Mr G Kalu and Mr O Ogueh v Brighton and Sussex University Hospitals NHS Trust: 2302657/2017 and 2302658/2017 Mr G Kalu and Mr O Ogueh v Brighton and Sussex University Hospitals NHS Trust: 2302657/2017 and 2302658/2017
EMPLOYMENT TRIBUNALS
Case No 2302657/2017, 2302658/2017
Between
Mr G Kalu and Mr O OguehClaimantBrighton and Sussex University Hospitals NHS TrustRespondent
Before
Employment Judge MartinMr Elesinnla - Counsel for claimantMr O Segal QC - Counsel for respondentDate 26 February 2021
JUDGMENT
ON APPLICATION FOR INTERIM RELIEF The Judgment of the Tribunal is that the application for interim relief is dismissed.
REASONS
[1]This is a claim which includes dismissal and detriment on grounds of having made a Public Interest Disclosure under section 47B Employment Rights Act 1996 in respect of detriment, under section 103A in respect of dismissal and in the alternative for ordinary unfair dismissal under section 94 of the Employment Rights Act 1996. It is also a claim of race discrimination. Case Numbers: 2302657/17 2302658/17 2[2]The effective date of termination for both Claimants was 22 September 2017. The Claim to the Tribunal was presented on 29 September 2017. There were no procedural matters raised by the Respondent. The Claimants application for interim relief is made under the provisions of section 128 of the Employment Rights Act 1996.
The hearing
[3]I had before me the Claimant’s bundle of documents comprising 97 pages, the Respondent’s bundle of documents comprising 408 pages; the claim form; a witness statement on behalf of both Claimants and a witness statement of Dr George Findlay. I have considered all the documents specifically referred to by the parties. No oral evidence was heard.[4]My role is to consider the evidence before me and make a broad assessment as to whether the Claimant’s application for interim relief should succeed.
Issues
[5]The issue for the Tribunal was whether under section 129 of the Employment Rights Act 1996 it appeared that it was likely that on determining the complaint to which the application related, the Tribunal will find that the reason (or if more than one the principal reason) for the dismissal was specified in section 103A - namely that the Claimant had made a protected disclosure under section 43B of the same Act. The Claimants have brought claims of race discrimination and made submissions on this jurisdiction, however this is not covered by the provisions relating to interim relief and therefore not considered in this judgment.
The law
[6]Section 128 of the Employment Rights Act 1996 provides that an employee who presents a complaint to an employment tribunal that he has been unfairly dismissed and that the reason (or if more than one the principal reason) for the dismissal is one of those specified in - ….section 103A….may apply to the tribunal for interim relief.[7]Section 43B of the Employment Rights Act sets out the types of 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, tends to show one or more of the following—(a) that a criminal offence has been committed, is being committed or is likely to be committed,(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,(c) that a miscarriage of justice has occurred, is occurring or is likely to occur, Case Numbers: 2302657/17 2302658/17 3(d) that the health or safety of any individual has been, is being or is likely to be endangered,(e) that the environment has been, is being or is likely to be damaged, or(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed.[8]An application for Interim Relief will be granted where, on hearing the application, it appears to the tribunal that it is likely that on determining the complaint to which the application relates, a tribunal will find that the reason for dismissal is the prohibited reason relied on (s163 TULRCA)[9]The case of Taplin v Shippam Ltd (1978) ICR 1068 EAT defines “likely” in this context as a “pretty good chance of success”. That test has been re-affirmed in the case of Dandpat v The University of Bath and Others UKEAT/0408/09/LA[10]The standard of proof required is greater than the balance of probability test to be applied at the full hearing. The EAT recognised in the Dandpat case that such a high burden of proof is necessary as the granting of such relief will prejudice a Respondent, who will be obliged to treat the contract as continuing until the conclusion of the proceedings. Such a consequence should therefore not be imposed lightly.[11]Mr Justice Underhill then President of the EAT in Ministry of Justice v Sarfraz at paragraph 14 set out guidelines for the Tribunal to consider in this type of application. “I have to decide that it was likely that at the final hearing the Tribunal will find five things: That the Claimant had made a disclosure to his employer; That they believed the disclosure tended to show one or more of the things itemised at (a) to (f) under section 43B(1); 1. That the Claimant had made a disclosure to his employer; 2. that the belief was reasonable; 3.that the disclosure was made in good faith; and 4. that the disclosure was the principal reason for his dismissal.” Submissions[12]I was provided with written submissions and heard oral submissions from both parties. I considered both parties submissions in coming to my decision.
Findings
[13]Although it is not the function of the Tribunal at this hearing to make findings of fact, some background information is required to put the case into context. Both Claimants are long standing Consultant Gynaecologists employed by the Respondent. It was common ground that the Claimants have had a long history of disagreements with the Respondent with litigation by the Claimant’s and others being part of this. This history relating specifically to this claim goes back to January 2014. Case Numbers: 2302657/17 2302658/17 4[14]There was no dispute about the fact that the Claimant’s attended a BME Network meeting on 28 January 2014 during which remarks were made by the Chair of that meeting Dr Lyfar Cissie to EB resulting in her submitting a grievance alleging that the treatment she received was homophobic and discriminatory. Her grievance was in relation to Dr Lyfar Cissie not about anyone else. As part of the grievance process Dr Kalu, the first Respondent accompanied Dr Lyfar Cissie to the grievance meeting which took place in July 2014. At that meeting, Dr Kalu expressed his view that EB should be punished for remarks she had made about Dr Lyfar Cissie in her grievance.[15]The outcome of the grievance included criticisms of Dr Lyfar Cissie who in turn brought a grievance against EB on 22 December 2014, accusing her of making false allegations against her in EB’s grievance. EB appealed some of the findings made.[16]The first Claimant then wrote to the BME network to discuss what action to take and a collective grievance was sent to the Respondent on 12 January 2015 signed by both Claimants and six others. This related to EB’s grievance of 5 February 2014. This was the first protected disclosure.[17]The second protected disclosure was done after the Respondent appointed Ms Henrietta Hill QC to investigate the collective grievance together with other related grievances. The Claimants complained about Ms Hill QC being appointed without consultation and that the Respondent decided to investigate all grievances together in a single investigation alleging that this was discriminatory. Despite being asked to co-operate in the investigation, the Claimants refused to do so. The outcome of the investigating was that those who had brought the collective grievance should face disciplinary action for having victimised EB.[18]Two different processes were used. The Claimants went through a process for medical staff, whereas the other six were not medical staff so were subject to different processes. The other six were given final written warnings on the basis that the grievance had not been brought in good faith and were acts of victimisation.[19]The Claimants were investigated by Dr Marco Maccario, a Clinical Director. His report was dated 12 July 2017. The Claimant’s refused to co-operate because Mr Elesinnla was not allowed to accompany them. They said he was their friend. They allege this is discriminatory. This is the third disclosure relied on by the Claimants. The outcome of the investigation was that Dr Maccario considered there was sufficient evidence of the disciplinary charges and referred the report to the Case Manager Mr Carter, who concluded that disciplinary action should take place. A disciplinary hearing was held on 20 September 2017 with Dr Findlay being the disciplining officer. The first Claimant attended and requested a postponement which was refused and then left. The second Claimant did not attend as he is currently working in Nigeria on a Career Break. Dr Findlay found the allegations to be proven and both Claimants were dismissed. Case Numbers: 2302657/17 2302658/17 5 My conclusions[20]The first consideration as set out in the Sarfraz case above, is whether it is likely that the Tribunal at the final hearing would find that the Claimants had made a disclosure to their employer. The Claimants relies on three disclosures in their particulars of claim which are set out above. Clearly, they made disclosures. During the hearing the Claimants alluded to other disclosures which they said were protected. No other disclosure other than those set out below appeared in the particulars of clam and as a consequence no other disclosures were considered.[21]Secondly I have to consider whether it is likely that the Claimants have a pretty good chance of convincing the Tribunal at the final hearing that they believed that the disclosures tended to show one or more of the matters at paragraphs (a)-(f) under section 43B(1) of the Employment Rights Act 1996 (which is set out above).[22]The Claimants rely on sub-paragraph (b) of that section. I have considered subparagraphs (b) which provides that the person has failed is failing or likely to fail to comply with the legal obligation to which he is subject. The legal obligation relied on by the Claimants are the provisions of the Equality Act 2010 and the Respondent’s policies and procedures.[23]The first disclosure was the collective grievance of 12 January 2015. I do not propose to set it out in full. The grievance does not mention race discrimination specifically, but does refer to BME Network Members, not all of whom are black. Of the eight who signed the collective grievance two are white European. The Claimants argue that it was obvious to the Respondent that this was a complaint of a breach of the Equality Act 2010 and of race discrimination. The Respondent does not agree submitting that there is no allegation in this collective grievance that EB had acted unlawfully. The second disclosure is the complaint about the appointment of Ms Hill QC to conduct investigations. In that disclosure it is stated: “We consider your behaviour to demonstrates contempt for us, because we are black and this is the basis of our grievance (sic)”. The third disclosure is an oral disclosure alleging that the refusal to allow Mr Elesinnla to accompany them was discriminatory.[24]The Respondent submitted that these disclosures do not amount to the giving of information that tends to show the Respondent was in breach of its legal obligations. I have reservations as to whether the disclosures are sufficient to satisfy the legal tests set out above and whilst I think it is possible that at Tribunal it may be found that they provide information (as opposed to making allegations) that tend to show that the Respondent has failed to comply with their legal obligations this is not the same as saying that the Claimants have ‘a pretty good chance of success’ as there are other factors in meeting the definition of a protected disclosure which I do not find that the Claimant has shown to have a pretty good chance of success. This is a higher burden of proof which I do not consider the Claimants have met. Case Numbers: 2302657/17 2302658/17 6[25]The third limb is whether the Tribunal will find at the full hearing that the Claimant’s belief was reasonable. The Respondent submitted that it was not reasonable, on the wording of the grievance, for the Claimants to believe that EB had accused them of being homophobic and that this was a racial slur.