Terminate the claimant’s assignment with the Trust on 26 January 2023 (admitted). 9.2.2. Terminate the claimant’s assignment with inadequate notice (the assignment was terminated with one week’s pay in lieu of notice, however the claimant asserts he was entitled to two weeks’ notice). The respondent denies that the claimant was entitled to 2 weeks’ notice. 9.2.3. Fail to provide a reason for the termination of the assignment (denied by the respondent). 9.2.4. Fail to respond and/or delay in responding to the grievance raised on 26 April 2023. (Denied by the respondent). 9.2.5. Refuse to investigate the claimant’s grievance under the respondent’s grievance procedure or hold a grievance meeting with him. The claimant further contends that this constitutes a failure on the respondent’s part to follow the ACAS Code on Disciplinary and Grievance Procedures. (Denied by the respondent). 9.3. By doing so, did the Respondent subject the Claimant to detriment? 9.4. If so, was it because the Claimant had done the protected act?

The hearing

[10]The hearing took place over five days. The tribunal was provided with a bundle of just under 500 pages and heard evidence from the claimant, on his own behalf and from Miss Andrea Downham, the Head of health and well-being, Dr. Mark Roland, who was the interim medical director at the time, Miss Juliette Stern, who was an organisational development lead, Mrs Sally Ann Read, who was a clinical lead occupational health nurse and Mrs Suzanna Jane Low, a corporate human resources business partner. Each witness produced a witness statement, and gave oral evidence and was cross examined. A number of witness statements were provided in respect of respondent witnesses who were not called because of the withdrawal of parts of the claimant’s claim. Findings of fact and chronology of events

[11]The claimant Dr Arun Chind, referred to in this judgement as the claimant, was appointed as a locum occupational health consultant via an agency ( Mayday) from 8 August 2022.

[12]His appointment was ended with effect from 3 February 2023 by the respondent, giving a weeks’ notice, which the claimant was not required to work but was paid for in lieu.

[13]There is no real dispute between the parties and it is, we find a matter of fairly common understanding, that the NHS often engages staff at senior level on locum contracts because of difficulties in recruiting, and that the locum contract costs are significantly higher than the standard costs of employing an individual as an employee on NHS standard terms and conditions.

[14]There are of course pros and cons both for the NHS and for the worker involved. One advantage for the NHS is that they can use locum staff on a short term basis to fill a gap whilst recruitment takes place, without an individual gaining employment rights and protections, for example from unfair dismissal.

[15]The advantage to the locum is that they are paid significantly more than they would be paid on an NHS contract. The disadvantage is that there is no security of tenure.

[16]Both parties were well aware of the pros and cons at the time that Dr. Chind was appointed as a locum.

[17]His letter of appointment establishes that the initial appointment will be for a period of three months with a view to possible renewal. We find that by the time of his application to the CESR programme he had been working as a locum for four months and therefore he was being supported to apply despite the fact that he did not satisfy one of the requirements of longer period of service.

[18]We also find that his locum had extended beyond the initial three-month period and that, at that stage, there was no particular barrier to it continuing for some time further, although we find that Miss Downham was looking at ways of saving cost and was looking at whether or not there were other alternatives.

[19]However, we also find that continuing with an expensive locum would have been undesirable to this NHS in the longer term, simply because of cost, and we find that by the time Dr Rowlands decided to dismiss the claimant, AD had reassured him of alternative provision being available by a different route.

[20]We also find that for this respondent, there was and had been a significant difficulty in recruiting a consultant in occupational health.

[21]Prior to the appointment of Dr. Chind the trust had not been successful in an open recruitment exercise and had not been successful in recruiting an occupational health doctor through their usual agency routes.

[22]This was the reason they had approached other agencies and had been offered the services of Dr. Chind .

[23]The claimant had been based in the north of England but was prepared to commute, on a weekly basis, to work in the Portsmouth hospital. We remind ourselves of the comment that occupational health physicians were as hens teeth meaning that they were a very rare commodity.

[24]The claimant started work and expressed an early interest in applying for acceptance onto the CESR programme.

[25]As far as the tribunal understands it and as far as it is necessary to understand it for the purposes of this claim, the CESR programme is specifically designed to enable doctors who do not have the traditional background or qualifications to gain certification by another route, thereby enabling them to become registered members of a relevant faculty in order that they can then apply to become a consultant.

[26]The claimant, as a locum consultant, could not be employed as a consultant within the NHS, because he did not have the relevant credentials.

[27]All parties agree that the CESR was one route by which overseas doctors in particular were able to progress their career and in particular would be able, if successful to progress to becoming a consultant employed by the NHS.

[29]On August 2022 Natalie Hogg contacted Juliet Stern noting that for the past two years they had unsuccessfully advertised for consultant occupational health physician post, and that as an interim measure they reached out to bank partners and Dr. Chind started last week. She noted that Dr. Chind would be interested in becoming a substantive employee but was not on the specialist register and was unsure if this prevented him from applying. She asked for advice to see if the CESR process was applicable or if there was another method.

[30]She received a reply stating that Juliet was happy to talk to the claimant about it, and was also told that the claimant would need to demonstrate his service for the relevant point on the locum salary, stating that it would be hopefully closest at the top, which Juliet says is £104 K . She suggested having a chat him, regarding applying for the post and putting in his experience etc.

[31]There were various comments about costs and a suggestion that the claimant would need to demonstrate his commitment to the organisation, because he lived in Wakefield and that he also needed to make contact with Ricky Somal. She also stated, amongst other things that OHG physician consultants are like hens teeth and said we bring in 500 K plus income which could increase significantly with a full time OH position, but also noted that if he can do CESR they might keep for three years and could hopefully get a trainee to replace in the long term. However she also noted that he would earn significantly more in the private sector, were he to have a CESR qualification.

[32]Nominations for the second cohort of the programme were open from the 6 December 2022. The information was forwarded to the claimant on the 7 December and the claimant wrote to Dr Mark Glover asking whether or not he would be able to go over the attached documents and advise the claimant whether he could assist him in his application for inclusion in the CESR support programme.

[33]Dr Glover suggested that he needed sign off from a clinical director and suggested contacting either Mark Rowlands or John Knighton on his behalf.

[34]On 7 December 2022 the claimant had contacted Mark Rowlands noting that he had been in service for four months as a locum consultant and expressing an interest in pursuing the CESR route to entry to the special register in occupational medicine. He said he had a little over 10 years’ experience and had completed the exit exam in 2015. He said he needed to discuss a job plan with a medical line manager.

[35]In his e-mail of the 7 December 2022 he said an obvious barrier to surmount is that I'm currently employed for an agency and my contract at the trust is far along supplied chain. He also said he was on a zero hours contract. He also asked for advice as to who would be his line manager and who he should meet to discuss fulfilling documentation requirements. Dr Rowlands suggested he contacted another person Mr S Singh, who would be best placed to assist in making the application.

[36]On 7 December 2022 the claimant had a conversation with Andrea Downham. Miss Downham says that this conversation left her feeling scared of Dr. Chind and intimidated and that she had felt threatened in the meeting. She stated in evidence to us that following the meeting she did not wish to be alone in a room with Dr. Chind.

[37]She said the meeting arose because the claimant asked to see her to discuss his role. She said he had asked her whether the trust was going to advertise for a substantive occupational health consultant with a requirement to be a member of the faculty of occupational health medicine. She said he had also said that he had exposed corruption in the police and the faculty of occupational health medicine was corrupt and he would never be able to be a member of the faculty. She suggested that he challenged her on her experience and asked if she had ever travelled to a third world country.

[38]She also said that he had said that he would expose the trust if they imposed a requirement for any applicant to be on the specialist register. She accepted that when she challenged him on what he meant by exposing the trust that he backed down, in her words stating, it was the faculty of occupational medicine that he would expose. She also said that he asked if she had a secure job and said that she was lucky.

[39]The claimant gave a differing account of the meeting. He said he was surprised that despite being in post for two months and supposedly being his head of department, Miss Downham ( AD) had made no attempt to meet with him. He said that during the course of the conversation he mentioned that he valued the job highly and it would destroy him if, as often threatened by Natalie Hogg and Miss Downham, the post where he was incumbent were to be recruited to. He said that he did not say that if he lost the role, it would ruin him financially. He also says he did not warn her about hiding behind text boxes. He said that his approach was cordial and respectful.

[40]We find that the meeting was one at which the claimant was keen to discuss his future with the trust. We find that the claimant was, at that point interested in having a longer term future with the trust and was trying to find out whether or not there were intentions to try to recruit to the post he occupied as a locum.

[41]We find that the claimant’s approach to this meeting, concerning as it did, his own future, was one in which he may well have come across to AD, as forceful and potentially threatening. We accept that she left the meeting feeling upset and concerned and whilst we accept that she did discuss the meeting with her colleague Juliet Sten, and did make a note of it, we also note that she did not take any further action at all. We find it surprising that if she really was concerned to be alone in a room with the claimant, that steps were not taken to raise her concerns with him or indeed to raise some form of complaint with the manager asking that his behaviour be raised and addressed.

[42]No action was taken, and we also note no action was taken at that point to terminate his locum contract. However, on 7 December 2022, Natalie Sanderson contacted Bank Partners, asking whether they were supplying the locum consultant in occupational health ( Dr Chind) and asking for as much detail as they had about his start date; end date; any termination notice required and whether anyone else had been put forward for the post.

[43]In response to that e-mail, on 8 December 2022, Bank Partners contacted Natalie Sanderson, stating that the claimant was still being booked.

[44]That e-mail was forwarded by Natalie Sanderson to AD, stating that the claimant was with the Mayday agency; attaching his CV and stating that the notice to the agency was one week. We note that this notice period was not set out in the e-mail received from bank partnership.

[45]We find therefore that following the meeting with the claimant, AD did make inquiries about the claimant and about his contract and notice.

[46]We also find that AD started to make a number of enquiries about alternative providers for occupational health services.

[47]Going back to the Claimant’s applicant for the CESR scheme, following some further clarification from Sally Ann Reed on 12 December 2022, about what would be required, the claimant had discussions with Mr Singh about the possibility of joining the two years CESR programme with the trust. He said he would be grateful to have the trust sponsor the CESR process and that I am willing to fulfil the requirements & the contract pertaining to the process. He said he proposed have competency signed off by Mark Glover and any other assigned trainer and was preparing a portfolio of credentials.

[48]On 14 December 2022 the claimant provided his completed forms B & C to Dr Rowlands amongst other people, and noted that form A had to be signed by his sponsor.

[49]Doctor Rowlands contacted him saying she had been through form a with Sally Ann Read and asking some further questions, all in respect of evidence of certain matters. The claimant provided a response, and form A was then completed.

[50]We have been referred to the form and note that there are 10 main questions, around knowledge, skills and performance, quality and safety, communication, partnership and teamwork and maintaining trust. Each question is scored out of 10 with 10 being high, and the claimant scores 8-9 or ten in respect of everything except service improvement and clinical governance meetings.

[51]Section B requires additional information in support of the candidate, not included above and was filled in, we understand, by Sally Ann Read. She stated as follows PHU occupational health lead nurse states that the team have never had a consultant like Aaron. He is approachable and supportive and very active in his approach. He has a very accommodating practise and is working hard to reach staff. The PHU occupational health lead nurse applauds him for this.

[52]Doctor Rowlands and Mrs Reed both agreed in cross examination that the claimant’s scores were high and that the information provided showed that the claimant was extremely competent and well liked within his department.

[53]We find that the form was a true reflection of Dr. Chind’s competences and abilities and that further the form properly records that he communicated with patients and colleagues effectively and at a high-level scoring 9 out of 10. We find that in respect of team working and managing people he scored an 8, demonstrating his level of ability to work effectively with other colleagues in a multidisciplinary setting.

[54]Pausing at this point to consider the CESR programme itself, we find that the expectation at the time was that the respondent trust would have about 10 places available on the scheme.

[55]We have been shown evidence of a number of applicants being shortlisted for interview. On that list there are 16 individuals including the claimant. We find that as at the 23 January 2023, of those 16 individuals, nine have been shortlisted, five have not been shortlisted, one is marked as awaiting further information from Royal College regarding suitability and the claimant is marked as awaiting further information from candidate.

[56]In January 2023 further discussion about the applicants for the CESR took place

[57]On 9 January Juliet Stern contacted Andrea Downham stating that they had received an application from the claimant for the CESR scheme, sponsored by Dr Glover and Dr Rowlands . It says this might explain the reason that he has been trying to secure a permanent role within occupational health with you.

[58]She said we are all too well aware of the difficulties of getting a substantive consultant, but he is agency. He has to be fixed or substantive to get onto the scheme and has only been in this trust four months, which will make him ineligible as we would ordinarily require one year's service with the trust as a prerequisite. We would need to look at the other candidates to see how he compares, because it would be unfair to consider him, when others, who may only have worked in the trust for this period of time, may not replied on that basis. Not sure if you are aware and whether you support this, as I can see that you have not been copied into any of his communications. happy to have a further chat.

[59]In a response from BW, to Mrs Downham, the writer says it will be imperative to have a discussion with him that he would have to be employed by the trust and he should be ready for a big pay cut and a saving for the trust as it will need a lot of effort from us to consider his application.

[60]On the 20 January 2023 there was an e-mail exchange between Andrea Downham and Natalie Hogg about the claimant's involvement and application for the CESR programme.

[61]Miss Hogg noted that he was employed on an agency; that he had been approved she believed for the CESR pathway, which would give him special register status and allow him to apply for a substantive OHP role which was ultimately our aim as a department.

[62]She said she wondered if there was an option to employ him as a locum for the trust directly, to give him job security whilst he completed his training and agree a salary outside local agency pay rates.

[63]Miss Downham stated she was aware of the application and that they would need him to be on a trust local contract, which would have a financial impact for him and a positive impact for them and noted that she needed to discuss it with him. She stated the advantage would be that they would have a stable occupational health physician input for two years. She queried how much was needed and it was decided that there would be a meeting to consider the finances and whether a fulltime occupational health was required and also to consider a job plan for the claimant if he was successful.

