Mr M Iftikhar v Dorset County Hospital NHS Foundation Trust: 1404027/2018

EMPLOYMENT TRIBUNALS

Case No 1404027/2018

Between

Mr M IftikharClaimant

Dorset County Hospital NHS Foundation TrustRespondent

Before

Employment Judge Emerton

Mr S Gorton QC (instructed by Counsel) for respondent

Date 12 October 2021

JUDGMENT

ON INTERIM RELIEF APPLICATION The claimant’s application for interim relief fails. JUDGMENT having been sent to the parties on 19 December 2018 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:

REASONS

[1]This was an application for interim relief in a case involving a consultant surgeon who was dismissed by his employing NHS Trust, the reason given being “some other substantial reason”, namely a breakdown of working relationships. It would appear to be common ground that the claimant had indeed fallen out with his colleagues. The application is based upon automatically unfair dismissal for making a protected disclosure under section 103A of the Employment Rights Act 1996. The respondent robustly resists the claim, disputes that there were protected disclosures or that there was automatically unfair dismissal, and argues that there is no basis for interim relief.

[2]The tribunal found that it not was not likely that the automatically unfair dismissal claim would succeed, and in consequence refused the interim relief application under section 129 of the Act. Background to

The hearing

[3]By a claim form presented on 20 November 2018, the claimant brought claims of detriment for making a protected disclosure, “ordinary” unfair dismissal, and (relevant to the application for interim relief) a claim of automatically unfair dismissal under section 103A of the Employment Rights Act 1996. The claim included an application for interim relief under sections 128 and 129 of the Employment Rights Act 1996.

[4]The application for interim relief had been made in accordance with section 128(1) & (2). A one-day interim relief hearing was listed, in accordance with section 128(3) & (4).

[5]The parties had agreed a bundle of over 260 pages, and the claimant also provided a witness statement and a cast list. The hearing

[6]The parties were represented, as set out above, at the interim relief hearing on 11 December 2018. Miss Ngo-Pondi, for the claimant, also handed up a skeleton argument, and copies of supporting case law. Mr Gorton also provided written submissions and supporting case law.

[7]At the beginning of the hearing the timings were canvassed, and it was agreed that (under rule 95 of the 2013 Rules of Procedure) this was a case that did not require oral evidence. It was agreed that the tribunal should determine the application on the papers, subject to oral submissions. The tribunal took into account those documents to which it was referred, including the claimant’s detailed witness statement of some 21 pages.

[8]The tribunal adjourned to complete its reading of those papers identified by both parties as being relevant and essential reading. It then heard oral submissions in support of the application from Miss Ngo-Pondi, followed by oral submissions from Mr Gorton QC on behalf of the respondent. Miss Ngo-Pondi was given the opportunity to reply but did not wish to do so. A summary of the submissions appears below.

[9]Having adjourned to consider its conclusions, an oral judgment with full oral reasons was delivered to the parties on the afternoon of 11 December 2018.

[10]The application having been refused, and the parties having agreed no case management directions were needed at this stage (save for an agreed extension of time for the respondent to present a response) the hearing then concluded at that point.

[11]The parties were reminded that a written judgment would be sent to the parties shortly, and were given the usual explanation that they would have 14 days from the date that the judgment was be sent to the parties to request written reasons, and that any written reasons would be a pubic document, accessible to all persons via the internet. The judge cautioned the parties about too hastily requesting written reasons, especially in a case where the respondent would argue that the claims were of little merit, and the claimant might not, on mature reflection, wish to have an initial analysis of the whistle-blowing claim set out in detail in writing.

[12]The claimant did, in fact, request written reasons by email, before the judgment was sent to the parties.

The issues

[13]It is not in dispute that the claims include a claim for which an application may be made for interim relief, and that the claimant complied with the necessary formalities.

[14]In the circumstances, the sole issue for the tribunal to determine, under Section 129(1) of the Employment Rights Act 1996, is whether, “it appears to the tribunal that it is likely that on determining the complaint to which the application relates the tribunal will find that the reason (or if more than one the principal reason) for the dismissal is automatically unfair under Section 103A of the Act”. The tribunal was referred to case law relating to the question of what amounts to “likely”.

The law

[15]The statutory test us referred to above. The case law relevant to this statutory test is referred to below, both in the summary of the parties’ submissions, and in the tribunal’s conclusions.

[16]It should be noted that the tribunal needed to take into account the statutory provisions relating to what amounted to protected disclosures, set out at Sections 43A – 43F of the Employment Rights Act 1996. The tribunal also needed to take into account the provisions relating to automatically unfair dismissal for making protected disclosure under Section 103A. the tribunal noted that the claimant had more than two years’ qualifying employment and that the burden of proof would be on the respondent to prove that the reason for dismissal was a potentially fair reason, rather than for making a protected disclosure. The parties’ submissions

[17]What appears below is not intended to be a comprehensive summary of the parties’ submissions, set out in writing and made orally, but a broad overview of the salient points. The Judge confirms that he has taken into account the parties’ submissions and the documentary evidence provided, in reaching his conclusions.

[18]The claimant’s original application was combined, in a slightly unclear way, within his particulars of claim. Clearly, much of the text in the 19 pages attached to his claim form related to matters which are not subject to the application for interim relief.

[19]This initial application referred to six disclosures, said to amount to protected disclosures, and referred to the claimant’s subsequent dismissal. The respondent’s case was that the dismissal (under section 98(1)(b) of the 1996 Act) was for some other substantial reason, namely a breakdown of working relationships. The interim relief application in the claim form was surprisingly brief as to why the dismissal was said to be automatically unfair, and why the respondent’s stated reason for dismissal was incorrect. The application amounted to little more than a bold assertion that this was not the real reason, and that the real reason was making an unspecified protected disclosure. There was no specific challenge to the reasoning applied by the members of the panel which dismissed the claimant.

[20]Miss Ngo-Pondi’s skeleton argument of seven pages was structured as follows. It set out a brief introduction and a summary of the law, and made the assertion (paragraph 11) that the tribunal “must focus on whether the claimant made the disclosures and not about whether or not the alleged protected disclosures were actually protected disclosures”. [The respondent disputes the validity of this argument]. It pointed out, correctly, that if the tribunal found that it was likely that the claimant was dismissed principally because of the alleged protected disclosures, then that was enough for the tribunal to make an order for interim relief. In applying the law to the facts, Miss Ngo-Pondi submitted that the claimant had made protected disclosures, and suggested that the true reason for the respondent’s treatment of the claimant could be seen by differences in the treatment of him before and after his disclosures to the GMC and NHS Counter-Fraud. Various background matters, predating the dismissal hearing, are referred to, and the claimant refers to various detriments he had suffered (albeit not strictly part of the application for interim relief). The submissions conclude, albeit without setting out any coherent reasoning, that the disclosures made were qualifying disclosures, and that the respondent could not disprove the Section 103A reason for dismissal which had been advanced by the claimant. [Miss Ngo-Pondi did not make any specific submissions in relation to what the claimant alleges was in the mind of the dismissing panel, or how they reached their conclusion as to the dismissal, although the reasons for dismissal had been set out in a detailed letter at the time.]

[21]Having had the opportunity to read Mr Gorton’s skeleton argument in advance, Miss Ngo-Pondi, in her oral submissions, relied upon her written skeleton argument, expanded some of its points, and replied to the respondent’s written submissions. She asserted that although the respondent relied upon “breakdown of relationships” as a true reason for dismissal, the details of that breakdown were not provided to the claimant before the final disciplinary hearing. She submitted that although there had been a breakdown of relationship before the claimant whistle-blew to the GMC (about financial and procedural irregularities in the Trust), it was only after this disclosure that the respondent began to take detrimental actions, leading to dismissal. After the disclosure, the claimant was told he would be disciplined, he was arrested on various spurious charges, and the Chief Executive made a decision to dismiss the claimant, prior to the matter being referred to a panel. Miss Ngo-Pondi later changed her case to accepting that the Chief Executive did not in fact make the decision to dismiss, although she appeared to be proceeding on the basis that in reality that was his view.

[22]Miss Ngo-Pondi explained that there had been several disclosures, albeit the claimant relied specifically on three protected disclosures for his Section 103A automatically unfair dismissal claim, namely his disclosures in late 2013 to the then CEO Patricia Miller, to NHS Counter-Fraud in late 2015, and to the GMC on 21 September 2015. She suggested that this was plainly whistle-blowing within the scope of Section 43B of the Employment Rights Act 1996. She suggested that these disclosures, contrary to submissions from the respondent, were in the knowledge of the panel which dismissed the claimant. In answer to a question from the judge, she explained that the dismissing panel were aware of the substance of the disclosures made, because the claimant had referred to his grievance, and that his grievance contained a summary of the matters he had disclosed. She asserted that the grievance was before the panel, and indeed they had referred to it in their deliberations. Miss Ngo-Pondi did not, however, provide the tribunal with a copy of the grievance. [Having been referred to the dismissal letter, the judge noted that the letter did not make any express reference to specific disclosures now relied upon. The judge noted that the claimant had not attended the dismissal hearing, and had relied on written submissions at the time].

[23]Mr Gorton’s submissions summarised the general background, and suggested there was no merit in the claimant’s application for interim relief. The submissions set out the law at some length, which will be referred to below as applicable, but the essence of the submissions (paragraph 7 of the written submissions) is as follows:

[24]Firstly, the available evidence “unquestionably points to a breakdown in relations between the claimant and his consultant colleagues, of some vintage”. The reviews/investigations made it clear that the reason the claimant was placed before a panel, was because of that breakdown in relations, and the belief that those relations were beyond repair, and this was the reason the respondent had dismissed the claimant. He submitted that the evidence produced by the claimant was “defuse, vague and unfocussed thus coming nowhere near the proper threshold for making such an application, let alone the application succeeding”.

[25]The second substantive point was a matter that the claimant had not addressed, namely that the respondent had acted through a panel of individuals, including an independent Medical Director from another Trust, against whom the claimant has made no allegation. He referred to the case law, and this was a point to which the claimant has not satisfactorily replied. In essence, this argument is that on this basis alone the interim review application must fail: the claimant has not presented any coherent case that the decision makers who dismissed the claimant were motivated by anything other than the reasons which they had stated. Although the claimant had made a case about the outcome being predetermined, the focus should be on the decision to dismiss, and there were no “Iago” pleadings made by the claimant.

[26]The third substantive point is that under the MOJ v Sarfraz guidance, the claimant must prove a likelihood of success in respect of his assertion that he made protected disclosures. The respondent will dispute that the claimant made any protected disclosures falling within the statutory definition, and at the interim relief hearing there was simply no evidence that these were protected disclosures that the panel had knowledge of. The respondent’s case is that there is no evidence before the tribunal suggesting that the decision to dismiss was motivated by the fact that the claimant had made protected disclosures, especially noting that he did not attend the panel hearing, and his written statement of case presented to the panel did not contain those disclosures, and no case was advanced to the panel based on alleged protected disclosures.

[27]Finally, the claimant’s application should in any event fail on the question of the alleged protected disclosures, there being significant areas of dispute as to whether the claimant had a reasonable belief, in the context of infighting within the Obstetrics and Gynaecology department. There is nothing from the claimant suggesting that he would succeed in showing that any disclosure was in the public interest, and that he reasonably believed that to be the case. The claimant had not adduced any evidence setting out what precise legal obligation was engaged by his disclosures, and had been breached. In respect of the letter to the GMC, there was no evidence from the claimant as to how this would engage Section 43F of the Employment Rights Act 1996. Much of the claimant’s case was cut-and-pasting assertions which fell short of what was required. The respondent invited the tribunal to dismiss the application for interim relief.

[28]In his oral submissions, Mr Gorton confirmed that he relied upon his skeleton argument. In summary, he suggested that the application for interim relief was fundamentally misconceived. The claimant had not put his case on the correct footing for section 103A interim relief, and had made no suggestion that the dismissal panel were motivated by the claimant’s protected disclosures, as he had set out at paragraph 7.5 of his skeleton argument. He drew attention to the claimant’s statement of a case in his appeal against dismissal (page 47 of the bundle) which confirmed that the claimant accepted that the Trust believed the situation to be serious and that relationships had broken down. He made four main points in his oral submissions:

[29]Firstly, the claimant having accepted there was a breakdown in in relationships, this undermined his case in respect of section 103A, and the claimant was still not saying that the panel was motivated by the claimant’s disclosures. The Jhuti point remained: there was simply no basic argument that the panel was influenced by disclosures. The second main point, as set out at paragraph 7.8 of the skeleton argument, was that the claimant had not provided the tribunal with any evidence that the dismissal panel had knowledge of the claimant’s protected disclosures. Reference was made to grievances, but that evidence had not been supplied. The third point, paragraph 7.9 of the skeleton, related to the protected disclosures. The respondent did not concede that the claimant made any qualifying or protected disclosures. Mr Gorton drew the tribunal’s attention to evidence in the bundle, which he suggested showed that the claimant did not personally believe that he was making disclosures, or that it was in the public interest. For example, the alleged disclosure to the GMC was very much centred on the claimant’s dispute with his colleagues, rather than being genuinely any sort of disclosure in the public interest. The claimant had still not set out the legal obligations said to have been breached, in extremely generic assertions. The particular disclosure to the GMC relied upon (section 43F) was extremely weak, and the claimant had not shown that it fell within the relevant section. The fourth point related to the breakdown in relationships, namely the stated reason for the “some other substantial reason” dismissal. As the claimant did accept that there had been a breakdown in relationships, his interim relief case was misconceived. The more so as it was clear from the evidence that the various letters signed by the claimant’s colleagues explaining that they could no longer work with him, pre-dated the letter to the GMC. Indeed, the claimant’s colleagues had referred the claimant to the GMC, before he made counter-allegations about them to the GMC. There had been various internal reviews to look at working relationships, and ultimately the respondent concluded that was not sustainable. It was overwhelmingly clear that there had been a breakdown in relationships, and that the panel dismissed the claimant for this reason.

[30]It should be noted that the tribunal was provided with copies of the following cases:

[31]The claimant provided copies of the following cases:  Taplin v Shipham Ltd [1978] WL57362  Possons v Air Plus International Ltd

UKEAT/0023/16/JOJ

4 March  Kuzel v Roche Products Ltd

[2008] EWCA Civ 380

 Ministry of Justice v Sarfraz

UKEAT/0578/10

/Z2 7 February 2011

[32]The respondent provided the following cases:  Saqr Al Qasimi v Robinson

UKEAT/0283/17/JOJ

 Royal Mail Group Ltd v Jhuti

[2017] EWCA Civ 1632

[33]The tribunal has also considered other recent case law applying the interim relief tests, such as Wollenberg v Global Gaming Ventures (Leeds) Ltd

UKEAT/0053/18/DA

The evidence

[34]The tribunal has been careful not to make findings of fact which would tie the hands of any subsequent tribunal, and has kept its summary of the evidence as brief as practicable, consistent with the need to provide reasons. That said, the claimant has chosen to make an interim relief application, requiring the tribunal to take account of the available evidence, and has in effect asked the tribunal to give an assessment of what view should be taken of that evidence.

[35]The tribunal was presented with a very large bundle, of which only the small minority of documents were referred to, whilst other documents were mentioned as relevant which the tribunal was not shown. The tribunal has no intention of seeking to provide a compendious summary of that evidence. However, in order to understand the context of the applications, it is appropriate to set out a brief chronology of the relevant matters relied upon. The tribunal was provided with a helpful chronology by the respondent, and there was no suggestion from the claimant that this was inaccurate. The tribunal accepts that it is a useful starting point to which the relevant events can be related. The tribunal has also taken into account the less contentious facts, summarised by the parties in their written submissions.

[36]The claimant was employed by the respondent NHS Trust from 1 April 1994, and is a Consultant Obstetrician and Gynaecologist. He spent a term of approximately four years as Clinical Director for the O&G Department, from May 2012 until February 2016. From late 2013 onwards, he made a number of alleged protected disclosures within the Trust and externally, including as to a colleague receiving payments for extra work which had not been undertaken. It would not appear to be in dispute that, from 2014 onwards, there were problems in the claimant’s relationship with colleagues.

[37]The claimant complained about colleagues, and colleagues complained about the claimant. Colleagues referred the claimant to the GMC, and on occasions the claimant made what he described as protected disclosures about others, including a letter to the GMC in September 2015, and complaints to NHS Counter Fraud. There were various matters referred to in the pleadings, including an investigation into whistleblowing in early summer 2016, further alleged detriments and disclosures, and a finding in the summer of 2017 that there had been a breakdown in relations within the department.

[38]Further investigation, known as the “Edgecumbe Investigation,” commenced in the summer of 2017. In the Autumn a report was circulated. A further report, “the Boniface report,” was commissioned in early 2018, and from early February 2018 the claimant was excluded, pending the conclusion of investigations.

[39]A report was made in May 2018, and a panel hearing to consider the claimant’s future was convened, and postponed, and the claimant raised a grievance raising various matters.

[40]On 27 September 2018, the claimant was finally informed of a panel hearing on 2 December 2018, and although he provided statements of case to the panel he did not attend. The claimant was represented by Miss C Ngo-Pondi, in person. The panel included the Medical Director from another NHS Trust, and a Consultant from another department of the respondent hospital. The panel heard from various witnesses. It decided to dismiss the claimant.

[41]The dismissal letter of 12 November 2018 set out, at some length, the reasoning of the panel in relation to the dismissal. This included a comment, in respect of the claimant making complaints to the GMC, and it confirmed that the panel concluded that the breakdown of the functioning in the O&G team, and specifically in relation to the claimant’s presence in the clinical team, was serious in its nature, likely to impact patient care and safety, and that action was required to address this. They came to the conclusion that there were no steps which could be taken short of the termination of the claimant’s employment. He was dismissed with pay in lieu of notice. It was explained to him, in the letter, that his ongoing grievance would continue to be investigated, in line with the Trust’s grievance policy.

[42]Only limited documents were placed before the tribunal, which the tribunal has taken into account. Many of the primary facts are evidently not in dispute, or are not matters where the evidential disputes were placed before the tribunal. The tribunal has taken into account the contents of the claimant’s 21-page witness statement, albeit it found the contents to be somewhat unfocussed, with only very unclear passing references to the disclosures, and only brief mention of the dismissal. The tribunal’s conclusions

[43]The statutory test has been referred to above.

[44]Applying case law such as Taplin v Shippam Ltd, and Ministry of Justice v Sarfraz, recently applied in Wollenberg v Global Gaming Ventures, the question is “whether a claim under section 103A is likely to succeed. This does not simply mean more likely than not. It connotes a significantly higher degree of likelihood. The tribunal should ask itself whether the applicant has established that he has a pretty good chance of succeeding in the final application to the tribunal”. The reference to the “final application” is a reference to the hearing of the claim, at the final hearing before the Employment Tribunal.

[45]In delivering judgment, the tribunal was alert to the need to avoid, as far as possible, making findings of fact which might tie the hands of the Employment Tribunal ultimately charged with the final determination of the merits of the points raised (or indeed any subsequent strike out or deposit order applications). The tribunal’s task, at this early stage in proceedings, under the umbrella of section 129, is in essence to form a view as to how the matter looks. In other words, as to whether the claimant had a “pretty good chance,” and was likely to make out his case.

[46]The tribunal took into account the case law referred to. It is important to remember that the tribunal is not deciding whether the case does or does not succeed on its merits, but is applying this preliminary statutory test in order to determine whether the claimant qualified for interim relief, as set out at sections 128 and 129 of the Employment Rights Act 1996. The context is that this jurisdiction relates solely to the claimant’s claim of automatically unfair jurisdiction of section 103A of the Employment Rights Act 1996, where the guidance Kuzel v Roche Products Ltd sets out the approach to burden and standard of proof which would be taken at the final hearing.

[47]This is a case where the respondent NHS Trust had recently dismissed the claimant, with a panel comprising a number of people including an independent Medical Director from another NHS Trust, and that panel made the decision to dismiss the claimant with pay in lieu of notice, in what was described (echoing the words section 98(1)(a)) as “some other substantial reason,” specifically a breakdown of in the relationship between the claimant and colleagues. Indeed, the respondent drew to the tribunal’s attention the fact that the claimant himself, was not disputing that relationships had indeed broken down. That, in itself, does not undermine the possibility that the reason may have been making a protected disclosure, but does rather suggest that the panel’s starting point was a realistic one.

[48]A further factor in this case is as follows: Not only is the tribunal tasked with considering the likelihood that the section 103A claim would succeed, but the respondent disputes whether section 103A can even be engaged, because it disputes that there were qualifying or protected disclosures falling within the statutory definition. That is a matter which the tribunal should plainly also consider. Notwithstanding any legitimate claim there may be as to a procedurally or substantively unfair dismissal, if the claimant did not make a protected disclosure, or indeed if there was a disclosure but it did not cause the dismissal (to the required standard of proof) then a claim of automatically unfair dismissal would be incapable of succeeding.

[49]The claimant has submitted that it would not be right, in a consideration of interim relief, to consider whether any disclosures were protected disclosures. That is an argument without merit. It is clearly a relevant factor. The tribunal agreed with the respondent that if it is a live matter which is in dispute, it is a matter which should be considered. It would be wholly flawed logic to conclude that a claim for automatically unfair dismissal could be likely to succeed, even if there was no protected disclosure. It is not clear why Miss Ngo-Pondi spent so much of the tribunal’s time trying to deflect it from considering what was plainly a relevant issue, and refused to engage with an issue which was plainly relevant and which the respondent suggests would provide a complete defence; this does not give me great confidence as to the coherency of the claimant’s case overall.

[50]The issue of whether there were protected disclosures (and if so, what and when they were) is sufficiently fundamental to the case that it appears to me it would be quite wrong to make the assumption that if there were disclosures of some sort, they should therefore necessarily be treated as if they fell within the statutory definition of a protected disclosure. This is not to dispose of the matter finally, one way or the other, but needs to be considered in the context of the statutory test for interim relief.

[51]The respondent having made it quite clear that no concessions are made in respect of whether any of the matters relied upon amount to protected disclosures, the tribunal has considered, albeit with limited evidence available, the context of those disclosures.

[52]Six disclosures are relied upon, although it was made clear at the interim relief hearing that there are in fact three disclosures relied upon in the context of the dismissal. These are:(1) disclosures to NHS Counter Fraud,

(2) to the Chief Executive Officer and

(3) a disclosure in September 2015 to the GMC.

[53]The tribunal was told that the claimant only made a reference to the GMC after he had been notified that colleagues had referred him to the GMC. This was plainly the context of his own letter to the GMC. The tribunal was taken to the wording of the claimant’s GMC “disclosure”, which is a document contained within the bundle. The claimant sets out in writing the matters which he wished to raise with the GMC, albeit in response to his having already been referred to the GMC by the colleagues that he had fallen out with some time previously. The respondent correctly makes the point that it is not simply a question of disclosing “something,” but the statutory test to which the respondent is putting the claimant to strict proof relies on a number of evidential levels. It needs to fall within one of the types of information specified at section 43B(1)(a)-(f) of the Act, and there must be sufficient that the tribunal can be satisfied that it does indeed fall within one of those categories (or that the claimant reasonably believed that it did). There is also the test of the claimant’s “reasonable belief”, not only as to the disclosure of information tending to show one of the specified categories, but also that it “is made in the public interest” (section 43B(1)).

[54]Insofar as the GMC disclosure is concerned, the respondent’s argument has some force, that this is not really about disclosures which the claimant reasonably believed were in the public interest. To the contrary, there are cogent reasons for concluding that the claimant’s communication to the GMC is very much in consequence of his being unable to maintain sensible working relationships with his colleagues, and then wishing to air his personal views as retaliation against those who had already made allegations against him. That may or may not be the correct conclusion, but it is a perfectly logical conclusion to draw from the context, and the claimant has been unable to put forward a coherent case as to how he can show that this information falls within the definition of a qualifying disclosure under section 43B(1). Furthermore, although the claimant relies upon “legal obligations” (section 43B(1)(b)), Mr Gorton rightly points out that the claimant has not adduced evidence at this preliminary hearing indicating what the precise legal obligations are and why the claimant believed that the respondent was in breach. Similarly, there are additional requirements under section 43F, which are in dispute, and the tribunal agrees with Mr Gorton that Miss Ngo-Pondi has not addressed these points.

[55]Similar issues arise in respect of the other disclosures relied upon. It is not enough for the claimant merely to assert that these were protected disclosures. The respondent has disputed the point, and the claimant has not called sufficient evidence, or addressed the point with any coherency, such that the tribunal is able to ascertain precisely why these should be treated as protected disclosures. It is unreasonable conduct of proceedings, when the claimant has required the tribunal to arrange an interim relief hearing at short notice, and required the respondent to attend, for Miss Ngo-Pondi simply to ask the tribunal to ignore this point, and to assume that the claimant has a strong case, effectively because the claimant believes it to be so.

