Ms G Abou-Ameira v Great Ormond Street Hospital for Children NHS Foundation Trust and Others: 2210917/2023 and 2200604/2024

EMPLOYMENT TRIBUNALS

Case No 2210917/2023, 2200604/2024

Between

Ms G Abou-AmeiraClaimant

Great Ormond Street Hospital for Children NHS Foundation Trust and OthersRespondent

Before

Employment Judge Forde

Mr A Allen KC (instructed by Barrister) for claimant

Date 18 August 2025

JUDGMENT

The unanimous judgment of the Tribunal is as follows: Detriment for making protected disclosures

[1]The complaints of being subjected to detriment for making a protected disclosure are not well-founded and are dismissed in their entirety.

REASONS

[1]The Claimant has been employed by the First Respondent as a Consultant in Paediatric Dentistry since 2014. She remains an employee of the First Respondent, although she has been on long-term sickness leave since January 2023.

[2]The First Respondent is Great Ormond Street Hospital for Children NHS Foundation Trust (‘GOSH’), an international centre of excellence in child healthcare, providing a range of specialist paediatric services to local, national and international patients.

[3]The Second Respondent is employed by the First Respondent as a Consultant in Restorative Dentistry and was, at the relevant time, the Clinical Lead for the Dental and Maxillofacial team at the First Respondent. The allegations raised by the Claimant against the Second Respondent relate to the managerial duties he was required to undertake in respect of the Claimant.

[4]The Third Respondent is a Consultant Anaesthetist and is Deputy Medical Director at the First Respondent. The allegations raised by the Claimant against the Third Respondent concern his duties in his capacity as Responsible Officer in respect of the Claimant. Witnesses

[5]The tribunal heard evidence from a number of witnesses. The details of these witnesses are set out in the paragraphs below.

[6]The claimant describes herself as a whistleblower who is raising serious vulnerable patients safety and staff well-being concerns which she says arise out of significant under resourcing, unsustainable and extreme levels of workload. She says that when she started to push back on unsafe practises such as the overbooking of her clinics, the failure to recruit another consultant and the dangerous attempts to plug the consultant gap with unsupervised trainees and in the interests of the patience come on that she has been subjected to what she describes as a long campaign of detriments including bullying, threatening and intimidating behaviour, unfounded property allegations come up a witch hunt encouraging junior doctors to complain about her, an unfair escalation of a disciplinary investigation and formal proceedings being brought against her and the failure to address her serious concerns in a timely manner or at all. At the end of the summary introduction to her witness statement she says: I stand here today to make a difference.

[7]The claimant gave evidence over a total of five days, starting on Monday 4 March and ending Tuesday 12 March having been scheduled to give evidence over the 3 days.

[8]One consequence of the disjointed way which the claimant's evidence was presented to the tribunal is that the cross examination of the witnesses call who attended together evidence in support of her case was limited to the evidence that the tribunal had heard from the claimant up to and including 6 March.

[9]The claimant had clearly prepared well for the hearing as she was able to reference material within the bundle a matters raised within the statements of other witnesses without difficulty. However, the claimant struggled at times to confront the question she had been asked by miss Newton, instead preferring to provide an answer to her own question auto repeat the countervailing general narrative of her claim as a basis for avoiding a simple an obvious answer, for example to confirm what a document said within the bundle. The claimants conduct in this regard necessitated a number of warnings from the judge as to the way in which she should provide her evidence to the tribunal. However, time and time again, the claimant did not follow the judge’s instruction. In turn, this the tribunal feels led to a prolongation of the evidence that the claimant provided to the tribunal.

[10]At the heart of the claimant evidence all 2 basic propositions; first, that she had raised various concerns which formed the basis of the protected disclosures and the claim that she pursues before the tribunal. Second, she says that as a consequence of those disclosures she suffered various detriments. While there is some variety in the presentation of those detriments, it is right to say that the detriments complained of are perpetrated by a number of individuals within the respondents. The claimant explains that it is her belief Individuals involved in the perpetration of the detriments effectively colluded at the behest of the first respondent. The tribunal appreciates that this is a very short summary of the issues that the tribunal has to Determine in this case. It is explained here in this way because it is important in the tribunal's mind for those reading this judgement to understand about the allegation of corporate conspiracy is woven into the fabric of the claimants claim but in the tribunals finding, done so in the absence of any evidence whatsoever.

[11]The tribunal found the claimant to be someone who was capable of finding her own alternative meaning from a document as opposed to the ordinary meaning from the collection of words being analysed. Further, the tribunal finds the claimant to be somewhat of an unreliable witness, a witness who was prepared to make quite serious allegations in the absence of evidence.

[12]Accordingly, the tribunal treated the claimants evidence with some care. An example of this could be seen on at the end of her cross examination on Tuesday 11 March 2025. The claimant was cross examined about issues relating to allegations of detriment relating to concerns that she had raised in relation to sick pay payments. Specifically, the claimant alleges detriments that relate to reducing her pay while sick from sick pay to half pay and thereafter reducing her pay from half pay to nil pay and in so doing failing to exercise a discretion to maintain full pay. As part of her case, the claims alleges that she was not told of the resolution of her sick pay inquiries at the material times. She confirmed this understanding to be the case during the course of her cross examination.

[13]It was put to the claimant by Miss Newton that she had been told the outcome by the first respondent and the claimant insisted that she had not. As part of this exercise, Miss Newton took to the claimant to page 7630 of the bundle and this passage which is an extract from the outcome to the claimant’s grievance: “You told the investigator that you have had no pay since January, but that the MHPS process has taken 18 months which was not your fault. You said that you have written to the Trust to alert them that they are able to exercise discretion and that they have breached their own timelines. All other witnesses told the investigator that this action was in accordance with the national terms and conditions. The investigator noted that in exceptional circumstances, an extension of sick pay can be considered. You have said that there was a delay to the MHPS process which resulted in being on no pay and therefore this should be considered as an exceptional circumstance. The FTSU investigator noted that this was not part of the FTSU process and I note that because of that she has not looked into the circumstances of why there has been delay here. While I am also not involved in the MHPS process it appears to me that the drop in pay was due to your sickness absence and not the fact that you were subject to an MHPS process (so if you had stayed at work but were subject to an MHPS process your pay would have continued as normal). Simply from a policy perspective, if every employee subject to a disciplinary process went on sick leave and could claim this was an exceptional circumstance in which full sick pay should be extended this could lead to some perverse and unintended consequences for the Trust. Having checked with HR, I understand that this discretion has only ever been exercised once in specific and exceptional circumstances (unrelated to an MHPS process) and so I am unclear what is exceptional here that would change that position. I do not therefore consider there should be any further action here and your sick pay should be treated in the same way as the Trust would treat any other employees.”

[14]The claimant's response to reading this passage was that she disagreed that she had been provided with an explanation. The tribunal finds it difficult to understand how the claimant could make such an assertion in light of the clear and unequivocal language contained within this outcome. It can be clearly seen that the passage addresses the issue of her sick pay. In the tribunal’s view this is clear and it is not accepted that it does not and that the claimant can argue that it does not.

[15]The claimant made a similar assertion in relation to her belief that the respondent had said that it would undertake a further investigation into the conduct of Mr Critchlow comma the clinical lead and her line manager full stop the claim was taken to page 7 619 of the bundle and after identify where it was said that an investigation would be undertaken. In response, the claimant did not identify a form of words which would indicate an investigation would arise him to in relation to Mr Critchlow’s conduct but instead stated the following: my reading is that they will look into the matter further”. The tribunals reading an understanding of the words relied upon by the claimant simply do not accord with the understanding that she has derived from those words.

[16]Moreover, both of these examples demonstrated to the tribunal that even when she had been provided with an opportunity to provide a cogent, credible explanation for her allegations or assertions or, alternatively, resile as she was invited to from the allegation, and notwithstanding the complete lack of supporting evidence to justify her assertions, the claimant remain steadfast, and resolute and at times unreasonably so when in the face of overwhelming evidence to undermine her position.

[17]An example of the claimant's unreliability could be seen in respect of the recording of the meeting that took place on 19 July 2022. The claimant was adamant in her evidence that she had discussed with the meeting participants the fact that she was recording them in the meeting. Mr Jephson was clear that he was not told that the meeting was recording. Notwithstanding, the claimant stood by her assertion and this necessitated an application by the respondents to add use the claimants recording of the meeting into evidence. The tribunals finding on hearing that recording was that the claimants account was inaccurate and misleading.

[18]Mr Maguire gave evidence on Friday 7 March 2025. He describes himself as a trade union rep experienced within the NHS sector. He was not the claimant’s trade union representative throughout the period relevant to the claim, his predecessor being Mr Craig McFayden. Mr McFayden had been supporting the claimant from January 2023 with Mr McGuire taking over in June slash July 2023 and left until he left the BMA in May 2024. In his statement, Mr McGuire raises a number of concerns principally around the appointment of Ruth McCall as FTSU investigator, and matters relating to the FTSU process. He considered Ms McCall to be an inappropriate appointment as investigator having formed a view at she was not someone who in his words, ‘could lead the fairest and most accurate investigation as possible….and ensure that the findings were above reproach.’

[19]There was a further dispute as to the involvement of a clinical experts in the FTSU process. The first respondent disagreed with the claimant on this issue aye Mr Maguire was in alignment with the claimant.

[20]In his statement, Mr McGuire makes what the tribunal will describe as series of broad criticisms about how the first respondent operated a number of its process such as obtaining legal advice, and other steps. In the tribunal's view, Mr Maguire’s evidence barely touches upon the legal issues in dispute which require a determination from the tribunal. Further, while the tribunal has no doubt that Mr Maguire was a straightforward and honest witness, it is nonetheless the tribunal's view Mr Maguire’s impartiality as a witness and specifically his propensity to favour the claimant by way of supposition or conjecture generated by either himself or the claimant meant that the tribunal could not accept the vast majority of his evidence because it was largely irrelevant or unsubstantiated by evidence.

[21]Mr Brijesh Patel, orthodontic consultant gave evidence on Friday 7 March 2025. He had provided 2 very short statements. The tribunal found him to be a straightforward and honest witness. However, it is the tribunal's finding that it is likely that Mr Patel was aware that the claimant presented difficulties to her to some of her colleagues. He was certainly aware from as early as 2018 when he signed the letter together with Mr gill and one other in support of the claimant who was at that time the subject of a grievance investigation concerning allegations of Harassment bullying made against her.

[22]He is supportive of the claimant and says that he had not seen the behaviours complained of by the respondents displayed by the claimant at any time. In cross examination, he conceded that he was aware that the claimant had been subjected to an investigation arising out of allegations of harassments and bullying made against her by a junior doctor. He said that he became aware of the more recent allegations made against the claimant once they had been formally reported.

[23]Mr Patel says that the first respondent’s management had said that they had advertised for a new consultant to work alongside the claimant but in his view there was no interest in that recruitment process and in reality it was his view that they had that management hadn't in fact recruited for the post.

[24]During the course of his cross examination, Miss Newton KC took Mr Patel to page 6964 of the bundle which demonstrated that there had been 16 advertisements made for consultants in the claimant's area of specialty. When asked if he was prepared to revise his position as regards his criticism of the first respondents efforts, Mr Patel responded that the table identified that no efforts had taken place in 2022 which the tribunal understands to be the year in which another consultant had been recruited, namely Mr Kunal Patel.

[25]Mr Patel confirmed that he did sit in meetings of the dental and maxillofacial risk Action Group. Page 7693 of the bundle contains minutes office group and those minutes highlight discussion among the group of recruitment difficulties and consultant shortages within the claimant’s specialty. Mr Patel confirmed but he had discussed the lack of consultant support within the claimant, her specialty with others within the first respondent and that he had not suffered a disciplinary sanction or other detriment as a result all these discussions.

[26]Mr Daljit Gill gave evidence after Mr Patel. The tribunal considered him to be a straightforward witness who could not remember everything that had happened. He, like Mr Patel had provided a short but supportive statement of the claimant in which he asserted that he had never seen the claim would be rude or dismissive to anyone and that no one had made a complaint to her about him. He conceded that he was aware of the harassment and bullying allegations covered in 2018 but have forgotten about them and he accepted that it was possible that trainees and juniors found the claimant’s behaviour difficult. However he was clear that he was unaware of recent difficulties and

[27]Mr Gill attended the dental and maxillofacial Risk Action Group and therefore he was fully aware and confirmed that the issues regarding recruitment were widely discussed, stating that a number of people were concerned and that the impact of the shortage was also discussed. He explained to the tribunal that he had voiced his concerns to others within the first respondent and told the tribunal that he if the claimant ever spoke to him about those concerns he would tell her that it was important for her to report them. Like Mr Patel, Mr Gill had not been made subject to any disciplinary sanctions or other matters that could be described as detriments as a result of these discussions. 28.

[29]Simon Critchlow, the second respondent, was the first of the respondents witnesses to give evidence. Mr Critchlow was the claimant’s direct line manager and is the subject of serious, trenchant criticism by the claimant in terms of his competence and his behaviour towards her and others. In evidence, he accepted that there were a number of adverse findings against him, specifically, in the FTSU report authored by Ruth McAll (pg. 6953 – 7054). This includes accepting that the FTSU report’s remarks about there being “degree of arrogance and an authoritarian leadership style which did not feel inclusive” (pg.7047) may also be referring, at least in part, to himself. This appeared to the tribunal to the an obvious concession to make one that was important for the tribunal to hear from Mr Critchlow.

[30]Perhaps understandably, of the focus of Mr Allen KC when cross-examining him was to contrast the treatment he had received from the first respondent in the wake of a series of adverse findings against him by the investigations conducted into the performance of the team that he led at his own performance against the treatment that the claimant received on the respondent in totality. In particular, is said by the respondent in submissions that following the claimant’s Datix complaint dated 2 February 2023, relating to the incident on 26 January 2023 incident with C (pg.3594 – 3587) Mr Critchlow, that nothing was progressed against him by the first respondent save a conversation with Mr Cunnington on 14 October 2024 and thereafter, the commencement of an informal standard-setting process. In particular, it is pointed out that no further investigation (such as speaking to those who may have overheard SC and C’s interaction on 26 January 2023); or other action has been taken to date. In other words, no preliminary investigation or MHPS proceedings have been instigated against SC for the 26 January 2023 incident, or for any other adverse findings against him following the FTSU report.

[31]A review of his scope of practice for NHS patients for the period after the Claimant went on sick leave in January 2023, which Joanna Johnson carried out. This did not include any review of the specific matters relating to SC’s clinical practice which were the subject of findings or concerns in the FTSU report. The tribunal found his evidence to be inconsistent in the sense that some of the issues that the claimant complained of he could remember and some he started that he had no recollection and therefore was unable to assist the tribunal as to a particular issue. Some of what he said in evidence was expressed differently to how he made the same points in his witness statement and in some cases, he was prepared to accept in cross examination that he agreed with the claimant’s assessment of the situation as a opposed a flat denial in opposition to what the claimant was saying.

[32]He did admit to raising his voice to C in the 30 June 2022 meeting and during the 26 January 2023 incident which the claimant points out in submissions “differs markedly” from the version of events that put forward immediately after the event. That said, the tribunal viewed this reflection as an indication that Mr Critchlow was attempting to provide an honest reflection of his recollection of events.

[33]Mr Chris Jephson is the first respondent’s Chief of Service for the Trust's Sight and Sound Directorate and has been in that role since April 2022. The Trust's Dental Department in which the Claimant was employed falls within this Directorate and its Clinical Lead at all material times, Simon Critchlow reports to him. As Chief of Service, he has direct oversight of patient safety issues, handled initially by each clinical lead, together with the support of the Deputy Chief of Service, where escalation is necessary.

[34]The tribunal found Mr Jephson to be an honest and straightforward witness albeit one whose evidence was unreliable in the sense that he himself relied on his own notetaking and recollections which at times were inconsistent and sketchy. No doubt Mr Jephson will reflect on the quality of his notetaking given the scrutiny placed upon it during the course of this matter. It is this factor which perhaps has led the claimant in submissions to describe him as unhelpful and unreliable witness throughout the course of his oral evidence, observations that the tribunal does not fully agree with. However, in respect of a number of crucial interactions material to the essential facts, he found his evidence to be consistent respondent’s case for example, in respect WLI.

[35]Miss Doris Abomeli is employed by the first respondent as a General Paediatric Consultant and I am the Deputy Chief of Service of Sight and Sound, reporting into Mr Jephson as the Chief of Service of Sight and Sound.

[36]Miss Abomeli attends clinic for two weeks at a time, every six weeks, and provide general and holistic medical input to the patients at the Trust. She is also responsible for safeguarding, alongside four other colleagues. In the her role of Deputy Chief of Service of Sight and Sound, held since March 2022, she is responsible for maintaining safety and quality within the Directorate, which means that she is one of a number who develop, embed and monitor processes and procedures to achieve compliance with regulations and Trust safety standards.

[37]It is her responsibility to ensure that any central safety and quality guidelines from across the Trust or relevant Trust-wide information is appropriately disseminated within our Directorate. She describes that she also supports the development of a Directorate culture that is open and transparent which is encouraged when things do not go as well as planned and she actively manages and communicate theses accordingly across the Trust as appropriate. She attends Trust-wide meetings (including "Risk Action Group" ("RAG") meetings, and fortnightly meetings with other Deputy Chiefs of Service) to share relevant information, maintain best practice and consistency (arranging training when necessary), feeding back on any issues/risks within the Directorate. She chairs the monthly RAG meetings in which colleagues are encouraged to raise and discuss matters related to safety within their areas of work.

[38]Miss Abomeli’s evidence is described by Mr Alllen KC as being strikingly at odds with her written evidence and that observation is entirely consistent with the tribunal’s recollection and finding of her evidence. It is also the case that her recollection of events was also with the recollections of other witnesses who agreed on a particular issue such as her attendance at a meeting on 12 January 2023 with Health Education England.

[39]In submissions, the claimant draws attention to the following exchange during cross-examination claimant says underlines the unreliability of underlines the unreliability of statement evidence: “AA: It is no secret that solicitors draft witness statements and after some back and forth, the end result is confirmed by you; but this statement isn’t actually the evidence that you wish to give in some respects isn't that right? DA: Based on some of our discussions today, yes.”

[40]It is right to say that the tribunal found the above exchange to be an extraordinary one. At first, it had appeared to the tribunal that the witness had simply failed to prepare for the tribunal adequately by reading her witness statement in advance of giving evidence. Such was the nature of her evidence that the judge asked her when last heard she reviewed her statement preparation for the hearing. However, she confirmed to the tribunal that she had read her witness statement and prepared accordingly. Notwithstanding, it is the tribunal’s finding that large parts of material evidence contained within her witness statement were not agreed by her to represent her actual factual recollection. The tribunal cannot treat her witness statement as a true and honest recollection of events. Further, and given the disagreements between herself and other witnesses as to facts and matters concerning this claim, the tribunal has treated her evidence with some care. It is noteworthy that in submissions, Ms Newton KC accepts that Dr Abomeli’s was unsatisfactory. Is it is the tribunal’s finding that she was an unreliable witness in respect of aspects of her evidence, particularly in relation to Health Education England and matters arising from it interaction within the complex and lengthy factual matrix that forms this claim.

[41]Allesa Baptiste is currently employed by the first respondent as Associate Director of Operations - Sight and Sound Directorate, and have been in this role since 14 March 2022. At all times relevant to her evidence, her job title was "General Manager in the Sight and Sound Directorate", but her role was the same.

[42]She is described by the claimant as a particularly unhelpful witness and not on top of the issues around WLI payments which she addresses in detail in her witness statement. The tribunal agrees that Miss Baptiste did suffer from a lack of familiarity with the factual matrix relevant to her interactions with the claimant and involvement in this claim. That said, and for reasons that we shall set out in this judgement, the tribunal is of the view that this Baptiste’s evidence is of little relevance to our findings what she had to say around operational matters was considered to be reliable.

[43]Anjuna Sahi-Kenny is the first respondent's Service Manager responsible for the Dental Department, Urology and Urodynamics, assuming the role as it is now in May 2022. She is responsible for day to day operations and performance management of the departments under her control, with issues such as operational matters concerning the staff in those departments (including trainee and junior doctors/dentists, consultants and administrative staff). Also, she ensures that the department's waiting list of patients is maintained to an acceptable level.

[44]She worked with the claimant for a relatively short period of time, approximately two months. During that time, she asserts that she was aware that the claimant was difficult to work with. She admitted in oral evidence that she knew that the claimant’s reaction to the planned clinic change that occurred in the period 11 – 13 October 2022 would not be positive. In respect of other matters, the tribunal found her to provide somewhat inconsistent evidence. However, she, like this Baptiste, was able to provide very clear evidence around operational matters which the tribunal found to be entirely reliable. A key finding that we shall set out in detail below is in respect of the issue of overbooking relevant to 13 October 2022. In evidence, she set out in detail how it was not possible but and indeed set out an alternative narrative as to the claimant’s position was on 30 October 2022 which the tribunal accepts.

[45]Mr Philip Cunnington is the third respondent and he provided a witness statement of 72 pages. He is employed by the first respondent as a consultant paediatric anaesthetist and is also the Deputy Medical Director ("DMD") and Responsible Officer ("RO") for the 728 doctors who are currently connected to the Trust as their designated body, over 600 of whom are consultants that work at the Trust, the remainder being doctors who have either completed their training, or who are from overseas on visiting fellowship programmes. He has been in the DMD role since 1st October 2023.

[46]As the RO, Mr Cunnington has a number of key responsibilities. The role performs aa regulatory function, in terms of the doctors and monitoring their conduct and performance i.e. a clinical governance role. Another key part of the role is another key part of the role is to ensure that doctors are supported by the organisation in their efforts to improve their performance and the quality of care they provide to patients. This means that from time to time, he will have contact with and work closely with the Trust's Freedom to Speak Up ("FTSU") Guardian to assess any concerns that may be raised relating to culture and that may have a consequent impact on patient safety.

[47]His role as DMD reflects the latter aspect of his RO role (see above) in that he has been responsible for reviewing the culture within the clinical teams, ensuring a safety culture exists and undertaking strategic work to encourage staff to speak up about any concerns. He considers that it is a fundamental part of any well-functioning team that all colleagues feel safe to speak up about any concerns they see and that they feel supported to voice their opinion.

[48]The dual roles of DMD and RO mean that Mr Cunnington has involvement in the management of various performance and conduct matters, including informal and formal action.

[49]The tribunal agrees with the claimant’s observation that Mr Cunnington was defensive at times tight-lipped in his responses to questions whilst being cross-examined by Mr Allen KC. This is perhaps understandable given the extensive criticisms that the claimant makes of his involvement in a number of processes which resulted in her conduct being investigated. Mr Cunnington presented the first respondent’s case in respect of the MHPS policy investigation that occurred. He is also criticised for a failure to conduct a more rigorous review of the way in which the investigator reporting to the MHPS’s investigation conducted her investigation and formulated her report. While he was able to assist the Tribunal in its understanding of what factors drove his decisions at various times, it was nonetheless the case of the tribunal found his evidence to be times generic although there was

[50]The tribunal will set out in this judgment whether or not the claimant’s criticisms of the report and thereafter Mr Cunnington are appropriate, but it is the case that the tribunal was concerned to hear from Mr Cunnington whether or not he considered his involvements in the various processes concerning the claimant to be appropriate given his relationship at various times. Specifically, the tribunal was concerned to know why Mr Cunnington felt that it was appropriate to be involved in the appointment of the investigator to the FTSU you matter given that he had already reached a finding that the claimant conduct was such that it was necessary to investigator for potential matters of misconduct. In response, Mr Cunnington told the tribunal that it was his sense that he would be impartial hence his continuation in these matters.

[51]Ruth McCall is an independent consultant providing mediation, coaching, interim human resources services, organisational design project consulting and employment investigation services to 3rd party organisations. He has significant experience in healthcare operations and HR, having been previously employed by various NHS bodies for around 30 years.

[52]Ms McCall did appear to the tribunal to be at times somewhat uncomfortable and frustrated with not only the line of questioning but also her participation in the tribunal proceedings as a witness. However, as her evidence developed, she did in the tribunal’s view warmed to her theme. The tribunal accepted her explanation at face value that she had applied independence and rigour to the investigatory that she had been tasked with. The tribunal has no reason to doubt her evidence.