[26]The fourth limb is whether the disclosures were made in good faith. The Claimant submitted that they were, the Respondent submitted that they were not and were acts of retaliation and victimisation[27]Finally, the fifth limb is whether the disclosures (assuming they are found to be protected disclosures) were the principal reason for the dismissals. The Respondent denies that the reason for dismissal was because the Claimants had made protected disclosures. The reason for the dismissals given by the Respondent in respect of both Claimants is gross misconduct on three grounds: i. Victimising a fellow employee in bad faith ii. Failing without reasonable excuse to comply with repeated, reasonable and important instructions to participate in an independent investigation into issues of great concern to many employees of the Respondent including the Claimant and to the Respondent itself; and iii. By refusing to participate in that independent investigation, acting in a way calculated or likely to destroy mutual trust and confidence between themselves and the Respondent.[28]The burden on the Claimants proving that they have a pretty good chance of success at the final hearing is a high one. I do not consider that the Claimants have succeeded in reaching this level. There is nothing in papers I have before me to persuade me that the Claimants have a pretty good chance of succeeding in their claim for unfair dismissal for making protected disclosures. Even were they to show that the disclosures were protected I do not consider there is a pretty good chance of showing that the protected disclosures were the principal reason for dismissal.[29]I therefore find that as the Claimants have not shown they have a pretty good chance of success at the final full merits hearing and their applications for interim relief is dismissed. __________________________ Employment Judge Martin Date: 06 November 2017 Case Number: 2302657/2017 & 2302658/2017 1 of 65 EMPLOYMENT TRIBUNALS Claimants: Mr Gregory Kalu & Dr Onome Ogueh Respondent: Brighton and Sussex University Hospitals NHS Trust Heard at: London South by CVP On: 30 November, 1, 2, 3, 7, 8, 9 and 10 December (and in chambers 11, 14, 15 December 2020 & 15 February 2021) Before: Employment Judge Khalil sitting with members Ms J Jerram Mr P Adkins Appearances For the claimant: Mr Elesinnla, Counsel For the respondent: Mr Kibling, Counsel[58]Having heard the evidence of both sides relating to the reason for dismissal it will then be for the ET to consider the evidence as a whole and to make findings of primary fact on the basis of direct evidence or by reasonable Case Number: 2302657/2017 & 2302658/2017 32 of 65 inferences from primary facts established by the evidence or not contested in the evidence.[59]The ET must then decide what was the reason or principal reason for the dismissal of the claimant on the basis that it was for the employer to show what the reason was. If the employer does not show to the satisfaction of the ET that the reason was what he asserted it was, it is open to the ET to find that the reason was what the employee asserted it was. But it is not correct to say, either as a matter of law or logic, that the ET must find that, if the reason was not that asserted by the employer, then it must have been for the reason asserted by the employee. That may often be the outcome in practice, but it is not necessarily so.[60]As it is a matter of fact, the identification of the reason or principal reason turns on direct evidence and permissible inferences from it. It may be open to the tribunal to find that, on a consideration of all the evidence in the particular case, the true reason for dismissal was not that advanced by either side. In brief, an employer may fail in its case of fair dismissal for an admissible reason, but that does not mean that the employer fails in disputing the case advanced by the employee on the basis of an automatically unfair dismissal on the basis of a different reason.” (148) Pursuant to S. 48 (3) ERA, an Employment Tribunal shall not consider a complaint under this section unless it is presented(a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. Conclusions and analysis on the Issues (see appendix 1) The following conclusions and analysis are based on the findings which have been reached above by the Tribunal. Those findings will not in every conclusion below be cross-referenced unless the Tribunal considered it necessary to do so for emphasis or otherwise. Were any of the following a Protected Disclosure and/or a Protected Act? Collective Grievance – 12 January 2015 (149) The Tribunal concluded, having regard to its findings above, that the collective grievance raised on 12 January 2015 was not a protected disclosure. The Tribunal concluded that the claimants did not, subjectively, hold a reasonable belief that the disclosure tended to show that Ms Burn’s grievance was a discriminatory/stereotypical assumption that BME Network members were Case Number: 2302657/2017 & 2302658/2017 33 of 65 homophobic and would, as a result, isolate her. The Tribunal recognised that a disclosure does not need to be in good faith and can have more than one purpose. However, the Tribunal concluded that the purpose of the grievance was, exclusively, to victimise against Ms Burns which was an unlawful purpose. Alternatively, the Tribunal concluded the claimants did not have a reasonable belief, objectively, that they were making a disclosure of information which tended to show that Ms Burn’s grievance of 5 February 2014 was a discriminatory/stereotypical assumption that BME Network members were homophobic and would, as a result, isolate her. On no reasonable reading of Ms Burns’ grievance was it a discriminatory remark or a stereotypical assumption about the claimants, the collective grievance signatories or the BME network, whether in relation to alleged homophobia, or, being subject to or under the control of Dr Lyfar-Cisse. The latter was a remark about the leadership /influence and could not be interpreted on any reasonable reading, even allowing for flexibility and latitude, in the way interpreted by the claimants. In addition, the Tribunal concluded for the above reasons, that the claimants did not subjectively believe that the disclosure was in the public interest. There was no genuine subjective belief because the grievance was raised solely to victimise/discriminate against Ms Burns. Alternatively, the disclosure was not, objectively in the public interest. Having regard to the four factor guidance in Chesterton the Tribunal concluded that the numbers in the group whose interests the disclosure served was, in reality, the claimants and the collective grievance signatories only and not the wider or entire BME network. The wider BME network members could but did not sign the grievance. There was reference to up to 50 ‘wishing’ to do so but they did not sign. Further, the grievance was not submitted for and on behalf of the BME network. Having regard to the nature of the interests affected, the Tribunal concluded that the collective grievance was not, having regard to the Tribunal’s conclusion on the objective element of whether the disclosure tended to show a breach of a legal obligation, of a very important interest. Having regard to the nature of the wrongdoing, the Tribunal concluded there was no disclosure of deliberate wrongdoing. Finally, with regard to the identity of the alleged wrongdoer, Ms Burns was not a doctor nor a senior figure in the Trust. (150) The collective grievance was potentially a protected act. There was no express reference to discrimination, or the Equality Act or the claimants’ race. The Tribunal noted however that there were references to the BME network which was, by definition, a network serving the interests of black and minority members. There was also a reference to a stereotypical view of BME members. The Tribunal concluded that it could be interpreted as an allegation under the EqA S. 27 (2) (d). However, the Tribunal concluded based on its findings above and its conclusions in particular paragraphs 55, 56 and 149, that it was a false allegation and made in bad faith and thus disqualified from protection under S.27 (3). 26 June 2015 (151) The Tribunal concluded that the claimants did not have a subjective reasonable belief that the respondent’s decision to invoke the DAW policy to hear their grievance (and the discrimination grievances of the others) and not the Case Number: 2302657/2017 & 2302658/2017 34 of 65 grievance policy was an act of discrimination and thus that it tended to show the respondent had breached a legal obligation or that this was in the public interest. The Tribunal concluded that this was raised solely to support or justify their non-participation in the investigation to date. Alternatively, their belief was not, viewed objectively, reasonable. If their belief was based on their desire to have Ms Burns present to be questioned/interrogated (see findings above), then this was not available under the grievance procedure. The Policy permitted each party to call its own witness but there was no right for one party to insist on someone being present to question (page 438). Further, under the grievance policy (2.9) whilst agreement was required to outsource an investigation and further that heads of terms should be agreed, there was no right for a complainant to agree the choice of that person. There was also an express carve out for discrimination grievances falling outside the grievance policy (1.4) (page 431). In relation to public interest in particular, the Tribunal concluded this was a matter concerning the choice or application of policy in relation to the claimants and 6 other signatories and in context, of moderate interest, based on a professional judgment albeit by a Senior Manager. The belief (in the public interest) was not objectively reasonable. (152) The Tribunal concluded that the communication was a protected Act under S.27 (2) (d). The email alleged racism against the Trust regarding the non-holding of a grievance hearing. 2 July 2015 (153) This complaint was lodged on behalf of the claimants and the other collective grievance signatories by the GMB. The Tribunal concluded that the claimants did not have a subjective reasonable belief that the respondent’s decision to proceed with a DAW investigation process (and not a grievance) and to engage an external lawyer to undertake the investigation, tended to show that the respondent was acting in a discriminatory way and thus was in breach of a legal obligation or that this was in the public interest. The Tribunal concluded that this was raised solely to support or justify their non-participation in the investigation to date. In addition, their criticism of the engagement of Ms Hill QC was solely because the Trust had declined to appoint someone suggested by Dr Lyfar-Cisse (Mr Udemezue). The Tribunal concluded that the claimants knew, based on their relationship with Dr Lyfar-Cisse, that this was someone she had suggested and that in the circumstances that would not have been appropriate or acceptable to the Trust. The Tribunal also concluded having regard to the findings above regarding the claimants’ attitude towards a majority of the respondent’s personnel who were white and the thrust of their unqualified and universal allegations of race discrimination against them, that the reason they were not satisfied with Ms Hill QC was because she was white. That was in itself an unlawful position to take. Alternatively, the claimants’ belief that the Trust’s actions were discriminatory and thus a breach of a legal obligation was not objectively reasonable. They knew the reality was that their grievance complaint was arranged to be heard but under the DAW. The second bullet asserting the view that the Trust was instead only going to be assessing Ms Burns’ grievance was a complete mischaracterisation of the Trust’s approach. Further, their basis to have a legal officer appointed to investigate removed, had Case Number: 2302657/2017 & 2302658/2017 35 of 65 no rational basis at all. She was independent and unconnected to the Trust. They should have welcomed her independence. In relation to public interest in particular, the Tribunal repeats is conclusions above (paragraph 149). (154) The Tribunal also concluded that this communication was a protected act under S. 27 (2) (d). It contained allegations of discrimination and racism. 