[64]At this point the respondent was well aware that if the claimant was to be accepted onto the CESR programme, they needed to discuss a move from his agency locum contract to a trust contract and they were aware there was a need to have a discussion with him. They were also well aware that to change his contract would be to significantly reduce his income.

[65]On 16 January 2023 Juliet Stern contacted Andrea Downham about the claimant saying that he had applied for the scheme and asking for a quick chat over the phone

[66]On 20 January 2023 Juliet Stern wrote to Andrea Downham stating they had had a moderating meeting, that the claimant had been discussed, that they were aware he was there on a four month basis and that there was a high possibility that he would be shortlisted for the CESR programme.

[67]She went on to say that the panel were not prepared to interview him, if he doesn't give us a verbal undertaking beforehand that he would be prepared to join on an NHS contract on NHS pay rates. She suggested that when Miss Downham had her discussion with him, that she directly asked him this question. Miss Stern pointed out that it would definitely lead to a reduction in pay, but if he achieved his CESR and joined the trust in substantive capacity, he would be paid NHS rates. She asked that the discussion took place soon.

[68]Miss Downham did discuss the matter with the claimant but not until the 23 January 2023. She says that she spoke to the claimant and was clear that the CESR programme was not open to agency workers and that therefore to progress onto the CESR programme, he needed to be on a trust contract. She says he wanted to know what he would be paid, and she was only able to discuss a pay range.

[69]This was because the medical staffing team needed to assess how much experience he had, in order to assign a pay point.

[70]He was concerned about the reduction in pay in that meeting, and she says that he said that his experience required him to be on the highest pay point. She said, not unreasonably, that she would need to see his CV so that it could be established.

[71]In her witness statement she says that they left it that I would see if I could pin down a more exact pay point and Dr Chind would then think about it. She updated Juliet afterwards and we will refer to the e-mail at page 243.

[72]In her e-mail she stated that she was trying to confirm the pay scales for Dr. Chind so that he can make an informed decision. He was concerned about the reduction in pay rate and it may be that I need the communication regarding the conditions of the CESR programme to come from you or someone in the team.

[73]We find that at this point Miss Downham and Miss Stern and Natalie Hogg all recognised that in order to access the CESR programme, the claimant would be required to take a significant reduction in pay. Miss Downham knew that this was a potential problem for the Claimant, because he had told her so when she met with him. We note that she met with him alone and that they had a civilised and appropriate conversation about which she raises no concerns.

[74]We find that at the end of this meeting, she said she will make attempts to pin down what salary might be on offer. We find that she did so, and that she was then provided with some further information of the pay scales for consultants. The message from Miss Stern was that the pay scales for consultants were on page 12 of a document referred to , and that even if he were on the top of the increment, he would receive just under 120K for A10P job.

[75]On the 23 January Caroline Man responded to Natalie Hogg, stating that she had looked at the claimant's CV, but there were no dates on it stating when he was at different places, so it was difficult to work out an appropriate salary. She noted that he had said he had nearly ten years in OHP, but asked whether there were any dates and places, or when he decided to move. She also asked for further details.

[76]The response from Miss Hogg was that she wasn't sure she could get the information and asked if it was possible to advise of the range of the pay scales whilst she did some digging. In response she received the pay range, but it was noted that the rate of pay would technically be based on equivalent non NHS service.

[77]This was the pay range from £88,364 to £119,133. This pay scale sent to Miss Downham who then sent this information to the claimant on the 24 January at 12:28. She said that he would need to be on the NHS pay scale and said, to confirm this HR require your job history with specific dates.

[78]She provided pay details and said that the shortlisting team would need confirmation that he accepted the conditions of the learning agreement before he could be considered for interview.

[79]From the correspondence we have seen, we understand that there was some time pressure in respect of this information, because the intention was to interview candidates following invitations being sent out within the next few days.

[80]We find that there were in fact two pay scales which the respondent had considered. One of them was for consultants and one of them was for specialist doctors.

[81]We find that by the 23 January 2023 the respondent had not been able to give the claimant any clear indication about where on the pay scale he might sit. We find the reason for that was that they required some more information from him.

[82]We also find that there was no real clarity about whether or not he could expect a minimum salary in the region of £88,000 per annum and a maximum salary of £120,000 per annum. We find that he had expressed concerns about a reduction in his salary to the respondents and that they were aware that the move from a locum salary to an NHS salary would be a significant reduction in pay.

[83]The claimant responded with an e-mail on the 24 January 2023 to Juliet stern and copied it to Andrea Downham and Sally Ann Reid.

[84]His e-mail states as follows Dear Juliet and Andrea. Andrea, thank you very much for sending this information over. I remain keen to pursue the CESR process and would deem it an honour to continue to serve here. As discussed with Andrea yesterday I shall need clarity on the pay that I'm being offered. If it needs any reminding I am more highly verifiably credentialed in all areas of occupational health practise than any other occupational physician in the UK or beyond. Please feel free to ask around if anyone can hope to approach my credentials. It would therefore be unjust to offer me a pay point without a clinical excellent award or other uplift. I wish to draw your attention to the fact that as a public sector employer our trust has a public sector equality duty. Since the award of Clinical Excellence awards and offers of only midpoint pay scales disproportionately places overseas qualified doctors at a disadvantage and this is common knowledge, I wish to appeal against any efforts to place me at a financial disadvantage while I pursue the CESR process. If our trust were to apply a provision criterion or practise that effectively puts me at a financial disadvantage, any such action would therefore contravene your public sector equality duty. Juliet please can we discuss this matter in person so that we can have clarity yours Arun.

[85]The respondent concedes that this e-mail constitutes a protected act for the purposes of a claim of victimisation under the Equality Act 2010. 86. 20 minutes after receiving the e-mail, Ms Stern contacted Miss Downham asking if they could discuss the e-mail ASAP. She did not contact the claimant to respond to his request for a meeting , and nor did anyone else.

[87]She told us and we find that she then had a conversation with Miss Downham in which she expressed concerns about the tone and disproportionate nature of Dr. Chind 's e-mail. She said Miss Downham had reminded her of a conversation that they had had in December, when he had threatened to expose of the trust if they went out for advert for a substantive occupational health consultant as he would be ineligible to apply. She said the tone of Dr. Chind 's e-mail put her in mind of that, given its tone and implied threat.

[88]We have read the witness statement of both witnesses carefully and have also reviewed the evidence they gave under cross examination, and we find that both women were alarmed or unhappy with the claimant’s comments about overseas workers and potential discrimination in pay scale that might contravene the public sector equality duty. We find as fact that when they refer to the tone and aggressive nature of the e-mail, they are in fact referring to those comments, and not simply the tone of the email.

[89]We find that both Miss Downham and Miss Stern were unhappy with the email but find that both of them were unhappy with it because they believed it contained a threat that he could take action against the trust, and that they believed this because of what he sad about overseas workers, the pay scales affecting them and the public sector equality duty.

[90]We find that they both considered that it was inappropriate for the claimant to make those allegations during the course of a discussion about his pay. The fact that this was during the course of his discussion about pay is not capable we find, of being separable from the fact that he has made the comments at all. It is part and parcel of the same matter.

[91]Whilst we accept and find as fact that it was Dr Rowland who made the decision to terminate the claimant’s contract, we set out below, we find that the response and reaction that Miss Stern and Miss Downham had to the claimant’s letter significantly influenced Dr Rowlands thinking about the letter.

[92]We find this in particular because we find that Miss Downham subsequently spoke to him and put the letter in the context of a previous conversation she had had with the claimant on 7 December.

[93]Miss Stern advised Miss Downham to contact Dr Rowlands as soon as possible.

[94]Dr Rowlands subsequently spoke to Miss Stern about the terms of the claimants agency contract and Miss Stern referred him to the deputy director of HR.

[95]Dr Rowlands then arranged to meet the claimant on the 26 January to discuss the e-mail and asked to speak to Miss Downham about it before hand.

[96]When Dr Rowlands spoke to Miss Downham, she told him about the discussion she had had involving moving onto NHS terms and conditions including pay rates. In his evidence to the tribunal, Dr Rowlands recalls that Miss Downham had told him that Dr. Chind wanted confirmation on the pay he would receive and wanted to be placed at a high pay point. She described what she had sent over. As stated above she also referred back to a meeting on the 7 December, which had concerned her.

[97]Doctor Rowlands recalled that she had told him with that the claimant had indicated that he would expose the trust if a substantive OHP consultant post, with the requirement to be on the GMC special register, was advertised, as it would prevent him from applying. She said that he had informed her that he had exposed corruption before. She said he had also questioned about her stable career and income. We find that if this is what Miss Downham reported to Dr Rowlands, that she was misrepresenting the conversation which she had had in December of the previous year.

[98]We find that the claimant had in fact indicated to her, by correcting himself that he was saying he would expose corruption which he believed existed within the Faculty of Occupational Health, not that he would expose the trust.

[99]We find that the focus of Miss Downham on the potential exposure of the trust indicated that she was concerned about the claimant potentially making complaints about the trust, and we find on balance of probabilities, the reason that she expressed any concern of this type was because the claimants e-mail, clearly states a belief that placing him at a financial disadvantage by putting him on the midpoint of a pay scale would be a disproportionate treatment placing overseas qualified doctors at a disadvantage, which may well be a contravention of the public sector equality duties.

[100]We infer that she was concerned that he was threatening to complain of discrimination, and that she was suggesting to Dr Rowlands that this was not the first time that he had done so. We find that at this point Dr Rowlands understood Miss Downham to be telling him that the claimant had previously made such threats.

[101]We also find that there was no suggestion by anyone at this point in the conversation that the problem was with his claims that he was the best occupational health practitioner in the UK. We find that the concern of all parties was that the claimant had raised matters of discrimination at all in the context of a discussion about his pay. It was this we find that was seen as aggressive and inappropriate.

[102]Dr Rowlands considered at this point that there had been a challenging discussion. He says in his witness statement it seemed to me that Dr. Chind 's behaviour was inappropriate and not in line with trust values.

[103]He does not explain in his witness statement why he formed that view at that particular point in time, or what behaviour he was referring to. In following paragraphs he says I agreed with the concerns Miss Downham and Miss Stern had expressed about Dr Chind’s e-mail and approach to the pay contract issue. I did not consider that this was appropriate nor in line with trust values. to explain my view I did not consider it was appropriate for Dr. Chind to insist on being placed on the highest point on the pay scale in this manner. (our emphasis) from my perspective we were supporting Dr Chind with his application to get him onto the CESR support programme with the aim of getting him onto the specialist register that would potentially lead to a substantive OHP consultant role at the trust. I find it unsettling that Dr Chind was trying to command the highest state salary in a confrontational way with accusations of discrimination. (our emphasis) I had to consider fairness to other employees that we would recruit and we needed to manage Dr. Chind 's entry points salary in an equitable and responsible manner compared with others

[104]He goes on to say that Dr. Chind 's behaviour raised real concerns for me. I considered it did not align with the trust values of working together for patients with compassion as one team and always improving. He says that given the way that Dr. Chind had taken an immediate unprofessional and confrontational stance towards Miss Downham and Miss Stern around his pay on standard NHS terms raising allegations of discrimination unless he was paid the highest salary point I did not consider that Dr Chinds’ behaviour demonstrated our value of compassion of working together as one team. Instead, it appeared that his tone was confrontational, demanding and potentially threatening around taking action against the trust regarding alleged discrimination which I did not believe was the case.

[105]We find that Dr Rowlands thought that what was unprofessional and confrontational behaviour was his having raising discrimination in that discussion, and that he was unsettled because Dr Chind raised discrimination when raising concerns about his pay.

[106]Miss Downham sent further e-mail to Dr Rowlands on the 25 January referring to the 7 December meeting and saying it made her feel uncomfortable and also said she was uncomfortable with continuing much longer with a locum occupational health consultant who is not on the specialist register, however I felt uncomfortable with stopping his hours until I had an alternative provider in place as I feel this would come back to bite me she said if we're not going to have any more hours from doctor chin following your conversation tomorrow I would rather he did not come back to the department if possible

[107]Dr Rowlands met with the claimant on 26 January 2023. In advance of the meeting, he said he needed to discuss the claimants e-mail with him.

[108]The claimant was not told that there were concerns about the tone of his e-mail. He was not told that Dr Rowlands was considering terminating his assignment. Whilst he was an agency member of staff, it would have been appropriate, we find for the claimant to have at least had an opportunity to discuss his e-mail before any decision was made to terminate his employment.

[109]We find that prior to this meeting, Dr Rowlands had discussed the matter with human resources and had specifically discussed termination of the claimant’s engagement. He had been told that all that was required was a weeks’ notice and that there was no necessity for him to meet with the claimant.

[110]Despite this Dr Rowlands decided that it would be a kindness to have a meeting with the claimant, to explain to him why his contract was being terminated. We are not told whether or not he had discussed with human resources the reason why he was intending to terminate the claimant’s contract.

[111]We find that before going into this meeting Dr Rowlands had already more or less decided to terminate the claimant’s contract, and this meeting was to deliver the bad news.

[112]We find that the reason he made that decision was that he believed that by raising an issue that being placed at a low level of a pay scale could amount to discrimination because of his status and as an overseas Doctor, was disrespectful to Miss Downham and Miss Stern, and in breach of trust values.

[113]We all agree that Dr Rowlands appeared to have a genuine concern, but we do not agree that his concern was simply about the tone of the e-mail.

[114]From the evidence we have heard, we all agree that the respondent witnesses have struggled to explain precisely why they had a difficulty with the claimant’s e-mail at the time of the dismissal.

[115]Each of the explanations we have heard inevitably brings us back to the point, that the real crux of the difficulty was that the claimant had raised these issues in an e-mail which was part of a chain discussing the rate of pay which he might receive were he to agree to go onto an NHS contract.

[116]The respondent has urged us to find that Dr Rowlands dismissed the claimant, not because of the protected act itself, but because of the manner in which the protected act was done, such that it can be separable.

[117]We have set out our understanding of the legal principles to be applied below and we have drawn our conclusions subsequently, but at this point we remind ourselves that it is necessary to make findings of fact about what Dr Rowlands himself considered the issue to be at the time.

