Dr S Adomi v Sheffield Teaching Hospitals NHS Foundation Trust: 1809290/2018 and 1807286/2019

EMPLOYMENT TRIBUNALS

Case No 1809290/2018, 1807286/2019

Between

Dr S AdomiClaimant

Sheffield Teaching Hospitals NHS Foundation TrustRespondent

Before

Employment Judge T R Smith

Mr Panton (instructed by representative) for claimant

Date 26 May 2022

JUDGMENT

[1]The alleged discriminatory acts numbered one, two, three, as defined herein, were not presented within the time limit specified in section 123 of the Equality Act 2010 and it is not just and equitable to extend time. They are struck out.

[2]Act four was presented in time, or if it was not, it would be just and equitable to extend time.

[3]Act five was presented within time.

REASONS

[1]The Tribunal had before it a bundle consisting of 288 pages.

[2]A reference to a number in brackets is a reference to a document in the agreed bundle.

[3]The Claimant prepared a short statement dated 14 March 2020 and gave oral evidence. 10.5 Reserved judgment with reasons – rule 61 1 March 2017

[4]The Respondent did not call any evidence.

[5]The Tribunal considered all the evidence in the round, even if it is not specifically referred to every dispute or every document. The Procedural Background.

[6]The Claimant originally issued proceedings under case number 1809290/2018 (“the first claim”), which was presented on 10 August 2018.

[7]The Claimant subsequently issued proceedings under case number 1807286/2019 (“the second claim”) on 09 December 2019. There was no dispute between the parties that the second claim was issued in time, in respect of the Claimant’s complaint of a discriminatory and unfair dismissal.

[8]At a preliminary hearing held on the on 17 January 2020 the Claimant was ordered to provide further particulars of the first claim.

[9]The Claimant did so (159 to 161).

[10]The Claimant identified in the further particulars five acts of discrimination which were referred to by the parties throughout the evidence as acts one to five and the Tribunal has adopted the same nomenclature. The Acts of Discrimination

[11]Act one, the failure to uphold the Claimant’s first grievance in August 2011.

[12]Act two, the failure of the Respondent to uphold the Claimant’s appeal in respect of her first grievance on or around November 2012 (there is an error in the further particulars which refers to November 2011 but this is a clear typographical error, see page 180).

[13]Act three, the failure to provide the Claimant with a suitable role which was commensurate with her qualifications and experience.

[14]Act four, the decision to refer the Claimant to what the Claimant described as a disciplinary hearing on or about September/October 2016

[15]Act five, the failure to investigate in a timely, fair and reasonable manner the Claimant second and third grievances, the second being dated 15 March 2018 and the third dated 09 May 2018.

The Issues

[16]As long ago as the 28 January 2020 the Tribunal directed there would be a public preliminary hearing to determine whether all or any of the allegations contained in the first claim were presented within time, and if not, whether it was just and equitable to extend time.

[17]For a variety of reasons, the public preliminary hearing was adjourned on a number of occasions.

[18]During the course of this hearing various concessions were made by both advocates. 10.5 Reserved judgment with reasons – rule 61 2 March 2017

[19]Originally the Claimant contended acts one to five were continuing acts.

[20]However, in submissions Mr Panton expressly conceded that acts one and two were not continuing acts and were out of time. Therefore, one issue for the Tribunal was whether it would be just and equitable to extend time in respect of acts one and two.

[21]On the behalf of the Respondent it was expressly conceded by Ms Kyte that the second grievance was effectively incorporated into the third grievance and there was a continuing act in respect of the third grievance and thus the complaint in respect of act five was presented within time. It was therefore agreed that the Tribunal did not need to address the issue of time in respect of act 5. The Time Line and

Findings of fact

[22]The Tribunal considered it helpful to set out a brief timeline, based on the documentation presented to it, before moving on to specific findings of fact.

[23]The Claimant commenced employment with Sheffield Primary Care Trust (“ the PCT”) on or about 02 February 2009 (4).

[24]Whilst she was subsequently to be employed by the Respondent in April 2011, it was conceded the Claimant’s employment was continuous from 02 February 2009 and the Respondent assumed all rights and responsibilities and obligations that existed between the Claimant and PCT. For this reason, unless the context otherwise requires, the Tribunal has referred to the Claimant’s employer from February 2009 simply as the Respondent.

[25]She was employed by the Respondent as a Senior Community Dentist (special needs)

[26]Within four months of the start of her employment, in about June 2009 concerns were raised as to the Claimant’s competence (26).

[27]On 02 July 2009 the Claimant was excluded from clinical duties pending an investigation under the PCT’s “conduct, capability and ill-health policies and procedures for doctors and dentists (the “CCH”)

[28]The Claimant took sick leave from 14 September 2009 and did not return to work until 07 July 2011. She was absent for what has been described as stress and depression. The Claimant’s evidence before the Tribunal was that sometime in 2010, she was also diagnosed with a post-traumatic stress disorder condition.

[29]In the interim the CCH investigation was completed on 20 September 2010 but without input from the Claimant.

[30]On 02 August 2011 the Claimant raised her first grievance in which she made allegations of discrimination on the grounds of her race and disability. It would appear that much of that grievance related to her treatment by the PCT and the conduct and necessity of the CCH investigation.

[31]Between February and July 2012, the Claimant had been placed on a back to work programme. Assessments were carried out by a variety of practitioners at the Charles Clifford Dental Hospital and the University of Sheffield School of 10.5 Reserved judgment with reasons – rule 61 3 March 2017 clinical dentistry. There is a dispute as to the result of those assessments. The Tribunal is not required to make a judgement upon them, at this stage. What can be said is that the Respondent considered the Claimant did not have the full capabilities required for the post to which she been appointed too.

[32]The grievance outcome was dealt with by the Respondent’s Deputy Medical Director, Dr Throssell, with some of the Claimant’s concerns being upheld but not those relating to discrimination. This was what the parties referred to as act one. Dr Throssell’s report was dated 25 July 2012 (165 to 179) but on the evidence before it the Tribunal could not be certain as to the exact date that the Claimant saw that report but it must have been by 02 August 2011 as she lodged an appeal against the first grievance outcome on that day (180).

[33]There was no cogent evidence before the Tribunal that Dr Throssell had any further direct involvement in the Claimant’s employment with the Respondent. The Claimant’s case was she certainly wasn’t aware of any such direct involvement

[34]On 12 September 2012 Dr Massey considered there were no suitable clinical roles with supervision available for the Claimant and therefore directed that she be placed upon nonclinical duties, while investigations were undertaken into her capability. This was referred to the parties as act three.

[35]The Claimant did not suggest that there were formal reviews of this decision. At its highest she said she approached her line manager on a number of occasions to ask whether she could return to full duties. She was not given a response, merely told it needed to be referred to HR. She never heard back from HR and she never pursued the matter any further. She hoped that she would be allocated some clinical duties

[36]On 30 November 2012 the Claimant received a letter as to the outcome of her appeal against the first grievance. The appeal was not upheld in relation to the Claimant’s allegations of discrimination but it was recommended that the CCH investigation should be reviewed with a new case investigator. This was referred to by the parties as act two. The decision was taken by the Respondents then chief executive, Sir Andrew Cash (180 to 183). Sir Andrew Cash was also to acknowledge receipt of the Claimants third grievance by letter dated 12 June 2018 and indicated that the investigation would be undertaken by a Ms Allred and that other aspects would be dealt with by “relevant managers” (184 to 186). His involvement was therefore limited to an acknowledgement.

[37]Between 04 November 2012 and 15 December 2013, the Claimant was once again absent due to ill-health.

[38]During this period of sickness, in January 2014 Dr Anderson, a retired consultant was appointed as a case investigator into the Claimant’s alleged competency supported by an independent community dentist and a medical HR manager (the Anderson report).

[39]In part there were delays in the Anderson report because the Claimant was absent ill-health from 19 August 2015 to 07 October 2015. 10.5 Reserved judgment with reasons – rule 61 4 March 2017

[40]The Anderson report was not completed until October 2016 and in essence concluded there were issues as to the Claimants clinical competence, communication and working skills although the outcome was not immediately shared with the Claimant

[41]At about the same time as the Anderson report was concluded the Claimant was again absent due to ill-health from 26 October 2016 to 02 May 2017.

[42]On 18 July 2017 Dr Massey shared the Anderson report with the National Clinical Assessment Service (NCAS).

[43]On 25 September 2017 NCAS determined that this was not a case where they were required to carry out their own independent assessment of the Claimants capability. The Claimant objected to the NCAS decision and asked for review, which was refused by NCAS.

[44]On 14 December 2017 Dr Massey decided to refer the Claimant’s capability concerns to a capability hearing. This was referred to by the parties as act four. For clarity, the Claimant referred to this as a disciplinary hearing in her evidence and in some of her documentation. They were one and the same thing. Thus, it was Dr Massey who had taken the Claimant off clinical duties and had taken the decision to refer the Claimant to a capability process.

[45]On or about 16 March 2018 the Claimant lodged her second grievance. Much of the grievance related to the Claimant’s treatment at Charles Clifford Dental Hospital

[46]Before the second grievance was investigated the Claimant raised her third grievance on or about 09 May 2018 . The third grievance contained elements of the second grievance and additional information.

[47]The Claimant did not produce any medical evidence in the bundle or give oral evidence in chief to explain the impact of her health challenges on her ability to lodge the first claim prior to 10 August 2018. In particular there was no specific evidence as to what the Claimant could or could not do in the appropriate time period for lodging a Tribunal claim following acts one two, three and four.

[48]The following staff who featured in the pleadings and grievances are no longer employed by the Respondent namely Dr Vosa, Dr Throssell, Dr Hayes, Dr Massey, Ms Gornell, Mr Stocks, Mr Clauson, Sir Andrew Cash and Mr Rowe.

[49]The Claimant did not content in her evidence that from the commencement of her employment with the PCT and her subsequent transfer to the Respondent she was unaware of the existence of Employment Tribunals.

[50]The Claimant did refer the Tribunal to any specific document which she said suddenly led her to realise she had a potential discrimination claim which had not been disclosed in the normal course of events. As the Tribunal has already observed the Claimant was making allegations of discrimination in her first grievance.

[51]At the time all the acts complained of occurred the Claimant accepted she regarded those acts as being wrong and discriminatory. 10.5 Reserved judgment with reasons – rule 61 5 March 2017

[52]It would appear that under the Respondents policy any grievance would initially be referred to the Claimant’s line manager. For the avoidance of doubt Dr Throssell, Dr Massey and Sir Andrew Cash were not the Claimant’s line managers.

[53]The Claimant had the benefit of assistance from her two defence organisations the BDU and the BDD up to and including the lodging of the first claim. Submissions

[54]Both advocates relied upon written submissions which they amplified orally.

[55]The Tribunal means no disrespect to either advocate by failing to record, in detail, those submissions, given they are already contained on the Tribunal file.

[56]Where appropriate, if a particular submission has been preferred, the Tribunal has explained the reasons why. Discussion and Reasons.

[57]Section 123 of the Equality Act 2010 (EQA10) sets out the statutory provisions in respect of time, which the Tribunal has reproduced below: – “…Proceedings on a complaint … may not be brought after the end of – the period of three months starting with the date of the act to which the complaint relates, or such other period as the Employment Tribunal thinks just and equitable…. (3) For the purposes of this section –(a) conduct extending over a period is to be treated as done at the end of the period;

(b) failure to do something is to be treated as occurring when the person in question decided on it (4) in the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something-

(d) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.”

[58]The starting point for the Tribunal is that it should be slow to strike out all or part of a claim at a preliminary hearing, particularly when it involves discrimination, given the Tribunal has not heard all the evidence and discrimination cases are notoriously fact sensitive. That said there is no rule that there cannot be a strike out in a discrimination claim on time prior to the full hearing.

[59]It was accepted that acts one and two were out of time and act five was within time.