27 July 2015 (155) This was another communication from the GMB lodged on behalf of the claimants and the other collective grievance signatories and the GMB. (156) The Tribunal repeats in conclusions above under paragraph 149 and 151 above. In addition, the Tribunal concluded that there was no evidence before the Tribunal that it had been the working practice of the Trust to afford a complainant the choice of policy to invoke their grievance. The Tribunal was not taken to any information or evidence in support of this assertion regarding why this was believed. In relation to the assertions about the intended scope of the investigation, this had always been made known to the claimants. The terms of reference attached to the invitation letter to the grievance set out the 9 separate grievances that would be part of the investigation (pages 524-526 & 1165A). With these additional points in mind, the Tribunal’s conclusion that the claimants did not hold a subjective belief that the disclosure tended to show a breach of a legal obligation or that the disclosure was in the public interest - alternatively that any such belief, if held, was not objectively reasonable – was compounded. The scope of the investigation was unambiguous and this would have been known to the claimants. There was no revision to it and nether was consideration of the collective grievance an after-thought. (157) The Tribunal also concluded that this communication was a protected act under S. 27 (2) (d). It contained allegations of discrimination and racism. Other alleged protected disclosures and protected acts (158) The claimants were given an opportunity to state their position with clarity on other asserted protected disclosures/protected acts and consequential detriments by reference to them. They did not do so. It was not the Tribunal’s function to do that. Notwithstanding, the Tribunal decided, unanimously, to accept, broadly, that the previous discrimination litigation of the claimants against the Trust in 2008, 2010, 2011 and 2012 were at least protected acts. There was no dispute or challenge about that from the respondent. However witnesses were not questioned on their knowledge of these earlier claims save that Mr Kershaw did accept he was aware of them in their generality. (159) Notwithstanding the Tribunal’s conclusions on protected disclosures and the first alleged protected act (12 January 2015), the Tribunal went on to consider its conclusions in the alternative as if the four asserted protected disclosures and all protected acts were found to be qualifying protected disclosures or protected acts, though with regard to chronological causation being possible – an alleged detriment could only follow a protected disclosure or protected act Case Number: 2302657/2017 & 2302658/2017 36 of 65 which had already been made. The Tribunal accepted, broadly, that the respondent’s witnesses and relevant decision makers, had knowledge of the communications asserted to be protected disclosures or protected acts. There was no challenge from the respondent in this regard. The claimants were questioned about whether Ms Hill QC was aware of their previous litigation and said they were not aware if she was. The Tribunal concluded that Ms Hill QC was not made aware by the respondent, it was not in the terms of reference. Comparators (160) The Tribunal considered Ms Burns to be a comparator in so far as it was alleged that she had received more favourable treatment (by being given the right to be accompanied by her partner) during Ms Hill QC’s investigation meetings. The circumstances however were not materially the same under S. 23 (1) EqA. This was because the claimant did not request to be accompanied by their partner during that investigation. They asked to be accompanied by Mr Elesinnla, a barrister, at the MHPS investigation. In addition, they did not actually attend Ms Hill QC’s investigation meeting. The more appropriate comparator (put forward by the respondent) was Mr Hale who was also denied comparable legal accompaniment during his MHPS process. Alternatively, the Tribunal considered how a hypothetical comparator would have been treated. Issues 1, 34 & 67 (161) In the light of the Tribunal’s findings above, the reason why the claimants’ collective grievance was dealt with in the way it was, was not the claimants’ race; or that they had made a protected disclosure or that they had done a protected act. The reason was because as found above, the respondent regarded the multiple grievances which were outstanding at the time, from several individuals, were inextricably linked and because the discrimination grievances were carved out of the grievance policy. It mattered not that there was no collective mechanism in the DAW policy, the respondent was entitled to have regard to the primary subject matter first which dis-engaged the policy. The claimants’ right to be accompanied grievance was considered under the grievance policy and though this was alleged to be discriminatory, the primary subject matter was about the right to be accompanied. There was no contrary earlier agreement. The initial response from Mr Kershaw of 16 January 2015 was nothing more than an acknowledgment. To interpret or read this as some form of binding agreement was fanciful. The Tribunal concluded the respondent’s decision was not influenced at all, materially or otherwise, by the collective grievance of 12 January 2015. There was no detriment to the claimants, thus the burden of proof (protected disclosure) did not shift. If it did, the Tribunal was satisfied the protected disclosure did not materially influence the respondent’s decision. There was no detriment even if the grievance policy should have been used. There was no right to insist on Ms Burns being present. The burden of proof did not shift for the direct race discrimination or victimisation claim (in so far as there was any detriment) as the facts were wholly insufficient from which the Tribunal could conclude an unlawful act of discrimination. If the Tribunal was wrong about that, the respondent’s Case Number: 2302657/2017 & 2302658/2017 37 of 65 explanation was cogent and in no sense whatsoever because of the claimants’ race or a protected act. Issues 2, 35 and 38 (162) In light of the findings above, the reason why Ms Hill QC was appointed to act as investigator was not the claimants’ race; or that they had made a protected disclosure or that they had done a protected act. Ms Hill QC was appointed as independent investigator with no previous dealings with the Trust (this was not disputed) who had significant discrimination law pedigree. The Tribunal were left with an in impression that it was her outcome rather her appointment which had bothered the complainants. That will be considered separately but for the purposes of this issue that was the wrong way round. Her appointment was not a matter for agreement with the claimants. That was accepted by the claimants under cross examination. (As found above, there wasn’t a requirement for this under the grievance procedure either). That was consistent with the unliteral appointment of Mr Hann (and the person lined up before him from Simons, Muirhead & Burton Solicitors) (pages 2272 & 2277). The Tribunal concluded with regard to Mr Rose that the claimants had not been made aware of his resignation shortly after he had joined the Trust. This became evident during the Hearing when the Tribunal ordered disclosure of any evidence supporting the evidential assertion that Mr Rose had resigned. The disclosed email did support that evidential assertion (2279). The Tribunal were unable to conclude the reason why Mr Rose resigned. He was not called but could have been. Further there was no evidence at all before the Tribunal that his resignation had anything to do with Ms Burns on racial grounds or otherwise. There was no detriment to the claimants, thus the burden of proof (protected disclosure) did not shift. If it did, the Tribunal was satisfied the protected disclosure did not materially influence the respondent’s decision . The burden of proof did not shift for the direct race discrimination claim or victimisation claim (in so far as there was any detriment) as the facts were wholly insufficient from which the Tribunal could conclude an unlawful act of discrimination. If the Tribunal was wrong about that, the respondent’s explanation was cogent and in no sense whatsoever because of the claimants’ race or a protected act. Issues 36, 37, 69 and 70 (corresponding issues 3 and 4 relating to direct race discrimination were withdrawn) (163) In the light of the findings above, the reason why Ms Hill’s QC did not consider the communications of 2 July 2015 and 27 July 2015 and the reason why she reached her findings in relation to the collective grievance of 12 January 2015 and her failure to identify them as protected disclosures or protected acts, was not because the claimants had made a protected disclosure or because they had done a protected act. The complaints raised in both 2 July and 27 July communications from the GMB were primarily concerning the appointment of Ms Hill QC to act as the investigator, the DAW being the vehicle of resolution and the consolidation of all the grievances. In particular, the Tribunal had regard to the proposed outcome sought in the 2 July communication which was the appointment of somebody else and the abandonment of the current investigation. It would have been wholly inappropriate and irregular for Ms Hill Case Number: 2302657/2017 & 2302658/2017 38 of 65 QC to adjudicate on her own appointment to do the investigation and was out with her terms of reference. That was a matter for the Trust in relation to which the Tribunal has already made its findings and conclusions. The thrust of the 27 July communication was about the alleged scope of the investigation. That was already known and clear. It did not require separate attention. The Tribunal has given extensive consideration itself in its findings above with regard to Ms Hill QC’s findings in relation to the collective grievance of 12 January 2015. (164) The Tribunal had regard to Pasab Ltd t/a Jhoots Pharmacy and another v Woods 2012 EWCA Civ 1578 in which the Court of Appeal considered whether a Muslim employee, who was dismissed following her remark that she worked at a ’little Sikh club’ suffered unlawful discrimination. The Court of Appeal upheld the EAT which had allowed the employer’s appeal against a finding of unlawful victimisation. The EAT focused on the "reason why" Mrs Woods was dismissed. It pointed out that the Tribunal accepted that the true reason for dismissal was Mrs Jhooty's belief that Mr Woods had made a racist comment. In the EAT's view, it was not open to the Tribunal, having accepted this, to impute some different reason to Mrs Jhooty based on its own assessment of the meaning of Mrs Woods' remark. The EAT concluded that if the remark was viewed by Mrs Jhooty not as a protected act but as an offensive racist comment, then the reason for dismissal was not that Mrs Woods had done a protected act, "but some other feature genuinely separable from the implicit complaint of discrimination". The Court of Appeal upheld the EAT's decision. The Court held that, in effect, the Tribunal found that Mrs Woods was dismissed because Mrs Jhooty believed she had made a racist remark. In a strict causative sense, Mrs Woods was