[118]At the time of the meeting, no contemporaneous notes were taken either by the claimant or by Dr Rowlands. We have two differing versions of what was said in that meeting in evidence before us from the witness statement of Dr Rowlands and the witness statement of the claimant. The claimant's witness statement reflects much of what has been said in his claim form dated the 5 July 2023.

[119]The claimant says that Dr Rowlands started the meeting by asking what's been going on what have you been getting up to. He says that he was told that his interactions with managers are not in keeping with trust values that he was told the relationship ends here and that you don't have to come back next week. He said he asked Dr Rowlands to explain what he had done to deserve such punishment, but that Dr Rowlands would not give him any details.

[120]The claimant wrote to Dr Rowlands on the 16 February 2023 requesting written feedback and justifications for your actions including details of what trust values I am alleged to have contravened. He did not receive any response to this request.

[121]The respondent response denies that Dr Rowlands asked the claimant what's been going on and what have you been getting up to and denies that Dr Rowlands did not give any further reasons. In their response the respondent says that following a discussion with Miss Downham, Dr Rowlands felt the claimant’s behaviour towards his colleagues fell short of the standard expected of a senior member of medical staff and that he was not representing the trust values through his behaviours and communication style. He felt that the claimant would not therefore be of a staff member that he would wish to support towards achieving a substantive contract through the CESR process or to continue to engage as an agency locum consultant.

[122]The respondent assert in their response that during the meeting Dr Rowlands explained that he had been willing to support the claimant, but due to the behaviours he had exhibited and the manner in which he had conducted himself he did not believe this was in keeping with trust values or how a senior member of medical staff should behave.

[123]We find that at that meeting Dr Rowlands told the claimant that if he supported him into a substantive trust contract to allow him to progress through the CESR programme and then effectively move into a substantive NHS consultant post, he would be accepting that if he met him in a consultant interview on that day he would appoint him. Dr Rowlands considered that his behaviours were not aligned with the trust's values and he no longer felt able to support him through the CESR process.

[124]Following the meeting, Dr Rowlands spoke to human resources. He was advised to summarise the meeting for his records, in case there was a complaint of some form and did so. He sent the note to human resources.

[125]He asked whether or not he should send a letter summarising the conversation to the doctor in question; that his instinct was not to do so but valued the thoughts of Natalie Sanderson. No letter was sent to the claimant, and we assume therefore that he was advised not to do so.

[126]The respondent’s summary of the meeting refers to the conversion from a locum contract to an NHS contract and says as follows the discussion about this potential conversion, between Dr. Chind and Andrea Downham, head of health and well-being, and Juliet Stern organisational development manager, supporting the CESR programme, became very difficult, with Dr. Chind insisting that his experience required him to be placed on a higher point on the pay scale than could be justified. Doctor Chind stated verbally and in email that our noncompliance with his request to place him on a high pay point was racially motivated because he was an overseas Doctor. He stated that if our trust were to apply a provision criterion or practise that effectively puts me at a financial disadvantage any such action would therefore contravene your public sector equality duty. The manner of these discussions was such that Andrea Downham felt that we could no longer continue to work with Dr Chind in his role as a locum OHG consultant my own concern discussed with Andrea; Juliet; Nicole; Cornelius and Natalie Sanderson was that Dr Chind was not representing the trust values through his communication and stance, and would therefore not be a staff member we would wish to support towards achieving a substantive contract. I discussed my approach to the meeting with Natalie Sanderson, head of employee resourcing ahead of my meeting with Dr. Chind. She explained that I wasn't under any obligation to meet with Dr. Chind and that we could end his employment with the trust simply by contacting his agency and giving a weeks’ notice. I wanted to meet with Dr. Chind to explain the reasons behind my decision, being particularly sad that we were no longer able to support him to progress his CESR application. I met with Dr Chind on a date and pre appointed time in trust HQ.

[127]Dr Rowlands then describes meeting Dr. Chind and asking him what his understanding was about what had happened in relation to discussions regarding the contract and remuneration. He said the Doctor was looking for his support to ensure he was placed on a higher point on the pay scale, and he explained he believed the reluctance to do so was because he was an overseas Doctor.

[128]Dr Rowlands said he explained the process described to him was fair and that they had supported him putting in his CESR application. He says that Dr Chind continued to explain that he believed this was discriminatory and continued to appeal for support to move him on to the highest possible pay point. It was only at that point that Dr Rowlands told him that he didn't believe his actions have been in keeping with the trust values. He said his decision was not based on his ability to do the job or, as had been implied, his place of graduation or his ethnicity, but his approach to this negotiation was concerning and that was the key issue in which I had called him to meet me.

[129]He went on to conclude that the claimant would not be supported and that his approach to the negotiation clearly demonstrated that his behaviours were not aligned with the trust values and therefore I would not be able to appoint him through such a process I concluded that we wish to cease his time working with us at the trust and that this would be the last day of working with us.

[130]We find that this note was written between the 26th and the 27th of January and that the matters discussed were therefore fairly fresh in Dr Rowlands 's mind and that his own reasons for his decision making were fresh in his own mind.

[131]Whilst we find that the note was a reflection of the honest belief that Dr Rowlands had at the time about what had been discussed, we find that it is not clear from the note why he thought that the claimants behaviours were not in keeping with the trust values and we find that from the description from Dr Rowlands it is not clear which of the trusts values the claimant is alleged to have breached.

[132]We have therefore considered what inferences we can draw from our findings of fact, in determining what the behaviour was that he considered was not aligned with the trust's values.

[133]It has been suggested to us that the concern of staff and Dr Rowlands was the arrogance displayed by Dr. Chind, expressing his view that he was the best occupational health practitioner within the country.

[134]Respondent counsel refers to another of Dr Rowlands answers, when he stated it wasn't the fact the claimant was stating it could be discriminatory if he was not given a favourable pay point, it was the fact he thought it was appropriate to enter discussions in that manner; the lack of insight and respect through the approach he took. what was striking that e-mail was the fact he implied he was the best OHG consultant in the country, that was the point of significant concern and showed a lack of personal insight. it was not a balanced approach to proper discussion about pay points it was the way he approached it that put him in a difficult situation.

[135]We can find no contemporaneous note that anybody expressed that view at the time. It is not a view or criticism recorded by Dr Rowland in his contemporaneous note nor does he suggest that he's raised that with the claimant. It is not something which he has referred to in his witness statement, in the context of the discussions, and we find that it was not a concern which he had at the time.

[136]In cross examination, counsel for the Claimant put to Dr Rowlands that there was a link between the alleged potential discrimination in the claimant's e-mail and the decision to terminate his assignment. Dr Rowlands accepted that the claimant was alluding to potential discrimination in the e-mail and he accepted that that suggestion caused difficulty.

[137]He also said that it was not about the allegation of discrimination at all it was about the threatening manner the claimant took not just in the e-mail but in conversation with Miss Downham too.

[138]When asked what behaviours he considered concerning, Dr Rowland explained someone making threats generally, he was threatening in his interactions with Miss Downham and seemed to feel it was an appropriate way to negotiate whether a point on a pay scale or trust advertising a post, he brought threats into the conversation at the outset.

[139]Since no one has suggested that the claimant’s conversation with Miss Downham over pay scales had been threatening, this must be a reference back to the first meeting the claimant has with Miss Downham, some months before.

[140]Dr Rowland did not suggest to the claimant at any point when he met him, that a conversation the claimant might have had with Miss Downham on the 7 December was any part of his decision making.

[141]We all agree that had Dr Rowlands considered that he was influenced in any significant way in his decision making by his understanding of what had been said in the meeting of 7 December , that he would have told the claimant in that meeting. The reason we find this is that we accept Dr Rowlands 's evidence that he thought it was appropriate and even kinder that he break bad news to the claimant in person.

[142]The fact that he did not do so, leads us to conclude that it was not part of his decision making, even if it was the background and that his evidence to the tribunal is said with hindsight.

[143]We remind ourselves further that the claimant asked for an explanation as to the reasons for his dismissal and that the respondent failed to provide them. We return to this later in our judgement.

[144]It was put to Dr Rowlands’ in cross examination evidence that he made the decision to dismiss the claimant because of the claimant’s behaviours in his email of the 24 January 2023 and when asked what those behaviours were, he replied making threats generally and when asked threats of what he said threats of discrimination.

[145]Dr Rowlands was asked whether, having read the e-mail he thought that the claimant might bring a claim, and he said there was an indication he was considering his actions and then said he thought it was implied in the e-mail that he might take legal action, if he were not paid at the highest salary point. He accepted that it was common knowledge that overseas qualified doctors could be at a disadvantage and accepted that the CESR programme was a particular advantage to overseas doctors.

[146]We remind ourselves that Dr Rowlands did not give with the claimant any opportunity to explain his concerns about discrimination or potential discrimination nor did he attempt to understand why the claimant might have taken the view that he did or why he had written that there might be discrimination.

[147]All the correspondence prior to the claimant’s e-mail recognises that he would need to take a significant pay cut, if he were to be accepted onto CESR, but also recognised that accepting him onto that programme could be advantageous for the trust in the long term.

[148]We remind ourselves that this was a trust that had significant difficulties in recruiting occupational health doctors and that although Miss Downham considered she had alternative arrangements in place, those alternative arrangements had not, until the claimant sent his e-mail, led to any discussion about the termination of his assignment.

[149]Despite this background, which we find was well known to Dr Rowlands and to Miss Downham, Miss Stern and human resources the decision was taken by Dr Rowlands to terminate the contract. It was taken in circumstances where the claimant himself did not know any more than the trust knew where he might be placed on the salary range.

[150]Dr Rowlands is therefore incorrect to say that the claimant was asking for a higher salary than he would be allocated.

[151]Doctor Rowlands was asked whether he thought the claimant had gone about negotiations in the wrong way and he said he could see what the claimant was concerned about, but that he put the organisation and people into a difficult situation. He was asked whether by that he meant, by alluding to potential discrimination and answered, that that was the implication, that was what was causing difficulty in that e-mail but not so much that he was stating that it could be discrimination if not given the pay point, it was that he felt it was appropriate to enter into the discussion in that manner. The lack of insight and lack of respect in the approach he took.

[152]We find that this must mean that Dr Rowlands thought it was disrespectful to suggest that a failure to place him at a high point on the scale might be discrimination linked to his race.

[153]We find that Dr Rowlands's statement that he was asking for a higher salary than he would have received points to the real concern of Dr Rowlands, that if the claimant were not given a salary which he considered appropriate, that he would consider this as potential race discrimination. It was this fact, we find, that Dr Rowlands considered to be in breach of trust behaviours.

[154]The claimant considered that he should be placed on the highest possible level in the salary range and that a failure to place him at a higher level than the mid range could be potentially discriminatory, and he said this.

[155]We conclude that this was the understanding that Dr Rowlands had of the claimant's e-mail, and his subsequent conversation with the claimant. We find Dr Rowlands understood that the claimant was suggesting that the placement of overseas medics on a low point of an NHS pay scale rather than a higher point of the NHS scale, was potentially discriminatory behaviour, linked to race and was potentially in breach of a public sector equality duties.

[156]Since Miss Downham did not suggest that her discussion with the claimant in which he had asked to be placed on the highest possible level had been a difficult one and since all the respondent witnesses who were asked agreed that it was not unreasonable for anyone in a pay negotiation to argue that they should be placed at the highest possible point in any pay scale, we find that Dr Rowlands himself would not have considered that alone to have been an unreasonable negotiating stance and that he did not, as a matter of fact consider that the mere fact of asking or insisting that his experience and skill merited placement at a high point on a pay scale was in breach of trust values.

[157]We therefore conclude that Dr Rowlands considered the allegation of possible discrimination against the trust was an inappropriate way to negotiate and not in line with trust values. Therefore, the reason Dr Rowlands’ dismissed the claimant, was because the claimant had done a protected act. His concern following his conversations with staff, and following his meeting with Dr Chind, was not about the tone or manner of making a protected act but was that the protected act had been done at all.

[158]The decision to terminate the locum assignment was, we think an extraordinary decision to take, in response to a strongly worded email. Whilst the email the claimant sent was forceful and whilst it might arguably not have been a particularly wise negotiating tactic, the claimant had demonstrated himself to be a valuable member of the occupational health team and other than an unfortunate interaction with Miss Downham the previous December there had been no concerns about any aspect of his work for the trust. Dr Rowlands himself had signed off on a form only a month or so earlier, in which the claimant had been described in glowing and extraordinary terms. The Notice Period

[159]Prior to starting work at the trust, the claimant was provided with a letter of assignment to the Trust by David Harrison. Dr Chind produced two letters to the tribunal, both in identical terms one sent by Mayday Healthcare on the 28 March 2022 and one by Coyle Personnel Limited, both to him, dated the 20 July 2022.

[160]The material part of each letter state that the notice period will be two weeks. It is not made clear by the letter whether this is the notice which the trust is required to give the claimant or the agency which provides him, or whether this is the notice the claimant is required to give to the trust.

[161]The hospital trust frequently uses the services of staff who are not directly employed by them both by using bank workers but also by using agency staff.

[162]We accept that in most cases where staff are supplied by an Agency, they will be appointed through standard channels and standard terms and conditions will apply to the engagement. We heard evidence and find as fact that in most cases a member of staff engaged through the bank workers agency, would be entitled to receive one week's notice of termination of their engagement.

[163]We have been referred to a variety of emails between the claimant the respondent and between various members of the respondent’s staff, following termination of the claimant’s engagement which raised questions about the length of his notice.

[164]Not unreasonably Dr Chind considered that he had been told he was entitled to two weeks’ notice, and therefore expected to receive two weeks’ notice pay.

[165]However we find from the correspondence we have seen, both before and after the claimant was told his engagement has been terminated, that the understanding of human resources staff and the understanding of Dr Rowlands and the understanding of human resources staff that the claimant wrote to subsequently, was that he was entitled to one week’s notice.

[166]We find as fact that this was the advice which they gave to Dr Rowlands and which Dr Rowlands accepted as accurate.