[60]The first issue the Tribunal had to determine was whether acts three and four were continuing acts. If they were a series of one-off acts time ran from the end of each act. If there was a continuing act then time ran from the last act. The 10.5 Reserved judgment with reasons – rule 61 6 March 2017 Claimant contended that acts three and four were linked to act five and thus they were continuing acts (see paragraphs 2 and 3 of the Claimant’s proof)

[61]The Tribunal has reminded itself that the test at this stage is whether the Claimant has made out a prima face case of the incidents being treated collectively as an act continuing over a period – Lyfar-v- Brighton and Sussex University Hospitals Trust

2006 EWCA Civ 1548

[62]The starting point is what is a continuing act? The mere assertion that there was a continuing act by the Claimant will not suffice. In Barclays Bank PLC v Kapur

1991 ICR 208

HL the Supreme Court distinguished between a continuing act and an act with continuing consequences. The Supreme Court held that where an employer operated a discriminatory regime, rule, practice or principle, then such a practice would amount to a discriminatory act extending over a period. This concept was further explained in Hendricks v Commissioner of Police for the Metropolis

2003 IRLR 96

CA. The Court of Appeal said that in determining whether there was an act extending over a period, as distinct from a succession of unconnected or isolated specific acts, the focus should be on the substance of the complaints that the employer was responsible for and whether it was an ongoing situation or a continuing state of affairs

[63]Hendricks addressed the point raised in previous authorities as to what was a practice, policy, rule or regime. There was no need for there to be a written practice, policy rule or regime. They were simply examples that pointed towards a continuing act.

[64]Further authorities have established that the mere repetition of the request cannot convert a single managerial decision into a policy, practice or rule – see Cast v Croydon College

1997 IRLR14

and a Tribunal might find it instructive to determine whether the acts complained of were linked and whether there was a continuing discriminatory state of affairs, (Lyfar ) and whether the same person or persons were responsible for each of the acts, see Aziz –v- FDA

2010 EWCA Civ 304

[65]The Tribunal has concluded that act three was not a continuing act. The decision to place the Claimant on restricted duties was a one-off act with continuing consequences for the Claimant in terms of prestige and job satisfaction

[66]The decision in respect of act three was taken by Dr Massey in September 2012. Whilst he was subsequently to recommend that the Claimant was referred to a capability hearing there was nothing in the evidence before the Tribunal to link Dr Massey to any involvement in act five.

[67]The asserted belief of the Claimant that she would be allocated clinical duties at some stage was unreasonable, hence the reason for the delay until August 2018 was wholly unreasonable. It was unreasonable because she had been expressly told by her line manager that clinical duties could not be allocated to her whilst her capability was being investigated (57).

[68]It was further unreasonable because the Claimant was aware of the Respondents concerns as to her capability and was then appraised of the Anderson report well 10.5 Reserved judgment with reasons – rule 61 7 March 2017 after she had been removed from her substantive duties which apparently was unavailable to her. In September 2017 she was seeking to persuade NCAS to carry out its own review of her capability because she did not accept the findings of the Anderson report.

[69]The Claimant knew in the light of the investigations made by the Respondent she would not be returning to unrestricted duties, at the very latest, by September 2017.

[70]There was no linkage between act three and act five other than the Claimant refers to act three in her third grievance along with a multitude of other assertions. The same people were not involved save Dr Massey is mentioned along with many others in grievance three. In any event act five is not about the contents of the third grievance but simply that the Respondent failed to address that grievance in a “timely fair and reasonable manner”. Dr Massey had nothing to do with the progress of the grievance as is clear from the letter from Sir Andrew Cash, quoted above.

[71]This is not a case where there was a policy, provision or practice applied. The reality was the Respondents believed there were concerns as to the Claimant’s capability and would only review the same following the outcome of its investigations. On the Respondent’s evidence the Claimant remained incapable hence why she was not returned to her full range of clinical duties and there was no need to review. Even if it was found that the Claimant made direct requests for a review and there was a policy to exclude the Claimant all the Respondent did was maintain that policy so act three is out of time, see Cast.

[72]The position as regards act four is not so clear cut.

[73]The Tribunal has not lost sight of the Claimant’s proof. As the Tribunal has already observed the Claimant’s case was that act four was a continuing act and she relied upon those various incidents in her further and better particulars in the first claim. There is no reference whatsoever to dismissal in that statement, written well after the second claim was lodged.

[74]Mr Panton in his submissions took the Tribunal to the unreported case of Hale - v- Brighton and Sussex University Hospitals NHS Trust

UKEAT/0342/16/LA

. He relied specifically on the judgement of His Honour Judge Choudhury at paragraphs 42 to 44 which read as follows: – 42. By taking the decision to instigate disciplinary procedures, it seems to me that the Respondent created a state of affairs that would continue until the conclusion of the disciplinary process. This is not merely a one-off act with continuing consequences. That much is evident from the fact that once the process is initiated, the Respondent would subject the Claimant to further steps under it from time to time. Alternatively, it may be said that each of the steps taken in accordance with the procedures is such that it cannot be said that those steps comprise "a succession of unconnected or isolated specific acts" as per the decision in Hendricks, paragraph 52.43. In my judgment, the Tribunal erred in treating the first stage of the process as a one-off act. Mr Kibling submits that this is a clear finding of fact and notes that 10.5 Reserved judgment with reasons – rule 61 8 March 2017 the decision is not challenged on the basis of perversity. However, the Tribunal here, for reasons already set out, lost sight of the substance of the complaint as defined by the agreed issue. Having done so, it then incorrectly treated the subdivided issue as a one-off, when it undoubtedly formed part of an ongoing state of affairs created by the initial decision.

44. That outcome avoids a multiplicity of claims. If an employee is not permitted to rely upon an ongoing state of affairs in situations such as this, then time would begin to run as soon as each step is taken under the procedure. Disciplinary procedures in some employment contexts - including the medical profession - can take many months, if not years, to complete. In such contexts, in order to avoid losing the right to claim in respect of an act of discrimination at an earlier stage, the employee would have to lodge a claim after each stage unless he could be confident that time would be extended on just and equitable grounds. It seems to me that that would impose an unnecessary burden on claimants when they could rely upon the act extending over a period provision. It seems to me that that provision can encompass situations such as the one in question.”

[75]The decision has to be carefully analysed because Hale was a case whereby the doctor brought one claim and alleged one of the acts of discrimination which he was subjected to was the disciplinary proceedings and ultimately being dismissed.

[76]Here the Claimant, in the first claim, has made no reference to dismissal, but she cannot be blamed for that, because she had not been dismissed, and dismissal only appears in the second claim.

[77]Had the Claimant not been dismissed, for example a decision was subsequently taken by the Respondent to drop the allegations against her, then her complaint that she was referred to a capability hearing would have been well out of time. It might be argued why should the Claimant, because she has been dismissed, now be able to pursue an allegation that on its face is out of time.

[78]In the Tribunal’s judgement it is persuaded this was a continuing act because it formed part of a disciplinary process and there is much merit in the observations made at paragraph 44 of the decision in Hale which favours different steps in a disciplinary or capability process amounting to a continuing act. The process started with the decision to refer to a capability and proceeded up to and including her dismissal.

[79]The Tribunal concluded that act four was a continuing act, but if the Tribunal was wrong on this point, for reasons set out below, it would have extended time in any event. Extension of Time

[80]A Tribunal has a very wide discretion in determining whether or not it is just and equitable to extend time. It is entitled to consider anything it considers relevant. However, time limits are exercised strictly in employment cases. When considering the discretion, there is no presumption that the Tribunal should exercise its discretion unless it can justify a failure to exercise that discretion. On the contrary, a Tribunal cannot hear a complaint unless the Claimant convinces the Tribunal that it is just and equitable to extend time. The discretion is the 10.5 Reserved judgment with reasons – rule 61 9 March 2017 exception rather than the rule – see Robertson –v- Bexley Community Centre

2003 IRLR 434

CA.

[81]In considering whether to exercise its discretion the Tribunal had regard to the checklist in Section 33 of the Limitation Act 1980 as modified by the EAT in British Coal Corporation –v- Keeble

1997 IRLR 336

[82]The Tribunal was not persuaded by the submission of Mr Panton, eloquent though it was, that it was just and equitable to extend time in respect of acts one, two or three

[83]Act one, two and three occurred between 8 to 9 years ago. Whilst the passage of time in itself does not mean the Tribunal should not exercise its discretion, the Tribunal is required to look carefully at the impact delay would have on a fair trial see Afolabi –v- Southwick London Borough Council

2003 EWCA Civ 15

[84]It was submitted by Mr Panton that the Tribunal had to have regard to the Claimant’s health in looking at an extension of time. The Tribunal concluded it could not equate the mere fact there were periods when the Claimant was absent due to ill-health as being equivalent to periods when the Claimant was totally unable to lodge a claim form, as it was clear the Claimant was able to function during periods of ill-health, for example when she drafted the third grievance while absent from work. The third grievance runs to the over 80 pages. That grievance on any objective reading was comprehensive and lucid. It is for the Claimant to persuade the Tribunal that her health was such that at the times she should have presented a Tribunal claim in time she was unable to do so. She has failed to lead cogent evidence on this point. It follows the Tribunal is not persuaded that general assertions as to the Claimant’s health are such that it necessarily leads to an extension of time.

[85]It is clear from reading the documentation that there is a significant evidential dispute between the parties as to what did or did not occur and the reasons for certain actions or omissions in respect of acts one, two and three.

[86]Dr Throssell, who dealt with the first grievance and was central to act one has left the Respondents employment.

[87]Sir Andrew Cash who dealt with act two, the appeal, has also has left the Respondents employment. A number of those named in acts one and two are also no longer employed by the Respondent.

[88]Dr Massey who was responsible for act three and four has also left the Respondent.

[89]Whilst the Claimant contended, she had a good memory of events, that may well be because her concerns have been at the forefront of her mind for many years. Senior clinicians and a chief executive of an NHS trust would have a multitude of different difficult decisions to make at the times of acts one two and three. Whilst there is some contemporaneous documentation, the length of delay must seriously impact upon the quality of the evidence the Respondents can give, even assuming that their witnesses can be traced. On this latter point the Tribunal considered that it probably would be possible to trace them given they may well 10.5 Reserved judgment with reasons – rule 61 10 March 2017 be will be in receipt of NHS pensions. The passage of time will clearly affect the cogency of the evidence and this tells against the Claimant.

[90]The Claimant has not produced cogent reasons for the delay. As the Tribunal has already observed there was no cogent medical evidence to suggest the Claimant could not have lodged a claim form promptly following the alleged commission of acts one two and three. Whilst it is proper to record that the Claimant did say that she hoped matters would improve which explained delay the Tribunal were unimpressed by that evidence. Whilst she might initially have thought there would have been an improvement, given the passage of time, waiting until August 2018 to then issue proceedings is not a valid explanation for the excessive delay. The Tribunal did not find the submission of Mr Panton that it was only in August 2018 the Claimant realised how serious matters were to be attractive and ran counter to the contents of her various grievances which painted a completely different picture.

[91]There is no cogent evidence that the Respondents have hidden or concealed evidence in respect of acts one two and three.

[92]The Claimant had the assistance of two professional associations, certainly up until, and just after she lodged the first claim. There was no reason therefore why she could not have taken advice at an early stage in respect of acts one two and three and issued promptly.

[93]The Tribunal then went on to consider the balance of prejudice of extending or not extending time.

[94]The Claimant will suffer some prejudice in that she will not be able to pursue acts one two and three. However, she has an in-time disability discrimination and unfair dismissal complaint. If she was to succeed it is that claim that is likely to be the most valuable. At his highest if acts one two and three were proven they would only merit an injury to feelings award as the Claimant did not content, she suffered a drop in salary whilst on restricted duties. Whilst the Tribunal accepted that the Claimant, if she succeeded, may obtain a smaller sum for injury to feelings if deprived of the right to proceed with acts one, two and three than if she was allowed to proceed, that prejudice is not outweighed by the prejudice to the Respondent. The Respondent would face trying to trace witnesses, some who already left the Respondent, to deal with a grievance and suspension from duty that is extremely lengthy and relates to events more than eight years ago. That will have very significant cost implications both of the Respondents in respect of preparation for trial and also in respect of the length of the trial itself. It may also find some witnesses are untraceable which will impact on its ability to fully defend its position.

[95]When the Tribunal balances the prejudice to each side the weight of prejudice firmly falls on the side of the Respondent, being a substantial reason why would not be just and equitable to extend time.

[96]It follows it is not just and equitable to extend time. 10.5 Reserved judgment with reasons – rule 61 11 March 2017

[97]In respect of allegation four, if there was not a continuing act the Tribunal would have regarded it as just and equitable to extend time. In reaching this conclusion there is an in-time allegation of a discriminatory unfair dismissal. As a result, the Respondent will need to lead evidence as to the reason or principal reason for its dismissal. This will involve evidence from the decision maker. The decisionmaker will need to satisfy the Tribunal why the decision was taken, which means evidence will need to be led as regards capability. Whilst the Respondent may not have the direct evidence of Dr Massey it will have various assessments and the Anderson report. It will also have various correspondence with NCAS. Thus, the prejudice will be limited.