dismissed because she made a remark which the Tribunal considered objectively to be a complaint of discrimination. However, the protected act was not the reason why Mrs Jhooty acted as she did. Hallett LJ stated: "I fail to see how it can be said that the reason why the appellant was dismissed was because she was claiming the respondents were themselves racist or discriminatory. It was the other way round. The appellant was dismissed because it was thought she was a racist. A "protected act" played no part, certainly no substantial part in the dismissal." (165) It appeared to the Tribunal that this case was on all fours with Jhoots. Even if the claimants collective grievance did amount to a protected act, which the Tribunal have concluded it did not, it was not the reason why Ms Hill QC found as she did. (166) In relation to the communications of 2 and 27 July 2015, there was no detriment to the claimants, thus the burden of proof (protected disclosure) did not shift. If it did, the Tribunal was satisfied the protected disclosure did not materially influence the respondent’s (or Ms Hill QC’s) decision . The burden of proof did not shift for the victimisation claim as there was no detriment; alternatively, the facts were wholly insufficient from which the Tribunal could conclude an unlawful act of discrimination. If the Tribunal was wrong about that, the respondents explanation was cogent and in no sense whatsoever because of a protected act. Case Number: 2302657/2017 & 2302658/2017 39 of 65 (167) In relation to the collective grievance, there was a detriment to the claimants – the outcome of Ms Hill QC’s investigation. If the Tribunal had concluded that there was a protected disclosure or a protected act, the burden of proof would have shifted to the respondent. If it did, based on its findings, conclusions and analysis above, the Tribunal was satisfied a protected disclosure did not materially influence the respondent’s decision. The burden of proof did not shift for victimisation claim as the facts were wholly insufficient from which the Tribunal could conclude an unlawful act of discrimination. If the Tribunal was wrong about that, the respondent’s explanation (via Ms Hill QC too) was cogent and in no sense whatsoever because of a protected act. Issues 5, 38 and 71 (168) This was withdrawn during the Hearing. Accordingly no conclusions were made. Issues 6, 39 and 72 (169) In the light of the findings above, the reason why the respondent subjected the claimants to a MHPS investigation was not the claimants’ race; or that they had made a protected disclosure or that they had done a protected act. It was because they were considered to have a case to answer based on Ms Hill QC’s investigation outcome; their multiple refusals to engage in that process; and as a consequence the belief that they were in breach of their implied duty of trust and confidence which could amount to a breakdown in the employment relationship (Mr Altman’s letter of 18 January 2016, pages 626-629). This was clearly a position the respondent could take on the evidence available at the time. The claimants could have participated in the investigation, in protest, and/or made their position known on it concurrently and reserved their position on any consequential outcome and go through an appeal process against the outcome. They opted to do none of this. Part of the process flowed from the claimants’ own initiation of a complaint. It is not uncommon for a party who is being investigated to disagree with many aspects of the process or even the basis of an allegation being made, but it is not an answer to refuse to cooperate or participate. In so far as the claimants felt justified in not taking part, the consequential response from the respondent in relation to that decision was not, in the Tribunal’s view, based on any prohibited ground. (170) There was a detriment to the claimants – the instigation of an MHPS investigation. If the Tribunal had concluded that there was a protected disclosure or a protected act, the burden of proof would have shifted to the respondent. If it did, based on its findings, conclusions and analysis above, the Tribunal was satisfied a protected disclosure did not materially influence the respondent’s decision. The burden of proof did not shift for the direct race discrimination claim or victimisation claim as the facts were wholly insufficient from which the Tribunal could conclude an unlawful act of discrimination. If the Tribunal was wrong about that, the respondent’s explanation was cogent and in no sense whatsoever because of the claimants’ race or a protected act. Issues 7, 40 and 73 and issues 8, 41 and 74 and issues 22, 55 and 88 Case Number: 2302657/2017 & 2302658/2017 40 of 65 (171) In the light of the findings above, (in particular paragraphs 64-70), the reason why the claimants were denied the right to be accompanied at the MHPS investigation by Mr Elesinnla, a barrister, was not the claimants’ race; or that they had made a protected disclosure or that they had done a protected act. The respondent’s applied a reasonable interpretation of their policy, with regard to Kulkarni and were entitled to form a view that Mr Elesinnla was a privately retained barrister first. The primary relationship was not that of a friend. The Tribunal concluded that the respondents reference to and reliance on Mr Elesinnla’s previous retainer since 2008 by the claimants in multiple litigation against the Trust was about the fact of litigation and Mr Elesinnla’s legal capacity, rather than anything to do with the nature of those claims. The Tribunal did not need to make any further conclusions, its analysis in its findings above was comprehensive in this regard. The Tribunal noted its finding regarding the respondent’s reference to a white consultant (Mr Hale) who had been similarly denied a private lawyer to accompany him (pages 484-485) in reaching its conclusion. The grievance and appeal against the grievance outcome did not alter the Tribunal’s view. On the contrary, it manifested an interpretation of the policy by multiple individuals up to and including Mr Viggers who presided over the appeal against dismissal. There was nothing preventing any individual from reaching a contrary view. That the claimants believed that the individuals were not independent or were furthering a racist agenda was rejected. The Tribunal will address this specifically later. (172) There was no detriment to the claimants, as they were seeking legal representation beyond what was permitted. Thus the burden of proof (protected disclosure) did not shift. If it did, the Tribunal was satisfied a protected disclosure did not materially influence the respondent’s decision . The burden of proof did not shift for the direct race discrimination claim or victimisation claim (in so far as there was any detriment) as the facts were wholly insufficient from which the Tribunal could conclude an unlawful act of discrimination. If the Tribunal was wrong about that, the respondent’s explanation was cogent and in no sense whatsoever because of the claimants’ race or a protected act. Issues 9, 42 and 75 (173) In the light of the findings above, the reason why the respondent continued with the MHPS investigation whilst the County Court claim remained outstanding, was not the claimants’ race; or that they had made a protected disclosure or that they had done a protected act. It was because the respondent wished to continue with their internal process, in circumstances where there had been no legal interference with their right to do and because there had already been a protracted grievance and grievance appeal process which had concluded in relation to the right to be accompanied. Whether it was reasonable or unreasonable to do so (in the sense of it being within the range of reasonable responses) was not the test or informative of whether a prohibited reason (protected disclosure, race or a protected act) was causative of that decision. The County Court claim was issued on 22 December 2016. The claimants had not sought declaratory, not injunctive relief. As found above, the County Court Judge who heard the injunction application on 19 September 2017 (the day Case Number: 2302657/2017 & 2302658/2017 41 of 65 before the disciplinary hearing) was critical of the delay (on part of the claimants). The Judge was similarly critical of the delay at the final Hearing in January 2018. There was no relevant activity between January 2017 and 21 July 2017 which the Tribunal were taken to regarding prosecution of the County Court claim or the imminence of a Trial. This was the period in which the MHPS investigation was resumed and concluded (by Dr Maccario’s letter of 12 July 2017 (page 860). The Tribunal had regard to the fourth bullet on page 311 which stated that the employing Trust squarely had responsibility for the disciplining of its medical staff and dentists – not outsiders (MHPS). This was addressed by Dr Findlay in paragraph 49 of his witness statement too. (174) There was no detriment to the claimants, as they could and should have sought injunctive relief a lot earlier during the currency of the resumption of the investigation process. They were to blame in this regard. In fact they sought injunctive relief after the investigation process had closed and the matter had moved to a disciplinary hearing. The burden of proof (protected disclosure) did not shift. If it did, the Tribunal was satisfied a protected disclosure did not materially influence the respondent’s decision . The burden of proof did not shift for the direct race discrimination claim or victimisation claim (in so far as there was any detriment) as the facts were wholly insufficient from which the Tribunal could conclude an unlawful act of discrimination. If the Tribunal was wrong about that, the respondent’s explanation was cogent and in no sense whatsoever because of the claimants’ race or a protected act. Issues 10, 43, 76 (175) In the light of the findings above, the investigation process was reasonable. Alternatively, the reason why the respondent undertook the investigation in the manner and nature in which it did, in so far as it might not have been reasonable, was not because of the claimants’ race; or that they had made a protected disclosure or that they had done a protected act. The claimants had been invited to meet with Mr Maccario. They refused because of the County Court claim but as noted above did nothing more at that time. Mr Carter, who became the case manager when Mr Altman left, revisited but refused Mr Elesinnla accompanying the claimants (page 850). The Tribunal noted that one of the signatories to the collective grievance was a nurse who had received a final written warning and had appealed the sanction. At her hearing, she was accompanied my Mr Rufus George of GMB. The Tribunal concluded that the claimants could have attended the investigation hearing, under protest if they so wished and considered attending with Mr George. As found above, Mr Maccario felt hampered by the non-attendance/participation in the investigation process by the claimants. He had considered Ms Hill QC’s report with appendices and there was nothing improper or unreasonable in his investigation considerations. As found above in paragraph 75, to the extent that he endorsed Ms Hill QC’s findings was permissible. There was no reason to render redundant a comprehensive investigation. The Tribunal concluded that Mr Maccario would have listened to any challenge or criticism of the findings and reached his own conclusion. As found in paragraph 76, his knowledge was good enough. Case Number: 2302657/2017 & 2302658/2017 42 of 65 (176) There was no detriment to the claimants in relation to the reasonableness of the MHPS investigation. The burden of proof (protected disclosure) did not shift. If it did, the Tribunal was satisfied a protected disclosure did not materially influence the respondent’s decision . The burden of proof did not shift for the direct race discrimination claim or victimisation claim (in so far as there