[167]In particular we have been referred to an e-mail, towards the end of the email exchanges which confirms that there was no agreement in place in respect of the claimant, and an earlier e-mail which confirms that the usual position would be a one week notice period.

[168]On the 1 February 2023 Natalie Hogg, a business manager to health safety and well-being service, within which the Claimant worked, forwarded an email to Natalie Sanderson, who was head of employee resourcing attaching the two documents which the claimant had forwarded to her.

[169]She referred to a document from Coyle Recruitment advising two weeks’ notice, stating she had not seen the document, and thought he had come by the Mayday agency but was happy to stand corrected. The response she received from Natalie Sanderson was that the matter should be left to another person.

[170]Natalie Sanderson says there was no evidence that anybody from the Trust signed that contract. She said the trust staff would not sign contracts.

[171]It was left that the individual would investigate and come back to HR. There is no evidence before the employment tribunal that there was ever any further discussion about the correct notice. Both emails were copied to Andrea Downham and deputy medical director Dr Rowlands.

[172]There is no suggestion before the employment tribunal that either Natalie Hogg or Natalie Sanderson had seen the claimants e-mail of the 25 January 2024 which he relies as the protected act. We find that they did not see it, and that none of their decision or advice were influenced at all by it. The Failure to Provide a Reason for Termination of The Assignment

[173]We find that Dr Rowlands did explain to the claimant during the course of his meeting his reasons for deciding to terminate the claimant’s assignment.

[174]We find that the note he made shortly after that meeting was a fair reflection of his thinking at the time. We find that he did explain to the claimant that he considered the claimants behaviour in writing the e-mail that he had written was not in line with trust behaviours. In that respect the claimant was provided with a reason for the termination of the assignment.

[175]Following termination of his contract and following the discussion about the correct notice, the claimant was in contact with Sally Ann Reid to request a reference from her, which she provided. We have been referred to that reference and note that it was a wholly positive reference.

[176]On the 16 February 2023 the claimant wrote to Dr Rowlands stating that he was trying to make sense of the sudden termination of his employment and asked for written feedback and justification for the action including details of the trust values he was alleged to have contravened.

[177]Dr Rowlands did not reply. He does not deal with this matter in his witness statement, but the tribunal understood that this was because the respondent considered that the allegation made, was limited to the general provision of reasons and not the request for written reasons. This is not how the tribunal have understood the allegation and the tribunal have heard evidence under cross examination of Dr Rowlands and other of the respondent witnesses which enable us to make sufficient findings of fact to be able to deal with the allegation as we understand it is put.

[178]We find that the claimant was subject to unfavourable treatment by the failure to provide him with a response to that letter.

[179]We have therefore considered what evidence we have of the reasons for the respondent not providing a response at that point.

[180]It is asserted for the claimant that the reason why Dr Rowlands made this comment was because the claimant had already suggested potential discrimination in his e-mail at 248 and Dr Rowlands considered that he may bring a claim.

[181]Dr Rowlands said in his evidence that he didn't provide the written reasons or respond to the e-mail because he did not want to create a source for potential conflict and that providing reasons might lead to the claimant making complaints or litigating. We accept his evidence and find as fact that his was a true explanation of his reasons. This was a statement about future concerns , not about the protected act. The Claimant only relies upon the protected act, and not any other part of section 27 Equality Act 2010.

[182]We find that a Dr Rowlands took advice from human resources and we also find that there was no obligation to provide such written reasons, although it may well have been helpful to the respondent and in retrospect.

[183]We find that the claimant has not proved a causal link between Dr Rowlands 's decision making and the protected act and has not satisfied us that the protected act relied upon, was a significant influence on his decision making in this respect. We all agree that it was a desire to avoid further conflict, and not the concern about past protected acts, that led to a decision not to respond to the claimant’s request for a written explanation.

[184]We find that that the fact of the protected act set out in the e-mail was part of the context of all of the actions that took place subsequently but was, in the case of the failure to provide written reasons not the reason, or a significant influence, or any influence at all. We find that Dr Rowlands, having made the decision to dismiss and having explained it at the meeting, did not wish to provide any further detail which might cause further difficulties.

[185]On the 3 March 2023 the claimant made a subject access request and the respondent replied on the 6 March asking him for further details including his driving licence, passport, birth certificate and a utility bill to enable them to search. The claimant provided this, and on the 7 March, he was informed the IT department would be instructed to begin the search.

[186]The claimant wrote again on the 8 April stating he had received no information and that he intended to file a complaint with the chief executive and Information Commissioner.

[187]He received a response from the respondent on the 12 April stating that as he had been engaged with an Agency, they held no personnel records but that the IT department had been asked to conduct an e-mail search, but that they had a backlog of work in the search not being completed.

[188]On the 24 April the claimant sent a formal grievance on dismissal from service to Penny Emerit the Chief Executive of the trust.

[189]In that e-mail he states he wished to raise a formal grievance. He stated that he believed the real reason for his dismissal was that he was objecting to discriminatory and inconsiderate treatment of ethnic minority employees, including himself. He made reference to a number of matters including the CESR application and his e-mail, and also his meeting with Dr Rowlands. He asked for reinstatement of his locum ship and also raised concern about the subject access request.

[190]We have been referred to the respondent’s grievance procedure and we find that whilst the claimant was on assignment to the respondent, he was covered by and entitled to raise concerns under it.

[191]We accept that by the time he raised his grievance with the respondent on the 24 April 2023, almost three months had passed since termination of his assignment. We also remind ourselves that on the 24 April 2023 the claimant approached ACAS by way of early conciliation. We observe that he did so on the last possible day to be within the three months time period for raising a complaint to the employment tribunal.

[192]The claimant received a response on the same day from the chief executive's personal assistance stating that matters had been forwarded to Nicole Cornelius the chief people officer who will investigate and provide you with a response.

[193]We heard evidence from Miss Low about what had happened to the claimant’s grievance.

[194]She was unclear about whether there had been any investigation, but told the tribunal that she thought there would have been some investigation and that she thought somebody would have spoken to Dr Rowlands to ask him about the events.

[195]We had no evidence from Dr Rowlands of any such discussion and we have seen no paperwork whatsoever that suggests that the respondent ever carried out any such investigation.

[196]On the basis of the evidence before us we find that the claimant’s grievance was not investigated by the respondent at all.

[197]Following the claimant’s grievance, the claimant received a substantive response on 20 June 2023 nearly two months later.

[198]This was a significant delay and the claimant's allegation is that the respondent failed to respond or delayed in responding to the grievance raised on the 26 February 2023.

[199]We accept that the claimant was raising a grievance long after him engagement had terminated, and we accept that the respondent had no contractual obligation to carry out any investigation.

[200]That is not the question that we must determine, because the allegation made by the claimant is that the reason his grievance was not investigated because of the protected act.

[201]We remind ourselves that it is for the claimant to prove facts from which we could conclude in the absence of an explanation from the respondent that the detriment he is subjected to is something to do with him having done the protected act which he relies upon.

[202]We find that the respondent did reply initially to the claimant’s grievance but that it did not provide a response and therefore as a matter of logic it did delay.

[203]We accept that there was a detriment to the claimant in having a grievance which he had been told would be investigated and in respect of which he would receive a response, delayed for this period of time.

[204]The claimant was at this point engaged with ACAS early conciliation. His ACAS certificate was issued on the 5 June 2023 and the claimant received the response on the 20 June 2023

[205]In that response Nicole Cornelius states that the purpose of a grievance was to resolve concerns that trust off raised during the course of their employment or engagement she pointed out that his agency assignment was terminated on the 26th of January and that his grievance was raised many months after the assignment she said that the treat trusts grievance policy did not therefore apply to him and therefore no further action would be taken under the policy.

[206]In respect of matters he had raised about members of staff she said the trust would consider whether or not any of their other policies were engaged.

[207]In respect of the allegations of discrimination she stated that we note your e-mail raises serious allegations of discrimination which you allege LED to or contributed to the decision to terminate the assignment whilst these will not be investigated as a grievance for the reasons outlined above for the avoidance of doubt the trust denies that you were discriminated against on grounds of race when your agency assignment was terminated or that the decision to terminate the assignment of partly as a result of the concerns you have referred to in your e-mail of 24th April 2024. Relating to other trust staff around alleged discriminatory treatment mark Rowland deputy medical director was not aware of the concerns relating to other members of staff therefore these matters could not have influenced his decision making on 26th of January.

[208]We observe that this is a reference to the allegation made by the claimant that his termination of employment was something to do with him having been a whistleblower.

[209]We find that the e-mail reflects the trust's reasons for not providing a grievance outcome to the claimant

[210]We find that the respondent Must have conducted some investigation into the claimant's concerns in order to be able to assert that there was no discrimination involved and in order to assert that mark Roland had no knowledge of the matters the claimant relied upon as part of allegations about whistle blowing.

[211]However, nothing in that explanation and no other evidence before this tribunal points other than the chronology itself and the respondents knowledge of the claimant's engagement with ACAS points to the claimants protected act being the reason for the respondent not investigating or delaying and investigating the grievance.

[212]The tribunal finds that the reason for not investigating the grievance is as set out in that letter, and infers that any delay in responding to the claimant was far more likely on the balance of probabilities to have been due to an abundance of caution on behalf of the respondent because of an expectation that the claimant might bring claims of discrimination. That is not the protected act relied upon by the claimant.

[213]The claimant also alleges that the respondent refused to investigate the claimants grievance under the respondents grievance procedure or hold a grievance meeting with him. He is right and insofar as that was detrimental for the claimant we accept that he was subject to a detriment.

[214]Again it is for the claimant to prove on balance probabilities that the cause or principle reason for this failure was that he had done the protected act that which he relies upon.

[215]We conclude that on the evidence before us and from the facts we have found, whilst we could infer that the claimants protected act was part of the context of the respondents refusal to deal with his grievance, we prefer the written evidence contained in the e-mail that the real reason for not investigating his grievance and the principle reason, was that he was no longer engaged on a contract and had not been so for three months. We all agree that it is far more likely that the refusal to investigate his grievance or hold a grievance meeting with him was attributable to those factors. What would have happened had the claimant’s locum not been terminated?

[216]We have found that the claimant as a locum was expensive to the NHS Trust and that this was a matter of concern to them. We have found that Andrea Downham had already made inquiries about the claimants notice period and the availability of other ways of providing the service.

[217]We find that in particular she had spoken to Dr Rowlands and confirmed that the trust would be able to source other provision were the services of doctor chimed no longer required.

[218]We find therefore that whilst it is unlikely that the trust would have terminated his locum in January 2023 absent the e-mail, that there is a strong possibility that they would have terminated his locum assignment within a reasonably short period of time thereafter. We have heard no specific evidence from the respondent about this and therefore we make no findings of fact about how long the claimant might have remained on a locum contract and this will be a matter for consideration at a subsequent remedies hearing.

[219]The next question is whether or not the claimant would have been successful in gaining a place on the CESR scheme.

[220]This involves two or more considerations.

[221]First the claimant would only have been accepted onto the scheme if he agreed to NHS terms and conditions and that required a determination of where he would sit on the pay scale.

[222]No determination has ever been made as to where he would sit on the pay scale, or why. We are not in a position to make that determination ourselves and would expect to hear further evidence from the respondent and the claimant unless they were able to reach an agreement, which would require the claimant to provide the further information about his CV and the respondent to provide an explanation as to why they would have placed him at any particular pay point.

[223]We all agree that the higher the salary offered to the claimant, the greater the likelihood that he would have been prepared to accept an NHS contract.

[224]However, we have no evidence from him that he would have been prepared to sign the NHS contract if the salary offered to him was at the lower end of what might be possible. Again, this is a matter on which we would require evidence from Dr. Chind.

[225]If Dr Chind were able to satisfy a tribunal that he would have been likely to have accepted NHS terms and conditions once a pay offer have been made to him, we would then need to determine whether and what chance he had of being shortlisted for the CESR project.

[226]We have made findings that the view of Miss Stern was that the committee would approve him for shortlisting, if he signed the contract, but that does not tell us anything about whether or not he would have been accepted onto the programme, or the chance he had of being offered one of the 10 places. Relevant legal tests

[227]Section 27 of the EqA 2010 says: 27 Victimisation(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.

(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.

(4) This section applies only where the person subjected to a detriment is an individual.

(5) The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.

[228]Victimisation occurs when A subjects B to a detriment because B does a protected act or believes that B has done, or may do, a protected act. In order to prove victimisation, a Claimant must show they have been subjected to detriment ‘because’ they have done (or may do) a protected act.

[229]In this case the claimant only relies upon the doing of a protected act.

[230]An employer can act lawfully if it relies on the non-protected aspects of any alleged conduct disclosing the protected act, even where those aspects are closely connected with the protected act itself. Where the principal reason for the alleged unfavourable treatment is the manner of the doing of the protected act, or otherwise conduct that is linked to the protected act, that is properly separable from the disclosure itself. See for example Bolton school v Evans

2007 ICR 641

CA.

[231]We have taken into account the case law developed in respect of whistle blowing as relevant to determinations in respect of victimisation. For example authority for the proposition was set out by the Court of Appeal in Kong v Gulf International Bank (UK) Ltd

2022 EWCA Civ 941

, CA. That was a decision about unfair dismissal, in which the Court upheld the finding that the reason for an auditor’s dismissal was not the fact that she had made protected disclosures, but that in making them she had questioned the head of legal’s professional awareness, which was separable from the disclosures.

[232]If a protected act has a ‘significant influence’ on the employer’s decision-making, discrimination will be made out (Nagarajan v London Regional Transport

1999 ICR 877

, HL). Nagarajan was considered by the Court of Appeal in Igen Ltd (formerly Leeds Careers Guidance) v Wong

2005 ICR 931

, CA, a sex discrimination case, where Lord Justice Peter Gibson clarified that for an influence to be ‘significant’ it does not have to be of great importance. A significant influence is, rather, “an influence which is more than trivial. We find it hard to believe that the principle of equal treatment would be breached by the merely trivial.”

[233]The words ‘because of’ allow for multiple causes. The Equality and Human Rights Commission’s Code of Practice on Employment (2011) notes that the protected act need not be the only reason for detrimental treatment for victimisation to be established (see para 9.10).