[53]Prof Sanjiv Sharma was at all material times the Chief Medical Officer and deputy Chief Executive Officer for the first respondent. He provided evidence that was consistent with the evidence in the tribunal bundle that was before the tribunal. He presented as a credible, straightforward and honest witness and the tribunal has no reason to doubt the evidence that he provided to it.

[54]Rene McCulloch was considered by the tribunal to be a straightforward and direct witness in relation to the evidence that she was required to attest to. The scope of the matter is that she was a witness to was relatively limited and therefore there is very little in relative terms that she could assist the tribunal with. She was considered by the tribunal to be an honest witness and her evidence was accepted by it.

[55]Sophia Varadker, the Acting Chief Medical Officer was the chair of the MHPS panel and therefore was someone of interest to the tribunal in terms of what she had to say about the quality of the MHPS investigation report. At times, Ms Varadker appeared to take time over answering questions but this did not detract from the tribunal’s finding that her evidence was honest, straightforward and credible.

[56]Jane Taylor, the first respondent’s head of employee relations providing credible evidence to the tribunal in respect of her knowledge of the first respondent’s internal processes, the standard-setting process the claimant sick leave IT access, the FTSU process, the claimant’s complaints, the MHPS investigation and subsequent findings, and matters concerning the claimant’s criticisms raised in respect of the FTSU process by way of her complaint, concerns raised about Miss McCall’s appointment, delay in various aspects of this matter, I concerns raised by the claimant in respect of the use of its legal representatives, DAC Beachcroft. The tribunal found Miss Taylor to be an entirely credible, reliable, cogent and honest witness whose evidence is accepted in its entirety. Background What the parties say

Background

[57]As stated above and articulated in more detail below, the claimant raises concerns that treatment she received from the respondents was as a consequence of her making a number of protected disclosures centred mainly on patient health and safety and some in respect of herself. She says that a number of the steps that the respondent saying its response were due to the claimant’s conduct were either unconnected to the her conduct (not least because the claimant says that she did not conduct herself in the way alleged by the respondent or at all in the way that the respondents complain of) and that the processes that are set out in the paragraphs below as instigated by the first respondent (principally at the behest of the third respondent) were contrived as a direct consequence of the protected disclosures she says that she made, leading to outcomes that were ‘unreasonable ’in the legal sense of the meaning of the word and, detriments.

[58]The claimant’s complaints are numerous, detailed and therefore do not lend themselves readily summary. Suffice to say, the claimant’s criticisms of the first respondent and its processes clear and strident.

[59]In light of what the claimant says in her claim, it is perhaps unsurprising that there are few in the way of agreed facts in this case.

[60]The respondents say that that at least since 2018 when a grievance was raised about the claimant, the first respondent’s employees have been raising concerns about the claimant’s conduct and behaviours, and particularly her interactions with more junior colleagues including administration staff. The respondents point to concerns cited by the claimant’s previous employer in the claimant's pre-employment references provided to the fFirst respondent as being consistent with these concerns insofar that they are of a similar nature to the ones that form part of the factual matrix in the claimant’s case before the tribunal.

[61]Specifically, in 2018, allegations of bullying and harassment were raised against the claimant by a junior Specialty Dentist. Whilst the Investigating Officer did not uphold the specific allegations which had been made, the investigation did identify concerns amongst the wider team in relation to the claimant’s communication style and her approach to providing feedback to juniors. The investigation recommended that communications skills and self-awareness courses would be beneficial to the claimant.

[62]In addition, the investigating officer produced a document entitled, ’Wider concerns within the dental department’ in which she recorded concerns that had been raised by interviewees about the claimant, but which had fallen outside of the Terms of Reference of the investigation. In particular, it was noted that several interviewees had raised concerns about the claimant’s behaviour in the past and felt nothing had been done to address those

[63]At the time, the First Respondent sought to address these findings with the claimant in an informal manner in the hope that this would be sufficient to lead to the desired improvements in her behaviour.

[64]However, in August 2021, further concerns regarding the claimant’s behaviour at work and her interactions with colleagues were raised by several individuals, this time with the first respondent’s ‘Freedom to Speak Up (‘FTSU’) Guardian. Again, it was hoped that these could be addressed through informal counselling and management by the directorate management team, which included the second respondent.

[65]The respondents say that further complaints were raised through the FTSU Guardian and by August 2022, the first respondent determined that it would be appropriate to address these concerns with the claimant through a supportive and informal standard-setting process that would be managed by the Third Respondent. The cClaimant was informed, both verbally and in writing, of the standards of behaviour expected of her.

[66]Further, it was explained to the Claimant that if concerns regarding her behaviour continued, the First Respondent might need to take a more formal approach. Regrettably, the standard-setting process did not have the desired effect, and after August 2022 the FTSU Guardian continued to receive reports of concerns regarding the Claimant’s behaviour. In light of this, the first respondent sought advice from the NHS Resolution Practitioner Performance Advice Service (‘NHSR PPA’). This was done because of the serious nature of the concerns raised about the Claimant, and the fact that some of the concerns were about repeated behaviours that had been discussed with the Claimant as part of the standard-setting process in August 2022.

[67]Having considered the advice from NHSR PPA, the Third Respondent determined that it would be appropriate for him to conduct an initial assessment of the situation, which would include speaking directly with some of those individuals who had raised concerns. The claimant alleges that the respondents encouraged juniors and trainees to complain about the Claimant. The respondents say that it was the case that those who had already complained were encouraged to provide their accounts so that a proper assessment (in accordance with the applicable Trust policy) of the situation could take place.

[68]The respondents say that having completed an assessment, it was apparent that there was evidence of both new and ongoing concerns regarding the claimant’s behaviour that required further investigation. In addition, allegations had been received from administration staff that the claimant had not fully devoted herself to her protected training time during a specific training session but had indicated that she had, and in so doing, had acted in a misleading way or in a matter contrary to the policies and values of her professional body (The General Dental Council) and relevant policies of the first respondent. It is the first respondent’s position that this matter required investigation.

[69]Having previously attempted to address the claimant’s behavior informally, it was, the respondents’ view, now appropriate for the Claimant’s conduct to be formally investigated under the Maintaining High Professional Standards (‘MHPS’) Process (‘the MHPS Investigation’). This decision is said by the respondent to be unrelated to any alleged protected disclosures the claimant may or may not have made, and was, instead, an entirely appropriate response of a reasonable and responsible employer faced with concerns having been raised to it regarding the claimant's behaviors and her perceived failure to change her conduct.

[70]The first rappointed an independent external investigator to conduct the MHPS Investigation who, having interviewed multiple witnesses (including interviewing the claimant on two separate occasions), determined that there was a case to answer against the claimant regarding her conduct. The Claimant was invited to a formal MHPS conduct hearing before a Conduct Panel who it is said carefully considered the evidence and representations made on the claimant’s behalf and upheld some, although not all, of the allegations against the claimant, in the absence of bias.

[71]In particular, the Conduct Panel determined there was sufficient evidence to determine that the claimant had behaved in a rude and dismissive manner towards her junior colleagues, nursing and administrative staff; had been critical of colleagues in front of other staff, which had undermined her colleagues in her interactions with them, and impacted negatively on their experience at work, and, at times, the claimant’s behavior had been unprofessional and contrary to the first respondent’s values. Further, it was said that the impact of some of the claimant’s behaviors had been to make her colleagues feel undermined and belittled.

[72]Having considered their findings and the claimant’s mitigation, the Conduct Panel issued the claimant with a First Written Warning, to remain on her 5 personnel file for 12 months, commencing once the claimant returns to work. The claimant hasappealed against this decision and, at the time of writing this judgment, it is not known by the tribunal what its outcome of it is. the first respondent initially sought to attempt to resolve matters informally. However, and only after having exhausted the informal processes, the respondents decided that it was necessary to adopt a more formal approach. The respondents say that the decision to do so was wholly unrelated to any protected disclosures the claimant may or may not have made. Relevant matters

Procedure

[73]This is the second time that the matter has been listed for final hearing. It was postponed from the original listing in September 2024 on the Respondent’s application.

[74]The parties produced a bundle of 8799 pages. Overtime, the hearing bundle increased to exceed 8900. The witness statement bundle numbered 625 pages. This to increased orbit by a small number of pages full stop. The tribunal had the benefit of an agreed cost list, and agreed chronology, opening notes from both parties, a crib sheet to the physical bundles, and they proposed witness schedule.

[75]Regrettably, due to the judge’s unavailability on Friday 28 February, the tribunal was not able to hear evidence and therefore the schedule provided by the parties had to be adjusted so that the hearing of evidence could commence on Monday 3 March 2025. The matter had been listed for 18 days in total, including two days reading in one day of deliberations and one day to prepare the judgement. At the beginning of the hearing, the judge indicated to the parties that he considered the time set aside for deliberations to be deficient and directed that the hearing would be extended by an additional 9 days. The hearing of evidence and submissions would be received by Tuesday 25 March. Thereafter, the tribunal would require 5 days to deliberate and reach its decisions on the issues in the absence of the parties. the five days earmarked to do this are 26,27 and 28 March and 24 and 25 April.

[76]A list of issues was agreed. However, the tribunal was made aware at the start of the hearing that the claimant wished to amend the list of issues and a tracked version of the document appears in the bundle at pages 8793-8799. The claimant says that this is slightly amended in that the claimant has removed one detriment (10(q)) and parts of 2 other detriments (10(a), 10(k)); and provided clarification of 3 further detriments (10(d) and 10(l) and 10(r)).

[77]Naturally, the first respondent welcomed the withdrawals but does not agree that the clarifications can be made without an application to amend and proposed that the matter could be dealt with in submissions rather than take up time at the outset of the hearing. The claimant made clear that the if necessary, she would apply to amend if required. Superficially, all of the proposed changes appeared to be minor:a. 10(d) change of ‘September’ to ‘August’

b. 10(l) addition of ‘(shouted at and her exit was blocked by SC)’1

c. 10(r) addition of the words ‘aspects of’.

[78]In light of this, the judge directed that the issue should be determined before the start of evidence on Monday 4 March 2025. It was confirmed in due course the Ms Newton KC explained that she hoped that the parties would be able to resolve the issue without the tribunal having to rule on the issue and it followed that the parties were able to agree to the amendments proposed by the claimant.

[79]A second issue of housekeeping was a joint application by both parties for remote attendances on witnesses namely Sally Zahran for the claimant and Ruth McAll for the respondents. Each application was not opposed by the opposing party. Both applications were allowed on the basis that that Miss Zahran would have to travel to London from Cambridge on the same day that she had arrived back in the country following a period of international travel; Miss McAll was described as someone who would be presented with significant issues in attending the tribunal due to issues relating to her mobility. In both cases the tribunal considered that it was reasonable, fair and in the interests of justice to allow the applications. However, and in any event, the application in respect of Ms Zahran was unnecessary because the respondents did not challenge the witnesses’ evidence and so there was no need for her to attend the tribunal.

[80]The next issue to be determined related to the respondents desire to include a further 107 pages into the tribunal bundle. Mr Allen KC on behalf of the claimant indicated that this additional documentation had been provided to the claimant two days before the commencement of the full merits hearing and the claimant and her representatives wanted time to consider the application properly and, at the same time consider documentation they considered relevant to the documentation that the respondents were seeking to reduce late in the day. That said, the claimant produced a witness statement addressing the additional disclosure, specifically I report into 2 discrete aspects of the second respondents clinical practise as well as the terms of reference that applied to the report that was produced and seeking to be adduced. As this evidence was before the tribunal and in the absence of an objection to its inclusion from the claimant, the tribunal directed that it would be in the interest of justice to admit the document for reasons provided to the parties during the hearing.

[81]An issue arises from a meeting that took place between the claimant and 3rd respondent. That meeting took place on 19 July 2022. It is the claimants case that the recording was made with the knowledge of the parties to the meeting. It is the respondents case that the claimant concealed the fact that she was recording the meeting and that the existence of the recording only came to light during the course of the disclosure exercise that forms part of these proceedings.

[82]While being cross examined, the claimant informed the tribunal that she had informed the meeting participants as to the fact of her recording the meeting. Further, she informed the tribunal that she had highlighted her intention to provide days participants with either a copy of the recording or a transcript following the meeting. Miss Newton on behalf of the respondents applied for the recording, which did not form part of the hearing bundle be admitted into evidence. The purpose behind her request was clear; she informed the tribunal that she had listened to the recording and that there was a clear difference between what the claimant would say and what the respondent was saying Asked what was said at the start of the meeting.

[83]Therefore, it would be necessary to resolve the dispute between the parties by admitting the evidence. The judge found that this was a matter that was clearly aligned with the interests of justice to admit the evidence of the recording. Not only was it probative of matters in dispute and to be resolved by the tribunal but clearly, it was a matter which went to not only the credibility of the respective witnesses but also the reliability of recollection that could be applied to this meeting. The recording was played during the course of the hearing full stop the tribunal listen to the first 3 minutes of the recording and the last three minutes of the recording.

[84]The claimant started to give evidence on Monday 3 March. She was due to give evidence for three complete days. The following day, Tuesday 4 March, the claimant gave evidence during the morning session and the tribunal were directed to read some documents relevant to her cross examination during the afternoon with the tribunal not sitting and this occurred.

[85]The claimant resumed her evidence on Wednesday 5 March. During the course of the morning session, the tribunal became aware that the claimant was unwell. Mr. Allen KC on behalf of the claimant informed the tribunal that her representatives had been aware that the claimant was unwell in the evening before and at a video conference had taken place at 7:00 AM that morning. During the course of that video conference, the claimant informed her representatives of the detail off her sickness but reiterated that she was able to continue with her evidence in person. However, following a one hour session of cross examination, the claimant became unwell and this necessitated a consideration as to whether that caring could continue.

[86]Evidence was suspended for the rest of Wednesday 5 March. In due course, and following an appointment with a medical practitioner on Thursday 6 March, the tribunal resumed hearing evidence on the morning of Friday 7 March when it heard evidence from the claimant's witnesses namely Mr Alex Maguire, Mr Brijesh Patel, and Mr Daljit Gill. In other words, the evidence of these witnesses were interposed into the claimant's evidence. This was done because the advice the tribunal received was that the claimant would be unable to continue with her evidence on the morning of Friday the seven March but would be in a position to resume on Monday 10 March 2025. The tribunal accepted the evidence received by way of an e-mail indication Of what the claimant had been told by her medical practitioner.

[87]By Monday 10 March 2025 the tribunal was in possession of a detailed report from suitably qualified practitioner who is able to guide the tribunal I said the steps required in order to enable the claimant to provide her best evidence to the tribunal. While there was some arguments between the parties as to whether the entirety of the report provided to the tribunal should be read by the tribunal, the judge directed that a series of reasonable adjustments could be made to enable the tape and to provide her best evidence to the tribunal. Evidence The claimant’s contemporaneous notes

Evidence

[88]Part of the evidence before the tribunal was comprised of notes that the claimant produced and sought to rely on a series of notes that she describes as being contemporaneous of various meetings that she had with a number of actors who the respondents rely upon as witnesses in their defence. It is a well-established principle of law that where there is a dispute of something said in a meeting for example, a party producing notes of that meeting which subsequently upon an assessment as to the accuracy and veracity of the notes concerned, is more likely to be believed then a party who has not produced notes and is therefore unable to substantiate what they have said. It is with this in mind, but the tribunal has been presented with the claimant’s notes of meetings.

[89]In almost all areas of dispute, the respondent’s witnesses take issue with the accuracy and in some cases the veracity of the notes taken and presented by the claimant. In submission, Miss Newton KC describes the notes as neither being contemporaneous nor accurate. Specifically she says ‘this the claimant had drafted these notes after the event, in order to try and bolster her claim that she made protected disclosures. She has added in references to ‘safety ‘in an attempt to paint a picture of herself as someone who was repeatedly raising safety concerns. Whilst the respondents accept that the claimant did, on a few occasions, raised concerns, the claimant has ‘over egged the pudding’ by producing these transparently self-serving inaccurate notes, peppered through with references to safety which were not, in fact, mentioned at the time.

[90]The respondents submit that there are a number of features which they say the tribunal should take note of when forming a view as to whether or not the notes taken were in fact as the claimant says i.e. contemporaneous notes or alternatively as the respondent is now describe them.

[91]First, they are entitled ‘contemporaneous notes’. It is said by the respondent that this is an odd way to start a document and that the word contemporaneous has been added after the event in an attempt to give legitimacy to the inaccurate account contained within them. Second, that the first time any version of that the notes concerning a meeting said to have occurred on 11 October 2022 appeared was when they were appended to the claimants whistleblowing grievance in May 2023 and we used by the claimant to bolster an allegation that she had been targeted by the respondents for raising concerns. Third, the claimant did not disclose the handwritten notes until 22 November 2024, almost a year after the initial deadline for disclosure of documents in this case. When this delay was put to the claimant, she told the tribunal that she had forgotten about them and this answer it is submitted by the respondent is not credible.

[92]The respondents say that a further indication that the notes were created sometime after the event can be seen in respect of the notes arising from 11 October 2022. This relates to the underlying allegation made by the response of the claimant had only participated in a trust teaching session partially rather than fully as she was required to. The respondents say that the way in which the notes are written and in particular the fact that it records the claimant’s explanation for an allegation that only emerged on 3 November 2022 indicates that the claimant did not write these notes contemporaneously as she asserts, rather that she wrote them as a response to either the formulation of her own claim or defence of her position in respect of various matters raised against it by the respondents.

[93]Lastly, the respondents points out that some of these notes made at later dates are so serious they would have been a breach for her of her duties as a regulated individual to not raise them, for instance where she says matters are reaching ‘extra ordinary unsafe levels’.

[94]For reasons that are set out in the judgement, the tribunal is not prepared to accept that the notes prepared by the claimant are contemporaneous and reliable. In fact, tribunal finds that they are likely to have been prepared sometime after the events they attest to occurred, and, that they were prepared for the purposes of the first respondent’s internal processes and as such contain partial, one-sided commentaries which serve the purpose of those processes as opposed to addressing their primary stated purpose of being complete reliable contemporaneous notes.

Issues

[95]The claimant relies on a series of protected disclosures and detriments. These are set out under headings in the findings which are below. They are not repeated here for that reason. Applicable Law The Statutory Provisions Section 43B(1)(d) of the Employment Rights Act 1996 provides as follows: 43B Disclosure qualifying for protection (1) In this Part a ‘qualifying disclosure’ means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following- (d) that the health and safety of any individual has been, is being or is likely to be endangered 43C Disclosure to employer or other responsible person (1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure (a) To his employer.... 47B Protected disclosures (1) (1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure

Applicable Law

[96]It is the position of the respondents that So far as section 43(1)(d) is concerned ‘endangered’ is a strong word that means someone is actually ‘in danger’ i.e. that there is a significant (more than minor or trivial) threat to their mental or physical health, not that they may simply be less comfortable or at risk of some minor effect on their health.

[97]Further, it is said on behalf of the respondents that the term ‘patient safety’ is often used in a healthcare/clinical setting. Use of the words ‘patient safety’ is neither synonymous with nor necessarily determinative of whether or not section 43(1)(d) is satisfied. It will be necessary for the Tribunal to assess in every case whether the statutory test for a protected disclosure has been met. The relevant authorities

[98]The parties are largely agreed on the law and in their own divergent ways, rely on the different chains of authorities to reach, on some areas the same leading case on a particular issue. What is set out below is the line of authorities the tribunal has applied to the facts of this case.

[99]In Kealy v Westfield Community Development Association

[2023] ICR 1298

the EAT cited the guidance previously given in Williams v Michelle Brown Am

UKEAT/0044/19

as to how the ‘qualifying disclosure’ provisions should be addressed by the Tribunal: ‘It is worth restating, as the authorities have done many times, that this definition breaks down into a number of elements: First there must be a disclosure of information. Secondly, the worker must believe that the disclosure is made in the public interest. Thirdly, if the worker does hold such a belief, it must be reasonably held. Fourthly, the worker must believe that the disclosure tends to show one or more of the matters listed in subparagraphs (a) to (f). Fifthly, if the worker does hold such a belief, it must be reasonably held.’ [Our emphasis]

[100]The burden of proof is on the Claimant to establish a protected disclosure was made. The Claimant needs to demonstrate for every alleged disclosure,(i) she reasonably believed she was making the disclosure in the public interest; and

(ii) she reasonably believed that the disclosure tended to show that the health and safety of any individual has been, is being, or is likely to be endangered.

[101]Where what is at issue is whether the health and safety of any individual is ‘likely’ to be endangered in the future, the EAT in Kraus v Penna Plc

[2004] IRLR 260

at §24 held that ‘likely’ in that context means ‘more probable than not.’ .

[102]The tribunal must consider subjectively whether the worker actually believed the information tended to show a relevant failure; and whether, objectively, such a belief was reasonable (even if mistaken): see Babula v Waltham Forest College

[2007] ICR 1026

per Wall LJ at [79 and 81].

[103]In relation to the “public interest” provision, the tribunal should ask whether(a) the worker actually believed the disclosure was in the public interest (the subjective element); and

(b) whether it was reasonable for the worker to have this belief (the objective element) (Underhill LJ at [27] of Chesterton Global Limited v Nurmohamed

[2018] ICR 731

, following Babula).

[104]In Chesterton, Underhill LJ said at [37]: “where the disclosure relates to a breach of the worker’s own contract of employment (or some other matter under section 43B(1) where the interest in question is personal in character), there may nevertheless be features of the case that make it reasonable to regard disclosure as being in the public interest as well as in the personal interest of the worker… The question is one to be answered by the tribunal on a consideration of all the circumstances of the particular case, but Mr Laddie’s fourfold classification of relevant factors which I have reproduced at para 34 above may be a useful tool.

[105]The relevant factors at [34] of Chesterton are:a. the numbers in the group whose interests the disclosure served;

b. the nature of the interests affected and the extent to which they are affected;

c. the nature of the wrongdoing disclosed; and

d. the identity of the alleged wrongdoer.

[106]Parsons v Airplus International Ltd

UKEAT/0111/17

is authority for the proposition that disclosures made only in the employee’s self-interest, and while being capable of amounting to protected disclosures, are capable of being ruled as being not disclosures.

[107]A protected disclosure must be a “disclosure of information”. The question of whether a specific statement is a disclosure of information which (in the worker’s reasonable belief) tends to show one of the matters set out at section 43B(1)(a) to (f) of the ERA is a matter of evaluative judgment for the Tribunal ([36] in Kilraine v London Borough of Wandsworth

[2018] ICR 1850

). There is both a subjective and objective element to the test. The information need not come as ‘news’ to the recipient; nor does the recipient need to have identified it as whistleblowing for the statutory test to be satisfied.

[108]The statute requires that the statement must have “sufficient factual content and specificity” such as is capable of tending to show a relevant failure within the meaning of section 43B(1)(a) to (f) ([35] of Kilraine).

[109]The meaning of ‘disclosure of information’ was considered in Cavendish Munro Professional Risks Management Ltd v Geduld

[2010] IRLR 38

in which the EAT held that it is not sufficient that the Claimant has simply made allegations about the wrongdoing, there does need to be a disclosure of information. As Slade J put it, ‘’...the ordinary meaning of giving “information” is conveying facts. In the course of the hearing.... a hypothetical was advanced regarding communicating information about the state of a hospital. Communicating ‘information’ would be ‘the wards have not been cleaned for the past two weeks, yesterday sharps were left lying around.’ Contrasted with that would be a statement that ‘You are not complying with Health and Safety requirements.’ In our view this would be an allegation not information.” The Court of Appeal later clarified in Kilraine (see above) that ‘allegation’ and ‘disclosure of information’ are not mutually exclusive categories; what matters is the wording of the statute: some ‘information’ must be disclosed and that required that the communication have ‘sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection (1).

[110]The tribunal has had regard to the fact that in Kilraine generalised allegations of bullying harassment and inappropriate conduct were held to be too vague to amount to a protected disclosure.

Findings of fact

[111]The claimant is a respected consultant working in the paediatric dental and maxillofacial team at the first respondent, a specialist Children's Hospital and a lecturer at University College London, London University. She was charged with the treatment of patients in her care and these were generally vulnerable children who often have complex health conditions.

[112]Following a number of years of training, the claim was appointed as a consultant at St. Georges hospital in 2010 until she transferred to the first respondent on 20 year October 2014 as a locum post and then as a substantive post in July 2015 reporting to the second respondent, consultant in restorative dentistry and clinical lead for the paediatric dental and maxillofacial team at the first respondent.

