Mr A Iqbal v King’s College Hospital NHS Foundation Trust: 2302667/2023 and 2306824/2023
JUDGMENT
The unanimous decision of the Tribunal is that the claims fail and are dismissed. APPROVED BY EJ ANDREWS WRITTEN REASONS FOR THE JUDGMENT PROVIDED AT THE REQUEST OF BOTH PARTIES[1]In this matter the claimant complains that he has been discriminated against because of both his race and religion, harassed on the same bases, victimised and subjected to detriments having made protected disclosures. He submitted two claim forms to this effect. The first on 2 June 2023 and the second on 1 December 2023. He remains in the employment of the respondent. The Issues[2]A 13-page list of issues (LOI) was agreed by the parties following two preliminary hearings at which the two claims were ordered to be heard together and orders made for the provision of further information. The dates of the matters in dispute range from July 2011 to August 2023. Almost all of the factual allegations formed the basis of more than one, and often several, heads of legal claim.[3]Disclosure was primarily completed in accordance with the case management timetable but a number of further documents were disclosed by the respondent to the claimant on 23 May 2025. As a result the claimant applied on the first morning of this hearing for amendment to the LOI by way, Mr Ward said, of clarification rather than amendment to the underlying claims. That application was resisted by the respondent.[4]For the reasons given orally to the parties at the commencement of day two of the hearing, that application was refused. Evidence[5]We heard first from the claimant. He had prepared his witness statement unassisted by his former legal representatives. Although the statement referred to many page numbers in the bundle it did not set out in narrative form much of his actual evidence about the various allegations. Therefore, most of that detail only became apparent through cross-examination and reexamination and made the Tribunal’s fact finding exercise more lengthy than it should have been. Given that at the time the witness statement was prepared the claimant was acting in person, latitude was shown to him in this respect.[6]For the respondent we heard from:a. Dr K Satchithananda, Consultant Radiologist;b. Mrs A Murtagh, R&D Director and Head of Nursing Research;c. Dr M J Michell, Consultant Radiologist; andd. Dr J Morel, Consultant Radiologist.[7]It also became necessary to recall the claimant to give evidence on additional documents disclosed by the respondent on day six of the hearing. We heard that short additional evidence from the claimant between the evidence of Dr Michell and Dr Morel.[8]We had an agreed bundle of documents (c2,150 pages) before us. The Tribunal notified the parties at the outset of the hearing that we would only read documents that we were specifically referred to and would only read documents referred to in witness statements insofar as they were identified as being relevant to an issue in the case.[9]Both parties made written and oral submissions on the conclusion of the evidence (40 pages and one hour for the respondent; 6 pages and 10 minutes for the claimant). Relevant Law[10]Direct Discrimination: section 13 of the Equality Act 2010 (the 2010 Act) provides that a person discriminates against another if, because of a protected characteristic, he treats that person less favourably than he treats or would treat others. Race and religion are protected characteristics.[11]To answer whether treatment was ‘because of’ the protected characteristic requires the Tribunal to consider the reason why the claimant was treated as he was. The Equality and Human Rights Commission Equality Act Code of Practice states that whilst the protected characteristic needs to be a cause of the less favourable treatment it does not need to be the only or even the main cause.[12]It is a matter for the Tribunal to determine what amounts to less favourable treatment interpreting it in a common sense way and based on what a reasonable person might find to be detrimental.[13]Section 23 of the 2010 Act refers to comparators and says that there must be no material difference between the circumstances relating to each case.[14]Harassment: section 26 of the 2010 Act provides that A harasses B if A engages in unwanted conduct related to a relevant protected characteristic and that conduct has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. Conduct is ‘related’ to a protected characteristic where it is by reason of that characteristic or because of the form it takes. When deciding whether conduct has had that effect, we take into account the perception of B, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.[15]Victimisation: section 27 of the 2010 Act provides that a person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because B does a protected act, or A believes that B has done, or may do, a protected act.[16]Making an allegation (whether or not express) that A or another person has contravened the 2010 Act and bringing proceedings under the 2010 Act are both protected acts.[17]Something will amount to a detriment where a reasonable person would or might take the view that the act or omission in question gives rise to some disadvantage.[18]The word ‘because’ in this context does not equate to ‘but for’. Rather, the Tribunal has to determine whether the protected act, consciously or subconsciously, was the motivation for the relevant treatment. The protected act need not be the sole reason for the detriment in question; it is sufficient if it was a significant influence on A’s decision.[19]Burden of Proof: section 136 of the 2010 Act provides that in relation to any proceedings relating to a contravention of the Act, if there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. But this does not apply if A shows that A did not contravene the provision.[20]Thus, at the first stage the Tribunal - having regard to all the evidence - has to make findings of primary fact. It is for the claimant to prove on the balance of probabilities facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination. A mere difference in treatment, without something more, will not be sufficient. The something more, however, need not be a great deal.[21]Time limits for bringing Equality Act claims: section 123 of the 2010 Act provides: (1) Subject to section 140B [extension for ACAS Conciliation] proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. … (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.[22]Consequently, a complaint will be in time if it relates to an act that ends in the primary time limit or it relates to a number of separate acts which taken together amount to a continuing act or state of affairs that ends within that primary time limit (distinct from an act with continuing consequences where time runs from the date of the act as above). However if any of the separate acts are found not to be an act of discrimination, they cannot be part of a continuing act.[23]If the complaint is out of time then the Tribunal has a discretion to extend time for such other period as it thinks just and equitable but the burden is on the claimant to convince the Tribunal to do so. The Tribunal’s discretion is very wide and it is entitled to consider anything it considers relevant subject to the principle that there are good public policy reasons why time limits appear in our legislation and they should be exercised strictly in employment cases. When Tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so.[24]The Court of Appeal has confirmed that the best approach for a Tribunal in considering the exercise of this discretion is to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time, including in particular the length of, and the reasons for, the delay.[25]Whistle-blowing: section 47B of the Employment Rights Act 1996 (the 1996 Act) gives a worker the right not to be subjected to any detriment by the employer on the ground that he or she has made a protected disclosure.[26]Any disclosure of information which in the reasonable belief of the worker making the disclosure tends to show one or more of the matters listed at section 43B(1) of the 1996 Act, and (if made on or after 25 June 2013) is reasonably believed to be made in the public interest (not defined), will be a qualifying disclosure. That list includes that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject and that the health and safety of any individual has been, is being or is likely to be endangered.[27]In order for a statement or disclosure to be a qualifying disclosure, it has to have a sufficient factual content and specificity such as is capable of tending to show one of those matters. This is a matter of fact for the Tribunal to determine on the evidence heard. It must identify, albeit not in strict legal language, the breach relied upon.[28]Whether a worker had the required reasonable belief (of both what the information tended to show and whether the disclosure was being made in the public interest) is judged taking into account that worker’s individual circumstances. Accordingly, whether belief is reasonable must be subject to what a person in their position would reasonably believe to be wrongdoing. Those with relevant professional knowledge will be held to a higher standard than laypersons in respect of what is reasonable for them to believe. The information does not have to be true but to be reasonably believed to be true, there must be some evidential basis for it. The worker must exercise some judgment on his or her own part consistent with the evidence and resources available.[29]To be protected a qualifying disclosure has to be made in accordance with one of six permitted methods of disclosure which include to the person’s employer (section 43C(1)(a)) (and if made before 25 June 2013 in good faith).[30]As to the link between the protected disclosure and the action taken, the former need not be the only or main reason for the latter provided it had a material (i.e. more than trivial) influence.[31]The burden of proving that, on the balance of probabilities, there was a protected disclosure, a detriment and the respondent subjected the claimant to that detriment rests initially on the claimant. If he can do that, the burden will shift to the respondent to prove that he was not subjected to the detriment on the ground that he had made the protected disclosure.