was any detriment) as the facts were wholly insufficient from which the Tribunal could conclude an unlawful act of discrimination. If the Tribunal was wrong about that, the respondent’s explanation was cogent and in no sense whatsoever because of the claimants’ race or a protected act. Issue 11, 44 and 77 and 12, 45 and 78 (177) In the light of the findings above, Dr Findlay was not prejudiced towards the claimants before he chaired the disciplinary hearing and did not make derogatory remarks about the claimants. The reason why he made enquiries of the O&G department and made reference to Mr Kalu being difficult was not because of the claimants’ race; or that they had made a protected disclosure or that they had done a protected act. The reason was because he had read the 2016 CQC report and had become aware, before taking over the management of the Trust (April 2017), that there was a culture of grievances generally and because he had been informed that the claimants were going through a MHPS process. The Tribunal concluded that he would have been told in outline the case against them (including that there were discrimination allegations from the claimants) and that his reference to being difficult was in relation to their non-cooperation and non-participation in the process and their insistence on having Mr Elesinnla accompany them at the MHPS investigation. The Tribunal concluded that the CQC report was not complete. Only some of the pages were in the bundle but there was general reference to a grievance culture in parts of the report – pages 1987, 1993. In addition the Tribunal accepted the testimony of Dr Findlay in this regard. The Tribunal has already made findings in paragraph 88 about any variance between the notes of Ms Farmer (and her the evidence) and the notes of Ms Brown admitted on day one of the Hearing. GMC check (178) There was no detriment to the claimants in relation to Dr Findlay’s enquiries in April 2017. The burden of proof (protected disclosure) did not shift. If it did, the Tribunal was satisfied a protected disclosure did not materially influence the respondent’s decision. The burden of proof did not shift for the direct race discrimination claim or victimisation claim (in so far as there was any detriment) as the facts were wholly insufficient from which the Tribunal could conclude an unlawful act of discrimination. If the Tribunal was wrong about that, the respondent’s explanation was cogent and in no sense whatsoever because of the claimants’ race or a protected act. Issues 13, 46 and 79 (179) In the light of the findings above, the reason why the respondent pursued allegations against the claimants for their failure to participate in Ms Hill QC’s investigation was not because of the claimants’ race; or that they had made a protected disclosure or that they had done a protected act. The reason why was Case Number: 2302657/2017 & 2302658/2017 43 of 65 because the claimants had refused, in breach of an express mutual trust and confidence clause (page 463) and the mirroring implied duty, to comply with numerous reasonable instructions to do so. It was no answer that the claimants did not agree with Ms Hill’s appointment or the consolidation of multiple grievances. The allegations of discrimination post-dated the last request/instruction. The forum to make their positions known was in the procedure itself and in the right of appeal against it and whether under protest or otherwise. The Tribunal found the investigation under the DAW, the appointment of Ms Hill QC and the consolidation of all interlinked grievances outstanding to be reasonable. There were five instructions or requests to participate between 2 June and 22 June 2015 (pages 525, 540, 549, 550 and 552). At least three of these letters were framed as instructions to cooperate. The Tribunal had regard to the claimants own collective grievance being in the scope of the investigation, which the claimants considered to be a serious complaint of discrimination; as such it was incumbent on the claimants to cooperate in its resolution even if they had concerns with process. (180) There was a detriment to the claimants – the pursuit of allegations relating to the failure of the claimants to cooperate with/participate in Ms Hill QC’s investigation. If the Tribunal had concluded that there was a protected disclosure, the burden of proof would have shifted to the respondent. If it did, based on its findings, conclusions and analysis above, the Tribunal was satisfied a protected disclosure did not materially influence the respondent’s decision. The burden of proof did not shift for the direct race discrimination claim or victimisation claim as the facts were wholly insufficient from which the Tribunal could conclude an unlawful act of discrimination. If the Tribunal was wrong about that, the respondent’s explanation was cogent and in no sense whatsoever because of the claimants’ race or a protected act. Issues 14, 47 and 80 and 15, 48 and 81 and 20, 53 and 86 (181) In the light of the findings above, the reason why the respondent continued with the disciplinary process notwithstanding the claimants’ email of 13 September 2017 was not because of the claimants’ race; or that they had made a protected disclosure or that they had done a protected act. The reason why the respondent continued was because the issues raised were considered part and parcel of the disciplinary process itself with the exception of the allegations made regarding Dr Findlay which were investigated by Ms Farmer and resolved to her satisfaction and of Ms Griffiths such that there was no reason to suspend the disciplinary process. The Tribunal has found the respondent’s approach was reasonable and open to it (paragraph 83) and has reached findings and conclusions regarding the failure to seek injunctive relief sooner in relation to the MHPS investigation. The Tribunal had regard to the history of the processes to date which included the hearing of the grievance about the right to be accompanied and the appeal against it. (182) There was no detriment to the claimants in relation to continuance of the process - once Ms Farmer had undertaken her enquiries. The burden of proof (protected disclosure) did not shift. If it did, the Tribunal was satisfied a protected disclosure did not materially influence the respondent’s decision. The Case Number: 2302657/2017 & 2302658/2017 44 of 65 burden of proof did not shift for the direct race discrimination claim or victimisation claim (in so far as there was any detriment) as the facts were wholly insufficient from which the Tribunal could conclude an unlawful act of discrimination. If the Tribunal was wrong about that, the respondent’s explanation was cogent and in no sense whatsoever because of the claimants’ race or a protected act. Issues 16, 49 and 82 (183) The Tribunal repeats its conclusions under issues 9, 42 and 75 above with regard to the MHPS investigation which had preceded the disciplinary hearing. In addition, In the light of the findings above, the reason why Dr Findlay refused to adjourn the disciplinary hearing was not because of the claimants’ race; or that they had made a protected disclosure or that they had done a protected act. The reason why he refused was because of the findings above in paragraphs 96 and 97 namely that Dr Findlay noted that there had been no court (injunctive) intervention; it was for the Trust to manage its own procedures; the matter was considerably long-standing; Dr Findlay’s own interpretation of the right to be accompanied provision. The Order of the County Court was to request an adjournment only couched in terms that the application had been made very late. (184) There was a detriment to the claimants – the disciplinary hearing was not adjourned. If the Tribunal had concluded that there was a protected disclosure, the burden of proof would have shifted to the respondent. If it did, based on its findings, conclusions and analysis above, the Tribunal was satisfied a protected disclosure did not materially influence the respondent’s decision. The burden of proof did not shift for the direct race discrimination claim or victimisation claim as the facts were wholly insufficient from which the Tribunal could conclude an unlawful act of discrimination. If the Tribunal was wrong about that, the respondent’s explanation was cogent and in no sense whatsoever because of the claimants’ race or a protected act. Issues 17, 50 and 83 (185) In the light of the findings above, the reason why Dr Findlay dismissed the claimants was not because of the claimants’ race; or that they had made a protected disclosure or that they had done a protected act. The Tribunal concluded the reason why Dr Findlay dismissed the claimants were as set out in the Tribunal’s findings in paragraph 95 above namely that the charge of victimisation was upheld which he considered to be bad faith; the charge of repeated refusal to comply with instructions to cooperate in the Ms Hill QC investigation was upheld – which were gross misconduct individually or together and the latter was also was a breach of mutual trust and confidence which had led to a breakdown in the employment relationship. Notwithstanding the claimants’ absence, Dr Findlay undertook his responsibility comprehensively, including questioning Mr Carter and Mr Maccario and anticipating questions that may have arisen from the claimants. The Tribunal concluded that Dr Findlay acted with independence of mind and reached his own view in relation to the motive for the collective grievance. Contrary to the assertions about Dr Case Number: 2302657/2017 & 2302658/2017 45 of 65 Findlay’s agenda, he was new to the Trust, since the takeover, he had no personal knowledge of the claimants nor could be said to be dwelling on the historical issues/processes since 2014. (186) There was a detriment to the claimants – the claimants were dismissed. If the Tribunal had concluded that there was a protected disclosure, the burden of proof would have shifted to the respondent. If it did, based on its findings, conclusions and analysis above, the Tribunal was satisfied a protected disclosure did not materially influence the respondent’s decision. The burden of proof did not shift for the direct race discrimination claim or victimisation claim, as the facts were wholly insufficient from which the Tribunal could conclude an unlawful act of discrimination. If the Tribunal was wrong about that, the respondent’s explanation was cogent and in no sense whatsoever because of the claimants’ race or a protected act. Issues 18, 51 and 84 (187) In the light of the findings above, the reason why Dr Findlay was discussing replacements for the claimants, following their dismissal, was not because of the claimants’ race; or that they had made a protected disclosure or that they had done a protected act. The reason why was because the claimants had been dismissed and Dr Findlay was discussing the consequential clinical gap in the O&G department. This meeting was on 30 September 2017. The Tribunal refers to its findings in paragraphs 114 and 115 above. The Tribunal noted that neither Mr Kelada nor Ms Brown were called to give evidence. The Tribunal concluded that it was incredible and not plausible that Dr Findlay would speak about the claimants’ appeal process in such terms and in such unguarded detail so soon afterwards. The comments attributed to Dr Findlay by Mr Kelada (as conveyed by Mr Kalu), referred to what would happen if there were Employment Tribunal proceedings; that there were ‘other ways’ available to the Trust if a Tribunal ruled dismissals unlawful and that the Trust could insist on trust and confidence having broken down irretrievably. This summary was notably different to what Ms Brown was alleging who stated that Dr Findlay had said if an appeal was successful, the Trust did not need to reinstate. The Tribunal relied on the contemporaneous denial of comments attributed to Dr Findlay and his rejection in oral testimony. This was accepted. In evidence, Dr Findlay also informed the Tribunal