[113]As a matter of background, the claimant sets out a number of facts which indicate that the department within which he worked was susceptible to peaks pressure an excessive workload. She identifies that her predecessor in the role or someone who was placed under significant pressure as was someone who she shared her role with.

[114]The claimant says this at paragraph 16 over her witness statement: the paediatric dental world is small and the reputation of Geo SH is not very good in general as demonstrated by articles such that published in the Private Eye how NHS whistleblowers are silenced and sacked by Phil Hammond and Andrew Bousfield, 2024 is damaging to GOSH is reputation GOSH is widely recognised as a toxic place to work, and the very public events I have referenced completely destroyed what reputation had been left of the department in the paediatric dentistry world.’

[115]And, in relation to events in 2022 at paragraph 64 of her witness statement the claimant says this: a divisive and toxic culture was being fostered in the department as a result of lack of admin support due to underperformance and staff shortages, no process is in place, issues with ordering materials not by nurse manager, huge backlog, pressure on the clinical team and nursing staff to accommodate extra clinics and GA lists at short notice, increase workload on the clinical team and a shortage of nursing support.

[116]In summary, at the very end of her statement, the claimant says this: “I feel thoroughly let down by GOSH. I have been hard working, passionate about the extremely important service we provide children who are mostly from deprived backgrounds and in desperate need of our care. I whistle blew because it was the right thing to do for my patients, for my trainees and for me and it was absolutely in the public interest that I did. However, instead of taking appropriate action, I have been bullied, threatened, intimidated and subjected to unfair disciplinary action and other detrimental treatment I have outlined above. Whistleblowers, particularly those in the NHS, should be protected, not victimised. GOSH have done everything in their power to beat me down and bully me into silence, but I will not be silent. I have been traumatised by this, I have suffered severe ill health, damage to my home life, work life, career and finances. But I took an oath; and I had to protect the vulnerable children in our care, and the trainees I was responsible for. I reasonably believed, and still do, that GOSH was endangering / likely to endanger the health or safety of patients and staff by its unsafe practices. I disclosed all of these unsafe practices to GOSH as my employer, along with HEE and CQC because I felt strongly that it had to stop.”

[117]The Claimant commenced employment with the First Respondent as a Locum Consultant Paediatric Dentist in 2014. The Job Description and Person Specification set out the behavioural expectations of the First Respondent in relation to the Claimant. It asks that all staff ‘develop a working environment of courtesy, fairness and mutual respect’. The Person Specification also reinforced these expectations and highlighted the requirement that the Claimant demonstrate, ‘excellent interpersonal skills....[and] mutual respect – treats others with courtesy and respect at all times’ [235].

[118]In 2015, the Claimant obtained a permanent contract with the First Respondent. The contract contained an express clause entitled, ‘VALUES AND EXPECTED BEHAVIOURS’ which informed the Claimant that she was contractually expected to act in accordance with the First Respondent’s expected values and behaviours at all times. The contract stated that, ‘Each value is underpinned by behavioural standards and employees will be expected to display these behaviours at all times’.

[119]In addition to these internal standards, the Claimant was also subject to the behavioural standards set out by the General Dental Council. Standard 6.1 [8059] provided that the Claimant, ‘must work effectively with your colleagues and contribute to good teamwork.’ Standards 6.1.2 and 6.1.4 contain more detail on what is expected and stipulate that, ‘you must treat colleagues fairly and with respect, in all situations and all forms of interaction and communication. You must not bully, harass or unfairly discriminate against them [6.1.2] ......you must value and respect the contribution of all team members [6.1.4].’ Standard 9.1 [8085] states, ‘you must ensure that your conduct, both at work and in your personal life justifies patients’ trust in you and the public’s trust in the dental profession.’ Standards9.1.1 and

9.1.2 further provide that the Claimant, ‘must treat all team members, other colleagues and members of the public fairly, with dignity and in line with the law [9.1.1] and you must not make disparaging remarks about another member of the dental team in front of patients [9.1.2].

[120]Standard 8.3 also provided that those who employ, manage or lead a team must, ‘encourage and support a culture where staff can raise concerns openly and without fear of reprisal.’

[121]The tribunal notes and finds that the same duties applied to the first respondent and its managers to ensure that these behavioural standards were maintained, and that junior colleagues were protected from any breach of these standards by anyone to whom those standards applied such as the Claimant. 2017 complaints and subsequent investigation in 2018

[122]The First Respondent was aware from the Claimant’s pre-employment references that there had been a breakdown in relationships with her colleagues at her previous Trust, such that the reference confirmed they would not reemploy the Claimant in the same department. However, the first employee, that the First Respondent is aware of, to formally raise concerns about the Claimant’s conduct was a junior dentist, Saroj Prajapati in 2017. The tribunal finds it relevant to refer to these allegations raised by Dr Prajapati, and the comments made by witnesses as part of the subsequent investigation in 2018, as they demonstrate that years before the Claimant alleges she raised any protected disclosures, concerns were being raised from a variety of sources about the Claimant’s alleged treatment of junior colleagues.

[123]In 2017, Sanjiv Sharma (‘Professor Sharma’) (when he was Deputy Medical Director, for Medical Education) brought to the attention of Elizabeth Jackson (‘Dr Jackson’) (who at that time was Chief of Service of the directorate within which Dental team (including the Claimant) worked) that Dr Prajapati had told him about the treatment she had been subjected to by the Claimant. Having heard Dr Prajapati's account, Professor Sharma said, ‘we spoke at length about the working environment with GA. It sounds at best as undermining and at worst as bullying....she was reluctant to put any of this in writing as she was fearful of repercussions both in the department and in post graduate exams for which GA is an examiner. However, she was happy for me to share with you. She admitted that she is so unhappy that she is looking for jobs elsewhere....it does sound like there are behaviours which are outwith Trust Values and which will need to be addressed.’ Dr Prajapati brought a formal complaint against the Claimant of bullying and harassment which was investigated and a report produced in September 2018. The specific allegations raised by Dr Prajapati were not upheld. However, several additional witnesses raised concerns about the Claimant’s conduct and behaviour towards junior colleagues.

[124]Examples from the report include Katherine Pearce (Principal Dental Nurse/Manager) said the Claimant, ‘does try to belittle her a lot’ and that the juniors, ‘literally feel bullied....the majority of junior staff have been subjected to the same intimidating bullying behaviour. At least seven of the previous 11 staff members have been in tears in the office numerous times. All have escalated upsets to other consultants....however none wish to take it any further. So some of the statements is (sic) they just need to get it done and get out of here. It should be the best job here at GOSH but actually it’s the hardest because of her, because of Gehan......the way she is with Consultants is totally different in the way she is with junior staff, nursing staff, admin staff, receptionists, everybody else’. The Claimant’s response to this in crossexamination was to suggest Katherine Pearce was ‘making it up’ and that the allegations were vexatious.

[125]Both Claire Fletcher, Dental Nurse and Tom Watkins, Assistant Service Manager gave examples of the Claimant talking down to juniors in front of patients including criticising juniors within earshot of both the junior dentist and the patient, and Claire Fletcher added that, ‘you just don’t want to be bullied by her, you don’t want to be victimised by her because she’s so open about doing it...’

[126]Consultants shared similar concerns. Urshla Devalia, Dental Consultant said, ‘we were both employed at the same time from October 2014 and it’s been an ongoing issue with every single junior that has come through the department. As a result, I’ve raised issues on behalf of the juniors informally because everybody was very anxious to raise anything in a formal manner. They were concerned about it affecting their career because most people who come through our posts want to do paediatric dentistry and it’s a very very small specialty.....by the time it’s got to Saroj, I’ve kind of stopped getting involved because nobody has listened to me’. Brijesh Patel also told the investigation that he knew the Claimant, ‘has had a number of issues with trainees in the past....it has been brought to my attention that this is not the first person who has complained about this’. Mr Patel and Daljit Gill, Consultant Orthodontist were both signatories to a letter that recognised that the Claimant’s conduct required improvement and suggested mentoring and personal development.

[127]In cross-examination, the Claimant dismissed these numerous accounts of her poor behaviour as being vexatious and/or because of ‘camp mentality’. The respondent says that this demonstrates lack of insight on behalf of the Claimant and the tribunal agrees. The claimant was unable to provide any explanation whatsoever to support her contention that the allegations were made vexatiously and the tribunal is of the same view in relation to similar criticisms made by the claimant in relation to others who criticise her conduct later in this factual matrix.

[128]The tribunal notes that Jenny Wood supported the claimant in this instance as she does in relation to other factual matters relevant to the claim. The tribunal also notes that the claimant has, through her representation, placed significant reliance her written statement provided to this investigation. The tribunal observes that much of what Ms Wood says is contrary to the majority of witnesses of the claimant’s conduct and that her views not capable of being tested before the tribunal as the claimant did not call her to give evidence on her behalf.

[129]The investigation made several recommendations about the Claimant’s communication and feedback style and the need for team building to take place.

[130]The investigator who looked into the issues raised by Dr Prajapati subsequently produced a document entitled ‘Wider concerns within the dental department’ which included concerns about the Claimant’s conduct and the fact that those who had previously raised concerns about the Claimant had not been listened to. Dr Jackson called the Claimant to a meeting to discuss the recommendations at which the Claimant was told her behaviour needed to be improved. In cross-examination, the Claimant disputed she was told this, and claimed she was only told that the allegations had not been upheld and that, ‘I needed to be gentler with my feedback and we sat there joking.’

[131]The Respondents suggest and the tribunal finds that this is unlikely to have been the case given the nature of the observations within the report about the claimant, the nature of the duties placed on Dr Jackson (see above) and our concerns about the reliability of the claimant as a historian. We consider it far more likely that the claimant was told to modify her behaviour.

[132]In February 2021, Joana Monteiro (a Dental Consultant) resigned. In her exit interview she referred to the fact that she had felt belittled by the Claimant’s behaviour, disputed by the claimant in cross-examination. However, the tribunal finds that it is far more likely and plausible for Ms Monteiro to have raised this as issue for her rather than for any other ulterior reason put forward by the claimant. Whether Ms Monteiro was justified in reaching this view is another question but the tribunal notes that by her response, the claimant was dismissive of the perceptions that others had of her behaviour, in other words, she demonstrated lack of insight into her conduct.

[133]Under the First Respondent’s ‘Raising a Matter of Concern Policy: Whistleblowing’ the important role of the FTSU Guardian is defined. This role was created in the wake of the review into whistleblowing in the NHS and the need to ensure there was a channel for staff who have, ‘genuine concerns about what is happening at work, or where concerns already raised have not been dealt with appropriately.’ Paragraph 4.4 of the Policy reads as follows: ‘Freedom to Speak Up Guardians and Ambassadors: This is an important role identified in the National Freedom to Speak Up Review to act as an independent and impartial source of advice to staff at any stage of raising a qualified disclosure or a whistleblowing concern. The Freedom to Speak Up Guardian and Ambassadors are members of staff undertaking the role on a voluntary basis.’

[134]The FTSU Guardians allow individuals to raise concerns anonymously in circumstances where they fear potential reprisals. The tribunal accepts and finds that the FTSU Guardian plays an important role at the first respondent in terms of providing a channel for its staff to speak freely about matters of concern in a safe and confidential space.

[135]During 2021, individuals contacted the FTSU Guardian to raise continuing concerns about the Claimant’s conduct. Caroline Heath (Dental Nurse Manager) (‘Ms Heath’) raised concerns with the FTSU Guardian which she raised both on her behalf and on behalf of her more junior colleagues [60. Iyla Todd (Dental Nurse) (’Ms Todd’) also raised concerns through the FTSU Guardian.

[136]On 2 November 2021, the FTSU Guardian emailed Philip Cunnington (‘Dr Cunnington’) and Jane Taylor (‘Ms Taylor’) setting out a summary of the concerns that had been raised . In addition to general points being made about the relationship between Consultants and their communication, the following was also recorded: ‘Concerns about Dr Abou Ameira behaviour: described as recurring themes of “confrontational” and “intimidating juniors” at times. Described as “domineering” and “shuts down” junior dentists and disempowers them. Also described as sometimes not communicating effectively with patients and parents or providing appropriate levels of information.’ When asked in cross-examination whether she recognised the impact of her behaviour on the team, the Claimant dismissed these serious concerns and maintained that the concerns cited in the email were false as a result of Ms Heath having a close relationship with Ms Todd, and also being part of ‘management.’ The tribunal rejects that critical observation of collusion as fanciful and unsubstantiated and that this was yet another example of the claimant being dismissive and lack insight into her conduct.

[137]At a meeting on 4 November 2021 to discuss these concerns, Mr. Cunnington, Ms Taylor, Simon Critchlow (‘Mr Critchlow’) and Dr Jackson determined that it would be helpful for the Claimant to receive coaching to help change her behaviours and on 4 November 2021, Dr Cunnington emailed Daljit Hothi for this to be arranged. In his email, the issues which required addressing were cited as: ‘long term issues within the department and complaints via Speak up Guardian (treating junior staff poorly, angry, dismissive) ......needs to be aware of how she communicates and impact on others.’

[138]Dr Cunnington suggested the coaching should be external and that the Sight and Sound Directorate would be willing to fund that coaching. There is a dispute between the parties as to what the claimant was told about the purpose for the coaching. She said in cross-examination that nothing was said to her about her behaviour and that she was only told the coaching was to support her after her bereavement, and because she was now the only Consultant. Again, this is found to be an incredible proposition and one that is unsupported by an evidential narrative that would show that there was a discussion between the claimant and Mr Cunnington that for the reasons that he says the coaching was arranged. It is pointed out by the respondent in submissions that if the true rationale for the provision of the coaching was related to reasons of bereavement that it is far more likely the a form of bereavement support may have been offered to her as opposed to coaching. .

[139]In December 2021, there was further correspondence on the issue in which Dr Cunnington flagged that the Claimant was keen to proceed with the coaching and he enquired as to whether a standard setting exercise had been undertaken with the Claimant (consistent with his view of what had been explained on the coaching front verbally to the Claimant). It transpired that this had not occurred. It is far more likely that his observation as to the reason why this was the case was as he says in in his witness statement namely, ‘ultimately, I think this may have dropped between stools and did not take place. This did result in me thinking that I should conduct any future standard setting exercise with the Claimant in order to be certain of what was said and that it would be undertaken.’

[140]In April/May 2022, Dr Cunnington was contacted again by the FTSU Guardian who reported ongoing complaints having been raised about the Claimant's behaviour. Two matters were reported through the FTSU portal, but in addition to these reports, the FTSU Guardian had received direct reports and he raised concerns that the interventions undertaken by the Directorate thus far had been insufficient to address the matters previously raised. As reports received by the FTSU Guardian are meant to remain anonymous, Dr Cunnington was not at that point aware of the identity of the complainants, only that further complaints had been made. The inaugural working party review meeting took place on 26 May 2022 attended by the FTSU Guardian, Ms Taylor, Dr Cunnington, Chris Jephson (who had recently taken over from Dr Jackson as Chief of Service), Allesa Baptiste (‘Ms Baptist) and Mr Critchlow. During the meeting, the concerns about the Claimant’s behaviour were discussed including the concerns raised through the FTSU Guardian and also exit interviews from staff. Mr Critchlow reported to the meeting that he had spoken to the Claimant and had received assurances from her that she was aware of her behaviours and had agreed to coaching with Daljit Hothi, but that he was uncertain whether there had been sustained changes, and there was a sense that her behaviours were different with Consultants as opposed to other (more junior) colleagues. There is a dispute between the Claimant and Mr Critchlow as to whether this conversation took place, and the Tribunal is asked to prefer the account of Mr Critchlow. However the tribunal declines to do so on the basis that in its view, nothing turns on the content of this conversation insofar as the totality of the tribunal’s findings in respect of this particular issue is concerned.

[141]At the meeting, Dr Cunnington outlined how they were going to approach the situation regarding the Claimant. He said, ‘one strand was a personal element to address behaviours. This would be an informal meeting with standard setting and a reminder that this will be monitored over a three month period, after which it would be reviewed. It would be clear that if the standards are not maintained then a formal process would follow. PC to lead the conversation.’ It was agreed that the matter would remain with Dr Cunnington for him to manage directly because it appeared that the previous opportunity for standard setting with Dr Jackson had been missed.

[142]It is noted that this meeting took place before the first of the protected disclosures relied on by the Claimant in her claim, which is on 30 June 2022.

[143]It was agreed that an informal meeting with standard setting, followed by a formal process if the standards were not maintained, was the course of action that had been decided before any alleged protected disclosures had been made. Accordingly, it is the tribunal’s finding that the decision reached in this meeting was based solely on the conduct concerns that the first respondent had and which it was reasonable for it to have about the claimant. The decision introduce the standard setting process was both appropriate and reasonable given the circumstances and the complaints that had been made The tribunal finds that the issue of the recruitment of Kunal Patel was also discussed in this meeting and specifically that efforts would be made to encourage him to remain at the first respondent where he was undertaking some of his training.

[144]The standard setting meeting took place on 3 August 2022 and a standard setting letter was sent to the Claimant on 5 August 2022. At the standard setting meeting, examples were discussed with the Claimant although she was told that at that stage the complainants had requested to maintain their anonymity. In the standard setting letter, the Claimant was reminded of the expected standards of behaviour and she was told (as had already been agreed back in May 2022), that, ‘This letter sets out the standards we discussed and that are expected of you as an employee of Great Ormond Street Hospital. I informed you that should there be concerns regarding your conduct/behaviour in the future I may need to consider whether this needs to be managed more formally under the Trust’s Conduct Capability Ill Health and Appeals Policies and Procedures for Medical Practitioners and Disciplinary Policy...should this be the case, a copy of this letter may be used as evidence to demonstrate that the expected standards of behaviour have been clearly outlined to you. I do hope that I will not need to address similar concerns with you in the future’.

[145]Further concerns were raised later in 2022, which resulted in the MHPS process being commenced, in accordance with the decisions that had been made in May 2022. Alleged disclosures on 3 and 4 August 2022 (Issues 6(e) and 6(f))

[146]The claimant says that during the meeting on 3 August 2022 she rated verbal complaint that her workload was unsustainable and believed it to be an unsafe practice which placed patients health and safety in danger. She says that Mr Cunnington dismissed these matters as operational issues. Because of this, she says that she raised it the following day.

[147]The tribunal finds that the disclosure said to have occurred on 3 did not occur as alleged. The tribunal reaches its finding on the basis of what Mr Cunnington says in his witness statement and in his evidence before the tribunal. Tribunal notes that the claimant is unspecific with regards the form of words that she used during the course of this meeting, at the comment is not captured in the meeting notes arising from the meeting, and that those meeting notes reflect the subject matter of the meeting mainly standardsetting. Further, the tribunal has in mind the claimant unreliable and at times untruthful evidence and consider that Mr Cunnington is a far more reliable and credible witness in totality and specifically in relation to this issue than the claimant is.

[148]As regards the 4 August 2022 email, to her belief that her workload was unsustainable, which she believed to be unsafe, the tribunal finds that while this was a disclosure of information, it was not a disclosure made in the public interest. It was, instead, made purely out of self-interest in response to the decision to reduce the Waiting List Initiative Payments or WLIs (see below). further, the tribunal finds that the disclosure made by the claimant was not one arising from her reasonable belief that there was a state of affairs where patient safety was at risk in the way she alleges in her email and as part of this claim. The tribunal finds the claimant was entirely influenced to communicate this information as a direct result of the decision reached in respect of WLI payments, a decision the respondent had reached on a wholly legitimate basis, namely restricted finance issues. Waiting List Initiative (‘WLI’) Payments (Issues 6(a), 10(a), 10(b) and 10(e)) Background to the 30 June 2022 meeting

[149]As a matter of background, A WLI Payment is effectively an ‘overtime’ payment to Consultants for extra shifts they agree to conduct in order to help drive NHS waiting lists down. There is a prescribed payment (namely £500 for half day and £1,000 for a full day in the week, or £675 for a half day and £1,350 for a full day at the weekend) for WLI shifts.

[150]Any WLI shifts that a Consultant agrees to do requires pre-approval from management, which is required before the work is carried out, and then an approval form has to be completed and signed by management before payment can be made to the Consultant, although in this case the tribunal finds that the administration process relied upon by the respondent in relation to preapproval and document preparation could be best described as aspirational rather than actual; in other words, and perhaps for entirely justifiable reasons, it is not possible to the tribunal to find that the respondent was able to perform this process consistently where the claimant was concerned.

[151]Notwithstanding, the tribunal accepts and finds that WLI shifts should be used for ad hoc additional work outside of a Consultant’s agreed job plan in order to address patients on NHS waiting lists who might otherwise be further delayed in being seen. They were not a substitute for overtime or to supplement a consultants income and they were designed to be entirely controlled by the first respondent and other similar organisations confronted with excessive waiting lists arising from the pandemic.

[152]On 4 April 2019, Dr Jackson sent an email to all Consultants in the department, highlighting the financial challenges the first respondent was facing and stating there was more scrutiny on spend including WLIs. She continued, ‘we are grateful for the support we have had from consultants with WLIs and will continue to need a small number. However Dani and I need to be able to justify these and ensure good governance therefore with immediate effect WLI payments will only be made for lists with a prospectively completed approval form. The approval form is attached.’ The claimant does not recall receiving this email.

[153]Until April 2022, central government had provided funding for this work. That ceased after April 2022 and this work had to be funded from the first respondent’s budget.

[154]In May 2022, the first respondent came to scrutinise payments being made to the claimant due to their size. For the six months between November 2021 and April 2022, the claimant’s claims for WLI payments totalled just under £40,000, and she had been paid £23,500 for WLI payments during the previous five months. It is submitted by the respondents that these were exceptionally large payments for such a short period of time. In addition, the Claimant was also claiming for 45 days of annual leave that she said she had not taken but should be paid for which she said related to issues that occurred back in 2019. The Claimant’s claims for WLI payments and outstanding holiday pay as she said she had stopped taking holiday in the relevant period equated to over £80,000 of additional payments on top of her annual salary in less than a year; this was considered reasonably by the first respondent to be a considerable sum given that the Claimant’s annual basic salary was £101,000 in 2022. The Claimant’s requests for WLI payments had been flagged by the first respondent’s Chief Operating Officer due to their size.

[155]The tribunal has no difficulty finding that the first respondent, perhaps belatedly in terms of its recognition of the size and frequency of the claimant’s WLI claims, and, acutely aware of the financial pressures confronting it, decided that not only did the claims needed to be justified but also to eventually end them. The tribunal finds that it was both reasonable and necessary for the first Respondent’s employees to ask to speak to the Claimant about her WLI claims. The Tribunal finds the evidence of Anjuna Sahi-Kenny (‘Ms Sahi-Kenny'), Ms Baptiste and Mr Jephson clear, cogent and reliable in this regard in that it explains what was done and why it was done. The tribunal does not agree with the claimant that there was some other ulterior, nefarious purpose behind the actions for the first respondent here. Rather, what was happening was the very necessary exercise of financial oversight that is required of a public funded institution such as the first respondent. The tribunal accepts the evidence of Ms Sahi-Kenny also gave clear evidence that she had found the handwritten claim forms difficult to review at times, which is why she needed to put the details into a spreadsheet of her own to try and understand what exactly was being claimed, and what had been authorised and paid. Among these claims was a claim, undisputed in evidence by the claimant, that there was a legitimate query about the claimant booking annual leave, and then doing a WLI shift instead which occurred in March, April and May 2022 and which resulted in the Claimant taking home an even higher amount for those days. 30 June 2022 Meeting (Issues 6(a) and 10(a))

[156]It is the tribunal’s finding that the claimant was informed in advance of the meeting of the purpose of the meeting. The tribunal prefers the evidence of both Mr Jephson and Mr Critchlow who both recall clearly that the Claimant turned up with a file of documents which she offered to go through ‘one by one.’ The tribunal find that the claimant had prepared for the meeting and therefore do not find that the claimant had been summoned to a meeting with no agenda, to be shouted at, undermined and have her probity questioned. The tribunal does not make any finding that any of these things happened and in this regard, the tribunal prefers the evidence of Mr Jephson and Mr Critchlow because the background to the meeting is clear and set out both in the documentary evidence before the tribunal and the evidence of the respective witnesses relied upon by the first respondent all of whom the tribunal consider to be more reliable and credible than the claimant.