[32]Time limits for bringing whistleblowing claims: such complaints must be presented to the Tribunal 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 within such further period as the Tribunal considered reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented within that three month period (section 48(3)).[33]Whether it was reasonably practicable for the claimant to submit the claim in time is a question of fact for the Tribunal to decide having looked at all the surrounding circumstances and considered and evaluated the claimant’s reasons. Preliminary Issues - Protected Disclosures[34]Although not formally treated as preliminary issues during the hearing, it assists first to answer whether the claimant made any protected disclosure (PD). If he did not then his whistleblowing claims fall away.[35]The first alleged PDs were in 2011/12. The context was a grant agreement entered into in September 2012 between Hologic, an external funder, and the respondent for £60,000 (payable in three tranches). The claimant allegedly believed that the respondent was not fulfilling their obligations pursuant to that grant and that this was therefore a breach of a legal obligation.[36]The claimant’s evidence is that he raised his concerns in this regard with Ms K Dean, then Divisional Manager and Dr Michell’s line manager, faceto-face in June 2012. An exchange of emails between them at the time does confirm that the claimant requested a meeting with Ms Dean to discuss ‘issues relating to work’ and in a subsequent email sent by him on 26 June to her he attached the relevant grant agreement ‘for her perusal’. His evidence was that he explained to her that the respondent was not fulfilling its legal obligation and was in breach of contract.[37]Given that the claimant’s discussions with Ms Dean were in June 2012, prior to the grant agreement being concluded in September 2012 with the first payment of £20,000 falling due on signature of contract, there cannot have been a disclosure of information tending to show a breach of a legal obligation in June 2012. They were not therefore PDs and any claim predicated on them, therefore, fails.[38]The second alleged PD is the raising of concerns by the claimant in 2014/15 regarding alleged research misconduct and breach of governance between 2014 and July 2016. In the course of the hearing these concerns were referred to as the ‘2015/2016 grievance’, although there was no single grievance document. There were however relevant exchanges of emails between the claimant and Dr Michell with one starting on 30 January 2015 under the subject line ‘Omission of authorship’ in which the claimant complains about his absence as an author in a publication regarding the TOMMY trial in the journal Health Technology Assessment.[39]The claimant referred the exchange to Professor Newton, Deputy Director of Research & Development, who investigated. In August 2015 Prof Newton published his finding that the claimant did not fulfil the criteria for authorship. There was no reference either in the underlying exchange of emails or the final report to any concerns raised by the claimant regarding breach or otherwise of the Hologic grant agreement from 2012.[40]It is very clear on the face of this exchange of emails that the claimant’s concern was a personal one about his own role and authorship of the work and included an allegation that Professor Gilbert (Head of Radiology, previously at University of Aberdeen, now at University of Cambridge) had ‘stolen’ his work. There is no indication in the words used by the claimant in his emails of any wider concern of public interest.[41]The dispute continued, however, and in 2016 the respondent’s Research Governance Committee, chaired by Professor Post, Consultant in Sexual Health & HIV, was convened to consider the matter.[42]Issues regarding the two versions of the notes of this meeting and Dr Michell’s subsequent letter of apology are dealt with below, but as far as the substance of the claimant’s complaints and whether they amount to a PD are concerned, it is apparent from both versions of the notes of the meeting (which are very substantially the same) that the committee had been asked to re-examine the authorship dispute relating to the TOMMY trial and the scope of the investigation was limited to that. No wider issues are mentioned or implied.[43]Authorship of published papers regarding clinical research is clearly capable of being a matter in the public interest. It is also capable of being an entirely personal concern. Such documentation as we have from the time strongly suggests that the claimant’s concern was of a personal nature i.e. his dispute was that he should have been listed as an author, he was not and this was to his personal disadvantage. There is nothing to suggest that when he raised his concerns he did so out of any wider concern for the public interest. There is also nothing to suggest that he raised any issue regarding any concerns about a breach, or otherwise, of the 2012 Hologic agreement. Although the claimant said in evidence that he did so orally to various people at various times, that evidence was insufficient for us to make a finding of fact to that effect. There was simply not enough reliable detail to do so.[44]Any claim predicated on the second alleged PD therefore fails.[45]The third alleged PD is the claimant’s grievance submitted on 28 March 2023. This is easier to identify as there clearly was a written document albeit a very large one. The grievance comprised 16 pages with 104 exhibits.[46]The opening paragraph of the claimant’s covering letter to his grievance stated: ‘I am writing to formally lodge a grievance complaint against King’s College Hospital (KCH) for their failure to provide me with a safe and healthy working environment, by blocking my most recent research project on 3 January 2023. During my 14 years of loyal employment, I have experienced harassment, bullying, discrimination, and victimization in violation of the following policies:• ‘Equality Diversity and Inclusion Policy',• 'Raising Concerns - Whistleblowing Policy',• 'Research Misconduct and Breaches of Governance Policy',• 'Disciplinary Policy and Conduct Standards' and• 'Early Resolution Policy'. Moreover, because of speaking up, I have been subjected to unfair treatment and I feel that my rights as a victim have been further violated.’[47]Plainly this amounts to a protected act for the purposes of the claimant’s victimisation claims. As to whether it is also a PD, however, it is clear from the contents and tone of the covering letter to the grievance that the complaint remains personal in nature. Indeed the claimant referred to, amongst other things:a. ‘…blocking my career progress and causing me great stress, having an impact on my health.’b. ‘The bullying and harassment I have suffered has negatively impacted my career…’c. ‘I have been denied promotions, denied opportunities, and overlooked for publications and academic tasks…’d. ‘This has prevented me from reaching my full potential and denied me the chance to experience the same successes as my peers, damaging my relationship with national and international collaborators, tarnishing my reputation and making me suffer humiliation.’e. ‘…I am unable to progress in my career and professional development.’ and the outcomes he sought by way of resolution were all personal in nature.[48]However the nature of the grievance was extremely wide-ranging and as is clear from the subsequent investigation covered very largely, if not completely, the range of matters brought before this Tribunal.[49]As described below, certain aspects of the grievance were passed to Mrs Murtagh to investigate under the Research Misconduct Policy including the Hologic grant agreement for 2012 and the subsequent Newton/Post investigations.[50]Although the vast majority of the 2023 grievance remains personal in nature, it clearly includes matters that are capable of being in the public interest (as stated above) and were treated as such by the respondent because they referred them to the Research Misconduct Committee.[51]We find therefore that the claimant’s 2023 grievance contained a PD but it can only found any claims of whistleblowing detriment insofar as they relate to detriments alleged to have occurred after 28 March 2023.[52]The consequence of these findings on PDs is that the matters pleaded only as whistleblowing detriment and alleged to have happened before 28 March 2023 cannot proceed and are not considered further (LOI 26(c)(i), 26(c)(ii) (bullets 3-6 inc), 26(c)(iii) & 26(d) (other than RSNA). Findings of Fact[53]Having assessed all the evidence, both oral and written, and the submissions made by the parties we find on the balance of probabilities the following to be the relevant facts.[54]Only relevant findings of fact relevant to the issues, and those necessary for the Tribunal to determine, have been referred to in this judgment. It has not been necessary, and neither would it be proportionate, to determine each and every fact in dispute. The Tribunal has not referred in these findings to every document it read and/or was taken to but that does not mean it was not considered if the Tribunal were taken to the document in evidence or as part of a reading list.[55]Credibility[56]Credibility is a matter we take into account when assessing conflicting accounts of events. Both parties have made submissions regarding the credibility of the other.[57]There were a number of occasions when the claimant’s evidence was shown to be inaccurate and we agree with the examples set out in the respondent’s submissions. Even taking into account the passage of time, we formed the view that the claimant would often say that which supported his claim and only when challenged was more careful about the accuracy of his answer. We find that on occasion he exaggerated his evidence.[58]Mr Ward for the claimant made serious allegations about Dr Michell’s evidence accusing him of perjury in relation to the delivery of the apology letter described below. He invited the Tribunal to find therefore that the entirety of his evidence was unreliable. Overall we found Dr Michell, and the other witnesses for the respondent, to be thoughtful and accurate as far as they were able taking into account the historic nature of many of the allegations.