[98]In essence the Respondent will need to deal with act four when addressing the in-time discriminatory dismissal claim. It follows if the Tribunal was wrong to hold that act four was not a continuing act it would be just and equitable to extend time.

[99]On 17 September 2018 the Claimant wrote to Sir Andrew Cash and the Chair of the Trust asking for the capability hearing to be postponed. She sent a copy of a letter she had sent to the Employment Tribunal indicating that she had recently had an operation for a “life-threatening” condition. She provided a letter from her GP, also addressed to the Tribunal, indicating that she had suffered from an abscess that required surgery and was likely to require 8-12 weeks’ recovery. Dr Massey regarded this as a new medical condition. He noted that Dr Harvey was not available on the October dates. He therefore agreed to postpone the capability hearing for a second time. He wrote to the Claimant confirming this on 25 September 2018. He asked her to provide dates on which she could attend a hearing.

[100]In the light of the OH advice, the investigation of the Claimant’s Second Grievance and the third category concerns in her Third Grievance were also put on hold. Mrs Robson was told by Ms Eyre or Ms Davidson that the Claimant had requested the grievance process be put on hold and the Respondent had agreed. She was also advised that the Claimant should not be contacted by her or Mrs Grice. She told Mrs Grice. The Claimant emailed Mr Harper, Chief Operating Officer, in late September 2018 to say that she could not agree to Mrs Grice’s appointment until her impartiality had been investigated. Mr Harper told the Claimant that Mrs Grice had already started interviewing witnesses. He said that he would tell Mrs Grice that the Claimant’s interview should be 34 of 63 postponed to December. After that, the Claimant remained unfit and no further progress was made with Mrs Grice’s process before the Claimant’s dismissal in June 2019 (see below). Mrs Robson’s unchallenged evidence was that the Claimant continued to submit fitnotes and advise that she remained too unwell to participate, and Mrs Robson continued to advise Mrs Grice not to contact the Claimant.

[101]The capability hearing was re-listed for 23, 24 and 25 April 2019. It was necessary to identify some new panel members in order to do so. Dr Massey asked for a view from Dr Rimmer. She reiterated that the protracted process was contributing to the Claimant’s ill health and that it needed to be brought to a conclusion. Her view was that the hearing should be scheduled and that she would only review the Claimant if she or her GP indicated that she was not well enough to attend and the Case Manager requested a review. She thought it likely that a postponement request would be received, as being given a date was likely to lead to a deterioration. Dr Rimmer had serious concerns about the impact of the process on the Claimant’s health; the longer it dragged on the greater that would be. She urged that all avenues for resolving it should be considered. Dr Massey was aware that Dr Harvey, but not Ms Whistler, was available. He decided that the hearing should go ahead. He took into account Dr Rimmer’s advice about the risk to the Claimant’s health the longer things went on. He wrote to the Claimant on 8 March 2019 to confirm the dates and on 26 March 2019 to confirm the details and the names of the panel. The chair was to be Dr Hughes, Medical Director. The other panel members were Mrs Carman, Assistant Chief Executive, and Dr Pollock, external medical representative. There were also an external clinical advisor and an external HR

[102]By 4 April 2019, no contact had been received from the Claimant and it had not been possible to hand-deliver documents to her. Her representatives said that they had had no contact from her and would not be representing her. Dr Massey wrote further letters to her. On 16 April 2019 he confirmed that the hearing would go ahead.

[103]On 18 April 2019 the Claimant wrote to Dr Massey. She pointed out that she was currently off sick and reiterated that she did not agree that she should be in the capability process because it had resulted from discriminatory behaviour; grossly unfair investigations with false witness statements and withheld documents; and other obstructive behaviours, which she had detailed in her grievance and had not been fully investigated. In view of that and her doctor’s comments it was most disappointing that they had decided to proceed with the capability/conduct and grievance hearing together. She attached a copy of a recent letter from her GP to the Employment Tribunal. That letter referred to the Claimant having depression and PTSD. It said that she had been referred to IAPT and assessed by them on 15 March 2019. A lesion in her brain had also been identified in a recent MRI, which was to be investigated. She was keen to proceed but her cognitive function was currently affected by the mood disturbance and stress. The information was passed to Dr Hughes so that the panel could decide on the day what to do. 35 of 63

[104]The Tribunal found the evidence of both Dr Hughes and Dr Pollock careful, measured and thoughtful. Dr Hughes explained that the panel decided on the morning of the hearing to proceed in the Claimant’s absence. They took into account that she had had significant periods of absence, and that Dr Rimmer’s view was that her health would not improve until the underlying issues had been addressed. They noted the advice from NCAS that the hearing should proceed subject to OH advice. They also noted that there was a significant passage of time from the events in question. They were worried that further delay would affect people’s ability to remember the events. Finally, they noted that Dr Massey had retired and might become unavailable. In cross-examination, Dr Hughes and Dr Pollock were pressed at length about the decision to proceed in the Claimant’s absence. Dr Hughes said that the panel would far rather the Claimant or a representative had attended, but these other considerations outweighed that. He said that the panel had taken into account the view of the Claimant’s GP, as reported by Dr Rimmer, but that was just one factor, it was not decisive. It was clear that Dr Rimmer’s view about the impact of delay on the Claimant’s health weighed heavily with Dr Hughes. It was suggested to Dr Pollock that a few more months would have made no difference. He said that might be the case if this were the first postponement, but it was not; it was the third. He said that the panel weighed all the factors and their judgment was that it was reasonable and proportionate to go ahead. It was put to Dr Hughes that it would have been possible to delay for an hour and contact the DDU. He agreed that it would have been possible, but said that they knew in advance about the hearing and there had been no communication from them.

[105]The panel dealt with those parts of the Third Grievance that they had been tasked with determining first. They had a written statement from Dr Massey. They heard evidence from Dr Anderson. He, Ms Sutton and Dr Massey gave explanations about the conduct of the capability investigation. The panel also heard from Professor Loescher. The panel went through each of the Claimant’s thirty concerns.

[106]On the second day of the hearing, the panel dealt with the capability issues. They had read Dr Massey’s detailed statement of case. They heard evidence from Dr Dunning, WR, Dr C Anderson, Ms Tomlinson, Professor Brook, Professor Loescher, Dr Freeman, and Professor Deery. Dr Massey referred to the other written statements and made some concluding remarks.

[107]The panel reached their decision on the third day. They dealt with the grievance first then the capability issues. They decided to send a draft letter with findings to the Claimant to review and comment on, given that the hearing had gone ahead in her absence. Their provisional decisions were that(1) the aspects of the Third Grievance they had considered were not upheld, and

(2) the capability issues were upheld and the Claimant should be dismissed.

[108]The draft outcome letter set out the panel’s provisional conclusions in detail. It took some time to prepare. This was because of Dr Hughes’s work commitments.

[109]The panel’s conclusions on each relevant aspect of the Third Grievance were set out. None of them were upheld. In particular: 36 of 63109.1 The panel was satisfied that reasonable efforts had been made to find work for the Claimant after the return to work programme, given the limitations on her ability to work unsupervised and the level at which she was working;

109.2 The panel did not consider that the management of the Claimant’s sickness absence and communication about the investigation meetings were “unfair, unkind, malicious or cruel”;

109.3 The panel accepted that it was not possible to return the Claimant to clinical duties until concerns regarding her clinical capability identified in 2009 had been addressed; and were very concerned about the length of time that had passed since 2009. But they concluded that the delays in managing a return to work were in part because of the outcome of the return to work programme, and in part because of the Claimant’s very substantial absences. They did not accept that the Claimant was victimised, degraded, humiliated or ostracised. They had not identified any specific action that was unfair or unreasonable.

109.4 The panel concluded that it was reasonable for the capability investigation to have considered the 2010 Investigation Report, whilst giving the Claimant the opportunity to comment on it. The Claimant had been given the opportunity in the Respondent’s investigation process to respond to the concerns raised.

109.5 The panel found that the June 2015 investigation meeting had been impartial and thorough and that it was clearly necessary to include evidence about the return to work programme in the investigation. The approach of the team in trying to agree the minutes afterwards was reasonable. Reasonable allowances had been made for the Claimant’s health issues.

109.6 The panel noted that Dr Anderson had pointed out to them that he had very little familiarity with any of the staff involved and had never held a management role at the Respondent. They were satisfied that he had conducted his investigation entirely properly.

109.7 The panel did not uphold any complaint of discrimination, bullying, harassment or physical intimidation at the dental hospital. They noted that the Claimant had not provided examples and that she had not complained of discrimination at the conclusion of the return to work programme.

109.8 The panel considered that the Claimant had had a reasonable opportunity to comment on the draft investigation report and to view the patient notes.

109.9 Concerns about Dr Massey’s communication and attempts to arrange the capability hearing were not upheld. The panel concluded that Dr Massey and HR were simply trying in difficult circumstances to arrange the hearing after considerable delay.

[110]In respect of the capability matters, the draft letter set out the panel’s findings “in relation to the conduct and capability issues”. It identified three key questions:110.1 Was there evidence of serious concern about the Claimant’s capability and conduct, which was sufficient to justify her restriction from clinical practice until those issues could be remediated; 37 of 63

110.2 If so, and given that no such remediation had taken place, had the Respondent made all reasonable efforts to arrange for remediation; and

110.3 In all the circumstances was Dr Massey right to conclude that the Claimant was irremediable as a Senior Community Dentist and that her employment should be terminated?

[111]In respect of the first question, the draft letter referred to concerns about conduct and capability raised almost immediately after the Claimant started in her post, as set out in the investigation report in relation to style of communication with colleagues, patients and students; poor note-keeping; issues with treatment plans; and very prolonged treatment times. It referred to the incident on 2 June 2009. It referred to the conclusions in the 2010 Investigation Report. It referred to the period of professional education and supervision under a back to work programme in 2012, and to Professor Brook’s view that while the Claimant had improved she was working at the level of a new graduate. The panel noted that the Claimant had complained in very strong terms in her grievance about her treatment whilst at the PCT and at the dental hospital. However, on balance, the panel was persuaded by the consistency of the evidence from colleagues in both organisations that the concerns expressed about the Claimant’s professional behaviour were genuine and serious. Having reviewed all the evidence and interviewed the listed witnesses itself, the panel had no doubt that the concerns were rightly viewed as preventing the Claimant’s return to clinical work unless it was possible to arrange remediation for her. The panel concluded that all those involved in the Claimant’s management had conducted themselves professionally and patiently throughout. Errors had been made from time to time, but it would be remarkable if that were not so, since this had taken almost ten years. The panel did not accept that the Respondent’s staff or Dr Anderson had been biased, bullying or discriminatory. They considered that the Claimant had been given every reasonable opportunity to challenge the factual allegations made against her. They were not persuaded that the allegations against her arose from bullying, harassment, discrimination or any improper motive. They were the genuine and reasonable concerns of her professional colleagues.

[112]In respect of the second question, the panel noted that the return to work programme had not been successful in enabling the Claimant to return to unsupervised practice and that NCAS had subsequently determined that they could not assess the Claimant’s professional ability, primarily because of the length of time she had been out of practice. The panel was unable to identify any realistic avenue for remediation, within the Respondent or elsewhere. Even if the Claimant were to regain sufficient and reliable fitness to attend work, the panel considered that there was a substantial risk that any programme of remediation would suffer the same problems as arose at the PCT and the dental hospital, both in relation to performance and behaviour. The panel concluded that the Claimant lacked the necessary insight and willingness to accept and learn from constructive criticism. Without those attributes, any further remedial action would, in their view, be bound to fail. It would not be reasonable or proportionate for the Respondent to expend further senior clinical and HR resources on exploring further remediation in those circumstances. 38 of 63 Turning to the third question, the panel’s provisional conclusion was that there was no realistic prospect of the Claimant returning to work as a Senior Community Dentist, or in any clinical role in the Respondent, in the foreseeable future. They determined that her employment should be terminated.

[113]The draft letter was sent to the Claimant for comments on 14 June 2019, with a deadline of 29 June 2019. The Claimant requested an extension to 28 July 2019 and Dr Hughes agreed an extension to 19 July 2019. The Claimant also contacted Dr Hughes’s office to arrange to collect the hearing papers that she had not collected before the hearing. She collected them on 5 July 2019. The Claimant wrote on 17 July 2019 requesting a further extension to 29 August 2019, by way of reasonable adjustment and so that she could take legal advice. She said she had already taken legal advice. Dr Hughes extended the deadline to 2 August 2019. He took into account that the deadline had already been extended; there had been attempts to deliver the files to the Claimant before the capability hearing; and that she could have come to the hearing but had not done so.

[114]The Claimant’s legal representative emailed Dr Hughes on 2 August 2019. He said that the Claimant would appeal against the panel’s findings in respect of her grievance. He asked for more details of the reasons for the proposed decision. He expressed the view that there had been unreasonable delay, contrary to case law and the ACAS Code of Practice, and said that the Claimant could not now recall the details. He asked for clarity about whether the Claimant was being dismissed for capability or conduct issues. He asked for further details of which allegations were upheld and why. He said that once that was provided, the Claimant would provide an alternative viewpoint. Dr Hughes decided that no further information had been provided to put before the panel members that might materially alter the outcome. He was satisfied that the Claimant had had enough time to provide her comments and that the draft outcome letter provided sufficient information to confirm the panel’s findings that the Claimant was to be dismissed because of capability concerns. He did not consider it necessary to set out a finding in relation to each allegation. The letter was therefore finalised and sent to the Claimant’s home address on 27 August 2019. It was in largely the same terms as the draft letter and confirmed that she was to be dismissed, with pay in lieu of notice. Dr Hughes also emailed the Claimant’s legal representative on 27 August 2019, to confirm that the decision to dismiss the Claimant was on grounds of capability although matters of conduct had arisen. The legal representative emailed Dr Hughes on 31 August 2019 to say that the Claimant had not received the letter. Dr Hughes confirmed that it had been sent to her home address.

[115]The Claimant was dismissed on grounds of capability with effect from 27 August 2019. She was paid in lieu of notice and paid for 19 days’ accrued but untaken holiday.

[116]In cross-examination, Dr Pollock and Dr Hughes were asked in detail about the process they followed and the decisions they reached. In particular:116.1 Dr Hughes said that if the Claimant’s grievance had been upheld to a degree that called into question the evidence or approach leading to 39 of 63 the capability hearing, the capability process would not have continued.

116.2 As regards the 2 June 2009 incident, both Dr Hughes and Dr Pollock accepted that Dr Rowe’s view was that the Claimant’s choice of a surgical treatment approach was an appropriate one. Dr Pollock said that the concern was not about the choice of approach it was the manner in which it was undertaken. Dr Hughes said that Dr Rowe’s evidence was constrained because he was not present in the room on the day. Dr Rowe made clear that a surgical approach was appropriate, but the concerns were about what happened on the day. Dr Dunning was concerned about how long it took and that the patient was becoming distressed. In assessing this incident, the panel also took into account the Claimant’s detailed written account.

116.3 Dr Pollock accepted that there was some evidence before the panel suggesting that there were strong views against the Claimant, and that people had expressed unwillingness to work with her again. He said that this would not have affected the outcome of the capability process. If the panel’s view had been that the Claimant should return to work, those concerns would have been overridden. It would have needed to be done “with finesse” by the Case Manager.

116.4 Dr Hughes did not consider that there was evidence suggesting “collusion” by the witnesses. He did not think the indication that WR had called Dr Vora at home in the evening, nor the comment by Ms Heyes about making sure that concerns were coming from more than one direction, indicated that there was collusion. He said that it was inevitable that people would talk to colleagues if something happened that surprised them. That was not collusion. He would look for evidence of an intention to lead the investigation in a certain direction. That was not there. He thought that Ms Heyes’s comment simply reflected the fact that you would expect a degree of corroboration in a setting where someone was practising with a number of people. The concerns would carry more weight if they were raised by more than one person.

116.5 Dr Hughes confirmed that the panel did not consider it necessary to ask WR for the written notes she referred to keeping at the time of the events.

116.6 Dr Pollock accepted that none of the individual issues raised, including 2 June 2009, gave rise to a grave patient safety concern. But he said that taken together, all of the concerns gave rise to a problem that needed addressing.

116.7 Dr Hughes agreed that the return to work programme was not designed as an assessment programme, but to remediate the Claimant back into practice. He agreed that she made progress during the programme but was insistent that on the evidence before the panel she had not reached the standard where she could do the job to which she had been appointed, nor even where she could work unsupervised. There remained a very considerable gap between the assessment of where she was at by Professor Brook and Professor Loescher, and the post to which she had been appointed. Dr Hughes agreed that if a post had been found at the end of the return to work 40 of 63 programme, it might have been possible to remediate the Claimant back into work, but the panel accepted that there was no suitable post across the Respondent Trust at that time. He said that the panel did not consider recommending a similar process in 2019. It had already been done and had not been sufficiently successful. It had been tried five years ago and was even less likely to succeed five years later. The panel accepted that there was evidence of improvement during the return to work programme, but there was evidence going the other way too and, on balance, the panel concluded that there was no prospect of successful remediation in 2019.

[117]It was put to Dr Pollock that the panel had discriminated against the Claimant and victimised her for doing protected acts. He disagreed. He said that the panel did their best to be fair and just in the circumstances. Dr Hughes likewise said that the Claimant had not been discriminated against or victimised. The panel would have gone ahead in her absence even if she had not been disabled; they would have reached the same conclusions on her grievance, which they considered item by item; and they would still have concluded that she should be dismissed for capability concerns regardless of disability or protected acts. The Tribunal had no hesitation in accepting their evidence. Dr Pollock and Dr Hughes were external to the Respondent. All of the written evidence pointed to a detailed and careful approach, with the panel considering the grievance and the capability concerns on their merits, and properly considering what course of action should be taken. That was reflected in the oral evidence to the Tribunal. We were quite satisfied that the grievance was rejected because the panel found that the complaints were not well-founded. The Claimant was dismissed because the panel concluded that there were serious concerns about her capability and that there was no realistic prospect of the Claimant being remediated back into work.

[118]The Claimant’s legal representative appealed against her dismissal in an email dated 26 September 2019. The grounds of appeal were:118.1 The Respondent had unreasonably concluded that the Claimant was not likely to return to work, and did so without medical evidence;

118.2 The Respondent had unreasonably failed to engage with her grounds of defence as submitted on 2 August 2019;

118.3 Her dismissal was unfavourable treatment in consequence of her disability and was not proportionate;

118.4 Her dismissal was an act of victimisation because she had complained to the Tribunal.

[119]Mr Barker was appointed to chair the panel determining the appeal against the Claimant’s dismissal. He is a member of the group of individuals appointed and trained by NHS Employers to act as independent chairs for capability hearings for NHS doctors and dentists. He is independent of the Respondent, his main career having been in policing. The other panel members were Mr Pedder, Chair of the Trust, and Mr Curly, Deputy Medical Director of a neighbouring Trust. The panel was advised by Mr Kwasnicki, Consultant in Special Care Dentistry, and Mrs Hartley, the Respondent’s HR Operations Director. Mr Barker advised that the Claimant’s appeals against dismissal and the grievance 41 of 63 outcome should be dealt with separately. He asked for details of her Tribunal claim, which was referred to in the grounds of appeal, and other information. He explained in cross-examination that he asked for information about the Tribunal claim because she had complained of discrimination in her appeal and said she had brought a Tribunal claim. He thought it would be important to understand the details of her appeal so they could deal with it comprehensively. He did not receive much information, and understood that the Tribunal claim had been struck out (as it had at that time). He did not share the information with the other panel members and he did not inform the Claimant that he had asked about it. He simply made the request to try and get more information about the Claimant’s appeal. The Tribunal accepted his evidence.

[120]The dismissal appeal hearing was originally listed for 31 October 2019 but was postponed at the Claimant’s request because she said she was not given enough time to prepare for it. It was rearranged for 13 December 2019.

[121]Meanwhile, a hearing to determine the Claimant’s appeal against the Third Grievance outcome (in relation to the capability panel’s findings) was arranged for 9 December 2019. Mr Gwilliam wrote to the Claimant on 21 November 2019 to tell her the date. He asked for her written grounds of appeal and any documents by 2 December 2019. Mrs Laban, then Non-Executive Director of the Respondent, was appointed to chair the panel. Mr Morley, Chief Nurse, and Mr Parker, HR Director of Sheffield Children’s Hospital, were the other panel members.

[122]On 3 December 2019 the Claimant requested a postponement of both appeal hearings. She provided a letter from her GP saying that she suffered with depression due to work-related stress, and PTSD and was in a very vulnerable state emotionally. The Claimant wrote in a letter relating to the grievance appeal hearing that she had arranged to be accompanied on 10 January 2020. In a separate letter relating to the dismissal appeal she said that she felt overburdened and overwhelmed by the documents. She said that she had arranged to be accompanied on 8 January 2020 for the dismissal appeal hearing and 10 January 2020 for the grievance appeal hearing.

[123]On 6 December 2019 Mr Gwilliam wrote to the Claimant confirming that after consulting both panel chairs, he agreed to postponing both hearings. He asked whether there would be any difficulty if he swapped the 8 and 10 January 2020 dates around. Mr Gwilliam confirmed that the Claimant had had the full set of documents from the capability panel hearing since 5 July 2019, and had only been sent additional documents on 28 November 2019. Mr Gwilliam’s letter was copied to the Claimant’s solicitor. On 17 December 2019 Mr Gwilliam wrote another letter to the Claimant. He referred to the 6 December 2019 letter and said that he had not received a reply. He told the Claimant that the grievance appeal hearing would therefore take place on 8 January 2020. The Claimant wrote back in a letter dated 18 December 2019 to say that it was not possible to swap the dates because 8 January 2020 was the date she could be accompanied in respect of her appeal against dismissal. She said she was trying to identify alternative dates in January 2020. 42 of 63

[124]On 23 December 2019 Mr Gwilliam replied. He said that it had been possible to arrange the dismissal appeal hearing for 30 January 2020 and that the grievance appeal hearing had been arranged for 8 January 2020, using a date the Claimant had provided, so he assumed she was available to attend. The letter was copied to the Claimant’s solicitor. Mr Gwilliam wrote another letter dated 27 December 2019, setting out the detailed arrangements for the dismissal appeal hearing. It too was copied to the Claimant’s solicitor. He asked for confirmation that the Claimant had received the letter and would attend the hearing. He warned her that it might go ahead in her absence. The Claimant did not respond.

[125]Mr Gwilliam sent another letter about the grievance appeal hearing on 6 January 2020. He said he had sent an email on 2 January 2020. He said that he had had no response. He told the Claimant that the grievance appeal hearing would go ahead on 8 January 2020. Before that letter was sent, Mrs Laban discussed whether to go ahead with the hearing with Ms Davidson. Mrs Laban agreed that the hearing should go ahead on 8 January 2020. In crossexamination she said that she still hoped the Claimant would attend. In crossexamination Mrs Laban said that she was not aware of the Claimant before being asked to be involved in the capability hearing (which did not happen) and then the grievance appeal hearing. She was not aware of her case generally, and she was not aware of her claims of discrimination or her Tribunal claim. The Tribunal accepted her evidence.

[126]The grievance appeal panel were informed at the start of the meeting on 8 January 2020 that neither the Claimant nor her representative would be attending. They considered whether to go ahead. The meeting notes record the matters they took into account. In cross-examination, Mrs Laban said fundamentally that they needed to bring this to a close, for the Respondent and the Claimant. Neither the Claimant nor her representative had provided grounds of appeal against the grievance outcome. The grievance appeal panel were dealing only with the parts of the Third Grievance that had been decided by the capability panel. Dr Massey and Dr Hughes attended the appeal hearing. They went through each of the grievance findings in turn. That is reflected in the hearing notes. The appeal panel had read the relevant documentation in advance. The grievance appeal panel rejected the Claimant’s appeal. Mrs Laban wrote an outcome letter dated 10 January 2020. She explained that in the absence of any grounds of appeal from the Claimant, the panel had been through her original grievance, the management case in response and the outcome letter. They had questioned Dr Hughes and Dr Massey at the appeal hearing. The appeal panel had concluded that the process followed was reasonable and fair and that each of the conclusions reached was reasonable. They noted that, because this matter was dealt with by the capability panel, the Claimant’s internal grievance had, unusually, been scrutinised by an external Clinical Director and Consultant in Special Care Dentistry and an external HR

[127]Mrs Laban’s evidence was that she and the grievance appeal panel had dealt with the Claimant’s appeal in the same way they would have considered 43 of 63 anybody’s appeal. Their decision was based on the evidence. They found no evidence that the Claimant had been discriminated against, and no evidence that any delays in the process were acts of discrimination. Delays in the grievance process were because of the Claimant’s sickness absence. As far as the grievance appeal was concerned, attempts were made to progress it, whilst accommodating the Claimant’s ill health. Mrs Laban said that the grievance appeal panel had not rejected the Claimant’s appeal because she had done a protected act. They were not aware of the First or Second Grievance and they did not know that she had brought a Tribunal claim. The Tribunal accepted her evidence. There was nothing to suggest that the grievance appeal panel had been influenced in any way by the fact that the Claimant had done any protected act or the fact she was disabled. They rejected her appeal because they did not consider it well-founded.

[128]On 14 January 2020 Mr Gwilliam wrote again to the Claimant about the dismissal appeal hearing. He referred to his letters of 23 and 27 December 2019 and said that he had had no response. He informed the Claimant of the relevant meeting room and asked her to confirm that she would be attending.

[129]On 20 January 2020 the Claimant wrote to say that she had not received Mr Gwilliam’s previous letters. She referred to the “short notice” and asked for the hearing to be rearranged for 26 February 2020. Mr Barker spoke to Mrs Davidson. He was satisfied that previous letters and been sent to the Claimant with the new date in good time. He was aware of the difficulties in reconvening the panel each time there was a postponement, and that the timescales for hearing an appeal in the CCIHA Policy and MHPS had been overshot by some months. He considered it important that the hearing should now take place on 30 January 2020, and the Claimant’s request for a third postponement was therefore refused. In a letter to the Claimant dated 22 January 2020 Mr Gwilliam wrote that he had reviewed the position and was satisfied that his two letters had been sent to the Claimant by post, to the three email addresses she had previously provided, and to her solicitor. In view of the difficulties in re-arranging the panel, which consisted of senior individuals external to the Trust, who had clinical and other commitments; the prior notice given to the Claimant; and the two previous postponements; the hearing would go ahead on 30 January 2020. On 23 January 2020, the Claimant said again that she was not able to attend on 30 January 2020 and asked for the hearing to be postponed to 26 February 2020, so that she could be accompanied. Mr Barker asked for enquiries to be made about whether the panel members were available on 26 February 2020. They were not. Mr Barker decided that the hearing should go ahead on 30 January 2020. Mr Gwilliam informed the Claimant of this on 28 January 2020.

[130]In cross-examination, Mr Barker accepted that there was a difference between letters being sent to the Claimant and her receiving them. He confirmed that he had accepted what the Respondent told him about the letters of 23 and 27 December 2019 being sent to the Claimant. That did not mean he was making an adverse finding about the Claimant or thought she was lying about not receiving the letters. He explained, “Whether the Claimant had picked it up and read it I don’t know. … I was told documents had been sent and she had been made aware of the existence of the hearing. I was conscious she had significant 44 of 63 health problems and that this may have impacted her understanding of the existence of the hearing.”

[131]In respect of the Claimant’s case that she did not receive Mr Gwilliam’s letters of 23 and 27 December 2019, the Tribunal noted her evidence in her witness statement that she felt swamped by the number of posted and hand-delivered letters the Respondent sent at this time, and that their contents were often confusing. Given this, the long-standing pattern of letters apparently not being received, the number of letters and the fact that on their face they were also copied to her solicitor, the Tribunal considered it most likely that the letters were sent and delivered. They may not have been read or processed by the Claimant.

[132]The Claimant sent a letter on 28 January 2020, with a letter from her GP dated 29 January 2020, saying that she was not medically fit to attend. The GP said that the Claimant’s mental health was deteriorating, she was very anxious and on edge. She had been referred to IAPT and SOHAS, and had an appointment in February. The GP advised that with the necessary support the Claimant would get to a point at which she felt capable of attending hearings. The further application and GP letter were considered at the start of the hearing on 30 January 2020.

[133]The Tribunal had no doubt that the panel considered the Claimant’s application carefully. That was reflected in the notes made at the time, the decision letter and Mr Barker’s evidence to the Tribunal. The notes of the discussion record anxious consideration of the Claimant’s well-being, the need to ensure fairness to her, the practical and financial considerations, and the impact of the long delay. The panel noted that the proposed therapies would not be in place for some months, so any postponement would likely be of indefinite length. The panel noted that the Claimant had not attended the capability hearing. The panel decided to proceed in the Claimant’s absence. The medical advice from Dr Rimmer, about the need for the Claimant to have closure in order for her mental health to improve, weighed heavily. Mr Barker reminded the panel about the importance of challenging the management case and the fairness of the process.

[134]Mr Barker reiterated these matters in cross-examination. The Tribunal had no hesitation in accepting his evidence. It was suggested to him that Dr Rimmer’s advice was from August 2018. He said that she had sent a more recent email, which the panel also considered. That email was from March 2019. Dr Rimmer had again emphasised that the protracted process of resolving matters was contributing significantly to the Claimant’s mental health problems and that it needed to be brought to a conclusion. It was put to Mr Barker that the Claimant had said that she would engage and had said she would be available on 8 January 2020. That had not been possible because of the panel’s availability, not the Claimant’s. Mr Barker said that the Claimant had said on a number of occasions that she would engage and it had not then happened.

[135]After deciding to proceed with the appeal, the panel heard the management case, presented by Dr Hughes, with Dr Massey as a witness. The hearing lasted 2 ½ to 3 hours. The panel focussed on the grounds of appeal provided 45 of 63 by the Claimant’s solicitor. In cross-examination. Mr Barker said that the panel did not see it as part of their remit to go back and re-investigate. Their focus was on the grounds of appeal. The panel did not consider that the circumstances for re-opening the case and conducting a re-hearing were met. The Claimant’s grounds of appeal did not request that further evidence be considered and there were not glaring matters on the face of the material that suggested a re-hearing was necessary.

[136]The panel rejected the Claimant’s appeal and Mr Barker wrote to the Claimant to tell her the outcome on 3 February 2020. The appeal panel’s conclusions on her grounds of appeal were, in outline:136.1 The original panel had not acted unreasonably in concluding that the Claimant was unlikely to return to work and dismissing her. The panel was satisfied that the Claimant was dismissed on grounds of capability. There were genuine and reasonable concerns about her performance as a Senior Community Dentist in special care dentistry, and about her professional behavioural interactions with colleagues, students and patients. She was not considered to have the necessary insight and willingness to accept professional feedback and criticism for effective remedial action to be taken. All reasonable efforts at remediation had been considered and no realistic avenues for further remediation were identified, not least because of the time that had passed, and the impact on the Claimant’s health. The Claimant’s post involved treating the most vulnerable patients. The Claimant had been on sick leave for frequent and prolonged periods, which would have resulted in deskilling. The panel concluded that the Claimant had been dismissed on grounds of capability (with elements of misconduct) and not because she had frequent and lengthy periods of sick leave. The definition of capability in the CCIHA Policy was met.

136.2 The appeal panel acknowledged that the Claimant had not attended the original hearing. They noted that a draft outcome letter had been sent to her. The Claimant did not respond. The original panel had dealt with the issues on the merits according to the evidence in front of them. The Claimant’s solicitor’s letter was taken into account.

136.3 The appeal panel noted that the Claimant was disabled. They agreed, taking advice from their Consultant in special care dentistry, that providing dental care to vulnerable adults and children with disabilities and special needs required a well refined and diverse set of clinical and personal skills. Given the serious concerns about the Claimant’s ability to practise safely, and concerns about her professional conduct, communication skills and insight, the panel were satisfied that her dismissal was a proportionate response to those concerns.

136.4 The appeal panel found no evidence that the Claimant was dismissed because of her complaint to the Tribunal. The appeal panel noted that the capability panel included an external medical practitioner, Dr Pollock, who was a former GMC liaison officer, and that there were two external advisors.

[137]In cross-examination it was put to Mr Barker that NCAS had not been consulted before the Claimant was excluded in 2009, contrary to the CCIHA policy. He 46 of 63 agreed. He said that the appeal panel had not looked at detail in the decision to exclude the Claimant in 2009. They had focussed on her grounds of appeal. They accepted that the Respondent had concluded at the time that the Claimant should be excluded on patient safety grounds. Mr Barker also accepted in cross-examination that there had not been any external or independent assessment of the Claimant’s capabilities. However, he said that the appeal panel considered that the original panel had taken into account a whole range of things from 2009 and 2012 in coming to a view about the Claimant’s capability. Mr Barker was asked about the appeal panel’s decision in relation to remediation. His evidence was that the Claimant’s sickness absence impacted on the possibility of remediation. He noted the positive feedback at the end of the return to work programme, but he said that the long term view was that remediation to the level of skills required in the role for which the Claimant was employed was not possible. That was the view of the capability panel, upheld by the appeal panel.

[138]Mr Barker gave evidence that the decision to reject the Claimant’s appeal had nothing to do with any protected act she had done. He explained that the appeal panel were not aware of the detail of her grievances. Mr Barker had been provided with the Claimant’s Tribunal claim, in the circumstances referred to above, but did not share the detail with the appeal panel. The panel knew that she had brought a claim, because it was referred to in her grounds of appeal. Mr Barker was clear that the fact of the Tribunal claim, the Claimant’s grievances and her grievance appeal played no part in the panel’s decision to dismiss her appeal. As with all the witnesses, Mr Patton only challenged this evidence in cross-examination when prompted to do so by the Tribunal. The Tribunal again had no hesitation in accepting Mr Barker’s evidence. There was absolutely nothing to support the suggestion that the appeal panel had been influenced in any way by any protected act done by the Claimant. The Tribunal was entirely satisfied that the appeal panel’s reasons for dismissing the appeal were precisely as set out in the outcome letter.

[139]We have noted above that Mrs Grice did not progress the Claimant’s Second Grievance or the relevant aspects of her Third Grievance beyond her initial interviews with witnesses until after the Claimant’s dismissal. In her written statement she confirmed Mrs Robson’s evidence that from around September 2018 onwards she did not work on the investigation and awaited instructions from the Respondent about the Claimant’s health. In early 2020 she was asked by Mrs Robson to prepare an interim report, based on the investigations she had carried out. She did so, identifying issues that required further exploration and evidence should she be able to speak to the Claimant. On the basis of the material she had gathered, she had not at that stage identified any evidence to support the Claimant’s complaints. No further report was produced and no further steps taken in respect of the grievance. Mrs Grice’s written statement said that she had never met the Claimant and had treated her investigation as she would any investigation. The Tribunal had no basis upon which to doubt that written evidence, even taking into account the lack of cross-examination; the Claimant did not identify anything that could have led to an inference of discrimination or victimisation on Mrs Grice’s part. 47 of 63 Holiday pay

[140]We deal separately with the claim for holiday pay. The Claimant’s witness statement simply said that she was denied her accrued holiday pay. No detail was given in the statement or any other document. In cross-examination, the Claimant said that this related to prior leave years, not 2019-2020. She said that there were years she had not taken holiday at all, years she had more than 4 or 5 days outstanding because of sick leave but had not been permitted to carry them forward, and times she had taken annual leave instead of sick leave to safeguard her absence record. She also complained about having to use annual leave to support her phased return to work when she was working half days and taking the other half of the day as leave. She said that she was owed 14 days’ accrued leave and that this was a rough estimate, on the conservative side. However, her evidence was simply at the level of generalities. There were leave records and other documents in the hearing file, but neither the Claimant nor her legal representatives had put forward any calculation or assessment based on those documents, by reference to specific dates, leave years or episodes.

[141]The Tribunal noted that the Claimant was paid for all of the leave she had accrued in the 2019-2020 leave year at the date of her dismissal (14 days) and she was credited with 5 days carried forward from the previous year, 2018- 2019. That was the most to which she was entitled contractually.

[142]The Tribunal considered evidence relevant to the Claimant’s entitlement under the Working Time Regulations. We noted that the Claimant was fit for work and attending work for most of the period October 2015 to October 2016, and the period May 2017 to March 2018. Those were long periods during which she was not prevented by sickness from taking her annual leave during the leave years 2015-2016, 2016-2017 and 2017-2018. The evidence in the file also suggested that she was requesting and taking annual leave at that time. For example, for the year 2017-2018, the Tribunal noted that the Claimant’s manager wrote to her on 12 March 2018 to say that she had 8.5 days’ leave to take before the end of March. Given that under her contract she was deemed to take her statutory leave first in the leave year, she must have taken all her statutory leave in the 2017-2018 leave year - she only had 8.5 days out of 32 (contractual) days remaining. Her last sickness absence started on 15 March 2018. By the time that sickness absence started, the Claimant had used all her statutory leave for that year and there was none to carry forward. We noted that in cross-examination the Claimant said that at this time she was taking annual leave and had a supportive manager. For the year 2018-2019 the Tribunal noted that, during her sickness absence, the Claimant requested and was granted 20 days’ annual leave on 20 December 2018. Given that under her contract she was deemed to take her statutory leave first in the leave year, she must have taken all her statutory leave in the 2018-2019 leave year too.

[143]Looking at all the information available, the Tribunal was satisfied that the Claimant did not have accrued statutory leave to carry forward into the leave year 2019-2020 in which she was dismissed. 48 of 63 Expenses

[144]That brings us to the claim for expenses. The Claimant said in her witness statement that the Respondent had refused to pay her expenses for CPD undertaken in May 2016 and January 2018. The amounts claimed are £214.70 and £473 respectively. In cross-examination, the Claimant accepted that in principle if she did not follow the correct process and claim her expenses, she was not entitled to be reimbursed. She said that she had claimed them, but she did not give any detail and no expenses claim was identified for the Tribunal. Mrs Robson gave evidence about this in her witness statement. She drew attention to correspondence on both occasions on which the Claimant was reminded she needed to submit an expenses claim after the event. Requesting approval to attend the course with an estimate of the costs in advance was not the same thing. Mrs Robson said that the Respondent had no record of the Claimant submitting an expenses claim for either event. Mrs Robson’s evidence was not challenged in cross-examination. The Tribunal found that the Claimant had not submitted expenses claims for either event and that is why her expenses were not reimbursed. Legal principles Disability discrimination and victimisation

[145]Claims of disability discrimination and victimisation are governed by the Equality Act 2010. The Equality and Human Rights Commission’s Code of Practice on Employment is relevant to discrimination claims and the Tribunal considered its provisions.

[146]The burden of proof is dealt with by s 136 Equality Act 2010. The Tribunal had regard to the authoritative guidance about the burden of proof in Igen Ltd v Wong

[2005] ICR 931

. That guidance remains applicable: see Royal Mail Group Ltd v Efobi

[2021] ICR 1263

. In essence, the guidance outlines a two-stage process. First, the complainant must prove facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the Respondent had committed an unlawful act of discrimination against the complainant. That means that a reasonable Tribunal could properly so conclude, from all the evidence before it. A mere difference in status and a difference of treatment is not sufficient by itself: see Madarassy v Nomura International plc

[2007] ICR 867

, CA. The second stage, which only applies when the first is satisfied, requires the Respondent to prove that he did not commit the unlawful act. However, as the Supreme Court again made clear in Efobi, it is important not to make too much of the role of the burden of proof provisions. They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the Tribunal is in a position to make positive findings on the evidence one way or the other.

[147]Direct discrimination is dealt with by s 13 Equality Act 2010. Under s 13, direct discrimination arises where(1) an employer treats a person less favourably than it treats or would treat others and

(2) the difference in treatment is because of a protected characteristic. In answering the first question the Tribunal must consider whether the employee was treated less favourably than an actual or 49 of 63 hypothetical comparator whose circumstances were not materially different. The second question entails asking why the employee received less favourable treatment. Was it because of a protected characteristic or was it for some other reason? It is necessary to explore the mental processes of the employer, to discover what facts operated on his or her mind: see R (E) v Governing Body of the Jewish Free School

[2010] IRLR 136

, SC (“JFS”). The protected characteristic need not be the only or even the main cause of the less favourable treatment; it must be an effective cause: see e.g. London Borough of Islington v Ladele

[2009] IRLR 154

, EAT. It is not always necessary to answer the first and second questions in that order. In many cases it is preferable to answer the “reason why” question, first.

[148]Discrimination arising from disability is governed by s 15 Equality Act 2010. Under s 15, unfavourable treatment does not require a comparator. It is to be measured against an objective sense of that which is adverse compared with that which is beneficial: see e.g. Trustees of Swansea University Pension and Assurance Scheme v Williams

[2015] IRLR 885

. The EHRC Employment Code advises that this means that the disabled person “must have been put at a disadvantage”. If there is unfavourable treatment, it must be done because of something arising in consequence of the person’s disability. There are two elements. First, there must be something arising in consequence of the disability; secondly, the unfavourable treatment must be because of that something. The unfavourable treatment will be “because of” the something, if the something is a significant influence on the unfavourable treatment; a cause which is not the main or sole cause but is nonetheless an effective cause of the unfavourable treatment: Pnaiser v NHS England

[2016] IRLR 170

; Charlesworth v Dransfields Engineering Services Ltd

[2017] UKEAT 0197_16_1201

. It is a defence for the employer to show that the treatment is a proportionate means of achieving a legitimate aim. The employer must show that it has a legitimate aim, and that the means of achieving it are both appropriate and reasonably necessary. Consideration should be given to whether there is nondiscriminatory alternative. A balance must be struck between the discriminatory effect and the need for the treatment. The EHRC Code advises that a legitimate aim is one that is legal, not itself discriminatory, and one that represents a real, objective consideration.

[149]Harassment is governed by s 26 Equality Act 2010. There are three elements to the definition of harassment:(1) unwanted conduct;

(2) that the conduct is related to a relevant protected characteristic; and

(3) the purpose or effect of violating the employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. As to (1), the conduct must be “unwanted”, which means “unwelcome” or “uninvited”. As to (2), the question whether conduct is related to a protected characteristic is not a question of “causation”. Rather, it requires a connection or association with the protected characteristic. As to (3), the conduct must have the purpose or effect of violating the person’s dignity or creating the proscribed environment. If the conduct has the relevant purpose, that is the end of the matter. However, for it to have the relevant effect, the Tribunal must consider both, subjectively, whether the individual perceived it as having that effect and, objectively, whether that was reasonable: see Richmond Pharmacology v Dhaliwal

[2009] IRLR 336

. 50 of 63

[150]Victimisation is governed by s 27 Equality Act 2010, which says that A victimises B, if A subjects B to detriment because B does a protected act, or A believes B has done or may do a protected act. A protected act is defined in s 27(2). It includes making an allegation that someone has contravened the Equality Act.

[151]So far as unfair dismissal is concerned, the right not to be unfairly dismissed is set out in s 94 of the Employment Rights Act 1996. Under s 98 the employer must show the reason for dismissal and that it is a potentially fair one, which includes a reason relating to the employee’s capability for performing work of the kind for which she is employed. Capability is assessed by reference to “skill, aptitude, health or any other physical or mental quality.” The reason or principal reason for dismissal is a question of fact to be determined by a Tribunal as a matter of direct evidence or by inference from primary facts established by evidence. The reason for dismissal consists of a set of facts which operated on the mind of the employer when dismissing the employee. They are within the employer’s knowledge.

[152]If the employer shows that the dismissal is for a potentially fair reason, the Tribunal must then decide whether in the circumstances the employer acted reasonably in treating it as a sufficient reason to dismiss. Reasonableness is assessed by reference to the range of reasonable responses: the Tribunal must not substitute its own view, it must decide whether a reasonable employer might have acted as this employer did. Where an employer seeks to rely on capability as the reason for dismissal, it needs to show that it had an honest belief based on reasonable grounds that the employee was incapable. In assessing the reasonableness of a dismissal on this ground, it is well-established that an employer should follow a fair procedure. This will generally involve properly investigating or assessing the employee’s performance, telling the employee what the shortcomings are, warning him or her of the consequences of failing to improve, and giving him or her a reasonable chance to improve: see e.g. James v Waltham Holy Cross UDC

[1973] ICR 398

. However, there is no principle that it can never be reasonable or fair to dismiss for capability without first giving a warning and chance to improve: James. It may not be necessary, for example, where the employee is so incompetent that a warning is clearly not necessary, or where the employee refuses to admit or accept the shortcomings, so that it can be inferred that a warning would be pointless. There is no general obligation to redeploy an employee, or create a role for them so as to avoid dismissal if they lack capability for the role for which they are employed: Awojobi v London Borough of Lewisham EAT 0243/16.

[153]If the incapability is caused or materially contributed to by the employer’s conduct, that is relevant to whether and, if so when, it is reasonable to dismiss her for that incapability. It may be necessary to go the extra mile. But the fact that an employer has caused the incapacity in question, however culpably, cannot preclude it forever from effecting a fair dismissal: Iwuchukwu v City Hospitals Sunderland NHS Foundation Trust [2019] WECA Civ 498. 51 of 63 Breach of contract and wages

[154]Breach of contract claims are governed by the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994. An employee can bring a breach of contract claim against an employer if it arises or is outstanding on termination of the employee’s employment.

[155]Complaints of unauthorised deduction from wages are governed by s 13 and 23 Employment Rights Act 1996. They can include complaints of failure to pay for accrued but untaken holiday to which the worker is entitled under the Working Time Regulations 1998. Under those Regulations, workers are entitled to 4 weeks’ paid annual leave (pursuant originally to the Working Time Directive) and 1.6 weeks’ additional leave (pursuant originally to domestic law). Case law establishes that a worker can, in some circumstances, carry part or all of the 4 weeks’ leave forward, for example, they are prevented by sickness from taking it in the leave year in which they accrued it. That only applies to the 4 weeks’ leave and not to the additional 1.6 weeks’ leave. Application of the law to the facts

[156]As noted above, there were almost 7000 pages of documents in this case and 9 witnesses. The Tribunal’s detailed findings of fact are set out above. We can deal with the issues much more briefly, because many of them turn on the findings of fact. The Claimant’s counsel did not make submissions, in writing or orally, on the holiday pay and expenses claims. His submissions on the discrimination and victimisation claims did not address the list of issues or the specific claims as advanced. They referred to matters that were not claims before the Tribunal, such as failures to make reasonable adjustments. The Tribunal considered each claim in the list of issues on the basis it understood the Claimant to be advancing it. Direct disability discrimination

[157]The Respondent did refer the Claimant to a capability/conduct hearing. However, that was not less favourable treatment because of disability. As explained in detail in the findings of fact above, the Tribunal found on the evidence that Dr Massey concluded that the Claimant had a case to answer. That was based on a detailed investigation report, itself based on extensive written evidence and witness interviews. There was plainly material identified that might support the conclusion that the Claimant had a case to answer. Further, Dr Massey concluded that none of the other courses of action under the CCIHA Policy (no action, remedial action and referral to NCAS) was appropriate, for the reasons he explained. The Tribunal accepted his evidence that he considered referral to a capability panel the only possible option in the circumstances and that he would have treated a non-disabled person in the Claimant’s position in the same way.

[158]There was some delay in investigating the Claimant’s Second and Third Grievances. However, the Tribunal found that the Claimant had not proved facts from which it could be inferred that any part of the delay was less favourable treatment because of disability. To the extent that Mrs Robson, Mrs Grice, Dr 52 of 63 Hughes, Dr Pollock and Mrs Laban were involved, as explained above the Tribunal accepted their evidence that they would have treated someone without the Claimant’s disability in the same way. As regards the approach overall, as set out in detail above:158.1 The Second Grievance was initially allocated to Ms Allred. She was unable to meet the Claimant to discuss it because of the Claimant’s ill health – the Claimant was signed off on 15 March 2018, the day before she sent the grievance. Ms Allred started interviewing other witnesses in the meantime. The delay at this stage was because of the Claimant’s ill health.

158.2 The Second Grievance was duplicated in the third category of concerns in the Third Grievance. The Third Grievance was 98 pages long. It took around five weeks for Sir Andrew Cash to process it, take legal advice, determine how it should be addressed and write to the Claimant. That explains the time taken prior to 12 June 2018.

158.3 Given that the Claimant was expressing concerns about HR, it was decided to ask an external HR consultant to address both the Second Grievance and the third category of concerns in the Third Grievance. That was a decision in the Claimant’s interest and is the reason why Ms Allred’s investigation was abandoned. Terms of reference were prepared and Mrs Grice was identified and appointed within a few weeks. Again, that is a reasonable timescale given the complexity of this part of the grievance and the inevitable time taken to identify and appoint a suitable, external investigator. The subsequent delays in progressing this part of the Third Grievance, and the eventual lack of a final outcome, were because the Claimant was not well enough to participate and not for any other reason.

158.4 The second category of concerns in the Third Grievance was to be dealt with concurrently with the capability process. Delays in progressing the capability process led to delays in addressing those concerns. The delays in progressing the capability process were all because of the Claimant’s health, as set out in detail above.

[159]The Respondent did dismiss the Claimant. However, as explained in the detailed findings of fact, the Tribunal was quite satisfied that the Claimant was dismissed because the capability panel concluded that there were serious concerns about her capability and that there was no realistic prospect of her being remediated back into work. They would have reached the same conclusion regardless of disability. Discrimination arising from disability

[160]The Respondent did treat the Claimant unfavourably by referring her to a capability/conduct hearing and by dismissing her. Further, the Claimant’s sickness absence(s) were something arising in consequence of her disability. The Tribunal therefore considered whether the Claimant’s sickness absences were an effective cause of or significant influence on the unfavourable treatment. 53 of 63

[161]The Tribunal found that the Respondent did not refer the Claimant to a capability/conduct hearing because of her sickness absence; her sickness absence was not an effective cause of that decision. As set out above, she was referred because Dr Massey concluded that she had a case to answer in respect of capability and that none of the other courses of action under the CCIHA Policy (no action, remedial action and referral to NCAS) was appropriate, for the reasons he explained. The Claimant’s sickness absence did not feature, directly or indirectly, in his reasoning.

[162]However, the Tribunal found that, while it was not the sole cause, the Claimant’s sickness absence was an effective cause of the decision to dismiss her. She was dismissed because the capability panel concluded that there were serious concerns about her capability and that there was no realistic prospect of her being remediated back into work. The panel’s reasoning in concluding that there was no realistic prospect of the Claimant being remediated back into work was that there was a substantial risk that any programme of remediation back into work would suffer the same problems as arose at the PCT and the dental hospital, both in relation to performance and behaviour. The panel concluded that the Claimant lacked the necessary insight and willingness to accept and learn from constructive criticism and that without that, further remedial action would be bound to fail. However, as Dr Hughes accepted in cross-examination, they also placed weight on the time that had passed, in concluding that a remediation process was even less likely to succeed now than five years earlier. A significant part of the time that had passed was because of the Claimant’s sickness absence. Mr Barker accepted in cross-examination in respect of the appeal against dismissal that the Claimant’s sickness absence had impacted on the possibility of remediation. The Tribunal therefore concluded that the Claimant’s sickness absence was an effective cause of the decision to dismiss her.

[163]However, the Tribunal found that dismissing the Claimant was a proportionate means of achieving a legitimate aim. The aim of providing safe and effective care to patients was plainly a legitimate one. The Tribunal agreed that in order to provide safe and effective care to patients, it was necessary for the Respondent to ensure that its senior community dentists could demonstrate good verbal communication skills towards patients (many of whom have learning difficulties); show appropriate communication towards colleagues; be able adequately to communicate with, supervise and teach dental students; show an ability to accept constructive criticism and advice from colleagues/senior colleagues; and demonstrate competent and appropriate clinical practice at all times.

[164]No less discriminatory alternative was identified at the time or at the Tribunal hearing that could have been done instead. The relevance of the Claimant’s sickness absence in the decision-making process was to the possibility of remediating her back into work as a senior community dentist. The time that had passed made remediation even less likely to succeed than in 2012. Delaying the capability process yet further would not have addressed that issue. Indeed, it would have extended the period for which the Claimant was not practising and was becoming de-skilled. Further while the length of the Claimant’s absence was a factor in the decision whether she could be 54 of 63 remediated back into practice in 2019, it seemed to the Tribunal that the main factors, as set out in the outcome letter, were that the return to work programme had not been successful in enabling the Claimant to return to unsupervised practice in 2012 and that the panel could not identify any realistic avenue for remediation, in the Respondent or elsewhere, in 2019. The panel concluded that the Claimant lacked the necessary insight and ability to learn from constructive criticism and that without those attributes, any further remedial action would be “bound to fail.” No realistic alternative was suggested to the Tribunal. In closing submissions Mr Patton referred to finding the Claimant a job in community dentistry, having another return to work programme, and finding her a job at a lower level, as is done for numerous dental students every year. The Tribunal did not consider that those were available alternatives. A proper and appropriate return to work programme had been tried. It did not put the Claimant in the position of being able to return to her clinical role, or any unsupervised clinical role. It was reasonable to conclude that this should not be attempted again. There were limited jobs in community dentistry, and the Claimant was not able to work in any unsupervised clinical role without a successful remediation programme. Most graduating dental students do not go into community dentistry and the Respondent is not responsible for high street dental practice.

[165]In the absence of a less discriminatory alternative, the Tribunal considered that dismissing the Claimant was an appropriate and reasonably necessary way to ensure that safe and effective care was provided to patients. Detailed and serious concerns about the Claimant’s capability had been considered and upheld by the capability panel on the basis of extensive evidence from numerous professional colleagues in different settings. On the basis of those matters, the Claimant was not in a position to provide safe and effective care to patients, whether in her role or in any unsupervised role. Neither delay nor further remediation would realistically change that. It was therefore appropriate and reasonably necessary to dismiss the Claimant. The needs of the Respondent to be able to provide safe and effective patient care outweighed the undoubted discriminatory impact on the Claimant in those circumstances. Harassment

[166]As explained above, the Tribunal found that Dr Massey referred the Claimant to a capability/conduct hearing because he concluded that she had a case to answer and that none of the other courses of action under the CCIHA policy was appropriate. That had nothing to do with disability and this was not conduct that related to disability. This complaint of harassment therefore does not succeed.

[167]As set out in detail in the findings of fact and referred to in relation to direct discrimination above, there was delay in investigating the Claimant’s Second and Third Grievances. In a sense that delay did relate to disability because it was caused by the Claimant’s ill health and inability to participate in the grievance process as a result. However, the Tribunal found that it was not unwanted conduct, for that very reason. The Claimant did not want to participate at that time because of her ill health. That was confirmed by OH 55 of 63 advice. Even if the conduct had been unwanted, it plainly did not have the proscribed purpose. The purpose of the delay was to wait until the Claimant was fit enough to participate. Nor did the conduct have the proscribed effect. Even if the Claimant felt that it did, that would not have been reasonable, given that the delay was on OH advice and to enable the Claimant to participate in the process. At the time, the Claimant’s principal involvement was in asking for meetings or hearings to be postponed, not in asking for matters to be progressed.

[168]It may be that the Claimant’s real concern, although not articulated as such in this complaint, is the decision not to deal with the Third Grievance before dealing with the capability process. Even if that were the complaint, the Tribunal would have found that the decision not to delay the capability process until after the Third Grievance had been resolved was not “related to disability.” It was simply about progressing matters in the most timely and proportionate way. The capability process had been extremely protracted, and had already been delayed substantially to enable the First Grievance to be addressed (from August 2011 to November 2012) and then for another year at least because of an episode of ill health triggered by the appeal outcome. Victimisation

[169]There is no dispute that each of the matters relied on by the Claimant in these proceedings was a protected act, namely:169.1 Complaining of unlawful race and disability discrimination in her first grievance;

169.2 Complaining of unlawful race and disability discrimination in her appeal against the outcome of the first grievance;

169.3 Complaining of unlawful race and disability discrimination in her second grievance of 15 March 2018;

169.4 Complaining of unlawful race and disability discrimination in her third grievance of 9 May 2018;

169.5 Bringing Employment Tribunal claim 1809290/2018.

[170]The Tribunal noted that the Claimant did not rely on her verbal complaint about WR to Mr Bateman in early 2009 as a protected act in these proceedings. The Tribunal drew this to the attention of the Claimant and her counsel a number of times during the Tribunal hearing.

[171]We have already dealt with the first three detriments (referring the Claimant to a capability/conduct hearing, delay in investigating the Second and Third Grievances and dismissing the Claimant) in relation to direct discrimination above. For broadly the same reasons, the Tribunal found that none of those matters was victimisation either. We accepted the witnesses’ evidence about their reasons for proceeding as they did and, as explained in the findings of fact, we accepted their evidence the none of the protected acts had any bearing on their decisions.

[172]Turning to the remaining detriments, the second category complaints in the Third Grievance were rejected in the dismissal letter dated 29 August 2019. As 56 of 63 explained in the findings of fact, the Tribunal found on the evidence that the capability panel would have reached the same conclusions in respect of those aspects of the Third Grievance regardless of any protected act. The grievance was rejected because the panel found that the complaints were not wellfounded. The fact that the Claimant had done protected acts had nothing to do with it.

[173]Likewise, as explained in the findings of fact, the Tribunal found on the evidence that the grievance appeal panel rejected the appeal against the outcome in respect of that part of the Third Grievance because they did not consider it well-founded. The appeal panel were not aware of most of the protected acts and the complaints of discrimination in the Third Grievance itself had nothing to do with their decision to reject the appeal.

[174]Finally, as explained in the findings of fact, the Tribunal found on the evidence that the capability appeal panel rejected the Claimant’s appeal against dismissal for the reasons set out in their outcome letter, because they did not consider it well-founded. This had nothing to do with any protected act the Claimant had done.

[175]The Tribunal had no hesitation in finding that the reason for the Claimant’s dismissal was capability. The reason for dismissal is a question of fact on the evidence and the Tribunal’s reasons for accepting the evidence of Dr Hughes and Dr Pollock are explained in detail in the findings of fact above. They had an honest belief that she lacked capability, as explained in detail in their outcome letter. The Tribunal found that their reasons fell within the definition of capability in s 98 Employment Rights Act 1996. They related to the Claimant’s capability for performing work of the kind for which she was employed, assessed by reference to skill and aptitude. This is one of those cases where the borderline between conduct and capability is at play, but the Tribunal found that the reason was properly characterised as capability.

[176]That brings us to the question whether the Respondent acted reasonably in all the circumstances in treating that as a sufficient reason to dismiss the Claimant. The Tribunal found that it did. There were reasonable grounds for concluding that the Claimant lacked capability, and the Respondent followed a fair process. Dismissal was within the range of reasonable responses. Again, we have set out detailed findings of fact above about the investigation process, the evidence, the capability hearing and the capability appeal hearing. In reaching the conclusions below we referred in detail to those findings. We do not set them out again.

[177]The basis of Claimant’s unfair dismissal complaint was not well-articulated. In her detailed and helpful closing submissions, counsel for the Respondent identified a number of the grounds of unfairness that were apparently relied on by the Claimant. The Tribunal identified some further points from its notes of the evidence and cross-examination. We considered all of those matters, alongside the Claimant’s submissions. Our conclusions were as follows. 57 of 63177.1 Clearly, the initial investigation, leading to the 2010 Investigation Report, was flawed. But that was put right following the Claimant’s First Grievance. A fresh and comprehensive second investigation was conducted by Dr Anderson and his colleagues. It was reasonable for the 2010 Investigation Report to be included in the material provided to them. Indeed, the investigation terms of reference agreed by the Claimant’s BDA representative in 2014 required the Case Investigator to review that report. It was absolutely clear that Dr Anderson had not simply adopted what was in the 2010 Investigation Report. The investigators had used it to understand the chronology, but had clearly carried out a very thorough second investigation, leading to a detailed investigation report and extensive supporting appendices. That is summarised above. It was reasonable for Dr Anderson to decide not to re-interview all the witnesses from 2009, but to ask them to check and sign the statements they had made at that time, on the basis that this was likely to be more reliable after such a delay.

177.2 Therefore, while the material before the capability panel included the 2010 Investigation Report, the basis of the referral to the capability panel and of their consideration of the issues was Dr Anderson’s subsequent report and supporting evidence. Further, the capability panel themselves heard first-hand from a number of the witnesses.

177.3 The second investigation gave the Claimant every reasonable opportunity to consider the evidence, provide her own version of events and address the matters of concern. OH advice was taken throughout about the Claimant’s ability to participate and the process was significantly delayed until she was well enough to do so. The Claimant was provided with all relevant documents in sufficient time before the investigation meeting took place. She was given reasonable opportunity to access and comment on patient records. She was supported by BDA and DDU representatives throughout.

177.4 There was extensive delay between the initial raising of concerns in 2009 and the Claimant’s dismissal in 2019. Part of that was caused by the conducting of a flawed first investigation, and then consideration of the Claimant’s grievance about that, leading to a fresh investigation. However, after that, the delays were primarily down to the Claimant, either because of her ill health and inability to attend meetings or participate in processes; or because of the time taken to agree minutes or complete other steps. That is not meant to be a criticism of the Claimant, but it is part of the context: when the capability panel came to be considering the extensive delay, for the most part the Respondent had done all it could to expedite matters.

177.5 It was reasonable for Sir Andrew Cash to decide that the capability process should not be put on hold while the Second and Third Grievances were addressed. The capability process had been extremely protracted, and had already been delayed substantially to enable the First Grievance to be addressed. There was substantial overlap between the second category of concerns in the Third Grievance and the matters the subject of the capability process and it was reasonable to conclude that it was proportionate to address the two together. That was within the terms of the Grievance Procedure. The 58 of 63 Claimant’s preference was for the Second and Third Grievances to be dealt with first, and her GP argued for that to happen, but that did not make it unreasonable for Sir Andrew to take a different view. The capability panel dealt with their part of the Third Grievance first, so that the capability process could have been halted if the grievance had been upheld in such a way as to undermine the capability process.

177.6 It was reasonable for the capability panel to proceed in the Claimant’s absence on 23 April 2019. The whole process had been subject to extensive delays and it was reasonable for them to conclude that it needed to be brought to a conclusion. They weighed all the relevant evidence and reached a decision that was reasonably open to them. The factors in favour of proceeding included: the delays, which meant that some of the allegations were now 10 years old and that Dr Massey might become unavailable; the expert OH advice that the Claimant’s health would not resolve until these matters were concluded, and indeed that they were positively detrimental to her health; the fact that the Claimant had BDA and DDU representation; the fact that the hearing had already been postponed twice, from April 2018 and October 2018; and NCAS advice. The factors in favour of postponing again included: the advice from the Claimant’s GP that she needed time for her condition to improve so that she could properly and effectively represent herself; and the obvious importance of giving the Claimant the opportunity to address the issues in person or through a representative, if possible. The Tribunal considered that the factors in favour of postponing again were not such as to make it unreasonable for the capability panel to take a different view. Furthermore, the Claimant had given detailed written accounts at the investigation stage and been interviewed twice by Dr Anderson. In addition, the capability panel took the unusual step of sending their draft decision to the Claimant for her comments after the hearing, to try and mitigate against the fact that she was not present at the hearing.

177.7 There were reasonable grounds for the capability panel to conclude that the Claimant lacked capability to perform her role as a Senior Community Dentist. The definition of capability in the CCIHA Policy includes incompetent clinical practice; inappropriate clinical practice arising from a lack of knowledge or skills that puts patients at risk; inability to communicate effectively; and ineffective clinical team working skills. There was documentary evidence before the capability panel relating to clinical practice, including relevant patient notes (from 2 June 2009, patient complaints and Dr Vora’s concerns). There was extensive evidence from a range of professional colleagues in a range of settings, identifying both specific clinical, communication and team working issues and more general such concerns. We have referred to some of the written material and to what a number of people said, in writing and in person to the panel, in the detailed findings of fact above. The concerns and the evidence relevant to each were carefully analysed in Dr Massey’s schedule, provided to the Claimant on 27 February 2018. Of course, the Claimant disputed their accounts and put forward her own, detailed account, giving a different version of events. However, it was plainly within the range of reasonable responses for the 59 of 63 capability panel to prefer, as they did, the consistent evidence from a number of colleagues in different organisations to the Claimant’s account.

177.8 The Claimant’s position, then and now, that this fundamentally stemmed from her making complaints about WR and from animosity towards her from Dr Bateman and others as a result, was wholly implausible. It was reasonable for the capability panel to conclude that the range and extent of concerns, made by professional colleagues in a number of different settings, were not orchestrated or influenced by WR. The Tribunal accepted the evidence of Dr Massey and Dr Pollock that the decision to refer the Claimant to a capability panel and the decision to dismiss her were unaffected by any views of Dr Bateman or others. If the panel had decided the Claimant should return to work, that would have had to happen. The Tribunal also accepted the evidence of Dr Hughes that there was no evidence before the panel to suggest collusion between the witnesses. There was nothing to suggest evidence of an intention to lead the investigation in a certain direction and Ms Heyes’s comment simply reflected the fact that you would expect a degree of corroboration if the concerns were well-founded. The Tribunal noted, in that context, that Dr Throssell had rejected entirely the part of the First Grievance that made allegations about WR and others.

177.9 The Claimant also contended at the Tribunal hearing that if Dr Bateman had not excluded her in 2009 without consulting NCAS, she would not have ended up before the capability panel as she did. The Tribunal was not persuaded by that. Dr Bateman did consult NCAS within a week of the Claimant’s exclusion. NCAS had the opportunity to advise a different course of action at that stage. Thereafter, they were closely involved throughout. There is no suggestion that NCAS advised that the Claimant should not have been excluded. Further, it was evident that had the outcome of the return to work programme been that the Claimant was regarded as capable of returning to her role (or perhaps any unsupervised clinical role) Dr Massey would have made that happen. The exclusion would have been superseded at that stage. The Tribunal did not consider that the Claimant only ended up facing a capability panel because she had been excluded without NCAS being consulted. She ended up facing a capability panel because of the range and extent of concerns that were raised in 2009 before her exclusion, and the further concerns that were raised following the return to work programme, coupled with the failure of the return to work programme to put her in a position of being able to return to her role, or any unsupervised clinical role.

177.10 It was reasonable for the capability panel to take into account the evidence from the return to work programme in considering capability and remediation. The terms of reference for the investigation, agreed by the Claimant’s BDA representative in 2014, explicitly required the Case Investigator to establish the relevance of the outcomes of that programme to her capability to undertake her role and the investigation report addressed that. The capability panel plainly understood that the return to work programme was not a formal NCAS assessment or 60 of 63 indeed any formal assessment of capability; it was a programme designed to remediate the Claimant back into practice. However, it was reasonable for the capability panel to consider that the feedback from and outcomes of the return to work programme were nonetheless relevant to the question whether the Claimant lacked capability and, if so, whether remediation was possible. It had been a six month programme at the dental hospital involving senior, experienced professionals. Their reports and other evidence were relevant to an understanding of the Claimant’s standard of clinical practice, her communication and team-working skills, and her ability to improve. As Dr Massey put it, the programme could not corroborate the initial allegations, but it did give information about what could or could not be achieved to resolve them. The Claimant was not unwell during the return to work programme or in the six months leading up to it. She only became unwell again in December 2012 after the rejection of her First Grievance appeal.

177.11 The capability panel did not wrongly proceed on the basis that the Claimant’s choice of a surgical approach on 2 June 2009 was inappropriate. They accepted Dr Rowe’s view that it was appropriate. Their concerns were about the manner in which the treatment was undertaken. There was evidence before the capability panel that justified their findings about that incident.

177.12 The basis of the capability panel’s decisions was not that any single incident had put a patient at grave risk. It was reasonable for them to conclude that this was not a pre-requisite of finding that the Claimant lacked capability and should be dismissed. It was reasonable to conclude that the volume and nature of the concerns that were raised also gave rise to legitimate concern about capability.

177.13 There were reasonable grounds for the capability panel to conclude that the Claimant could not be remediated back into the role for which she was employed. It was reasonable for them to rely on evidence from the return to work programme and to conclude on that basis that the Claimant lacked the necessary insight and willingness to accept and learn from constructive criticism. It was reasonable for the capability panel to conclude that the positive reports at the end of the return to work programme were not the whole picture and that there was evidence going the other way too. The Claimant had not been given a warning about capability concerns and a chance to improve in a standard, performance management type process, but the Tribunal concluded that this was one of those cases where a different approach was reasonable. The Claimant had the chance to demonstrate improvement during the return to work programme. She also had the chance to demonstrate insight and capacity to address the capability issues. The capability panel reasonably concluded that she had not done so.

177.14 It was reasonable for the capability panel to decide to dismiss the Claimant even though they took the view that, if a suitable clinical role had been available at the conclusion of the return to work programme, it might have been possible to remediate the Claimant back into work. The capability panel had to make a decision as things stood in 2019. At 61 of 63 that stage, the position was that there had not been a suitable clinical role at the end of the return to work programme and that the Claimant had not worked in a clinical capacity since. There were clearly several reasons for that. The Claimant had been absent on sick leave for approximately half of the period in total. She and her representative agreed at the conclusion of the return to work programme that an intermediate position was appropriate at that stage and the Claimant was happy with the role that was devised at the time. She was also happy with the role that was subsequently devised in 2015, although that role evidently changed over time and the Claimant became unhappy with it. No more suitable role was identified for her after that. It appeared to the Tribunal from the OH advice that part of the picture was a desire to have the Claimant in a relatively settled and unchallenging work situation so as to facilitate her participation in the capability process and bring it to as speedy as possible a resolution. Even assuming part of the picture was also a failure on the part of the Respondent to make all reasonable efforts to identify a suitable clinical role for the Claimant during the period following the return to work programme, that could not forever make it unreasonable to dismiss the Claimant. It was one factor only. The fact of the matter was that by 2019, ten years after she was employed, the Claimant had performed the role for which she was employed for around 5 months, before being excluded because of the concerns that were raised. She had worked on the return to work programme for six months, but had not been in a position to return to her role at the end of it. She had not done any further clinical role since. It was reasonable for the capability panel to conclude at that stage that there was no realistic prospect of remediating the Claimant back into her role or any unsupervised clinical role and that the only available course of action was dismissal. The Tribunal found that dismissal was within the range of reasonable responses in those circumstances.

177.15 It was reasonable for the capability appeal panel to proceed in the Claimant’s absence, even though she had not attended the capability hearing either. The appeal hearing had also been postponed twice already and the OH advice remained the same. It was reasonable for the appeal panel to take the view that there was no guarantee that the Claimant would be able to participate in a short timescale, and that the GPs recent indication that the Claimant had been referred to IAPT and SOHAS did not necessarily signify a substantial change. The April 2019 letter from her GP also said that she had been referred to IAPT.

177.16 It was reasonable for the capability appeal panel to focus on the grounds of appeal, as put forward on the Claimant’s behalf by her solicitor and not to embark on a re-investigation or review of events in 2009.

[178]The Tribunal considered all the points individually and cumulatively. We were satisfied that it was reasonable in all the circumstances having regard to equity and the substantial merits of the case for the Respondent to dismiss the Claimant. The procedure and the outcome were within the range of reasonable responses. 62 of 63 Breach of contract

[179]The Tribunal found that the Respondent did not breach the Claimant’s contract by failing to pay her expenses for her attendance at the conference in Manchester in May 2016 and her attendance at the Study Days in London in January 2018. The Claimant was not contractually entitled to be paid those expenses if she did not submit an expense claim. As explained in the findings of fact, the Tribunal found that the Claimant did not submit an expense claim in respect of either event, despite being reminded at the time of the need to do so.

[180]Nor did the Respondent breach the Claimant’s contract by failing to pay her for 14 days’ accrued but untaken holiday when her employment ended. As explained in the findings of fact above, the most that the Claimant was contractually entitled to carry forward was five days’ annual leave and she was paid in lieu of all the annual leave she had accrued in the current leave year plus five days carried forward from the previous leave year when her employment ended. Unauthorised deduction from wages

[181]Again, for the reasons explained in detail in the findings of fact, the Tribunal concluded that the Respondent did not pay the Claimant less than was properly payable to her in respect of accrued but untaken holiday on termination of her employment. We have dealt with the contractual position above. The only alternative basis for this part of the claim is the Claimant’s entitlements under the Working Time Regulations and the Working Time Directive. However, the Tribunal found on the evidence that there were long periods during which the Claimant was not prevented by sickness from taking annual leave in the leave years 2015-2016, 2016-2017 and 2017-2018. Any leave that might have been carried forward from any previous year could have been taken during those periods. In the leave year 2017-2018 the Claimant evidently took her 20 days’ statutory leave and the same was true of the leave year 2018-2019. Therefore, she did not have any statutory leave to carry forward into the leave year in which her employment terminated. She was paid in full for all the leave she had accrued but had not taken. The Respondent did not pay her less than was properly payable to her.