[157]During the meeting Mr Jephson asked the Claimant about some of the WLI claims and the days the Claimant had worked in order to get clarity and assist his understanding of the claims. The tribunal accepts that this is entirely consistent with the oversight duties that a manager would have over their charges. Mr Jephson wanted to clarify the dates when it appeared that some of the WLI clinics had been worked on days he had thought were in the Claimant’s job plan and he wanted to ensure this was clarified so that the Claimant would not get into difficulties if this was challenged. The Claimant clarified that she had swapped her days and/or had booked annual leave, which explained the issue.

[158]The claimant has produced ‘contemporaneous notes’ of this meeting the reliability of which is addressed earlier in this judgment. Additionally, it is noteworthy that these notes were not produced by the claimant until she submitted her Whistleblowing Grievance in May 2023 nearly a year later. Accordingly, we find that it is less likely than not that the notes were contemporaneous and are therefore unlikely to be reliable. For these reasons the tribunal does not consider them as part of its fact finding.

[159]Mr Critchlow did not ‘pretend' that he was unaware of the swap in the Claimant’s days in her job plan. Further, we do not find that the Mr Critchlow asserted during to the claimant during the meeting that he the claimant had acted fraudulently, and it is noteworthy this discrete allegation is absent from the claimant’s own notes.

[160]Mr Jephson explained to the Claimant that as the department’s budget was limited, going forward she would not be able to do as many WLI clinics as before. Mr Critchlow outlined a proposal whereby the Claimant could work two additional temporary PAs per week (the equivalent of an additional day) pending the appointment of a permanent Consultant which everyone had hoped was going to happen sooner rather than later. The Claimant said that she would only consider this if it was on a permanent basis. The claimant alleges but the tribunal does not find that the claimant was not asked to give up 2 permanent teaching PAs at UCLH/Eastman Dental Institute to take up 2 temporary PAs with the first respondent. There are no contemporaneous emails recording any such request; this is because, in our finding, no such request was made.

[161]During the discussion about the Claimant’s job plan, the conversation became heated between the Claimant and Mr Critchlow. The Claimant appeared to believe that Mr Critchlow had previously offered her 2 permanent PAs, and accused him of lying about the previous offer which had been made to her, a point entirely disputed by Mr Critchlow. The tribunal finds that both raised their voices and were equal but opposite protagonists in a heated debate. The tribunal finds that at a point in the debate, Mr Critchlow accepts that he became frustrated and the tribunal finds that the feeling was the same for the claimant. On 1 July 2022 Mr Critchlow emailed Dr Cunnington copying in Mr Jephson explaining that he felt his relationship with the Claimant had been negatively affected as a result of her conduct at this meeting.

[162]It is based on these findings of fact and particularly that the claimant was an equal participant in the argument or debate with Mr Critchlow that the tribunal does not accept that she was undermined and/or had her probity questioned during the meeting. Further, the tribunal finds on the balance of probabilities that Mr Critchlow did not say, ‘no more WLIs for you’ nor did he accuse the claimant of making him look bad in front of the Chief of Service, Mr Jephson. 163. 65. The Claimant alleges at List of Issues paragraph 6(a) and paragraph 1(a) of her Further Particulars that she made a protected disclosure in that she raised a verbal complaint during this meeting that, ‘her workload was unsustainable and that the team needed urgent support by appointing another consultant as soon as possible to stabilise the service and provide adequate and safe supervision throughout the week to juniors and that she believes this to be unsafe practice, which placed patients’ health and safety in danger and was detrimental to her and her well-being.’

[164]The tribunal does not find that the claimant raised these concerns during the meeting and reached this view by accepting the evidence of Messrs. Jephson and Critchlow over the claimant on the basis that theirs is more reliable and credible than the claimant’s and it is noted that the claimant did not raise these concerns during the meeting. The tribunal’s finding is further reinforced by the fact that the claimant does not identify within the purported disclosure to any unsafe practice or safe supervision at any point in her notes. It is further noted that the claimant accepted in cross-examination that she had not used the word ‘unsafe’ or ‘safety’ in the meeting and suggested instead that safety issues should have been inferred by her alleged reference to "stabilising the service". That is not in the tribunal’s view enough to meet the legal standard as regards the requirement to ‘disclose information’ (see Kilraine and Cavendish above). In addition, the tribunal does not accept that the claimant’s reference to workload in the way that she refers to in broad, generic and unspecific terms, does not come within the health and safety wording of section 43B(1)(d) ERA 1996 (see above), as on its own it would not be disclosing information which tended to show that the health or safety of any individual had been, was being or was likely to be endangered.

[165]The tribunal agrees and adopts the respondents’ submission as part of its findings that the when the claimant referenced "stabilising" the service by recruiting additional Consultants, that it was the aim and objective of everyone in the department to do this; this was obvious because the need for additional consultant cover was widely known, acute and long-standing. It had been recorded on the risk register months before this meeting. It was discussed in the Dental & MaxFax – Risk Action Group as can be seen from the minutes from January 2022 meeting and state in terms that there was a high risk of failure to provide a service due to a shortage of Paediatric Dental Consultants. The January 2022 notes record that the advert originally placed in November 2021 was still out in 2022, although there had been no applicants. The impact on the Claimant’s workload was also expressly cited in the minutes. July 2022 Meeting (Issue 10(b))

[166]On 1 July 2022, the Claimant and Mr Critchlow had a further discussion about the offer of 2 temporary Pas (see above). The claimant and Mr Critchlow have different accounts of this conversation. However, the tribunal finds that Mr Critchlow’s is the most reliable of the two and finds that he did not threaten the claimant with being audited as she alleges or at all. His motivation for the meeting was to have the Claimant working in the department for additional hours given the budgetary pressure which had resulted in the reduction of the WLI clinics.

[167]The tribunal finds that any reference to audit or oversight was in relation to the fact that the WLI forms needed to be looked into before payment could be authorised. This was a legitimate thing to say, if said. This was not a detriment. The comment did not subject the Claimant to a disadvantage; it was an appropriate message to be conveyed to the Claimant by her manager in these circumstances.

[168]The Claimant’s notes on this conversation are not considered credible, reliable or relevant to the conversation and the case that she seeks to make because the tribunal finds that they unlikely to have been contemporaneous and they record the Claimant’s perception of what she was told, as opposed to an account of what was actually said in the meeting. 169. 1 July 2022 email and verbal raising of concerns about Asha Yussuf (Issue 6(b)) 6(b) 1st July 2022 – email to Allesa Baptiste, copying in Simon Critchlow, Mr. Jephson and others, LFG report to Simon Blackburn and Brij Patel and verbal complaints to Chris Jephson, Allesa Baptiste, Simon Critchlow, Brij Patel and Doris Abomeli patient health and safety concerns regarding a junior being pressured to treat a patient under sedation despite being unqualified to do so without appropriate supervision.

[170]In her witness statement, the claimant says the following: “116. Therefore, I raised my concerns directly to Simon Critchlow in a conversation that day (on 1st July 2022) that he is not trained in sedation and I had to inform him that I’ll be raising patient safety concerns in writing in order to be able to get him to agree to cancel this patient following multiple attempts from Asha Yusuff, as I felt that he had inappropriately authorised this 117. Following Simon Critchlow finally agreeing to cancel the sedation patient, I emailed Allesa Baptiste and Teresa Fadeyi and copied everyone that was involved in the discussions about cancelling this patient (Simon, Asha, Caroline) and Chris Jephson to document the verbal concerns I raised “I have highlighted the above to Simon and we agree that the patient will need to be rebooked to a time when I am available to supervise her.” Since I was not due to be at GOSH on Monday (4th July 2022), following the capacity cut, I wanted to ensure transparency and for Asha Yussuff to have written confirmation to cancel the sedation patient given the resistance and pressure put on her to unsafely treat this patient. [844-846]. [6(b) List of Issues] This was also raised to Chris Jephson verbally over the phone when he called to check on me following the previous day’s meeting, telling me that he will be managing the outstanding payments, not Simon Critchlow [904]. I also raised this incident again at the HEE urgent review meeting on 12th January 2023 after the LFG repots were sent to the DME. [841, 838-839, 4496, Brijesh Patel LFG minutes (attachment) is missing sent on 7.1.23 page 1309, 1309-1310].

[171]Further, on 1 July 2022, the claimant wrote to Allesa Baptiste and others via email: “Dear Allesa, It was brought to my attention that Asha has extractions under inhalation sedation booked on Monday. She is as yet not qualified to carry out sedation without supervision by a paediatric Dental Consultant. Until such a time as she is qualified, the consultant should be present in the room for the entirety of the appointment for safety and legal reasons according to the sedation guidelines. Additionally, she does not feel confident carrying out this treatment without my supervision. I have highlighted the above to Simon and we agree that the patient will need to be rebooked to a time when I am available to supervise her. Patient details: , MRN: Currently booked for Monday 4/07/2022 at 9.30am.Could you please see that this patient is cancelled from Monday as soon as possible and rebooked” .

[172]The respondents’ case is that in error, Dr Yussuf, had been booked to conduct extractions under sedation on Monday 4 July 2022. This was brought to the claimant’s attention who discussed the issue with Mr Critchlow. As he is unqualified and to treat or supervise, and once aware of the error he agreed to the rebooking of the patient under the claimant’s care.

[173]In Mr Critchlow’s view, this appeared to be a booking error of the kind that sometimes happened when the administration teams have booked patients in. Mr Critchlow in his evidence confirmed it was entirely appropriate for the Claimant to have raised this issue with him and the Claimant's intervention in this case demonstrated the system had worked: the Claimant had flagged the issue as was expected of her and this led to the error being corrected. This was a routine discussion between the Claimant and Mr Critchlow and was presented as such in the email the Claimant sent on 1 July 2022. It is the tribunal’s finding that this email falls substantially short of raising the concerns that the claimant alleges. The tribunal expressly finds that this was a booking error and nothing more. Everyone agreed was an error and which needed to be corrected. The email conveys that Mr Critchlow and the claimant had agreed that that was to be the case. The email was flagging up an issue that had already been resolved. It was not an email whereby the contents of which would fall within the definition of section 43B(1)(d). The tribunal agrees with the respondents’ submission that the Claimant has sought retrospectively to call it this to fit into her wider dialogue of being victimised for whistleblowing. Further, the tribunal does not find that the claimant made the disclosure that relies upon her to Mr Critchlow, Mr Jephson, Dr Abomeli and Ms Baptiste and make this finding on the basis that they all do not recall the claimant verbally raising safety concerns about this booking and on the basis it is the tribunal’s view that the claimant’s account is unlikely to have happened.

[174]The Claimant alleges she was subjected to three specific detriments because of this alleged disclosure. These are the detriments contained at issue 10(d) (juniors being approached between August 2022 and October 2022 in the Claimant’s absence to encourage them to complain about her); 10(f) (the email sent on 4 October 2022 where the administrative staff had come up with some ideas to try and reduce waiting lists) and 10(g) (the discussions with the Claimant on 13 October 2022 about the proposals for Alaa Bani Hani (‘Dr Bani Hani’) to see some patients). It follows that given the tribunal’s finding, that these detriment claims must fall away. However, it is also the tribunal’s finding that even if there had been a protected disclosure 1 July 2022, it had no bearing whatsoever on these subsequent alleged matters, which occurred, in some cases, many months later. The Claimant’s response to the decision to stop the WLIs and the 7 July 2022 email (Issue 6(c)) 6(c) 7th July 2022 – email to Chris Jephson regarding 23 urgent new patients due to breach the time period when they should be seen and treated which was outside what is considered safe for the patients.

[175]The claimant says at paragraph127 of her witness statement the following: “Also on 7th July 2022, I emailed Chris Jephson highlighting the urgency of the situation that I have no capacity with my current job plan, to accommodate the 23 urgent new patients including oncology and new patients in breach of the time period when they should be seen and treated, which was outside what was considered safe for patients [906]. [6(c) List of Issues]. I requested guidance from management and a plan to be put in place to manage the deteriorating situation including:• 22 complex patients require treatment by a consultant (myself) according to the work queue

• An extra theatre list to accommodate oncology and long waiters was cancelled [849] and the email was forwarded to management

• 3 joint operations (ad-hoc GA) with other medical teams scheduled on Mondays in July only will be cancelled (ad-hoc GA are facilitated to avoid a child with complex needs have a 2nd General aesthetic and we have a SOP with strict acceptance criteria for that) [1207- 5th bullet point],

• Cleft audit clinics on Mondays will not be covered and the data can’t be added to Crane (NHS England) without a calibrated specialist/ consultant- none of the juniors can cover this clinic.

• Multiple junior clinics will be cancelled due to lack of supervision which will impacting on their training needs. This was also raised by all the trainees at LFG meeting (1 July 2022).”

[176]The Claimant was unhappy that the WLI clinics were going to have to be significantly reduced. As she was entitled, the claimant refused the offer to undertake 2 temporary PAs to assist the service unless they were made permanent. This was the Claimant’s right and the tribunal is not inclined to follow the respondents’ criticisms of her in this regard. Similarly, the tribunal does not agree with the claimant that Mr Critchlow cancelled the clinics by way of retaliation.

[177]On 5 July 2022, the Claimant put in annual leave requests which due to the dates chosen by the Claimant meant that 8 all day GA (General Anaesthetic) lists would need to be cancelled, leaving the First Respondent with only 1.5 days of theatre lists per month. The tribunal finds that this action was deliberate on the part of the claimant in order to make the point that her absence from the treatment front-line would be keenly missed.

[178]On 7 July 2022, the Claimant sent an email to Mr Jephson entitled ‘WLI - outstanding payments (meeting)’. It can be seen that the claimant’s main complaint was the fact that the WLI work had stopped. She further complained that she had not had sufficient notice to reinstate her private practice which she said she had given up to support the service. In bold type, the Claimant stated that after supporting the department and getting it into a reasonable shape, she found it unreasonable to be expected to drop ‘2 permanent PAs (teaching) to pick up 2 extra PAs at GOSH on a temporary basis. I can only consider this is if offered on a permanent basis. Following our meeting, I will only continue to work my agreed job plan and unfortunately will not cover any additional activity.’ The tribunal finds that this communication of retaliation from the claimant.

[179]The claimant went on to then highlight all the activities which would need be cancelled as a result. The claimant was effectively saying that if she could not work the WLIs and/or be given permanent additional PAs, she would back away from any additional work which would have a consequential knock-on effect including the cancellation of various clinics with the resultant impact on patients. The tribunal finds that the claimant did this to try and get the first respondent to change its mind.

[180]Accordingly, it is the tribunal’s finding that this was not a disclosure made in the public interest because it related solely and entirely about the Claimant’s personal interest, the WLI and related matters. As such, the tribunal finds that the disclosure offends the rule set out in Parsons (see above). The 19 July 2022 covertly recorded meeting (Issue 6(d)) 6(d) 19th July 2022 – verbal concerns to Chris Jephson and Doris Abomeli about the unreasonable and unsustainable working conditions and how this impacted the service.

[181]The claimant says in her witness statement at paragraph 132 and 133 the following: “132. During this meeting with Chris Jephson and Doris Abomeli on the 19th of July 2022, I raised concerns against the unprofessional manner of Simon Critchlow and his bullying nature towards me, his shouting and threatening comments. I also demonstrated to them that I had raised previous concerns to Liz Jackson (previous Divisional Director) in June 2020 against Simon Crichlow undermining me and his unfair behaviour towards me, how my job plan was being unfairly handled and the concessions he made in the past to other paediatric dental consultants that were not equitable (email to Liz Jackson [552-553]. Concerns were raised in my appraisal in 2021 about his ongoing undermining behaviour towards me and the lack of support [Para 37]. I said in the meeting on 19th July 2022 that I was going to report this bullying behaviour and the threatening comments about probity to Sanjiv Sharma, Medical Director, but Chris Jephson asked me not to and said he wanted it to be managed it informally. I agreed to this and said that if it happens again, I will be raising it with Sanjiv Sharma [892- 4th row from the bottom, 893-1st row, 894-1st row ]. It occurred again on 26th January 2023, and I emailed Sanjiv Sharma on 1 st February 2023 [1383-1386]. 133. During the meeting on 19th July 2022, I presented a huge waiting list, describing the chaos within the department, limited capacity/resources, negative impact on my wellbeing, having to cover supervision during my SPA sessions and not claiming for additional hours worked on my non-contractual days (which caused me financial loss as I could have undertaken private work) and despite agreement with senior management on a collaborative approach to increase capacity and support me in stabilising the service which is reflected in the minutes of the meeting (19th July 2022) [902-903]. There was a breach of the agreement to appoint a consultant by October 2022 and no extra resources were given to the department, and no plan was put in place except for even more over- bookings of clinics and lists causing conflict between me and the admin team who continued to overbook me based on management instructions. As a result, mistakes were happening by juniors, disease was being missed by junior members of the team and the clinical team was unable to keep up with writing notes during clinics and relied on memory and written post-it notes during the evening to finish writing the notes and catch up on the admin. The clinical team is pressured to see extra patients during lunch time and feel tired and unsafe working such long days. This places patients’ health and safety at danger, and it is a breach of working time regulations and the duty of care GOSH owes to us. Similar concerns were raised by the junior clinical team and Katie Hill (Clinical Nurse Specialist) on regular basis to Anjuna Sahi- Kenny and Fiona McKay requesting them to stop overbooking the clinics. [6(d) List of Issues] These are recorded further up the management chain in meetings with Simon Critchlow on 27th October 2022 [1092-1094] and Doris Abomeli on 8th and 10th November 2022 [1176-1177, 1193-1196].”

[182]The respondent accepts that a protected disclosure occurred here with the exception that the it is observed that the claimant did not use the word ‘unreasonable’ (or similar wording).

[183]In response to the Claimant’s email of 7 July 2022, Mr Jephson suggested a meeting with Dr Abomeli to discuss matters. This took place on 19 July 2022. The Claimant covertly recorded this meeting without the consent of the other participants. The tribunal has found against the claimant on the issue of the recording and has found the claimant’s explanation for the circumstances of the recording to be incredible. It is clear from listening to the recording that at no time did the other participants have any idea that the meeting was b being recorded and it is disingenuous of the claimant to suggest that she had informed them or that it was otherwise obvious that the meeting was being recorded. For reasons already stated, this fact and the claimant’s continuing insistence that Dr Abomeli and probably Mr Jephson were aware that the meeting was recorded is frankly absurd. That the claimant could not agree that she did not informed the others for the fact of the recording during crossexamination is a matter that, in the tribunal’s mind, has significantly undermined her credibility.

[184]The tribunal reached this finding on the claimant’s credibility because it was clear from the evidence before it that it is not custom and practice at the first respondent to record meetings as the claimant alleged. The tribunal accepts the evidence that Dictaphones have not been used at the first respondent since circa 2017. The recording does not record a request for permission to record the meeting.

[185]The Claimant told the Tribunal she recorded the meeting so that she could send the minutes, however no minutes are ever sent, only a brief bullet point summary. The tribunal does not accept the claimant’s explanation in crossexamination for failing to disclose the recording and/or transcript of the meeting, is that she ‘forgot it existed’ on the basis that the tribunal considers this to be untrue.

[186]While it is the case that the claimant did speak to the issue of the service being ‘unsustainable’, the tribunal finds that the claimant is focussed on outstanding WLI payments and notes that it is the claimant who returns the conversation to the subject of payments. See for example from page 886 of the bundle, passage which is typical of what the participants discussed: Chris Jephson: Yes, and you end up getting paid for 5 of them. Gehan Abou Ameira: No, 5 is separate from the year before. Chris Jephson: Okay. Gehan Abou Ameira: 5 is separate. 5 is from the 2020/2021, carry over from the year before. Chris Jephson: Okay. So you got to the point where at the beginning of new ﬁnancial year, the process hadn’t gone through for these 12½ days then Gehan Abou Ameira: Yes. Chris Jephson: And so someone at this point said put them as WLIs instead Gehan Abou Ameira: They asked me to work them as WLIs throughout. It was easier, Liz was asked through that time, and she said no its easier to actually work them at that point. That’s why Talie on the day, like we stayed here until really late, that’s why she put 5 days already like that towards them because I said, guys I’m happy to take them as leave. Shall I take them as leave? And then she said no, I’d rather you actually work them. Chris Jephson: That’s what Liz said?

[187]The respondents submit that the oral evidence of the Claimant, Mr Jephson and Dr Abomeli during the hearing indicates that the Claimant did make a protected disclosure during this meeting about her working conditions and how it impacted the service. The tribunal agrees and finds that the claimant did raise patient safety concerns when she says, for example: “On a Monday I was only asked to cover cleft, right. That was the agreement with Liz. I was I was I opened next to it a new patient clinic and another review clinic. I had to keep going from here to there. It is not sustainable, I know that, but I agreed for a very short period of time until we can get somebody, we can like light at the end of the tunnel, somebody we can work in with. And this is why it was upsetting in the meeting with Simon, that he just pulled the plug away from the wall, then why am I doing all of this work of getting us somewhere the guy is keen to come he’s happy but he wants to do it part-time and fair play, he said he wants to work alongside me for the first year because he’s worried”. (our emphasis)

[188]It is the tribunal’s finding that both Dr Abomeli and Mr Jephson agree that the attendees did discuss the pressures on the department and steps to improve its performance. Therefore, the tribunal finds that there was a protected disclosure in the meeting that amounted to raising patient safety concerns which the claimant reasonably believed tended to show that the health and safety of patients was at risk.

[189]However, the tribunal finds that the claimant raised the concerns for entirely personal reasons. The tribunal finds that the meeting transcript shows that the meeting had a very narrow focus and only fleetingly mentions patient safety and does so as an adjunct to the main point of conversation which the claimant’s working pattern and job plan. Given this finding, it follows that the tribunal finds that the disclosure was not made in the public interest and therefore the allegation fails as a matter of law.

[190]Further, the tribunal fails to identify an arguable basis for asserting that the claimant suffered a detriment as a result of the disclosure. In fact, it can be seen that Mr Jephson and Dr Abomeli were supportive of the Claimant during the meeting and thought the meeting had gone well. There has been no suggestion that this information was shared by Mr Jephson and Dr Abomeli with anyone else at the first respondent. 8 September 2022 Meeting (Issue 6(g) and 10(e)) 6(g) 8th September 2022 – verbal concerns to Doris Abomeli and Anjuna Sahi-Kenny regarding 95 patients to book with no capacity, the pressure this was placing on the service and the impact to patient safety and staff well-being. 97. At paragraph 158 of her witness statement the claimant says: “158. On 8th September 2022 I raised concerns to Doris Abomeli and Anjuna Sahi-Kenny during a meeting (minuted) that we have 95 patients to book with no capacity; the pressure this was placing on the service; and the impact to patient safety and staff well-being. I highlighted the urgency of the situation and the impact of the capacity cut on 30th June 2022 and that no resources were provided for months on the waiting list and there was no closure of external referrals [972-973]. [6(g) List of Issues]”.

[191]It is the claimant’s case that by raising verbal concerns to Dr Abomeli and Ms Sahi-Kenny regarding the first respondent having 95 patients to book with no capacity that she made a protected disclosure. Whilst this specific issue was raised at the meeting, the tribunal finds that it was in fact Ms Sahi-Kenny and Fiona McKay (‘Ms McKay’)(Medical Secretary/PA) who raised this particular point and not the Claimant as is reflected in the meeting notes. Dr Abomeli did recall the claimant raising some concerns during the meeting about the situation in dental at the start of the meeting but it is also clear that others shared the same views and that everyone in the meeting was aware of the situation in dental which both Ms Sahi-Kenny and Ms McKay were seeking to address. If the tribunal is wrong about this finding it is also the case that we find that the claimant was not subjected to any detriments due to any comments she made and it would be strange for this to have happened given the long-held views as to the state of dental and the acute need to recruit consultants to support the claimant.

[192]The tribunal further finds that Ms Sahi-Kenny did not do anything that would amount to her having ‘openly accused the Claimant of submitting WLI claims for days she had not worked and said this is why management have not paid her and that she will be audited’. The tribunal makes this finding on the balance of probabilities and considers the claimant’s complaint her to be untruthful and unreliable and it that is far more likely that Ms Sahi-Kenny would not have had cause to say this to the claimant.