that shortly before the Tribunal Hearing, Ms Brown had been demoted; the Tribunal thus factored in and concluded there was an incentive for her to give/make available a statement of unfavourable evidence against the respondent. This evidence was not contested and she was not present to provide a contrary explanation or be questioned. The statement relied on by the claimants was served extremely late, it was unsigned and was not contemporaneous. The Tribunal also had regard to its finding (paragraph 101) that Dr Findlay did not refer the claimants to the GMC until after the appeal hearing suggesting that there was no fait accompli. The contemporaneous dialogue about this had been transparent. (188) There was no detriment to the claimants in relation to Dr Findlay’s discussions with the O&G department regarding resourcing after the claimants’ dismissals. The burden of proof (protected disclosure) did not shift. If it did, the Tribunal Case Number: 2302657/2017 & 2302658/2017 46 of 65 was satisfied a protected disclosure did not materially influence the respondent’s decision. The burden of proof did not shift for the direct race discrimination claim or victimisation claim (in so far as there was any detriment) as the facts were wholly insufficient from which the Tribunal could conclude an unlawful act of discrimination. If the Tribunal was wrong about that, the respondent’s explanation was cogent and in no sense whatsoever because of the claimants’ race or a protected act. Issues 19, 52 and 85 (189) In the light of the findings above, the reason Mr Viggers was appointed to chair the appeal hearing was not because of the claimants’ race; or that they had made a protected disclosure or that they had done a protected act. The reason why he was appointed was because he was independent, senior and experienced. He was the Chair of the Board, the most senior person in the Trust. He had 50 years working experience and had previously overturned dismissals on appeal. None of this evidence was disputed or challenged. With regard to the findings in paragraphs 104, 109 and 110 above in particular, there was no legitimate basis upon which to challenge his appointment. If the premise was that he had been copied in to an email of 13 September 2017 with two others and three others to whom the email was directly addressed, this was wholly insufficient. There was no information or evidence at all before the Tribunal that he had anything more to do with it other than receiving and reading the email. In addition, it did not provide a warrant for a scathing attack on his intellect or justify the far reaching accusations of racism in very distasteful language or tone. They had no knowledge of his background. The Tribunal found Mr Viggers to be a very credible witness who had a genuine intention to resolve the appeal objectively. He was not given a chance. The Tribunal recognised that this was a stressful period in the claimants’ life; notwithstanding, the emails about Mr Viggers were not written in the heat of the moment or in close proximity to their dismissals. This issue was solely about the appointment of Mr Viggers. It should never have been an issue in this case. (190) There was no detriment to the claimants in relation to the involvement or appointment of Mr Viggers to chair the appeal. The burden of proof (protected disclosure) did not shift. If it did, the Tribunal was satisfied a protected disclosure did not materially influence the respondent’s decision. The burden of proof did not shift for the direct race discrimination claim or victimisation claim (in so far as there was any detriment) as the facts were wholly insufficient from which the Tribunal could conclude an unlawful act of discrimination. If the Tribunal was wrong about that, the respondent’s explanation was cogent and in no sense whatsoever because of the claimants’ race or a protected act. Issues 21, 54 and 87 (191) In the light of the findings above, the reason why the claimants were not supplied with all of the documentation before the appeal hearing was not because of the claimants’ race; or that they had made a protected disclosure or that they had done a protected act. The Reason why they did not receive all of the documentation (limited to the notes of Ms Farmers discussions with Mr Case Number: 2302657/2017 & 2302658/2017 47 of 65 Ajala and Ms Brown) was a genuine oversight. It had always been stated that there were discussions/notes and that they would be sent. The respondent had not been ambiguous or evasive about whether there were notes. The Tribunal had regard in particular to its findings in paragraph 106 above, Ms Griffiths email at page 925 and Ms Farmer’s cross examination. It was only these documents that had not been provided sooner. The Tribunal concluded that this would have been realised a lot sooner had the claimants attended the disciplinary hearing with Dr Findlay. It was inevitable this would have been challenged and discussed then. Also, this agreed issue was framed in a way which could have led the Tribunal to conclude that there was nothing adverse at all on the part of the respondent. This is because the issue was about whether the respondent had failed to provide documents prior to or during the appeal hearing. They were presented during the appeal hearing; but the claimants were not present. The Tribunal nevertheless decided the issue on the basis of whether documents had been provided before as it was felt this was the actual intention of the issue. (192) There was a detriment to the claimants – the claimants had not received Ms Farmer’s notes before the appeal hearing. If the Tribunal had concluded that there was a protected disclosure, the burden of proof would have shifted to the respondent. If it did, based on its findings, conclusions and analysis above, the Tribunal was satisfied a protected disclosure did not materially influence the respondent’s decision. The burden of proof did not shift for the direct race discrimination claim and victimisation claim, as the facts were wholly insufficient from which the Tribunal could conclude an unlawful act of discrimination. If the Tribunal was wrong about that, the respondents explanation was cogent and in no sense whatsoever because of the claimants’ race or a protected act. Unreasonableness in relation to the late provision of the notes was not a basis upon which to decide that the respondent’s explanation was tainted by discrimination at all. Issues 23, 56 and 89 (193) In the light of the findings above, relevant questions were asked of Dr Findlay at the appeal hearing. To the extent that the questions were either not relevant or that further relevant questions ought to have been asked, the reason why was not because of the claimants’ race; or that they had made a protected disclosure or that they had done a protected act. The reason why was because the claimants had not attended the appeal hearing or provided a list of questions they wished for the appeal panel to put to Dr Findlay. As found above (paragraph 113 and 114), the appeal panel did question Dr Findlay at the appeal hearing. In fact Dr Findlay responses to each appeal ground and the points raised in the email of 10 April 2018 was the substance of the appeal process. It was through the appeal questions and answers that it was realised that Dr Farmer’s notes of discussions with Mr Ajala and Ms Brown were not before the appeal panel. (194) There was no detriment to the claimants in relation to the questioning of Dr Findlay at the appeal hearing. The burden of proof (protected disclosure) did not shift. If it did, the Tribunal was satisfied a protected disclosure did not Case Number: 2302657/2017 & 2302658/2017 48 of 65 materially influence the respondent’s decision. The burden of proof did not shift for the direct race discrimination claim or victimisation claim (in so far as there was any detriment) as the facts were wholly insufficient from which the Tribunal could conclude an unlawful act of discrimination. If the Tribunal was wrong about that, the respondent’s explanation was cogent and in no sense whatsoever because of the claimants’ race or a protected act. Issues 24, 57 and 90 (195) In the light of the findings above, the failure to ask relevant questions of the claimants including about their written submissions was not because of the claimants’ race; or that they had made a protected disclosure or that they had done a protected act. The reason why was because the claimant’s did not attend the appeal hearing; they had known since Mr Viggers’ letter of 16 March 2018 that Mr Elesinnla would not be permitted to attend the hearing as their accompanying companion; thus, it was incumbent on the claimants, if they so wished, to send in any (other) written submission they wanted the appeal panel to consider. They did not do so. They had made it clear in their grounds of appeal that they would not attend any appeal hearing without Mr Elesinnla. The reference in the claimants’ email of 9 April 2018 to put questions to them in writing and that they would do our best to respond was too little too late. Alternatively, the email itself with 20 numbered points served as their additional appeal comments over and above the grounds of appeal and were addressed in the appeal hearing and considered and referred to in the appeal outcome letter. So were the claimants’ draft particulars of claim to the Tribunal. (196) There was no detriment to the claimants in relation to the failure to ask the claimants relevant questions including about their written submissions. The burden of proof (protected disclosure) did not shift. If it did, the Tribunal was satisfied a protected disclosure did not materially influence the respondent’s decision. The burden of proof did not shift for the direct race discrimination claim or victimisation claim (in so far as there was any detriment) as the facts were wholly insufficient from which the Tribunal could conclude an unlawful act of discrimination. If the Tribunal was wrong about that, the respondent’s explanation was cogent and in no sense whatsoever because of the claimants’ race or a protected act. Issues 25, 58 and 91 (197) In the light of the findings above, there was no failure to address points made by the claimants in their ‘witness’ submissions’, which the Tribunal understood to be the email of 9 April 2018. Alternatively, if there was any failure in this regard, it was not because of the claimants’ race; or that they had made a protected disclosure or that they had done a protected act. The reason why was because the appeal panel considered the contents of the appeal of 9 April 2018 and chose to address them in summary terms in the appeal outcome letter. They were considered in sufficient detail with Dr Findlay’s responses at the appeal hearing. The appeal panel also considered there was an overlap between the 9 April 2018 email and the originating five grounds of appeal. Mr Viggers’ witness statement addressed the broad consideration of the 9 April Case Number: 2302657/2017 & 2302658/2017 49 of 65 2018 email too including as part of the appeal panel forum (paragraphs 11 to 16). This approach was an enforced substitute (on the respondent) to the claimants’ personal attendance which was likely to have provided them with more specificity. (198) There was no detriment to the claimants in relation to the points in their email of 9 April 2018. The burden of proof (protected disclosure) did not shift. If it did, the Tribunal was satisfied a protected disclosure did not materially influence the respondent’s decision. The burden of proof did not shift for the direct race discrimination claim or victimisation claim (in so far as there was any detriment) as the facts were wholly insufficient from which the Tribunal could conclude an unlawful act of discrimination. If the Tribunal was wrong about that, the respondent’s explanation was cogent and in no sense whatsoever because of the claimants’ race or a protected act. Issues 26, 59 and 92 (199) In the light of the findings above, the failure to interview witnesses