[59]Even taking credibility into account, our fact finding exercise remains confined to the balance of probabilities. Therefore, when we prefer one account over another on a disputed fact we are not – unless we expressly say so – finding that a witness lied to us. Rather that the weight of evidence and our assessment of that evidence leads us to conclude that one account is more likely to be true than the other.[60]The Claimant[61]The claimant commenced employment with the respondent in February 2009 as a Principal Clinical Researcher in the Breast Radiology Department at band 8a. The claimant is of Pakistani origin and is a practising Muslim. He is quite correctly referred to as ‘Dr Iqbal’ in these proceedings as he has a Bachelor of Medicine. He did not, however complete his foundation training, is not a practising medical practitioner and is not registered with the GMC. Consequently he is not employed by the respondent in any clinical capacity.[62]The claimant is a highly intelligent, academically qualified researcher. He fully understands the need for accuracy and is also clearly very capable of undertaking any necessary research he needs to regarding his employment rights.[63]The claimant was employed initially on a one-year fixed term contract to assist on a specific project with Dr Michell (then the Clinical Director for the breast screening programme) in relation to breast tomosynthesis. Dr Michell had, in conjunction with HR, put forward a specific case for that research together with the draft job description (JD) and funding was made available by the respondent to create the role. Dr Michell was part of the panel that recruited the claimant and he acted as the claimant’s clinical supervisor until 2014.[64]Although the details are now unclear, it is apparent that funding was found internally for the claimant’s position to continue beyond that initial one year term. Unfortunately the corresponding paperwork was not formalised and therefore we have not had before us any updated written contract of employment and the claimant’s JD was certainly not updated. Dr Michell’s evidence, which was not challenged, was that at the time the initial contract expired he enjoyed a good relationship with the claimant, valued his contribution to the department and wanted him to continue in the role.[65]It is apparent however that the relationship did start to deteriorate. Dr Michell identified a disagreement over the MMRC study in about 2012 as the beginning of tensions between the claimant and his colleagues.[66]All other aspects of line management, i.e. that did not relate to clinical matters, have been provided to the claimant throughout by what is now called Supervisor but was previously called the Superintendent - a role at band 8b (one band higher than the claimant). A significant number of individuals have performed that role during the claimant’s employment starting with Ms V Philips through to most recently Ms J Hannah.[67]The Respondent[68]The respondent is a large, well known London NHS hospital with a nationally important research and teaching function. Reflecting the area in which it is based it has an extremely diverse workforce both administratively and clinically.[69]It has the sort of internal HR policies that one would expect to see in a large employer but also some specific policies and processes relevant to clinical work that are referred to below as appropriate. We were not referred to any written policy regarding the conduct of appraisals which we found surprising.[70]The claims fall within two broad categories: those relating to general management issues and those of a professional nature. We have grouped them accordingly in our findings and have indicated to which parts of the LOI each matter relates. We have also in this section, in order to avoid repetition in the conclusions section, made findings as to whether any specific adverse treatment of the claimant was because of or related to his protected characteristics or because he did a protected act or made a PD.[71]Management Issues[72]Job grade and failure to promote - LOI 8(f) & (g)[73]In short, the claimant says that since his employment started in 2009 his responsibilities have increased such that his original JD no longer reflects his expanded role and he should be upgraded with the accompanying pay rise.[74]In particular he relies upon a period between 2012 and 2016 when he worked 3 days per week in the main radiology unit but was then recalled to the breast radiology department. His evidence varied regarding whether he has continued to work in the main unit since 2016. Certainly in 2023 one of his complaints was that he was ‘isolated’ in breast radiology. The respondent’s view is that his work is confined to the breast radiology department (which does not minimise the very important work done there). We find that even if the claimant has since 2016 done occasional work in the main unit, the vast majority of his role is performed in breast radiology.[75]In 2016 Dr Satchithananda emailed the claimant confirming details of their discussion regarding his career aspirations. In particular she had emphasised that if he wished to develop an academic career it was her strong advice that he complete his PhD which he had started when working in Scotland. His PhD remains uncompleted.[76]The claimant had also made it clear to the respondent that he wanted his JD to be reviewed. At his workplace stress review with his then supervisor Ms Briody in August 2020 that was expressly discussed. It was made clear to him however that the process was that he should produce a redrafted JD which would be ratified by the department and then passed to another team for review and possible re-banding (i.e. increase from band 8a to 8b or 8c). This was in line with the respondent’s Job Matching Procedure and Guidance policy.[77]The issue was then discussed again with the claimant by Ms Briody at his 2021 appraisal (at which Dr Morel was also present) on 8 October 2021. Under ‘task’ it was noted: ‘2008 JD - roles and responsibilities listed against current workload, providing evidence of task completed/projects delivered or ongoing. Evidence and roles/responsibilities currently undertaken that are not included in the 2008 JD.’[78]The claimant says that Ms Briody and her line manager Mr Hastings specifically recommended expanding the claimant’s role into the main radiology department and upgrading him to grade 8c - which would mean him leapfrogging over his line manager in terms of seniority - but that Dr Satchithananda blocked this when she became Head of Radiology in August 2020. The emails from the time do not support such a conclusion. Specifically there is an email from Mr Hastings to the claimant on 11 December 2020 expressly stating that the ‘infrastructure/roles’ would remain as was. It would be logical that Mr Hastings and/or Ms Briody would have discussed the issue with Dr Satchithananda but we accept her evidence that she has no recollection of such a discussion. In any event, even if that was the recommendation it would have to go through the rebanding process as above.[79]On 14 October 2021 Ms Briody emailed the claimant asking him to, among other things, provide the requested JD details. In reply the claimant sent her a redrafted JD (at band 8c and including an appointment as an Honorary Senior Lecturer). His evidence was that that JD had been drafted in conjunction with Ms Briody but that is not supported by the emails between them at the time and we do not find that to be the case.[80]Ms Briody replied saying: ‘I understand your longstanding concerns regarding your role + banding. As discussed in your appraisal, the mechanism through which we review your JD + potentially revise your role is for you to provide: 1. Details/evidence of your current role + responsibilities against your existing JD (2008) 2. Details/evidence of your current role + responsibilities which fall outside your existing JD Once we have sight of 1+ 2 above, these can be combined with additional departmental research need (as identified by service leads) in creating a revised JD.’ The claimant did not provide the required evidence in response.[81]On 7 February 2023 at a meeting with Dr Child, General Manager Radiology, the issue was discussed. In her subsequent email confirming the outcome of the meeting Dr Child said: ‘I proposed that we now hold your 2023 Appraisal and pick up on the work that was previously done in 2021 in reviewing your job description to ensure it is representative of your role and that we set some agreed objectives going forward which we work on together and keep updated.’ There was no evidence to support the assertion in the LOI that she confirmed that Dr Satchithananda had rejected revision of the 2008 JD.[82]The issue was also discussed at the claimant’s appraisal on 10 November 2023 following which Ms Hannah asked the claimant to send Dr Morel a copy of his JD for discussion. At a workplace stress assessment on 6 December 2023 (after the claim forms relevant to this case had been submitted) it was recorded that following mediation, the revised JD would be discussed with the new manager, however, ‘re-deployment will necessitate additional modifications’.[83]Our finding is that the claimant has remained at grade 8a throughout his employment and accordingly he has not been promoted and his pay band has not been increased. This was not because of the claimant’s race and/or religion nor because of any protected disclosure. It was because first the claimant did not apply for any roles at an increased band and second he did not submit in 2020/2021, as requested, his JD for consideration under the Job Matching policy nor the supporting documents that were then requested. There was no recommendation of promotion blocked by Dr Satchithananda.[84]As for the 2023 discussions regarding his JD, there is no evidence that this process was in any way being unlawfully blocked or delayed.[85]Appraisals - LOI 8(h)[86]As already noted no written policy as to appraisal process was provided to the Tribunal but the respondent’s evidence was that they should happen annually and the usual process is that the employee drives the process rather than management. We were told that employees are sent an individual task in July of each relevant year to stat the process and then sent a reminder email if necessary. A RAG report is generated for the line management who should follow up on any not completed.[87]The allegation is that the claimant had no appraisals for 6 years. This is incorrect on the face of the documents (and acknowledged in the claimant’s witness statement). The documents show that appraisals were held in 2016 & 2017 with Mrs Ali, and in 2021with Ms Briody, and in 2023 with Ms Hannah. At the request of the claimant a clinician did attend at least some of his appraisals including Professor Sidhu, Director of Radiology, Dr Satchithananda and Dr Morel.[88]The absence of appraisals in 2018 & 2019 appears to be the result of the claimant not driving forward the process, he says he complained orally only, but also a lack of sufficiently robust management systems to ensure any appraisals that do not happen are picked up and completed. The same applies to 2020 but compounded very obviously and understandably by the extreme circumstances experienced by the respondent and the whole NHS/country at the time.[89]There is no evidence to support the allegation that any absence of appraisals was because of the claimant’s protected characteristics.[90]Threats to dismiss - LOI 8(d)[91]Two allegations are made.[92]First the claimant says that Dr Michell said to him ‘I will have to let you go’ in his office in November 2013 following an angry discussion about the claimant’s concerns regarding the Hologic contract. He says that he challenged Dr Michell at the time and then raised it orally with his line manager and others at the time and subsequently. He made no written complaint until 2023 and despite being a member of the trade union he did not take it to them.[93]Dr Michell, unsurprisingly given the passage of time, says he has no recollection of such a conversation but this was not something he would say and plainly the claimant was not in fact ‘let go’.[94]We find that Dr Michell did not say those words not least because the Hologic issue allegedly identified by the claimant was simply not of sufficient seriousness to prompt such a response and caused Dr Michell no particular embarrassment or difficulty. In any event, the alleged words in themselves are ambiguous but if the claimant thought he had been threatened with dismissal it seems very unlikely he would not raise it with his union or make any written complaint.[95]The second allegation is that Dr Satchithananda told the claimant in October 2016 ‘we can hire someone else’. No context was provided by the claimant to this alleged comment and again he made no formal complaint at the time although he says he told Mrs Ali about it and she took it to the Director of Operations. Dr Satchithananda says that she has no recollection of saying those words and would not in any event make such a threat.[96]We find that she did not say it. Again the words are ambiguous, there is simply no reason for her to make such a threat and the reality is that claimant remained in role.[97]Threats of disciplinary action - LOI 8(e)[98]The claimant says that the alleged threats of disciplinary action were made by Mrs Ali in emails in August 2016, January 2017 and March 2017. It is correct that the emails do refer to the taking of disciplinary action if the claimant did not take certain steps. The claimant’s case is that Mrs Ali told him this was on the instruction of Dr Michell and/or Dr Satchithananda. We accept Dr Michell’s evidence that he had no recollection of giving such instructions and it was not an instruction he would give. Similarly we accept Dr Satchithananda’s evidence that whilst she recalls Ms Ali raising concerns with her about the claimant’s time management she would not have instructed Ms Ali to threaten disciplinary action and that her usual practice in such a situation would be to advise raising the issue with HR.[99]In cross examination Dr Michell agreed that the language used by Mrs Ali in certain emails (e.g. ‘given…I will be forced to take disciplinary action’….) implied that she was acting under instruction. Dr Michell had no direct personal knowledge of the emails however and we respectfully disagree with his reading of them.[100]The emails do indicate that Mrs Ali had taken advice from HR on certain of the concerns raised which is what we would expect and as Dr Satchithananda believes she would have advised. Taking into account the broad content of the emails – i.e. pointing out tasks that the claimant was required to perform was a reasonable management instruction – and that some of those matters were referred to in corresponding appraisals, that HR had advised Ms Ali, there was no complaint from the claimant at the time and there is no evidence (apart from claimant saying that Mrs Ali told him) that they were sent on the instruction of Dr Satchithananda &/or Dr Michell, we conclude that Mrs Ali sent these emails quite properly in her capacity as his line manager in response to genuine concerns about whether the claimant was performing certain aspects of his role. There is no evidence to support the allegation that any threats of disciplinary action were because of the claimant’s protected characteristics. In any event, they were not sent on the instruction of Dr Satchithananda &/or Dr Michell.[101]Prayer Room - LOI 8(i)[102]The claimant was moved from his office in the main campus (where the prayer room is located) to 104 Denmark Hill in February 2020 and returned on 1 July 2022. He was clearly unhappy about being required to move and sent an email on 4 November 2019 setting out his concerns. Those concerns did not refer to the move restricting his access to the prayer room. The claimant’s evidence was that he did complain about this specific issue to a number of colleagues but only orally. On 12 June 2020 the claimant emailed his newly appointed General Manager, Mr Hastings, requesting to be moved back to his old office with detailed reasons why. Again, he did not mention access to the prayer room.[103]The claimant was not the only person moved as a number of others – from an administrative function – were. It is true that he was the only researcher moved but he is the only salaried principal clinical researcher. There were also specific health related issues why certain individuals had to be moved and as a result the claimant effectively swapped with Ms Kirby (who also did not want to move and filed a complaint).[104]It is clear that the claimant was very unhappy about being separated from the consultants as this impacted his work and reduced the opportunity for informal meetings/brainstorming etc. This was quite possibly a justified concern as ‘corridor meetings’ can be useful but there is nothing to indicate he was moved for any reasons other than business need.[105]In any event it took a maximum of 15 minutes for the claimant to walk the return journey from 104 Denmark Hill to the main campus. Depending upon the time of year he would be required to pray during work hours either two or three times in the summer and four or five times in autumn/winter/spring. Accordingly the maximum time he spent walking during working hours to and from the prayer room was one hour and 15 minutes (5×15 minutes) and not the two hours 20 minutes referred to in his evidence. The claimant clarified in cross examination that that time estimate included additional transit time for non-prayer related activities. That was not made clear in his statement.[106]In his evidence the claimant also made quite extreme claims about the physical injury caused to him by the additional walking. We note this is not supported in any way by an OH report regarding the claimant prepared in June 2020. The claimant says he told the OH doctor about the injuries but they did not record it. We find it is inherently unlikely that if the claimant told an OH professional about such injuries that they would omit them from the report and we find that he was not so injured.[107]When the claimant was relocated back to the main campus in July 2022 the prayer room issue was resolved.[108]The first time the claimant put anything in writing about this issue was his grievance in March 2023. The claimant in his evidence made reference to other possible documents/emails where the issue was raised but they were not in the bundle. We note that in his appraisal in October 2021 the time taken to transfer between the two buildings was raised but he did not mention the prayer room. The claimant says that there is text missing from the hard copy of the appraisal as indicated by the ‘+’ signs in the corner of the text boxes. That is possible but looking at the manager’s comments at the end of the appraisal which refer to matters raised by the claimant and acknowledged that the radiology management team needed to improve in certain respects, we conclude that if the claimant had raised this issue his manager would have recorded it there.[109]We find that the claimant’s access to the prayer room was made more difficult between February 2020 and July 2022 but not to the extent described by the claimant in his evidence. This was not because of the claimant’s race and/or religion, however. It was because of business need.[110]Professional Issues[111]General introductory matters:[112]The respondent’s breast radiology team is involved in a wide range of research projects of varying sizes. Some are relatively small and entirely in-house whereas others are very large projects that take place over a number of years with multiple partners and are the subject of multi-million pound grants. Those projects can in turn lead to publications in academic journals either in abstract form or full paper.[113]Large projects will have assigned roles agreed at commencement. Typically:a. Chief Investigator (CI) – the person in charge of project.b. Principal Investigator (PI) - overall responsibility for the conduct of trials at each site.c. Investigator and, sometimes, co-investigator.d. Corresponding author – individual responsible for replying to queries/requests for information.[114]With regard to authorship of publications relating to medical research publications, it is widely accepted that the guidelines published by the International Committee of Medical Journal Editors are followed. As for the order of authors, the convention is that the individual who did most writing is listed first, the person with overall responsibility for the relevant project is listed last and any other contributors are listed in between. We were surprised by Dr Morel’s evidence that those contributing to a publication tend not to be too concerned by where they appear in that order. In any event it is certainly clear that this was a very important issue to the claimant as he saw participation in projects in what he at least regarded as the more senior roles and being listed as first author or higher up the order of authors, as being very important to progressing in his academic career.[115]Specific complaints:[116]TOMMY trial - LOI 8(b)(i) & 26(b)[117]The TOMMY trial started in c2010/11. It was a multicentre imaging trial led by Prof Gilbert as the CI. The respondent was one of many participants across the UK and Dr Michell was the PI at their site. One of the claimant’s arguments is that the trial was a development from his own work (MRMC) and this work was blocked. There was no evidence before us to support such an allegation. The only possibly relevant grant application (as referenced in the LOI) was in fact a joint application made by Dr Michell and the claimant in relation to MRMC in 2012.[118]The claimant’s primary role on TOMMY was to recruit and consent women to take part in the trial at the respondent’s site. He was not listed as an author for the 2015 report on the trial (although 15 individuals were) nor any of the publications arising from it although he was listed in the Acknowledgments section. Dr Michell’s evidence, which we accept, is that the question of authorship of papers arising from the trial was specifically discussed by Prof Gilbert at the outset of the planning of the trial and she made it clear that the first paper would include the PI for each site. Ultimately decisions about authorship would be that of Prof Gilbert although certainly Dr Michell would have had the opportunity to at least influence them.[119]In February 2015 the claimant formally complained within the respondent about his omission as an author. This was investigated by Prof Newton but rejected. The issue was escalated to Prof Sidhu who asked Dr Post, who had relatively recently joined the respondent, to investigate.[120]This led to a meeting of the Research Governance Committee on 24 May 2016 to re-examine the authorship dispute. The committee comprised amongst others Prof Sidhu, Dr Satchithananda, Dr Post and an HR manager. The claimant attended the meeting and Dr Michell was present for part of it.[121]The committee’s finding was that the claimant’s role in the trial had been such that he should have been listed as an author and the respondent would write to Prof Gilbert asking for consideration to be given by the trial steering committee to reflect this. Also, that Dr Michell would be asked to apologise to the claimant.[122]There are two versions of the minutes of the meeting with differences that are broadly minor apart from the fact that the reference to the apology appears in only one version. Much was made in evidence about the difference between the two sets of minutes. It is apparent that a draft was circulated by Dr Post for comment and we find that there is no significance to the difference in versions other than that they reflect the process of a draft being circulated and amended to accurately reflect the meeting.[123]The committee’s finding was that the claimant had made an outstanding contribution to the project which Dr Michell agreed with and he acknowledged that he had underestimated the claimant’s aspirations to be an author on trial publications and that he should have acted differently. He accepted then and accepts now that he should have contacted Prof Gilbert and asked her for clarification of the position regarding authorship.[124]Dr Michell sent a draft of his apology letter to other members of the committee and asked for their comments. He incorporated the HR representative’s suggested changes and the letter was prepared on headed notepaper in hardcopy with a wet signature. Dr Michell said he deliberately did this in order to give the issue the attention it deserved.[125]His oral evidence was that he then asked his PA to put the letter on the claimant’s desk. This conflicted with his written evidence that he had done that personally. The claimant says that he never received the apology letter and therefore that matter remains unresolved.[126]We find that the apology letter was prepared and put on the claimant’s desk not least because if Dr Michell had no intention of sending it why would he invite comments. Whilst it is certainly unfortunate that Dr Michell changed his evidence about how that was done, we accept that this was a genuine error caused by the passage of time. That does not mean of course that the claimant received it. If he did not, however, it is very surprising that he did not follow up more formally the absence of an outcome from the meeting. He says he did so orally but his evidence was vague.[127]In addition to Dr Michell’s apology, the committee wrote to Prof Gilbert asking that the trial steering committee reconsider the inclusion of the claimant as co-author in some of the TOMMY publications. She did not agree however and the position remained unchanged.[128]Insofar as the claimant was denied authorship, we find that this was not because of the claimant’s race and/or religion nor because of any protected disclosure. There were credible explanations for decisions made both before and after the apology letter. In particular the decision regarding whether the claimant should be named as an author was made in the first instance in accordance with accepted national guidelines, the claimant’s complaint was treated seriously, properly investigated and what action could be taken was taken. In the absence of credible evidence to the contrary, we find that the issue was effectively resolved by the committee in 2016.[129]Further, notwithstanding the undoubted professional embarrassment that Dr Michell must have felt, at least to some extent, by being asked to write the apology letter there was no credible evidence before us to suggest that this had any impact on his treatment of the claimant thereafter.[130]Withdrawal of papers – RSNA April 2016 - LOI 8(c)(i)[131]The claimant submitted an abstract entitled ‘The Role of Digital Breast Tomosynthesis in reducing the number of Interval Cancers’ to the Radiological Society of North America (RSNA) in April 2016 prior to receiving agreement to do so from the department. This was a breach of recognised procedures. Although those procedures are not clearly written down in any form of policy we accept that that was the practice and for obvious reasons: to ensure accuracy and the integrity of any publication associated with the respondent.[132]The claimant had named a number of co-authors including Dr Satchithananda. She considered that there were number of errors in the abstract and having discussed the matter with Dr Michell, who agreed with her that the paper did not make sense, asked for her name as co-author and all other references to the respondent to be removed. Ultimately the paper was withdrawn by the claimant in November 2016.[133]The paper was subsequently resubmitted in April 2020 with the claimant shown as first author. The claimant says the paper was the same as before, but we find that Dr Satchithananda demonstrated that there were critical changes which reflected amendments for accuracy. Dr Satchithananda does not recall agreeing for this paper to be resubmitted (not unreasonably given the circumstances in Spring 2020) but agrees that for it to be accepted she must have seen it.[134]Insofar as the withdrawal of the paper was at the behest of the respondent or as a consequence of references to them being removed, this was not because of the claimant’s race and/or religion. It was because in the reasonable view of Dr Satchithananda the paper contained errors and the claimant had not followed correct procedure before submitting it.[135]Prospects Trial - LOI 8(b)(ii), 15(b) & 26(b)[136]In 2014 Dr Michell and the claimant submitted a proposal for funding to the Health Technology Assessment programme. This proposal in broad terms used the technology from the TOMMY trial but in a different way. The application was unsuccessful but ultimately led to the Prospects trial, led by the respondent but with a number of external collaborators.[137]A c3.4m grant was secured for the Prospects trial in July 2016 from Hologic. (A consequence of that development was also that the claimant’s by then quite old paper about the MMRC trial, for which Hologic had given a grant, was overtaken by events and not pursued.)[138]Writing the Prospects trial protocol commenced in 2016. It is a large trial taking place over many years and still continues. In conjunction with the respondent’s R&I department agreement was reached regarding its scope. Dr Michell was named CI, the collaborators were external to the respondent and the claimant was named as coinvestigator and remains so. The claimant’s case is that he was originally named as co-chief investigator but that was taken away from him at a meeting on 13 July 2016. There is no written evidence to support that allegation other than one document prepared by the claimant that sets out what he wished to happen. The claimant’s oral evidence lacked detail. In contrast Dr Michell’s evidence that the CI needs to be a clinician and that it is not appropriate to have co-CIs, as one decision point is necessary, was compelling and logical. We find that the role of co-CI was not given to and then taken away from the claimant. He wanted it but did not get it. It is also clear that the claimant was included in the Prospects trial as a co-investigator, remains so involved and has attended trial meetings throughout. We find that the claimant was not blocked from participation in the research nor removed from the trial.[139]CEDM study - LOI 8(b)(iii)[140]This allegation is that Dr Satchithananda and Dr Morel blocked the claimant’s grant application. In December 2015 Dr Satchithananda and the claimant jointly wrote and submitted a grant application in relation to the possible use of a then new technology - CEDM - which was unsuccessful. Given the nature of the study which involved reading scans (which the claimant cannot do) the project required a clinical lead which was originally Dr Satchithananda (then Director of Screening) and it is logical that her name was required on the grant application. They then disagreed about next steps. The claimant wanted to resubmit it to other funds whereas Dr Satchithananda wanted to pause, reflect on why the application had failed and make any necessary substantive changes before trying again.[141]In time Dr Satchithananda passed the lead to Dr Morel and another consultant radiologist but the study progressed no further after 2016 and the respondent ultimately purchased the CEDM product in 2024.[142]Dr Satchithananda’s decision not to allow the claimant to submit the application to other funds was not because of the claimant’s protected characteristics. It was because of reasonable professional concerns as to the strength of the application.[143]Withdrawal of papers - ESR Nov 17 - LOI 8(c)(ii)[144]In October 2017 the claimant prepared an abstract in relation to the cost analysis of use of digital breast tomosynthesis. He submitted it to the European Society of Radiology (ESR) the respondent says again without prior approval from the department The abstract was accepted in November 2017.[145]Dr Satchithananda commented on the abstract showing where she believed it required amendment and met with the claimant to discuss the situation. She was clearly angry with him and it is likely that their exchange was heated. The source of that disagreement however was that the claimant had not followed the required processes which applied to everyone whatever their seniority/position.[146]The claimant withdrew the paper in December 2017. He resubmitted it in December 2020 having made at least some amendments and he appeared as first author.[147]Insofar as the claimant was required to withdraw the paper this was not because of the claimant’s protected characteristics. It was because in the reasonable view of Dr Satchithananda the paper required amendment and the claimant had not followed correct procedure before submitting it.[148]Ali Sever - LOI 8(b)(iv) & (v), 26(b)[149]In December 2017 and February 2018 the claimant worked on a research project with Dr Sever. Dr Sever was employed at another NHS Trust but did attend at the respondent’s site for a limited number of clinics per week.[150]The claimant says that Dr Satchithananda and Dr Morel blocked his research with Dr Sever. They both say that they had no knowledge of such projects and did not block them. There was no documentary evidence to suggest that they did have any such knowledge (indeed they are absent from the few documents that do refer to it) and the claimant gave no persuasive evidence to the contrary. We find that the claimant was not so blocked.[151]Genius AI/request for Prospects data - LOI 8(a), (b) (vi) & 15(a)[152]By way of background, Genius AI is an artificial intelligence product owned by Hologic and is used in their imaging technology product, 3DQuorum.[153]The claimant wanted to carry out a study on 3DQuorum and in July 2021 emailed Dr Morel to request access to data from the Prospects trial for that purpose. She discussed this request with Dr Michell who implicitly refused (by declining to support the project) in September 2021. The request was repeated in May 2022 by Dr Morel but Dr Michell again rejected it. Insofar as Dr Michell rejected the requests for data on both occasions he did so for valid scientific reasons and academic robustness.[154]The claimant compares the refusals to two other occasions when the same data was provided. First, to a PhD student at Leeds University who was working for the Leeds PI on the Prospects trial and second, to Professor Chen of Nottingham University.[155]Dr Michell’s explanation is that both were working on meritorious scientific projects. In the event no transfer took place to the PhD student as Leeds University did not grant ethics approval and the decision to transfer to Prof Chen was not that solely of Dr Michell. It was a decision of the Prospects team once all necessary (and complex) legal arrangements were put in place.[156]The refusal to provide data to the claimant was not because of his protected characteristics nor was it related to them. It was for valid academic reasons and his circumstances were sufficiently different to those of his comparators.[157]As to the study proposed by the claimant, Dr Morel queried whether it was in any event appropriate. They had a detailed exchange of emails in June 2021 discussing the details. Ultimately Dr Morel refused the claimant’s request as she was concerned that his proposed study would mimic an existing one but invited him to work with her and a colleague on that study. In September 2021 the claimant declined that offer and said he had no choice but to lodge a grievance. The claimant then approached Dr Michell but he supported Dr Morel’s decision giving logical, valid reasons.[158]Matters moved on and a further proposal was put forward by Dr Morel to Dr Michell in July 2022 with Dr Morel as clinical lead to which the claimant objected as he wanted to be the sole author and PI. This was rejected by Dr Morel. A compromise was offered by Dr Wasan, Consultant Radiologist, but rejected by the claimant. The proposal went no further.[159]Insofar as Dr Morel and/or Dr Michell ‘blocked’ the claimant’s proposed project, it was not because of his protected characteristics. It was for valid academic reasons. Further, there was no related grant application of which the claimant was denied authorship.[160]The claimant raised this as an issue with Dr Child who on 15 March 2023 asked Mrs Murtagh to arbitrate over whether he was appropriately qualified to be both PI and first and corresponding author for the proposed research project. This investigation did not take place however as it was overtaken by the later grievance submitted by the claimant on 28 March 2023.[161]ECR 2023 Paper and Conference - LOI 8(j)(k) & 15(c)[162]The abstract submitted to the European Congress of Radiology in 2023 was written by Dr Morel and relates to the first Quorum study she led together with Dr Wasan. The claimant’s contributions to the study were reflected in his listing as third author. This allocation of authorship was in accordance with guidelines already referred to and reflected their respective roles and contribution. It was not because of his protected characteristics.[163]Similarly, the reason Dr Wasan was asked to present the abstract to the conference on 2 March 2023 was because of her work within the project and that she is a consultant radiologist with the necessary clinical expertise to deal with any questions arising about clinical matters as opposed to the claimant’s role on the project and his lack of clinical knowledge. The decision was not because of nor related to his protected characteristics.[164]RSNA 2023 Paper and Conference - LOI 8(l)(m), 15(d), 21(a)(b) & 26 (c)(ii – RSNA only) (d – RSNA only)[165]Similar issues arise in respect of the RSNA paper submitted in May 2023. On this occasion Dr Wasan was the first author, a Dr Brown the second author and the claimant third. Again we find that this allocation of authorship was in accordance with the relevant guidelines reflecting the individuals’ respective roles and contributions. It was not because of or related to the claimant’s protected characteristics nor because he had done a protected act or made a protected disclosure.[166]Further, the reason Dr Brown was asked by the respondent to attend the relevant conference and present the paper was because Dr Wasan did not want to, he was the second author and also had the necessary clinical expertise which again the claimant did not have. It was not because of or related to the claimant’s protected characteristics nor because he had done a protected act or made a protected disclosure. In the event, the paper was not accepted by the conference organiser.[167]Insofar as the claimant also says as a separate complaint that he was prevented from attending the conference because of his 2023 grievance (PD3) we do not find that he was so prevented. The respondent was not in a position to prevent the claimant from attending any conference.[168]Other Authorship - LOI 8(n), 21(c)(d) & 26(e)[169]The final authorship issues are in respect of six publications in 2023 and the allegation is that Dr Michell blocked the claimant’s authorship of them.[170]The respondent has demonstrated that Dr Michell was not the decision maker as to authorship in respect of any of these papers. They were worked on in collaboration with three external bodies and the decision-making rested with each of them. It was not put to Dr Michell that he had in some way interfered with that decision-making process. Indeed there was an indication that he had sought to put the claimant’s case for inclusion to at least one of the externals – Professor Duffy at Queen Mary’s University.[171]There is no evidence before us upon which we could conclude that Dr Michell could block or indeed did block the claimant’s authorship.[172]Grievance 2023 - LOI 26(f)(g)[173]The grievance submitted by the claimant in March 2023 has already been described above in the finding that it did amount to a PD. The respondent quite reasonably decided to deal with the grievance in two parts.[174]Part 1[175]Mrs Murtagh was asked by Prof Sidhu to investigate the allegations that related to research misconduct under the respondent’s Research Misconduct and Fraud Policy. She and a HR manager met the claimant and his union representative on 31 May 2023. A summary of the meeting was sent to the claimant on 7 June 2023 together with a request for outstanding documents. The claimant provided feedback on the draft summary on 10 July and after a further request, submitted the outstanding documents.[176]Mrs Murtagh carried out an investigation into the relevant matters including interviewing relevant witnesses and reading papers but unfortunately did not make a note of these investigations. She did however prepare a comprehensive report of her conclusions which was provided to the claimant on 28 July 2023. Her overall conclusion was that there was no evidence of plagiarism, research misconduct or any other fraud. Under the Policy there is no formal appeal against the outcome of any investigation. Any finding of misconduct would then be dealt with under the respondent’s conduct policy or be passed a relevant external body for further action.[177]The relevant allegation is that Mrs Murtagh failed to address all of the claimant’s concerns relating to research misconduct and failed to provide the claimant with an outcome to his misconduct allegations. It is true that she failed to identify the underlying Hologic grant agreement. She searched for documents relating to a grant of £60k but because only one of the three tranches of £20k had been paid, it did not show up on her search results. She had overlooked that there was a copy of the relevant agreement enclosed in one of the 104 exhibits attached to the claimant’s complaint. Further, she failed to ask the claimant for a copy. If she had done so, no doubt he would have directed her to the correct exhibit. Whilst this was certainly unfortunate, we do not find that it had a material effect on the fairness or otherwise of her investigation and there is nothing to suggest that any such failing was because the claimant had made the PD. Mrs Murtagh properly investigated the matter, addressed the claimant’s concerns and gave him an outcome. He did not agree with the outcome but that is a different matter.[178]It was put to Mrs Murtagh by reference to her later interview in August 2024 with an external consultant, explained below, that her comments to him showed a bias against the claimant. We do not share that view. It is true that the notes of the interview show she expressed frank views but we are satisfied that she carried out her exercise appropriately and professionally. It was also put to Mrs Murtagh that there is a culture of anyone who raises a grievance or blows the whistle being seen as a troublemaker by the respondent and specifically Dr Michell. She did not agree and on the basis of the evidence before this Tribunal, neither do we.[179]In the meantime the claimant had lodged his first Tribunal claim form on 2 June 2023, a protected act.[180]Part 2[181]The remainder of the claimant’s grievance was dealt with initially by Mr Chaber, Directorate Manager I&PP, namely someone outside the radiology department and new to the issues. Mr Chaber met the claimant and his union representative (special dispensation having been given for the union to attend) on 4 August 2023. This was a formal stage 2 resolution meeting under the respondent’s Early Resolution Policy. No notes of the meeting were before us but a detailed letter describing what was discussed and the outcome was sent by Mr Chaber to the claimant by email on 24 August 2023.[182]That letter confirms that the claimant’s expectation of the meeting was to reach settlement on five points namely:a. revision of his JD and re-banding to band 8c;b. a transfer into main radiology, rather than remaining isolated in breast radiology;c. permission to work on GeniusAI research as PI and first and corresponding authord. reinstating his name in grants and publications; ande. an acknowledgement from the respondent of multiple breaches of policies resulting in adverse effects on his health and economic losses.[183]The outcome can be summarised as agreement to carry out further investigations with no conclusion as such as to whether the claimant’s grievance was valid. In the covering email Mr Chaber summarised those further investigations as: ‘1.Arrange a mediation meeting with an external mediator 2. Arrange for your JD to be reviewed and assimilated via the Banding Panel, in addition to requesting an appraisal be conducted and objectives set 3. Attempt to locate the letter of apology that you were told was written by [Dr] Michell but you never received 4. Attempt to locate the report written by Professor Frank Post when he chaired a previous grievance hearing that has never been circulated 5. Advise of options available to you in respect of appealing the recent report written by [Mrs] Murtagh, the findings of which you do not agree. We will get back to you a soon as possible in respect of the above.’[184]There were email exchanges between the claimant and HR/his service manager in the weeks and months following Mr Chaber’s outcome where it is apparent steps were taken to address the matters Mr Chaber agreed should be investigated.[185]On 1 December 2023 the claimant lodged his second Tribunal claim. Whilst this is a protected act it is not relied upon as such in these claims.[186]The claimant was advised of his right to appeal against that outcome. Although we were referred to notes of interviews carried out in 2024 by an external consultant, Mr Chamberlain, we did not hear evidence as to how or why the decision was made to instigate that external investigation and how it related to any appeal by the claimant against the Chaber outcome. Mr Chamberlain produced a report in October 2024 but those events are outside the scope of this claim.[187]We are told that notwithstanding the Chamberlain report the claimant’s appeal against the grievance outcome is still outstanding. It is certainly very unfortunate if that is the case. Although these matters are incredibly detailed, the respondent has an obligation to conclude the process in a timely fashion. Conclusions[188]The findings of fact above in respect of claims pursuant to the 2010 Act that pre-date 22 December 2022 relate to claims that are prima facie out of time, albeit a mixture of one off events and those at least capable of being continuing acts. It is apparent however from those findings that we have not found any unlawful behaviour by the respondent such as to support the allegations made by the claimant. Either we have found that the relevant alleged treatment did not happen or that it did, but it was not because of or related to the claimant’s protected characteristics nor because of any protected act. The respondent has in each case demonstrated that there was a non-discriminatory reason for the treatment. There is therefore no basis upon which to examine further whether those allegations should be treated as being in time either as stand alone acts, part of a continuing act or because it is just and equitable to do so.[189]As for the matters that post-date 22 December 2022 and are therefore in time, as described in our findings above where we have found that the alleged treatment happened, we have considered it act by act and found it was not because of or related to the claimant’s race and/or religion nor because of any protected act or disclosure. Again, the respondent has demonstrated that there was a lawful reason for the treatment.[190]We also have to stand back however and look at the allegations as a whole and in particular ask whether there is a pattern of behaviour that might nonetheless indicate either a dishonesty from the respondent witnesses or a subconscious bias against the claimant because of his protected characteristics/acts/disclosure.[191]We do not find that to be the case. All the matters that the claimant complains of have been more than adequately explained by the respondent. The claimant’s case was, in summary, looking at a whole pattern of behaviour he was unhappy with and asking ‘what else could it be but race/religion etc?’. The respondent’s witnesses however have demonstrated the answer to that question in every respect. The only specific example the claimant gave of others being treated differently to him was comparators on access to the GeniusAI data and there was a credible and logical explanation of that given by the respondent. This is at its heart a case where the claimant’s career aspirations, admirable though they are, simply do not meet what - for legitimate reasons - the respondent can offer him.[192]This conclusion does not mean that we are not critical of the respondent in certain respects. It does seem remarkable that an organisation as sophisticated as the respondent allowed the claimant’s one year fixed term contract to simply expire and be rolled over for such a long period without regularising the situation. To simply say (as we often hear) ‘that’s how it is in the NHS’ is - as Mr Ward said - simply not good enough. Also, there have been numerous references in the documentation to the claimant over many years seeking some form of internal mediation or arbitration that for whatever reason (and we have not examined this in detail as it is outside the scope of the issues before us) has not happened. If it remains the case that mediation is outstanding then we strongly urge the parties to complete it.[193]We are also very surprised by the respondent’s approach to appraisals. Whilst it is a matter for the respondent as to how they organise the process, leaving it to employees to be responsible for driving them forward each year and clearly not having a robust enough process (at least between 2018 and 2020) to identify where appraisals were outstanding, allowed an already difficult situation to deteriorate further.[194]However, our overall conclusion is that where the claimant has been subjected to less favourable or detrimental treatment this was not for any unlawful reason and therefore his claim fails and is dismissed.REASONS
[1]The power to reconsider is contained in rule 68 of the Employment Tribunal Rules 2024: ‘(1) A Tribunal may, either on its own initiative … or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. (2) A judgment under reconsideration may be confirmed, varied or revoked. (3) If the judgment under reconsideration is revoked the Tribunal may take the decision again. In doing so, the Tribunal is not required to come to the same conclusion.’ and rule 70(2) states: ‘If the Tribunal considers that there is no reasonable prospect of the judgment being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application must be refused and the Tribunal must inform the parties of the refusal.’[2]The power is not open-ended. Its purpose is to allow the Tribunal to correct an incorrect decision without the need for the parties to go to an appeal. It is limited not least by the need for finality in litigation. It is not intended to be used as a way of arguing the same points again, or of raising new points or further evidence. If fresh evidence has come to light, that will only usually warrant a reconsideration if the evidence could not have been obtained with reasonable diligence for use at the original hearing, it is relevant, apparently credible and would probably have had an important influence on the hearing.[3]In Liddington v 2Gether NHS Foundation Trust EAT/0002/16 Mrs Justice Simler P, as she then was, summarised the position as follows: ‘… a request for reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a different way or by adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.’[4]Further, unless it is quickly apparent that the Tribunal has made an error of law, any alleged error of law should be dealt with by way of appeal to the Employment Appeal Tribunal. The Application[6]The claimant’s application, apparently written by the same Counsel who represented him at the final Hearing, refers to 10 grounds supported by three appendices.[7]The first ground, in summary, is that he says it is not apparent from the Tribunal’s reasons why he lost the claims of harassment and victimisation.[8]Those claims were identified in the list of issues as follows:8.1 the alleged unwanted conduct forming the basis of the harassment claim at paragraphs 15(a)-(d); and8.2 for the victimisation claim, the protected acts at paragraphs 19(a) &(b) and the alleged detriments at paragraph 21(a)-(d) with (c)&(d) cross referring to paragraphs 8(n)(i)-(vi).[9]In the Findings of Fact section of the Tribunal’s reasons, we included cross references in the subheadings to the relevant paragraphs of the list of issues (including all of those referring to the alleged unwanted conduct and detriment) and also explained (at paragraph 70) that, in order to avoid repetition in the conclusions section, we made findings as to whether any specific adverse treatment of the claimant was related to (harassment) the claimant’s protected characteristics or because he did a protected act (victimisation). In the Conclusions section of the reasons we set out our finding overall that either the relevant alleged treatment did not happen or that it did, but it was not because of or related to the claimant’s protected characteristics nor because of any protected act. It is apparent therefore that findings of fact and conclusions were set out in respect of all the component parts of the harassment and victimisation claims with reasons why.[10]In relation to the second, third, fifth, ninth and tenth grounds of the application the matters raised by the claimant were all considered by the Tribunal on the basis of the evidence before us, both oral and written, when coming to our conclusions. This is reflected in the reasons. The claimant is seeking simply to reargue what was already argued and decided.[11]The fourth ground of the application (and appendix A) relates to the Tribunal’s statement that the respondent ‘has an extremely diverse workforce’. This statement was made on the basis of what the Tribunal could see for ourselves from the evidence before us. The subsequent production of equality monitoring data by the claimant and his complaint that the respondent could have produced the same for the Hearing, is irrelevant. Even if such data had been available to the Tribunal it would have made no difference to our decision.[12]In relation to the sixth and seventh grounds of the application (and appendices B & C) the claimant is again seeking to reargue matters already considered and decided by the Tribunal on the basis of the evidence, both oral and written, before us. He is also seeking to rely on new evidence. Any relevant evidence should have been submitted at or before the Hearing. He has given no explanation as to why this new evidence was not available to him then but is now. As to his complaints regarding the respondent’s approach to disclosure of documents, see below.[13]The eighth ground of the application relates to what the claimant believes is a misstatement by the Tribunal relating to his career aspirations. Even if he is right that the Tribunal misunderstood this part of his case and his career aspirations dated back to 2012, this would have no material bearing on the Tribunal’s decision.[14]Finally, as a general point, the claimant has asked the Tribunal to take into account alleged breaches by the respondent in relation to disclosure of documents and preparation of the trial bundle prior to the Hearing. The claimant had the benefit of representation by Counsel at the Hearing and issues relating to documents, such as there were, were addressed at the time. Any Tribunal can only make its decision on the basis of the evidence – both oral and written – before it. Any historic issues relating to documents are no longer relevant.Decision
[16]For the reasons set out above in respect of each of the claimant’s grounds of application, there is no reasonable prospect of the original decision being varied or revoked and the application for a reconsideration is refused. APPROVED BY JUDGE ANDREWS ............................................................[1]On 15 July 2025 the respondent made an application for costs following the dismissal of all claims brought by the claimant in a Judgment sent to the parties on 1 July 2025. The claimant responded to that application in writing on 25 July 2025. Written reasons provided at the request of both parties were subsequently provided on 18 September 2025. The claimant’s application dated 1 October 2025 for a reconsideration of the Judgment was refused with reasons sent to the parties on 20 October 2025.[2]In summary the basis of the application is that the claimant acted abusively, vexatiously, or otherwise unreasonably in bringing the proceedings or the way he conducted them and/or the claim had no reasonable prospects of success.[3]Given that the application relates, at least in part, to the claimant’s conduct at the hearing, it has been considered at this first stage by the Tribunal panel as a whole rather than by the Judge alone.[4]The power to award costs is contained in rule 74 of the Employment Tribunal Procedure Rules 2024:(1) The Tribunal may make a costs order or a preparation time order (as appropriate) on its own initiative or on the application of a party ….(2) The Tribunal must consider making a costs order or a preparation time order where it considers that— (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted, (b) any claim, response or reply had no reasonable prospect of success, …[5]The first stage therefore is for the Tribunal to consider whether the potentially paying party has acted in the necessary way(s) and/or had no reasonable prospects of success. If so, the Tribunal must then consider at a second stage whether it is appropriate to make a costs order and if so, at a third stage how much that order should be.[6]In general terms, costs do not follow the event in Employment Tribunal proceedings. An award of costs is the exception and not the rule. When exercising the discretion to order costs it is necessary to look at the whole picture of what happened in the case and to ask whether there was unreasonable conduct in bringing and conducting the case and in doing so, to identify the conduct, what was unreasonable about it and what effect(s) it had. There does not have to be a precise causal link between the unreasonable conduct in question and the specific costs being claimed.[7]In this case, the Tribunal certainly does not consider that the claimant has acted vexatiously or abusively as suggested by the respondent in their application. There seems to be no basis upon which such an application is made.[8]We have considered carefully as a separate matter whether the claimant acted unreasonably in bringing or conducting the proceedings.[9]It is evident that the claimant failed in his claims and in very large part this was due to a lack of supporting evidence. We are not persuaded, however, especially in the context of what was principally a discrimination claim, that that failure indicates an unreasonableness on his part. The Tribunal did not agree with his assessment of the various factual scenarios underlying his allegations but there is always an element of uncertainty, in advance of any hearing, as to how the evidence will unfold even with the prior exchange of witness statements. It is important to avoid, when considering the reasonableness or otherwise of bringing a claim in the first place, the inevitable benefit of hindsight that knowing the eventual outcome gives.[10]As to whether the claim(s) had no reasonable prospect of success, again it is important to avoid assessing that with the benefit of hindsight. A finding of ‘no reasonable prospect of success’ is rare. We note that no application for a strike out was made by the respondent in advance of the final hearing nor any application for a deposit which would be considered on the lesser standard of ‘little reasonable prospect of success’. Further, we have not been referred to the existence of any form of costs warning letter sent to the claimant. Such a letter is certainly not a prerequisite of any award of costs but if one had been sent to the claimant it would have the advantage of identifying in advance in exactly what ways the respondent said it was obvious the claim was doomed to fail.[11]We are very conscious that, as is clear from the reasons given for the Judgment, we not only did not prefer the evidence of the claimant on certain disputed factual issues but we also found that on occasion he exaggerated his evidence and was not sufficiently careful with the accuracy of his answers. We did not go so far as to find that he was actively dishonest, however, and plainly the consequence of our findings was that the claimant was unsuccessful. This does not however automatically translate into a finding of no reasonable prospects of success or unreasonable behaviour.[12]In summary, therefore, our conclusion is that it is not appropriate for the respondent’s application for the cost to proceed any further and it is dismissed. For completeness, we observe that even if we are wrong in that assessment, this is certainly not a case where it would be appropriate to simply award the entirety of the costs incurred by the respondent in defending the claim. Even if there were elements of unreasonable behaviour on the part of the claimant in the way he gave evidence, an exercise would have to be done to identify the nature of the unreasonableness, the impact that it had upon the proceedings and consequently a reasonable amount of costs that were unnecessarily and avoidably incurred as a result. APPROVED BY EJ ANDREWS