[193]Further concerns raised about the Claimant’s conduct post the standard setting process in August 2022. (Issue 10 (d))

[194]After the informal standard setting process in early August 2022, further concerns about the Claimant’s conduct were raised.

[195]In early August 2022, Jasmine Mintoff (‘Dr Mintoff’) raised concerns with Ms Sahi-Kenny about her experiences whilst working in the First Respondent’s Dental Department with the Claimant. She told Ms Sahi-Kenny that whilst she was uncomfortable raising the concerns, she considered she needed to do so as she was shortly leaving the First Respondent and wanted to ensure that new dentists in the department did not go through what she had gone through with the Claimant. in addition, she raised a concern that the claimant had not completed her own mandatory training but that Dr Mintoff had completed it for the claimant.

[196]Dr Mintoff had told Ms Sahi-Kenny that other junior dentists had felt the same and suggested she speak to them which she did. Ms Sahi-Kenny was, thus, doing what Dr Mintoff had suggested and was not influenced in any way by any protected disclosure the Claimant may have made. Ms Sahi-Kenny raised these concerns with Ms Baptiste as her manager and a meeting was held with both Dr Mintoff and Dr Bani Hani on 16 August 2022. This is entirely appropriate and proper. In evidence, Ms Baptiste said that she had a duty of care to these individuals, and it was appropriate that she met with them and heard what they had to say. Once she heard their account, Ms Baptiste asked them to put their concerns in writing so that she had an accurate record of what they wanted to say, as opposed to attempting to summarise the position herself and risk it being an inaccurate record. The tribunal finds that there was nothing untoward in this action; it was entirely appropriate for her to do this as a form of record keeping. Ms Baptiste was not encouraging juniors to complain about the claimant; rather she was ensuring the serious complaints they had raised were properly recorded and addressed.

[197]On 19 August 2022, Dr Mintoff set out the concerns which had been raised in the meeting with Ms Baptiste and she does so while making several very serious allegations. Dr Mintoff referred in the note at point 9 that the claimant, ‘often puts juniors down, to their face and behind her back. I have felt so stressed and upset around her that I have cried regularly and seen other juniors cry and at one instance I also fainted.’

[198]In cross-examination the claimant dismissed the accounts of these junior colleagues as ‘vexatious’ had fabricated the allegations to get back at the claimant because Dr Mintoff thought the claimant had been responsible for her being unable to leave the first respondent's employment earlier than serving her full notice period and did so in the absence of any evidence in the bundle to support this contention. The tribunal rejected this asserted contention from the claimant on the basis that Mr Mintoff was making serious allegations against the claimant, because those allegations were similar in nature to what had gone before, and because the claimant’s explanation for Dr Mintoff’s animus towards her was inherently implausible and particularly so given the overall factual matrix and the claimant’s history when working with juniors.

[199]In relation to the mandatory training allegation, an allegation that the claimant accepted was a serious one to have made, this allegation was investigated as part of the MHPS investigation but not upheld on the basis that the investigator determined it was one person’s word against the other, and that she was unable to determine the matter. It is not the case that the Claimant’s account was accepted, nor was there any finding that Dr Mintoff’s account was in any way inaccurate or untrue.

[200]Dr Bani Hani had also raised concerns anonymously with the FTSU Guardian. Further, she later attended a meeting with Dr Mintoff and Dr Cunnington on 4 October 2022, during which both juniors conveyed their serious concerns about the Claimant. At the end of the meeting, Dr Cunnington explained the options available to them and suggested they thought about what they might want to do, ‘and that we would be fully supportive in helping them raise concerns via the [Bullying and Harassment] policy’. Both individuals had expressed a wish to remain anonymous due to their fear of reprisals from the Claimant.

[201]In making these findings, the tribunal rejects the assertion made by the Claimant in cross-examination that Dr Bani Hani had ‘played along with Dr Mintoff’ and knowingly gave an untrue account. It is noted that both junior doctors had given their accounts independently. It is also notable that while the claimant asserted that Dr Bani Hani was otherwise supportive of her she was unable to demonstrate to the tribunal’s satisfaction that the reporting relied upon here as detriments arose from anything other than the claimant’s conduct which has been honestly and openly reported and thereafter relied upon by Dr Cunnington for whom it was open to be relied upon.

[202]It follows that the tribunal finds that the allegation that Dr Cunnington sought out information against the Claimant because she had raised patient safety issues is not only not made out but it is the tribunal’s view that the allegation is misconceived. These concerns had been brought to his attention by Ms Baptiste and it would have been a dereliction of his duties if he had not taken steps to speak with the trainees concerned and understood their

[203]Dr Cunnington had been involved in the management of the concerns about the claimant and having had a standard setting discussion with her. Given his position, he had a regulatory obligation to take steps to create an environment in which people could talk about concerns safely and would be protected from further potential harm. This required him to ensure any concerns were dealt with promptly and adequately.

[204]For the avoidance of any doubt whatsoever, the tribunal does not find that any of the respondents at any time encourage junior members of staff to complain about the claimant at all or in the way that she alleges. While this allegation is made as a discrete detriment alleged by the claimant, it is not an allegation was substantiated by any evidence other than that comes from the claimant and in the absence of corroborating evidence, and in line with the tribunal’s concerns with regards to the accuracy, reliability and at times voracity of the claimant, it is not an allegation which the tribunal makes the balance of probabilities. Initiatives to try and reduce the waiting lists in September and October 2022

[208]By the Autumn of 2022, there were pressures in the Dental department. The Claimant had been the only Paediatric Dental Consultant since late 2021, and there were long waiting lists. As the tribunal has found, these issues were being discussed locally within Dental and more widely.

[209]In the Paediatric Dental meeting on 8 September 2022 attended by Ms SahiKenny, Dr Abomeli, Dr Yussuf, Katie Hill (Clinical Nurse Specialist) and Gavin McMahon (Admissions Dental/Max/Fax) but in the absence of the claimant who was on leave at the time, a number of ideas were proposed at this meeting such as the opening up of a clinic on a Saturday and seeking to ensure that all clinics were at full capacity as there was a concern that some clinics had been empty or not fully utilised. It was discussed whether it was possible for some juniors/trainees to see new patients at the same time the Claimant was seeing patients. Recruitment of additional Paediatric Dental Consultants was also raised.

[210]Whilst the Claimant was away, some parents had relayed to Ms McKay that their children were in pain. Clearly troubled by this, Ms McKay had attempted to contact the Claimant to discuss these urgent patients whilst she was away, but the claimant had responded that she could not deal with it at that moment, and they would need to discuss it when the Claimant got back. In the interim, Ms McKay she raised the issue with Ms Sahi-Kenny and some of the junior dentists who were generally understood to be unemployed in the claimant’s absence.

[211]Additionally, Ms McKay, in good faith, spent time looking into the issues facing the department and formulated a plan that she shared with Dr Abomeli and Ms Sahi-Kenny by email on 20 September 2022. The email is short and punctuated by bullet points for each idea or stage. The tribunal finds that this was done solely with a view to easing pressures in the department. The email ended with the words, ‘Not sure how much of these are possible or if any are. Just trying to think of ways to lessen the strain on Dental, be transparent with referrers and patients and manage their expectations on seeing dental a bit better. I’m really sorry if I am overstepping my role, I just really want to get Dental in a good position which will help take some of the strain off all of us. Also I wasn’t sure who else to send my ideas to.’

[212]The tribunal considers that the claimant’s contention that the purpose behind he email was malevolent as suggested by the claimant in crossexamination is misconceived. The claimant asserted that the purpose behind Ms McKay’s email was as an act of retaliation for the Claimant mentioning her workload during the 8 September 2022 meeting, and that she had deliberately waited for the Claimant to go on leave so as to ‘overbook’ the clinics whilst she was away. the tribunal rejects the suggestion that Ms McKay was seeking to develop an unsafe process as absurd. It is clear that Ms McKay’s suggestions were the actions of someone who placed patient care and safety first.

[213]Dr Abomeli thanked Ms McKay for her work, acknowledged that ‘that you and the Team are bearing the strain on this issue. I wholeheartedly agree that the current situation is unsafe.’ The Tribunal will, no doubt, have noted that Dr Abomeli openly raised her concerns about the safety of the service, and has not been subjected to any detriments as a result and anticipated that both the Claimant and Mr Critchlow would offer further guidance on these proposals for the team.

[214]On 4 October 2022, Ms McKay confirmed to Ms Sahi-Kenny that Dr Bani Hani had gone through her new timetable, which had been approved by the Claimant, and that Dr Bani Hani had indicated that she could see 5 patients per morning. Ms McKay proposed starting this from 13 October 2022 .

[215]The tribunal notes that there is a significant difference of opinion between the partes as to the meaning of overbooking. The tribunal understands the claimant’s case to be that it means in this context that the clinics were booked with a number of appointments exceeding the capacity of the clinics or that the clinics were overbooked when appointments referred to the junior doctors that she was tasked with supervising. Ms Sahi-Kenny’s evidence was that overbooking was not possible in the way that the claimant alleged because patients could only be booked into the timetable or template for the clinic that the Claimant had already approved as safe. The tribunal finding on this point aligns with Ms Sahi-Kenny’s evidence but subject to the finding that it was a matter for the claimant to agree to as she was supervising the clinics. In this regard, the tribunal marks its regret at this all happening in the claimant’s absence and no doubt served to aggravate her perceived sense of grievance against the first respondent. The tribunal makes no comment as to whether the claimant’s grievance was reasonably held or otherwise. October 2022 emails (Issue 10(f))

[216]On 4 October 2022 Ms McKay sent an email to Dr Bani Hani, Ms Sahi-Kenny and Rebecca Bernstein (‘Dr Bernstein‘) setting out the proposed course of action. Ms Sahi-Kenny sent a message of thanks and copied in Ms Baptiste, Mr Jephson. Dr Abomeli and Mr Critchlow. She remarked that the meeting on 4 October 2022 had been, ‘very productive and I think we all came away from it feeling hopeful, optimistic and with a sense of achievement. At the end of the day our main goal is to make sure patients are taken care of, and we are running a department that functions. I’m copying in our senior managers so they’re aware of our plan....thank you all so much for being so willing and enthusiastic.’ The tribunal finds that these words reflected Ms Sahi-Kenny's genuinely held beliefs; she was not seeking to punish the claimant for being a whistleblower.

[217]Mr Jephson responded later that morning, replying all, saying, ‘well done and thank you to all.’ Mr Critchlow then replied on 6 October 2022 saying, ‘excellent, well done.’ These were the comments of senior managers in the department, seeking to send supportive messages to junior administrative staff who had had the initiative to try and come up with strategies to help the department and its patients. The tribunal expressly rejects the assertion that this was intimidating or an act of abuse as alleged. Nor does the tribunal find that Mr Critchlow exclude the claimant from the correspondence although it is regrettable that it occurred while she was on leave.

[218]The tribunal notes that Ms Sahi-Kenny and Ms McKay discussed what they anticipated the Claimant’s reaction would be once she returned about new patients being booked with Dr Bani Hani, clearly anticipating this to be averse to the changes proposed. However, the tribunal finds this to have been a reasonable concern based on what their collective knowledge and experience of the claimant was. Specifically, both were aware that the claimant had been excluded from the planning and that perhaps understandably this is something that she would not be happy about, particularly so in light of what they knew of the claimant. 11 October 2022 (Issue 6(h)) 11th October 2022 – verbal concerns to Anjuna Sahi-Kenny that upon return from leave she was told that she needed to see 6 extra new patients on top of her already excessive workload which exacerbated unsafe conditions.

[219]At para.172 of her statement the claimant says: “172. On 11th October 2022, upon my return from annual leave, Fiona McKay said to me as I walked into the department “shall I tell you now or later? You won’t like it”. I asked her “what happened, is everything ok?” She then then told me about the 6 extra patients booked on in on my Thursday new patient clinic, and at this point I said that “I can’t see this many safely. I’m running multiple parallel clinics”. I was told “Anjuna authorised this and she will come see you” [1009-1015] [6(h) List of Issues].”

[220]And at paragraph 75: “175. Anjuna Sahi-Kenny and Fiona McKay on the 11th October 2022, then came to my office to inform me that my Thursday morning clinical session was overbooked by 6 extra complex cardiac patients. This is essentially a full extra clinic and it is unsafe to see all these patients, in addition to 3 other clinics that were already booked including EB. I was very surprised by this, as it is an extra-ordinary level of unsafe overbooking. I raised safety concerns about the overbooking and asked for the overbooking to be cancelled going forward as this is an unsafe practice. This conversation was in presence of Becky Bernstein and Alaa Bin-Hani and documented on the day [1009-1015]. [10(c) List of Issues]”

[221]On 11 October 2022, the Claimant returned from annual leave and made clear that she was unhappy about the proposals. On Tuesday 11 October 2022, the Claimant sent an email asking for the team meeting on Thursday 13 October 2022 to start on time at 9:20am because, ‘we have overbooked clinics and we need to go through some urgent queries.’. The tribunal finds that the clinics were not overbooked in the in the sense that there were more patients that slots. The tribunal also accepts that the claimant was of the view that the number of new patients booked for Dr Bani Hani was more than she felt that Dr Bani Hani could be supervised to see, however it was only later that day, that the claimant said to Ms Sahi-Kenny and Ms McKay that six patients was too many for Dr Hani Bani to see and that she could only see four.

[222]The tribunal notes that during a subsequent meeting which also took place on 11 October 2022 the Claimant told Dr Bani Hani to tell Ms Sahi-Kenny and Ms McKay that six patients was too many. As Ms Sahi-Kenny observed, ‘Dr Bani-Hani was usually very confident, but during this discussion her eyes welled up with tears and her voice was quivering when she said that six was too many, so maybe we should proceed with five patients. The Claimant abruptly responded to say “no four’ and then practically shouted “you can’t even see four, you can see three.” I thought this interaction was frightening, and I did not consider it appropriate that the Claimant had belittled Dr Bani Hani in front of us in this manner.’. The tribunal accepts Ms Sahi-Kenny’s account of what she saw as being truthful and accurate.

[223]The claimant alleges that she made a protected disclosure on 11 October 2022 in that she raised verbal concerns to Ms Sahi-Kenny that, ‘upon return from leave she was told by Ms Sahi-Kenny that she needed to see 6 extra new patients on top of her already excessive workload on 13 October 2022, which exacerbated unsafe conditions, and without her approval.’ The respondent disputes that this happened at all. It is the tribunal’s finding that in the absence of evidence from Ms McKay, it is essentially an assessment of the evidence of the claimant and Ms Sahi-Kenny. The tribunal’s finding is that on the balance of probabilities, the allegation is not made out. The claimant’s notes are of no assistance here because of the tribunal’s earlier finding on the reliability and credibility of the notes in totality. The notes of this exchange appear to be manufactured with the aim of reinforcing the allegation that she makes here. It is also noted that these notes were provided for the first time in May 2023 to support her whistleblowing grievance and utilised to support her allegation that she has been targeted for raising concerns. It is also noted that the Claimant did not disclose the handwritten notes in this litigation until 22 November 2024 almost a year after the initial disclosure deadline for reasons that are unclear to the tribunal. In cross-examination the Claimant suggested this was because she had ‘forgotten’ about them, which does not find to be a credible reason or the real reason.

[224]It is more likely in the tribunal’s finding to have been because the notes have been written in response to the allegation subsequently put to her as part of the MHPS process that she had submitted a feedback form in circumstances where she had not attended the whole of the relevant session. The use of the phrase ‘protected teaching session’ in the notes is particularly notable. However, the Claimant was only made aware of this allegation on 3 November 2022, weeks after these notes were allegedly contemporaneously written (the Respondents were not even aware of it until much later in October), and the notes record the initial explanation given by the Claimant in response (before she changed her position some months later at the MHPS hearing to rather unconvincingly claim the feedback form was a forgery).

[225]It is also the case that later allegedly contemporaneous notes contain allegations so serious that had they been made by her, the Claimant would have been in breach of her duties as a regulated individual, not to have raised these either as a Datix or more formally, for example the notes where the Claimant alleges she said ‘this is reaching extra ordinary unsafe levels’.) Within this context it is noted that the Claimant was happy to raise a Datix form about the incident with Mr Critchlow in January 2023 which, on the face of it, seemed to demonstrate less obvious patient safety concerns.

[226]Given the above, the tribunal agrees with the respondent that it is unable to place any reliance on these notes, and prefers the evidence of the Respondents’ witnesses as to what was said in these meetings.

[227]For the sake of completeness, the tribunal considers that the detriments that arise from this disclosure would not have been proven in any event; in respect of the first where the claimant says that she was pulled out of an overbooked clinic is not founded on the basis that the tribunal does not find on the facts that the claimant pulled out of a clinic at the time alleged, rather, she was attending a meeting in a way that is consistent with custom and practice at the hospital. Second, the claimant alleges the claimant relies on disclosures which predate the detriment (10(f)) that predate the disclosure and therefore would have failed for this reason. 13 October 2022 (Issue 10(f)) 10(f) 4th October 2022 - intimidating, undermining and abusing the Claimant by authorising the unsafe overbookings of her clinics and excluding her from email communications during a period of leave.

[228]The tribunal has already found that the claimant did not make protected disclosures on 3 and 4 August 2022 to Dr Abomeli and Mr Cunnington. The tribunal has also found that the plan formulated by Ms McKay was essentially the act of a diligent, sensible employee acting reasonably and responsibly as were the actions whom she interacted with in the claimant’s absence. It follows that the tribunal does not accept the claimant’s contention that she suffered a detriment of being excluded from the new clinic plan and by having to ‘deal with the reality of the plan’. It follows that even if the claimant were able to show that the she did make the protected disclosures that she relies upon, this allegation would have failed. In the tribunal’s view, the claimant has also failed to show how the acts she complains of are connected to the disclosures that she relies upon. 18 October 2022 alleged disclosure (Issue 6(i)) 6(i) 18th October 2022 – verbal complaints to Fiona McKay relating to treatment being given to a patient during an admin session with no consultant supervision.

[229]At para.193 of her witness statement the claimant says: “On the 18th October 2022, Alaa Bin-Hani contacted me on my non-working day to raise safety concerns to me and was being distressed that a treatment clinic was opened in her admin session without authorisation and with no consultant cover [1050-1051]. As Alaa’s educational supervisor I came in to GOSH to support Alaa and provide consultant cover as she needed my supervision with one of the patients (I was not paid or given extra leave for covering this at short notice, despite it being necessary for patient safety). I spoke to Fiona McKay on the day to express my concern this is unsafe practice and that she is fully aware that the trainees should not be treating patients without consultant and it’s a non-working day for me that’s why Alaa has an admin session in her timetable, which she has a copy of. I highlighted that one of these patients is complex, so Alaa will need my help and stressed that any extra clinics for trainees should not be opened outside agreed timetables, and this requires my approval as the educational supervisor for the trainees and supervising consultant to ensure there are no patient safety concerns [6(i) List of Issues].”

[230]The Claimant relies on an alleged disclosure which she said she made to Ms McKay relating to treatment being given to a patient during an administrative session with no Consultant supervision. The Claimant relies on her notes as support for her contention that the interaction alleged occurred. According to the notes, the Claimant queried why the clinic was open, in response to which Ms McKay is recorded as saying that, ‘she only does what she is told; blamed Alaa saying she authorised it; she was surprised as she knew this was an admin session and a non-working day for [the Claimant].’

[231]The tribunal cannot accept that the notes are an accurate account of what was said and therefore they are disregarded for the tribunal’s consideration here.

[232]In the tribunal’s view, the claimant did not disclose to Ms McKay information which in the reasonable belief of the Claimant tended to show that the health and safety of any individual had been, is being, or is likely to be endangered. Her evidence as set above does not specify what form of words were used to alert Ms McKay to the claimant’s fears. The claimant’s notes do not assist at all. The allegation is vague and generalised. It is the tribunal’s finding that the disclosure said to have occurred is unidentifiable on the facts and therefore must fail to proven. 27 October 2022 alleged disclosure (Issue 6(j) 6(j) 27th October 2022 – verbal complaint (compendiously noted) to Simon Critchlow regarding unsafe patient practice where a junior had been pressured to go to theatre to extract 14 teeth in total for a very highrisk bleeding patient without consultant supervision. 98. At paragraph 201 of her witness statement the claimant says the following: “201. The day before (27th October 2022) I made a verbal complaint (compendiously noted [1092- 1094]) to Simon Critchlow regarding unsafe patient practice where a junior (Becky Bernstein) had been pressured to go to theatre to extract 14 teeth in total for a very high risk bleeding patient without consultant supervision. Simon Critchlow had sent an email on 21st October 2022 saying that he would not be available to cover the joint GA with ENT on a Monday 21st November 2022 for this multiple extractions (14 teeth) high- risk bleeding patient (factor XI deficiency) case. He suggested “one of the Paeds Dentistry juniors may be able to be involved instead” [2530]. [6(j) List of Issues] Simon Critchlow knew there was no Paediatric Dental Consultant cover or Maxfax consultant cover. This is a serious patient safety risk. Becky was extremely concerned and reported this to me as her educational supervisor. I was shocked that this had occurred, especially as I had recently raised concern before and recently with Chris Jephson on 13th October 2022 that it was unsafe for trainees for go into theatre unsupervised. Simon said that she needs to be more confident as a dentist and I pushed back, as the educational supervisor, that this is inappropriate and unsafe, and it’s against the usual practice since my appointment in 2014, highlighting that we can’t compromise on standards because we are short staffed. Simon then agreed for this patient to be re-arranged for the 23rd January 2023 for which Simon cancelled his clinic to accommodate this ad hoc GA. This stands in contrast to his expectation that I repeatedly accommodate these types of cases at the same time as a full, or often overbooked clinic. I also raised with him other trainees’ complaints and complained again that: “I feel this is reaching extraordinary unsafe levels with overbookings and doubling up on activities. I requested that the consultant advert goes out ASAP”. I also informed Simon that “I have been chasing Anjuna and on 13th October 22 (in front of Chris and Doris) she said there was an issue and would not tell me what it was. I asked Simon to chase this and resolve the issue. Simon emailed Anjuna in my presence for an update.” [1101-1102, 1094]”.

[233]The background to this alleged disclosure relates to a patient of the Claimant who needed to be booked onto an operating list on a Monday as it was a joint procedure with another department. The Claimant was not available to deal with the patient and asked Mr Critchlow to cover and look after the patient, which he agreed to do as it was important the patient was seen that day. Mr Critchlow approached Dr Bernstein to ask if she wanted to be involved in the extraction. He did so to offer her the opportunity to undertake the procedure as part of her development. She initially indicated she wanted to be involved, but later decided not to which Mr Critchlow accepted and as far as he was concerned, that was the end of discussion. It had always been Mr Critchlow’s intention to be present as clinical supervisor in theatre. He did not intend for Dr Bernstein to be undertaking the extraction alone and without supervision.

[234]Subsequently, Dr Bernstein approached the Claimant and advised that she would not feel comfortable undertaking the work. The Claimant brought this to Mr Critchlow’s attention during a discussion on 27 October 2022. Mr Critchlow accepts that he might not have been clear enough to Dr Bernstein that she would not be undertaking the procedure on her own. The claimant asserts in the absence of supporting evidence that this caused Dr Bernstein.

[235]There is a dispute between the parties as to the nature of their interactions. The respondents, through Mr Critchlow assert that the notes produced by the claimant are inaccurate as far as the they record her interactions with Mr Critchlow are concerned. Furthermore, he disputes that the claimant use the phrase, ‘extraordinary unsafe levels’ nor did she make any other references to safety. Further, it is disputed that claimant told Mr Critchlow that trainees should not go to theatre unsupervised and that this was ‘inappropriate and unsafe’ or that Mr Critchlow did say that juniors operating unsupervised had been the usual practice since 2014, as it had never been usual practice or that the claimant told Mr Critchlow that her workload was unsustainable.

[236]The tribunal in weighing up the evidence the tribunal has regard to the evidence available which amounts to the accounts of the parties and the claimant’s notes of what was said. The notes are representative of the tribunal’s concerns around what the purpose was behind the preparation of the notes. They are devoid of any interaction and consist of a series of points that the claimant claims to have said to Mr Critchlow with none of his responses recorded in any detail. Further, the notes are consistent with the tribunal’s finding that the notes were not at all contemporaneous but instead prepared from other purpose as they appear totally devoted to setting out the claimant’s case to be made within her grievance for example. Accordingly, the notes are not considered an accurate or reliable record of the discussions with Mr Critchlow.