was not because of the claimants’ race; or that they had made a protected disclosure or that they had done a protected act. The reason why was because Mr Viggers and the other members of the appeal panel did not feel it necessary to do so. There was an examination of Dr Findlay’s response to the appeal grounds directly with Dr Findlay at the hearing. No witnesses had been identified by the claimants who should be spoken to. Neither did the claimants attend the appeal hearing. The appeal documentation which the panel had been provided was comprehensive. The only documentation not seen was the notes of Ms farmers discussions which were provided during the course of the hearing. (200) There was no detriment to the claimants in relation to the failure to interview witnesses. The burden of proof (protected disclosure) did not shift. If it did, the Tribunal was satisfied a protected disclosure did not materially influence the respondent’s decision. The burden of proof did not shift for the direct race discrimination claim or victimisation claim (in so far as there was any detriment) as the facts were wholly insufficient from which the Tribunal could conclude an unlawful act of discrimination. If the Tribunal was wrong about that, the respondent’s explanation was cogent and in no sense whatsoever because of the claimants’ race or a protected act. Issues 27, 60 and 93 (201) In the light of the findings above, allowing Dr Findlay to produce evidence during the course of the appeal hearing (Dr Farmer’s notes) was not because of the claimants’ race; or that they had made a protected disclosure or that they had done a protected act. The reason why was because it became apparent to the appeal panel that they did not have these notes and they were considered relevant to review. Consideration of Dr Findlay’s discussions shortly after taking over management of the Trust had not been unaddressed or avoided until then, in fact it was the probing of that issue that led to the realisation that the appeal panel did not have the notes. Case Number: 2302657/2017 & 2302658/2017 50 of 65 (202) There was no detriment to the claimants in relation to permitting Dr Findlay to produce the notes at the hearing. The burden of proof (protected disclosure) did not shift. If it did, the Tribunal was satisfied a protected disclosure did not materially influence the respondent’s decision. The burden of proof did not shift for the direct race discrimination claim or victimisation claim (in so far as there was any detriment) as the facts were wholly insufficient from which the Tribunal could conclude an unlawful act of discrimination. If the Tribunal was wrong about that, the respondent’s explanation was cogent and in no sense whatsoever because of the claimants’ race or a protected act. Issues 28, 61 and 94 (203) In the light of the findings above, the delay in conveying an appeal outcome by one working day was not because of the claimants’ race; or that they had made a protected disclosure or that they had done a protected act. The reason why was because this was the earliest Mr Viggers and the appeal panel could do so. There had been emails received from the claimants after the appeal hearing too. The delay of one day was de-minimis especially having regard to the context of the formal processes over the previous 3 years. In addition, the claimants had abandoned any pursuit of alleged delay with regard to commencement of the investigation and the conclusions in relation to Ms Hill QC’s investigation. In the light of that, this issue was somewhat surprising and felt like an unnecessary targeting of Mr Viggers. (204) There was no detriment to the claimants in relation to the timing of the appeal outcome. The burden of proof (protected disclosure) did not shift. If it did, the Tribunal was satisfied a protected disclosure did not materially influence the respondent’s decision. The burden of proof did not shift for the direct race discrimination claim or victimisation claim (in so far as there was any detriment) as the facts were wholly insufficient from which the Tribunal could conclude an unlawful act of discrimination. If the Tribunal was wrong about that, the respondent’s explanation was cogent and in no sense whatsoever because of the claimants’ race or a protected act. Issues 29, 62 and 95 (205) In the light of the findings above, the appeal hearing was not a rubber stamping exercise or a sham. Alternatively, to the extent that there was any insufficient enquiry or understanding on part of the appeal panel, this was not because of the claimants’ race; or that they had made a protected disclosure or that they had done a protected act. The reason why was because the claimants did not attend the hearing. There were 3 people on the panel, all independent. Many questions were put to Dr Findlay relating to the grounds of appeal and the email of 9 April 2018. The Tribunal has already found above (paragraph 110) that Mr Viggers was acting with objectivity and his evidence in this regard was completely credible. (206) There was no detriment to the claimants in relation to the appeal hearing deliberations. The burden of proof (protected disclosure) did not shift. If it did, Case Number: 2302657/2017 & 2302658/2017 51 of 65 the Tribunal was satisfied a protected disclosure did not materially influence the respondent’s decision. The burden of proof did not shift for the direct race discrimination claim or victimisation claim (in so far as there was any detriment) as the facts were wholly insufficient from which the Tribunal could conclude an unlawful act of discrimination. If the Tribunal was wrong about that, the respondent’s explanation was cogent and in no sense whatsoever because of the claimants’ race or a protected act. Issues 30, 63 and 96 (207) In the light of the findings above, the reason why the appeal hearing notes were not provided to the claimants sooner than 26 April 2018 was not because of the claimants’ race; or that they had made a protected disclosure or that they had done a protected act. The reason why was because that was the soonest date they could be reasonably transcribed and sent to the claimants. The appeal outcome letter had made it clear that the notes would follow. (208) There was no detriment to the claimants in relation to receiving the appeal hearing notes on 26 April 2018. The burden of proof (protected disclosure) did not shift. If it did, the Tribunal was satisfied a protected disclosure did not materially influence the respondent’s decision. The burden of proof did not shift for the direct race discrimination claim or victimisation claim (in so far as there was any detriment) as the facts were wholly insufficient from which the Tribunal could conclude an unlawful act of discrimination. If the Tribunal was wrong about that, the respondent’s explanation was cogent and in no sense whatsoever because of the claimants’ race or a protected act. Issues 31, 64 and 97 (209) In the light of the findings above, the reason why Dr Findlay referred the claimants to the GMC was not because of the claimants’ race; or that they had made a protected disclosure or that they had done a protected act. The reason why was because, following discussions with the Employee Liaison officer whose responsibility included advice on GMC referrals, it was felt appropriate to do so. The Tribunal noted that Dr Findlay, at the time, had himself suggested that any such referral was delayed until the appeal process had been concluded. In the Tribunal’s view, this was to avoid an unnecessary referral. Further, Dr Findlay had made it clear that there were no clinical concerns or restrictions in place. In proactively/expressly saying this, the Tribunal concluded he was being transparent and objective when responding to Mr Cotton (980). The Tribunal saw evidence that two white doctors had been referred to the GMC – one was a self-referral (page 480A), the other was a referral by complainants of the doctor (page 470A & 483A). In both cases, a referral by the Trust was not, thus, required. There was no evidence before the Tribunal, that had it not been for the manner or source of these referrals, that the Trust would not have referred them. The Tribunal concluded, following its analysis of the content and the other documents referred to in his paragraph, the comparator examples at pages 1122 and 1127 in the Bundle (‘6’ and ‘7’) referred to Mr Howell and Mr Hale respectively who had both been dismissed for gross misconduct (discrimination). In cross examination, it was put to the claimants if Case Number: 2302657/2017 & 2302658/2017 52 of 65 they were aware that one had self-reported, the other by the complainants of him. This evidence was not disputed or challenged by the claimants. In evidence, Dr Findlay referred to his knowledge of a white female who had been referred to the NMC which was consistent with the nurse dismissed for gross misconduct for discrimination (page 1085 – 1094) comparator (‘2’). (210) There was a detriment to the claimants – the claimants were referred to the GMC following their unsuccessful appeals against dismissal. If the Tribunal had concluded that there was a protected disclosure, the burden of proof would have shifted to the respondent. If it did, based on its findings, conclusions and analysis above, the Tribunal was satisfied a protected disclosure did not materially influence the respondent’s decision. The burden of proof did not shift for the direct race discrimination claim and victimisation claim, as the facts were wholly insufficient from which the Tribunal could conclude an unlawful act of discrimination. If the Tribunal was wrong about that, the respondent’s explanation was cogent and in no sense whatsoever because of the claimants’ race or a protected act. Issues 32, 65 and 98 (211) In the light of the findings above, Dr Findlay did not seek to deliberately mislead the GMC by not providing the pleadings in the case, the GMB grievances of 2 and 27 July 2015, the collective grievance of 12 January 2015 and the grievance of 13 September 2017. In so far as the initial provision of documents was concerned, the decision to provide ‘just’ those, was not because of the claimants’ race; or that they had made a protected disclosure or that they had done a protected act. The referral process was not a one sided affair, the claimants would have a full right of reply. Dr Findlay provided the MHPS report (which itself included Ms Hill QC’s report with appendices (page 861). It was not however clear from the referral document whether each and every appendix and the documents therein were provided at the same time. The emails of 2 July and 27 July 2015 were part of the investigation correspondence of Ms Hill QC’s report, appendix 5 (pages 1902 and 1935) (IC 106 & IC 139 respectively).The collective grievance of 12 January 2015 was at pages 1167 & 1187. However, further documents were sought from the respondent by the GMC by its email of 17 July 2018 (pages 1051-1052), by reference to the Management case report of 11 September 2017 which referred to documents from appendices in its footer. Such a request was inevitable – it seemed highly improbable that a complete set of documents could be provided once and exclusively. The appeal outcome letter for example referred to the claim form (to the ET) though it was not provided. There was no intention to mislead and it is hard to imagine how this could be possible when the documents that were provided initially referred to the other documents which were later sought and provided. The reason why the documents listed at 1 to 8 in the referral document were provided was to give a comprehensive overview. These documents included key documents at each stage - namely the investigation report, the dismissal letter and the appeal outcome. It also appeared to the Tribunal that part of the claimants’ concerns were actually about their belief that the GMC was a racist organisation, rather than the extent Case Number: 2302657/2017 & 2302658/2017 53 of 65 of documentation initially provided (7 June email, page 1046), repeated later on 5 December 2018 (page 1063). (212) There was no detriment to the claimants in relation to the extent or ‘choice’ of documentation provided at the referral point to the GMC. The burden of proof (protected disclosure) did not shift. If it did, the Tribunal was satisfied a protected disclosure did not materially influence the respondent’s decision. The burden of proof did not shift for the direct race discrimination claim or victimisation claim (in so far as there was any detriment) as the facts were wholly insufficient from which the Tribunal could conclude an unlawful act of discrimination. If the Tribunal was wrong about that, the respondent’s explanation was cogent and in no sense whatsoever because of the claimants’ race or a protected act. Issues 33, 66 and 99 (213) In the light of the findings above, the comments made by Dr Findlay and Ms Griffiths on 28 March 2017 at a presentation to senior leaders of the Trust was not because of the claimants’ race; or that they had made a protected disclosure or that they had done a protected act. The reason why the comments were made was because they had read the 2016 CQC report and had believed there were cultural issues and a disproportionate level of formal grievances and disciplinary procedures. The evidence of Dr Findlay in paragraphs 93 to 96 in his witness statement was corroborated by Ms Griffiths paragraphs 6 to 8. The comments were about the forum and timing of resolution not about the entitlement to raise concerns. There was no evidence before the Tribunal that the comments were in relation to the BME network or about discrimination grievances. The claimants were not present at this meeting and no-one present at this meeting was called to give contrary evidence. (214) There was no detriment to the claimants in relation to the comments of Dr Findlay and/or Ms Griffiths in March 2017. The burden of proof (protected disclosure) did not shift. If it did, the Tribunal was satisfied a protected disclosure did not materially influence the respondent’s decision. The burden of proof did not shift for the direct race discrimination claim or victimisation claim (in so far as there was any detriment) as the facts were wholly insufficient from which the Tribunal could conclude an unlawful act of discrimination. If the Tribunal was wrong about that, the respondent’s explanation was cogent and in no sense whatsoever because of the claimants’ race or a protected act. Unfair Dismissal (215) Having regard to the findings and conclusions above, the Tribunal concluded that the respondent, substantively, satisfied the Burchell test in relation to its decision to dismiss the claimants. The respondent had a genuine belief in the claimants’ misconduct, it had reasonable grounds on which to hold that belief and it carried out as much investigation as was reasonable. Alternatively, that the employment relationship had broken down irretrievably which was a substantial reason. Case Number: 2302657/2017 & 2302658/2017 54 of 65 (216) Its decision to dismiss the claimants was, substantively within the range of reasonable responses open to it. (217) However, procedurally, the Tribunal concluded there were two shortcomings. First, in relation to the provision of Ms Farmer’s notes. These were not produced (for inspection) until the appeal hearing and were sent on to the claimants thereafter. The respondent had itself identified that an investigation was needed in relation to what was the subject matter of those notes – Dr Findlay’s comments earlier in the year to named individuals. The claimants had requested them more than once and were told these would be forthcoming. The notes went to their view of whether Dr Findlay should undertake the disciplinary hearing. (218) In addition, the Medical Director (Dr Findlay) was not involved at the investigation stage as the Case Manager. The MHPS investigation procedure (1.5) on page 290a states that the Medical Director will act as case manager in cases involving clinical consultants. The power to delegate was only possible in ‘other’ cases. However, Dr Findlay did become involved at the subsequent (disciplinary) stage. In so far as this error was about appropriate senior involvement, this did occur at the next stage and cured, in the Tribunal’s conclusion, any earlier procedural irregularity in the same way as an appeal curing a earlier defect at dismissal. It was not the case, quite obviously, that the process would have been ‘stopped’ at an earlier stage by his earlier involvement. The Tribunal thus concluded this error did not render the dismissal unfair. (219) The Tribunal did however conclude that the dismissal was rendered procedurally unfair because of the defect with the late provision of Ms Farmer’s notes. (220) With that conclusion in mind and even if the Tribunal was wrong with regard to its conclusion in paragraph 218 above, the Tribunal went on to consider whether a Polkey reduction should be made to the compensatory award and concluded that a 100% reduction should be made. There was no prospect whatsoever, having regard to the above findings and conclusions, that earlier provision of Ms Farmer’s note would have made any difference to the outcome. The claimants would still not have attended any hearing; they would still have insisted on Mr Elesinnla accompanying them and they would still have criticised the involvement of both Dr Findlay and Mr Viggers. They would have said nothing different (save in relation to the absence of the notes). The theme and pattern of their entrenched position would have remained. It was set in stone. (221) Additionally/alternatively, under S.123 (2) ERA, pursuant to the claimants conduct before their dismissal, in particular because of the finding of victimisation made herein and also because the Tribunal concluded that the claimants persistent refusal to cooperate and participate was insubordinate and unreasonable - they had refused to obey reasonable management instructions to do so, it was not just and equitable for a basic award to be payable. It is reduced by 100%. The Tribunal also concluded it was not just and equitable to Case Number: 2302657/2017 & 2302658/2017 55 of 65 make any compensatory award under S.123 (6) ERA as the claimants’ conduct caused or contributed to their dismissal – it was culpable and blameworthy. (222) For the avoidance of doubt and again by reference to the findings and conclusions above the claim under S.103A is not well founded. The (alleged) protected disclosure (s) was not the reason or principal reason for the claimants’ dismissals. Wrongful Dismissal (223) The Tribunal also concluded that the claimants were in fundamental breach of contract because they had discriminated (victimised) Ms Burns and because the Tribunal was satisfied that the claimants had persistently refused to cooperate and participate in Ms Hill QC’s investigation which was insubordinate and unreasonable. They had refused to obey reasonable management instructions to do so. (224) The Tribunal concluded there was no affirmation of the breach of contract. The assertion that the respondent did not reserve its position to take disciplinary action following the claimants’ appeals against Ms Hill QC’s investigation outcome being dismissed on 6 November 2015 was flawed. In those letters, the respondent wrote, expressly, that they would write to the claimants about what action, if any, would be taken in the light of Ms Hill’s investigation findings (page 620). The subsequent MHPS investigation commenced on 18 January 2016. Jurisdiction (225) The claim forms were presented on 29 September 2017. There was no ACAS certificate in the bundle. It is possible the claim form was accepted as an interim relief claim only (although the claim form read wider than that). The point was not taken or addressed by either party. (226) As such, allegations of discrimination or protected disclosure detriment predating 30 June 2017 were, prima facie out of time. (227) That put a large number of the claims out of time with the exception of the MHPS investigation report of Mr Maccarrio, the dismissal (and related issues) and the appeal against dismissal (and related issues) were in time (following amendment). (228) The Tribunal considered if the allegations since the decision to treat the collective grievance of 12 January 2015 as part of a single investigation with other grievances (on 2 June 2015) to the appeal outcome could be considered conduct extending over a period of time. (229) Whilst the decisions and actions in that period were taken by various/separate senior managers, including a third party, independently of each other including by some individuals the claimants had never met/did not know, there was a sufficient link between them to make it a continuing state of discriminatory affairs. However in South Western Ambulance NHS Foundation Trust v Case Number: 2302657/2017 & 2302658/2017 56 of 65 King 2019 UKEAT 0056, it was said if any of the constituent acts are found not to be an act of discrimination, then it cannot be part of a continuing act. The EAT said in paragraphs 23, 33 and 37: “23. Given that the time limits are such as to create a jurisdictional hurdle for the Claimant, if, ultimately, the acts relied upon are found not to form part of conduct extending over a period so as to enlarge time, then the claim would fail, unless, that is, the Tribunal considers that it would be just and equitable to extend time in respect of any acts that are proven but out of time. 33. In order to give rise to liability, the act complained of must be an act of discrimination. Where the complaint is about conduct extending over a period, the Claimant will usually rely upon a series of acts over time (I refer to these for convenience as the “constituent acts”) each of which is connected with the other, either because they are instances of the application of a discriminatory policy, rule or practice or they are evidence of a continuing discriminatory state of affairs. However, if any of those constituent acts is found not to be an act of discrimination, then it cannot be part of the continuing act. If a Tribunal considers several constituent acts taking place over the space of a year and finds only the first to be discriminatory, it would not be open to it to conclude that there was nevertheless conduct extending over the year. To hold otherwise would be, as Ms Omeri submits, to render the time limit provisions meaningless. That is because a claimant could allege that there is a continuing act by relying upon numerous matters which either did not take place or which were not held to be discriminatory. 37. That analysis seems to me to be supported by the conclusions reached by the EAT in the Jhuti case where it was held that: Accordingly, we consider that (after a substantive hearing) where there is a series of acts relied on as similar or continuing acts, there is no warrant for a different interpretation to be applied and we reject Mr Jackson's argument that in the case of a series of acts none of the acts need be actionable. In our judgment, at least the last of the acts or failures to act in the series must be both in time and proven to be actionable if it is to be capable of enlarging time under s.48(3)(a) ERA. Acts relied on but on which a claimant does not succeed, whether because the facts are not made out or the ground for the treatment is not a protected disclosure, cannot be relevant for these purposes .” (Emphasis added) (230) The final act and none of those earlier acts have been found to be discriminatory at what was a final hearing of the issues. Accordingly the continuing act was not made out. On that basis, it was not necessary to decide if it is was just and equitable (discrimination) to extend time, or if it had been reasonably practicable (protected disclosure) for claims to have been presented within three months as there were no discrimination or detriment claims proven/made out in respect of which any discretion needed to exercised. Case Number: 2302657/2017 & 2302658/2017 57 of 65