[56]In essence, the claimant appears to take the view that if he asserts that something is so, and that he believes that his former employers are in the wrong, the tribunal should therefore agree with him. Not only is that not the way that litigation works, which requires both sides to be given the opportunity to set out their respective cases, but it is an extremely fragile basis for constructing an argument as to why the claimant should be entitled to the considerable financial benefit of interim relief.

[57]The tribunal is certainly not prepared to make any assumptions. It may be that at the final hearing, the claimant is able to satisfy the tribunal that all the protected disclosures relied upon do indeed amount to protected disclosures. However, what the claimant had placed before the tribunal at the interim relief hearing is insubstantial and unconvincing. The claimant has not provided sufficient for the tribunal to have any real confidence that he will be able to show that the disclosures relied upon are in fact protected disclosures. Full consideration of the evidence may lead to a conclusion that the evidence satisfies the claimant’s case, but at this stage tribunal is unable to find, on a balance of probabilities, that the claimant made protected disclosures. But, of course, that it is not the test: it must be likely that the automatically unfair dismissal succeeds. On the very limited and rather muddled information provided to the tribunal, arising out of this necessary preliminary point as to protected acts alone, the tribunal cannot conclude that the claimant would be likely to succeed. If there is no likelihood of there being a protected act, the question of there being automatically unfair dismissal does not arise.

[58]For that reason alone, the tribunal considers that the claimant cannot reach the standard required of showing that he is eligible for interim relief.

[59]The tribunal has, however, gone on to consider, in the alternative, the other arguments, and whether if it is likely that the automatically unfair dismissal claim would succeed, if there had been protected disclosures (which is the approach which Miss Ngo-Pondi invites the tribunal to take).

[60]Although the respondent has not taken the points in this order, it appears to the tribunal to be logical to consider the points in the order of whether there were protected disclosures (see above), the dismissal panel’s knowledge of the disclosures, and the actual reason for dismissal.

[61]On the question of the panel’s knowledge, and any impact on the reasoning of the dismissing panel, it is plainly fundamental to any automatically unfair dismissal said to be because of a protected disclosure (or if more than one the principal reason), the decision-maker or decision-makers were aware of the relevant information (or understood the matters before them to amount to a protected disclosure), and that it affected their decision-making. This is a case where the claimant has made a number of assertions, but his case as set out at the interim relief preliminary hearing is extremely vague in nature. Surprisingly, the claimant does not even expressly challenge the conclusions of the dismissal panel. The dismissing panel have set out their reasons in a letter which refers to the breakdown of relationships, which the claimant seems to accept. No knowledge of any protected disclosure is set out in the dismissal letter.

[62]The claimant is now seeking to argue, although this is in dispute, that the reason that relationships broke down (or at least the reason they broke down to the extent they did, or the reason that the respondent pursued a particular line) was because of whistleblowing. But these are very generic assertions, and there is no specific assertion, even in the appeal against dismissal (to which the tribunal was taken) suggesting that these were factors acting on the minds of the dismissing panel. Although the claimant asserts that his grievance was raised before the panel, no copy has been supplied, and the tribunal simply has no clear evidence suggesting that the material before the panel referred to specific whistleblowing allegations within the statutory definition of protected disclosure, which would or might have acted on the minds of the panel.

[63]The tribunal therefore agrees with the respondent that the material supplied at this preliminary hearing simply does not support the rather vague case now advanced, that the reason for dismissal was affected by the panel being in some way influenced by knowledge of the claimant having made protected disclosures. Although there may be or may not be a chain of causation between any disclosures (if they fell within the statutory definition) and the sequence of events ending up with the claimant being considered for dismissal, it is simply too remote for the tribunal to be able to conclude that it is likely that a causal link with the dismissal could be established. That means that the tribunal cannot find that it is “likely” that the automatically unfair dismissal claim would succeed. That is a second reason for refusing the application.

[64]The third matter, closely linked to the second point, is that the claimant appears to be asserting (albeit with no great coherency) that there was some sort of corporate decision to dismiss the claimant, because he was a whistle-blower. The undisputed evidence, however, is that the decision whether or not to dismiss was delegated to a panel appointed to decide the claimant’s case, and that this a very senior independent member. It was this panel that decided to dismiss the claimant, and their reasoning was set out in detail in a letter. There appears to be a rather incoherent suggestion, later withdrawn, that the Chief Executive Officer decided to dismiss. The reality appears to be that although management decided to put the case before the panel, the decision to dismiss was squarely taken by this panel, albeit taking into account the material before it

[65]The tribunal has taken into account the case law in Kuzel, and that drawn to its attention by the respondent, including Royal Mail Group v Jhuti. The tribunal accepts that it is the mental processes of the dismissing panel that would have to be scrutinised. No doubt oral evidence would be given in due course, but the starting point is that the panel’s analysis and conclusions are set out in the dismissal letter. There is nothing in that letter which appears to be illogical, unfair or otherwise objectionable. The claimant, who plainly sees the central issue in the automatically unfair dismissal claim as being to challenge that basis for the decision, and has even applied for an interim relief hearing to deal with the point, has simply not come up with material undermining it. It may well be that he was dissatisfied with the HR department, that he was dissatisfied with the Chief Executive, and that he had plainly fallen out with most of his colleagues in the hospital where he worked. But it does not logically follow that this therefore means that the panel appointed to make a decision as to whether or not to terminate the claimant’s appointment, dismissed him because he made a protected disclosure. Having asked for interim relief, the claimant has not really produced anything to back up why he believes that his claim is likely to succeed.

[66]The tribunal notes that there was considerable internal investigation into the claimant (and his relationship, or lack of relationship, with his colleagues), and that on the face of it the dismissal panel appeared to have been supplied with relevant material entitling them to conclude that there had been a breakdown in relationships (which the claimant appears to accept), with insufficient evidence suggesting knowledge of protected disclosures, or any belief as to the relevance of disclosures if there was knowledge. There is nothing suggesting any wish by the panel to dismiss the claimant because he was a whistle-blower. On the face of it, an independent panel made a reasoned decision and that decision is plausibly set out in a detailed dismissal letter. Taking a step back and viewing the case objectively, the tribunal would characterise the material provided as indicating the following: the dismissing panel, in the case they set out in their letter, were evidently faced with an NHS Trust trying to provide healthcare services to members the public, but being hampered in doing so by a senior and experienced consultant who did not appear to be on speaking terms with his colleagues, and who had fallen out with many others within the trust. That explanation is coherent and logical, and it does not need any finding of a causal link with any protected disclosure. The claimant has not established, at this preliminary hearing, that is likely that an Employment Tribunal would at the final hearing find that in fact the claimant was automatically unfairly dismissed for making a protected disclosure.

[67]The tribunal does not know what rabbits may be pulled out of the claimant’s hat in preparing for the final determination of the claim, but if there are rabbits, they have remained firmly hidden in the claimant’s hat at the interim relief preliminary hearing. The claimant’s case on automatically unfair dismissal, as revealed to the tribunal by Miss Ngo-Pondi, fell very far below the standard of suggesting that it was likely that his claim would succeed.

[68]In all the circumstances, the claimant’s case does not meet the statutory criteria for an award of interim relief under section 129 of the Employment Rights Act 1996.

[69]The application for interim relief fails.

THE FACTS

[70]As detailed in the agreed chronology on the 28 January 2015 Tony Hall (“TH”) (counter fraud) contacts the Claimant to investigate MS’ non-attendance at RCOG conference (see page 361).

[71]We then have an email dated 17 February 2015 from AC where she emails PL asking whether he proposes to investigate the joint concerns of the four consultants about the Claimant’s role as CD (see page 362).

[72]On the 18 February 2015 MNS emails PL about his clinical concerns about the Claimant, his alleged malicious conduct towards him and seeking removal of him as CD (see page 363). We note that MNS to this point has not been the subject matter of any of the Claimant’s alleged disclosures it is therefore not apparent that his complaints are motivated by any alleged disclosures the

[73]It is then on the 1 April 2015 that PL writes to the Claimant to inform him that he is the subject of an investigation both into clinical concerns (of which there are seven) and concern about his leadership (see page 365). The Claimant does not allege that this action is a detriment due to any disclosures he may have made.

[74]On the 1 April 2015 PL also writes to AC, BD, MNS and MS to inform them that the clinical concerns raised by MNS will be investigated under the NHS’ Maintaining High Professional Standards (MHPS) proposing a facilitated team meeting (mediation) to deal with the difficult working relationships (see page 367): “ ”

[75]An issue of concern about the Claimant is his leadership style and communication.

[76]In a separate letter to MNS dated 2 April 2015, PL points out that MNS has produced no evidence of the Claimant’s alleged malice towards him (see page 369): “ ”

[77]By a joint letter dated 30 April 2015 AC, BD, MNS, MS and now GH write to PL to recap on the meeting they had with him on 28 April 2015. They say in the letter that it was confirmed that the clinical concerns would be investigated by an external expert and that it was agreed that the Claimant would be removed from his role as CD (see page 371). The letter also refers to the potential for matters to be referred to the GMC. PL was asked about this letter in cross examination and he confirmed that he remembered reading it and thought he had said he would keep it under review as he couldn’t say he could remove the Claimant.

[78]On the 30 April 2015 MNS provides a table of the seven clinical complaints he has about the Claimant (see page 383).

[79]There is then an email dated 1 May 2015 (page 372) from EH to the five consultants, including the Claimant where she proposes the instruction of Dorset Mediation. It confirms: “ ”

[80]There is no evidence to suggest that this was originally written by PL and then repeated by EH because of any alleged disclosures by the Claimant. It records an issue of concern is the Claimant’s … “leadership style and communication”.

[81]The agreed chronology then records that on the 8 May 2015 TH’s report into MS’ allegedly fraudulent study leave is delivered (see page 374). Then on the 24 August 2015 CAW confirms with MS the outcome of the investigation into the study leave fraud matter (see page 406), and that the … “investigation found there was no intent to commit fraud and no further action is required in relation to this matter.”. This is therefore a concluded matter so far as the Respondent is concerned.

[82]By email dated 14 May 2015 PL writes to AC to confirm that he is not going to push the Claimant out of his role. Also, that he will be referring the clinical concerns to an external expert via a contact at Salisbury hospital (see page 380).

[83]By a letter dated 18 May 2015 the Claimant writes to PL expressly stating that his colleagues’ unhappiness in his role is due to his management of them for the first time as per trust policy (see page 385). What the Claimant does not say here is that the unhappiness is related to the three alleged disclosures he says he has made, the first two raising matters about AC’s PAs and the second about MS’ study leave. This contemporaneous document shows that it is the Claimant’s view at this time that what is happening between the consultants is related to his management of them, not any disclosures he may have made.

[84]By letter dated 20 May 2015 MS, AC, MNS, MS and GH write to the GMC stating there has been no satisfactory response from PL to their concerns which they now ask the GMC to investigate.

[85]By letter dated 20 May 2015 MS, AC, MNS, MS and GH write to PL to confirm they will not go through a mediation session and that they have forwarded their concerns to the GMC (see page 390). There would appear to be a change of heart though as within the agreed chronology it is recorded that on the 7 July 2015 CAW invites the parties to a pre-mediation meeting. Then on the 4 August 2015 AC, MS, BD, MNS and GH consent to mediation on condition that if they are “all still unhappy with Mr Iftikhar as the clinical lead he is replaced forthwith” (see page 403). The mediation process then appears to commence with an opening session around the 23 September 2015 (see page 451) and it remains underway in mid-October 2015 (see page 467). There is limited documentation about the mediation presented to us, which is understandable as presumably it was a confidential process between the parties. It is common ground though that this mediation process is unsuccessful. In cross examination PL confirms that he was informed by the mediators that they fear matters are worse than where they started.

[86]By letter dated 24 July 2015 Dr Margaret Peramulla, Dr Asia Khan and Dr Daby write to PL to express they are “saddened and appalled” that colleagues continue to undermine the Claimant’s integrity and that they support him 100%. (see page 401). The Claimant accepted in cross examination that he had gathered these views. We note that the format of the document (the statement with joint signatures underneath) does compare closely to those previously submitted by the other consultants about the Claimant.

[87]On the 11 August 2015 PL confirms that Mr Ed Neale (“EN”) (O&G consultant Bedford) will review the clinical allegations made by MNS. PL also confirms he is considering commissioning a Royal College of Obstetricians and Gynaecologists (“RCOG” review) of the department due to the ‘escalating situation’. (see page 404): “ ”

[88]This RCOG review did not happen in the end as the cost was prohibitive, and PL went on to consider alternative review options (see page 467). Alleged Protected Disclosure 6: Letter 28/8/2015 Claimant to Paul Lear

[89]Chronologically we then get to the Claimant’s alleged protected disclosure six, that he submits (as confirmed in closing submissions) was a material influence for the alleged detriments 6, 7 and 8.

[90]The parties agree that the Claimant wrote a letter to PL dated 28 August 2015 (see page 423) voicing concerns over MNS’s clinical practice of investigating women with post-menopausal bleeding.

[91]In the agreed list of issues the Claimant says this was a protected disclosure to his employer because the letter contained information tending to show that the Respondent was failing or was likely to fail to comply with a legal obligation to which it was subject, namely that it was employing a surgeon who was performing unnecessary, damaging and negligent re-section procedure in Health and Safety of individuals in the Respondent’s care.

[92]It also states that the Claimant will say that this disclosure was made in the public interest as the Respondent is a public body providing care to members of the community.

[93]The Respondent denies that the letter to PL was a protected disclosure on the basis that the letter does not suggest that the Respondent or any other person was failing to meet its legal obligations, nor that the health and safety of anyone had been or was being or was likely to be endangered. The Respondent says the highest the Claimant puts it is to say … “it would therefore be helpful for us all to have a definite opinion on his practice by the external independent investigation.”.

[94]What the Claimant says about this disclosure in evidence is at paragraph 48 of his witness statement: “A clinical incident was reported by Hilary Maxwell (CNS) (p400a) when it was discovered in June 2015 that MNS had failed to diagnose an endometrial cancer. I was concerned that he would do the same again because his practice did not comply with the standard guidelines to investigate PMB, which is to take a biopsy of the womb lining. The practice of re-secting fibroids is a much more invasive process. On 28/8/15 I wrote a letter to PL highlighting this issue p423.”

[95]Upon reviewing the documents referred to it is clear that the report by Hilary Maxwell is that referred to in paragraph 48 of the agreed chronology where on the 7 July 2015 Hilary Maxwell raises concerns about a particular surgical practice of MNS’s. We are referred to page 400aa not 400a.

[96]The Claimant says in his letter at page 423: “ ”

[97]The content of this letter does not suggest the practice is wrong in law just that it is unusual.

[98]He says it is probably unwarranted ... but it would be helpful to have a definite opinion on his practice.

[99]As to the being approached informally by consultants and middle grade staff the Claimant goes on to explain in his witness statement at paragraph 48 that: “After consulting WW, I invited my colleagues’ comments (p424 - 427). Historically BD and MS had informed me of their concerns regarding MNS practice, however they had now changed their position in order to back up MNS (p424-427).”.

[100]We have reviewed the emails at pages 424 to 427 and they do not support that there has been a change of position by BD or MS. Instead they suggest they are surprised at the change of position by the Claimant on the matter, by him now being critical of what MNS is doing.

[101]Of note is also what AC says about the matter (see page 425): “ ”

[102]What the Claimant writes in his alleged disclosure letter and his witness statement potentially supports a belief that he was disclosing information which tends to show that the practice of re-secting fibroids is a much more invasive process.

[103]The Claimant has not said in his witness statement why he believed this disclosure was made in the public interest.

[104]About the concerns raised as to the Claimant’s clinical practice it is confirmed in a letter dated 4 September 2015 from PL to the Claimant in respect of the EN investigation (see page 435) that: “ ”

[105]We have been referred to an email from Sarah Burt (“SB”) (Service Manager for Women’s Health) to CAW dated 4 September 2015 (pages 432 to 433) which reports a number of difficult encounters she has had with the Claimant and her email concludes with … “I feel it is important I bring this issues to your attention, as there are not the first incidences where I have found Mr Iftikhar to be obstructive and unsupportive, however it was particularly noticeable over the last week or so.”. There is no evidence to suggest that what SB says here is in any way motivated by any alleged protected disclosures the Alleged Protected Disclosure 5: Letter to GMC 21/9/2015

[106]Chronologically we then get to the Claimant’s alleged protected disclosure five, that he submits (as confirmed in closing submissions) was a

[107]The Claimant sent a letter by email from Viv Leonard to Dale Brown, Investigating Officer General Medical Council (“GMC”) on 21 September 2015 (see pages 443 to 449). The Respondent accepts that this letter was sent to the GMC. The Claimant says that Viv Leonard also sent a copy to PL in the Hospital Internal mail.

[108]In cross examination PL confirmed that he most likely did receive a copy of this. He confirmed that he would assume he received the document as he had read it and it could have been received around the third week of September. He had no reason to dispute the Claimant’s evidence that it had been sent to him in the internal post.

[109]It is the Claimant’s case as set out in the agreed list of issues that he provided information about the poor financial practices of the Respondent and the Claimant produced evidence that overpayments of on-call supplements by the Respondent to Alison Cooper would have been known to her. The Claimant also disclosed information tending to show poor reporting of annual leave and study leave, leading to possible fraud by Mr Siddig. This information tended to show that the Respondent, Alison Cooper and Mr Siddig were failing to comply Allowances, Travel and Subsistence (Po019) (“the Overpayments Policy”).

[110]It states that the Claimant’s belief was reasonable and made in the public

[111]The Respondent accepts that the Claimant makes allegations concerning his colleagues Mr Siddig and Ms Cooper, including that these individuals either claimed too much pay from the Respondent, were overpaid, or misused their annual leave and/or study leave entitlement. However, the Respondent says that none of these allegations constitute information tending to show that the Respondent (or the Claimant’s colleagues) was failing to comply with their legal obligations. The Respondent asserts that there was no clear allegation of wrongdoing by the Claimant, nor is there any reference in the letter to the various legal obligations or criminal offences now relied upon.

[112]The Respondent says this letter was in fact a “tit for tat” response to allegations made against him by his colleagues. It was not in the public interest and he could not have reasonably believed that it was.

[113]The Claimant provides evidence on this alleged disclosure in paragraph 35 of his witness statement: “… I provided information about the additional PA’s to AC. I highlighted that AC and MS ought to have been aware they were being overpaid on-call supplements. I disclosed information tending to show poor reporting of annual leave and study leave, leading to possible fraud by MS and BD. Out of courtesy, Viv sent a copy of this letter to PL in the Hospital internal post.”

[114]As to the Claimant’s reasonable belief that he makes it in the public interest he does not address this specifically in his evidence in respect of this disclosure.

[115]The written submissions from Claimant’s Counsel do not direct us to specific evidence of the Claimant save to say about the on call payments of AC that … “… there is plainly evidence that he believes this matter is being disclosed in the public interest, he refers to the fact that he has brought “openness and accountability to the department which is appreciated by the majority of the staff and divisional senior management”. Belief in the public interest element is manifest. It is reasonably held for the reasons set out above….”, which is with reference to the previous alleged disclosures he had

[116]In the Claimant’s Counsel’s oral submissions, we were directed to consider paragraphs 4 and 5 of the Claimant’s witness statement. They say: “4. The Trust have rigorous financial policies in place, to ensure the proper use of public funds including the Financial Policy p76-93 and Overpayments Policy p.135-142. The policies are explicit that overpayments should always be repaid p138 para 1.8, All employees have a responsibility for checking they are being paid correctly (p138.parai.2) and it is a potential offence to fail to disclose this under s.3 The Fraud Act (p140,para5). I knew first hand of the hard-line approach that could be taken by the Trust as I was disciplined for “fraud” and received a warning following a mistaken travel claim in 2009 (p181-182) and in respect of the County Court action against me referred to above. However, the Trust did not apply these policies consistently. 5. The NHS was and is under huge financial pressure p251, p257 and my role as CD involved close scrutiny of finances. I started receiving monthly financial reports in September 2012. Concerns were reported to me regarding inconsistent practices for rewarding additional work p250. It was important to me that there was complete transparency over payments and that Trust policies were followed (p288-289 and applied.”

[117]It is not in dispute that these polices were in place, nor that the Respondent was experiencing difficult finances at that time. The Claimant did seem certain and genuine in cross examination as to his concern about fraud and the public finances. He confirmed in cross examination that he still believes that AC is guilty of fraud and the Trust management are complicit.

[118]It was put to the Claimant in cross examination that by him, while the mediation process was live, sending his alleged protected disclosure five to the GMC it was a serious attack against professional colleagues, a two-faced response. The Claimant responded that he has a right to respond to the allegations against him. We would observe that this is more than responding to allegations it is making allegations against his colleagues which, in the middle of a mediation process would not be helpful and may be a reason for its ultimate failure. The Claimant did confirm that if there had been a further mediation arranged, he would raise his allegations of fraud by AC with the parties.

[119]On the 5 October 2015 PL writes to the Claimant enclosing the EN report (see page 466) and says: “ ”

[120]We note from the EN report (page 471) that it says … “The series of cases presented to me, and the way in which they are presented do not in my opinion present sufficient evidence to call into question the practice of MI.”. At the end of the report it is recorded (page 472) … “It is my opinion that the allegations that have been made and the clinical scenarios they portray suggest a significant breakdown of communication within the department which could in itself put patient safety at risk. I would suggest attempts are made address this issue as a matter of urgency.”.

[121]It is then by letter dated 19 October 2015 that the Claimant writes to AC, MS, MNS, and BD (page 473) stating: “ ”

[122]The Claimant was asked about this letter in cross examination and he agreed that what he wrote was to tell his colleagues that they had got it all wrong, they were unsuccessful, and they need to bury it. He was asked if he thought this letter was on reflection wise and sensible. The Claimant confirmed that it was, although if he had to redo it knowing it offended them, but it is how he felt, he had to tell them off.

[123]This correspondence did not go down well with his colleagues who responded on the 2 November 2015 (see page 488) saying: “ ”

[124]This response is generated by the Claimant’s correspondence in which he wants to tell his colleagues off. It relates to the way the Claimant is communicating with them. His colleagues say it demonstrates poor leadership by the Claimant which is what their concerns have been about. This expression of their views at this stage is therefore completely independent of any alleged disclosures the Claimant may have made up to this point.

[125]By email dated 18 November 2015 MS, AC, MNS and BD write to the Claimant to complain about the distribution of work in job plans sent to them by the Claimant on the 12 November 2015 (see pages 490 to 491). This is correspondence generated by what the Claimant says to his colleagues about job plans and is not related to any alleged protected disclosures the Claimant says he has made.

[126]The agreed chronology records that in November 2015 the GMC’s expert report from Professor Lamont is received and we are referred to the conclusion at page 521. This records that: “ ”

[127]The Mr S referred to is MNS about which the Claimant says he made a protected disclosure (alleged disclosure 6) on the 28 August 2015. However, we would observe that as the GMC referral (May 2015) and the clinical concerns being investigated (there are no medical reference dates post the 17 August 2015 (see page 509) the majority being in 2013/2014), all predate the alleged disclosure, it would appear that the observed acrimony between the Claimant and MNS can have nothing to do with any alleged protected disclosures the Claimant has made about MNS. Alleged Protected Disclosure 4: Verbal disclosure to Tony Hall during a meeting towards the end 2015

[128]Chronologically we then get to the Claimant’s alleged protected disclosure four, that he submits (as confirmed in closing submissions) was a material influence for alleged detriment 5.

[129]The parties agree that the Claimant met TH towards the end of 2015 and raised concerns about payments being made to his colleague Alison Cooper.

[130]The Claimant says in the agreed list of issues that during this meeting he disclosed information in respect of on-call overpayments to Alison Cooper and Mr Siddig, overpayments to Alison Cooper for extra colposcopy work which had not taken place, information regarding Beena Dandawate’s allegedly fraudulent behaviour in respect of leave arrangements to attend an RCOG congress in India. The Claimant says that this information tended to show that the Respondent, Alison Cooper, Mr Siddig and Beena Dandawate were failing to comply with legal obligations to which they were subject namely the employees’ own contracts of employment, implied terms of trust and confidence and the Respondent’s Overpayments Policy. This information, in the Claimant’s committed by the employees in question as under the Theft Act 1978 an

[131]The Respondent denies that this was a protected disclosure. The Respondent says that whilst other colleagues may have been mentioned, this was not in the context of concerns being raised about them. The Respondent says the Claimant did, however, mention that he had been reported to the GMC by his colleagues.

[132]It is not admitted by the Respondent that this conversation amounted to a protected disclosure. The Respondent says that there was no disclosure of any information tending to show a person or persons failing to meet their legal if further evidence came to light, he would be happy to investigate further.

[133]TH confirms in paragraph 1 of his witness statement that between 2012 and 2016 (so at the time of this alleged disclosure) he was the Fraud and Investigations Manager for the Trust.

[134]The Claimant addresses this alleged disclosure in paragraph 23 of his “Tony Hall (TH) from Counter Fraud contacted me on 28.01.15 p361 to arrange a meeting to discuss the situation with MS. Viv Leonard arranged a further meeting with me towards the end of 2015 to discuss the possible fraudulent payments being made to AC in respect of her HBPC role. I provided TH with a copy of AC job plan p460-464 and a letter from Trish Dyer (p456). He looked at the entry “HBPC — for meetings outside my working week” p464 and commented that it looked fraudulent and said he would investigate. He said he had dealt with another time fraud issue for another Consultant in the Trust and had corrected it. I then asked him to look at BD Study Leave application p554- 558 and I told him that I had polite conversations with BD and she had not put a claim in. TH commended me for preventing fraud in relation to this issue.”

[135]As this is an alleged verbal disclosure, we have considered TH’s witness evidence about what is alleged. He says at paragraphs 20 to 22 “20. MI asked me for a meeting at some point, possibly in 2015, to discuss alleged overpayments to his colleague, Alison Cooper [Consultant]. I met with him in his office, although I cannot recall when. He alleged that Ms Cooper was being paid to attend meetings that she was not attending and gave me a copy of her job plan. I do not recall him mentioning overpayments to Mr Siddig and/or any issues with Beena Dandawate [Consultant].”21. I took steps to investigate MI’s concerns. I spoke informally with Emma Hallett [Deputy Director of Workforce], Paul Lear [Medical Director] and Catherine Abery—Williams, in person. It was clear that I was not the first person MI had raised this issue with. The Trust was well aware of the concerns and was dealing with them. There was no reason for me to intervene.

22. I met with MI on 5 February 2016. I explained to MI that there was nothing further for me to do. I did not say I was “powerless” to investigate but procedurally, as the Trust was aware and dealing with the issue, there were no steps for me to take. MI may have said that he felt the Trust did not want the issue investigated, but I explained that was not the case….”

[136]TH denied in cross examination that he said to the Claimant that it looked fraudulent, he confirmed that he would never had said that. He did not recall saying it looked like time fraud. He also disagreed that he said he was told not to investigate the matter, confirming that part is nonsense and they cannot tell him not to investigate. He also confirmed his independence and that he was not put off, he says he was given an account that it had been looked at and dealt with, which he accepted.

[137]CAW does confirm what TH says, see paragraph 13 of her witness statement: “13. Tony Hall did ask me about the overpayments. I confirmed to him that both Mr Siddig and Ms Cooper were not disputing the overpayments. There had been a mistake by the Trust and so the Trust was dealing with the matter. There was no alleged fraud and therefore Tony said there was nothing for him to Investigate. This was not an attempt by the Trust to curtail an investigation. To my knowledge, the matter of the overpayments was nothing to do with MIs dismissal in November 2018.”

[138]CAW’s witness evidence refers to the on-call matters and neither PL nor EH refer to speaking to TH in their witness statement as TH refers to in his witness statement. It was not put to PL or EH that they did not communicate with TH as he says, therefore we accept what TH says.

[139]We also accept what TH says the Claimant discussed with him … “… alleged overpayments to his colleague, Alison Cooper [Consultant]. I met with him in his office, although I cannot recall when. He alleged that Ms Cooper was being paid to attend meetings that she was not attending and gave me a copy of her job plan.”.

[140]The agreed chronology records (at paragraph 72) that on the 18 January 2016 the Claimant attends a 2-day GMC Interim Orders Tribunal hearing. We are referred to pages 542 to 550 about this and with particular reference to page 549, saying that the Claimant is exonerated. Having reviewed that page, it says: “ ”

[141]This says that it is not the Claimant’s sole responsibility, but note what is suggested is … “a significant breakdown of communication within the department which could put patients at risk.” (paragraph 17).

[142]By email dated 25 January 2016 the Claimant writes to PL saying that the allegations against him are malicious, and… “ ”

[143]The Claimant suggests it is possible racism and the anger has been directed against him due to the implementation of trust polices, and not therefore “the blowing of the whistle”.

[144]We record from the agreed chronology that it was in January 2016 that the Claimant steps down as Clinical Lead (see paragraph 74 of the agreed chronology).

[145]It is then on 1 February 2016 that AC is appointed as the Claimant’s replacement as Clinical Director (see paragraph 75 of the agreed chronology).

[146]It is then on the 5 February 2016 that the Claimant corresponds with the GMC about BD’s allegedly fraudulent study leave application in 2014 (see pages 552 to 558). It is unclear why this is pursued by the Claimant at this point, as he is no longer in the CD role, and it was the Claimant’s evidence that this issue was resolved by him.

[147]It is agreed (as per the agreed chronology (see paragraph 76)) that in February 2016 the Respondent engages Mr Hisham Rahman and Mr Ed Neale to conduct a review of O&G department and the report is then produced on the 1 March 2016 (as confirmed at paragraph 80 of the agreed chronology) which can be seen at pages 560 to 578.

[148]We note from that report the following:a. Page 563 – the terms of reference for the report record that the concern is that the standards of care provided by the O&G Department fall below that which is acceptable to the Trust, and one of the six matters identified as being of particular interest is … “That they can function as a team.”

b. Page 573 – the findings and conclusions section: “ ”

c. Page 574 – there is reference to a perceived lack of consistency, two consultant factions and the referrals to the GMC … “ ”

d. Page 577: “ ”

e. Page 578 – the recommendations: “ ”

[149]We note about all this that as AC has only been in post for a month, this report would be flagging matters as to how the team was operating under the Claimant’s lead and this raised, risks of poor patient care and experience. This is a full and detailed report into the situation.

[150]It is submitted to us by Respondent’s Counsel that … “Objectively, the Neale/Rahman service review in February 2016 identifies the dysfunction as a lack of consistency of medical leadership within the department leading to 2 factions p574”. This is what the report records and it would relate to when the Claimant was in the CD role as AC only took on the role from the 1 February 2016.

[151]By email dated the 2 March 2016 the Claimant sends an email to (as the agreed chronology refers to them) … “supportive colleagues” about the IOP outcome (see page 580). The Claimant says: “ ”

[152]The Claimant accepted in cross examination that he did not have the agreement of his other colleagues to make such an apology on their behalf. The Claimant having written and circulated such a statement without consent is unlikely to assist in eliminating dysfunction in the O&G department.

[153]The Claimant continues to provide further material to the GMC about his colleagues as can be seen with the references at paragraphs 82, 83 and 85 of the agreed chronology. On the 4 March 2016 he corresponds with the GMC about the MS alleged fraud matter (see page 581). On the 11 March 2016 he corresponds with the GMC about AC performing on call duties from her home outside the permissible travel time to the hospital (see page 585). On the 21 March 2016 the Claimant provides information to GMC in relation to the AC PA matter asserting there was little if any evidence of them having taken place (see page 588).

[154]Although not in the bundle of documents it would appear that PL receives a letter from the GMC seeking information on AC. It may be that the GMC does so on the back of the recent correspondence sent to it by the Claimant.

[155]By letter dated 19 April 2016 EH replies on behalf of PL (as he is on annual leave and asked EH to do so) to the GMC (see page 597). The letter says about the AC PA matter: “ ”

[156]The Claimant refers to this correspondence from EH to the GMC in paragraph 36 of his witness statement … “Emma Hallett (EH) Head of Operational HR wrote to GMC with the Trust’s response to my disclosures on 19.4.16 p597-600. It is highly significant that she makes the direct connection between my whistleblowing concerns about the probity of AC and MS and their complaints to the GMC about me. She refers to ‘two consultant factions’, She states that she had no reason to believe that AC was aware of the overpayments prior to January 2014. EH provided information about the extra PA’s (pp597- 600) without any investigation into this issue. The information she has provided was incorrect and in my view EH deliberately misled the GMC.” “… At best EH was unprepared to properly investigate the issues of financial probity raised, at worst, she sought to cover up the financial irregularities.”.

[157]Based on the way that the Claimant has confirmed he argues his case this is a crucial piece of correspondence. The Claimant submits that this is wrong information that ultimately leads him to being seen as the “dog with a bone”, rather that the “conscientious whistle-blower”. It is the Claimant’s case that this wrong information was created by EH on the grounds of his alleged protected disclosure five to the GMC.

[158]EH was cross examined about what she wrote to the GMC. She was asked if the paragraph about AC’s PAs was designed by her to assure the GMC that there were no ongoing issues re PAs. EH confirmed that it was her account of that issue. She was asked how she knew that the PA issue was resolved in 2013 and she confirmed that she did not know it was resolved at that time, but that she was able to resolve subsequently. EH explained that in her view the job plans, and PA position, resulted in a neutral position i.e. no gain for AC. EH was then asked if broadly speaking was she trying to help out AC by writing the letter, and she confirmed no, that was the facts.

[159]EH was not challenged in cross examination that what she did was because of alleged protected disclosure five or any other particular disclosure. We note that this is not an allegation made against EH until closing submissions. We address this factual matter further under alleged detriment five below.

[160]Chronologically we then get to the alleged first detriment which has now been withdrawn so we do not need to address this matter, as PL’s conduct at this time is no longer being challenged by the Claimant.

[161]By email and letter dated 17 May 2016 the GMC write to PL with the outcome of its investigations into the allegations of misconduct made by AC, MS, MNS and BD (see pages 616 to 624). The agreed chronology highlights from this (with reference to page 624) that … “It is not the regulators place to decide on the rights and wrongs of internecine disputes”.

[162]A letter dated 19 May 2016 from PL to the Claimant records matters discussed at a meeting between the Claimant, PL, CAW and the Divisional Work Force Manager on the 12 May 2016 (see pages 625 to 627). It records (at page 626): “ ”

[163]The Claimant was asked in cross examination what he meant by “differing cultures”. He explained that MS is from Sudan and MNS from Egypt, the same part of Africa so they will be with each other on everything whether right or wrong. The Claimant was asked if this is what he was referring to when asserting that he believes racism was a primary motivator for MS and MNS. The Claimant responded that he was only talking about their culture, threatening comments, singled out because of race and because of religion. He was asked if he thought racism may have played a part and he replied it may have, he did believe that was why they did not threaten MS. It was put to the Claimant that he also mentioned religion and the Claimant responded by saying he takes back religion but stands by being singled out because of race. He was asked if he was accusing PL of racism and the Claimant said that is how he felt at the time because of their race. The cross-examination questions then moved to alleged detriment one which has now been withdrawn.

[164]The responses by the Claimant to these questions do not support that he is being acted against in his view for whistleblowing reasons. The Claimant does raise allegations of race discrimination in his submissions to the panel hearing, but they are not part of his claim to this Tribunal. It is difficult to see how the Claimant could work with MS and MNS moving forward if he held these views about them. Alleged Protected Disclosure 6A: Verbal disclosure to Patricia Miller during meeting on 19/5/16

[165]Chronologically we then get to the Claimant’s alleged protected disclosure six A, that he submits (as confirmed in closing submissions) was a material influence for the alleged detriments 6, 7 and 8.

[166]The parties agree that there was a meeting between the Claimant and Patricia Miller (“PM”) the CEO in 2016 when the dysfunction of the gynaecology team and the detrimental impact on patient safety was discussed. The Claimant says this meeting took place on 19 May 2016. The Respondent says this meeting was in early 2016 but does not confirm the date.

[167]The Claimant submits in the agreed list of issues that this verbal discussion was a protected disclosure to his employer. The Claimant says he provided information in the form of two examples where patient safety was being detrimentally affected.

[168]The first example involved the Claimant’s colleagues, Mr Shoukrey, Mr Siddig, Miss Dandawate and Margaret Perumalla in a delayed surgical intervention for an emergency admission in the week commencing 9/5/16. The Claimant says he informed Patricia Miller that due to a disagreement between the above colleagues regarding who should carry out the emergency surgery on this patient, there was more than 48 hours delay in taking her to theatre.

[169]The second example was in relation to Mr Siddig supervising Mr Shoukrey’s surgical work on 20/1/16 in respect of a specialist surgical procedure, which he did not himself undertake. Brenda O’Connell, the Theatre Nurse in charge of the Day Surgery theatre list on 20/1/16 raised concerns about this with Mr Siddig on 20/1/16 (confirmed in writing on 16/3/16). Matthew Hough (Consultant Anaesthetist) witnessed this and approached the Claimant on the same day in the afternoon at the private Winterbourne Hospital and his words were “Ifti, what is going on between MS and MNS? The Theatre staff in Day Surgery were very unhappy today and were questioning MS.....” It was understood that Mr Siddig was supervising Mr Shoukrey with a view to preparing a satisfactory report on his operating skills, in order to ease the restriction on his practice. Some of the consultants, including the Claimant had reservations regarding this arrangement due to the common knowledge of collusion between the two of them. The Claimant says the arrangement on 20/1/16 placed patient safety at risk as Mr Siddig did not have the skills to supervise the specialist procedure being undertaken.

[170]The Claimant’s case is that these disclosures relate to potential danger to the Health and Safety of individuals in the Respondent’s care. The disclosures were made in the public interest as the Respondent is a public body providing care to members of the community.

[171]The Respondent denies that this verbal discussion was a protected the fact that colleagues reporting each other to the GMC was unhelpful. The Respondent decided that the issues which the Claimant had raised should be considered under the Trust’s Whistleblowing Policy and an independent investigation was commissioned into the same. The outcome was fed back to the Claimant, together with a copy of the independent report, on 21st July 2016. The Respondent will say that the Claimant did not consider these concerns were raised as protected disclosures at the time and that he confirmed in his grievance dated 15 August 2018 that it was the Respondent that had taken this step.

[172]The Respondent denies that the conversation was considered by the Claimant to be a protected disclosure and thus denies that it should be regarded as meeting the relevant statutory definition.

[173]The Claimant addresses this disclosure in paragraphs 49 to 51 of his “49. I met with PM on 19.5.16 to complain that since leaving the CD role I had been discriminated against and subjected to bullying and harassment by my colleagues. AC and CAW had provided inaccurate information to PL and as a result of this PL had behaved in a threatening manner a week earlier. PM dismissed my concerns but asked me directly whether team dysfunction was affecting patient care. I confirmed that it was and I gave two examples: The first involved my colleagues MS, MNS, BD and MP in a delayed surgical intervention for an emergency admission in the week commencing 9.5.16. Due to a disagreement between the above colleagues regarding who should carry out the emergency surgery on this patient, there was more than 48 hours delay in taking her to theatre.50. The second example related to MS supervising MNS’ surgical work on 20.1.16 in respect of a specialist surgical procedure, which he did not himself undertake. Brenda O'Connell, the Theatre Nurse in charge on 20.1.16 raised concerns about this with MS on 20.1.16 (confirmed on 16.3.16 p 587a) ) Matthew Hough (Consultant Anaesthetist) witnessed this and approached me later on the same day at the Winterbourne Hospital asking me what was going on between MS and MNS and highlighting how unhappy theatre staff had been about the situation. It was understood that MS was supervising MNS with a view to preparing a satisfactory report on his operating skills, in order to ease the restrictions on his practice. The arrangement on 20.1.16 placed patient safety at risk as MS did not have the skills to supervise the specialist procedure being undertaken. I gave PM an email from the GMC confirming the second referral p608-609, PM Indicated this was all going to the CQC and the GMC and she would need to speak to PL.

51. The Trust treated this conversation as a protected disclosure and commissioned a whistleblowing investigation by Richard Jones dated 24.5.16 at p632-633.”

[174]As this is an alleged verbal disclosure, we have considered PM’s witness evidence about what is alleged. She says at paragraph 4: “4. My own direct involvement in the facts leading to Ml’s Tribunal case began in a meeting I had with him in early 2016, I cannot recall the precise date of our meeting but note that Ml states it took place on 19 May 2016. MI had requested a meeting and my recollection is that he spent the majority of the time speaking about the breakdown in relationships between the consultants in the O&G team, He talked about the fact that he had been the subject of multiple referrals to the GMC but I explained that my understanding was that there had been several referrals to the GMC “each way". I explained that my view was that such referrals and cross referrals were unlikely to improve those personal relationships. I asked MI several times if he was saying that he thought dysfunctionality within the team was leading to patient safety issues. After he agreed that this was what he was saying I said to him that I would therefore need to discuss this with the HR Director and Medical Director as it was potentially serious. I do not recall MI giving me specific examples or instances when he said that patient safety had been compromised. MI certainly did not say to me that he felt he had been discriminated against or victimised by his consultant colleagues. As someone who is mixed race herself I would have certainly picked up on any suggestion of discrimination and insisted that it be formally investigated. I did not, I am sure, appear nervous or speculate about matters ending up before the GMC and CQC as MI suggests not least because it was clear the GMC were already involved. With a dysfunctional team the CQC would already have been aware of this following my regular quarterly catch up meetings with them. MI did not state that he was raising whistleblowing concerns or that he intended to make a disclosure in accordance with any of the relevant Trust policies and procedures. Rather, I took the initiative and said that we would need to look into the issues he had raised. This is what led ‘to the Trust instructing Richard Jones, an external consultant, to undertake a view of the team ~ terms of reference page 632 of the bundle.”

[175]PM in cross examination indicated that the Claimant may have set out the specific examples that he refers to in his witness statement.

[176]On the 24 May 2016 PL instructs Richard Jones (“RJ”) to conduct a ‘whistleblowing investigation’ into the contention that the breakdown of relationships is detrimentally affecting patient safety’. The terms of reference say (see page 632) … “ ”

[177]As noted by Claimant’s Counsel in his written submissions the examples the Claimant says he raised with PM are examples addressed in the report of RJ completed on the 23 June 2016 (see page 706).

[178]We have also noted that in the letter dated 21 May 2016 from the Claimant to PL referring to a campaign of bullying and harassment towards him (see page 631), it says it is cc to PM with the Claimant writing … “I met with her on the 19.5.16 to discuss my concerns”.

[179]For these reasons we accept the Claimant’s account about this matter.

[180]Between the instruction of RJ and the circulation of RJ’s report chronologically we get to the alleged second detriment concerning the Claimant’s arrest, which has now been withdrawn. As this has been withdrawn, we have not spent time recording findings of fact on this matter, save to note that a third party raised the allegation, the Police were involved and ultimately no further action is taken against the Claimant. Also, on the 7 November 2016 the agreed chronology records (at paragraph 129) that the Claimant meets with PL and receives an apology for distress caused by the arrest (see page 848).

[181]It is on the 20 July 2016 that PL writes to those concerned to confirm the outcome of RJ’s whistleblowing investigations (see page 757).

[182]The conclusions from RJ’s report record (see page 708): “ ”

[183]There is then some final comments on the relationships (see page 709) suggesting that “a line in the sand” be drawn: “ ”

[184]There was no finding that the breakdown of relationships was detrimentally affecting patient safety, and this is highlighted in PL’s letter: “ ”

[185]By letter dated 21 July 2016 PM writes to the Claimant following the disclosure of the RJ report (see page 759). It says: “ ”

[186]PM addresses this matter in paragraphs 5, 6 and 7 of witness statement: “5. After we received Mr Jones’ report I wrote to MI with a copy of it on 21 July 2016 (page 759). In my letter I summarised that Mr Jones had not found evidence to support MI’s contention that the breakdown in relationships within the O&G team was detrimentally affecting patient safety. However, he had found clear evidence of a breakdown in relationships within the team. 6. I stressed that it would be naive for the Trust to assume that such relationship problems could not affect patient safety and urged MI to consider his own role and responsibility in seeking to resolve such relationship issues going forward. 7. Ml did not reply to my letter.”

[187]PM was cross examined about this letter; it being suggested to her that it was intended as a threat to the Claimant. PM confirmed that what she intended is what the letter says. Having considered how the matter was raised, what the outcome of the RJ investigation was we accept what PM says about what she wrote and why.

[188]By letter dated 28 July 2016 PL writes to the Claimant inviting him to a meeting to discuss the Rahman review. In the letter the Claimant is accused of misleading the Trust in respect of who it was that raised concerns about MNS practice of resecting fibroids (see page 762): “ ”

[189]On the 6 September 2016 the Claimant meets with the Divisional Director Julie Doherty (“JD”) and PL to discuss this letter. The agreed chronology records that the Claimant maintained that MS and BD had raised concerns over MNS’ practice and he was not surprised they had denied this. See PL’s letter dated 13 September 2016 (page 799).

[190]As we have already noted though, the emails the Claimant relies upon do not appear to support a change of view by BD or MS. Alleged Protected Disclosure 7 Verbal disclosure during meeting with Catherine Abery-Williams on 31/10/16

[191]Chronologically we then get to the Claimant’s alleged protected disclosure five, that he submits (as confirmed in closing submissions) was a

[192]The parties agree that there was a meeting between the Claimant and CAW on or around the 31 October 2016.

[193]The Claimant asserts in the agreed list of issues that during this meeting he provided Catherine Abery-Williams with information about overpayments being made to Alison Cooper for her Hospital Based Pathology Co-ordinator Role (HBPC). The Claimant says this information tended to show that the Respondent and Alison Cooper were failing to comply with legal obligations to which they were subject namely the employees’ own contracts of employment, Policy. The Claimant says that this information, in his reasonable belief also tended to show that a criminal offence may be being committed by Alison Cooper as under the Theft Act 1978 an employee may be guilty of theft by keeping salary overpayments and treating them as their own. The Claimant says his belief was reasonable and made in the public interest as the

[194]The Respondent denies any protected disclosure was made during this meeting. The Respondent says that the Claimant repeated previous concerns about Mrs Cooper and payment in respect of her HBPC role. The Respondent says there was therefore no disclosure of new information tending to show any breach of any legal obligation or any tendency to commit criminal acts. Further, the Respondent does not agree that it would have been within the reasonable belief of the Claimant that raising such issues was at that time, in the public interest, given that the issues had previously been raised in 2013 and dealt with by the Trust.

[195]About this disclosure the Claimant says, at paragraphs 71 and 72 of his “71. There remained unresolved issues about my job plan p766-770, 787-791, 878-879, 893. Oddly my protected trainee time had been removed, even though I still had a trainee, my protected time for office based admin had also been removed and protected time for a bi-monthly locality cancer meeting which had been removed p1363. All of this had been removed without any consultation with me by AC. I was already working more PA’s than I was being paid for and these changes would add to this p589. During a job plan meeting between all the O&G consultants and Family Services management on 21.9.17 (p1072,1073) once again I asked for transparency regarding time allocation for Lead roles. AC was categoric when she said “senior management would never agree to it”. 72. On 31.10.16 I met with CAW and AC to discuss the situation p844. As soon I started raising the issues with my PA’s directly with AC, she (AC) left the meeting saying she had another meeting to go to. After AC had left, I provided CAW with information about overpayments being made to AC in her HBPC role I provided a copy of AC electronic job plan p478-481. I also provided CAW with evidence regarding meetings related to the HBPC role p456. CAW said, “it looks fraudulent”.

[196]As this is an alleged verbal disclosure, we have considered CAW’s witness evidence about what is alleged. She says at paragraphs 23 to 25 … “23. Alison Cooper and I met with MI on 31 October 2016. The purpose of the meeting was to discuss Ml’s job plan. 24. At the meeting, MI turned the discussion around and shifted the focus onto issues he had raised previously around Ms Cooper's payment for a role as HBPC ("Hospital Based Pathology Coordinator’) and payment for colposcopy clinics. MI was querying what evidence there was that Ms Cooper was carrying ‘out the HBPC role and doing the colposcopy clinics, and therefore whether she was being overpaid. I do not recall MI providing me with any evidence of his allegations at the meeting, such as Ms Cooper's job plan ~ I would have been able to access Ms Cooper's job plan myself if necessary. I did not say that I agreed with MI but did say I would look into the issue, as I was aware it had been raised previously and my understanding was that it had already been resolved but I wanted to check. The meeting got quite heated - MI was speaking quite unpleasantly to both myself and Ms Cooper. Fortunately, Ms Cooper had a prior engagement to attend and left part-way through. the meeting. My handwritten note of the meeting can be seen at page 844. 25. Immediately after the meeting on 31 October 2016, I called Ms Cooper to check she was ok, and then I called Paul Lear to inform him of how the meeting had been conducted and that MI was raising historic issues. MJ had already raised the Issue of Allison Cooper's job plan and overpayments in 2013, and had been assured at that time by Will Ward that it was a genuine mistake at the Trust end [309].”

[197]CAW was asked about this meeting in cross examination and confirmed that she could not remember if the HPBC matter was raised completely or specifically in front of AC, but she could recall the Claimant raising PAs before AC left. CAW confirmed that she thought the Claimant had acted in an unprofessional way in front of AC.

[198]CAW was asked whether in her knowledge the matter was resolved in 2012. CAW replied that WW had investigated and concluded there was no intention of fraud, she had done extra session, then CAW believed that WW had reverted back to the Claimant and if there was further information then the Claimant should come back. CAW was asked if she had knowledge that there had been a complete investigation into the issues of PAs and she confirmed that she was satisfied that WW had done an investigation.

[199]From this it is clear in our view what has been raised by the Claimant as to the information and his belief.

[200]By letter dated 10 November 2016 (pages 852 to 853) PL writes to the Claimant confirming that CAW and AC had reported that the recent job planning meeting had been very difficult. The Claimant is accused of a worsening attitude and raising issues that AC had acted fraudulently in respect of her HBPC role. The letter says (at page 852): “ ”

[201]We note from this letter that an issue of concern for the Respondent is that CAW and AC found the Claimant to be bullying and threatening towards them both, interrupting them frequently. This relates to the Claimant’s conduct at the meeting towards both CAW and AC and not to what he then says specifically to CAW about allegations of fraud about AC.

[202]We note from this letter that PL conveys his understanding that the matter of AC’s PAs was clarified during the job planning process with WW when the Claimant was CD. There is nothing to suggest that PL recorded this position because of any alleged protected disclosures the Claimant may have made.

[203]The Claimant says he did not receive this letter until after his meeting with JD on 20 February 2017. It is noted in the chronology (at paragraph 135) that it is on the 21 February 2017 CAW emails the Claimant a copy of the letter dated 10 November 2016 (see page 894).

[204]The Claimant was asked about the 10 November 2016 letter in cross examination and he confirmed that the job planning meeting was an opportunity for him to raise fraudulent behaviour, it was a turning point for him, he was not going to let it go. He was asked if he thought a job planning meeting like this was the appropriate forum to make the allegations. The Claimant confirmed, of course, the job plan is interlinked, job plans are interlinked the department is given money, if one person overpaid and another under paid, that is the forum.

[205]We have considered the Claimant’s email dated 27 February 2017 at page 894 and it supports that the issue here is his conduct at the meeting not what he was saying: “ ”

[206]As AC records in her email dated 21 September 2017 about job plan meetings (see page 1059) “ ”

[207]During the cross examination of Sophie Jordan (“SJ”), we were also made aware of a similar meeting where the conduct of the Claimant is raised.

[208]SJ was being asked about comments she was credited with in the Richard Boniface report. At paragraph 2.56 at page 1501, SJ is credited as saying the Claimant is overbearing and dictatorial. SJ confirmed that she had witnessed that in a meeting, and they were her words. SJ says she confirmed he was bullish with AC (as mentioned in paragraph 2.54 of the notes). “ ”

[209]The Claimant then on the 10 February 2017 corresponds with Julie Doherty (“JD”) about issues over his job planning, raising concerns over unilateral job planning decision about his job planning (see page 878). This then leads to the meeting with JD where alleged disclosure eight is said to have been Alleged Disclosure 8: Meeting with Julie Doherty 16/2/2017 [now said to be 20/2/2017]

[210]Chronologically we then get to the Claimant’s alleged protected disclosure eight, that he submits (as confirmed in closing submissions) was a

[211]The parties agree that the Claimant brought the issue of irregular payments being made to Alison Cooper to Julie Doherty during the period when Julie Doherty was Divisional Director. The Respondent cannot recall the date. The Claimant now says in evidence that this was on the 20 February 2017.

[212]The Claimant submits that the information disclosed to Julie Doherty during this meeting was a protected disclosure to his employer. The Claimant says he presented an electronic copy of Ms Cooper’s job plan to Julie Doherty and informed her of the fraudulent entry of 4 hours entitlement for the HBPC role (her entry being “meetings outside my working week”). The Claimant says that this information, in his reasonable belief, tended to show overpayments being made to the Respondent’s employees. The Claimant says that this tended to show that the Respondent and Alison Cooper were failing to comply Overpayments Policy and/or that a criminal offence may be being committed by Alison Cooper as under the Theft Act 1978 an employee may be guilty of theft by keeping salary overpayments and treating them as their own. The

[213]The Respondent denies that the discussion between the Claimant and Julie Doherty amounted to a protected disclosure. As the matter had previously been investigated by the previous Divisional Director, the Respondent says that the Claimant agreed that allegations would not be reinvestigated.

[214]What the Claimant says about this is at paragraph 73 in his witness statement: “73. During a meeting with JD on 20.2.17 explained that my Job Plan was well over 10 PA’s p589 and I asked again for corrections to be made (p893). I also asked JD to investigate the issues with AC’s job plan and in particular her HBPC role. I presented JD with an electronic copy of AC’s job plan p478-481 and Trish Dyer’s letter p456. JD said, it appeared fraudulent but she would not reinvestigate. JD then mentioned a letter sent by PL following the meeting on 31.10.16.. I had not received this letter and CAW forwarded it to me, the next day. The letter from PL dated 10.11.16 and associated internal emails are atp850-853. I was upset that my legitimate concerns about my job plan were conveyed to PL as me being disruptive because AC said she felt threatened by my behaviour. This letter indicated that it was not helpful to raise historic issues which had previously been dealt with (referring to the information disclosed about AC job plan). However, this matter had not been dealt with - it had never been investigated by the Trust. I raised my concerns by email p 894-895 but I did not receive any response. All I wanted was transparency in job planning and I had strong suspicions that AC was being paid more than she was entitled to and this ought to be investigated. The issues with my job plan continued p922-924 and AC complained again about me querying her 8PA p1059-1060.”

[215]As this is an alleged verbal disclosure, we have considered JD’s witness evidence about what is alleged. She says at paragraphs 3 and 4: “3. I agree that I met with MI about job planning in February 2017. In his claim form, MI states that this meeting was on 16 February 2017. I do not recall the specific date but agree that we met. Ml raised questions with me about payments that had been made to his colleague Alison Cooper for her HBPC role. I checked with Catherine Abery-Williams who explained to me that various payments to Miss Cooper had been looked at by the previous Divisional Director Will Ward who had concluded that there was no fraudulent behaviour on Miss Cooper’s part. My recollection is that when I explained this to MI he accepted that we would not reopen that investigation. 4. I do not recall MI showing me an electronic copy of Miss Cooper's job plan. I did not say to him that it appeared to me that Miss Cooper had made a fraudulent claim.”

[216]From this it is clear in our view what has been raised by the Claimant as to the information and his belief.

[217]Chronologically we then get the Claimant’s email to PL dated 27 February 2017 (see page 894 and as mentioned above) where the Claimant confirms that he never brought up this matter with AC directly, which we note is what WW was directing him to do (as referred to above and as set out by WW in paragraph 4 of his witness statement).

[218]It is then on the 30 June 2017 that the Claimant writes to TH in relation to his original contact with him over potential fraud concerning AC (see page 930). TH did not reply, and the agreed chronology records the Claimant follows it up with a phone call a few weeks later. The Claimant having confirmed in cross examination that his job planning meetings were the correct forum to raise matters of fraud concerning AC there appears to be no obvious reason for this change of direction now.

[219]The agreed chronology records at paragraph 144 that on the 6 July 2017 PL writes to the Claimant regarding a new matter relating to his private treatment of a cancer patient. The Claimant is subject to restricted duties. He is released from the Cancer lead role (see page 932). There was then an investigation carried out (see pages 935 to 937). This matter relates to the alleged third detriment which is no longer pursued as a complaint of detriment by the Claimant.

[220]The agreed chronology records at paragraph 160 that on the 12 January 2018 there is a disciplinary hearing (alleged fourth detriment) where Richard Jee (“RJ”) presents a case against the Claimant (see page 1268). This matter relates to the alleged fourth detriment which is no longer pursued as a complaint of detriment by the Claimant. We have therefore factually not dwelled on this matter in our fact findings but do record that the Claimant did accept in cross examination that him being allowed to submit documents late in the disciplinary process and attend the hearing with a solicitor were all reasonable actions by the Respondent. About attending with a solicitor, the Claimant was evasive and defensive when asked if he had sought permission to attend with his solicitor, before he turned up with her. He ultimately confirmed he had not, asserting it was not an issue for the Respondent. The agreed chronology then records at paragraph 161 that by letter dated 15 January 2018 the Claimant was issued with a first written warning (see page 1355 to 1356). The Claimant is also informed that he should not return to the cancer lead role. Alleged Detriment 5 – The Edgecumbe Report

[221]It is on the 15 February 2017 that PL makes initial contact with Edgecumbe Consulting seeking help in relation to the problems in the O&G department (see page 881). We note chronologically this is prior to the eighth alleged protected disclosure referred to above.

[222]It is recorded in the agreed chronology (at paragraph 137) that on the 8 March 2017 PL and CAW make an unsolicited visit to the Claimant to inform him that there was going to be an investigation into the department by Edgecumbe Consulting. The agreed chronology says that the … “focus was on C” and we are referred to page 899. Looking at the notes from the meeting with the Claimant it doesn’t suggest this, they record: “Talked about ongoing issues/relationships in dept, lack of cohesiveness Explained Edgecumbe + how teams function, psychology And asked to come into dept to look where problems are + solveable Had in history explained changes needed to be made Its v.expensive Asked if happy to engage in process – replied yes. Agree it should work better but doesn’t + not cohesive ‘will be open + honest + co-operate’. Bmth, poole look @ us as dysfunctional. PL explained will want to do some depth conversations, etc with some used MI and MNS relationship as an example. Will talk to MI in depth + MNS in depth (NCAS will feed into this) more than others.”

[223]If there is to be a focus it is on the relationship between the Claimant and MNS.

[224]It is then on the 13 March 2017 (see paragraph 138 of the agreed chronology) the Claimant writes to PL expressing his concerns as to being singled out and references ‘a campaign of bullying’ (see page 901). Considering this document we note that the Claimant does not say that what is happening is because of any of the alleged disclosures that he has made up to this point, and he refers back to his email dated 27 February 2017 (see page 894 and as also referred to above).

[225]The agreed chronology records at paragraph 141 that on the 12 June 2017 Dr Megan Joffe (“MJ”) (the Edgecumbe investigator) has two conversations with AC before amending her original proposal for the investigation (see page 925). The agreed chronology then records (at paragraph 142) that there is then a formal letter dated 12 June 2017 from Edgecumbe to PL setting out scope of investigation, methodology and costs (see page 926).

[226]It is then on the 20 July 2017 that Sophie Jordan (“SJ”) revises the terms of reference (paragraph 146 of the agreed chronology) for Edgecumbe (see page 945). They say: “ ”

[227]About her instruction and the report MJ confirmed in cross examination, that the review was a request to hear peoples’ views and give their (Edgecumbe’s) judgment on the interpersonal dynamics.

[228]MJ confirmed that her findings and recommendations were absolutely genuinely meant, and it was then up to the Trust what to do. She confirmed that once the report is in it is up to them what they follow through on and it does depend on resources. It is stated in the opening paragraph of the recommendations: “ ”

[229]MJ accepted that the Claimant was being open and honest in telling her about all the things that he wanted to tell her about. MJ confirmed that she was aware of the long historical background, but she was not there to look at it. MJ recalls saying to the Claimant a number of times how does what he is telling her relate to what she needs to do which is looking at dynamics and that she is not there to look at alleged fraud. MJ confirmed that the Claimant had sent her things about alleged fraud, but it was not her job to look at those.

[230]In relation to the allegations concerning AC’s PAs, MJ confirmed that the Claimant had sent her a lot of documents and she had left that choice to him, asking of the Claimant how they are relevant to the current dysfunction and that he was unable to say how they related.

[231]MJ was challenged about the use of the word “difficult” about the Claimant in paragraph 88 of the report (see page 990): “ ”

[232]MJ confirmed that the word difficult is not in adverted commas it was a summary word from her as to what she heard that would make him a difficult individual. MJ confirmed that when she reviewed her notes of her interviews with Tilo Asmussen (“TA”) (this issue is raised about what it is suggested was said at paragraph 7 of TA’s witness statement) and Nora Vaitkiene (“NV”) (at paragraph 9 of NV’s witness statement) that they didn’t say the word difficult, but they described behaviour that contributed to her use of that description word. She understood why TA and NV would raise it as an issue in their evidence, because they had not used that word about the Claimant.

[233]MJ was cross examined about the changes made between the draft and final reports (at page 996 versus page 1076t), which related to what was said about the Claimant and MS. MJ confirmed that those came about after a general discussion with PL and PM where they asked if she could make the report clearer in respect of leadership. MJ confirmed that she thought this was a reasonable request and addressed it by making the additions she then did in her own words to make her findings clearer about the issues around leaderships. Alleged Protected Disclosure 9: Meetings with Megan Joffe from Edgecumbe 10/7/17 and 11/9/17 and interview by telephone on 27/9/17.

[234]The parties had agreed that the meetings between the Claimant and MJ took place on 19 July 2017 and 11 September 2017 and that there was a phone interview on 27 September 2017.

[235]The Claimant says that he made protected disclosures to his employer on these dates as it is averred that MJ was acting as the Respondent’s agent.

[236]The Claimant submits he provided MJ with information about all the allegedly fraudulent behaviour in the department, in particular over payments to AC and MS and his own arrest. The Claimant says he then sent supporting documents by email to MJ as set out in paragraph 33 of the Clarification document. The Claimant says the information provided tended to show that the Respondent, AC and MS were failing to comply with legal obligations to which they were subject namely the employees’ own contracts of employment, implied terms of trust and confidence and the Overpayments Policy. The Claimant’s case is that this information, in his reasonable belief also tended to show that a criminal offence may be being committed by AC and MS as under the Theft Act 1978 an employee may be guilty of theft by keeping salary overpayments and treating them as their own. Insofar as the Police arrest details were concerned, the Claimant says he was disclosing information tending to show a breach of legal obligation namely that the Respondent had wrongly involved itself in the arrest and questioning of the Claimant by the Police on false grounds which was unlawful and a breach of the implied term of trust and confidence. The

[237]The Respondent denies that any of the Claimant’s interactions with MJ and/or Edgecumbe constituted protected disclosures. The Respondent denies that MJ acted as agent for the Respondent and further denies that it was her role to investigate the alleged overpayments to the Claimant’s colleagues.

[238]About this disclosure the Claimant is very brief saying at paragraph 83 of his witness statement: “83. I was interviewed by MJ on 10.7.17 [amended to be 10.8.17] and 11.9.17 and had a telephone interview on 27.9,17. I sent MJ information by email to highlight my concerns that I was not liked because I was bringing effective management and accountability to O & G (p975a-b). I highlighted my concerns over AC's potentially fraudulent conduct over her job plan and the Trust's unwillingness to investigate (976a-d) and details of my arrest (977a-b).”

[239]Considering the submissions of Claimant’s Counsel on this matter … it is also addressed briefly … “MJ was sent the documents set out at para 33 of the amended clarification of claim. Central to this was the disclosure of the AC’s job plan and Trish Dyer’s email as discussed above. MJ was an ‘agent’ of R in that she was authorised by the employer by virtue of her instructions to receive information from C and others as part of her investigation into dysfunction. To that extent the disclosure to her was a qualifying disclosure under s 43C (2) ERA.”.

[240]Respondent’s Counsel submits that … “Tellingly, C sought to use E in order to further prosecute his complaints against his consultant rivals by seeking to influence (or dominate) the E process with his 3 interviews and raising allegations of fraudulent behaviour p976a;”.

[241]As we have already found MJ was not engaged to investigate matters of fraud, and we note that matters concerning the Claimant’s reasonable belief as to what he is disclosing and why it is in the public interest to make these alleged disclosures to MJ has not been specifically addressed in his witness evidence.

[242]The Edgecumbe report is completed on the 15 September 2017 (see pages 978 to 1000). The agreed chronology confirms that it is on the 5 January 2018 the Edgecumbe report is then distributed.

[243]Respondent’s Counsel in his submissions asserts that the report identifies that the Claimant is … “a serious source of tension if not the centre and cause of it.”.

[244]We were directed to the following paragraphs of the report, 94 to 96 (page 991), 119 (page 994), 123 (page 995) and 126 to 129 (page 995).

[245]Having reviewed these they do record findings such as … “… “the problem of Mr Iftikhar” which he may be exploiting. For example, Mr Iftikhar appears to concentrate a good deal of negative energy on those he sees as having less experience, power, authority confidence and status than himself. The problems this dynamic poses could be seen as a deflection from the real work of system redesign with which senior clinicians and senior management are inadvertently colluding.” (paragraph 94, page 991).

[246]Further at paragraph 95 (page 991) … “In summary, Mr Iftikhar presented himself as the party who has suffered most in the tensions and also as innocent of contributing to the tensions. At the same time he acknowledged that his colleagues found him challenging. Much of his narrative was about justifying his actions and raising questions about the way in which he feels he has been treated.”.

[247]We also note at paragraph 96 (page 991) how it is recorded that the Claimant was keen to talk about issues concerning himself more than issues related to team working, although he acknowledged there was a problem with it. Further that he consumed a greater proportion of time of the review, providing a great deal of information and requesting two additional interviews. The paragraph notes that … “… This reflected what we had described to us about his behaviour in the Trust and the experience of those around him, especially Trust managers.”.

[248]At paragraph 119 (page 994) … “The competition, rivalry and lack of trust between Messrs Iftikhar, Shoukrey and Saddig is detrimental to the functioning of this service as a whole.”. Further that the power struggle between MS and the Claimant seems central to the dysfunction. … “… together they form a destructive dynamic that is not working in support of a cohesive team and which inevitably has an impact on patient care. Additionally the shifting alliances between and behind these individuals makes for a highly unstable environment and an ongoing culture of a lack of trust.”.

[249]The dysfunction of the team is clearly identified and that it is a risk to patient safety (see paragraph 123 at page 995).

[250]At paragraph 126 (page 995) … “… the breakdown in trust in this team is such that the likelihood of the team being able to achieve safe and effective working within its current make-up is very small.”.

[251]We also note paragraph 128 (page 995) says that given … “the previous mediation exercise failed to result in any observable change in behaviour we do not feel that this option would enable this team to develop the trust that is necessary to begin the process of repair unless it was carried out in a very different way.”. Further it is observed that it is unlikely either the Claimant or MS would … “achieve behavioural change to an effective and sustained level” (paragraph 129, page 995).

[252]About the fifth alleged detriment the Claimant says that the Edgecumbe Report findings were detrimental treatment of him by Paul Lear and Patricia Miller who commissioned the report and by Megan Joffe acting as the

[253]It was initially submitted in oral closing submissions by Claimant’s Counsel that this alleged detriment is on the grounds of alleged disclosures 6A, 7, 8 and 9. After instruction from the Claimant this was revised to 4, 5, 7 and 8 and that 1, 2 and 3 fed into the disclosures. It was confirmed that we do not need to decide if alleged disclosures 1, 2 and 3 are protected disclosures as it is not the Claimant’s case that any of those were the grounds for any of the complaints still pursued.

[254]We remind ourselves that: f. Disclosure 4 was that to TH g. Disclosure 5 was the letter to the GMC and also sent to PL h. Disclosure 7 is the verbal disclosure to CAW i. Disclosure 8 is the meeting with JD

[255]In his witness statement (paragraph 38) PL says that … “I confirm that I commissioned the report from Edgecumbe.”. He refers to his meeting with the Claimant with CAW and his follow up email. He confirms that … “I explained that the intention was to seek Edgecumbe’s view on the difficult working relationships within the O&Gs consultants team…”. Then at paragraph 39 … “There was no agenda or plan to dismiss MI when commissioning the Edgecumbe Report. My predominant concern was the potential that dysfunctional relationships had to compromise patient care…”.

[256]It was not put to PL or PM that they commissioned the report on the grounds of any of those asserted disclosures, nor that what was written in the report was on the grounds of any of those asserted disclosures.

[257]It was not put to MJ that what she did or wrote was on the grounds of any alleged disclosures made by the Claimant.

[258]About the Edgecumbe report the Claimant says (paragraph 84) … “I had welcomed the Edgcumbe Report as an opportunity for the matters between my colleagues and myself to be completely brought out into the open by an independent person and resolved. I was completely honest and open with MJ. At no point did I think that the findings of the review would be used against me.”.

[259]In cross examination the Claimant absolutely accepted that a situation had arisen which the Trust needed to address as to dysfunction in the department. Further, that everyone said the mediation had not been useful. The Claimant accepted that Edgecumbe was a sensible and reasonable step for the Trust to take.

[260]From this evidence we accept the reasons of PL for commissioning the report and MJ’s explanation for the report and its content.

[261]We have considered carefully the submissions made by Claimant’s Counsel on this matter.

[262]Claimant’s Counsel submits that … “the Edgecumbe findings make multiple detrimental findings which are based on the assumption that C continued to wrongly ‘rake over old coals’.”.

[263]We are then referred to … “para 89 of the report (“continuing to raise issues that are apparently in the past”), para 90 (“little insight...moral high ground”) para 91 (“Mr Iftikhar display signs of Chronic embitterment”) and tellingly para 92 (“he was reported to raise issues that have already been dealt with and that exhausted management patience because if they did respond it started another round of correspondence”)”.

[264]We are also referred to the fact that the report (at paragraph 92) expressly refers to PL’s letter dated 10 November 2016 (at page 852).

[265]In his submissions Claimant’s Counsel says … “… There is specific mention of the letter from the Medical Director (para 92) at (852). There is no doubt that this letter is also based on the misconception that matters were resolved fully, long before.”.

[266]It is the Claimant’s case therefore that this wrong assumption is the material influence, rather than the actual disclosures themselves, on what the report says.

[267]It was confirmed in closing oral submissions that the Claimant holds EH responsible for creating this wrong assumption and that she did this on the grounds of a protected disclosure made by the Claimant, although as noted, which disclosure in particular, or any of the alleged disclosures for that matter being her motive (if this is what she did) was not put to EH. We also note that it was not put to PL in cross examination that he wrote the letter dated 10 November 2016 (at page 852) on the grounds of any alleged protected disclosure the Claimant made. For completeness we note that it was not put to MJ that what she wrote in the report was on the grounds of any of the alleged disclosures, including the alleged ninth disclosure that is said to have been made to her.

[268]There is then chronologically matters around the Claimant’s exclusion.

[269]The Claimant describes at paragraphs 96 and 97 of his witness statement his actions after reflecting on the contents of the Edgecumbe report. He says he made a conscious decision to engage with MS and MNS. He describes how he met with SJ on the 26 January 2018 and that she confirmed that the Trust were fully supportive of his actions and she advised the Claimant to keep her informed.

[270]The Claimant describes in paragraph 97 … “MNS, MS and myself had a positive first meeting on 28.1.18, out of hours in MS’ office. We discussed all the issues which are believed to be root causes of the inter personal relationship between the three of us. I apologised to both of them if my efforts had come across as heavy handed and caused them distress. The meeting was very cordial, productive and we all agreed to put all the issues in the past and look forward to our harmonious future. We also agreed to roll out this dialogue to the rest of the team with the support of SJ. After the meeting we spent some time in the hospital for refreshments and the meeting concluded with friendly handshakes. I reported back to SJ that the meeting had gone well p1364-1368. Examples of our improved relationship as a direct result of my efforts including MNS ringing me from theatre for advice and assistance, demonstrating a renewed trust in me. Also, I referred a private patient to MS for advice, something which had not happened for several years. On 1.2.18 p1369 MS and I liaised over swapping some on call shifts, illustrating the improvement in our working relationship.”.

[271]By email dated 30 January 2018 the Claimant emails SJ stating… “Mr Siddig Mr Shoukrey and I met on Sunday 28th January. I thought you would be pleased to know we had a very constructive meeting.” (see page 1365).

[272]SJ replies (page 1364) … “excellent news can you share the outcome of the meeting so I can work on any support actions / required.

[273]The Claimant then forwards the email from SJ to MS and MNS on the 30 January 2018 (page 1364) writing … “Please see email exchange below. Could you let me have your comments please on how best we should respond to Sophie. I am more than happy if you would like to reply directly to Sophie, but please keep me included in the email correspondence.”. There does not appear to be a reply to this email either to the Claimant or any further emails to SJ from the Claimant, MS or MNS about the matter.

[274]SJ was cross examined about this matter. She could not recall the conversation on the 26 January 2018, but she did not dispute what the Claimant says in paragraph 96 of his witness statement.

[275]It is submitted by Respondent’s Counsel that … “The fact that C could see how serious matters were and his purported rapprochement with MS and MNS on 28/1/18 was no doubt motivated with a sense of anticipating where matters were going. Tellingly, no such rapprochement was identified with AC nor BD;”. We note that there is no witness evidence from the Claimant to support that he did or was going to try to do so with AC and BD.

[276]PL accepted in cross examination that he had been appraised of an attempt in reconciliation with MNS and MS. About it he said that he didn’t think the swapping of duties represented anything other than a swapping of duties. Also, that it was when he and CY went to see the Claimant about the Claimant’s thoughts as to exclusion that they had a direct conversation where the Claimant raised he had managed to talk to his colleagues and that everything was fine and they were getting on fine and see a future. PL confirmed that just before he proceeded to inform the Claimant about being excluded, he went with CY to see MNS and MS and they invited them to join a meeting with them and the Claimant to see how they could go ahead. PL confirmed that MNS and MS both completely declined to come. PL said that therefore he was concerned as to the validity of that collaboration.

[277]CY confirmed in cross examination that she recalled that the Claimant suggested that they should approach MS and MNS and PL decided to do that. Her recollection as to when the Claimant raised this was at the exclusion meeting.

[278]PL was asked in cross examination why it was at that point of time the Claimant was to be excluded. PL replied that it was because the decision had been reached by execs and non-execs that we needed to proceed with a HR investigation to look very closely at the working relationships and whether there was a possibility of remediation, and that it was driven by HR. Alleged Detriment 6 – The Claimant’s Suspension on 2/2/18 at 12:30pm

[279]The Claimant says that PL’s decision to suspend him on 2 February 2018 at 12:30pm was detrimental treatment because of his protected

[280]It was submitted in closing submissions by Claimant’s Counsel that this

[281]We remind ourselves that:

[282]It was not put to PL that he suspended the Claimant when he did on the grounds of any of those disclosures. Respondent’s Counsel also submits that it was clearly… “the decision of the Board based on their assessment of the E report on 31/1/18 p1374. PL conveyed the news p1379.”.

[283]The minutes of the Board meeting record (at page 1375) its decision as … “The meeting endorsed and approved an independent investigation to be carried out on Mr Iftikhar, and that he be excluded during the course of the investigation with immediate effect.”.

[284]We have therefore considered carefully the submissions made by Claimant’s Counsel on this matter which submit that the decision of the Board is not recorded in detail in the minutes and further that … “There is no mention here of the Board being the sole decision maker and the ET is entitled to draw a strong inference that the Panel were heavily influenced by the representations made to them by Pl but more likely MW / and or PM. PL’s evidence in XX was this was “very much driven by HR”. The minutes do seem to evidence the involvement of MW and or PM as central to the issue and the process…”.

[285]PM was questioned about this in cross examination. PM confirmed that in the NHS when an investigation is going to start it is considered whether the investigated remaining at work raises a patient safety issue or could interfere with the investigation. PM confirmed that when the Board discussed the options they saw some of the comments made by psychiatrist (MJ) and that “we thought collectively” that the Claimant would interfere with the investigation and that people would not speak openly, so the Board thought he could interfere.

[286]PM did clarify that when she referred to “we” (which is also how she referenced the matter in her witness statement (paragraphs 23 and 24)) she meant the Board’s decision and that it was the Board’s decision, not hers, although she did agree with it but she was not asked for her view on this decision by them.

[287]During the cross examination of the Claimant about his exclusion he did agree that if he is the eye of the storm then it is appropriate to take him out.

[288]It was not put to PM that her actions in this matter were done on the grounds of any of the Claimant’s alleged disclosures.

[289]We find that the decision to suspend (or exclude) the Claimant was made by the Board of directors at the meeting on the 31 January 2018.

[290]PM was cross examined about her involvement in upholding the suspension, but it is not alleged that she upheld the suspension on the grounds of any of the Claimant’s alleged disclosures.

[291]PM explained that after the recommendation that the Claimant’s exclusion be lifted (as the Claimant had appealed his exclusion), she had sought the views of the divisional leadership team (RJ and SJ, see page 1448) as they would be responsible for the service and would look at the broader view.

[292]As is recorded in the agreed chronology (paragraph 172) on the 3 May 2018 RJ and SJ write to PM confirming inter alia that after meeting the consultants, all of them except one have confirmed that the Claimant’s “exclusion has markedly changed the dynamics of the department for the better” (see page 1452). One of the consultants felt that there is still not a functioning team.”.

[293]PM decided that the exclusion should not be lifted after considering the views relayed back to her.

[294]There is no suggestion that PM is materially influenced by any disclosures the Claimant says he made.

[295]What the Claimant challenges in the allegation he makes, as articulated in the agreed list of issues, is that the decision of PL to activate that exclusion on the 2 February 2018 at 12:30 was because of the alleged protected

[296]As recorded in the agreed chronology (paragraph 166) on the 2 February 2018 the Claimant is given a letter confirming that the Respondent is instructing an “independent HR professional” (Richard Boniface (“RB”)) to consider inter alia the breakdown in relationships between the Claimant and his team / alternatives to his dismissal and whether absent such ‘feasible’ steps the Claimant should be dismissed (see page 1379).

[297]The letter records at page 1380 that: “ ”

[298]In cross examination PL was asked after all the previous reports, why have another and he confirmed that it was the thinking of the Trust Board at the time, the non-execs were particularly keen to get issues resolved, and they wanted to be clear that if a decision was made it was the right one achieved as independently as possible.

[299]The Claimant is interviewed by RB on the 19 March 2018 and the notes are at pages 1568 to 1580. These notes are an agreed set of notes, signed by the Claimant and he confirmed in cross examination that he had added detail as tracked changes (it is shown as underlined text in the notes).

[300]The notes support that even so far as the Claimant is concerned the issues in the department are not on the grounds of his alleged disclosures: Paragraph 2.4 “… MI said that when he was CD they initially worked effectively as a team with no problems. MI said he should have been softer with them and listened more as it got out of control when MNS clinical concerns started and he passed the maternity concerns on to AR as he is not an obstetrics specialist.” Paragraph 2.11 about him undertaking the CD role “…MI said maybe he did not have the training or the personality to do that role. Paragraph 2.23 … “MI said he thought there was a lack of trust between all of them. MI said how they build that trust he could not say.” Paragraph 2.62 about his colleagues … “MI said they were alright and they had supported him to be CD. MI said it was his fault but he had no training and put polices and processes in not as he should have done. MI said WW had said a culture of openness is needed to be promoted. MI added he wished he had not become CD.”

[301]The Claimant confirmed in cross examination about the interview notes in relation to paragraph 2.3 that what he meant by letting them down as CD was by being too aggressive in implementing the Trust policies, he maintained he didn’t do anything wrong but that he was probably too harsh, but was not backed by management.

[302]On the 11 May 2018 the Claimant is invited to a panel hearing on 31 May 2018 (see page 1454).

[303]It was suggested by the Claimant that the decision about his dismissal was inevitable because the panel had already been booked. PM responded to this in cross examination by confirming that in most cases where an investigation is ongoing they would always set up a provisional date for a panel, because when Doctors are involved they cannot cancel any clinical commitments within 6 weeks, so to make sure there is not a delay they would pencil in a date with the panel. We accept this explanation.

[304]On the 18 May 2018 RB’s report is completed (see pages 1459 to 1482).

[305]Then on the 25 May 2018 the Panel hearing is postponed due to the Claimant’s ill health (see page1640).

[306]Chronologically there is then the involvement of the National Clinical Assessment Service (NCAS). On the 12 June 2018 they write to JD in respect of the alleged non application of MHPS (see page 1652). We note here that the non-application of the MHPS is no longer pursued as an issue by the Claimant.

[307]About what the NCAS say in their correspondence to Mark Warner dated 12 June 2018 (at page 1664), was explored in cross examination as it suggests the decision has already been made to dismiss the Claimant for SOSR: “ ”

[308]About this CY confirmed that what the letter records is not accurate.

[309]PM also did not agree the letter was accurate confirming that there are number of in accuracies, her surname is wrong, Melanie Harris was not there and that they did not talk about their express wish, but talked about the report and the possible outcome to dismiss.

[310]We accept the Respondent’s evidence on this. We also note that none of the attendees at the NCAS meeting were part of the panel that took the decision to dismiss the Claimant.

[311]It is on the 19 July 2018 that the Claimant is informed there will be a new panel hearing on 23 August 2018 (see page 1674).

[312]It is then on the 15 August 2018 that the Claimant raises a detailed grievance (see pages 1682 to 1739).

[313]Respondent’s Counsel submits about this that the Claimant … “has a personality so that he finds it difficult to let go of matters and at times has a tendency not only to hold onto the past, but to bring it back to life in a negative and destructive manner. Call it ‘raking’ over matters, ‘dredging’ up the past, the evidence points conclusively to this. C’s ascendancy to the CD role gave rise to the extraordinary letter and grievance to the CEO in 2012 going back to issues in 2012 p252. C’s grievance in this case suffers from the same problem of C being incapable of moving on.”.

[314]The Claimant was cross examined about this grievance. He accepted it went back to matters in 2006 and that in 2018 he was dredging up matters that were 10 years old. He agreed that his CEA appeal was successful so that is why he did not raise a grievance about that at the time. He agreed that he did understand JD’s rationale for what she did about the grievance.

[315]On the 21 August 2018 AH writes to the Claimant to confirm that his grievance has been shared with the panel and that the further documents referred to as being released on request should be provided by the 31 August 2018.

[316]We then chronologically get to the alleged detriment eight. DETRIMENT 8 - The Claimant avers that the Respondent’s failure to deal with his grievance before the disciplinary hearing (10/9/18), was detrimental treatment because of whistleblowing by Julie Doherty.

[317]On the 10 September 2018 JD refuses the Claimant’s application for an adjournment of the Panel Hearing pending resolution of the grievance (see pages 1751 to 1752).

[318]It was submitted in closing submissions by Claimant’s Counsel that this

[319]We remind ourselves that:

[320]It was not put to JD in cross examination that this was her motivation for what she did.

[321]JD provides her reasons for what she did in paragraphs 14 to 21 of her witness statement.

[322]We note from that in particular paragraph 21 … “Moreover, the decision which I made about the handling of Ml’s grievance was not because he was a whistleblower. I made my decision because we needed to bring the panel hearing process to a conclusion without further delay. It had been over three months since the original panel hearing had been arranged and it had been postponed twice. I would have made the same decision in respect of anybody else, given the amount of time which had elapsed, irrespective of whether they were regarded, or regarded themselves, as a “whistleblower”.

[323]In cross examination JD confirmed that what was in her mind about the grievance the Claimant submitted was the dysfunction of the team. She explained that the main essence was dysfunction, no one was disagreeing there was dysfunction of the team, the grievance was going to be heard just not at the same panel. JD confirmed that points 1 to 17 of the grievance refer to historical issues, there was dysfunction and it was how they move forward. Her decision was 18 to 23 were the relevant issues for the hearing panel. JD confirmed that whistleblowing was not in her perception.

[324]JD also confirmed in cross examination that she did not accept that the management case was dismissal but that it was whether dismissal was the appropriate action or whether there were any alternatives. JD confirmed that she presented the case as she found it and the decision was open to the panel, there was no predetermined outcome.

[325]We have therefore considered carefully the submissions made by Claimant’s Counsel on this matter. In short it is submitted that the exclusion of the material adversely affected the outcome at the Claimant’s panel hearing.

[326]About this we would note that there has been no challenge put in oral evidence as to what particular documents should have been referred to by reference to those actual documents and what difference such documents would have made to the outcome. If the documents relevant to the grievance were important then we would have expected copies of those to be before us and for the Claimant to have provided further copies with his appeal against his dismissal, and they were not. Further, we note that the grievance was heard before the appeal (the grievance outcome is not challenged by the Claimant), so the Claimant had the outcome of that to assist the appeal if matters were found to be relevant or upheld.

[327]We accept the explanation given by JD for doing what she did.

[328]It is also asserted by the Claimant that there is a predetermination of the decision to dismiss as the Respondent had already hired a third consultant, when only two were needed at that time. CY was asked about this in cross examination and confirmed that they were appointing 2 consultants but had 3 appointable candidates, and there were recruitment difficulties for middle grades. The possibility to not lose an appointable candidate didn’t want to be missed and the candidate was taken in as middle grade rota and to cover for the Claimant’s on call while he was not there. We accept this explanation and the Respondent’s evidence on this matter.

[329]It is submitted by Claimant’s Counsel that there is a concern about the fairness of any dismissal because as was established during cross examination the … “new MD AH had twice visited the O and G department attended meetings run by Jo Hartley…” and had therefore observed the department functioning without the Claimant present. Claimant’s Counsel submits that … “AH was also forced to accept that this that this interaction meant that he could not be an impartial chair of the panel.”.

[330]We have considered carefully what is submitted and what AH said about this matter in cross examination. AH said that he had not spoken to them about the panel hearing and that he had sat in meetings they held under Jo Hartley, as she chairs the governance and general business meetings, which in his view and opinion were functioning well. He confirmed that he had not spoken to the consultants individually within the context of the meeting. He confirmed that he had asked how the department was functioning and getting on, and that he attended two such meetings probably in August or September 2018.

[331]He explained that part of his role as medical director was to visit all the areas and it would have been strange for him not to visit the O&G department. He viewed attending such meetings as being part of his job at the Trust. He explained that one of the first things for him to do on arriving (he had commenced the role on 2 July 2018, see paragraph 1 of his witness statement) was to get around to see departments. It was not individual discussions with people, he joined the meeting and left the meeting and at that time he didn’t remember if he had received all the pre-material for the panel hearing. He confirmed that attending in that way was part of his role as Director.

[332]He agreed that he was not observing dysfunction. He did not agree that he should have stepped back from the panel only agreeing that he understood the point Claimant’s Counsel was making being that it may have been inappropriate to chair the panel.

[333]All AH agreed therefore was he understood Claimant’s Counsel’s point. AH was not acting as a witness at the panel hearing and there is no evidence that what AH knew he imparted to the other panel members (AO was not cross examined about this matter, despite her evidence coming after AH’s). There is no evidence presented to us that what AH did had any negative sway on matters. We accept what AH says and that he was carrying out his role as a Director.

[334]On the 27 September 2018 a new panel hearing date is set for the 2 November 2018 (see page 1754).

[335]The Panel hearing then takes place on the 2 November 2018 and we have been referred to the timetable (page 1781) and the notes (page 1783 to 1817). The Claimant does not attend due to ill health but is represented at the hearing and has submitted a statement of case dated 26 October 2018 (page 1778). DETRIMENT 7 – Disciplinary outcome following the Boniface report was predetermined and this was detrimental treatment by Julie Doherty and Paul Lear.

[336]It is the Claimant’s alleged seventh detriment that the disciplinary outcome following the Boniface report was predetermined and this was detrimental treatment by Julie Doherty and Paul Lear.

[337]The Claimant avers in the agreed list of issues that Mr Boniface's true role was to provide a report that would wrongly lead to the conclusion by a Panel that the Claimant should be dismissed. It is not the Claimant's case that the Panel deciding the matter were themselves party to this unlawful purpose. The Claimant will rely on the Supreme Court's judgment in Royal Mail Group Ltd v Jhuti

[2019] UKSC 55

. The Claimant’s case is that the Boniface Report's singular focus on the Claimant as the central cause of alleged dysfunction is at odds with the broad findings of the Edgecumbe report which ascribes fault to alleged dysfunction much more broadly and in far more complex terms. The Claimant will say that Richard Boniface therefore did not investigate the matters leading to the breakdown of the relationships, and simply asked whether or not matters in the department would be improved if the Claimant was dismissed. The Claimant avers that the Respondent had already made the decision to dismiss the Claimant and this was because of his disclosures 1-10 as set out

[338]The Claimant has confirmed that the individuals who the Claimant says were responsible for his dismissal by reason (or principle reason) of whistleblowing were Paul Lear, Julie Doherty, Mark Warner and Patricia Miller.

[339]The Respondent denies that the Boniface report and the “disciplinary”

[340]We would observe that what the Respondent submits about the authors of the Edgecumbe report and Mr Boniface is correct factually, they did not make the decision to dismiss the Claimant.

[341]It was submitted in closing submissions by Claimant’s Counsel that this

[342]We remind ourselves that:

[343]It was not put to PL of JD that they were responsible for his dismissal by reason (or principle reason) of whistleblowing nor on the grounds of any of those disclosures.

[344]It was also not expressly put to PM either, but when asked about it being her private desire for the Claimant to be dismissed she denied this, saying it was relationship breakdown and that people whistle-blow all the time, not reason for dismissal.

[345]Evidentially it was not PL’s, JD’s, MW’s or PM’s decision to dismiss the Claimant. This was the decision of the panel chaired by AH. It is the Claimant’s case that the panel were misled to do it.

[346]Respondent’s Counsel submits that … “C’s case implied RB was a conconspirator when no such case was put to RB. The allegation (if it were ever explicitly made) is wholly without merit: RB was an independent professional dealing with matters on their merits…. Manifestly it is an allegation of no merit: nothing was pre-determined; RB was instructed, and RB reported; a panel was seised of matters; the panel decided C’s fate. Nothing was pre-determined.”.

[347]We have considered the matters that RB was cross examined on. He confirmed that he resented the idea that he had been lent on to give an outcome. He would never be led in that way. As to the use of the word feasible in the TORs, he did not agree this should have been “possible”. He confirmed that it was to seek solutions that where balanced and when looked at objectively would have a sufficient chance of a positive sustainable outcome, and not leave the Trust with a dysfunctional department. Feasible he said means a chance of success. RB also did not accept that his report was saying it would be “perverse” to keep the Claimant.

[348]We have also considered what the Claimant agreed about the RB report in cross examination.

[349]The Claimant agreed that the report’s key findings say there is a breakdown and a non-sustainable breakdown. The Claimant was asked if he accepted that it recorded, he was not trusted as a colleague and he replied yes, and that he had replied there is a lack of trust amongst all of us.

[350]The Claimant accepted that as of now he would not trust AC or MS with non-clinical work matters. He would trust BD, and could work with MNS … “If he can get out of the box where he blames me for the restrictions”. He was asked if (by reference to page 1464) it was reasonable for colleagues to hold a lack of trust in him just as he has a lack of trust in them, and the Claimant agreed of course, if that is their opinion.

[351]The Claimant agreed that the dysfunction would have continued, he said unless mediation was arranged.

[352]It was put to the Claimant … “If you had gone into mediation with AC a key part would have been your accusation of lack of probity”. He confirmed … “could not have a mediation without it.”. The Claimant confirmed that this would also need to be addressed with MS.

[353]It was put to the Claimant … “you accept when faced with the Boniface report and the conclusions looking at in May 2018, you accept the trust were entitled to have this put to panel”. … “Yes, that was the process given”. Also put … “It should go to panel?” … “that was the next step. It was put … “accept proper course to take?” … “That was the path given to me and Boniface and we all had to get there now as that is the conclusions he has reached.”.

[354]From these facts we do not find that Mr Boniface's true role was to provide a report that would wrongly lead to the conclusion by a Panel that the Claimant should be dismissed. The dismissal

[355]The letter of dismissal dated 12 November 2018 from AH is at pages 1819 to 1822 of the bundle.

[356]As Claimant’s Counsel’s written closing submissions say… “The panel was to all intents and purposes independent, save for the news that Prof Hutchison had first-hand experience of the department as stated above. It was not put to them that they dismissed because C blew the whistle. That was not C’s case.”

[357]AH deals with the reasons for dismissal in paragraphs 11 to 20 of his witness statement. “11. After the hearing we discussed our conclusions. We agreed that the breakdown in relationships within the O&G team was irretrievable, based upon what we had seen in the various external reports and heard from the witnesses…”12. We considered that the report from Mr Boniface was particularly compelling and that it was consistent with earlier reports which also identified a fundamental breakdown in professional working relationships within the department. Importantly it included interview notes from a variety of members of the O&G team, some of whom had left the Trust …”.

13. Mr Boniface was clear that he had not been led by the Trust in reaching his conclusions (2.48, 1794). He said that he had considered whether or not the breakdown in relationships was due to race or other protected characteristics but could find no evidence to support this (2.44, 1793). He was clear that “It was about people not getting on, regardless of race or religion or background, but it was dysfunction and something had to change”.

14. Paul Lear, the former Medical Director at the Trust, explained that the reasoning the Trust had in seeking the report from Mr Boniface was that after reading the Edgecumbe Report it was his view that all roads led back to MI, but that the Trust had wanted to get a further external HR view “to identify whether that was really it” (3.64, 1800)…..

15. MI’s consultant colleagues who were called by management confirmed that since his exclusion the dynamic in the team had dramatically improved, even though they had been short staffed. Mr Siddig spoke about moving from a situation where MI was not open and did not consult his colleagues but would “go behind people” (5.4) such that honesty and trust had been lost, to a situation where they now felt “comfortable and every morning wake up and are ready to come to hospital but they didn’t feel that before” (5.34).

16. I could understand Mr Siddig’s feelings since during my 25 years working as an NHS consultant I had never before come across a situation in which consultants within a team were repeatedly referring each other to the GMC. This is extraordinary and to my mind said a lot about how the department had been run.

17. Mr Shoukrey said that the department had turned around “780 degrees” and the team now “supported each other and communicated” (6.10). His description of the clinical governance and MDT meetings as now being a ‘fair environment’ which was “focused on learning and being a team, which was something they hadn't felt for a long while’ was in stark contrast to Audrey Ryan’s description of a “truly bruising’ experience when she had been asked to review the case notes of her fellow consultants.

18. Miss Dandawate described the fact that she had previously felt undermined whereas since MI's exclusion she “didn’t feel intimidated and she felt for the first time moving towards a positive department’ (7.15).

19. Having heard this evidence, we as a panel concluded that Mi’s presence in the clinical team had led to an irretrievable breakdown in relationships which was both serious and very likely to adversely affect patient care and safety.

20. We considered whether there were any feasible steps short of dismissal which we could take which would address this serious state of affairs. In particular we considered whether a further round of mediation might lead to a resolution but detected no enthusiasm amongst the team for this approach. We concluded that there were no feasible alternatives and that the only appropriate outcome was the termination of Ml’s employment. As a panel this was our collective and unanimous view.”

[358]In cross examination AH confirmed:a. That he had a handle on the cause of dysfunction in this case, and that the Edgecumbe report and the Claimant’s statements explained a lot of that quite clearly.

b. He had experience of dealing with a similar situation of dysfunction in a small department when he worked at Manchester.

c. About the Claimant’s grievance he confirmed the panel queried the extent of its inclusion. He didn’t think the issues were directly relevant to their concern which was if relationships could be put back together. The fundamental question for him was patient safety and how quickly it could be sorted with a way forward.

d. As to his understanding as to whether matters sorted or not being important (i.e. the AC PA matter), he confirmed that it was a factor, the main issue though was patient safety in the department.

e. He was asked why he did not just let the Claimant explain his case in the round and confirmed … “Because the issue for the panel was the urgent and immediate issue of patient safety in that department and the matters in 1 to 17 go back many years would not help us to address that question and important to recognise in departments where consultants are at war with each other patients suffer and many examples of that, the historical examples of that were relevant but were they the primary purpose, I would say no.”.

f. In response to the suggestion that he dismissed mediation out of hand he said … “No that is completely incorrect, would not dismiss out of hand. The mediation process is confidential it is without prejudice it is trying to create a code of conduct that members of team agree but if don’t adhere to it then the mediation process has failed. Easy to look back and say it wasn’t done properly, doesn’t mean right, nothing here in what you highlighted to suggest not done properly, does say not followed up but it would not be followed up by Trust as it is a matter for the team and for the Claimant to take forward.”.

g. As to the recommendations in the Edgecumbe report not being attempted first he said… “It is easy in retrospect to look at individual points in time looking at reports and documents and not to be aware of the continuing unrest on an ongoing basis that makes it extremely difficult to implement things. Trying to implement things that sound sensible, it is extraordinarily difficult if open warfare going on.”. … “This is a general melt down in the unit which it was clear to me would not be able to be put back together again in a time period that would be appropriate.”.

h. As to the Claimant’s exclusion AH did not accept that once the Claimant was excluded it was harder for him to come back to work. He agreed that relationships with colleagues is usually the reason for exclusion.

i. As to placing reliance on the consultants that are against the Claimant, he did not agree … “No I don’t accept that, it was not only those four we were asking about working relationships and how now, if we had heard still infighting different matter, when I arrived at Trust I sat in meetings to see how they were functioning in my view was not perfect but it was functioning at a safe level and confirmation of statements is what see for myself.”. The rest of this line of questioning has been referred to above.

[359]About the recommendations in the Edgecumbe report it was not accepted by the Respondent that none had been actioned. Katherine Jordan (KJ) was asked about this and did not agree with the statement that nothing was actioned, referring to how she was … “a party with job plans for consultants and met with all consultants and Claimant through that period, all over that, we did 141 and 143 [the recommendations], myself and Richard Jee, trying to standardise across, so they were reviewed”…. “also, para 147 was done with Hilary Maxwell … also, … we did involve the QI team with the job planning team and had an away day, invited all consultants and the juniors joined us as well...”.

[360]We accept the evidence of AH on these matters.

[361]AO deals with the reasons for dismissal in paragraphs 21 to 25 of her21. I was confident at the conclusion of the panel hearing that I had been provided with sufficient information in the bundle and from the testimony of witnesses to reach an independent and unbiased opinion. I was satisfied that, having heard the evidence of Mr Boniface and the witnesses, I was not being misled in any way.

22. The panel members and I discussed our views on the case and the decision to be made. We agreed that there was a consistent narrative, both in the Boniface Report and evidence at the hearing, that working relationships in O&G had broken down, and MI was at the centre of that breakdown. The series of poor relationships within the team seemed to ‘emanate’ from him, and O&G had been functioning better while MI had been absent.

23. Given the break down in working relationships, during the panel discussions I was vocal about the fact that I felt it would be incredibly damaging to have MI return to O&G. In the past I have dealt with dysfunctional teams of consultants where attempts to resolve matters and mediate had been ineffectual, therefore my view was coming not from a theoretical place, but practical experience. In my experience, there is often one person - one consultant — who is the common focus or centre of the issues. My view was that removing the person at the centre of the issues does not necessarily make a team perfect, but could make it better - it would become possible for the team to function again.

24. The panel members and I gave a lot of thought to alternatives to dismissing MI. We discussed what it might look like - whether mediation was an option; what support MI might require; what alternative roles, including non-clinical roles, there could be. MI did not seem to have insight into his own faults or involvement with the O&G break down in relationships, or a willingness to change, so mediation was unlikely to be effective. The panel and I were concerned that MI, even in a different role, could have a negative impact on O&G ~ a team that was functioning better but still fragile.

25. From my perspective, there was no alternative to dismissal. The panel members and I agreed that MI would be dismissed.”

[362]In cross examination AO confirmed:a. She felt that future mediation was unlikely to gain further traction. Further, that they did explore ways in which mediation could be undertaken differently and whether the use of different mediation companies and styles of mediation would be helpful. Also, that mediation was not the only alternative to dismissal … “in panel deliberation we spent a considerable time on could we bring the Claimant to a nonclinical role could we change role in department considered a number of other ideas, not just mediation, reason we considered mediation would not benefit was there was a lack of trust.”. … [Mediation] … “requires people coming in with no agenda and seeing it as a neutral act, not an agenda, so whole host of reasons why a mediation not be successful.”.

b. As to asking those who have been aggrieved creating a biased outcome, AO did not agree … “I don’t think that is a fair assessment, everybody in the team owe a duty of care to, and all are having an unpleasant experience and causing them distress, equal duty of care as to the Claimant, and everybody.”. It was then put it depends on those giving the information to you, that they didn’t have an agenda … AO replies … “But team were 15 people interviewed by Boniface, some not there anymore and they had no axe to grind, message consistent about dysfunction in the team, this is a dysfunctional team and what options are there.” … “We had witnesses in front of us and we had witnesses from Boniface report, 15 people for a 360 report, is minimal number not based on who was in front of us but based on those assessments.”.

[363]AO confirmed to the tribunal panel about the reason for dismissal that … “from the Boniface report, there did not appear to be a reasonable alternative, but everything I had treated with a degree of caution, keen to ensure consider other options. Factors that swayed me were not just verbal evidence, but written submissions before that, spoke to lack of trust and confidence in team not just consultant team, spilling out to other members, toxic culture, difficult to turn around unless something turned around. Not just theory but personal experience, another one-person vortex, turn around being a completely difficult task recruiting etc, to release toxic bit enables other relationships to mature, take out link allows trust and confidence. What we heard clearly was department was functioning in a better way, now a culture on learning on incidents and not a culture of blame and criticism and that for me was what was going to turn around for patient safety.”.

[364]We accept the evidence of AO on these matters.

[365]The Claimant did accept the reason for dismissal in cross examination. He was asked if he accepted AH and the panel acted in a professional way and confirmed … “I wasn’t there but from what I have read I can’t blame the panel for any detriment to me as they based on what they had and heard.”. He confirmed that … “They did not dismiss me because I am a whistle-blower.”. He accepted that the reasons in the dismissal letter were the reasons they terminated his employment. Further, the Claimant accepted in cross examination that given the state of the O&G something needed to be done and that choosing him could be legitimate if it was done fairly and properly.

[366]The reason of the panel is therefore the irretrievable breakdown in relations.

[367]To further support this reason Respondent’s Counsel referred us in his written submissions to the evidence of the Claimant’s supporting witnesses. Claimant’s Counsel also reminds us to take into consideration the evidence of the Claimant’s supporting witnesses.

[368]We have considered their statements and note from them:a. V Leonard, paragraph 18 … “I was aware of the growing animosity towards Mr Iftikhar from MNS, MS, AC and BD during Mr Iftikhar’s time as CD as he introduced changes.”

b. N Vaitkiene, paragraph 3 … “After joining the Trust, Mr Iftikhar informed me in a matter-of-fact way that there were deep divisions within the consultant body. He did not blame anyone, however he said the problems had been ongoing for several years and voiced his frustration that the Trust management was unable to provide support in resolving the issues. This resonated with comments of all other colleagues about the Trust management being unhelpful. Audrey Ryan also briefed me on the issues in a neutral way.”

c. M Perumalla, paragraph 13 … “It seemed to me that MS, AC, BD and MNS had their own personal reasons for wanting Mr Iftikhar to be removed. Mr Iftikhar was trying to bring about positive changes as CD which they were unhappy about. They joined forces to seek his removal as CD and later dismissal when they were eventually given a platform to voice their ire at the panel hearing determining Mr Iftikhar’s dismissal.”

d. C Pappin, paragraphs 5 and 6 …. “5. I was aware of the issues between Mr Iftikhar and Messer’s Shoukrey and Siddig, Miss Dandawate and Miss Cooper. The problems seemed to take a downward turn when Mr Shoukrey’s medical practice was restricted in 2013. Mr Iftikhar and Ms Ryan were blamed heavily by Messrs Shoukrey and Mr Siddig for the restrictions. I felt very strongly that the concerns over Mr Shoukrey’s clinical ability, and his lack of insight into this, were totally genuine, and that this was not an individual witch hunt started by Mr Iftikhar. It seemed to me that Mr Iftikhar was very much taking the blame for Mr Shoukrey’s restrictions, because he was CD, when both the departmental director and medical director were involved too.” … “6. My personal ability to work clinically was not affected by the issues with relationships, however clinical meetings certainly became tense and awkward, the political atmosphere was not conducive to good teamwork, or cohesive decision making, and the department was never working as one. It felt as though the department was divided. There were many difficult personalities within the department, with more than one person with little or no Insight.”.

e. F Shah, paragraph 6 … “The O & G was a dysfunctional and disjointed department. Staff were not happy, nobody seemed to get along and there was a high level of sickness absence. There were underlying issues that should have been dealt with by management. This is the reason why this was not my first choice for Consultant position and I withdrew as soon as I had another job offer.”

[369]This witness evidence does support there being dysfunction, division and animosity within the O&G department, that has broad negative consequences.

[370]We also accept what Respondent’s Counsel submits about this evidence that … “i) nearly all witnesses confirmed the deeply unsatisfactory nature of the dysfunction in the OGD: NV even records that C informed her of the “deep divisions” within the OGD consultant body and (ii) the dysfunction stemmed from interpersonal relations as opposed to any identified w/b concerns e.g. Perumalla para 13, Pappin para 6 and Shah para 6.”.

[371]We also note what V Leonard says about being aware of the growing animosity towards the Claimant as he introduced changes while CD, so not because of his alleged disclosures, and paragraph 5 of C Pappin that the … “problems seemed to take a downward turn when Mr Shoukrey’s medical practice was restricted in 2013”, so again not because of the Claimant’s alleged

[372]Chronologically the agreed chronology then confirms the Claimant appeals his dismissal (23 November 2018) submitting a statement of case (pages 1839 to 1844) and a further detailed statement of appeal case (page 2185). In January 2019 there is the outcome of the Claimant’s grievance (page 1952) by Neal Cleaver (page 1882). On the 14 January 2019 the Claimant objects to PM being appointed as the chair of Appeal Panel (see page 2201). On the 13 May 2019 is the appeal against the dismissal (notes page 2477) and on the 16 May 2019 the appeal is dismissed (page 2491).

[373]The Claimant raises no allegations against the appeal or grievance processes. THE LAW Unfair dismissal (sections 94 and 98 of the Employment Rights Act 1996)

THE LAW

[374]Pursuant to section 94 of the Employment Rights Act 1996 (‘ERA 1996’) an employee has the right not to be unfairly dismissed by their employer. Whether or not an employee has been unfairly dismissed is determined in accordance with section 98 ERA 1996: (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held…. (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.

[375]It is for the Respondent to prove on the balance of probabilities, the sole or principal reason for dismissal. In considering fairness the burden is neutral.

[376]We were referred to the case authority of Royal Mail Group v Jhuti (the judgment of the Court of Appeal and in particular paragraphs 23 to 25), by Respondent’s Counsel as a helpful legal summary of matters to consider when determining a complaint of unfair dismissal. We have also been referred to the Supreme Court decision on this case in respect of the automatic dismissal complaint, section 103A ERA 1996 (and return to this below).

[377]We were reminded of BHS v Burchell

[1978] IRLR 379

and London Ambulance Service NHS Trust v Small

[2009] IRLR 563

, when considering a reasonable procedure, and that as directed by Respondent’s Counsel pursuant to in Perkins v St George’s Healthcare NHS Trust

[2005] IRLR 934

the same factors can be considered where there is a dismissal for SOSR. Respondent’s Counsel submits that … “The Court of Appeal has decided that(i) a breakdown in relations (or dysfunction) dismissal is more appropriately an SOSR and

(ii) the Burchell guidelines can be applicable as the headnote makes clear in Perkins v St George’s Healthcare NHS Trust

[2005] IRLR 934

: The employment tribunal had also not erred in determining the fairness of the claimant's dismissal on the basis of the test set out in British Home Stores Ltd v Burchell. Whilst Burchell itself was a “conduct” case, there is no reason why the principles it sets out should be limited to cases arising under s.98(2)(b). Accordingly, whilst the dismissal in the present case was more properly categorised as being for some other substantial reason, the tribunal had not directed itself erroneously on the fairness issue by following the Burchell approach.”

[378]These factors are, when considering whether or not if the dismissal was reasonable the Tribunal must have regard to whether, at the time of dismissal, the employer:a. genuinely believed matters against the employee;

b. had reasonable grounds on which to base that belief; and

c. at the time it had carried out as much investigation as was reasonable in the circumstances.

[379]The parties were in agreement that MHPS did not apply in this claim. We were referred by both Counsel to the case of Ezsias v North Glamorgan NHS Trust

[2011] IRLR 550

. We note from the head note: The contractual disciplinary procedures only apply to issues of conduct or competence, not to allegations of a breakdown in working relationships. Those procedures do not apply to cases where, even though the employee's conduct caused the breakdown of their relationship, the employee's role in the events which led up to that breakdown was not the reason why action was taken against him. Employment tribunals will, however, be on the lookout, in cases of this kind, to see whether an employer is using the rubric of “some other substantial reason” as a pretext to conceal the real reason for the employee's dismissal.

[380]The Tribunal must be careful not to substitute its view for that of the employer and should consider instead whether the employer acted within the range of responses available to a reasonable employer when considering both whether dismissal was reasonable and all other aspects of fairness, for example whether the investigation was reasonable (consider - Iceland Foods

[1982] IRLR 439

, Post Office and Foley

[2000] IRLR 827

and Sainsbury PLC v Hitt

[2003] ICR 111

[381]Employers faced with employees who refuse to cooperate with each other should take reasonable steps to try to improve the relationship and satisfy themselves that the situation is irredeemable before deciding that dismissal is the only answer. Failure to take reasonable steps to improve relationships will make the dismissal unfair Turner v Vestric Ltd

1980 ICR 528

[382]We were also referred to Moyes v Hylton Castle Working Men’s Social Club and Institute Ltd

1986 IRLR 482

, where the EAT overturned the employment tribunal’s decision that the involvement of the two officials in the capacity of both witness and judge did not make the dismissal unfair, the EAT held that this was a breach of natural justice and that any reasonable observer would conclude that justice did not appear to have been done and had not been done. This is raised by Claimant’s Counsel on the basis that AH was, he submits, a witness to there not being dysfunction when the Claimant was not there, and then had to make the decision as to whether dismiss the Claimant. Protected disclosures (relevant sections from 43A to 43L ERA 1996)

[383]Under section 43A of the ERA 1996 a protected disclosure is a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H. Section 43B(1) provides that a qualifying disclosure means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following –(a) that a criminal offence has been committed, is being committed or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged, or

(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed.

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

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

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

(b) reasonably believes – (i) that the relevant failure falls within any description of matters in respect of which that person is so prescribed, and (ii) that the information disclosed, and any allegation contained in it, are substantially true. Under the Public Interest Disclosure (Prescribed Persons) Order 1999 the Schedule of prescribed persons includes the General Medical Council (“the GMC”).

[386]A disclosure of information can still amount to a qualifying disclosure if the information was already known to the recipient (section 43L (3)).

[387]We have been referred by both Counsel to a number of case authorities about matters relevant to consider when deciding if a qualifying protected disclosure has been made:

[388]We were referred to the guidance given by the EAT as to the structured approach that should be adopted when approaching a whistleblowing case as a whole as set out in Blackbay Ventures v Gahir

[2014] ICR 747

at para 98.

[389]Also, to the guidance in Williams v Michelle Brown AM

UKEAT/044/19

[390]Further, specifically, in respect of breach of a legal obligation, mere assertion of a belief in such a state of affairs is not sufficient as explained in Eiger Securities v Korshunova

[2017] ICR 561

[391]Also, Twist DX v Armes

UKEAT/0030/20/JOJ

, it is not necessary that a disclosure of information specifies the precise legal basis of the wrongdoing asserted.

[392]In summary what we need to consider is whether:a. there has been a disclosure of information;

b. the worker believes that the disclosure is made in the public interest;

c. If the worker does hold such a belief, is it reasonably held;

d. the worker believes that the disclosure tends to show one or more of the matters listed in sub-paragraphs (a) to (f);

e. if the worker does hold such a belief, is it reasonably held.

[393]Although it is not possible to draw a clear dichotomy between information and a mere ‘allegation’ or expression of opinion, in order to amount to a ‘disclosure of information’ the statement relied on ‘must have a sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection (1) (see Kilraine v Wandsworth LBC

[2018] EWCA Civ 1436

;

[2018] ICR 1850

at para 35 and at paras 21 and 29-36).

[394]Disclosures must be viewed in the context in which they are made, and any context relied on as forming part of the basis on which a claimant says they made a protected disclosure should be set out in the claim form and clearly in evidence (Kilraine paras 41-42).

[395]The focus is on whether in the reasonable belief of the worker (at the time) the information provided tended to show one or more of the matters relied on. It is not whether the worker genuinely / reasonably believed that there had been such a failure. The worker must also believe at the time that the disclosure is made in the public interest.

[396]Both aspects involve a subjective and objective element; i.e., that the worker believes the information tended to show the matters relied on was in public interest and that they were reasonable in holding that belief (Chesterton v Nurmohamed

[2017] EWCA Civ 979

;

[2018] ICR 731

at paras 8(1) and 27).

[397]A belief can be reasonable even if it is wrong (Chesterton at para 8(2)).

[398]There may be a range of reasonable views as to whether a disclosure is made in the public interest (Chesterton at para 28). Detriment on the ground of a protected disclosure (section 47B)

[399]Under Section 47B a worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. This provision does not apply to employees where the alleged detriment amounts to dismissal.

[400]Under section 48(2) of the Act, on a complaint to an employment tribunal it is for the employer to show the ground on which any act, or deliberate failure to act, was done.

[401]Section 47B and Section 48(2) provides: ...47B Protected disclosures(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. (1A) A worker (“W”) has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done— (a) by another worker of W's employer in the course of that other worker's employment, or (b) by an agent of W's employer with the employer's authority, on the ground that W has made a protected disclosure. (1B) Where a worker is subjected to detriment by anything done as mentioned in subsection (1A), that thing is treated as also done by the worker's employer. …48 Complaints to [employment tribunals]

(2) On a complaint under subsection (1) …(1A) … it is for the employer to show the ground on which any act, or deliberate failure to act, was done.

[402]Detriment has been broadly interpreted in the whistleblowing and discrimination context and will be made out if a reasonable worker would or might take the view that the treatment had been to their detriment; it does not require a physical or economic consequence (Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

[403]A worker is subjected to a detriment on the grounds of a protected disclosure if the protected disclosure was a material (more than trivial) influence on the alleged perpetrator’s treatment of the whistlebower (see Fecitt and Ors v NHS Manchester

[2011] EWCA Civ 1190

;

[2012] ICR 372

at para 45).

[404]In respect of the operation of the burden of proof LJ Elias said as follows in Fecitt: “41…The fact that it was the claimants, the victims of harassment, who were redeployed was obviously not a point lost on the tribunal. It was evidence from which an inference of victimisation could readily be drawn. But the tribunal was satisfied that the employer had genuinely acted for other reasons. Once an employer satisfies the tribunal that he has acted for a particular reason - here, to remedy a dysfunctional situation - that necessarily discharges the burden of showing that the proscribed reason played no part in it. It is only if the tribunal considers that the reason given is false (whether consciously or unconsciously) or that the tribunal is being given something less than the whole story that it is legitimate to infer discrimination in accordance with the principles in Igen Ltd v Wong. …51.... I entirely accept that, where the whistleblower is subject to a detriment without being at fault in any way, tribunals will need to look with a critical— indeed sceptical—eye to see whether the innocent explanation given by the employer for the adverse treatment is indeed the genuine explanation. The detrimental treatment of an innocent whistleblower necessarily provides a strong prima facie case that the action has been taken because of the protected disclosure and it cries out for an explanation from the employer.”

[405]In International Petroleum Limited and ors v Osipov and ors

UKEAT/0058/17/DA

guidance is given on the operation of the burden of proof provisions: “115. Mr Forshaw submits and I agree that the proper approach to inference drawing and the burden of proof in a s.47B ERA 1996 case can be summarised as follows:(a) the burden of proof lies on a claimant to show that a ground or reason (that is more than trivial) for detrimental treatment to which he or she is subjected is a protected disclosure he or she made.

(b) By virtue of s.48(2) ERA 1996, the employer (or other respondent) must be prepared to show why the detrimental treatment was done. If they do not do so inferences may be drawn against them: see London Borough of Harrow v. Knight at paragraph 20.

(c) However, as with inferences drawn in any discrimination case, inferences drawn by tribunals in protected disclosure cases must be justified by the facts as found.” Automatic unfair dismissal

[406]S.103A provides: An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.

[407]In Kuzel v Roche Products

[2008] IRLR 530

the Court of Appeal made some preliminary observations on the operation of s.103A and its interaction with unfair dismissal generally.

[408]We observe that the Court of Appeal held in Kuzel that, having rejected the reason for dismissal advanced by the employer, a tribunal is not then bound to accept the reason advanced by the employee: it can conclude that the true reason for dismissal was one that was not advanced by either party. Separability from disclosures and the Jhuti argument

[409]During oral submissions Counsel were reminded that we had the benefit of a recent EAT decision that seemed to have a number of similarities to this case, Ms L Kong v Gulf International Bank (UK) Ltd: EA-2020-000357-JOJ (previously

UKEAT/0054/21/JOJ

). It was noted that there were factual similarities and the case authorities analysed by His Honour Judge Auerbach, were also referred to us by Counsel in this case.

[410]It was expressed to Claimant’s Counsel that Kong appeared to be a more relevant case authority to the facts in this matter than Sinclair v Trackwork

[2021] IRLR 557

, referred to in his written submissions which is a case under section 100 of the Employment Rights Act, automatic unfair dismissal in Health and Safety cases.

[411]After a short adjournment for Claimant’s Counsel to read the Kong decision, he confirmed that it was a helpful authority and that he relied upon it as well as the authorities it referred to such as Cadent Gas V Singh UKEAT/0024/19BA (which he had already referred to in his written submissions).

[412]Considering then paragraph 72 of the Kong decision which sets out His Honour Judge Auerbach’s conclusions after reviewing the relevant case law: “72. I note the following points. First, the general rule that the motivation that can be ascribed to the employer is only that of the decision-maker(s) continues to apply. Secondly, there is no warrant to extend the exceptions beyond the scenario described by Underhill LJ, which will itself be a relatively rare occurrence, and the surely highly unusual variation encountered in Jhuti. Thirdly, whether in the scenario contemplated by Underhill LJ, or in the variation described by Lord Wilson, two common features are that(a) the person whose motivation is attributed to the employer sought to procure the employee’s dismissal for the proscribed reason; and

(b) the decision-maker was peculiarly dependent upon that person as the source for the underlying facts and information concerning the case. A third essential feature is that their role or position be of the particular kind described in either scenario, so as to make it appropriate for their motivation to be attributed to the employer.”.

[413]As in the Kong decision we were also referred to the case authorities that deal with the separability from disclosures. As Claimant’s Counsel puts it with reference to Martin v Devonshires Solicitors

[2011] ICR 352

… “the EAT held that an employer will not be liable if it can show that the reason for its act or omission was not the protected act as such, but rather one or more features and / or consequences of it which were properly and genuinely separable from it. It is a modern legal formulation of the adage that “it’s not what you do but the way that you do it”.”. Claimant’s Counsel also referred us to Woodhouse v West North West Homes Leeds Ltd

[2013] IRLR 773

[414]Respondent’s Counsel addresses this point by also referring us to an extract from Panayiotou v Kernaghan

[2014] IRLR 500

, [2014] ICR D23: ''There is, in principle, a distinction between the disclosure of information and the manner or way in which the information is disclosed. An example would be the disclosing of information by using racist or otherwise abusive language. Depending on the circumstances, it may be permissible to distinguish between the disclosure of the information and the manner or way in which it was disclosed. An employer may be able to say that the fact that the employee disclosed particular information played no part in a decision to subject the employee to the detriment but the offensive or abusive way in which the employee conveyed the information was considered to be unacceptable. Similarly, it is also possible, depending on the circumstances, for a distinction to be drawn between the disclosure of the information and the steps taken by the employee in relation to the information disclosed.'' Time limits

[415]Of relevance to the question of time limits are the provisions in relation to section 48 ERA 1996.

[416]Section 48(1A) of the ERA 1996 confers jurisdiction on claims pursuant to section 47B to the employment tribunals, and section 48(3) provides that an employment tribunal shall not consider a complaint under this section unless it is presented –(a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. Section 48(4) says for the purposes of subsection (3) – (a) where an act extends over a period, the “date of the act” means the last day of that period, and (b) a deliberate failure to act shall be treated as done when it was decided on.

[417]Claimant’s Counsel submitted that this was a claim where alleged detriments 5 and 6 were part of a series of similar acts or failures to alleged detriments 7 and 8. THE DECISION:

[418]The logical order to address the issues we must determine, based on the facts proven on the balance of probability, is:a. Firstly, whether the Claimant has made a qualifying disclosure that was protected based on who he made it too.

b. Secondly, whether the Claimant has been subjected to detrimental treatment and then to decide if that was on the grounds of any of the proven protected disclosures.

c. Thirdly, to address any relevant time limit jurisdictional issues that arise from those findings.

d. Fourthly, what the reason, or principal reason for the dismissal was.

e. Fifthly, the fairness of dismissal for that reason.

[419]Considering then the alleged protected qualifying disclosures and for each whether (where relevant):a. there has been a disclosure of information;

b. the worker believes that the disclosure is made in the public interest;

c. If the worker does hold such a belief, is it reasonably held;

d. the worker believes that the disclosure tends to show one or more of the matters listed in sub-paragraphs (a) to (f);

e. if the worker does hold such a belief, is it reasonably held; and

f. to whom the disclosure is made.

[420]We address the alleged protected disclosures chronologically: Alleged Protected Disclosure 6: Letter 28/8/2015 Claimant to Paul Lear

[421]The parties agree that the Claimant wrote a letter to PL dated 28 August 2015 (see page 423) voicing concerns over MNS’s clinical practice of investigating women with post-menopausal bleeding.

[422]In the agreed list of issues the Claimant says this was a protected disclosure to his employer because the letter contained information tending to show that the Respondent was failing or was likely to fail to comply with a legal obligation to which it was subject, namely that it was employing a surgeon who was performing unnecessary, damaging and negligent re-section procedure in Health and Safety of individuals in the Respondent’s care.

[423]The Respondent denies that the letter to PL was a protected disclosure on the basis that the letter does not suggest that the Respondent or any other person was failing to meet its legal obligations, nor that the health and safety of anyone had been or was being or was likely to be endangered. The Respondent says the highest the Claimant puts it is to say … “it would therefore be helpful for us all to have a definite opinion on his practice by the external independent investigation.”.

[424]The content of the letter (at page 423) does disclose information, but it does not suggest the practice is wrong in law just that it is unusual. The Claimant says it is probably unwarranted ... but it would be helpful to have a definite opinion on his practice.

[425]What the Claimant writes in his alleged disclosure letter and his witness statement potentially supports a belief that he was disclosing information which tends to show that the practice of re-secting fibroids is a much more invasive process, but it does not tend to show that the Respondent was failing or was likely to fail to comply with a legal obligation to which it was subject, namely that it was employing a surgeon who was performing unnecessary, damaging and negligent re-section procedure in breach of its duty of care towards patients nor that there was danger to the Health and Safety of individuals in the Respondent’s care.

[426]Further the Claimant has not said in his witness statement that he believed and why he believed, this disclosure was made in the public interest.

[427]We therefore do not find that this is a qualifying disclosure. Alleged Protected Disclosure 5: Letter to GMC 21/9/2015

[428]The Claimant sent a letter by email from Viv Leonard to Dale Brown, Investigating Officer General Medical Council (“GMC”) on 21 September 2015 (see pages 443 to 449). The Respondent accepts that this letter was sent to the GMC. The Claimant says that Viv Leonard also sent a copy to PL in the Hospital Internal mail.

[429]In cross examination PL confirmed that he most likely did receive a copy of this. He confirmed that he would assume he received the document as he had read it and it could have been received around the third week of September. He had no reason to dispute the Claimant’s evidence that it had been sent to him in the internal post.

[430]It is the Claimant’s case as set out in the agreed list of issues that he provided information about the poor financial practices of the Respondent and the Claimant produced evidence that overpayments of on-call supplements by the Respondent to Alison Cooper would have been known to her. The Claimant also disclosed information tending to show poor reporting of annual leave and study leave, leading to possible fraud by Mr Siddig. This information tended to show that the Respondent, Alison Cooper and Mr Siddig were failing to comply Allowances, Travel and Subsistence (Po019) (“the Overpayments Policy”).

[431]The Respondent accepts that the Claimant makes allegations concerning his colleagues Mr Siddig and Ms Cooper, including that these individuals either claimed too much pay from the Respondent, were overpaid, or misused their annual leave and/or study leave entitlement. However, the Respondent says that none of these allegations constitute information tending to show that the Respondent (or the Claimant’s colleagues) was failing to comply with their legal obligations. The Respondent asserts that there was no clear allegation of wrongdoing by the Claimant, nor is there any reference in the letter to the various legal obligations or criminal offences now relied upon.

[432]The Claimant provides evidence on this alleged disclosure in paragraph 35 of his witness statement: “… I provided information about the additional PA’s to AC. I highlighted that AC and MS ought to have been aware they were being overpaid on-call supplements. I disclosed information tending to show poor reporting of annual leave and study leave, leading to possible fraud by MS and BD. Out of courtesy, Viv sent a copy of this letter to PL in the Hospital internal post.”

[433]As to the Claimant’s reasonable belief that he makes it in the public interest he does not address this specifically in his evidence in respect of this disclosure. Instead he relies upon paragraphs 4 and 5 of his witness statement. They say: “4. The Trust have rigorous financial policies in place, to ensure the proper use of public funds including the Financial Policy p76-93 and Overpayments Policy p.135-142. The policies are explicit that overpayments should always be repaid p138 para 1.8, All employees have a responsibility for checking they are being paid correctly (p138.parai.2) and it is a potential offence to fail to disclose this under s.3 The Fraud Act (p140,para5). I knew first hand of the hard-line approach that could be taken by the Trust as I was disciplined for “fraud” and received a warning following a mistaken travel claim in 2009 (p181-182) and in respect of the County Court action against me referred to above. However, the Trust did not apply these policies consistently. 5. The NHS was and is under huge financial pressure p251, p257 and my role as CD involved close scrutiny of finances. I started receiving monthly financial reports in September 2012. Concerns were reported to me regarding inconsistent practices for rewarding additional work p250. It was important to me that there was complete transparency over payments and that Trust policies were followed (p288-289 and applied.”

[434]It is not in dispute that these polices were in place, nor that the Respondent was experiencing difficult finances at that time. The Claimant did seem certain and genuine in cross examination as to his concern about fraud and the public finances. He confirmed in cross examination that he still believes that AC is guilty of fraud and the Trust management are complicit.

[435]The accepted factual position as to the content of the letter to the GMC and PL in our view does disclose information with sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection (1), being in this case the legal obligations on employees as to financial probity and to not commit fraud.

[436]For these reasons we do find that the Claimant has made a qualifying disclosure here and it is protected by him disclosing this information to PL at the Respondent. Alleged Protected Disclosure 4: Verbal disclosure to Tony Hall during a meeting towards the end 2015

[437]The parties agree that the Claimant met TH towards the end of 2015 and raised concerns about payments being made to his colleague Alison Cooper.

[438]The Claimant says in the agreed list of issues that during this meeting he disclosed information in respect of on-call overpayments to Alison Cooper and Mr Siddig, overpayments to Alison Cooper for extra colposcopy work which had not taken place, information regarding Beena Dandawate’s allegedly fraudulent behaviour in respect of leave arrangements to attend an RCOG congress in India. The Claimant says that this information tended to show that the Respondent, Alison Cooper, Mr Siddig and Beena Dandawate were failing to comply with legal obligations to which they were subject namely the employees’ own contracts of employment, implied terms of trust and confidence and the Respondent’s Overpayments Policy. This information, in the Claimant’s committed by the employees in question as under the Theft Act 1978 an

[439]It is not admitted by the Respondent that this conversation amounted to a protected disclosure. The Respondent says that there was no disclosure of any information tending to show a person or persons failing to meet their legal if further evidence came to light, he would be happy to investigate further.

[440]TH confirms in paragraph 1 of his witness statement that between 2012 and 2016 (so at the time of this alleged disclosure) he was the Fraud and Investigations Manager for the Trust.

[441]We accept what TH says about what he and the Claimant discussed … “… alleged overpayments to his colleague, Alison Cooper [Consultant]. I met with him in his office, although I cannot recall when. He alleged that Ms Cooper was being paid to attend meetings that she was not attending and gave me a copy of her job plan.”.

[442]This would in our view be information tending to show some type of fraudulent activity and based on what the Claimant believes about the finances and policies of the Respondent we accept he reasonably believed it and raised it in the public interest. The Claimant is after all telling this information to the Fraud and Investigations Manager for the Trust. We therefore find that this element was a qualifying protected disclosure being made to TH at the Respondent. Alleged Protected Disclosure 6A: Verbal disclosure to Patricia Miller during meeting on 19/5/16

[443]The parties agree that there was a meeting between the Claimant and Patricia Miller (“PM”) the CEO in 2016 when the dysfunction of the gynaecology team and the detrimental impact on patient safety was discussed. The Claimant says this meeting took place on 19 May 2016. The Respondent says this meeting was in early 2016 but does not confirm the date.

[444]The Claimant submits that this verbal discussion was a protected disclosure to his employer. The Claimant says he provided information in the form of two examples where patient safety was being detrimentally affected.

[445]The Respondent denies that this verbal discussion was a protected the fact that colleagues reporting each other to the GMC was unhelpful.

[446]The Claimant addresses this disclosure in paragraphs 49 to 51 of his witness statement providing details of the clinical examples he provided to PM.

[447]PM in cross examination indicated that the Claimant may have set out the specific examples that he refers to in his witness statement.

[448]On the 24 May 2016 PL instructs Richard Jones (“RJ”) to conduct a ‘whistleblowing investigation’ into the contention that the breakdown of relationships is detrimentally affecting patient safety’.

[449]As noted by Claimant’s Counsel in his written submissions the examples the Claimant says he raised with PM are examples addressed in the report of RJ completed on the 23 June 2016 (see page 706).

[450]For these reasons we accept the Claimant’s account and find that this is a qualifying protected disclosure. The Claimant provides reasons for his thinking on the matters of patient safety which would be a public interest matter and he discloses this information to PM at the Respondent which then results in a ‘whistleblowing investigation’. Alleged Protected Disclosure 7 Verbal disclosure during meeting with Catherine Abery-Williams on 31/10/16

[451]The parties agree that there was a meeting between the Claimant and CAW on or around the 31 October 2016.

[452]The Claimant asserts in the agreed list of issues that during this meeting he provided Catherine Abery-Williams with information about overpayments being made to Alison Cooper for her Hospital Based Pathology Co-ordinator Role (HBPC). The Claimant says this information tended to show that the Respondent and Alison Cooper were failing to comply with legal obligations to which they were subject namely the employees’ own contracts of employment, Policy. The Claimant says that this information, in his reasonable belief also tended to show that a criminal offence may be being committed by Alison Cooper as under the Theft Act 1978 an employee may be guilty of theft by keeping salary overpayments and treating them as their own. The Claimant says his belief was reasonable and made in the public interest as the

[453]The Respondent denies any protected disclosure was made during this meeting. The Respondent says that the Claimant repeated previous concerns about Mrs Cooper and payment in respect of her HBPC role. The Respondent says there was therefore no disclosure of new information tending to show any breach of any legal obligation or any tendency to commit criminal acts. Further, the Respondent does not agree that it would have been within the reasonable belief of the Claimant that raising such issues was at that time, in the public interest, given that the issues had previously been raised in 2013 and dealt with by the Trust.

[454]It is clear from considering the witness evidence of the Claimant and CAW that there is a consistency about what is raised about AC’s PAs, and that the Claimant considers and communicates that he considers it to be fraudulent.

[455]From this evidence, and the Claimant’s belief on matters as referred to above, we find that it is a qualifying disclosure, protected by having been made to CAW at the Respondent.

[456]The fact the Respondent knows the information is not a reason to prevent it being a qualifying disclosure as a disclosure of information can still amount to a qualifying disclosure if the information was already known to the recipient (section 43L(3) of the ERA 1996). Alleged Protected Disclosure 8: Meeting with Julie Doherty 16/2/2017 [now said to be 20/2/2017]

[457]The parties agree that the Claimant brought the issue of irregular payments being made to Alison Cooper to Julie Doherty during the period when Julie Doherty was Divisional Director. The Respondent cannot recall the date. The Claimant now says in evidence that this was on the 20 February 2017.

[458]The Claimant submits that the information disclosed to Julie Doherty during this meeting was a protected disclosure to his employer. The Claimant says he presented an electronic copy of Ms Cooper’s job plan to Julie Doherty and informed her of the fraudulent entry of 4 hours entitlement for the HBPC role (her entry being “meetings outside my working week”). The Claimant says that this information, in his reasonable belief, tended to show overpayments being made to the Respondent’s employees. The Claimant says that this tended to show that the Respondent and Alison Cooper were failing to comply Overpayments Policy and/or that a criminal offence may be being committed by Alison Cooper as under the Theft Act 1978 an employee may be guilty of theft by keeping salary overpayments and treating them as their own. The

[459]The Respondent denies that the discussion between the Claimant and Julie Doherty amounted to a protected disclosure. As the matter had previously been investigated by the previous Divisional Director, the Respondent says that the Claimant agreed that allegations would not be reinvestigated.

[460]As we have already identified a disclosure of information can still amount to a qualifying disclosure if the information was already known to the recipient.

[461]It is clear from considering the witness evidence of the Claimant and JD that there is a consistency about what is raised about AC’s PAs, and that the Claimant considers and communicates that he considers it to be fraudulent.

[462]From this evidence, and the Claimant’s belief on matters as referred to above, we find that it is a qualifying disclosure, protected by having been made to JD at the Respondent. Alleged Protected Disclosure 9: Meetings with Megan Joffe from Edgecumbe 10/7/17 and 11/9/17 and interview by telephone on 27/9/17.

[463]The parties had agreed that the meetings between the Claimant and MJ took place on 19 July 2017 and 11 September 2017 and that there was a phone interview on 27 September 2017.

[464]The Claimant submits that he made protected disclosures to his employer on these dates as it is averred that MJ was acting as the

[465]The Respondent denies that any of the Claimant’s interactions with MJ and/or Edgecumbe constituted protected disclosures. The Respondent denies that MJ acted as agent for the Respondent and further denies that it was her role to investigate the alleged overpayments to the Claimant’s colleagues.

[466]About this disclosure the Claimant is very brief saying at paragraph 83 of his witness statement: “83. I was interviewed by MJ on 10.7.17 [amended to be 10.8.17] and 11.9.17 and had a telephone interview on 27.9,17. I sent MJ information by email to highlight my concerns that I was not liked because I was bringing effective management and accountability to O & G (p975a-b). I highlighted my concerns over AC's potentially fraudulent conduct over her job plan and the Trust's unwillingness to investigate (976a-d) and details of my arrest (977a-b).”

[467]Considering the submissions of Claimant’s Counsel on this matter … it is also addressed briefly … “MJ was sent the documents set out at para 33 of the amended clarification of claim. Central to this was the disclosure of the AC’s job plan and Trish Dyer’s email as discussed above. MJ was an ‘agent’ of R in that she was authorised by the employer by virtue of her instructions to receive information from C and others as part of her investigation into dysfunction. To that extent the disclosure to her was a qualifying disclosure under s 43C (2) ERA.”.

[468]As we have found factually, MJ was not engaged to investigate matters of fraud, and we note that matters concerning the Claimant’s reasonable belief as to what he is disclosing and why it is in the public interest to make these alleged disclosures to MJ has not been specifically addressed in his witness evidence.

[469]For these reasons we do not find that the Claimant has proven on the balance of probability that he has made a protected qualifying disclosure as he asserts. In any event we note that based on the Claimant’s Counsel’s closing oral submissions this alleged ninth disclosure is no longer relied upon for any of the alleged detriments.

[470]We now address the alleged detriments we are being asked to determine chronologically.

[471]We note here that it is not submitted to us that what the Claimant alleges as detrimental treatment in alleged detriments 5 to 8 does not amount to detrimental treatment. Our focus has instead been directed to motive. As set out in the legal summary concerning detriment for making a protected disclosure, it is:a. for the Claimant to show that a ground or reason (that is more than trivial) for detrimental treatment to which he is subjected is a protected disclosure he made.

b. The Respondent must be prepared to show why the detrimental treatment was done. If they do not do so inferences may be drawn against them.

c. As with inferences drawn in any discrimination case, inferences drawn by tribunals in protected disclosure cases must be justified by the facts as found.

[472]We therefore consider for each alleged detriment whether the Claimant has shown that a ground or reason for the alleged detrimental treatment to which he is subjected is a protected disclosure he made. Then whether the Respondent has shown, based on the facts we have found, why they acted the way they did, which is not a false reason (whether consciously or unconsciously) or something less than the whole story. Alleged Detriment 5 – The Edgecumbe Report

[473]On the 15 February 2017 PL makes initial contact with Edgecumbe Consulting seeking help in relation to the problems in the O&G department. At a meeting on the 8 March 2017 between the Claimant, PL and CAW he is informed of the investigation and agrees to it. There is a change of view on the 13 March 2017, before then reverting to supporting it. As the Claimant confirmed in evidence, he … “… welcomed the Edgcumbe Report as an opportunity for the matters between my colleagues and myself to be completely brought out into the open by an independent person and resolved.”. The Claimant absolutely accepted that a situation had arisen which the Trust needed to address as to dysfunction in the department. He accepted that Edgecumbe was a sensible and reasonable step for the trust to take.

[474]About her instruction and the report MJ confirmed in cross examination, that the review was a request to hear peoples’ views and give their (Edgecumbe’s) judgment on the interpersonal dynamics. She confirmed that her findings and recommendations were absolutely genuinely meant, and it was then up to the Trust what to do. She confirmed that once the report is in it is up to them what they follow through on and it does depend on resources.

[475]The Edgecumbe report is completed on the 15 September 2017 (see pages 978 to 1000). The agreed chronology confirms that it is on the 5 January 2018 the Edgecumbe report is then distributed.

[476]Respondent’s Counsel in his submissions asserts that the report identifies that the Claimant is … “a serious source of tension if not the centre and cause of it.”. Having reviewed the references in the report we were directed to, as we have detailed in our fact find set out above, we agree they record this and that dysfunction of the team is clearly identified and that it is a risk to patient safety. Also, that … “… the breakdown in trust in this team is such that the likelihood of the team being able to achieve safe and effective working within its current make-up is very small.”. Further, about mediation as a potential method of resolution … “ … we do not feel that this option would enable this team to develop the trust that is necessary to begin the process of repair unless it was carried out in a very different way.”.

[477]About the fifth alleged detriment the Claimant says that the Edgecumbe Report findings were detrimental treatment of him by Paul Lear and Patricia Miller who commissioned the report and by Megan Joffe acting as the

[478]It was confirmed that this alleged detriment is on the grounds of alleged disclosures 4, 5, 7 and 8.

[479]We remind ourselves that: j. Disclosure 4 was that to TH k. Disclosure 5 was the letter to the GMC and also sent to PL l. Disclosure 7 is the verbal disclosure to CAW m. Disclosure 8 is the meeting with JD

[480]We have found that all of these are protected qualifying disclosures.

[481]In his witness statement (paragraph 38) PL says that … “I confirm that I commissioned the report from Edgecumbe.”. He refers to his meeting with the Claimant with CAW and his follow up email. He confirms that … “I explained that the intention was to seek Edgecumbe’s view on the difficult working relationships within the O&Gs consultants team…”. Then at paragraph 39 … “There was no agenda or plan to dismiss MI when commissioning the Edgecumbe Report. My predominant concern was the potential that dysfunctional relationships had to compromise patient care…”.

[482]It was not put to PL or PM that they commissioned the report on the grounds of any of the asserted disclosures, nor that what was written in the report was on the grounds of any of those asserted disclosures.

[483]It was not put to MJ that what she did or wrote was on the grounds of any alleged disclosures made by the Claimant.

[484]From this evidence we accept the reasons of PL for commissioning the report and MJ’s explanation for the report and its content.

[485]Having considered the submissions made by Claimant’s Counsel on this matter he submits that … “the Edgecumbe findings make multiple detrimental findings which are based on the assumption that C continued to wrongly ‘rake over old coals.”.

[486]It is the Claimant’s case therefore that this wrong assumption is the material influence, rather than the actual disclosures themselves, on what the report says.

[487]It was confirmed in closing oral submissions that the Claimant holds EH responsible for creating this wrong assumption and that she did this on the grounds of a protected disclosure made by the Claimant, although as noted, which disclosure in particular, or any of the alleged disclosures for that matter being her motive (if this is what she did) was not put to EH. For these reasons If the assumption were wrong it could be an assumption genuinely wrongly formed, rather than one deliberately cultivated on the grounds of the Claimant’s alleged protected disclosures.

[488]We note that it was not put to PL in cross examination that he wrote the letter dated 10 November 2016 (at page 852) on the grounds of any alleged protected disclosure the Claimant made. The submission by Claimant’s Counsel that … “There is no doubt that this letter is also based on the misconception that matters were resolved fully, long before.”, suggests another source for the misconception as it is not submitted it arises from EH, nor was it put to EH that she had perpetuated this misconception to PL. Therefore, if it is a wrong misconception it would not appear to be by design on the grounds of any protected disclosures the Claimant may have made.

[489]We have also considered if this is a wrong misconception. It is the Claimant’s asserted position that AC is guilty of fraud, i.e. she did it deliberately to gain payments she was not entitled to. This is something he maintains to date (as confirmed by him in cross examination). Whether this is correct or not (i.e. AC committed fraud on the PAs she was paid for in 2012/13) does not appear to have been specifically investigated by the Respondent or a decision expressly made on that particular issue. This though is because when it was a raised in 2013, WW was impressing upon the Claimant that he should investigate it, by way of discussions with AC and review of job plans. The Claimant did not raise this issue with AC, had he done so it may have clarified matters.

[490]From the facts we have found about the interaction between WW and the Claimant on AC’s PAs therefore it does not appear to be a wrong assumption/misconception by EH or PL. WW was expecting the Claimant to pursue the matter and revert back to him if he did identify an issue, which the Claimant did not do.

[491]We also accept that the view held by EH on the AC PA matter (about what WW had done and what she then looked at) was genuinely held and not something she manufactured on the grounds of any protected disclosures the Claimant may have made.

[492]For completeness we note that it was not put to MJ that what she wrote in the report was on the grounds of the alleged ninth disclosure that is said to have been made to her.

[493]From these primary facts there is no evidence that the detrimental findings in the report about the Claimant are by design on the grounds of the Claimant’s “whistleblowing” or motivated on the grounds of the Claimant’s “whistleblowing”. MJ was clear in her evidence as to the independent process she undertook and conclusions she reached and why, we accept this. Alleged Detriment 6 – The Claimant’s Suspension on 2/2/18 at 12:30pm

[494]The Claimant says that PL’s decision to suspend him on 2 February 2018 at 12:30pm was detrimental treatment because of his protected

[495]It was submitted in closing submissions by Claimant’s Counsel that this

[496]We remind ourselves that: f. Disclosure 5 was the letter to the GMC and also sent to PL g. Disclosure 6 is the letter to PL h. Disclosure 6A is the verbal disclosure to PM i. Disclosure 7 is the verbal disclosure to CAW j. Disclosure 8 is the meeting with JD

[497]We have found that all but disclosure 6 are protected qualifying

[498]It was not put to PL that he suspended the Claimant when he did on the grounds of any of those disclosures.

[499]It was not put to PM that her actions in this matter were done on the grounds of any of the Claimant’s alleged disclosures.

[500]We accept the Respondent’s evidence on this matter and find that the decision to suspend (or exclude) the Claimant was made by the Board of directors at the meeting on the 31 January 2018. There is nothing proven on the balance of probability from the primary facts we have found to suggest that this decision was on the grounds of any of the protected disclosures the

[501]This is consistent with the allegation that the Claimant makes which, as articulated in the agreed list of issues, is that the decision of PL to activate that exclusion on the 2 February 2018 at 12:30 was because of the alleged protected disclosures.

[502]We do not find this. From the primary facts we have found there is no evidence that PL did what he did on the grounds of the Claimant’s “whistleblowing”. PL was activating the decision of the Directors to exclude and before he did so he verified the Claimant’s account of a successful informal mediation being underway. MNS and MS did not support that. In our view this indicates why the Trust’s decision may have been appropriate as the Claimant could be said to be interfering in the process by his interactions with MNS and MS that do not appear to be appreciated in the way he asserts. The Claimant did agree during cross examination that if he is eye of storm then appropriate to take him out. DETRIMENT 8 - The Claimant avers that the Respondent’s failure to deal with his grievance before the disciplinary hearing (10/9/18), was detrimental treatment because of whistleblowing by Julie Doherty.

[503]On the 10 September 2018 JD refuses the Claimant’s application for an adjournment of the Panel Hearing pending resolution of grievance (see pages 1751 to 1752).

[504]It was submitted in closing submissions by Claimant’s Counsel that this

[505]We remind ourselves that:

[506]We have found that all but disclosure 6 are protected qualifying

[507]JD provides her reasons for what she did in paragraphs 14 to 21 of her witness statement. It was not put to JD in cross examination that any of the disclosures were her motivation for what she did. In cross examination JD confirmed that what was in her mind about the grievance the Claimant submitted was the dysfunction of the team. She explained that the main essence was dysfunction, no one was disagreeing there was dysfunction of the team, the grievance was going to be heard just not at the same panel. JD confirmed that points 1 to 17 of the grievance refer to historical issues, there was dysfunction and it was how they move forward. Her decision was 18 to 23 were the relevant issues for the hearing panel. JD confirmed that whistleblowing was not in her perception. JD also confirmed in cross examination that she did not accept that the management case was dismissal but that it was whether dismissal was the appropriate action or whether there were any alternatives. JD confirmed that she presented the case as she found it and the decision was open to the panel, there was no predetermined outcome.

[508]The Claimant was cross examined about this grievance. He accepted it went back to matters in 2006 and that in 2018 he was dredging up matters that were 10 years old. He agreed that his CEA appeal was successful so that is why he did not raise a grievance about that at the time. He agreed that he did understand JD’s rationale for what she did.

[509]We have therefore considered carefully the submissions made by Claimant’s Counsel on this matter. In short it is submitted that the exclusion of the material adversely affected the outcome at the Claimant’s panel hearing.

[510]About this we would note that there has been no challenge put in oral evidence as to what particular documents should have been referred to by reference to those actual documents and what difference such documents would have made to the outcome. If the documents relevant to the grievance were important then we would have expected copies of those to be before us and for the Claimant to have provided further copies with his appeal against the Claimant’s dismissal, and they were not. Further, we note that the grievance was heard before the appeal (the grievance outcome is not challenged by the Claimant), so the Claimant had the outcome of that to assist the appeal if matters were found to be relevant or upheld.

[511]From these primary facts we accept the explanation given by JD for doing what she did. There is no evidence that any alleged failure to deal with the Claimant’s grievance before the disciplinary hearing was on the grounds of the Claimant’s “whistleblowing”. DETRIMENT 7 – Disciplinary outcome following the Boniface report was predetermined and this was detrimental treatment by Julie Doherty and Paul Lear.

[512]It is the Claimant’s alleged seventh detriment that the disciplinary outcome following the Boniface report was predetermined and this was detrimental treatment by Julie Doherty and Paul Lear.

[513]The Claimant avers in the agreed list of issues that Mr Boniface's true role was to provide a report that would wrongly lead to the conclusion by a Panel that the Claimant should be dismissed. It is not the Claimant's case that the Panel deciding the matter were themselves party to this unlawful purpose. The Claimant will rely on the Supreme Court's judgment in Royal Mail Group Ltd v Jhuti

[2019] UKSC 55

[514]Claimant has confirmed that the individuals who the Claimant says were responsible for his dismissal by reason (or principle reason) of whistleblowing were Paul Lear, Julie Doherty, Mark Warner and Patricia Miller.

[515]The Respondent denies that the Boniface report and the “disciplinary”

[516]We would observe that what the Respondent submits about the authors of the Edgecumbe report and Mr Boniface is correct factually, they did not make the decision to dismiss the Claimant.

[517]It was submitted in closing submissions by Claimant’s Counsel that this

[518]We remind ourselves that:

[519]We have found that all but disclosure 6 are protected qualifying

[520]It was not put to JD of PL that they were responsible for his dismissal by reason (or principle reason) of whistleblowing nor on the grounds of any of those disclosures.

[521]It was also not expressly put to PM either, but when asked about it being her private desire for the Claimant to be dismissed she denied this, saying it was relationship breakdown and that people whistle-blow all the time, not reason for dismissal.

[522]Evidentially it was not PL’s, JD’s, MW’s or PM’s decision to dismiss the Claimant. This was the decision of the panel chaired by AH. It is the Claimant’s case that the panel were misled to do it.

[523]Respondent’s Counsel submits that … “C’s case implied RB was a conconspirator when no such case was put to RB. The allegation (if it were ever explicitly made) is wholly without merit: RB was an independent professional dealing with matters on their merits…. Manifestly it is an allegation of no merit: nothing was pre-determined; RB was instructed, and RB reported; a panel was seised of matters; the panel decided C’s fate. Nothing was pre-determined.”.

[524]We have considered the matters that RB was cross examined on. He confirmed that he resented the idea that he had been lent on to give an outcome. He would never be led in that way. As to the use of the word feasible in the TORs, he did not agree this should have been “possible”. He confirmed that it was to seek solutions that where balanced and when looked at objectively would have a sufficient chance of a positive sustainable outcome, and not leave the Trust with a dysfunctional department. Feasible he said means a chance of success. RB also did not accept that his report was saying it would be “perverse” to keep the Claimant.

[525]We have also considered what the Claimant agreed about the RB report in cross examination.

[526]The Claimant agreed that the report’s key findings say there is a breakdown and a non-sustainable breakdown. The Claimant was asked if he accepted that it recorded, he was not trusted as a colleague and he replied yes, and that he had replied there is a lack of trust amongst all of us.

[527]The Claimant accepted that as of now he would not trust AC or MS with non-clinical work matters. He would trust BD, and could work with MNS … “If he can get out of the box where he blames me for the restrictions”. He was asked if (by reference to page 1464) it was reasonable for colleagues to hold a lack of trust in him just as he has a lack of trust in them, and the Claimant agreed of course, if that is their opinion.

[528]The Claimant agreed that the dysfunction would have continued, he said unless mediation was arranged.

[529]It was put to the Claimant … “If you had gone into mediation with AC a key part would have been your accusation of lack of probity”. He confirmed … “could not have a mediation without it.”. The Claimant confirmed that this would also need to be addressed with MS.

[530]It was put to the Claimant … “you accept when faced with the Boniface report and the conclusions looking at in May 2018, you accept the trust were entitled to have this put to panel”. … “Yes, that was the process given”. Also put … “It should go to panel?” … “that was the next step. It was put … “accept proper course to take?” … “That was the path given to me and Boniface and we all had to get there now as that is the conclusions he has reached.”.

[531]For these reasons we find that there are no primary facts from which it can be found on the balance of probability that RB’s true role was to provide a report that would wrongly lead to the conclusion by a Panel that the Claimant should be dismissed. We do not find that the “Disciplinary outcome following the Boniface report was predetermined and this was detrimental treatment by Julie Doherty and Paul Lear”.

[532]With these findings it is not necessary for us to address the time limit jurisdictional issues. The Dismissal

[533]Now to consider the reason for the dismissal and the fairness of dismissing for that reason.

[534]This is a case where dysfunction in the O&G department is not in dispute. What is, is the cause of the dysfunction and the motive for the Claimant being portrayed as, the Respondent submits “a dog with a bone” instead of as the Claimant asserts “the conscientious whistle-blower”.

[535]We have found as fact the Claimant does pursue the on-call matters in respect of AC and MC despite its resolution so far as the Respondent is concerned. The Claimant’s involvement in the on-call matter is complained about by MS as can be seen from page 353 which is a document recording MS’ concerns dated 28 November 2014. MS says he believed he had agreed he would he work off the amount, but without his agreement the Claimant and WW decided that he should repay it. This complaint by MS about the Claimant cannot be linked to any of the protected disclosures the Claimant says he has made, being alleged disclosures one and two relating to AC’s PAs.

[536]The Claimant maintained during cross examination that he still considers MS and AC would have been aware of these overpayments and are therefore guilty of fraud. The Claimant’s continued view on this, despite what the facts support, does appear to support the conclusions reached by MJ in the Edgecumbe report about the Claimant and how she explained “chronic embitterment”.

[537]This does support the Respondent’s assertion that the Claimant is a “dog with bone” rather than “conscientious whistle-blower”.

[538]About the AC PA matter this concludes with WW expecting to hear further from the Claimant if there is an issue. WW does not.

[539]As to the work restrictions placed on MNS. By email dated 4 April 2014 (see page 336) WW expressly states that … “… any in-fighting is likely to be detrimental…” to the goal of supporting MNS to re-establish his position within the Trust and … “It cannot be helpful to keep going over past events that cannot be changed.”.

[540]As to the Claimant’s actions around this time the statement dated 1 May 2014 from GH a Gynaecology sister about an incident and the Claimant’s role in it (see pages 338 to 339) and records she has a lack of trust in him. There is no evidence to suggest that this account by GH was motivated by the alleged protected disclosures one and two the Claimant says he made before this. We have no reason to not accept that this is a true reflection of what GH thought at that time about the Claimant.

[541]On the 30 September 2014 BD another Consultant, complains to the Claimant about his handling of her job planning (see page 347). There is no evidence to suggest that this account by BD was motivated by the alleged protected disclosures one and two the Claimant says he made before this.

[542]It is then by a joint statement signed by MS, AC, BD and MNS dated the 10 October 2014 that these consultants complain to PL about the Claimant and his conduct in the Clinical Director role and how they have lost trust and confidence in him.

[543]As the alleged disclosures made by the Claimant up to this point (numbers one and two) relate to AC’s PA matter, which he has not spoken to AC about, it cannot be said that this joint statement is submitted on the grounds of any alleged protected disclosures the Claimant may have made.

[544]As we have also found factually the matters GH and BD raise appear completely independent of any disclosures the Claimant may have made.

[545]There is then a further complaint from BD to the Claimant on the 14 November 2014 about his handling of a leave application (see page 352). Then BD produces a three-page complaint dated 24 November 2014 (pages 354 to 356) about the Claimant. Again, there is nothing to suggest that these matters are raised because of the alleged protected disclosures one and two the Claimant has made about AC’s PAs.

[546]MS, AC, BD and MNS then write a second joint letter of complaint about the Claimant dated 2 December 2014 (see page 357).

[547]By letter dated 4 December 2014 AC writes a personal letter of complaint to PL about the Claimant’s leadership ability (see page 358). There does not appear to be any evidence linking what AC says here to the alleged protected disclosures one and two the Claimant asserts he made about AC’s PAs. The Claimant has not raised the PA issue with AC directly. As a contemporaneous document it records how AC and a number of medical staff view the Claimant’s leadership ability at that time.

[548]On the 18 February 2015 MNS emails PL about his clinical concerns about the Claimant, his alleged malicious conduct towards him and seeking removal of him as CD (see page 363). We note that MNS to this point has not been the subject matter of any of the Claimant’s alleged disclosures it is therefore not apparent that his complaints are motivated by any alleged disclosures the Claimant says he made.

[549]On the 1 April 2015 PL writes to AC, BD, MNS and MS proposing a facilitated team meeting (mediation) to deal with the difficult working relationships (see page 367). There are issues of concern about the Claimant concerning his leadership style and communication.

[550]Matters do not calm down and eventually lead to the instruction of Dorset Mediation. This also refers to concerns being the Claimant’s … “leadership style and communication”. There is no evidence to suggest that this was originally written by PL and then repeated by EH because of any alleged disclosures by the Claimant.

[551]The agreed chronology then records that on the 8 May 2015 TH’s report into MS’ allegedly fraudulent study leave is delivered (see page 374). Then on the 24 August 2015 CAW confirms with MS the outcome of the investigation into the study leave fraud matter (see page 406), and that the … “investigation found there was no intent to commit fraud and no further action is required in relation to this matter.”. This is therefore a concluded matter so far as the Respondent is concerned, however, it is not for the Claimant who raises it as part of his disclosure five, the letter to the GMC, copied to PL dated 21 September 2015.

[552]By a letter dated 18 May 2015 the Claimant writes to PL expressly stating that his colleagues’ unhappiness in his role is due to his management of them for the first time as per Trust policy (see page 385). What the Claimant does not say here is that the unhappiness is related to alleged disclosures he says he has made. This contemporaneous document shows that it is the Claimant’s view at this time that what is happening between the consultants is related to his management of them, not any disclosures he may have made.

[553]By letter dated 20 May 2015 MS, AC, MNS, MS and GH write to the GMC stating there has been no satisfactory response from PL to their concerns which they now ask the GMC to investigate. We agree, as submitted by Respondent’s Counsel, that this is a significant step by these individuals. We also note that this action by the consultants is not raised as a detriment by the Claimant as being done because of any alleged protected disclosures he may have made up to this point.

[554]By letter dated 20 May 2015 MS, AC, MNS, MS and GH write to PL to confirm they will not go through a mediation session and that they have forwarded their concerns to the GMC (see page 390). There would appear to be a change of heart though as within the agreed chronology it is recorded that on the 7 July 2015 CAW invites the parties to a pre-mediation meeting. Then on the 4 August 2015 AC, MS, BD, MNS and GH consent to mediation on condition that if they are “all still unhappy with Mr Iftikhar as the clinical lead he is replaced forthwith” (see page 403). The mediation process then appears to commence with an opening session around the 23 September 2015 (see page 451) and it remains underway in mid-October 2015 (see page 467). There is limited documentation about the mediation presented to us, which is understandable as presumably it was a confidential process between the parties. It is common ground though that this mediation process is unsuccessful. In cross examination PL confirms that he was informed by the mediators that they fear matters are worse than where they started.

[555]It was put to the Claimant in cross examination that by him, while the mediation process was live, sending his alleged protected disclosure five to the GMC it was a serious attack against professional colleagues, a two-faced response. The Claimant responded that he has a right to respond to the allegations against him. We would observe that this is more than responding to allegations it is making allegations against his colleagues which, in the middle of a mediation process would not be helpful and may be a reason for its ultimate failure. The Claimant did confirm that if there had been a further mediation arranged, he would raise his allegations of fraud by AC with the parties.

[556]By letter dated 24 July 2015 Dr Margaret Peramulla, Dr Asia Khan and Dr Daby write to PL to express they are “saddened and appalled” that colleagues continue to undermine the Claimant’s integrity and that they support him 100%. (see page 401). The Claimant accepted in cross examination that he had gathered these views. We note that the format of the document (the statement with joint signatures underneath) does compare closely to those previously submitted by the other consultants about the Claimant. It does appear to be a course of conduct taken by the Claimant in defending his management of the team and not something you would expect to see from the leader of a team, involving juniors in a disagreement between the seniors.

[557]Chronologically we then get to the Claimant’s alleged protected disclosure six. About the Claimant being approached informally by consultants and middle grade staff in connection with this matter the Claimant says that … “Historically BD and MS had informed me of their concerns regarding MNS practice, however they had now changed their position in order to back up MNS (p424-427).”. We have reviewed the emails at pages 424 to 427 and they do not support that there has been a change of position by BD or MS. Instead they suggest they are surprised at the change of position by the Claimant on the matter, by him now being critical of what MNS is doing.

[558]Of note is also what AC says to the Claimant about his actions (see page 425) where she calls for support of colleagues, rather than inflaming a difficult situation.

[559]We have also been referred to an email from SB (Service Manager for Women’s Health) to CAW dated 4 September 2015 (pages 432 to 433) which reports a number of difficult encounters she has had with the Claimant and her email concludes with … “I feel it is important I bring this issues to your attention, as these are not the first incidences where I have found Mr Iftikhar to be obstructive and unsupportive, however it was particularly noticeable over the last week or so.”. There is no evidence to suggest that what SB says here is in any way motivated by any alleged protected disclosures the Claimant says he

[560]About the letter dated 19 October 2015 that the Claimant writes to AC, MS, MNS, and BD (page 473), the Claimant agreed that what he wrote was to tell his colleagues that they had got it all wrong, they were unsuccessful, and they need to bury it. He was asked if he thought this letter was on reflection wise and sensible. The Claimant confirmed that it was, although if he had to redo it knowing it offended them, but it is how he felt, he had to tell them off.

[561]This correspondence did not go down well with his colleagues who responded on the 2 November 2015 (see page 488). This response is generated by the Claimant’s correspondence in which he wants to tell his colleagues off. It relates to the way he is communicating with them. His colleagues say it demonstrates poor leadership by the Claimant which is what their concerns have been about. This expression of their views at this stage is therefore completely independent of any alleged disclosures the Claimant may have made up to this point.

[562]By email dated 18 November 2015 MS, AC, MNS and BD write to the Claimant to complain about the distribution of work in job plans sent to them by the Claimant on the 12 November 2015 (see pages 490 to 491). This is correspondence generated by what the Claimant says to his colleagues about job plans and is not related to any alleged protected disclosures the Claimant says he has made.

[563]The agreed chronology records that in November 2015 the GMC’s expert report from Professor Lamont is received and we are referred to the conclusion at page 521. This records acrimony towards the Claimant from MNS. The Claimant’s alleged disclosure six about MNS is made on the 28 August 2015. However, we would observe that as the GMC referral (May 2015) and the clinical concerns being investigated (there are no medical reference dates post the 17 August 2015 (see page 509) the majority being in 2013/2014), all predate the alleged disclosure, it would appear that the observed acrimony between the Claimant and MNS can have nothing to do with any alleged protected disclosures the Claimant has made about MNS.

[564]On the 18 January 2016 the Claimant attends a 2-day GMC Interim Orders Tribunal hearing. We are referred to pages 542 to 550 about this and with particular reference to page 549, saying that the Claimant is exonerated. Having reviewed that page, it says that it is not the Claimant’s sole responsibility but note what is suggested is … “a significant breakdown of communication within the department which could put patients at risk.”.

[565]By email dated 25 January 2016 the Claimant writes to PL saying that the allegations against him are malicious, and suggests it is possible racism and the anger has been directed against him due to the implementation of Trust polices, and not therefore saying it is “the blowing of the whistle”.

[566]It is then on the 5 February 2016 that the Claimant corresponds with the GMC about BD’s allegedly fraudulent study leave application in 2014 (see pages 552 to 558). It is unclear why this is pursued by the Claimant at this point, as he is no longer in the CD role, and it was the Claimant’s evidence that this issue was resolved by him.

[567]In February 2016 the Respondent engages Mr Hisham Rahman and Mr Ed Neale to conduct a review of O&G department and the report is then produced on the 1 March 2016 (pages 560 to 578). It is submitted to us by Respondent’s Counsel that … “Objectively, the Neale/Rahman service review in February 2016 identifies the dysfunction as a lack of consistency of medical leadership within the department leading to 2 factions p574”. This is what the report records and it would relate to when the Claimant was in the CD role as AC only took on the role from the 1 February 2016.

[568]By email dated the 2 March 2016 the Claimant sends an email to (as the agreed chronology refers to them) … “supportive colleagues” about the IOP outcome (see page 580) offering an apology on behalf of his other colleagues. The Claimant accepted that he did not have the agreement of his other colleagues to make such an apology on their behalf. The Claimant having written and circulated such a statement without consent is unlikely to assist in eliminating dysfunction in the O&G department.

[569]The Claimant continues to provide further material to the GMC about his colleagues. By letter dated 19 April 2016 EH replies on behalf of PL (as he is on annual leave and asked EH to do so) to the GMC (see page 597) following a request from it for information. Based on the way that the Claimant has confirmed he argues his case this is a crucial piece of correspondence. The Claimant submits that this is wrong information that ultimately leads him to being seen as the “dog with a bone”, rather that the “conscientious whistleblower”. It is the Claimant’s case that this wrong information was created by EH on the grounds of his alleged protected disclosure five to the GMC.

[570]EH was not challenged in cross examination that what she did was because of alleged protected disclosure five or any other particular disclosure. We note that this is not an allegation made against EH until closing oral submissions. Also, the resolution of the AC PA matter is referred to by PL in his letter dated 10 November 2016 and it was not put to PL in cross examination that he wrote the letter dated 10 November 2016 (at page 852) on the grounds of any alleged protected disclosure the Claimant made.

[571]A letter dated 19 May 2016 from PL to the Claimant records matters discussed at a meeting between the Claimant, PL, CAW and the Divisional Work Force Manager on the 12 May 2016 (see pages 625 to 627). It records the Claimant having communicated that he did not believe he could build a relationship with MNS or MS due to differing cultures. The responses given by the Claimant in cross examination about this matter do not support that he is being acted against in his view for whistleblowing reasons. The Claimant does raise allegations of race discrimination in his submissions to the panel hearing, but they are not part of his claim to this Tribunal. It is difficult to see how the Claimant could work with MS and MNS moving forward if he held these views about them.

[572]By letter dated 10 November 2016 (pages 852 to 853) PL writes to the Claimant confirming that CAW and AC had reported that the recent job planning meeting had been very difficult. We note from this letter that an issue of concern for the Respondent is that CAW and AC found the Claimant to be bullying and threatening towards them both, interrupting them frequently. This relates to the Claimant’s conduct at the meeting towards both CAW and AC and not to what he then says specifically to CAW about allegations of fraud about AC.

[573]The Claimant was asked about the 10 November 2016 letter in cross examination and he confirmed that the job planning meeting was an opportunity for him to raise fraudulent behaviour, it was a turning point for him, he was not going to let it go. He was asked if he thought a job planning meeting like this was the appropriate forum to make the allegations. The Claimant confirmed, of course, the job plan is interlinked, job plans are interlinked the department is given money, if one person overpaid and another under paid, that is the forum.

[574]It is not clear in our view though why a job planning meeting is the appropriate forum to raise allegations of fraud. The Claimant had seen matters work through the Respondent’s whistleblowing report procedure with the involvement of RJ. This was a meeting about the Claimant’s job planning, and he is wanting to challenge what he perceives as errors in his PAs (see paragraph 71 of his witness statement).

[575]On the 30 June 2017 the Claimant writes to TH in relation to his original contact with him over potential fraud concerning AC (see page 930). TH did not reply, and the agreed chronology records the Claimant follows it up with a phone call a few weeks later. The Claimant having confirmed in cross examination that his job planning meetings were the correct forum to raise matters of fraud concerning AC there appears to be no obvious reason for this change of direction now.

[576]It was suggested by the Claimant that the decision about his dismissal was inevitable because the panel had already been booked. PM responded to this in cross examination by confirming that in most cases where an investigation is ongoing they would always set up a provisional date for a panel, because when Doctors are involved they cannot cancel any clinical commitments within 6 weeks, so to make sure there is not a delay they would pencil in a date with the panel. We accept this explanation.

[577]We accept the Respondent’s evidence about what the NCAS are recorded to have said. We also note that none of the attendees at the NCAS meeting were part of the panel that took the decision to dismiss the Claimant.

[578]As to the suggestion that there was a predetermination of the decision to dismiss as the Respondent has already hired a third consultant, when only two were needed at that time. We accept the Respondent’s evidence as to why this happened at that time and there is nothing to suggest this is done because of the Claimant’s alleged disclosures.

[579]It is submitted by Claimant’s Counsel that there is a concern about the fairness of any dismissal because as was established during cross examination the … “new MD AH had twice visited the O and G department attended meetings run by Jo Hartley…” and had therefore observed the department functioning without the Claimant present. Claimant’s Counsel submits that … “AH was also forced to accept that this that this interaction meant that he could not be an impartial chair of the panel.”.

[580]All AH agreed was he understood Claimant’s Counsel’s point. AH was not acting as a witness at the panel hearing and there is no evidence that what AH knew he imparted to the other panel members (AO was not cross examined about this matter, despite her evidence coming after AH’s). There is no evidence presented to us that what AH did had any negative sway on matters. We accept what AH says and that he was carrying out his role as a Director. We would observe that if the evidence had been AH had observed dysfunction while the Claimant was not there, but hidden this, that could raise questions as to fairness. This did not happen.

[581]We accept the evidence of AH and AO as to the reason for the Claimant’s dismissal being the irretrievable breakdown in relations. This is accepted by the Claimant as the reason of AH and AO and this dynamic existing in the O&G department is supported by the evidence of the Claimant’s supporting witnesses.

[582]It is the Claimant’s case that the panel has been misled (the Jhuti argument).

[583]As confirmed by Claimant’s Counsel in oral closing submissions, it is asserted that the Claimant’s ultimate dismissal being for the principal reason of making a protected disclosure, hinges on what EH is said to have wrongly stated in respect of AC’s PAs to the GMC.

[584]Based on our findings we do not accept that was wrongly stated, and even if it was, we accept what EH says, which it was her communicating what she understood. There is no evidence that it was deliberately misleading on the grounds of any disclosures the Claimant may have made.

[585]Considering paragraph 72 of the Kong decision referred to above there is no evidence proven on the balance of probability that any person other than the panel made the decision to dismiss, nor that if there was any wrong information presented to the panel about the Claimant it was produced to procure the employee’s dismissal for the proscribed reason; nor that the panel was peculiarly dependent upon the producer of such “wrong information” (if there were any) as the source for the underlying facts and information concerning the case. There is no evidential basis to find that this is a Jhuti type case.

[586]We have not found any of the alleged detriments to be on the grounds of any of the proven disclosures. From our fact find the Claimant does appear to be the primary focus of the dysfunction in the department and this is not due to his “whistleblowing”. For all these reasons there is a clear separation for what happened to the Claimant, including his dismissal and the protected disclosures he made.

[587]We therefore find that the principal reason for the Claimant’s dismissal is the irretrievable breakdown in relations. This is a reason that can amount to some other substantial reason and is a fair reason.

[588]Owing to the Claimant’s actions as described above, the identified patient safety concerns that the team dysfunction can cause, the previous failed mediation, and it not being supported by MS and MNS that the Claimant’s efforts post Edgecumbe with MS and MNS will resolve matters, and no attempt by the Claimant to include AC and BD in his reconciliation efforts, all this in our view supports that the decision of the panel to dismiss was a reasonable one. It was not pre-determined, it was based on what they genuinely believed, which is based on reasonable grounds, after a reasonable investigation (as detailed above we find that RB’s findings are independent).

[589]We accept that the Respondent did take reasonable steps to solve the problem without resorting to dismissal and that the panel did consider whether there were any alternatives, short of dismissing the Claimant.

[590]MHPS is no longer relevant based on these findings as confirmed by the submissions of both Counsel. We do not find any procedural unfairness. The Claimant also had a right of appeal, exercised it and makes no complaint about it.

[591]We find that the dismissal of the Claimant is reasonable in all the circumstances for some other substantial reason.

[592]For all these reasons the unanimous judgment of the tribunal is that:a. The complaints of detriments 1 to 4 for making a protected disclosure are dismissed on withdrawal.

b. The complaints of unfair dismissal, detriments 5 to 8 for making a protected disclosure and automatic unfair dismissal (section 103A Employment Rights Act 1996), fail and are dismissed.

[593]For the purposes of Rule 62(5) of the Employment Tribunals Rules of Procedure 2013, the issues which the tribunal determined are at paragraph 13; the findings of fact made in relation to those issues are at paragraphs 14 to 373; a concise identification of the relevant law is at paragraphs 374 to 417; how that law has been applied to those findings in order to decide the issues is at paragraphs 418 to 592.