[237]It follows that when weighing up the evidence presented by both witnesses it is the tribunal’s findings that it is not able to determine which of the witnesses is correct in their recollection of what was said and happened and, accordingly, this allegation must fail on the balance of probabilities to be proven 4 November 2022 protected disclosure (Issue 6k) 6(k) 4th November 2022 – verbal (minuted) patient safety concerns to Simon Critchlow due to overbooking of the clinics in a consultant meeting, trainees complaints and delays in recruitment.

[238]The claimant says at paragraph 296 of her statement: “205. On 4th November 2022 I raised further verbal (minuted [1113- 1134]) patient safety concerns to Simon Critchlow due to overbooking of the clinics in a consultant meeting, as well as the trainees complaints and delays in recruitment. No explanation was given for the delays in recruitment especially that we had an “interested candidate waiting for job advert” and all the consultants who attended (Suhaym Mubeen, Brijesh Patel, Norman Hay, Priya Haria, Nadeem Saeed, Caroline Mills and Michael Millwaters) were concerned and said that this situation was unsustainable, could not carry on and they offered their support to me to speak directly to senior management regarding the urgency of the situation. Simon Critchlow then stated that he would ‘chase this up’ with Anjuna Sahi- Kenny. [6(k) List of Issues]”.

[239]From the minutes, the clamant relies on the following extract as evidence of what was discussed: “Paediatric Clinic Overbooking and admin overload• Overbooking of clinics without agreement of responsible consultant

• Trainee complaint.

• GAA feels this is unsafe

• Reflection of service provision in Paediatric Dentistry

• Admin issues on risk register

• Consensus view of consultant team - overbooking of clinics or additional clinics requires agreement of responsible consultant and junior team should not be approached directly by management/ admin for additional service provision. . .”

[240]A Consultant Meeting took place on 4 November 2022 at which the booking of clinics was discussed. This was a routine discussion amongst Consultants, where it was appropriate to raise the challenges and issues they faced in their practice, and which needed to be addressed. During the meeting, the Claimant raised concerns about what she perceived to be the ‘overbooking’ of clinics and trainee complaints. The notes of the meeting record that the Claimant felt the situation was unsafe.

[241]The respondents accept that this disclosure was a protected disclosure. However, in submission on their behalf the following is said: “the Claimant was not subjected to any detriments (whether the express detriments pleaded or any other detriments) on grounds that she raised these concerns at the meeting. To the contrary the meeting notes demonstrate the conclusion of the discussion was to agree with the Claimant and make clear that it was for the consultant in a team to make the decision on patients to be seen in their lists.”

[242]The tribunal agrees with the respondent that the claimant suffered detriments as a consequence of what was said at this meeting. In fact, the tribunal finds that the discussions reflect the very purpose of the meeting which was to discuss issues arising of the nature discussed. Further, the issues had been something that the respondents had been aware of for some time. The other matters discussed, namely ‘reflection of service provision’, ‘admin issues re risk register’ and ‘the consensus view of consultant team’ are, in the tribunal’s finding matters it finds to be discussion akin to the ordinary course of business for such a meeting and not disclosures that could be considered to be protected. 8 and 10 November 2022 alleged disclosures (Issue 6(l) 6(l) 8th and 10th November 2022 – verbal (minuted) patient safety concerns, clinical risks and well being concerns. Raised verbally to Doris Abomeli;

[243]The claimant says in her witness statement the following: “207. On 8th and 10th November 2022, I raised concerns verbally (minuted [1212-1214 and 1176- 1177]) about patient safety concerns, clinical risks and well being concerns to Doris Abomeli. I gave recent examples to highlight the dangerous situation in the paediatric dental service, as I was very worried that something bad was going to happen if no urgent help is provided. I demonstrated that by losing 45 new patient slots per month for 5 months (after the capacity cut) we are now booked until next October 2023 (1 year in advance). I told Doris that I was drowning and the only way to reduce the pressure is to urgently request to close the external referrals until we get additional paediatric dental consultant support. This was echoed by Katie Hill, specialist nurse specialist who triages the referrals with me. This is also highlighted in Fiona’s FTSU statement [ 7269-4th row]. I have explained that this was a previous measure carried out by Liz Jackson (previous divisional director) on multiple occasions over the years when we were short staffed and had a capacity issue (consultant colleagues on long- term absences). Doris understood the gravity of the situation and was going to speak to Chris Jephson and update us. This was also formally minuted as an action point for her “To consider closing external referrals” However, Doris denied knowledge of this request when asked during the FTSU investigation, contrary to the minutes of the meeting with her “Closing external referrals didn’t come to DA’s attention until GAA went off sick” [7131- 3rd row] and “DA was not aware until GAA had left. However, closing external referrals requires approval from NHSE it is not something the Trust can decide upon. Not aware of the details” [7130- 9th row ] but Doris does confirm the importance of my request “DA told the investigator that there was a backlog of patients and that this was not easy to address without closing referrals which could not be done without permission from NHSE.” [7140- 3rd row point c] [6(l) List of Issues].”

[244]The only witness the respondents can rely upon to rebut the claimant’s allegation here is Dr Abomeli. Dr Abomeli could not recall a lot of the details of the meetings, she said in oral evidence that the Claimant had raised the matters listed in the minutes of the 8 and 10 November 2022 meetings and that the trainees discussed their concerns in these meetings.

[245]Mr Allen KC on behalf of the claimant is very critical of Dr Abomeli’s evidence. Essentially, it is said that what Dr Abomeli says is an entirely unreliable. The tribunal has already assessed and described its view of the quality of Dr Abomeli’s evidence. In light of the evidence given by Dr Abomeli’s during the hearing, the respondents accept that the Claimant did raise protected disclosures in these meetings with the caveat that these were matters being widely discussed at the time and she was not subjected to a detriment for raising any of them.

[246]The tribunal reaches a different view and finding. It is the tribunal’s finding that what the claimant said to Dr Abu Millie was not disclosure. The tribunal would have been more convinced that it was if there was a more detailed example of a problem provided by the claimant to Dr Abbott merely rather than a general expression of systemic, departmental malaise, symptomatic of the persistent and prolonged period of time that the claimant was the loan consultant within the dental department, and one working part-time. It is the tribunal’s view that the conversations relied upon our examples of the discussions that happen every day within hospitals up and down the country is the tribunal’s finding in this instance that the claimant was merely setting out information in the absence of a reasonable belief that they highlighted health and safety issues.

[247]While the claimant references the word ‘unsafe’ it is said as an aside and in any event, it is the tribunal’s finding that the obvious consequence of an employee working beyond contracted hours, at a level where they are perhaps tired may mean from time to time that they may be considered to be working in an unsafe way. However, the generality of this observation underlines the way in which this allegation is posited in that it fails to articulate a specific example of unsafe practice; rather it exemplifies a potential risk which, by virtue of its setting, means that potential health and safety of patients is at risk. However, the tribunal finds that it would be generous to apply the gloss to this allegation that the claimant seeks to do now.

[248]Moreover, it is clear that other issues promoted in this email include a highlighted request from the claim that the. This reference, taken together with the others, reflects the tribunal’s finding that the claimant did not reasonably believe that she was raising health and safety issues rather that she was ventilating issues previously discussed and as recently discussed at the consultant meeting which were of personal concern to her as opposed to anyone else.

[249]Further, the tribunal considered whether the claimant has conveyed facts sufficient to amount to a protected disclosure and considered the cases of Cavendish and Kilraine. The tribunal finds that the allegation is too narrow in its terms and lacking specificity or detail. Tribunal finds that the claimant has conveyed no fax which in its view amounts to a disclosure within this setting. In her witness statement at paragraph 207, the claimant says that she conveyed this information by example only but the tribunal notes that the claimant has not included these examples in her minutes of the meeting and consequently, tribunal is unable to find that the claimant conveyed facts at of a sufficient level of detail to amount to a qualifying disclosure. Accordingly, this allegation fails to be proven to be a protected disclosure. Further complaints concerning the Claimant's conduct and the decision to commence an MHPS investigation

[250]Further concerns were raised about the Claimant’s conduct in the period after the standard setting meeting which had taken place in August 2022. On 24 October 2022, the FTSU Guardian informed Dr Cunnington and Ms Taylor that an individual had come forward in the preceding week with concerns about the Claimant. They did not want their identity shared as they feared it would impact on their future career at the first respondent if they did.

[251]The email contained concerns about incidents that had occurred on 11 and 13 October 2022. The incident on 11 October 2022 related to an allegation arising out of a teaching session that day in respect of which it was suggested that the claimant had prevented 3 members of staff from attending the departmental protected teaching session by holding a meeting in her office and then signed the attendance sheet despite not having attended the training. The allegations concerning 13 October 2022 related to a suggestion that the claimant had deliberately delayed the start of the clinics by having a meeting with the junior doctors in order to make a point about too many patients being booked onto clinics and that she had deliberately decided to let the junior doctors fail during the day to prove this. Other concerns included reports of the claimant being passive aggressive, making people around her feel on edge, humiliating staff, causing people to want to leave the first respondent because of her behaviour, causing junior colleagues in the administration team to be in floods of tears because of the way she had treated them and manipulating the situation to suit herself.

[252]The complaint ended with the following passage, ‘It feels like despite the best efforts of a number of people to effect change (including yourself) the unacceptable behaviour has not improved one bit. It feels like those that can effect change are unwilling to. Does this department really have to witness another round (their contract generally starts in September and they are with us for a year, sometimes two) of skilled and dedicated dentists, and hardworking admin staff, all good people, be destroyed emotionally, lose all their confidence and be desperate to leave.’

[253]Dr Cunnington was understandably very concerned to hear these reports. Whilst the complaints had yet to be investigated, he could not ignore what he described as the, ‘on-going litany of complaints against the Claimant.’ Dr Cunnington replied to the FTSU Guardian shortly after receiving this email.

[254]On 25 October 2022, Dr Cunnington received further information about the probity allegation regarding completion of the feedback form during the protected teaching session. He had also received advice from NHS Resolution Practitioner Performance Advice (‘PPA‘) [1090-1] regarding the further matters which had been raised.

[255]By this point, it was the end of October 2022 and close to the end of the three-month standard setting period. Dr Cunnington had told the claimant during the standard setting process in August 2022, that he would review the impact of the standard setting before determining next steps. Prior to the claimant raising her first alleged disclosure in June 2022, it had already been determined that if the standard setting process proved ineffective, it would be necessary to progress to a more formal process. The allegations raised to Dr Cunnington in October 2022 meant that he could not say there had been meaningful improvement as they represented a breach of one or more of the required behavioural standards outlined to the claimant both orally and in writing in August 2022.

[256]Dr Cunnington raised these issues in the Medical ER Group Meeting on 24 October 2022 with Professor Sharma and Ms Taylor and reasons for this were provided to the tribunal by Ms Taylor. The attendees discussed the issues raised in respect of the claimant. there was consensus that the claimant’s conduct required intervention as they were considered to be serious. The tribunal finds that these were the factors which motivated Dr Cunnington’s actions, and not any protected disclosures the Claimant may or may not have made. 257. 135. On 1 November 2022, Dr Cunnington invited the Claimant to a review meeting. He told the claimant that ‘….In addition, I have had some additional concerns passed on to me which I wish to explore further with you. As always you may be accompanied by a friend or colleague to support you’. 3 November 2022 Meeting (Issue 6(m)) (m) 3rd and 23rd November 2022 - verbal complaints to Phil Cunnington that 6workload was unsustainable, this was unsafe practice placing patients’ health and safety in danger.

[258]The claimant says at paragraphs 209 - 213 of her witness statement the following: “209. On 3rd and 23rd November 2022, I was called into a preinvestigation meeting with Phil Cunnington during which he stated it was to discuss “two issues that raised concerns regarding your probity and further concerns regarding your behaviour towards other staff.” [10(h) List of Issues].210. When I raised it as a concern to Phil Cunnington during the MHPS hearing (5th February 2024) he said the probity allegation was an “oversight” and no one was accusing me of changing a trainee’s feedback [4688-4691]. However, this allegation was changed multiple times (e.g. altering trainees feedback; then changed to undertaking a parallel teaching session; then changed to doing a service meeting parallel to teaching and finally centered on submitting feedback form and CPD). Ultimately this allegation was not upheld on the basis of falsified evidence having been submitted by Phil Cunnington in the form of a feedback form that is not in my handwriting. [4698- last 3 paragraphs and 4699].

211. The mandatory allegation changed from infection control (June 2022) to safeguarding (October 2021) “At the pre-investigation meeting with Phil, he stated that the allegation was Infection Control training not safeguarding. When he told me, I looked at the evidence online and I knew I had done nothing and stated to Phil there would be no evidence to back it up. I ex-pressed concerns regarding the timing of the allegation.” This allegation was unfounded. [Allegation 7 page 2301- 2303].

212. In addition, a third probity allegation had been initially presented about my appraisal [2938], but this was dropped and was excluded from the final report as it was also baseless [1782-2208]. When I asked Phil Cunnington at the MHPS hearing (5th February 2024) what had changed his mind to proceed with a conduct hearing after he was considering managing it informally, based on the NHSR letter (dated 10th March 2023 [2209-2210]), given that he had already seen the final report, Phil Cunnington confirmed it was the probity allegations [4687-4690] - which were all baseless. I had not seen the NHSR reports throughout this time as despite NHSR encouraging Phil Cunnington to share these with me, he decided to withhold them from me, and I only received them all in June 2023.

213. I felt these were pre-formulated and unfounded probity allegations of misconduct which lacked specificity and a defined timeline. I made verbal complaints to Phil Cunnington in November 2022 that the workload in the department was unsustainable, it was unsafe for patients and putting their health and safety in danger during the pre-investigation meeting and I informed him that I have recently met with Doris Abomeli and demonstrated recent examples to highlight how dangerous the situation is becoming; the impact of losing 45 new patient slots per month for 5 months; and that I need immediate help. I urged him to speak to Doris to see the extent of the safety issues. I also informed him that admin are still not following the SOPs causing further mis-communications and additional pressures on the clinical team affecting their work life balance and causing increased clinical risk for patients. [6(m) List of Issues] Phil has stated: “I agreed that I would speak with DA and that you would send me the minutes of the meeting and documents containing the SOPs so that I could see them.” [1217-1218]”.

[259]The meeting took place on 3 November 2022. The claimant chose not to be accompanied. In his notes of the meeting which the tribunal accept as accurate and correct and his witness statement which the tribunal accepts in the same way on this issue, it sets out that it was explained to the claimant that Dr Cunnington would undertake assessment including fact finding meetings with the complainant staff who had raised concerns to decide whether the suggested concerns were of such that they should merit a more formal investigation. The tribunal finds that this is the reason for his actions subsequently were solely related to the decision of the Medical ER Group meeting that had taken place 24 October 2022 to move matters forward with the claimant. the decision in this regard the tribunal finds to have been entirely reasonable.

[260]The claimant alleges she made verbal complaints to Dr Cunnington during this meeting that her workload was unsustainable and that this was an unsafe practice which placed patients’ health and safety in danger.

[261]Dr Cunnington summarises what he says was discussed with the claimant in the following way: 262. “83. At this meeting, the Claimant outlined a number of challenges she was facing:83.1 Whilst she was on leave, the capacity of her clinics had been increased which she felt putting additional pressure on her. The Claimant suggested this has been instigated and supported by Mr Critchlow.

83.2 The Claimant was concerned that trainees were taking on extra work in clinics which was inappropriate – she was best judge of their clinical capability.

83.3 The Leadership team within the Directorate had taken the decision not to carry on with the WLI and this would have an inevitable increase in waiting times. The Claimant flagged that she was still waiting for payments for this WLI work from April 2022 and that this was a source of signiﬁcant frustration for her. She had made it clear she would not be doing any further work outside her job plan until the WLI payments had been made.

83.4 The ongoing delays with recruiting a Consultant, which the Claimant felt was the fault of Mr Critchlow.

83.5 The Claimant also suggested to me that increasing the number of patients to be seen in clinics and for trainees to be asked to take on additional work was not safe and that it might be necessary to consider a move to closing referrals to the department for a period of time. As a Consultant in a specialist service area, I would expect that the Claimant to be aware of how the service was commissioned. The reality was the Trust could not simply stop new referrals without permission from NHS England. I was not involved in any discussions surrounding NHS England permissions though as responsibility for making any such requests would sit within the directorate. 84. I understand the Claimant suggests that in the meeting she made a protected disclosure, namely that she told me her work was unsustainable, which was unsafe practice placing patients health and safety in danger. I do not recall the Claimant using those speciﬁc words and this is not reflected in my meeting notes. However, as outlined above, she did raise concerns with me about the challenges the department were facing and I was aware that she was the only Paediatric Dental Consultant so her workload would be high. “ 263. the tribunal accepts the evidence of Dr Cunnington which is supported by his own notes and his oral evidence. While he accepts that the claimant raised concerns about the challenges the department was facing, the claimant did not refer to ‘unsafe practices’ nor did she say anything which, properly understood, could be deemed to be a disclosure of information tending to show that the health and safety of any individual had been, was being, or was likely to be endangered. Accordingly, the tribunal finds this allegation to be not proven. The minutes of the meeting demonstrate what was discussed and they were to address the concerns raised about the claimant including those that concerned the FTSU Guardian.

[264]Initial Fact Find and the decision to call the Claimant to a pre-investigation meeting on 23 November 2022 (Issues 6(m 10(h)) 10(h) 23rd November 2022 – being called into a pre-investigation in relation to preformulated and unfounded allegations of misconduct which lacked specificity and a defined timeline.

[265]The claimant says at paragraph 209 of her witness statement the following:

[266]“209. On 3rd and 23rd November 2022, I was called into a pre-investigation meeting with Phil Cunnington during which he stated it was to discuss “two issues that raised concerns regarding your probity and further concerns regarding your behaviour towards other staff.” [10(h) List of Issues]”.

[267]By reason of the claimant’s failure to establish that she made a protected disclosure at the 3 November 2022 meeting this alleged detriment falls away. notwithstanding , it is the tribunal’s view that this allegation would have failed in any event given that it is abundantly clear from the evidence that following the raising of further concerns to the FTSU Guardian it was inevitable that the claimant would be made subject to a further investigation.

[268]Dr Cunnington undertook an initial fact find in order to determine whether the matters raised against the Claimant required formal investigation under the First respondent's MHPS policy. He is criticised by the claimant for the brevity and vagueness of initial fact find, a criticism the tribunal is not prepared to uphold.

[269]Dr Cunnington interviewed Ms McKay on 7 November 2022. Ms McKay attended with Ms Sahi-Kenny as support. Dr Cunnington was aware that Ms McKay had been very upset on 13 October 2022 as he had bumped into her in the communal square adjacent to the hospital that day, where she had been in tears and upset about how she had been treated by the claimant. Ms McKay told Mr Cunnington that she had written her notice to terminate her employment in October 2022 due to the way she had been made to feel by the Claimant, but she did not hand it in as she felt supported by Mr Critchlow who was aware of how upset she was. The concerns raised by Ms McKay included feeling intimidated and scared of the Claimant. Ms McKay also described the Claimant having made inappropriate comments involving Ms McKay’s daughter, as well as describing a trainee as a ‘stupid idiot.’

[270]Dr Cunnington met with Ms Heath on 7 November Ms Heath described the claimant as having a lack of awareness of how her behaviour impacted on others and expressed concern that the claimant had been openly critical of junior staff in front of others. Ms Heath also stated that colleagues did not wish to come to work in the Dental department and work with the Claimant.

[271]Dr Cunnington met with Ms Todd on 14 November 2022 who had requested a face-to-face meeting with him having initially met with the FTSU Guardian. Ms Todd gave a series of examples of problematic and said that for the department to improve, a change in the claimant’s behaviour was needed, in particular for her to demonstrate more respect and kindness and that she did not wish to see any more trainees downtrodden or for their confidence to be reduced. Ms Todd also expressed concern that trainees felt unsafe working with the claimant and that the department’s negative reputation was such that people did not want to work there.

[272]After considering these accounts and consulting Professor Sharma and Ms Taylor the concerns about the claimant were escalated to a more formal footing. Dr Cunnington refers to why this was the case in his statement, ‘there was an alarming consistency in the complaints over time and little recognition by the Claimant of her own behaviours.

[273]On the basis of the evidence presented to him, it was Dr Cunnington’s reasonable belief that there were sufficient examples of inappropriate behaviour displayed by the claimant to warrant further, formal investigation. In addition to the behavioural matters, Dr Cunnington also considered that two probity concerns which had come to light regarding training merited formal investigation given that one alleged the claimant asked a junior colleague to undertake her Infection Control Mandatory Training, and the other alleged that the claimant provided feedback for a departmental teaching session which she was unable to fully participate in as she was conducting a separate parallel meeting at the same time.

[274]The tribunal finds that the decision reached by Mr Cunnington was reasonable and appropriate. He had weighed up the evidence that been gathered and reasonably determined that the threshold for a formal investigation had been met. The tribunal finds that this was a decision entirely unrelated to any protected disclosures raised by the claimant. 23 November 2022 meeting (Issues 6(m) and 10(h)) (see details above)

[275]The claimant was invited to a meeting on 23 November 2022, where she was informed of the decision that had been made to proceed to a formal investigation. The decision to invite the claimant to the meeting and to proceed to a formal investigation had nothing whatsoever to do with any protected disclosures she may or may not have made in the tribunal’s finding.

[276]The tribunal notes that the subsequent MHPS investigation did not uphold the allegations relating to probity and that the claimant points to this as a basis to promote her view that Dr Cunnington was guided by an ulterior purpose in moving the investigation to a formal footing. However, the tribunal finds this not to be the case and notes that it is a sign of a fair and transparent investigation that concludes that on the evidence available that an allegation should not be upheld.

[277]In reaching this finding, the tribunal finds that during the 23 November meeting that no facts were disclosed to the Mr Cunnington that could amount to a disclosure. Again, the claimant does not reliably or cogently identify with the precision the disclosure that she says that she made. The tribunal accepts what Dr Cunnington said about this in evidence. 25 November 2022 interaction in the operating theatre (Issue 10(i)) 10(i) 25th November 2022 – being intimidated and undermined in front of trainees, whilst operating.

[278]At paragraph 222 of her witness statement the claimant says: “222. On 25th November 2022 I was operating on a child in theatre when Chris Jephson (Chief of Service) came into the theatre unannounced and stood silently over my shoulder watching me operate for a long time and then started talking about how bad the referral to treatment (RTT) time was and instructed me not to cancel the last joint case with plastics because he was a long waiter. My hand started shaking and I couldn’t put the rubber dam on. The trainees (David Drysdale and Becky Bernstein) and Jenny Wood (dental nurse) witnessed this; and they all have raised concerns to senior registrar (Alaa Bin-Hani) and other consultants in the department following this. The whole team were very distressed and worried for me. David Drysdale was going to speak up on the day with the anaesthetist, Phil Cunnington (who also happens to be the RO) that this was inappropriate, but we were all scared of the repercussions, and we wanted to raise the issue in a correct way [1285- 1287, 1234, 1243-1244]. [10(i) List of Issues] I believe this detriment occurred in an attempt to silence me after raising serious patient safety concerns against trainees performing treatments on GOSH complex patients with no consultant supervision in the dental chair and under general anaesthesia, as well as treatment planning new patients without consultant supervision, and for escalating trainees complaints to clinical lead (27th October), senior management ( 28th October 2022, 8th and 10th November 2022) and raising it in consultant meeting (4th November 2022). This was on the back of my disclosures on the 11th October and on the 13th October 2022 I told Chris Jephson that he could over rule me as the divisional director, but if I’m pressured to accept the unsafe practices I will be putting it in writing. [6 (h), (j), (k), (l) List of Issues].”

[279]In his witness statement, Mr Jephson says at paragraph 109: “I understand the Claimant has suggested I stood in silence in order to intimidate her and then I talked to her about waiting times and told her she was not to cancel the last patient of the day. While I have no recollection of this discussion, I absolutely would not have told her to not to cancel a patient's booking. It was not for me to interfere on a dental procedure which is not something I have expertise in and in any event, it is my clear view that it is the surgeon on the day that makes the decisions about which patients to treat and how.”

[280]Mr Jephson goes on to explain that he regularly undertakes walkarounds of the kind the claimant experienced to in his words “quietly assess what is happening”.