[234]It is not necessary for the protected act to be the primary cause of a detriment, so long as it is a significant factor (Pathan v South London Islamic Centre EAT 0312/13).

[235]It is not necessary for a tribunal to distinguish between ‘conscious’ and ‘subconscious’ motivation when determining whether a complainant has been victimised. Victimisation may be ‘by reason of’ an earlier protected act if the discriminator subconsciously permitted that act to determine or influence his or her treatment of the complainant (Nagarajan v London Regional Transport

1999 ICR 877

, HL).

[236]A victimisation claim will not be made out where the reason for the detriment is not the protected act as such but some feature of it which could properly be treated as separable –such as the manner in which the protected act was carried out (Martin v Devonshires Solicitors

2011 ICR 352

, EAT).

[237]We remind ourselves that the question we must therefore determine is whether or not the detriment complained of by the claimant happened because of the protected act, meaning that the protected act was a significant influence on the decision.

[238]We remind ourselves of the importance of establishing a causative link between the protected act and the treatment complained of. We remind ourselves that the central question will be the reason for the treatment.

[239]Where the reason for treatment which is detrimental or unfavourable is not the making of a protected act itself but something that arises from it such as the disruption an individual causes by making numerous complaints of discrimination, as was the case Re York Truck Equipment Limited

EAT/109/88

EAT unreported, then a victimisation claim will fail.

[240]We remind ourselves of the burden of proof provisions set out in the Equality Act

[241]Once the burden has passed to the Respondent, it is on them to show that a contravention did not occur. This is stage two of the s.136 EqA 2010 burden. ‘It is for the complainant to prove the facts from which… the Employment Tribunal could conclude, in the absence of an adequate explanation, that the Respondent committed an unlawful act of discrimination. It does not say that the facts to be proved are those from which the employment Tribunal could conclude that the complainant "could have committed" such act’ (Madarassy v Nomura International Plc

[2007] IRLR 246

, para. 55).

[242]There is no real difference between the parties as to the applicable legal principles in this case. Both parties have referred us to with the case law which sets out that in principle the manner in which a protected act is carried out may be separable from the protected act itself and both Counsel have provided us with various examples from case law which we have taken into account.

[243]We remind ourselves that Mr justice Underhill then president of the EAT set out his view that there were cases where the reason for the dismissal or any other detriment was not the protected act as such, but some feature of it which could properly be treated as separable such as the manner in which the protected act was carried out. He recognised that the distinction was subtle, but maintained that fine lines had to be drawn if the anti victimisation provisions, important as they are, are to be confined to their proper effect and not to become an instrument of oppression. Further and importantly, he trusted tribunals to distinguish between features that should and should not be treated as properly separable from protected acts.

[244]We remind ourselves therefore that the exercise of considering the reason why a respondent act as it did requires the tribunal to make findings of fact upon which it then bases its conclusions. In this respect we remind ourselves of the further observations of Lord justice Underhill In Page V NHS Trust Development Authority

2021 ICR 941

Court of Appeal.

[245]In that case the claimants actions in speaking publicly about his views on same sex marriage and same sex adoption, following a warning that he should not do so, were considered capable of having a negative impact on the confidence of staff, patients and the public, in him as a local NHS leader. In that case the trust was concerned at the impact of P’s conduct on LGBT people's willingness to engage with the trust's mental health services. The Employment Tribunal dismissed the claimant’s claims of victimisation, finding that the reason the authority had taken action was because he had given media interviews without prior notice on these matters. Those reasons had nothing to do with the protected act he was relying upon, which was a complaint he had made that he had been discriminated against. That decision was upheld by the EAT and the Court of Appeal. Lord justice Underhill recognised that the claimant statements about homosexuality and his treatment by the judicial authorities were made during the same interview but considered that they remained separate matters, which was separable from each other. There was no difficulty in finding that the authority was motivated by the one but not the other.

[246]We remind ourselves that not all cases will be so straightforward and have taken into account the Martin case in which the tribunal and the Employment Appeal Tribunal recognised that there were cases in which the manner of doing the protected act for example might be separable from the protected act itself.

[247]We have also considered the judgment of Gillingham Football Club Limited v McGammon EAT 0560/12.

[248]We accept the respondent’s submission that this is not factually the same, but nonetheless take note that the EAT upheld the findings of the employment tribunal, in part because the tribunal considered that the claimant had a number of reasons for making the assertions that he made. We observe that in that case the failure of the respondent to investigate the allegations, was part of the factual background which led the tribunal to conclude that it was the protected acts and not the behaviour which had led to his dismissal.

[249]In a case of discriminatory dismissal (or otherwise discrimination which results in loss of earnings), when looking at the amount of compensation that should be awarded, a tribunal should consider what would have occurred had there been no unlawful discrimination. If there is evidence that the individual’s work would have been terminated in any event, this must be factored into any compensation calculation (Chagger v Abbey National plc and another

[2010] IRLR 47

[250]We were assisted by the careful and concise submission’s on law from both counsel, and considered in addition the following cases and propositions referred to: Where mixed motives exist behind the detriment, the protected act need only be of ‘sufficient weight’ rather than the primary cause (Owen & Briggs v James

[1982] IRLR 502

; O'Donoghue v Redcar and Cleveland Borough Council

[2001] EWCA Civ 701

). The detriment will not be due to a protected act if the person who put the individual to the detriment did not know about the protected act (Essex County Council v Jarrett EAT 0045/15, and Deer v Walford and anor EAT 0283/10). Application of law to facts and conclusions

[251]We remind ourselves of two principles in particular at the outset of considering our fact finding and conclusions in this case.

[252]First we remind ourselves that the protection in the Equality Act 2010 granted to those who make allegations of discrimination or who otherwise do anything in connection with the Equality Act, are of fundamental importance because they ensure that workers and employees can raise genuine concerns about discrimination in the workplace without fear of retribution.

[253]We would observe that it is a rare organisation and indeed a rare individual which welcomes a complaint of any form of discrimination, either by an individual or by an organisation policy or procedure. Complaints of discrimination, if found proven can have profound implications for individuals and organisations both in the short term and in the longer term. However, subjecting an individual to detrimental treatment for having raised a complaint of discrimination is unlawful for good reason. Individuals must be able to raise concerns about potential discrimination even if that is uncomfortable or unwanted or seen to be difficult behaviour by organisations within which those matters are raised.

[254]The victimisation provisions themselves contain safeguards so that an individual who makes an allegation in bad faith is unlikely to have their claim upheld.

[255]Further it is for the claimant to prove on balance of probabilities that their treatment is caused by a protected disclosure, and a claimant who cannot demonstrate a causal link or at least a prima facie case of a detriment coupled with a protected act and a potential causal link, will not succeed in their claim.

[256]Where a claimant is able to prove a prima facie case and the burden of proof shifts to the respondent, the claimant will still not succeed, if the respondent is able to prove that the decision was nothing to do with the protected act.

[257]Second, as the higher courts have stated and as Counsel in this case have set out in their succinct and helpful submissions, in some cases the respondent will be able to prove that the reason for the detrimental treatment was not the protected act itself, but the manner in which the protected act was carried out, or some other reason which is separable from the protected act itself.

[258]In such cases the reason for detrimental treatment is properly separable from the protected act itself and the respondent will have proved therefore that no act of victimisation took place. We remind ourselves that where the respondent seeks to rely on an argument that their reason is separable from the protected act it is for the respondent to prove on balance of probabilities that such a reason existed, and that it was the reason and not just a part of the reason for the detrimental treatment.

[259]We observe that it would be possible for detrimental treatment to be significantly influenced by the doing of a protected act and influenced by the manner in which the protected act was carried out. Whether or not the Claimant had proved victimisation would depend therefore on whether or not the protected act was a significant influence on the decision.

[260]From the findings of fact that we have made as set out above we conclude that the claimant has proved a prima facie case of victimisation , because we could conclude from the facts we have found, and in the absence of any explanation from the respondent, that the reason for the detriment he has been subjected to in respect of termination at least, was the doing of a protected act . We remind ourselves that under the burden of proof provisions, the burden of proving that the detrimental treatment was nothing to do with protected act rests with the respondent. 261. we have found that that the decision to terminate the claimant’s assignment was made by Dr Rowlands because of the claimant’s behaviors, which he considered included making threats of discrimination. We conclude that the protected act done by the claimant was a significant influence on his decision to terminate the claimant’s assignment.

[262]We have considered whether or not there are findings of fact which indicate any other reason for terminating the claimant’s contract which might be separable so that we could conclude that the reason for termination was not the protected act itself but the manner in which the protected act was done. On our findings of fact and applying the legal principles set out above we find that it was not the manner in which the protected act was done but the fact of the protected act itself which call Dr Rowlands to terminate the contract.

[263]Whilst we found the respondents submissions on this point engaging and well-argued, we all agree that the facts that we have found point to a straightforward and obvious conclusion in this case. We are struck by how much work it was necessary for respondent counsel to do to, to explain and describe the route by which we could find the decision to be about something which could then be separable from the protected act itself. In contrast we find that on the respondent’s own evidence there is a straightforward and obvious conclusion to be drawn from our findings of fact, which is that it was the fact of doing a protected act at all that significantly influenced Dr Rowlands decision to dismiss.

[264]We conclude that on the facts of this case the protected act and the manner of doing the protected act were effectively one and the same thing. We therefore find the claimant has proved that allegation of victimisation.

[265]In respect of the allegation that the respondent failed to provide a reason for the termination of the assignment, we find that the respondent did attempt to explain why the assignment was being terminated during the course of the meeting Dr Rowlands had with the claimant. We find that he attempted to explain as far as he was able his concerns about the claimants e-mail and his view that the claimants behaviour was in breach of trust values. In this respect the respondent did provide a reason for the termination.

[266]However we have also found that the trust did not respond to the claimants subsequent request for a written explanation of his termination. From our findings as set out above we conclude that the real reason why no reasons were given was that the respondent did not consider it would be helpful to do so. Dr Rowlands had taken advice immediately after the meeting and he considered and human resources agreed that it was not necessary for him to write to the claimant to explain the reasons for the termination of the assignment.

[267]The claimant has not proved facts from which we conclude in the absence of an explanation that the reason why he was not provided with written reasons was that he had done a protected act and we conclude that it was not. We therefore dismiss this allegation.

[268]In respect of the allegation that the claimant was paid one weeks’ notice rather than two weeks’ notice as an act of victimisation, we conclude that the real reason why he was paid one weeks’ notice was because the respondent officers dealing with the matter all believed that that was the usual notice period, and had no basis on which to consider that the claimant should be paid anything different.

[269]We have taken into account the information provided to the claimant at the outset of his assignment which he duly sent to the respondent, and we have also taken into account the fact that the respondent did not appear to have contractual documents in place in respect of the claimant.

[270]Those factors may well be relevant were the claimant making a contractual claim but do not assist us in determining whether or not the protected act itself was a significant influence on the decision not to pay him an additional weeks’ notice.

[271]We conclude from our findings that the claimant has not proved a causal link and we conclude that the protected act was not a significant influence on the decision in respect of notice pay. We therefore dismiss this allegation of victimisation.

[272]In respect of the failure to investigate the grievance and the delay in responding to the claimants grievance, we have made findings of fact about the process and we conclude that the reasons for not investigating and the delay in responding where nothing to do with the protected act relied upon by the claimant and we therefore dismiss these allegations.

[273]Since we have found that the claimant was subject to victimisation by having his locum assignment terminated by the respondent there will now need to be a remedies hearing. Employment Judge Rayner Dated: 10 April 2025 28 April 2025 By Mr J McCormick For the Tribunal Note: Reasons for the decision having been given orally at the hearing, written reasons will not be provided unless a written request is received from either party within 14 days of the sending of this record of the decision.

The hearing

[1]The Tribunal found that Dr A Chind had been victimised by the Respondent, by the termination of his locum engagement as an occupational health physician. His engagement was for 4 days a week.

[2]The hearing of evidence and submissions took place in person on the 13 and 14 and 15 August 2025. Judgment was reserved at the end of the evidence on the second day of hearing. The Judge and members sat in chambers on the third day of hearing.

[3]The Claimant provided a schedule of loss and the Respondent a counter schedule. There was an agreed bundle for remedy of 492 pages, which was added to during the course of the hearing by the Claimant disclosing some further pay slips and job search documents.

[4]The Tribunal was referred to various documents in the liability bundle

[5]We heard evidence , and had witness statements from the Claimant on his own behalf, and heard evidence and received witness statements from the following members of the Respondent staff, who had the following roles: 5.1. Caroline Mann, a medical HR specialist, whose role is to check that the salaries offered upon recruitment are correct, based on an individual’s experience; 5.2. Dr Harsimran Singh, a consultant anaesthetist, who was also the coordinator for the CESR support programme across the trust and the Isle of Wight NHS trust. 5.3. Natalie Hogg, a business manager to the Health and Safety wellbeing service. She is the business operational lead with overall non-clinical responsibility for the administrative function of occupational health service. The Liability Judgment and issues for determination.

[6]At the end of the liability hearing and at the start of this hearing the tribunal discussed the questions necessary to determine remedy with the parties.

[7]It is agreed that in order to determine remedy we will need to determine some or all of the following matters: 7.1. What pay point the Respondent was likely to have placed the Claimant on, when offering for him a move to NHS terms and conditions, which was mandatory before being interviewed for the certificate of eligibility for specialist registration CESR support programme? 7.2. what is the likelihood that the Claimant would have accepted that pay point and agreed to move to NHS terms and conditions? 7.3. what is the likelihood that the Claimant would have been successful in progressing from shortlisting through interview to getting onto the CESR support programme? 7.4. if the Claimant had not gained a place on the CESR support programme, how quickly would the Respondent have terminated his agency locum appointment? 7.5. Has the Claimant mitigated an y proven losses, specifically, 7.5.1. could he have completed his portfolio and applied to CESR via another Avenue; 7.5.2. if so when should this reasonably have been: 7.5.3. notwithstanding applying for CESR, has the Claimant reasonably mitigated his loss by applying for other roles.

[8]The Respondent suggests that there are two additional matters that need to be determined and these are as follows 8.1. Would the Claimant had gone on to earn the same as he would at the Respondent and if so when? 8.2. Could the Claimant have pursued his CESR application without being employed by the Respondent or on its CESR support programme.

[9]The tribunal must also consider whether or not the losses claimed by the Respondent have been proven.

[10]Lastly, the tribunal must consider whether or not this is a case where an injury to feeling award should be made and, if so, what the correct level for any such award is.

[11]The tribunal must then consider interest issues of accelerated relief, pension loss and any other losses.

[12]The Tribunal determined that the Claimant had been victimised, when his locum appointment was terminated. This was the act of discrimination which we are considering remedy in respect of.

[13]The Tribunal made a number of findings relevant to this hearing. We reminded ourselves of them. The relevant findings, with the paragraph number from the liability judgement were as follows:

[19]However, we also find that continuing with an expensive locum would have been undesirable to this NHS in the longer term, simply because of cost, and we find that by the time Dr Rowlands decided to dismiss the Claimant, AD had reassured him of alternative provision being available by a different route.

[28]We are told by both parties and we find as fact that it was a requirement of acceptance onto the CESR programme that the staff member was engaged on NHS terms and conditions of employment. At the point that he applied, Dr. Chind was not engaged on standard NHS terms and conditions but was engaged through a locum contract. 47. Going back to the Claimant’s applicant for the CESR scheme, following some further clarification from Sally Ann Reed on 12 December 2022, about what would be required, the Claimant had discussions with Mr Singh about the possibility of joining the two years CESR programme with the trust. He said he would be grateful to have the trust sponsor the CESR process and that I am willing to fulfil the requirements & the contract pertaining to the process. He said he proposed have competency signed off by Mark Glover and any other assigned trainer and was preparing a portfolio of credentials. 57. On 9 January Juliet Stern contacted Andrea Downham stating that they had received an application from the Claimant for the CESR scheme, sponsored by Dr Glover and Dr Rowlands . It says this might explain the reason that he has been trying to secure a permanent role within occupational health with you. 58. She said we are all too well aware of the difficulties of getting a substantive consultant, but he is agency. He has to be fixed or substantive to get onto the scheme and has only been in this trust four months, which will make him ineligible as we would ordinarily require one year's service with the trust as a prerequisite. We would need to look at the other candidates to see how he compares, because it would be unfair to consider him, when others, who may only have worked in the trust for this period of time, may not replied on that basis. Not sure if you are aware and whether you support this, as I can see that you have not been copied into any of his communications. happy to have a further chat. 59. In a response from BW, to Mrs Downham, the writer says it will be imperative to have a discussion with him that he would have to be employed by the trust and he should be ready for a big pay cut and a saving for the trust as it will need a lot of effort from us to consider his application. 63. Miss Downham stated she was aware of the application and that they would need him to be on a trust local contract, which would have a financial impact for him and a positive impact for them and noted that she needed to discuss it with him. She stated the advantage would be that they would have a stable occupational health physician input for two years. She queried how much was needed and it was decided that there would be a meeting to consider the finances and whether a full-time occupational health was required and also to consider a job plan for the Claimant if he was successful. 64. On 20 January 2023 Juliet Stern wrote to Andrea Downham stating they had had a moderating meeting, that the Claimant had been discussed, that they were aware he was there on a four month basis and that there was a high possibility that he would be shortlisted for the CESR programme. 67. She [ Miss Downham] went on to say that the panel were not prepared to interview him, if he doesn't give us a verbal undertaking beforehand that he would be prepared to join on an NHS contract on NHS pay rates. She suggested that when Miss Downham had her discussion with him, that she directly asked him this question. Miss Stern pointed out that it would definitely lead to a reduction in pay, but if he achieved his CESR and joined the trust in substantive capacity, he would be paid NHS rates. She asked that the discussion took place soon. 68. Miss Downham did discuss the matter with the Claimant but not until the 23 January 2023. She says that she spoke to the Claimant and was clear that the CESR programme was not open to agency workers and that therefore to progress onto the CESR programme, he needed to be on a trust contract. She says he wanted to know what he would be paid, and she was only able to discuss a pay range. 69. This was because the medical staffing team needed to assess how much experience he had, in order to assign a pay point. 78. . [ms downham] provided pay details and said that the shortlisting team would need confirmation that he accepted the conditions of the learning agreement before he could be considered for interview. 79. From the correspondence we have seen, we understand that there was some time pressure in respect of this information, because the intention was to interview candidates following invitations being sent out within the next few days. 80. We find that by the 23 January 2023 the Respondent had not been able to give the Claimant any clear indication about where on the pay scale he might sit. We find the reason for that was that they required some more information from him. 81. We also find that there was no real clarity about whether or not he could expect a minimum salary in the region of £88,000 per annum and a maximum salary of £120,000 per annum. We find that he had expressed concerns about a reduction in his salary to the Respondents and that they were aware that the move from a locum salary to an NHS salary would be a significant reduction in pay. 84. His e-mail states as follows Dear Juliet and Andrea. Andrea, thank you very much for sending this information over. I remain keen to pursue the CESR process and would deem it an honour to continue to serve here. As discussed with Andrea yesterday I shall need clarity on the pay that I'm being offered. If it needs any reminding I am more highly verifiably credentialed in all areas of occupational health practise than any other occupational physician in the UK or beyond. Please feel free to ask around if anyone can hope to approach my credentials. It would therefore be unjust to offer me a pay point without a clinical excellent award or other uplift. I wish to draw your attention to the fact that as a public sector employer our trust has a public sector equality duty. Since the award of Clinical Excellence awards and offers of only midpoint pay scales disproportionately places overseas qualified Drs at a disadvantage and this is common knowledge, I wish to appeal against any efforts to place me at a financial disadvantage while I pursue the CESR process. If our trust were to apply a provision criterion or practise that effectively puts me at a financial disadvantage, any such action would therefore contravene your public sector equality duty. Juliet please can we discuss this matter in person so that we can have clarity yours Arun. What would have happened had the Claimant’s locum not been terminated? 85. We have found that the Claimant as a locum was expensive to the NHS Trust and that this was a matter of concern to them. We have found that Andrea Downham had already made inquiries about the Claimants notice period and the availability of other ways of providing the service. 86. We find that in particular she had spoken to Dr Rowlands and confirmed that the trust would be able to source other provision were the services of Dr chimed no longer required. 87. We find therefore that whilst it is unlikely that the trust would have terminated his locum in January 2023 absent the e-mail, that there is a strong possibility that they would have terminated his locum assignment within a reasonably short period of time thereafter. We have heard no specific evidence from the Respondent about this and therefore we make no findings of fact about how long the Claimant might have remained on a locum contract and this will be a matter for consideration at a subsequent The Schedules of loss and Counter schedules for liability.14. The Claimant provided a schedule of loss in which he claimed £850,000.00, on the basis of the loss of a chance to pursue a CESR course, which he said would have led to him being placed on the specialist register in his discipline, meaning that he would be able to work as a consultant in the NHS and elsewhere, and be paid accordingly. He claimed that as a result of the Respondent’s discrimination , he had suffered career long losses.

15. The Respondent provided a counter schedule. They say that the Claimant’s losses are not career long, but are limited to the end of the 2 year CESR programme, and subject to the chance that 15.1. Dr Chind would have accepted a salary and an NHS contract, 15.2. that he would have been offered place on the CESR programme , 15.3. that he would have accepted the place and completed the course, and 15.4. that he would then have succeeded in being placed on the specialist register. They submit that there is a percentage chance of each of those steps being successful, which must be taken into account.

16. The Respondent submits that the Claimant has suffered no financial loss in any event, because of his declared earnings during those times, and that the period of loss ends when the Claimant decided to take up full time education and study for an LLM in September 2024.

17. It is for the Claimant to prove any losses he claims, and must take reasonable steps to mitigate those losses. Findings of fact

18. The first question that we have considered is what level of pay the Claimant would have been offered in February 2023 by the Respondent.

19. We remind ourselves that this is not a question of what the correct level of pay would have been for the Claimant, but what the Respondent, acting reasonably, would have considered the correct level of pay for the Claimant, on the basis of what they knew about his career and his qualifications and skills in January 2023.

20. We remind ourselves that from our findings of fact for liability, the Claimant had not provided the Respondent with a great deal of information and that there was some time pressure.

21. We heard evidence from Caroline Mann, who had been asked to assess the pay scale and pay point that the trust would have offered Dr Chind, in order for him to be considered for the CESR support programme to start on 1 April 2023.

22. To do this she reviewed the information that was available to the trust, including his completed form B self-assessment nomination form for CESR; his former employment history and experience form and his speciality reference for the CESR programme. All of these documents were before the tribunal at the liability hearing.

23. We accept that she also felt the need for some further information, as there was insufficient detail provided and she therefore requested that Dr Chind provide specific dates of employment and the name of the employer or providing consultancy and, for any gaps in service, job titles and level of work undertaken for example.

24. We find that he had been asked to provide further information of this type whilst he remained engaged at the Respondents, as part of the consideration of the level of NHS salary that he might be offered.

25. The Claimant did provide further information and we have been referred to it.

26. The Claimant had passed his diploma in occupational medicine, which qualified him to work independently in the occupational health industry in 2013, whilst working at the Addenbrooks hospital as a registrar.

27. The Claimant referred to subsequent work as an occupational health physician, reporting to a chief medical officer; work as an occupational health physician reporting to a managing director and business owner, as an occupational health physician reporting to a medical director and as an occupational health physician reporting to himself, through his own consultancy. He stated that each of these positions had been at the level of a consultant occupational physician. He had worked for both NHS and private providers. 28. Mrs Mann considered the information she had and determined first, whether or not Dr Chind would have been placed on a consultant pay scale or a specialist pay scale. Next, she had to decide what the relevant starting point would be.

Findings of fact

[29]As Dr Chind was not on the specialist register (this was the reason he wanted to be accepted onto the CESR course), he would not automatically have been placed on the consultant pay scale.

[30]We understood from Mrs Mann that determination of the correct rate of pay for Dr’s is not an exact science. We find that Mrs Mann assessed the information she had about Dr Chind honestly and to the best of her ability, given the knowledge that she had about NHS pay scales and her understanding of the work that the Claimant had done. She frankly accepted that she did not have great experience that would help her understand the level of work he had done in the private sector. She also accepted that Dr Chind’s history of employment was extremely unusual, because of the variety of work he had done, both in the public and private sector.

[31]This would have been true whether she was carrying out the exercise whilst he remained on his locum contract in February 2023, or when she carried out the exercise for the purposes of these proceedings.

[32]We accept that she tried to establish whether or not his experience in the private sector had been at the level of an NHS consultant. She took into account information from the faculty of occupational medicine. She looked at the supplemental information provided by Dr Chind, but considered that it was not specific enough.

[33]In particular she thought that the Claimants experience had a number of gaps, and that he did not demonstrate some of the requirements for payment of a consultant level salary. Examples were an ability to demonstrated that they had been working as part of a multidisciplinary team and participating in leading a service within the trust, to provide clinical leadership; to contribute to the overall service development, strategic direction, management training, budget planning, audit and quality insurance. She could not identify these aspects of work from Dr Chind’s CV or the other information she had available.

[34]We accept that she was satisfied that his clinical work may well have been at a consultant level, but she did not consider that he was working as a consultant in those roles because the other facets and aspects of a consultant's role appeared to her to be missing.

[35]We reject the suggestion that Mrs Mann was attempting to downplay or minimise any of the Claimant’s experiences in order to put him on the lowest possible pay rate, thereby saving the Respondent money in these proceedings.

[36]We find that Mrs Mann acted with scrupulous integrity and worked to the very best of her ability to determine the likely pay level that the Respondent would have been offered in February 2023, had they been provided with the information then that she then had in front of her.

[37]She concluded that the Claimant should be placed at the top of the specialist pay level, which would have put him, in April 2023 when the CESR support programme started on a salary of £95,275.00.

[38]Mrs Mann also took steps to independently verify her decision. She asked Liz Brown, another professional, who was the medical HR operations manager at University Hospital Southampton NHS foundation trust, (UHS), to give a view on Mrs Mann’s assessment of the appropriate pay level. We accept Mrs Mann's evidence that Ms Brown agreed with Mrs Mann, that they would either have paid on the specialist scale or at the bottom of the consultant pay scale.

[39]The bottom of the consultant pay scale in April 2023 was £93,666.00. Mrs Mann considered Dr Chind should be on the higher level, of the top of the specialist pay rate.

[40]We find that this is the rate of pay that the Claimant would have been offered had the exercise being carried out in or about February 2023. This fits with the advice being given at the time of the range within which the pay should fall. (See findings of fact from the liability hearing set out above).

[41]Dr Chind himself asserts that he should have received a significantly higher rate of pay. He refers to an e-mail sent on the 24 January 2023 which the tribunal referred to in paragraph 77 of the judgement, setting out a pay range between £88,364.00 and £119,133.00.

[42]Having taken this into account and having heard the Claimant's evidence about the reasons why he says he should have been at a higher pay scale, we nonetheless conclude that Mrs Mann and the Respondent would not have considered offering the Claimant a higher salary than the one identified by Mrs Mann for the purposes of this hearing.

[43]What we do find is that the Claimant would have been dissatisfied with an offer of a salary at this level and we find it highly likely, given the e-mail he had sent to the Respondent whilst in the process of negotiating over pay, that he would have initially rejected the pay offered and would have argued forcefully for an increase, both in terms of the scale on which he should be placed and the point on the scale at which he should be placed.

[44]The Claimant asserts that he would have been prepared to accept a salary of £88,364 if he had to and suggests that he said this in his meeting with Dr Rowlands on the 26th January 2023 . We have therefore reviewed our findings of fact.

[45]We found that no contemporaneous notes of that meeting were taken either by the Claimant or Dr Rowlands. Whilst Dr Rowlands was asked to provide some details and whilst he did subsequently provide some, there was no reference to any discussion about the rate of pay the Claimant might have been prepared to accept within any of the notes, or any of the correspondence.

[46]We did not determine at the time whether or not the Claimant had made a comment about the level of pay he would be prepared to accept, but we did make findings of fact about what the Claimant had said in his e-mail, and what his expectations were in respect of pay. It was his suggestion at the time, that it would be unjust to offer him a pay point without a Clinical Excellence award or other uplift, and that clinical excellence awards and offers of only midpoint pay scales, disproportionately placed overseas qualified Drs at a disadvantage and that he wished to appeal against efforts to place him at a financial disadvantage whilst he pursued the CESR process.

[47]He made the suggestion that this would contravene the Equality Act, that lead to his dismissal, which the tribunal found to be an act of victimisation.

[48]We all agree that at the time, far from saying that he would be prepared to accept a salary of £88,364.00 as he now asserts, he was asserting in the strongest terms that he would not accept a low salary and that he considered an offer of any salary that financially disadvantaged him, to be potentially unlawful potentially discriminatory.

[49]We recognise that people will bargain hard when in the process of negotiating over pay, and we are satisfied that at least part of Dr. Chind’s stance was a negotiating tactic, but we also conclude that the reality is that he would have been unhappy with the salary offered by the Respondent and that he would have sought a higher salary and was likely to have argued forcefully and at length for it.

[50]This does not impact on our conclusion about the level of salary that he would have been offered, but it does impact on the next finding we must make, which is whether or not the Claimant would have accepted the NHS terms and conditions offered to him. This was necessary before he could be accepted as a candidate for the CESR programme.

[51]It is submitted for Dr Chind but that he would have been offered a higher salary and that he would have accepted it. It is also submitted that he would have accepted the lowest salary.

[52]We all agree that the opportunity to access the CESR programme and therefore hopefully gain access to the specialist register , so that he could apply for a consultant role in the NHS or in the private sector, was a matter of some importance the Claimant at the particular point he was at in his career.

[53]Whilst we do you find on the evidence we have that the Claimant had not taken steps previously to try to obtain access to the Caesar programme in other work he was doing, we accept his evidence that it was harder to obtain access to the Caesar programme when working in private companies and that it was harder for him to obtain work at the requisite level and pay level that he required within the NHS. We find that he had made career decisions in the past meaning that he had not prioritised access to the CESR programme, and that some of those decisions were because of the lower salary level he would have had to take, to be eligible.

[54]We find that once he was working with an NHS Trust where there was a possibility of gaining a place on the programme, he very much wanted to pursue it, but only if he could negotiate a satisfactory level of salary. We accept that it would have had significant benefits for him in the future, both in terms of status and in terms of the sort of work he could do at the level of pay he could expect.

[55]We conclude that whilst there was a strong probability that following negotiations, the Claimant would have accepted a potential significant pay cut, because of the attraction of the possibility of a place on the CESR programme, it was by no means certain that he would, or that he would do so within the tight time frame being operated by the Respondent.

[56]We have therefore considered whether it is appropriate for us to make a finding that he would have accepted the salary offered or whether it is more appropriate for us to assess the chance of him accepting the salary as a percentage.

[57]We all agree that in this case the Claimant’s negotiating stance and his genuine desire not to suffer a significant reduction in salary, meant that there was a real chance that the Claimant would not have accepted the NHS terms and conditions on offer, despite the value of the CESR, and would not therefore have been eligible to be interviewed for the CESR programme. We assess that chance as 30% chance that he would not have accepted the salary and a 70% chance that he would have done.

[58]If the Claimant had not accepted the salary on offer, we find that he would have remained on his locum contract, absent discrimination for some further weeks, whilst negotiations took place.

[59]We find that the Respondent was in the process of considering alternative mechanisms for the provision of occupational health services and find that in the event of the Claimant not accepting the NHS salary and offer and therefore not being placed on the CESR programme, the Respondent would have cancelled the Claimant’s contract and contracted instead to use occupational health services through the AQP programme.

[60]We find that for the trust, the cost of the Claimant's continuing locumship was unsustainable, because of high agency costs and that it could have been terminated with a week’s notice.

[61]We find that if an offer had been made sometime in February 2023 it is likely that there would have been some negotiation for a number of weeks, but that the likelihood is that the locum ship would have been terminated by the 1st of April 2023 at the latest .

[62]The alternative position that we must consider is what would have happened if Dr Chind had accepted the salary and NHS terms and conditions on offer.

[63]We have taken into account the evidence given by Dr Singh, who was the coordinator for the CESR programme at the time.

[64]Dr Singh had been asked to conduct a paper exercise, considering how the Claimant would have been scored at short listing and whether he would therefore have been put forward for an interview. He considered what his prospects of succeeding in gaining a place on the CESR programme would have been, if he had been shortlisted for interview.

[65]It was suggested to Dr Singh that he had conducted the exercise with a view to down grading the Claimant’s chances at each stage, in an attempt to minimise any damages that might be payable to the Claimant as a result of these proceedings.

[66]Dr Singh did not accept that proposition , and we find as fact that he conducted the exercise with integrity and fairness and to the best of his ability, in a genuine attempt to consider what might have happened had he and his fellow panel members being presented with an application from the Claimant for a place on the CESR programme.

[67]The Claimant criticises the approach of Dr Singh and suggests that some of the conclusions he reached about the Claimant’s experience and abilities were incorrect.

[68]We find that Dr Singh had valid and supportable reasons for considering that there were some queries about the Claimant's past practise. In particular that there would have been concerns going into interview about how the Claimant intended to satisfy certain of the key requirements.

[69]A particular area of concern was the requirement for an applicant to be able to demonstrate either that they already had carried out some of the workplace assessments, or that they will be able to do so over the course of the two years.

[70]Dr Singh refers, at paragraph 18 of his witness statement, to the speciality specific guidance for the occupational health CES our portfolio pathway which sets out the requirements for WpBAS, Workplace based assessments.

[71]From the guidance we find that these were necessary to demonstrate specific learning outcomes in particular professional values and behaviours the demonstration of professional skills and knowledge in communication professional skills and knowledge in respect of clinical practise health promotion and illness prevention leadership and team working and safeguarding each of these learning outcomes was detailed as to what would be required.

[72]Dr Singh notes, and we find as fact that overall, at least 50 workplace WpBAS were required from the candidate. From the evince Dr Sinh had, which was that submitted by the Claimant, he was unable to identify any that had been completed.

[73]We have understood that there were a number of types of assessment which candidates were expected to complete, to assess their work. These included audits; face to face feedback; workplace visits and reports to management amongst other things. We accept that it was Dr Singh’s honest and reasonable opinion that the Claimant could not demonstrate any such assessments at the point of application.

[74]The Claimant’s evidence is that he was carrying out work at consultant level and that he had in fact done much work over the course of his career which would satisfy the various requirements, and which simply required sign off.

[75]We find that whilst the Claimant undoubtedly has extensive experience and expertise in many of the areas which he would be required to demonstrate both for access to the programme and in order to complete the programme, that there were gaps and those gaps arose because he had not been working with a supervisor, and therefore he did not have a portfolio of signed off workplace assessments at the point of application.

[76]We find that in respect of a number of the specific learning outcomes, such as leadership and team working, the Claimant would have difficulty in demonstrating his ability to lead across the occupational workplace and across multi professional teams.

[77]We find there is a difference between the Claimant asserting that he has obtained these skills and being able to provide a workplace based assessment, which is the opinion and confirmation from another practitioner that the Claimant has the skills and has demonstrated them in the workplace.

[78]We find that he would have difficulty demonstrating leadership skills, including negotiating; delegating critical decision making and service development, not because he was not experienced, but because he could not point to anybody who had observed and could therefore confirm that he had demonstrated these skills.

[79]We reject his assertion that he had evidence of having done work which could simply be signed off, preferring the Respondents evidence, that what was required for many of the elements that Dr Singh considered to be missing, was specific and contemporaneous feedback either from colleagues or from senior individuals or for observation in the workplace with feedback and the opportunity for learning. This required more than a signing off retrospectively of work the Claimant asserted he had undertaken.

[80]It was not being suggested by Dr Singh that the Claimant would not be able to complete the various requirements of the programme in the future, what he was saying was that this could have had an impact on the likelihood of him obtaining a place at interview, because of the way the questions were weighted, and further that it could have had an impact on how long it took him to complete the course.

[81]Dr Singh was concerned that there may be some issue about supervision of the Claimant because Dr Glover, who was supporting the Claimant, was at that point retired, and working as a member of the bank and providing about one day a week to the Respondent.

[82]We find that the likelihood was that Dr Glover would be allocated about an hour a week to supervise the Claimant where he admitted to the programme and that in the event of Dr Glover not being prepared to continue for the full 2 years that the trust would have worked with the Claimant to find alternative supervision. Concerns about supervision do not impact upon our assessment of the chance of the Claimant being admitted or of our next consideration, which is the consideration of whether or not the Claimant would have completed and become a consultant.

[83]However we do accept Dr Singh’s evidence that there were, on the face of the information he had in front of him, a number of gaps in the Claimant’s experience to date, that would need to be addressed at interview.

[84]We accept Dr Singh’s evidence and the evidence of the Respondent generally that the fact that the Claimant was in a hard to recruit speciality was not a primary driver for selection to the programme, and that selection was based on suitability without regard to the particular specialism they were working in.

[85]Despite his concerns, Dr Singh considered that the Claimant was likely to have been shortlisted for interview and we agree. He was a strong candidate and had he accepted the NHS salary offer, we find he would have been offered an interview for the CESR programme.

[86]We find that there was a high probability that the Claimant would be accepted onto the CESR programme following interview, but we find that the field would have been a strong one and that the Claimant’s chances, if there were 16 individuals, and only 10 places, was the same as any other candidate at that point.

[87]The Claimant says he was a highly qualified occupational health physician and we do not dispute that, but we accept Dr Singh’s evidence that, at the point of interview, all those being put forward for the programme would have been highly qualified, highly motivated and many of them may have had much better evidence already in place as a result of having worked in the NHS for a number of years.

[88]The chance of the Claimant succeeding was therefore a 68.7% chance. Dr Singh considered that the Claimant had a slightly better chance than others, and put his chances of succeeding at 70%. We accept his assessment and his evidence and find the Claimant had a 70% chance of being offered a place on the CESR programme.

[89]We find that had he been offered the place he would have accepted it and we find that he would have been highly motivated to succeed.

[90]We find that with support, which we find it more than likely he would have obtained, he would have completed the programme with the necessary portfolio to be submitted to the GMC and the faculty of occupational medicine.

[91]We find therefore that at the end of two years by April 2025, had the Claimant not had his locum terminated, all that stood between him and access to the special register was the approval of the GMC and the faculty of occupational medicine.

[92]We accept the Respondent’s submissions that they had no input or influence over this decision at all. It was a decision for the GMC.

[93]We have no evidence about how such a decision would be made, but we do have some statistical evidence provided by the Respondent of the rates of success in 2023 and 2024 broken down by four quarters. (pages 318-321)

[94]The Respondent refers us to a particular quarter of 2023, in which none of the applicants from the field of occupational health medicine succeeded in getting onto the specialist register. The Claimant refers us to two quarters in 2024 in which 100% of those applying in occupational medicine were accepted onto the register.

[95]We have looked both at occupational health, in which there were between 1 and 4 applicants each quarter, with varying success rates and we have also looked at other areas of practise. We observe that some areas of practise appeared to have had a much higher success rate than others in these two years but that overall, there is a wide range from 0% success rate to 100% success rate, with most quarters seeming to have a success rate of between 50% and 100% success.

[96]We all agree that we cannot predict what the chances of the Claimant succeeding would have been from looking at these statistics. All we can say is that completion of the course of itself is no guarantee of acceptance onto the specialist register and that there is evidence that a significant number of people who complete the course nonetheless fail to obtain registration.

[97]We have therefore considered what the Claimant’s chances of being accepted onto the specialist register would have been at the end of the period on the basis of the evidence we have before us.

[98]Taking all the evidence we have of the Claimant’s experience to date, we have no doubt that had he been entered onto the CESR programme that he would have had a good chance at the end of it of being admitted onto the speciality register. We cannot say that it was a certainty, because there may have been any number of factors which would impact upon completion, but we think he must have had a very good chance of succeeding and we put that at 90%.

[99]We have considered that had he remained with the Respondent and had he succeeded at the end of the season course in being admitted to the register that it is highly likely that he would then have achieved a consultant role with the Respondent.

[100]Firstly we find the Respondent would have retained and benefited from his services over a two year.

[101]Secondly we remind ourselves of the evidence we are provided with at the liability hearing from those who worked directly with Dr Chind. It was overwhelmingly positive.

[102]Whilst there is no doubt that Dr Chind has a very high opinion of his own abilities, and whilst this may come across as arrogant, and whilst we acknowledge, as we did at the liability hearing, that the Claimant’s stance in negotiating may not have been the most advisable, no one has ever suggested other than that he is a very effective occupational health physician. He was capable of getting on extremely well with his colleagues and inspiring confidence in those he treats.

[103]The Respondent evidence is that they kept open the vacancy for a consultant occupational health specialist at the trust, for a period of two years even though they were using alternative services through AQP.

[104]We find as fact that the Respondent would have had that vacancy available and that Dr Chind would have been a strong candidate. In the event that any other candidate came along the Claimant would nonetheless have been likely to remain with the Respondent because of the financial penalties which would apply if he as a post CESR candidate chose to leave the trust within 12 months. Mitigation of loss.

[105]We remind ourselves that whilst the Claimant must act reasonably to mitigate his loss, the Respondent bears the burden of proving that the Claimant has not done so. A Respondent will be expected to lead some evidence in this respect.

[106]In this case we have considered the steps the Claimant has taken to mitigate his loss of income, from the point of termination of his locum ship until the date of the liability hearing and then from the date of the liability hearing and continuing.

[107]We find that the Claimant obtained work with the NHS

[108]We remind ourselves that we must consider whether or not the Claimant has acted reasonably in mitigating his loss.

[109]The Claimant referred to work he had done which post dated termination of his contract with the Respondent. There were two sources of work. One was as a locum consultant in occupational health at the Hillingdon hospital NHS Trust from May 2023 until November 2024. In that role he said he had worked 7 1/2 hours a week.

[110]Secondly he referred to having worked as a consultant occupational physician through his own private company, Proshen Health and Risk Consulting Limited. The Claimant and his wife are directors of this company.

[111]The Claimant would contract for work through his company, which would receive the fee for his work, and he then paid himself an hourly rate.

[112]The Claimant, who has been represented throughout, was required to provide disclosure of all relevant documentation in respect of remedy. He has been required to provide evidence of steps taken to mitigate his loss.

[113]The tribunal would have expected him to have disclosed the fee being paid to Proshen for any work he did through for the company, and has not just the hourly rate which he decided to pay himself. He has failed to do this.

[114]Instead , in respect of a significant part of the work he did though his company, during the relevant period he provided evidence of the hourly rate of pay which he decided on, which varies between £10 an hour and about £14.40 an hour.

[115]He did provide pay slips during the course of the hearing, but told the tribunal he was not required to provide any further information.

[116]He suggested that he used the money in the company to tide him over in times when he had less work. He did not provide any evidence of the actual amounts that he and his company received for the work which he did by his private company. As an industrial tribunal, we all agree that it is highly probable, given his level of earnings in other jobs and his expectations in respect of earnings, that it was significantly higher than the £10 an hour he has declared. We come back to this later in our judgment.

[118]Going back to the question of mitigation of loss, we are satisfied that the Claimant made some efforts to obtain work with the NHS but that he focused on work with his own company.

[119]The Respondent has produced evidence of numerous opportunities for work within the NHS. When questioned about the availability of such work the Claimant's evidence to the tribunal was that he had applied for work which he was eligible to do but that he faced difficulties simply because he did not have a consultancy.

[120]The Respondent position is that in order to mitigate his loss in respect of the lost chance on the CESR programme, it is not enough that the Claimant found other work to mitigate the loss of earnings, but that he also needed to take steps to secure access onto the CESR programme with another employer.

[121]We agree. The Claimant is claiming loss of a chance, and we find that there were other ways that he could have accessed the CESR programme, both through working with the NHS and through private work.

[122]We find that the easiest way for somebody to gain access to the CESR programme is by working with an NHS trust. We accept that it is possible to do so whilst working for other organisations but find that it is harder.

[123]The Claimant asserts that he should be compensated for the loss of the opportunity to complete the CESR course and thereby obtain a consultancy post . He bases his future loss of income upon the premise that he would have become a consultant worked with the NHS for the requisite number of years.

[124]The Claimant is critical of the documentation produced by the Respondent and suggests that many of the posts were not suitable for him. He maintains that he did apply for jobs which was suitable and that he did not simply give up trying to obtain access to the CESR programme.

[125]We conclude from the evidence that there were other alternative jobs which the Claimant arguably could have applied for, but we make no findings that the Claimant has failed to take steps to mitigate his loss by not applying for those specific posts. Whilst we find the Claimant has shown himself willing to travel in the past, we find that he took steps to mitigate his loss by finding employment in other places, all be it that that did not give him the opportunity to apply for the CSR programme. We accept the Claimant’s evidence that the opportunities available to him when working for the Respondent were particular and unique and not the sorts of opportunities that were necessarily going to be available to him with other employers.

[126]Having made findings as to the situation the Claimant might have expected to be in absent discrimination and having considered the steps he has taken to mitigate his loss we then turned to consider whether or not he has in proved to the tribunal that he has suffered any loss.

[127]We remind ourselves that it is for the Claimant to prove his loss and in this case there is a significant difficulty for the tribunal. That difficulty arises from the failure of the Claimant to disclose the true level of income received by him via his company pro Shen for the work which he was doing.

[128]The employment tribunal sits as an industrial tribunal and the judge and panel members have much combined experience of the various ways in which work is contracted to individuals and companies whether by the NHS or other organisations. It is not unusual for an individual to use a company vehicle of which they are a director to attract work. The use of such a company can be advantageous in a number of ways.

[129]Having heard evidence about the Claimant’s company, we find that the company, of which the Claimant was one of two director, received payment for the work which the Claimant did, and for no other work, and that it was the amount paid to the company, which represented the true income available to the Claimant for that work.

[130]When questioned , the Claimant suggested that he had other expenses, but he has given no evidence to the tribunal as to what those expenses were, the level of them and how often they were incurred.

[131]What he has said, is that he paid himself a wage and that the rest of the money was kept within the company and that he could draw on it at points of his own choosing. We do not criticise him for operating his business in that way, but by failing to account for this additional income in his schedule of loss, he had not presented a true picture of his income to the ET.

[132]The evidence we had before us of the Claimant’s earnings when he worked for the Respondent, was of significantly more than the £14.42 an hour which he has declared during 2024 for the purposes of tax

[133]For the year end 6 April 2023 to 5 April 2024 the Claimant provided a simple assessment tax calculation. For that year he declared income from Proshen services limited of £12,437. 30 . He declared income from the Hillington Hospital Trust of £20,874.07. He declared income from the United Lincolnshire hospitals NHS Trust of £55,068.65 and income from the Queen Elizabeth Hospital NHS Kings Lynn Foundation Trust of £5280.00.

[134]His total income was declared as being £93,725.02 and he paid income tax of £16,805.47.

[135]For the year to end 5 April 2023, the Claimant declared taxable income of £35,345.85 and paid tax of £5612.57.

[136]The Respondent has provided a counter schedule in which they set out the loss of earnings that the Claimant would have incurred.

[137]They calculate the loss of earnings from the 3 February 2023 until the 7 February 2023, as being five days at £2500.00 net weekly agency pay. This was the rate of pay the Claimant was charging the Respondent in 2023.

[138]The Respondent calculates losses from the 8 February 2023 until the 31 March 2023, which was the termination of the locum up until the commencement of the CESR programme, based on the specialist pay scale that they say the Claimant would have been put onto.

[139]We accept those figures and agree that the calculation of the losses based on specialist pay scale of £91,584 gross or £8575.28 net.

[140]We also accept the Respondent’s figures that the loss of earnings the Claimant would have incurred between the 1 April 2023 and 31 March 2025 when he was on the CESR programme, was £ 63,874 and £71,277.00 respectively.

[141]We accept the Respondents figures that the total loss of earnings therefore for that period of time was £144,440.56. Further we accept the Respondents calculations in respect of pension loss. The total figure is £191,308.13. 142. we agree with the Respondent that this must be reduced by any percentage chance of the Claimant being accepted onto the programme which we have found to be 70% therefore based on a 30% chance that the Claimant would not have been accepted onto the programme a reduction of £57,392.44 must be applied this gives a total loss of earnings plus pension loss after adjustment of £133,915.69.

[143]The Respondent accepts that the Claimant has set out earnings in mitigation of £106,554. We agree that this is the figure in the schedule of loss. The Respondent therefore says that the financial loss for that period of time should be £27,361.69.

[144]We do not agree. We find that the Claimant has not provided the accurate figures of his income for that period of time.

[145]For example, if the Claimant was earning £2500.00 a week whilst working for the Respondent, and he declared 160 hours a month. His weekly hours would therefore be about 37 hours week, his hourly rate of pay would have been £67.57.

[146]We have looked at the wage slips the Claimant has provided for the period of time when he worked with the Respondent from October 2022 until January 2023 for example.

[147]We know that he was paid £2500.00 a week, or £10,833 PCM. He has declared, in respect of each month, 160 hours work paid at the rate of £14.42 giving a monthly rate of £2307.69.

[148]In other words, his pay slips showing amount which is less than 1/4 of the amount the NHS Trust was paying for his services.

[149]The use of a company in this way is an entirely legal and accepted way of doing business. Since it is his company and he is a director he is entitled to draw any money from the company with the associated tax advantages , either as drawdown or dividends. He told us he used the money to smooth over his income in times when he had less work that is his choice it does not remove the obligation to provide information to the Respondent and the tribunal about the actual amounts that he earned from the work he did during the period for which he is claiming compensation.

[150]We conclude that the income declared is not correct. He has used the higher rates for the purposes of projecting his future income, but the lower figures when giving credit for income to set off against those losses.

[151]We find as fact using our experience as an industrial jury and based on the evidence we have before us that it is more probable than not that in the period following termination of his contract with the Respondent, Dr Chind continued to receive an income at a similar level to that received when working for the Respondent, at least when he was providing his services through ProShen.

[152]From the effective date of dismissal on the 2 February 2023 until the one of April 2023 the Claimants pay slips recorded at least 220 hours work at the rate of £14.42 an hour for promotion limited 153. in the two year period from the 1 April 2023 the Claimant declared approximately 950 hours of work through his company promotion he is not declared that the company was paid per hour for any of that work but rather the hourly rate that he decided to pay himself and this varies between £10 and £25 an hour with the majority of the hours paid at £14.42.

[154]We find on that basis that his declared income in 2023 from Proshen of £12,437.00 is likely to be less than 1/4 of the true amount received.

[155]Similarly in the previous year, for which we do not have a breakdown, we find it more likely than not that the declared taxable income of £35,345.85 is likely to be less than 1/4 of the real income received.

[156]The paperwork produced by the Claimant supports this conclusion.

[157]On this basis we find that the Claimant’s true income between April 2022 and April 2023 would have been in the region of £141,380.00 .

[158]The previous year his true income from Proshen would have been nearer to £49,748.00 .

[159]In total this means that there is a difference in income over the relevant period of in the region of £140,000. NB note to self calculate this by adding together the two amounts declared and taking them away from the total of the two amounts calculated.

[160]Looking at these figures we find on balance of probabilities that the Claimant has not proven that he has suffered any of the loss of income he asserts in his schedule, during that period of time relevant to the claim and we therefore conclude that from the date of termination of his locum ship until the date of hearing the Claimant has suffered no loss of earnings. Future loss of earnings

[161]In September 2024 the Claimant started studying on an LLM course. He said he had originally planned to do the course part time but when he realised he did not have much work coming in he changed it to full time he said he was still able to complete job applications and do ad hoc private work alongside this.

[162]We find that going forward, it is highly probable that even without the benefits of CESR the Claimant was likely to find work and earn at a similar level of income to previous earning and that he would have continued to receive a significantly higher income than any that he would have earned had he been on an NHS consultancy contract.

[163]He told the tribunal he plans to study the bar vocational course unless he is successful in obtaining a stable full-time occupational physician role.

[164]We find that he made a choice to stop working full time as an occupational health physician earning the sums that he had been earning in previous years. Whilst a change of career is clearly a matter of choice for Dr Chind we find that it was not a reasonable step to take in terms of his obligation to mitigate his losses.

[165]We conclude on the basis of all the evidence we have before us, including information provided by the Respondents and including the Claimants evidence of some of the difficulties he faced in obtaining work because he is not a consultant, that the Claimant’s losses end with his decision in September 2024 to start a full time LLM course.

[166]We therefore reject the claims assertions that he has suffered career long loss at the levels which he sets out. Injury to feelings

[167]The act discrimination which led to this remedies hearing was the decision to terminate his locum contract. We accept that this was hurtful to the Claimant. We find that the Claimant was genuinely upset by the termination of his contract with the Respondent. He lost a job which he enjoyed and which he was good at and he lost the opportunity of a place on a programme which could have led to him being placed on a specialist register and opened up opportunities for work as a consultant within the NHS.

[168]We acknowledge that this Claimant had raised genuine concerns about what he considered to be a discriminatory system and was distressed not only by the reaction of the Respondent to him in terminating his contract but also by the fact that the termination meant that he was no longer able to apply to be put forward by for the CESR scheme.

[169]We find that as a result of the Claimants hurt feelings and distress that an award in the middle band of the vento bands is appropriate.

[170]Whilst this was a one off act discrimination and whilst there was no intention to discriminate and whilst the Respondents did not consider that they did discriminate the victimisation of terminating his local ship because he had raised concerns about future potential discrimination showed a disregard for the context which was the Claimant was negotiating over pay.

[171]The Claimant asserts that he has suffered psychiatric injury as result, and suggests that this is manifested in pain in his shoulder, pins and needles in his hands and pain in his knee. We have been referred to the Claimant's medical records

[172]We find that in reality the Claimant had some pre-existing health issues; that there were physical reasons for the pain in at least two instances and in any event, that the Claimant did not report any difficulty with any symptom until a year after his appointment had been terminated.

[173]We do not accept the Claimant's assertion that as an Asian man he is more likely to manifest psychological symptoms as physical pain and find that there is no evidence whatsoever of that being the case in respect of the ailments he has referred to.

[174]We conclude that none of the physical symptoms he refers to have been proven to have anything whatsoever to do with the act of discrimination. We find that they are not connected, and we therefore do not take them into consideration when considering the level of an award for injury to feeling.

[175]We remind ourselves when considering an injury to feeling award that it is intended to compensate the Claimant for the anger, distress and upset caused by the unlawful treatment. It is compensatory and not punitive.

[176]We remind ourselves that we must focus on the actual injuries suffered by the Claimant, not the gravity of the acts of the Respondent. We remind ourselves that we must be just to both parties and that awards should not be so low as to diminish the respect for anti-discrimination laws we also remind ourselves, nor should they be unrestrained they should not be seen as untaxed riches

[177]We should also take into account the value, in everyday terms, of the sum awarded

[178]Taking into account the Claimant's own evidence about the impact of the loss of the job and the loss of the chance on him we considered that the correct level is £18,000.00 being the lower middle of Vento for 2024.

[179]We therefore award the Claimant the sum of £18,000 injury to feeling with interest at 8% for 925 days. This the number of days from the effective date of termination of 2 February 2023 until the date of hearing and determination being the 15 August 2025. This is a sum of £3649.32.

[180]We make no other award, either in respect of loss of earnings; pension or any other losses claimed for the reasons set out above . Approved by: Employment Judge Rayner 9 October 2025 Judgment sent to parties on 27 October 2025 Notes All judgments (apart from judgments under Rule 51) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the Claimants and Respondents. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found here: www.judiciary.uk/guidance-and-resources/employment-rules-and-legislationpractice-directions/