[281]Before going any further, the tribunal is at pains to make the point that all of the disclosures addressed so far that the claimant seeks to rely upon have been found to be not disclosures. That said, and for the sake of completeness and doubt the tribunal finds this allegation to be not proven . While it might have been the claimant’s perception that she was being targeted the tribunal accepts the plausible evidence of Mr Jephson that he was doing what he has always done. In submissions, the claimant relies on the evidence of Ms Todd and Ms Wood to the MHPS process. However, it can be seen that Ms Todd did not actually witness the incident and was therefore relaying what were the perceptions of others while Ms Wood says, ‘I didn’t think too much of it at the time’ while going on to say that others did. In the tribunal’s view this appears to be the claimant’s perception of what is a routine and everyday interaction for surgical staff of the first respondent. 282. 1 December 2002 Meeting (Issues 6(n) and 10(j) and 2 December 2022 email (Issue 6(o)) 6(n) 1st December 2022 – verbal complaint to Phil Cunnington of unsustainable andunsafe workload which places patients’ health and safety in danger. 6(o) 2nd December 2022 – email to Phil Cunnington and Jane Taylor about regular safely concerns that the clinics were overbooked, pressure to deliver an unsafe practice as a result and asking not to be constantly required to double up on activities. 10(j) 1st December 2022 - the Claimant being told she was being formally investigated in relation to allegations of improper conduct towards staff. 99. The claimant says in her witness statement at paragraph 235: “235. On 1st December 2022 I was informed by Phil Cunnington that I was being formally investigated under the MHPS process in relation to allegations of improper conduct towards staff. At this meeting I made a verbal complaint to Phil Cunnington of unsustainable and unsafe workload which placed patients’ health and safety in danger. [10(j) List of Issues] I told him that the Trust has not supported me regarding the serious safety concerns that I had been raising on a regular basis; my clinics are still being overbooked; I’m being pressured to double up on activities and it’s mirrored in one of the allegations against me; it’s unreasonable to expect me to be doing multiple clinics or operate in theatre while having clinics at the same time. How can I be expected to be doing a craniofacial MDT clinic in another building and still supervise the trainees? This is against my agreed job plan. I highlighted that I need urgent support as well as the trainees and this deteriorating situation is unsafe and can’t continue like this. I was being dismissed again by Phil stating that issues around clinics and bookings should be easy to address within the directorate and with the leadership. [6(n) List of Issues]”.

[283]And at 237 of her witness statement:: “237. On 2nd December 2022 I sent an email to Phil Cunnington and Jane Taylor (HR) about regular safety concerns that the clinics were overbooked, the pressure to deliver an unsafe practice as a result and asking not to be constantly required to double up on activities [5016- 5022]. [6(o) List of Issues] Nothing was done. [10(c) List of Issues]”.

[284]On 23 November 2022, the claimant had asked for the meeting to be stopped so that she could obtain union representation. The meeting reconvened on 1 December 2022. The claimant was supported by Craig McFadyen, her BMA representative. Mr McFayden was not a witness before the tribunal. Dr Cunnington and Ms Taylor were also present.

[285]The Tribunal is reaches a number of findings and does so by preferring the evidence of Dr Cunnington over the claimant’s. Dr Cunnington’s account is corroborated by Ms Taylor in all material respects and the tribunal is satisfied as to the reliability and authenticity of Dr Cunnington’s notes of the meeting. While the claimant criticises the notes for being general in terms and lacking specifics, it is notable from the tribunal’s point of view that the key allegations of having made protected disclosures are absent from his notes.

[286]It is the tribunal’s finding that the claimant was called to the meeting because it was rescheduled so that she could be accompanied by her union representative. At this meeting, the claimant was again asked to meet with Dr Cunnington and the NHSR PPA advisor in order to discuss the merits of a workplace assessment. The claimant was asked to consider it with her BMA representative.

[287]The minutes of the meeting (and the evidence of Dr Cunnington and Ms Taylor) make clear that at no point did the claimant make a verbal complaint of unsustainable and unsafe workload which placed patients’ health and safety in danger during the 1 December 2022 meeting. The notes of this meeting were sent to the claimant on 8 December 2022. The claimant did not seek to correct the record which would have been in accordance with how the claimant, something she was open to doing as evident within the documents before the tribunal. Accordingly, the tribunal finds that the claimant made no disclosures on 1 December 2022.

[288]On 2 December 2022 the claimant sent an email to Dr Cunnington and Ms Taylor. This was in response to Ms Taylor asking the claimant whether she required any support. The claimant did not say in this email that she had raised any concerns at the meeting on 1 December 2022; rather she states that she had been raising safety concerns on a regular basis that the clinics were overbooked, and that she was being pressured to deliver an unsafe practice as a result, ‘Please can I ask you to ensure that I'm not being constantly pressured to double up on activities. The effect of this is mirrored in one of the allegations against me.’ It should be remembered that the overbooking issue had been resolved as far back as October 2022, 72 hours after it had started.

[289]It is the tribunal’s finding that while there was a disclosure by stating that she had been raising safety concerns, the claimant did this in her own and not in the public interest. The tribunal has reached this finding by considering the circumstances of the when the disclosure was made, the wide ranging nature but unspecific nature of the disclosure and finds that this is a set of facts analogous to the ones provided in Cavendish. Where the claimant says “unsafe practices” read “ward is unclean” in that case. It is also of note that both Mr Cunnington and Ms Taylor discuss what the claimant has told them and view her raised concerns reasonably as something that should be referred to either the Chief of Service of the Clinical Lead. The tribunal find that what the claimant does is make a general, sweeping comment rather than communicate information that goes beyond being generic.

[290]Further, we find that this disclosure was not sent in the public interest, but instead, it was intended to provide a defence to the allegations being made against her which she had recently been informed would be subject to a formal investigation under the MHPS.

[291]It follows that the detriment relied upon must fail. In any event, the detrimental treatment that she identifies (“Nothing was done”: see above) and that the claimant was subjected to an unfair and prejudicial process are not proven as a matter of fact to have occurred. 12 January 2023 HEE Meeting alleged disclosure (Issue 6(p)) 6 (p) 12th January 2023 – invited by First Respondent to attend HEE meeting during which the Claimant raised verbal complaints to HEE and First Respondent’s management team (Chris Jephson, Doris Abomeli, Simon Blackburn and Brij Patel) regarding patient and staff health and safety concerns due to the unsafe practices referred to above to the HEE in an urgent review meeting, namely a lack of resources, overbooking of clinics, unsafe working conditions for the clinical team and trainees allocated unsupervised patient work.

[292]At paragraph 238 of her witness statement the claimant says: “238. On 12th January 2023 I was invited by GOSH to attend an urgent case review HEE meeting during which I raised verbal complaints to HEE and GOSH’s management team (Chris Jephson, Doris Abomeli, Simon Blackburn and Brij Patel) regarding patient and staff health and safety concerns due to the unsafe practices referred to above to the HEE in an urgent review meeting, namely a lack of resources, overbooking of clinics, unsafe working conditions for the clinical team and trainees allocated unsupervised patient work [Q.11 4497, 1309- 1310]. [6(p) List of Issues]”.

[293]On 12 January 2023 a meeting took place with Health Education England. During the meeting the claimant told HEE that there were insufficient Consultants to supervise trainees across the whole week, and that she would benefit from additional Consultant support. Mr Jephson says that he does not recall the claimant saying to HEE that there were unsafe practices and that the conditions were unsafe.

[294]The tribunal reminds itself that this was a meeting to discuss the supervision of trainees and not satellite matters such the claimant’s concerns. The HEE report reflects this as it focusses entirely on the system of supervision within the Dental Department. However, it makes no mention of what the claimant says that she said in the meeting and, further neither does Mr Patel make any mention of this occurring in his statement. Given all of these factors, when taken together with our concerns about the claimant’s honesty and reliability as a witness we find on the balance of probabilities that no protected disclosure was made by the Claimant at that meeting. We also find that even if there was, she was not treated detrimentally as a result. 24 January 2023 alleged comments by Mr Critchlow (Issue 10(k) 10(k) 24th January 2023 – during a consultant meeting it was incorrectly reported that the dental trainees were pulled by HEE because of the Claimant.

[295]The claimant says her witness statement at paragraph 242: “242. On 24th January 2023 during a consultant meeting, it was incorrectly reported by Simon Critchlow that the dental trainees were pulled by HEE because of me – ‘that it is the trainer rather than the training environment or lack of supervision’. [10(k) List of Issues] I was also told by consultant colleagues that very senior management ‘want to get rid’ of the me so they can restart the department all over again. It was also relayed to me that Simon Critchlow had asked for this comment not to be minuted. This is further retaliatory conduct towards me because I continued to speak out. I will not be pursuing this detriment to avoid putting my colleagues in a difficult position, as they would be intimidated giving evidence on this after they have seen what happened with me”. In support of the claimant, Mr Patel says the following at paragraph of his witness statement: “I was at the January 2023 HEE meeting when Gehan was raising concerns about the over work and lack of supervision for trainees. Following this meeting I also recall that Simon Critchlow stated in a consultant meeting where Gehan wasn't present that he did not know what exact reason was for the trainees being pulled from the Trust, as he wasn’t in the loop, but it may be related to Gehan.”

[296]Mr Patel goes further and speculates as whether the reason behind the treatment the claimant was receiving was due to senior management wanting rid of her.

[297]Mr Crichlow explains that his response to the meeting was effectively speculating to the trainees as to what the was HEE’s reasons for the ‘pulling@ of trainees and puts that potentially down to the to her absence on sick leave. This account is similar to Mr Patel’s recollection but falls short of what the claimant says he did as because he did not state categorically (as alleged) that HEE’s decision was because of the claimant.

[298]The tribunal therefore adopts the respondents’ submission in respect of this issue, namely that as far as Mr Critchlow was concerned, the reason why trainees were withdrawn by HEE was because they did not have enough Consultant supervision for the whole time they were at the First Respondent, and that was not blame he ascribed to the Claimant as she could only supervise in her agreed hours of work. Furthermore, and with the exception of Mr Mr Patel’s speculation the tribunal notes that there is no evidence from any of the witnesses or within the bundle that would support the view that the first respondent wanted rid of the claimant. accordingly, this allegation is not proven as a matter of fact. 26 January 2023 allegation concerning Mr Critchlow (Issue 10(l)) 10(l) 26th January 2023 - the Claimant was physically threatened (shouted at and her exit was blocked by SC).

[299]C says at paragraphs 246 and 247 of her witness statement: “246. On 26th January 2023 Simon Critchlow shouted at me and threatened me that my sick leave in December 2022 would be marked down as unauthorised leave. I asked him to check his records as I have only taken a couple of days of sick leave; and I was then on annual leave for the rest of the period. He got very angry and started to shout at me, so I said I wanted to terminate the meeting. He tried to physically stop me from leaving the room. He was blocking the door and he is much taller than me. I demanded that he let me go. As I left the room he kept shouting "how dare you walk away from me!”, “I am your boss!" and "come back right now!". He demanded I go back into the room and close the door. At that point I became hysterical as I felt threatened and physically unsafe in this environment. This was traumatic for me and caused me to suffer extreme distress and anxiety for my safety. He was audible in the corridor and the impact of this behaviour on me was witnessed by others in the department. [10(l) List of Issues]. 247. Jenny Wood’s MHPS statement [Q16 4509] confirmed that she heard me hysterically crying in the corridor and she and other nurses witnessed me in a very distressed state, that I was incoherent and shaking. That they and Nadeem Saeed (consultant) were very worried for my wellbeing Nadeem’s MHPS statement also confirms this [4431]”.

[300]The claimant’s account is disputed by Mr Critchlow.

[301]Between 30 November 2022 and 9 December 2022 the claimant had been absent from work through sickness. Dr Cunnington had emailed Mr Critchlow and Mr Jephson in early January 2023 to ensure they were keeping in regular contact with the claimant to see whether she required any additional support. Later in January Mr Jephson had identified that he did not have a sick note from the Claimant for the relevant period, and he asked Mr Critchlow to speak to the Claimant about her sick note and any support she might need.

[302]At the start of the day on 26 January 2023, Mr Critchlow entered the Consultants’ Office and the Claimant where he could see the claimant another doctor. Mr Critchlow thought the claimant had been off sick. He tried to interact with the claimant a number of times but she ignored him on each occasion.

[303]Mr Critchlow opened the door to surgery room and asked her in for a chat. He wanted the discussion to take place in a private room as he wanted to discuss the claimant’s sickness and thought it appropriate for that to be done privately. According to Mr Critchlow, the claimant spent the majority of the meeting shouting at him before leaving the room abruptly. At this point, Mr Critchlow shouted after her that she should not walk off, and that he was her boss. At this point, the claimant shouted at Mr Critchlow that he could not speak to her like that and she walked out of the room. Mr Critchlow denies physically threaten the claimant or attempting to block the claimant’s exit. He was seated throughout the encounter and did not get up.

[304]While the claimant was upset and could be heard in the corridor it is the respondents’ case that the this due to the upset state that she would have been in as a result of the very heated exchange just described. No one else witnessed the conversation.

[305]While Mr Critchlow’s wrote a contemporaneous email to himself at 9:32am the same day and also emailed Dr Cunnington [the tribunal places little weight on what they say in terms of what the claimant says that Mr Critchlow did, considering it unlikely that would record a physical altercation of the kind alleged against him.

[306]The claimant was very upset by what happened. She called Dr Cunnington who met with the Claimant at the Brunswick centre nearby. He walked with the c you laimant for 30-45 minutes whilst she explained what had happened. Dr Cunnington produced a written account of their interaction the same day. At no point during her discussion with Dr Cunnington did she mention that Mr Critchlow had allegedly physically threatened her by blocking her exit. The tribunal consider Dr Cunnington’s account to be accurate and reliable and likely to be a true account of what happened.

[307]The next day, the claimant attended her MHPS interview and no mention is recorded of the alleged physical threats, despite going into detail about what had happened on the day. Change the tribunal do not consider the later, amended, tracked version of the minutes prepared by the claimant to be contemporaneously accurate. Somewhat implausibly, the claimant asserted in cross-examination that Ms Nwike deliberately fabricated the claimant’s answers. This is a wild allegation by the claimant and the tribunal finds on the evidence that it is without foundation. As regards the allegations of physical assault and blocking, the tribunal does not find that allegations proven on the balance of probabilities for the reasons stated above.

[308]It is noted that when the claimant emailed Professor Sharma, copying in Ms Taylor, asking to meet urgently to discuss, ‘a recent incident of being shouted at and bullied by Simon Critchlow’ she did not mention that he had physically threatened the Claimant. the tribunal considers this to be factor (the claimant’s non-reporting of the incident ) that supports its finding here. 2 February 2023 Datix alleged disclosure (Issues 6(q) and 10(w)) 6 (q) 2nd February 2023 – Datix incident following a physically threatening incident by Simon Critchlow towards the Claimant and highlighting a significant patient safety risk as the paediatric dentistry service was almost completely unstaffed, there was no consultant presence and the incumbent clinical lead was not competent or qualified to supervise paediatric dentistry in the environment of highly complex cases.

[309]At paragraph 253 of her witness statement the claimant says: “253. I submitted a Datix about this incident on 2nd February 2023 [3594-3597] and highlighting that I had raised similar issues with Phil Cunnington in the past which had not been adequately addressed and a significant patient safety risk as the paediatric dentistry service was almost completely unstaffed, there was no consultant presence and the incumbent clinical lead (Simon Critchlow) was not competent or qualified to supervise paediatric dentistry in the environment of highly complex cases, but it was never investigated under the Datix process and I had no updates [10(w) List of Issues].”

[310]The tribunal finds that the allegation that issues had been raised by the claimant and not acted upon are not founded. It is the tribunal’s finding that Dr Cunnington had told the Claimant both orally and in writing that he would support the Claimant if she wished to bring a formal grievance against Mr Critchlow arising out of the events of 26 January 2023 but chose not to engage with him.

[311]A week after the incident, the Claimant raised a Datix report. Primarily a clinical incident report system which staff are required to use to report clinical risks or incidents, it also possess a tab for the recording of allegations of harassment. The Claimant used the Datix to record and communicate an account of her interaction with Mr Critchlow, which included the allegation that he had tried to physically stop her from leaving the room and that the claimant had demanded he let her go.

[312]By doing this, Mr Critchlow’s identity was known to all recipients as she said the perpetrator was the Clinical Lead. The Datix report was knowingly widely published although the tribunal accepts that the claimant did not know who the recipients would have been and that she considered that she was able to use the Datix as a forum for reporting what she perceived as harassment.

[313]However, the tribunal finds this disclosure was made to support the claimant’s primary objective which was to defend herself in the face of the MHPS investigation. The tribunal notes that the claimant fails to set out any details of the allegations she makes. Instead, makes a series of what the tribunal finds are unspecified disclosures that fail to identify the point or meaning of the disclosures alleged. This is because, in the tribunal’s finding, the claimant was trying to build a case that she was a whistleblower and, because of this she did not reasonably believe that she was acting in the public interest when writing them.

[314]The tribunal agrees with the respondent’s submission that the lodging of the Datix was an act of self-interest because there was no identifiable, discrete or indeed overarching patient safety issue. What the claimant says is that because she felt unsafe in the department that a patient safety issue would arise because of her consequential non-attendance within the Dental Department. While we accept that the claimant’s absence from work would have an effect on the delivery of the service provided to members of the public it is the tribunal’s finding that this observation is obvious and limited to a broad, unparticularised and speculative concern about future service provision which is unsupported by evidence.

[315]As Ms Newton KC says in her submissions, ‘The facts relied on applied equally each time the Claimant went on holiday or went off sick, yet she had never raised a Datix before. She could not have known at that point how long she would have been off sick for. The trainees had all already been pulled by HEE so there were no trainees to supervise. The Claimant could have made exactly the same point without making any reference at all to her interactions with Mr Critchlow which she set out in detail over the preceding eight paragraphs. ‘ This is undoubtedly correct in the tribunal’s view and reinforces the tribunal’s finding that the claimant had been the lone consultant for a considerable period of time but it is only now, when she is the subject of an investigation into her conduct that the issues become acute and reportable as safety concerns when she is absent.

[316]The decision was made to recall the Datix so was to restrict the number of people who had received it, given the confidential information contained within the Datix. It was reasonably considered not appropriate that an allegation of this nature, an altercation between two colleagues, should be shared widely.

[317]The Claimant alleges (Issue 10(w)) that she was not updated on the status of her Datix complaint, an allegation covers the period 2 February 2023 to 5 September 2023. In short, we find that Dr Cunnington did follow up with the Claimant on the question of how she wanted her allegations against Mr Critchlow to be investigated. The claimant then raised a whistleblowing complaint in May 2023 under which this allegation was investigated. While the claimant alleges a detriment by way of the Datix based allegation not being investigated under the Datix itself it is clear to the tribunal that the matter was investigated nonetheless and therefore we find that this allegation is not proven on the basis that the claimant cannot demonstrate that she has suffered a detriment. In any event, we have found that no protected disclosure was made. The Claimant’s IT Access (Issues 10(m) and 10(v)) 10(m) 10th February 2023 – unilaterally deciding to block the Claimant’s IT access purportedly on a temporary basis pending the outcome of an Occupational Health report yet failing to restate it. 10(v) 8th August 2023 - IT access refusal by Philip Cunnington, supported by HR 281. The Claimant says at paragraph 260 and 261 of her witness statement: “260. On 10th February 2023 GOSH unilaterally decided to block my IT access purportedly on a temporary basis pending the outcome of an Occupational Health report, yet failed to restate this once the report had been received. [10(m) List of Issues]. I believe this detriment was a retaliation against me for submitting the Datix on 2nd February 2023. 261. On this day I received a call from Phil Cunnington. As part of my appeal, I came across a recording of this call, the transcript shows that he said he had ‘anxiety’ when he saw the Datix that I submitted while he was on leave, and he was concerned ‘how it looked’ to others ‘in terms of spreading the conflict’ between Simon Critchlow and me ‘across a large number of people’. PC said that he certainly didn’t “want another”, “any correspondence that anybody can use in a way as not you intended it” and that he was going to ask IT to not allow me access to my emails, purportedly because of concerns over my health – when this exacerbated my own anxiety and distress. He also stated that he shared the information about patient safety that I have logged in my Datix with the Medical Director and Chief of Service in Sight and Sound, and he did not want people to think my use of the Datix was ‘inappropriate’ I have objected to this and explained that I have followed Trust process, and that this was a retaliation for submitting the Datix. [1728- 1730]. The only explanation for these actions in cutting my IT access was because I blew the whistle and raised my Datix complaint, which Phil Cunnington did not want me to pursue. The evidence also shows that my Datix was purposely ‘paused’ without my agreement.”

[318]In his witness statement, Professor Sharma says: ‘I discussed with Mr Jephson and Dr Cunnington and we took a decision that the Datix should be recalled to restrict how many people received it, given the confidential information contained within. It was not appropriate that an allegation of this nature as a result of an altercation between two colleagues should be shared so widely in this way (as opposed to being dealt with through our normal confidential HR processes which provide for appropriate confidentiality throughout the process). I was mindful that I did not want either the Claimant or Mr Critchlow to be judged by others for the contents of that Datix. Instead it was more appropriate for the incident to be investigated confidentially and dealt with accordingly, and at that time I anticipated that this would be done when the Claimant was well enough to return to work.’

[319]While it is said by the claimant that the intention of this action was to ‘turn off’ the claimant it is the tribunal’s finding that what Professor Sharma describes is the reasonable and sensible decision to restrict access while the claimant remained absent from work on sickness leave. The tribunal accept the reasons put forward by the respondents that this decision was made out of concern for the Claimant’s health and to encourage her to take a proper break from work, something which was later substantiated by an occupational health report dated 27 February 2023 which stated that her health was unchanged and that she was ‘Unfit to work’ . The tribunal finds that the decision was not taken because the Claimant had made protected disclosures (not least because we have not found that any were made), nor was it taken to prevent the Claimant from raising further complaints.

[320]On 8 August 2023 IT access was refused by Mr Cunnington. On 5 September, the claimant produced a letter from NHS Practitioner Health which said that reinstatement of her system access would provide her with additional support. As a result, the restriction on the Claimant’s IT access was reinstated on 13 September 2023. It is said that the reason why the claimant’s access was restricted ‘in the first place’ (see para. 352 of the claimant’s closing submissions) was connected to the disclosures that the claimant was making but we find that not to be the case notwithstanding the finding we have reached with regards to relevant disclosure that this allegation stems from.

[321]The decision to reduce the Claimant’s sick pay to half pay in July 2023 (Issue 10(t)) and from half pay to nil pay and not exercise a discretion to maintain full pay (Issue 10(cc)) 10(t) 23rd July 2023 – reducing the Claimant’s sick pay to half pay.

[322]The claimant says at at paragraph 280 of her witness statement: “280. On 23rd July 2023 GOSH reduced my sick pay to half pay [3190-3191]. [10(t) List of Issues] I believe that GOSH chose to delay my grievance; and then did not exercise its discretion to keep me on full pay to put financial pressure on me because they wanted me to drop my complaints as a whistleblower (and the ET case). I had emailed Phil Cunnington on 26th July 2023 stating that I went on sick leave due to extreme stress after the shouting and bullying incident from Simon Critchlow on 26th January 2023; on the background of the orchestrated and sustained pressure I had been under since at least May 2022; and I complained that GOSH chose not to exercise its discretion in the circumstances to maintain my pay. I asserted that “I am already on stress leave for the way I have been unfairly treated for whistleblowing against unsafe practices for the best interest of patients”; and this financial stress was a common tactic within the NHS in whistleblowing cases. The discretionary approach to continue full pay was appropriate in my case given that my absence has arisen as a result of GOSH’s poor treatment of me as a whistleblower; and given the procedural errors and delays to internal processes [3222-3223]. [10(cc) List of Issues]”. In short, it is the tribunal’s finding that the claimant’s allegation of detriment as set out in the paragraph above is plainly wrong. The tribunal was taken to Schedule 18 of the Terms and Conditions – Consultants (England) 2003 which sets out that she was entitled to 6 months’ full pay and six months’ half pay. The Tribunal finds that the claimant was paid in accordance with these terms and conditions. The claimant’s pay was reduced to half pay on 23 July 2023 and sole reason for that was because her entitlement to full pay had run out protected disclosures. This happened again after a further six months. the Claimant’s pay reduced from half pay to nil by operation of the same collective agreement. As regards the criticism made of the first respondent that it did not exercise its residual discretion to maintain full pay in the Claimant’s case, the tribunal finds that it was reasonable of the first respondent to have concluded that the grounds did not exist for it to exercise its discretion, a decision that had nothing to do with the claimants purport to have raised protected disclosures. Allegation that the Respondents persistently ignored/took no action to resolve the Claimant’s repeated concerns in the period June 2022 to June 2023 (Issue 10(c)) 10(c) June 2022 – June 2023 - Persistently ignoring/taking no action to resolve the Claimant’s repeated health and safety concerns, causing friction between the admin team and the Claimant creating an environment where the admin team felt the Claimant was being rude, dismissive and/or critical.

[323]The Claimant alleges that the Respondents persistently ignored and took no action to resolve her concerns in the period June 2022 to June 2023. These are covered at paragraphs 134, 146, 159, and 172 of her witness statement and are not copied here.

[324]This is not the tribunal’s finding. On the contrary; there are numerous examples within the bundle of the claimant raising concerns in meeting settings and otherwise and those concerns are being acted upon. We agree with the respondent’s submissions that a clear example of this was in respect of the way in which clinics were run arising out of the decisions reached in respect of Miss Mackay’s plan in October 2022. Our objections were taken on board. Similarly, the claimant raised concerns in consultant meetings and decisions were taken.

[325]The tribunal understand that one of the claimant concerns that she was not being listened to relate to the acute need to recruit an additional consultant stop the tribunal accepts the evidence it received from Mr Jephson and Mr Critchlow that enquiries were made with other hospitals about mutual aid, seeking approval from NHS England to temporarily close the service, and the instigation of a recruitment process. The tribunal finds that the claimant’s is simply not made out on the facts. The MHPS Process (Issues 10(o), 10(p), 10(s) and 10(u)) 10(o) 28th March 2023 – taking the decision to proceed with formal disciplinary proceedings against the Claimant despite informing NHSR on 8th March 2023 that there was an intention to deal with the matter informally. 10(p) January – June 2023 – conducting and relying on a biased and flawed investigation process which breached the First Respondent’s own procedures, namely the report being littered with inaccurate information, a refusal to speak to the Claimant’s witness list and sending the report to the case manager without the Claimant’s input. 10(s) 29th June 2023 - deciding to proceed with a formal conduct hearing against the Claimant. 10(u) 7th August 2023 – delay, bias panel and no external paediatric dental consultant on the panel as per NHSR recommendation and in accordance with MHPS Part III Paragraph 2 in relation to the (MHPS) formal conduct hearing as set out in the Claimant’s ‘Response to conduct hearing arrangements’ document at sections 9 (delay), 4(iii) (panel members) and 4(i) (external dental member of panel) emailed to Jane Taylor on 16th August 2023.

[326]Before going any further, the tribunal has chosen to adopt the format utilised by Miss Newton in the respondent’s submissions because they are set out in a chronological layout and therefore it is easier to adopt that methodology in order to convey the tribunal’s findings.

[327]In respect of 10 (O), the claimant says the decision to commence the MHPS process was against the relevant MHPS’s guidelines as to investigations and specifically, that such investigation should not be undertaken unless the matter is more than minor (the tribunal’s wording). This is based on the claimant’s contention Mr Cunnington was considering a resolution the formal MHP’s process. However, the tribunal has already found Mr Cunnington’s decision to instigate the MHPS’s process was entirely reasonable in light of the numerous and as he describes ‘litany’ of complaints made about the claimant, that it was inevitable that a referral to the formal process would occur.

[328]It is also the tribunal’s finding that the decision reached by him, Prof Sharma and Ms Taylor here was entirely appropriate and reasonable given the circumstances the respondents found themselves in. Accordingly, the tribunal bound to find this allegation is not made out on the facts notwithstanding the tribunal’s prior finding that this alleged detriment stems from protected disclosure.

[329]In respect of 10 (P), the claimant says this in her statement: “272. On 19th June 2023 I raised serious concerns to the NED (Kathryn Ludlow) about the way this investigation is being conducted and the extent of factual inaccuracies leading to a biased investigation resulting in a breach of natural justice. [3111-3118] Jane Taylor (HR) and Sanjiv Sharma (medical director) were copied. My complaint has gone unanswered. This highlights a failure of corporate governance as well as a detriment to me as a whistleblower. [10(p) List of Issues]”.

[330]The claimant set out her concerns about the process in the long letter dated 19 June 2023. In summary, the claimant highlights factual inaccuracies, what she considers to be a biased investigation, and a breach of natural justice when taken with a series of unanswered complaints which altogether highlight in the claimant’s view a failure of corporate governance and amounted to a detriment to her as a whistleblower.

[331]In submissions, the claimant raises the causes of bias, and impropriety as arising mainly and directly as a result of the appointed investigator, Ms Nwicke’s lack of competence for the role to which she had been tasked. She is criticised for, amongst other things, asking leading questions of interviewees, framing questions with bias and in failing to inform the claimant of who she was interviewing and who she was not interviewing. It is on this basis that the claimant in submissions asserts that the tribunal should infer that the respondents were aware that likely witnesses who were not interviewed by the investigator would likely contradict the others who criticise the claimant. This assertion is something that the tribunal finds to be more nothing more than speculation as opposed to being grounded in fact.

[332]There are other criticisms of the report and its writer and it is said in the claimant’s submissions that the employer of the investigator was at best ‘is careless and at worst a deliberate act taken to ensure the MHP air’s report would be biased against the claimant’ is. The tribunal views this submission as undoubtedly hyperbolic and the claimant’s case as outlined in submissions, overstates the reality of what actually happened.

[333]The respondents determined that the investigation should be undertaken by an external independent investigator. The Respondents made this decision in order to ensure that the investigator would not have any prior knowledge of or association with the individuals concerned, and could therefore undertake the investigation with an open mind. Ms Nwicke came from an organisation called ‘Senatus’ who hold themselves out as specialising in conducting independent, in-depth investigations. Their website is said to describe them as experienced in undertaking complex disciplinary, grievance and whistleblowing investigations, including those involving medical staff. Senatus further state that their model, ‘is based on deploying a senior investigator to manage all stages of the investigation from initial briefing through to final report.’

[334]While there is consensus that the investigation fell short of what all expected in terms of the quality of its output, the tribunal agrees with the respondent’s submission that the reports baseline finding, namely that the claimant’s conduct was such that it warranted escalation to conduct hearing is reasonable and based upon a number of interviewees who were prepared to confirm their misgivings about the claimants ongoing conduct.

[335]The Claimant was written to on 8 December 2022 and informed of the Terms of Reference of the Investigation. She was informed of the specific details of the two probity allegations, and was further told that the investigation was also going to examine whether the Claimant had behaved in a rude and dismissive manner towards her junior colleagues, nursing and administrative staff; whether the Claimant had been critical of her colleagues in front of other staff which had undermined her colleagues in her interactions with them and impacted their behaviour and experience of work; and whether the Claimant had raised her voice and shouted at colleagues at work.

[336]In respect of 10(s), the claimant the detriment is being when Dr Cunnington on 29 June 2023 notified her that he had decided to proceed with a formal MHPS conduct hearing against her. It is the tribunal’s finding that the report to support Dr Cunnington’s decision that there was a case for the claimant to answer at a Hearing and the tribunal has found that the rationale of Dr Cunnington, Ms Taylor and Professor Sharma is reasonable and cogent and unrelated to any purported protected disclosures. The evidence demonstrated that there were genuine and serious concerns about the Claimant’s conduct and allegations of bullying, including treating junior staff in a way that could potentially limit their voices being heard or their ability to speak out and this was something that could not go on unmanaged. The reliability of the report is attacked by the claimant but, as we have found, the elements which concern findings that related the claimant are reliable.

[337]The criticisms raised by the claimant in respect of Ms Nwike not sending the MHPS Investigation Report to the Claimant first before sending it to the Case Manager (as expected under the First Respondent's MHPS Policy) are, in the tribunal’s viewmisconceived on because there is no evidence to support this contention put forward by the claimant. There is no evidence to show that the T first respondent or anybody else directed Ms Nwicke to do this and given this, is more likely to have been the case that this was simply an isolated case of human error rather than anything else or serious and certainly nothing of the kind suggested by the claimant in this claim. In any event, once this issue had been identified by Dr Cunnington and Ms Taylor) the Claimant was given an opportunity to comment. Ms Nwike did consider the Claimant’s comments and did not feel that any of the Claimant’s observations warranted a change in her report.

[338]The Claimant further complains about the composition of the MHPS Conduct Panel as constituted in August 2023 by way of bias but the claimant has not been able to establish any evidence of this assertion in the view of the tribunal. The Panel was being chaired by Dr Varadkar who gave evidence to the tribunal and whose the tribunal accepts in respect of delays and progress. What the tribunal does not find is that the delays arose because the claimant had raised protected disclosures particularly as the protected disclosures relied upon here were not found to be protected disclosures by the tribunal.

[339]Similarly, the tribunal does not accept the claimant’s assertion that the investigator’s failure to speak to certain witnesses suggested by the claimant arose as a consequence of the claimant raising protected disclosures. Dr Cunnington’s correspondence with NHSR PPA (Issue 10(n)) 10(n) October 2022 – May 2023 – providing the NHS Resolution service (“NHSR”) misleading information about the Claimant and withholding NHSR correspondence from the Claimant, despite the NHSR guidance that it should be shared.

[340]At paragraph 262 of the claimant’s witness statement she says: “262. October 2022 – May 2023 – providing the NHS Resolution service (“NHSR”) misleading information about me and withholding NHSR correspondence from me, despite the NHSR guidance that it should be shared. Phil Cunnington’s FTSU Statement [7160] “I did withhold information in that NHSR advise, note it is advice and not an Instructions, is to share correspondence,”• The issue is why PC decided not to accept or follow NHSR recommendations in my case If there had been transparency in sharing the NHSR letters with me, a baseless formal investigation into my probity could have been avoided. The NHSR letters were withheld from me until a step in the MHPS process was omitted. I was being referred to a formal hearing without being given the chance to comment on the factual accuracy of the report. This is yet another example of non-compliance of Section 6.8.3 of the Trust MHPS Policy. I was referred to conduct hearing on 27th March 2023”.

[341]And 266: “266. Phil Cunnington withheld information from NHSR which is breach of natural justice, he also withheld the NHSR letters from me from October 2022 to May 2023 despite NHSR express encouragement to share these with me [10(n) List of Issues], which contained misleading and incorrect information provided to NHSR. I have complained to the NED on 19th June 2023 [3111- 3118]. Dr McCulloch gave no weight to Phil Cunnington’s departure from NHSR advice [7629].”

[342]In response, Dr Cunnington says that he did not share the letters with the claimant immediately and that the NHSR PPA recommendation to share advice is only guidance which does not have to be followed. Instead, he relied on his experience to determine whether and when disclosure to the claimant should be done. This is because he had a duty to protect the confidentiality of those who raise concerns to the F TSU process. He describes the people who have provided evidence to the process as being very scared about raising concerns and he did not want to be identified by the claimant through NHS PPA letters. This is an explanation that the tribunal accepts in its entirety as being entirely sensible and logical. He goes on to say that he had shared information with NHSR PPA at all times as accurate and up-to-date and never provided them with misleading information. He sets a series of examples in his witness statement which the tribunal except as being truthful, reliable and accurate. Again, this evidence is accepted by the tribunal. The Claimant’s Whistleblowing Complaint (Issues 6(r), 6(s), 6(t), 10(r), 10(x), 10(y), 10(z), 10(aa) and 10(bb)) 6(r) 19th April 2023 – letters addressed to Phil Cunnington correcting and responding to the investigation report which detailed patient and staff health and safety concerns and the detriments she was being subjected to. 6(s) 22nd May 2023 – formal grievance under the First Respondent’s whistleblowing procedure detailing the above.

[343]At para.269 of her witness statement, the claimant says: “269. On 22nd May 2023 I submitted a formal whistleblowing complaint/grievance [2374- 3001] under GOSH’s FTSU whistleblowing procedure [8152-8173] and expressly stated that issues that personally related to me should be addressed under GOSH’s grievance procedure [8308-8324] [6(s) List of Issues]”. 6(t) 30th June 2023 – the Claimant submitting her ET1.

[344]At para.277 of her witness statement, the claimant says: “277. On 30th June 2023 I issued my first tribunal claim [4-15] bringing complaints of whistleblowing detriments. [6(t) List of Issues]”.

[345]The claimant commented by letter dated 19 April 2023 on the draft MHPS Investigation Report. It is conceded by the respondents and found by the tribunal that this letter constituted a protected disclosure (Issue 6(r)). The tribunal notes what Dr Cunnington says in his witness statement, namely: ): “When I became aware she was raising patient safety issues with me in her letter dated 19 April 2023 I sought further information from her and asked her to outline concerns to me so that I could address them. Any allegations of whistleblowing on patient safety issues are extremely serious and I would never ignore them.” He is clear that the claimant made disclosures about patient safety.

[346]The claimant made a series of serious allegations including that she had been the subject of a witch hunt engineered to discredit her in relation to her opposition to unsafe practices which she said placed patients at risk of serious harm. In response, Dr Cunnington on 4 May 2023 asked the Claimant to urgently identify any ongoing practices that she considered to be unsafe. The Claimant responded on 26 May 2023, by way of a 39-page letter dated 22 May 2023 which she titled, ‘Whistleblowing Complaint/Formal Grievance with 589 pages of attachments. The Respondents accept this document constituted a protected disclosure (Issue 6(s)).

[347]On 30 June 2023, the Claimant lodged her first Claim Form and it is accepted by the respondents that was a protected disclosure (Issue 6(t)). The tribunal make this finding also. However the tribunal does not accept that is was axiomatic that Dr Cunnington should have stepped down as Case Manager for the MHPS process at this point and once the Claimant’s Claim Form had been lodged by virtue of the claimant naming his as an individual respondent.

[348]A FTSU review and investigation was commissioned and eventually, after a false start with another appointee to the role, Ruth McAll, a subsequent independent external investigator, was appointed on or around 2 October 2023.

[349]The claimant lodged her Second Tribunal Claim on 18 January 2024, in which she raised four specific allegations concerning the manner in which her FTSU complaint was handled. The Appointment of Ms McAll (Issues 10(y) and 10(z)) 10(y) The attempt to predetermine the outcome of the investigation in the Respondents’ favour by the appointment of Ruth McAll as investigator (first notified to the Claimant on 25 September 2023) and continued insistence on using Ms McAll, despite:(i) her lack of clinical expertise (she is an HR professional);

(ii) her poor reputation as highlighted to the Respondents by the Claimant and by the BMA; and

(iii) the Claimant’s objection to her appointment. “The pre determined outcome” alleged by the Claimant is (A) upholding some or all of the MHPS allegations, (B) dismissing some or all of the concerns raised by the Claimant in her letter of 22 May 2023 to the Third Respondent and (C) not investigating all of the concerns raised by the Claimant in that letter. 363. the claimant says at paragraph 305 of her witness statement:: “305. Dr Renee McCulloch, Associate Medical Director at GOSH, appointed Ruth McAll on 25th September 2023 from DACB people’s pool [3343-3344, 3365- 3366], instead of the Royal College of Surgeons despite numerous concerns raised by me and the BMA [3407-3410, 3423, 3436-3443]. I believe that this appointment was made because they wanted to cover up the unsafe patient and staff practices and exercise control over the outcome of my FTSU grievance, to predetermine it in the respondents’ favour as damage control. The letter of appointment to Ruth McAll required her to limit her investigation to the diluted Allegation Table prepared by DAC Beachcroft, set out only GOSH’s chosen witnesses for her to interview and [3339-3342]. Although Ruth McAll was an external HR consultant and not clinically trained, Dr McCulloch stated in this appointment letter that she should notify her about any patient safety concerns which posed an imminent or ongoing risk to patients or staff. Dr McCulloch also states that the separate MHPS process may provide relevant context and any findings in her report may be provided to those determining the MHPS process. It is also worth noting that despite my request in my Grievance [2375], and the requirement to do so in the FTSU policy clearly stating it at 1.5 [8136], Dr McCulloch expressly ignored this and decided all

[350]It is the tribunal’s finding that the first respondent appointed an external independent investigator to ensure that the allegations contained in the Claimant’s FTSU complaint were investigated fairly and objectively. The Trust had previously used independent investigators provided through a service run by the Trust’s solicitors, DACB, called, ‘People Pool’ which provided experienced independent investigators to carry out external investigations. The investigators in the ‘People Pool’ are not employed by the Trust’s solicitors but are consultants and the tribunal has understood this arrangement to be akin to a directory of tried and tested self-employed outsourced HR Consultants who were considered to have the appropriate expertise and experience to complete the tasks asked of them. In Ms McCall’s case, she had no prior connection to the first respondent or its people.

[351]The tribunal accepts that Ms McCall was recruited in good faith and in the absence of any ulterior motive such as the one alleged of a achieving a predetermined outcome by, as alleged: ‘(A) upholding some or all of the MHPS allegations, (B) dismissing some or all of the concerns raised by the Claimant in her letter of 22 May 2023 to the Third Respondent and (C) not investigating all of the concerns raised by the Claimant in that letter.’ The tribunal finds that first respondent did not attempt to predetermine the outcome of the FTSU investigation in the manner alleged above or at all.

[352]The Claimant objected to the appointment of Ms McAll because the Claimant and her BMA representative considered she had a poor reputation, a view reached from a criticism of her in an Employment Tribunal judgment, as described in a media article. Ms McCall was not asked anything about the criticism in cross examination. Even with this criticism, it is not the finding of the tribunal that Ms McCall was unsuitable and open to the be rejected for the reason put forward by the claimant. The appointment of Ms McAll was not a detriment to the Claimant, and the First Respondent’s decision to retain Ms McAll as the FTSU Investigator was not a retaliatory act done on grounds that she had raised protected disclosures.

[353]The Claimant had been informed by the First Respondent in correspondence that should any discrete clinical issues arise in the investigation, that the Trust would ensure the availability of a Consultant with appropriate clinical expertise to support Ms McAll on any clinical issues should she consider it necessary. Once the Claimant agreed to meet with Ms McAll in February 2024, it was determined that it would be appropriate for clinical input to be provided and this was done by way of the appointment of Professor Claire Stevens. Clearly, there was a delay to this point being reached but it is the tribunal’s finding that the delay is primarily due to the size and detail of the claimant’s submissions and the fact that she had refused to meet with Miss McCall hitherto this point. Had the Claimant agreed to meet with Ms McAll at the outset, this appointment would have been made much earlier.

[354]As to the dispute between the parties as to whether it was necessary for the FTSU complaint to be investigated by the Royal College of Surgeons as set out by the claimant, the tribunal finds this to be a difference of view arising from a difference of ideological viewpoint as opposed to anything more malevolent as alleged by the claimant and certainly not an attempt to cause the claimant detriment as alleged. In this regard, the tribunal accepts the evidence of Professor Sharma and Ms Taylor on this issue which was that the Royal College of Surgeons Invited Review Mechanism was to be utilised when there are significant concerns about the clinical practice of a Consultant or a team which cannot be assessed in another way for example where a Consultant might work in very specialised areas where there may only be a few recognised experts in the UK (or indeed the world) and through the Invited Review Mechanism, the Royal College of Surgeons can help ensure that experts in that field are able to make a review of medical practice and make expert recommendations. This was not required in the Claimant’s case which was a relatively straightforward one of conduct related behaviours. The tribunal notes that when Professor Sharma contacted the Royal College of Surgeons to assist in identifying an appropriate individual who could provide clinical assistance to Ms McAll, the RCS did not offer their IRM services as a means of providing this assistance.

[355]The tribunal accepts the respondent’s submission that the claimant’s FTSU complaint was lengthy, detailed and complex in construction, requiring very close analysis to cross-reference allegations and fax to the numerous appendices. Criticism has raised by the claimant in respect of the first respondent’s conduct who, with the assistance of its solicitors, drafted a Table of Allegations to assist the FTSU Investigator. It is said by the claimant that this was an attempt to replace or die loot the claimant’s claims, but it is the tribunal’s finding on the facts that this was a sensible step to have taken, i.e., to reduce a route map through the claimant’s complex and lengthy submission. The tribunal finds that any allegations left out of the table to have been inadvertent and as a result of the substantial number of allegations being made by the claimant who it is noted was afforded the opportunity to point out any omissions during the course of her meetings with Miss McCall. The tribunal does not accept the claimant submission allegations in relation to Mr Critchlow and governance -related matters were deliberately omitted to avoid their investigation and it is noted that the final report led to criticisms of Mr Critchlow therefore it is not possible for this allegation to hold water.

[356]The tribunal does not accept the criticisms raised by the claimant through her counsel that this may cause failure to interview more witnesses in relation to the 13 October 22 allegations amounted to a failure on her part, whether deliberate or otherwise. In any event, Ms McAll accepted the Claimant’s evidence as to what had occurred on that date and found that, ‘ it is clear that asking GAA to leave a busy clinic was inappropriate, unnecessary and would have added to her anxiety. Meetings of this nature should be scheduled with notice in non-clinical time to minimise impact on patient care.’

[357]Given this finding, the tribunal does not find that the claimant suffered a detriment as a consequence of the failure to interview further witnesses in relation to the 13 October 22 incident. Nor do we find that the finding of the report was predetermined in any way whatsoever. Allegation concerning the operation of the First Respondent’s internal processes to assist the litigation stance of the Respondents (Issue 10 (aa)) 10(aa) The operation of the internal processes (including the use by the First Respondent of the same solicitors and same individual solicitor to advise in respect of the internal processes and the external employment tribunal litigation) with a view to assisting the litigation stance of the Respondents rather than the operation of objective and fair processes. The “litigation stance” is the position of the Respondents as set out in the Grounds of Resistance in the First Claim.

[358]In short, the claimant asserts in her witness statement following investigations, the meta data for the allegations table show that it was created by the risk first respondent’s lawyers, DAC Beachcroft. As DAC Beachcroft were defending the respondents, the claimant ‘felt’ that the lawyers had been used to ‘utilise the internal processes to assist them with the litigation. I therefore sent an email to Jane Taylor about this on 5 September 2023 and again requested an external investigator from the Royal College of surgeons or a barrister be appointed as a felt the process was biased against me’. In submissions, which are detailed and various, the tribunal is asked to infer that the respondent’s decision to use the same solicitors in its processes as well as tribunal litigation was done so as to bolster the respondent’s position in the litigation. The fact that the tribunal is being asked to make this inference is notable because it is a request made in the absence of any cogent direct evidence that because the same solicitors were used in the respondent’s internal processes that concern the claimant that others should have been used for the litigation. In fact, it is commonplace for the same solicitors to advise on internal processes and on external tribunal litigation. While it is the case that the claimant may have had concerns as a result of her meta data investigations, those concerns are not reflected in the criticisms levelled at the respondents and their lawyers in submissions here. It is accepted by the tribunal but while each individual allegation of alleged impropriety by the claimant warrants some scrutiny is also the case that when one takes a step back one must look at the situation that confronted the respondent and its advisers who shall be remembered are regulated professionals in order to make the inference that the claimant seeks. Effectively, the claimant is asking the tribunal to infer that the solicitors were part of the respondents concerted attempts to evade liability in the employment tribunal. In the absence of positive evidence demonstrating that it was the positive intention of the respondents to evade liability by engaging DAC Beachcroft, the tribunal is drawn to the conclusion that this is an allegation which is not made out on the facts.

[359]The tribunal accepts Ms Taylor’s evidence that the MHPS, FTSU and the Tribunal Proceedings should be kept separate, and attempts were put in place to do this. Delays in the FTSU process (Issue 10(bb) 10(bb) The ongoing unreasonable delay to the Claimant’s whistleblowing grievance and disciplinary proceedings.

[360]The tribunal has already found that the delays in this process were in a large part down to the claimant and her conduct within it. The tribunal does not find that this was a delay caused by the respondent in its entirety or in the main and that further, no detriment arises from the delay which as we have explained, arose in a large part due to the claimant.

CONCLUSIONS

[361]as the tribunal’s finding that all of the claims made by the claimant have been unsuccessful. Accordingly, all claims are unfounded and are dismissed. Approved by: