Mr J Deguara v Kingston Hospital NHS Foundation Trust: 2302922/2024

EMPLOYMENT TRIBUNALS

Case No 2302922/2024

Between

Mr J DeguaraClaimant

Kingston Hospital NHS Foundation TrustRespondent

Before

Employment Judge Heath

Mr J Bromige (instructed by Counsel) for claimant

Mr C Edwards (instructed by Counsel) for respondent

Date 28 May 2025

JUDGMENT

[1]The following claims are well-founded and are upheld:a. “Ordinary” unfair dismissal;

b. Wrongful dismissal/notice pay;

c. Discrimination arising from disability in respect of dismissal.

d. Holiday pay in the sum of 1.5 or 2 days, as is to be agreed by the parties or subsequently determined by the tribunal.

[2]The following claims are not well-founded, and are dismissed:a. Disability related harassment;

b. Victimisation;

c. Detriments for having made a protected disclosure;

d. Automatic unfair dismissal for having made a protected disclosure;

e. Discrimination arising from disability in respect of matters other than dismissal.

REASONS

[1]The claimant is a senior surgeon who worked at the respondent’s hospital. He was diagnosed with colorectal cancer in May 2020, and is thus a disabled person. On his return to work after sickness absence the claimant’s relationship with a number of his colleagues deteriorated and the process of his agreeing his job plan was difficult. He made a number of complaints about various things, and says that this made him a whistleblower. He was taken through a disciplinary process because of alleged misconduct, which led to his dismissal. This is a complex case, but, very much in a nutshell:a. The claimant says his complaints were protected disclosures, and that he was subjected to various detriments for having made them. He also made complaints of discrimination, which were protected acts, which he says led to his being victimised.

b. The claimant says he was harassed in a number of ways related to his disability.

c. The claimant’s case is that the misconduct alleged against him related to behaviours which arose because of his disability. Disciplining, then dismissing him, was unjustified unfavourable treatment because of these behaviours, and unlawful under section 15 Equality Act 2010.

d. The claimant says his dismissal was also unfair, both “ordinarily” and automatically for having made protected disclosures.

e. The claimant says he is owed notice pay, having been wrongfully dismissed without notice.

f. The claimant says he is due accrued and unpaid holiday pay.

g. The respondent denies the claims. It says: i. Some disclosures attracted protection but not all, and it accepts that complaints of discrimination were protected acts. It denies subjecting the claimant to detriments because of either such disclosures or acts. ii. It denies disability-related harassment of the claimant. iii. It denies that the conduct he was disciplined or dismissed for arose from the admitted disability, but in any event both were justified. iv. It denies that the disciplinary or dismissal were because of protected disclosures and asserts that the dismissal was fair. v. It denies any sums are due to the claimant

Issues

[2]The parties agreed a List of Issues. During the course of the hearing there was some further refinement, largely as a result of the claimant indicating that certain complaints (for example direct discrimination) were not pursued. The final List of Issues which both parties agreed we were to determine is annexed below. Procedure Adjustments

[3]Prior to the hearing the claimant’s solicitors wrote to the tribunal setting out a request for number of adjustments. Some of these related to the layout and other features of the tribunal room. The respondent did not object, and these adjustments were made. During the course of the claimant’s evidence we took a ten minute break each 45-60 minutes (depending on how the claimant was feeling). We made it clear that the claimant should feel free to raise any further requirement for adjustment during the hearing, but none arose.

The evidence

[4]We were provided with a main bundle of 1236 pages, a supplementary respondent’s bundle and a supplementary claimant’s bundle. We will refer to documents in the main bundle by page number as follows [123]; in the respondent’s supplementary bundle as follows [R12]; and the claimant’s supplementary bundle as follows [C12]. A couple of further documents were added to the respondent’s bundle during the course of the hearing by agreement between the parties.

[5]The respondent presented its evidence first, and the following provided witness statements, and, with the exception of Mr Hall, gave live evidence:a. Ms Karen Wise (HR Consultant);

b. Dr William Oldfield (Chief Medical Officer);

c. Dr Amira Girgis (Deputy Medical Director and Responsible Officer);

d. Mrs Jennifer Coulbeck (Deputy Manager in Surgical Services);

e. Mr Ionnis Gerogiannis (Clinical Lead in Surgery and Urology);

f. Ms Sara Palhinha (Theatre Matron);

g. Mr Sarbjinder Sandhu (Chief of Surgery and Planned Care);

h. Mr Bodeun Critchell (Head of Operations);

i. Mr Phil Hall (Chair-in-Common Hounslow and Richmond Community Healthcare NHS Trust and Kingston Hospital NHS Foundation Trust).

[6]The claimant provided a witness statement and gave evidence, as did his wife, Ms Cynthia-Michelle Borg, Consultant Upper GI & Bariatric Surgeon.

The Hearing

[7]At the start of the hearing I raised with the parties that I had previously heard a case involving the respondent, which had featured Dr Girgis as a witness. Mr Bromige said he had been made aware of this fact, and could see no grounds for my recusal. The respondent had no observations about my suitability to hear this case, and I therefore did not consider it appropriate to recuse myself.

[8]The hearing was listed for 10 days, and a draft timetable had been proposed in the Case Management Orders of Employment Judge Corrigan of 17 December 2024. After discussion, all agreed that a further half day would be given to the tribunal to read into the case, but with that addition, the parties felt confident they could stick to the timetable. The tribunal read into the case until lunchtime on day two. We had not completed our reading, but considered that it would be appropriate to begin hearing evidence for the tribunal to catch up with its reading during the course of the hearing. The respondent began giving evidence that afternoon. The respondent’s witnesses gave evidence until late afternoon of day six, when Ms Borg gave evidence. The claimant gave evidence on day seven, day eight and day nine. Both parties provided written and oral submissions on day ten. The tribunal arranged further deliberation time in chambers and provided this reserved decision. Facts

Introduction

[9]The respondent is an NHS Trust. The claimant was employed by the respondent as a Consultant in General Surgery. He was initially employed as a locum consultant from 8 August 2012, and then in a substantive consultant role from 1 August 2013. Policies and procedures

[10]The NHS operates a policy known as Maintaining High Professional Standards for Medical and Dental Practitioners (MHPS). The policy is, broadly, “designed to address concerns in relation to practitioners”. It sets out action to be taken when a concern about a doctor first arises, procedures considering whether there needs to be restrictions placed on the doctors practice, guidance on conduct hearings and disciplinary procedures, procedures for dealing with capability, and arrangements for handling concerns about a practitioner’s health.

[11]The respondent had its own policy and procedure for MHPS [116ff]. This policy does not appear to contain a section relating to conduct hearings, but sets out a procedure for dealing with issues of capability. Under section 9.22 it was stated that the order of presentation shall be as follows:(a) The Case Manager presents the management case including calling any witnesses. The above procedure for dealing with witnesses shall be undertaken for each witness in turn, at the end of which each witness shall be allowed to leave.

(b) The Chairman shall invite the Case Manager to clarify any matters arising from the management case on which the panel requires further clarification.

(c) The practitioner and/or their representative shall present the practitioner’s case, calling any witnesses. The above procedure for dealing with witnesses shall be undertaken for each witness in turn, at the end of which each witness shall be allowed to leave.

(d) The Chairman shall invite the practitioner and/or representative to clarify any matters arising from the practitioner’s case on which the panel requires further clarification.

(e) The Chairman shall invite the Case Manager to make a brief closing statement summarising the key points of the case.

(f) The Chairman shall invite the practitioner and/or representative to make a brief closing statement summarising the key points of the practitioner’s case. Where appropriate this statement may also introduce any grounds for mitigation.

(g) The panel shall then retire to consider its decision.

[12]Under section 10.3, Dealing with Ill Health, the policy sets out various actions the trust may take to address ill health issues, which include retraining or adjustments with appropriate advice from National Clinical Assessment Service “NCAS” (now Practitioner Performance Advice “PPA”). It makes clear that at all times the practitioner should be supported by the trust and its occupational health (OH) to ensure the practitioner is offered every available resource to get back to practice where appropriate. This should include the making of reasonable adjustments.

[13]The respondent also operated a Disciplinary Policy. This included in appendix with a non-exhaustive list of examples of gross misconduct, which included bullying and harassment. It also contained in appendix setting out the procedure during a disciplinary hearing. This set out that: The Investigating Officer will present the management case and may call witnesses, after which the employee or his/her representative will be given the opportunity to state their case and call any witnesses. At appropriate points in the process, the employee, management, representatives and the panel will have the opportunity to seek clarification or challenge the evidence provided and question any witnesses

[14]The respondent operated a Managing Attendance and Sickness Absence Policy. This provided, among other things, for review meetings to be held after certain periods of absence, which required five days’ notice and the attendance of an HR representative. The main purpose of these meetings was to discuss OH reports and agree a reasonable recovery period. This policy also set out revisions relating to reasonable adjustments and phased return to work. Reasonable adjustments could be temporary or permanent and might include modifying working hours, duties, equipment or premises.

[15]The respondent also operated a Consultant and SAS Job Planning Policy. Job planning forms part of a consultant’s contract, and the policy provided a framework for a collaborative approach that enabled clinicians and managers to meet their shared responsibility for providing the best possible patient care. It made clear that clinicians work as part of the team and that job planning involves understanding and taking account of the role of each team member. The policy set out that “Job Planning should be undertaken in a spirit of partnership, and balance the needs of patients, the Trust and the wider NHS, with those of individual clinicians”. It further provided that there would be annual job plan review, with a view to agreeing a plan by 1 April each year. The purpose of the job plan review was manifold, but included identifying factors which may have affected the job plan, agreeing any changes to the duties and responsibilities and agreeing support needed from the organisation. Job plans were expressed to be “a prospective agreement setting out the duties, responsibilities and objectives for the coming year”. The policy set out a section on Responsibilities and Accountability. Responsibilities of clinicians included to: *Participate in annual job planning (and interim reviews as appropriate) by timely and accurate submission of Job Plans via the Trust’s e-Job Planning system (‘Allocate’). *Notify the clinical lead and service manager of any significant circumstance impacting the Job Plan.

[16]The job planning policy also set out in appendix a job planning flowchart which set out the process to be followed in agreeing an individual job plan. This included three different levels of sign-off. The claimant prior to 2020

[17]The claimant specialises in dealing with the Upper Gastrointestinal (“Upper GI”) tract. During the course of his employment with the respondent from August 2012 he held a number of managerial and educational roles (Surgical Clinical Governance Lead, Cancer Lead, Leadership Tutor and the LED Tutor, Educational and Clinical Supervisor). All of the evidence we have heard suggests that he was a talented surgeon who commanded the respect of patients and his colleagues. Prior to the events with which the tribunal was concerned, the claimant had a clean disciplinary record and enjoyed good working relationships with his colleagues. Cancer diagnosis

[18]On 19 May 2020 the claimant was diagnosed with colorectal cancer. Both of his parents had died of cancer, the diagnosis was shortly into the COVID pandemic and the tribunal has little difficulty accepting that this was a deeply traumatic and upsetting period for the claimant. On 11 June 2020 he underwent a low anterior resection and he began chemotherapy in July 2020. On 8 June 2021 the claimant underwent a reversal ileostomy. The claimant experiences a number of secondary issues due to his cancer such as fatigue, hyperacusis and low anterior resection syndrome (“LARS”).

[19]The claimant’s diagnosis means that he is deemed disabled under the Equality Act 2010. The aftermath of the claimant’s diagnosis

[20]It has not been easy to make findings about what happened after the claimant’s diagnosis and treatment and around the early stages of the claimant’s return to work. There is not an abundance of contemporaneous documentation and a clear picture has not emerged.

[21]Doing the best we can, the claimant was absent from work on sick leave at the very early stages following his diagnosis and his surgery. Whilst he was undergoing chemotherapy he was not on sick leave, although for periods of this he was very unwell. During the latter half of 2020 and 2021 until around September the claimant was not working in the hospital. There was a mixture of absence, some working from home, some carrying out virtual clinics on restricted duties. He was also undertaking a Master’s degree, along with some other surgical colleagues from the hospital, and carrying out some other work.

[22]Prior to the claimant’s absence, he had undertaken the role of Clinical Governance Lead. In his absence a colleague of his, Mr Khalifa, agreed to take on the role at a surgeon’s meeting on 12 June 2020. We find that, while this was a role the claimant enjoyed, it was one that was not particularly sought-after amongst the surgical team. The claimant referred in an email on 5 March 2021 to various surgical colleagues to the fact that he was not the current governance lead. The reference was neutral and did not appear to show a desire in the claimant to regain this role.

[23]Additionally, a locum consultant, Ms Boven, was appointed to cover the claimant’s substantive post.

[24]The claimant’s non-clinical manager, Ms Dowse, was in email communication with the claimant in the summer of 2020 discussing referrals to occupational health service. His clinical manager at this point was Mr Gerogiannis, Clinical Lead in Surgery and Urology.

[25]On 8 June 2021 Mr Sandhu, the Chief of Surgery, messaged the claimant, during the course of general conversation, to say “In a few weeks you can consider a return”. The claimant replied “Definitely some sort of phased return unless something else crops up”. Alleged remarks by Mr Sandhu

[26]The claimant alleges that from the summer of 2021 and into 2022 Mr Sandhu made various inappropriate comments in telephone conversations (LOI6(a)):a. “We had enquiries to check if you are dead yet so they can take up your post”;

b. “We do not need you back here”;

c. “We already found your replacement”

d. “If you don’t go we will make sure you go”.

[27]We do not find that Mr Sandhu made these remarks as stated. There are a number of reasons for our findings:a. The claimant made no contemporaneous complaint of any such comments. As will become apparent, the claimant was later to make numerous complaints in writing about many different issues.

b. The claimant was an established and respected surgeon, and it is unlikely in the extreme that the Chief of Surgery would be talking about him being replaced like this.

c. The respondent disclosed WhatsApp conversation between the claimant and Mr Sandhu. The tenor of this conversation is friendly and supportive from Mr Sandhu.

d. There were also a number of instances the claimant appears to have misconstrued, misinterpreted or misunderstood something, and then subsequently exaggerated it. The exaggeration need not be a conscious thing. We can well understand that the claimant may have felt professionally insecure for a variety of reasons. He may have been prone, in his vulnerability, to construing innocent things in a negative way. The actual words used in an exchange will be forgotten, but the impression of being marginalised will remain, and the recall will bring the exchange into line with the narrative of being poorly treated.

e. We find it more likely that Mr Sandhu may have said something, for example, about the locum covering the claimant’s role and there being no need for the claimant to hurry back to work. Such a comment may have been intended to be supportive and reassuring. In the claimant’s mind this was interpreted and converted into a narrative of him being replaced and excluded. Return to hospital work

[28]It has also not been easy to make findings around the claimant’s return to hospital work. Again, there has not been a huge amount of contemporaneous documentation. During the course of subsequent formal process (which we will refer to later) it was described as “a bit of a grey area” and the respondent admitted that it could have been better structured.

[29]On 18 November 2021 the claimant interviewed for the role of Cancer Lead by among others, Mr Sandhu, and was successful. This role, like the Clinical Governance Lead, was a Supporting Professional Activity (“SPA”) which should be accounted for in a consultant’s job plan. The Cancer Lead role was something the claimant took particular interest and pride in, and was a prestigious role. There is no contemporaneous evidence to suggest that the claimant would have preferred to retain the Clinical Governance Lead role or was seeking it. Lead roles would be shared amongst the consultants, and we do not find that it would have been appropriate for the claimant to have held two roles.

[30]Around this time, the claimant was also attending the hospital to observe colleagues perform some surgery as part of his phased return to work. For example he was due to observe surgery on 8 November 2021. It appears that an operation he was due to observe was cancelled. He emailed Ms Palinha, the reasonably newly appointed Matron, making a number of observations about poor planning and communication which had led to the cancellation of the operation, to the detriment of the patient. Ms Palhinha apologised to the claimant and took full responsibility for the problems.

[31]On 14 January 2022 the respondent’s OH Consultant, Dr Assoufi, assessed the claimant, and produced a report. While not the first OH report produced, this was the first one that appeared in the bundle. Dr Assoufi assessed the claimant as being “fit with adjustments”. The report referred to the claimant’s slow recovery “both physically and mentally from a very serious medical condition”. The claimant was said to be feeling better but continued to feel tired. He had completed his chemotherapy in October 2021, and by that stage had been carrying out virtual clinics and elective surgery. Dr Assoufi made various recommendations by way of suggestions for reasonable adjustments:a. He should avoid exposure to COVID-19 for the foreseeable future due to the nature of his condition.

b. He should continue to carry out elective surgery and virtual clinics until the end of March 2022;

c. He should avoid on-call duties until the end of March 2022.;

[32]The claimant claims that in January 2022 Mr Sandhu made further inappropriate comments. He alleges that in the coffee room in front of the claimant’s junior team Mr Sandhu said he could “give you something to sort you out” in a conversation about having children following cancer surgery (LOI 6(c)). The claimant took this to be an implied reference to erectile dysfunction. Again, there was no contemporaneous complaint by the claimant. The odd and inappropriate comment is presented without context, and is counter to the tenor of the WhatsApp conversation between the two men. We do not find that Mr Sandhu made such a comment or intended to humiliate the claimant. We find it more likely that something innocent was taken out of context and misconstrued by the claimant, and later incorporated into his narrative.

[33]The claimant further says that Mr Sandhu made the comment “You have had a two-year holiday now it’s payback time” in reference to the claimant’s sick leave for cancer treatment (LOI 6(d)). Again, there is no contemporaneous complaint, and it runs counter to the documentary evidence we have seen. We find it more likely that some sort of appropriate discussion about absence from the hospital and his working from home took place. We find it likely that the claimant, perhaps in his anxiety around his return to work, construed the conversation negatively and exaggerated it into a more powerfully negative narrative. 17 January 2022 meeting

[34]By mid-January 2022 the claimant was nearing the end of completing his phased return to work. British Medical Association (“BMA”) guidelines suggest that a period of shadowing is appropriate for clinicians who have been absent from the workplace for extended periods of time. The claimant had carried out this shadowing, and had chosen on a number of occasions to shadow the locum who had been covering his work, Ms Boven. There was still a need for Ms Boven to be retained by the respondent at this stage, despite the claimant being in the process of coming back into the workplace.

[35]The claimant’s case is that he raised some concerns about Ms Boven’s work in early January, specifically whether she had made sufficient preoperative enquiries before undertaking hernia surgery. There is no documentary evidence to corroborate this. In his witness statement (paragraph 22) he says that he made these complaints in the meeting of 17 January 2022 and that this amounted to a protected disclosure. Again, the documentary evidence relating to this meeting (the Datix of 18 January 2022, see below) does not mention this. We do not find that such a disclosure was made.

[36]We find that on 17 January 2022 the claimant had seen some of the patients on Ms Boven’s list and had cancelled some of her patients’ operations. The claimant then proceeded to advise Ms Boven about the patients, and, from her perspective, treated her as an assistant rather than someone he was actually shadowing. This was not the first time the claimant had done this, and this was understandably perceived by Ms Boven as being disrespectful and undermining. This conduct took place in front of junior doctors, theatre nurses and an anaesthetist. Ms Boven was extremely upset and in tears. She spoke to Ms Dowse and Mr Gerogiannis. The matter was discussed with a more senior manager, Ms Coulbeck. It was decided that the meeting should take place with the claimant to discuss this issue.

[37]Mr Gerogiannis was due to travel overseas later that evening, so at around 4.30pm Ms Dowse telephoned the claimant to ask if he was available to attend a Teams meeting with her and Mr Gerogiannis. The claimant was out for a walk at this point in time, but he went back to his flat to take part in this meeting.

[38]The claimant says that he was in the study of his flat, and his wife Ms Borg gave evidence to us that she was in the adjoining kitchen. The claimant’s case is that Mr Gerogiannis began the meeting demanding in a loud voice that he returned to his full duties. The claimant said that Mr Gerogiannis said that he would decide whether the Department needed him, and that he did not have any allocated operative lists as these were allocated to Ms Boven. The claimant’s evidence to the tribunal was that Mr Gerogiannis said that the claimant would have to “beg for his job”(LOI 6(b)). Ms Borg also gave evidence that she overheard these exact words when she was in the kitchen. The claimant said that he asked for the meeting to stop so that HR could attend.

[39]For his part, Mr Gerogiannis gave evidence that at the meeting he asked the claimant to explain what had happened that day during Ms Boven’s lists. He explained that the claimant sternly said that the lists were “his lists” and that Ms Boven was “his locum”. He felt the claimant was being very dismissive and rude in the way he was talking about Ms Boven. He accepted that he did raise his voice to the claimant as he considered this was disrespectful. There was also discussion with the claimant about when the claimant would be fit to return to full-time duties. There was some discussion about occupational health advice and the claimant said that he was hoping to return full-time in March 2022.

[40]The following day the claimant logged an incident on the Datix Incident Report Form. The Datix is generally for patient safety issues rather than human resources complaints. Nonetheless, the claimant complained that the Surgical Clinical Lead (ie Mr Gerogiannis) “behaved in a coercive, aggressive, bullying and harassing way”. The claimant referred to the fact that Mr Gerogiannis persisted in asking for an OH outcome when he had not received his report. He accused him of going into a derogatory and abusive rant of insults about expectations of returning to work. He accused him of trying to belittle him and undervalue him. He said “The attack was personally directed and implied that I had to re-justify my role after my diagnosis”. He went on to say “this apparent behaviour must be stopped in its tracks with disciplinary actions”.

[41]We find that there was some “heat” in the meeting provided by both sides. We find the explanation that best fits the facts is that the claimant was experiencing a degree of professional insecurity at this point in time. He had been out of the workplace for a long period of time, during which it had changed massively with the pandemic. He also was understandably very fearful about contracting Covid. He saw Ms Boven as a locum who was doing his lists. We find the likelihood is that this insecurity manifested itself in behaviours which Ms Boven found to be disrespectful and humiliating. We find that Mr Gerogiannis was upset at the way he saw his colleague, Ms Boven, being treated.

[42]We do not find that Mr Gerogiannis told the claimant he would have to do “beg for his job”. At the very highest, his contemporaneous documentary complaint was that Mr Gerogiannis “implied that I had to rejustify my role” [emphasis added]. This gives something of an insight into the claimant misconstruing matters and subsequently exaggerating them into a negative narrative. The likelihood is that there was some discussion both of Ms Boven’s work, and the claimant’s expected fitness to complete his return to work. The claimant saw this as an implication in this that he has to rejustify his role. The narrative later becomes that he was obliged to “beg for his job”. We do not see the evidence of Ms Borg as providing substantial corroboration. The contemporaneous documentary evidence is the best evidence. Subsequent “recollection” can always be brought in line to fit in with a subsequent narrative. 11 February 2022 OH meeting

[43]On 11 February 2022 there was an OH case conference. Mr Sandhu was invited to attend by OH administration, and the claimant did not object to his attendance. The claimant attended this meeting with Mr Sandhu and Dr Assoufi. The claimant alleges that at this meeting Mr Sandhu said “We pay you to sleep at home and do nothing”, “If you do not resume on-calls you will have to or we will make you leave”. The claimant says that Mr Sandhu was vocal, against OH recommendations, that the claimant should do on call work (LOI 6(f), 6(g) and 6(h)).

[44]Mr Sandhu gave specific unchallenged evidence about how he was invited to the meeting by a member of OH admin staff. Further, we do not find that the claimant objected to his attendance. Mr Sandhu denies the allegations levelled at him by the claimant. The claimant did not make contemporaneous complaints about this. However, he did make reference to Mr Sandhu arriving unannounced and pressurising him to undertake oncall activity in a grievance which he was to present on 18 April 2023. The claimant, for the first time, said in oral evidence to the tribunal that Dr Assoufi was shocked by what Mr Sandhu said.

[45]We do not find that these remarks were made as stated by the claimant. It is not credible that Mr Sandhu would be making such observations in front of a witness from OH. What is more likely, and in keeping with a number of other observations about the claimant’s narrative, is that Mr Sandhu discussed issues, for example, such as on-call work being something to work towards, which the claimant misconstrued and exaggerated in his later narrative to fit in with his view of Mr Sandhu as unpleasant, unreasonable and aggressive. Operating at Queen Mary Hospital February 2022

[46]Also on 11 February 2022 Ms Dowse emailed the claimant, following a conversation that day, about moving his list to the day surgery unit at Queen Mary Hospital (“QMH”) the following Tuesday. He was informed of the cases that had been booked, and told that Kingston Hospital would provide an anaesthetist and a first assistant. The claimant responded on 15 February 2022 “As highlighted earlier sending someone on a phased return to work, operating in an unfamiliar environment and with a scrub team he has never worked with before, is beyond belief of any governance structure”.

[47]On 16 February 2022 the claimant raised a Datix complaint (INC5767 at [270]) saying that her patient had been sent home from QMH without postoperative clot prevention. He also sent an email to a number of recipients indicating that he had been coerced and emotionally blackmailed to deliver an operating list at QMH at short notice and without induction. He set out a number of concerns about lack of adequate facilities including lack of blood availability. The respondent accepts this is a protected disclosure.

[48]It is also right to say that on 16 February 2022 a consultant anaesthetist emailed various individuals in the respondent organisation raising certain concerns about how that list had run, including that there was a problem with availability of blood, which could lead to significant issues. Ms Coulbeck responded to this email acknowledging the issues raised both by the claimant and the anaesthetist. She said the issues would be investigated as a priority and acknowledged certain issues at QMH. She acknowledged that a risk assessment for QMH could not be located, and the situation was in need of review. The tone of the email suggests that the observations made by the claimant and the anaesthetist were gratefully received and taken seriously.

[49]Dr Girgis was appointed as a factfinder in relation to the complaints concerning QMH. On 30 March 2022 the claimant attended a fact-finding meeting with her and Mr Critchell of HR. Further complaints

[50]During the course of 2022 and into 2023 the claimant made around 40 complaints through the Datix system. During the course of the hearing before us the parties were in dialogue trying to narrow down which of these were asserted to be protected disclosures, and which were admitted to be such by the respondent. However, it was not until the end of the hearing that both parties reached agreement on this issue. We were presented with a schedule which indicated which Datix complaints were relied on by the claimant, and which were accepted to be protected by the respondent. Unfortunately the schedule is not in chronological order. We will therefore not refer to each of the complaints in our chronological findings of fact (though we will refer to some), but will return to this issue in a section of its own.

[51]On 29 and 30 March 2022 the claimant raised datixes about delays in sourcing a Ligasure, and patients being transferred from another consultants list. In April 2022 he complained about Rota planning due to sickness absences.

[52]On 31 March 2022 the claimant replied to an earlier email which Ms Boven had sent to a number of surgeons, which he further CCed number of managers and HR staff, saying “Dear [Ms Boven] I did not realise you are planning departmental policy too”. He urged management and HR to look into original employment contracts as to the substantive full-time upper GI surgeons and “how the twisting and changing of job contracts is undermining, undervaluing and causing deletion of few specialist operations that are being creamed off, at the expense of long serving fulltime upper GI consultants. Consider this email as a further grievance to the working environment and culture within the surgical department”.

[53]That same day Mr Gerogiannis forwarded the emails to Mr Sandhu. He observed that since the claimant had come back “the feedback from trainees as well as from nurses in theatres is poor. His behaviour to the staff as well as to some Consultants is unacceptable.” He referred to the complaint that the claimant had put in against him and suggested that the claimant was against teamwork and there were issues with his communication. Given the “continuing psychological pressure that Mr Deguara is causing the Department, I would like to ask you kindly as Chief of Surgery to investigate this further…. I cannot take his current behaviour further as Clinical Lead”. He said that he considered the claimant’s actions as being harmful to the trust and was causing a huge problem for the Department. Later that day Dr Gerogianis forwarded this email chain to Mr Oldfield saying “FYI - more issues – see below email trail. His attitude was appalling yesterday, and this email response to [Ms Boven] is in a similar vein and unwarranted in the current climate of backlogs. I’m going to meet with [Mr Critchell and Ms Coulbeck] next week to discuss a plan, but in case anything else comes up in the meantime, thought you ought to see it’s ramping up quite quickly”.

[54]On 7 April 2022 the claimant put in a further Datix in which he accused the senior management and leadership in the Department of surgery as being dysfunctional, discriminatory and leading to the possibility of compromising patient care. He said “patients for Lap cholecystectomy are being booked without the possibility of providing a cholangiagram should the need arise. Provision of sub optimal equipment has already been raised in a previous datix. Whilst the red carpet and silver plate is rolled for some clinicians others are forced to deliver suboptimal circumstances which may jeopardise patient care”.

[55]We heard differing accounts about the issue of the need for a cholangiogram. Without going into the fine detail, this is a piece of equipment which allows a radiographer, who would be booked with the piece of equipment, to carry out certain types of scans. The respondent’s position is that there were three such pieces of equipment in the surgical department. Two were within dedicated theatres, and one would need to be booked on an as and when basis by surgeons using the other theatres. There was a booking system whereby, should a surgeon anticipate the need this equipment, it could be booked in advance. The claimant’s evidence was that the need for such equipment could not always be anticipated. He therefore believed that he should have this piece of equipment, and the attendant radiographer, available at all times. The evidence suggests that he never used the booking procedure, but made numerous complaints about the lack of equipment. We find that the reference in this datix to some surgeons getting the red-carpet treatment is a specific reference to Ms Boven. We find the overwhelming likelihood is that if she was provided with such equipment, it was because she had booked it following the established booking procedure. We find that part of the motivation this complaint was to highlight an ongoing that she was being treated more favourably than him. However, it does also raise potential patient safety issues.

[56]On 7 April 2022 Dr Girgis emailed Mr Oldfield and Ms McCormick, a very senior manager at the trust, a copy of her notes of the fact-finding meeting she had held with the claimant concerning his QMH datix. She said she was keeping them in the loop as the claimant was escalating as predicted. She mentioned she had already spoken to Mr Oldfield and said “I suspect the high-level intervention is required to land a supportive well-being conversation. Would you and [Mr Oldfield] be able to do something while I am on leave? I’m not sure what he expects the outcome of these datixes to be, or what will satisfy his complaint. But I am worried about his general well-being and others have flagged concerns to me as well”.

[57]At 7.57am on 12 April 2022 Mr Oldfield emailed the claimant saying that he had understood the claimant had raised some governance concerns which he perceived to impact on him personally and professionally. He asked whether it would be helpful to meet to discuss these things with regard to the claimant’s personal well-being, and how this can be protected. He assured the claimant that his concerns would be investigated in parallel, and that the purpose of the meeting “will be focused on your well-being and confidential”. Early April 2022

[58]On 8 April 2022 the radiography department raised concerns that they could not cover a surgical list. There was a concern that the claimant’s surgical list might be affected. On 11 April 2022 the Theatre Team Manager emailed the claimant to tell him that there was no extra radiographer available for his afternoon list of 13 April 2022 if a cholagiogram was needed.

[59]The claimant responded “If we cannot provide a safe service, patient will have to be rescheduled”. Ms Palinha, the Matron, became involved in the email chain, and on 12 April 2022 emailed the claimant apologising for the lack of equipment saying “If you are cancelling the list, this is your and your service decision but we are happy to support anything you need”. We note here that the claimant had referred to rescheduling the patient, but Ms Palinha was given to understand that he was threatening to cancel the list, which did not appear to be the case. We note, however in the claimant’s appeal against dismissal many months hence, he referred to Ms Palinha’s not supporting his decision to “cancel the list”.

[60]Thus far the email chain had been confined to the Theatre Team Manager, the matron, the claimant and Ms Dowse. The claimant CCed all of the theatre coordinators and Mr Oldfield into his reply which read: “Dear Sara [Palinha] Many thanks. Congratulations on your recent award. The tone of your email is exemplary, and the Medical Director will be copied in to share a flavour of the working environment I am being subject to. Your email will be used as evidence for: 1. Failure to provide equitable access to safe operating theatre operating environment/equipment/ancillaries/staff. 2. Discrimination in the extended theatre support provided to individual surgeons. I will report to theatres tomorrow to provide safe operations if this can be provided.”

[61]Ms Palinha, who had recently won an award for which she took great pride, was mortified and humiliated that the content of this email and the fact that it been CCed widely to colleagues and a senior clinical manager. Ms Palinha emailed Mr Critchell in HR to indicate that she would appreciate a conversation as she wanted to raise a formal complaint. As Mr Oldfield had been copied in, she also spoke to him. That day she raised a grievance under the respondent’s Dignity At Work policy. She said that the “slanderous” email left her feeling embarrassed and humiliated and distressed. The resolution she thought was a formal apology CCed to her theatre coordinators.

[62]Just to make clear, Mr Oldfield had emailed the claimant to offer a wellbeing discussion in the morning of 12 April 2022 before the claimant had forwarded and commented on the email to Ms Palinha.

[63]On 14 April 2022 Mr Critchell emailed Mr Oldfield. He said that he had spoken to Ms Paliha, who was insistent that her complaint was addressed formally although she “is looking for an informal resolution of a written apology, copied to her team members who were included in his original response. Ordinarily common sense would suggest Mr Deguara was spoken to by senior management as to his behaviour and he was given the opportunity to apologise to Sara at least and we would draw a line under it. However, it is highly likely that he would refuse to do so and the immediate working and personal relationships with those who would need to discuss the matter with him are poor. An alternative or follow-up to an informal attempt to resolve would be to undertake a fact find of the matter under MHPS but under the informal stage”. QMH fact-finding outcome

[64]On 20 April 2022 Dr Girgis and Mr Critchell produced a fact-finding outcome to the claimant’s allegation of bullying and coercion raised in the QMH datix. The claimant, Ms Dowse, an anaesthetist and Mr Jeffries, the Acting AD for Planned Care had been interviewed. The investigation concluded that the claimant had not been bullied and coerced into operating that QMH. He had been given five days notice, and this was a request not an instruction, which he could have refused. The two individuals he said were responsible for bullying him, Mr Sandhu and Mr Gerogiannis, had no role in moving his list there. Prior to moving the list, the list had been reduced by one patient and the claimant’s questions have been answered. He had been allocated an anaesthetist and the surgical assistant who he knew, and it was difficult to understand why the claimant said moving the list to QMH was a problem as he would have been happy to move the list to the New Victoria Hospital (where he carried out private work). Ms Coulbeck’s OH referral

[65]On 20 April 2022 Ms Coulbeck sent a referral form to OH. She set out a history which included the last OH review being in January 2022 following the claimant’s return to work. Adjustments had been made and a follow-up was planned for 23 March 2022, but this appointment did not happen. A further appointment was made for 22 April 2022 and adjustments had been extended. She indicated she sought advice on whether the previous adjustments (avoiding exposure to COVID 19, continuing to carry out elective surgery virtual clinics until the end of March, and avoiding on-call duties until the end of March) should continue. Ms Coulbeck sought clarity on:a. How long the claimant would remain vulnerable, in the light of his completed treatment?

b. Whether he could return on site to see patients in clinic face-toface?

c. Whether he could carry out virtual clinics on site?

d. Whether he can continue with endoscopy lists are as this was omitted from the last report but is part of the job plan.

[66]On 22 April 2022 Dr Assoufi produced an OH report having seen the claimant that day. The recommendations were for the claimant to continue with the same adjustments as the previous report for at least three months. He should continue to carry out elective surgery and avoid on-call duties and night shifts. He should avoid exposure to confirmed and suspected cases of COVID.

[67]Ms Coulbeck received this report on 26 April 2022 and considered that it had not answered a number of the questions she had asked. On 27 April 2022 Ms Coulbeck emailed OH asking for clarification on whether the claimant was okay to return to face-to-face clinics and working on site, on the understanding that any patients who are symptomatic or Covid positive will not be attending and his office was based in non-clinical area. She also asked for a response on whether the claimant could return to endoscopy lists. May 2022 – further issues

[68]At the end of April 2022 surgeons were further reminded of the need to book certain equipment.

[69]On 10 May 2022 Ms Boven emailed Ms Dowse and Mr Gerogiannis to complain that she overheard the claimant complaining his list had not started on time because he did not have the correct equipment. A coordinator indicated that the equipment was being used in Ms Boven’s theatre. Ms Boven was clearly visible, and the claimant said in a loud voice “What is so special about Ms Boven’s list?” Ms Boven felt this was unacceptable, unprofessional and undermining behaviour directed at her.

[70]On 16 May 2022 the claimant put in a further Datix accusing Ms Coulbeck of ongoing harassment and invasion of privacy in that she requested a further OH appointment on 10 June when there was already one set up for 23 September 2022. This came to the attention of Mr Critchell who understood that Ms Coulbeck had not requested a further OH appointment, but had merely asked further questions. He emailed this to Dr Girgis, who forwarded to Dr Oldfield asking whether he had had the chance to meet the claimant “to explore/diffuse?”

[71]On 17 May 2022 Ms Coulbeck emailed OH questioning why a further appointment been arranged when all she wanted was clarity on further questions you asked. She said the lack of clarity, clear OH guidance and poor communication made it difficult to support and manage the claimant to ensure the correct restrictions were in place.

[72]On 20 May 2022 a member of staff approached Ms Coulbeck to say that the claimant had raised concerns about only getting the patients that other consultants refused. The staff member said the claimant was wrong on this, and had been offered the choice of the whole list. There was further discussion about the need to book certain equipment, and the claimant felt the need not to. The member of staff was concerned at the way claimant behaved saying that he was very angry and it made the team apprehensive to approach him. Meeting with Dr Oldfield

[73]On 20 May 2022 Dr Oldfield met the claimant as had been agreed. He asked the claimant about his difficulties, and the claimant said that he felt that he was being treated differently from other surgeons in that he was not getting the equipment he needed. Dr Oldfield said that he would look into it. Dr Oldfield was concerned that the claimant appeared erratic, paranoid and that the conversation was flitting between different subjects. He was very concerned about the claimant’s well-being, but was not making any assumptions about the claimant’s mental health. He felt that it would be appropriate to refer the claimant to OH in relation to his wellbeing. Dr Oldfield also told the claimant at this meeting that more HR type issues should not be escalated by the Datix system. Complaints about colleagues should be raised through the Dignity at Work (grievance) procedure. We do not find the Dr Oldfield was trying to shut down complaint by the claimant, but was simply letting him know the correct avenues for different types of issues.

[74]There has been a difference of view among the tribunal panel about certain aspects of this meeting.

[75]The majority view is that at this stage colleagues had complained about the claimant’s conduct and that these complaints would later form the subject matter of the disciplinary process which led to the claimant’s dismissal. The majority considers that had Dr Oldfield brought to the claimant’s attention the concerns about his behaviour (such as that raised by Ms Palinha and Dr Boven), that this would have represented the opportunity to “nip in the bud” these conduct issues. The majority considers that the appropriate thing for Dr Oldfield to do would be to have brought these matters to the claimant’s attention to discuss them with him at this point, rather than allow them to fester, not least with the individuals who had raised the complaints.

[76]The minority view is that it is entirely understandable that Dr Oldfield, when he observed behaviour which he considered paranoid, erratic and giving rise to concerns about his mental well-being, felt that the most appropriate approach was to seek OH advice about the claimant’s state of mind. At a point when the claimant was paranoid and clearly raising concerns about his unfair treatment at work, raising further issues about how colleagues perceived him ran the risk of inflaming the situation further. The best course was therefore to seek expert information about the claimant’s state of mind before raising conduct issues with him.

[77]There is no document referring the claimant to OH concerning his mental well-being. The report which came back from OH refers to a letter which asked for advice on how best to support the claimant at work. However, no such letter was in the bundle.

[78]After the meeting the claimant corresponded with Mr Critchell to say that Dr Oldfield had advised him to raise certain matters internally as formal grievances. Mr Critchell supplied the claimant with a copy of the Dignity at Work policy, and with leaflets for the respondents Employee Assistance Program.

[79]That same day the claimant emailed a number of people complaining about his theatre lists not having been reinstated, and his having been kicked out of a meeting room. Ms Coulbeck responded to Mr Sandhu, Dr Oldfield and Mr Critchell that a number of members of staff had approached her upset and deflated at the ongoing criticism and personal attacks on their work by the claimant. She had been told that the claimant had been aggressive to another member of admin staff who had booked a meeting room that the claimant was occupying.

[80]On 9 June 2022 Dr Oldfield emailed Dr Assoufi to ask if he had had the chance to review the claimant “as he is apparently continuing to use inappropriate language and behaviours within his working team and this is causing significant disruption. Before we send a letter outlining our concerns regarding this I just wish to be clear there is not an underlying mental illness precipitating this which will obviously have to be managed differently”. He copied in Mr Sandhu.

[81]OH admin contacted Mr Critchell on 22 June 2022 saying that Dr Assoufi was then on leave, but had had a conversation with the claimant on Friday, and that a report would be available by the end of the week. Mr Critchell forwarded this to Dr Oldfield and Dr Girgis. He observed that some matters were on hold, but it would be advisable to feedback Datix investigation responses. OH report 27 June 2022 (the “Oldfield report”)

[82]The claimant attended an occupational health assessment on Friday, 10 June 2022.

[83]A report was prepared, which was dated 27 June 2022. This is a document of considerable significance in this case. It was during the hearing referred to at times as the “Oldfield report” as it is the OH report that was commissioned outside of the line management relationship by Dr Oldfield himself.

[84]We will quote at length from this report as it is and without highlighting any apparent typos/errors with sic. Dr Assoufi conducted a face-to-face meeting with the claimant in the OH clinic to address the issues outlined in the referral letter (which was not in the bundle). The claimant had been referred to advise on how best to support him at work. Dr Assoufi had an in-depth conversation with the claimant.

[85]Dr Assoufi said “I have addressed with him the issues of your concern ; he denied he uses inappropriate languages and behaviour within working team. He told me that over the last few months, he has been subject to constant undermining, harassment, and he feels there is a lack of support and a dysfunctional network. He reports to me that his daily provision of service does not receive the necessary support and requirements to deliver safe care which makes him frustrated. He feels that this caused him unnecessary stress. He was trying his best to carry out his duties to the best of his ability. He reported to me he has raised multiple concerns via emails and Datix regarding these issues, but this has not improved the situation”.

[86]Under the heading “Current Situation” Dr Assoufi reported “At present he continues to have symptoms related to his stress. I carried out simple test to assess his psychological status and the result of my assessment is satisfactory and does not indicate he suffers from an underlying mental health condition”.

[87]Under the heading “Occupational Health Recommendations” Dr Assoufi said “Based on my assessment I advised he is fit for work with some adjustments. In my opinion his personal stress he has experienced due to his serious illness, makes him less resilient to a stressful work situation. This has no doubt has influenced his communication style with colleagues and the way he addresses work issues. I recommend the following: Stress risk assessment should be carried out. Stress risk assessment would be helpful to explore her concerns and to mutually agree on solutions and action plans. He is best placed to know what might be helpful and has quite simple yet powerful suggestions to make. Work issues need to be addressed and resolved. Due to the concerns you have raised and also stress he has been experiencing I asked him to contact PHP [a body which provides certain medical interventions for clinicians] for some counselling sessions/CBT. In my opinion he does not suffer from recognised underlying mental health condition. Due to nature of your concerns, I have arranged further review for him in one month’s time.”

[88]Dr Assoufi indicated the claimant had consented for the release of this report.

[89]Occupational health admin emailed a copy of the Oldfield report to the claimant on 27 June 2022 both at his work and personal email address. At this point in time he was on annual leave and he did not respond to either email. A follow-up email was sent on 29 June 2022 again attaching the report and asking for the claimant’s consent to the contents being released to line management and HR. The email said that if no response was received by 1 July it would be assumed that the claimant did not consent for the report to be released, and a letter would be sent to management and HR explaining this.

[90]On 4 July 2022 Dr Assoufi wrote to Ms Coulbeck to say that OH had sent an OH report to the claimant on two separate occasions, but that he had not consented for the report to be released. He was therefore unable to offer any advice or support.

[91]It appears to be the case that Ms Coulbeck had not been told by anyone that Dr Oldfield had made his own referral to OH. The only “referral” that Ms Coulbeck knew about was her own further questions on 27 April 2022 followed up on 17 May 2022.

[92]It appears that what OH was saying in the letter of 4 July 2022 was that the claimant had not consented to the release of the Oldfield report. By 12 July 2022 there still had not been consent to release of this report, and Dr Oldfield wrote to Dr Assoufi to confirm his understanding that the claimant had not given permission to OH to release findings. He assumed that given the trust had not been notified to the contrary, that the claimant would be fit from an OH perspective to return to normal duties and did not require ongoing adjustments. He asked the confirmation of this so that discussions could be started with the claimant.

[93]On 15 July 2022 the claimant gave his consent to OH for the release of the Oldfield report. The Oldfield report was sent to Ms Coulbeck and HR later that day.

[94]Ms Coulbeck was confused at the contents of the report, which she assumed were some sort of reply to her referral. She noted that they did not seem to answer any of the questions that she asked. She raised this issue by email with Mr Critchell on 18 July 2022. On 18 July 2022 Mr Critchell forwarded Ms Coulbeck’s email to Dr Oldfield, Dr Girgis and Ms Burton, a senior HR manager. He noted that the claimant has apparently agreed to the release of “this second OH report” but that it had been redirected towards Ms Coulbeck. He observed that OH had determined that “there are no underlying mental health conditions and that his continuation to work is acceptable”. He indicated that Dr Girgis and he would be having discussions with the trust’s solicitors later that week. Dr Girgis responded that the claimant needed a stress risk assessment record and she had been involved in a different case where this had been suggested, and things had not turned out well. She observed that OH had not mentioned whether current restrictions to the job plan were then necessary.

[95]There appears to have been a belief in management at this point in time that the claimant had consented to the release of the Oldfield report, but had not consented to the release of a report concerning the further questions Ms Coulbeck had asked. It has been difficult to nail down the source of this confusion, but it was not helped by having a referral from outside the line management chain which was not notified to line management. It appears that communication from OH was not ideal, and the claimant had delayed consenting to the release of the Oldfield report. For reasons which we will make clear, this confusion had the unfortunate effect of turbo-charging some of the problems in this case.

[96]On 21 July 2022 Mr Critchell asked Ms Dowse to carry out a stress risk assessment. There was no copy of a specific stress risk assessment in relation to the claimant in the bundle. There is a joint responsibility for both manager and member of staff to cooperate with each other to produce the stress risk assessment. This is obviously in the interests of both sides. There is no firm evidence as to what went on here, although there is documentary evidence that the claimant received a stress risk assessment. 3 August 2022 meeting

[97]On Friday, 29 July 2022 Ms Coulbeck invited the claimant to attend a meeting with her and Dr Girgis. The claimant questioned what the agenda was and why Ms Coulbeck was leading the meeting. She responded that the meeting was to discuss next steps with reviewing the claimant’s job plan given the latest OH report. The claimant responded that he was still questioning in what capacity she was holding the meeting and considered it a breach of data and confidentiality. Dr Girgis joined the email chain to say that Ms Coulbeck was a senior manager in the organisation. She had been the claimant’s interim general manager and had been involved in the claimant’s initial return to work and therefore had relevant knowledge.

[98]The meeting took place in a meeting room on 3 August 2022 at 10.30 am. Going into this meeting Ms Coulbeck and Dr Girgis were of the belief that there had been an occupational assessment relating to the questions Ms Coulbeck had asked, which the claimant had refused consent to release. They were concerned that it had been a difficult process navigating towards a full return to full duties from the claimant, and that he was being deliberately obstructive by refusing consent. In addition, there was a background of numerous complaints by the claimant about various things, and growing concern about how the claimant was interacting with his colleagues.

[99]From the claimant’s point of view, he was firmly of the view that he had been treated very unfairly in a number of respects. Unlike management, he knew that there had not been a further report which he had refused consent to be released. He was deeply suspicious about why Ms Coulbeck had made a further approach to OH, considering this to be harassment and an infringement of his privacy. He probably started off the meeting asking once more why she was present.

[100]It was a warm day. The claimant did not arrive on time and did not shut the door when he came into the room. Someone else shut the door as private matters were being discussed. There was tension from both sides from the very start. At some point fairly early on in the meeting Ms Coulbeck made some reference to the claimant having refused consent to release an occupational health report. The claimant knew that this was not the case and became agitated, and accused Ms Coulbeck of lying. He knew that he had not refused consent and was outraged at the very suggestion.

[101]The claimant’s evidence to the tribunal was that Dr Girgis and Ms Coulbeck spoke to him in a patronising way like he was a naughty child. He said Dr Girgis said he would revert to his former job plan with no adjustments and have to take on call work. He accused both women of repeatedly accusing him 19 times of withholding consent for the release of a report. In evidence he explained that he was counting on his fingers the number of times she said this. He said that when he explained that he was a disabled person for the purposes of equality legislation, Ms Coulbeck said that he was not protected and why did he think he was. He accepted that he may have called Ms Coulbeck a liar in his anger, but did not point his finger in her face. He denied being in a rage.

[102]Ms Coulbeck was later to tell an investigation that the claimant was late to the meeting and was not polite when he arrived. She said that when she said she had been advised the claimant had refused to release an OH report he aggressively pointed his finger at her accused her of being a liar and was in a rage. She said the claimant was aggressive and accused her of trying to get money off him when she spoke about the job plan. There was discussion about whether or not duties can be adjusted without OH report recommending this. Ms Coulbeck knew the claimant was covered under the equalities legislation as a disabled person, but when he raised this she asked him whether he considered himself to be covered by the legislation. She accepted that this was a poorly worded remark from her point of view and regretted it. Ms Coulbeck said that Dr Girgis tried to engage the claimant by encouraging him to release the report so that the respondent could support him.

[103]Dr Girgis gave evidence that at the meeting she explained to the claimant that there was a report that he had not agreed to be released. She attempted to show the email from OH that appeared to confirm this, but the claimant would not look at it. She took the view that the claimant refused to engage with the discussion and answered “no comment” to a number of questions. There was an attempt to discuss the claimant’s job plan and he refused to comment about this. There was some discussion about whether the claimant could do endoscopy, outpatients clinics and other face-to-face clinics, and on call work. Dr Girgis felt the claimant gave general responses but also at times refused to comment.

[104]There is a difference of view in the panel as to what happened at this meeting in terms of the conclusions we have to make at LOI 6(e) ie whether the claimant was pressurised to do on call work contrary to OH recommendations.

[105]The minority view is that pressure was put on the claimant to do on call work. The claimant explained that he was protected under the Equality Act 2010, the last report from OH had explained that he could not do on call. Further, an email which Dr Girgis was subsequently to send (see below) refers to there being a discussion at the meeting that in the absence of a report it would be assumed that the claimant could participate in the full range of duties expected of the claimant as a consultant.

[106]The majority view is that this was a difficult meeting on both sides. The confusion surrounding the non-existent OH report fuelled suspicion and mistrust on both sides. The respondent believed the claimant was unreasonably refusing to consent to the release of an OH report and this was hampering their ability to move forward with discussions of his job plan. The claimant believed, with justification, that he was being accused of something he had not done. We do not find that Dr Girgis accused the claimant 19 times of refusing to release the report. The claimant also on the day after the meeting said in an email to Ms Coulbeck “Yesterday in an interrogation, you have at least three times, put me under undue distress, to release or describe the contents of some other report unknown to me”. The majority finds the claimant, again was giving exaggerated evidence to support his narrative. Dr Girgis and Ms Coulbeck were trying get to the bottom of the claimant’s ability to fulfil his full job plan. This is entirely understandable from their perspective. The claimant perceived this as unwarranted pressure to do certain work. Matters were not helped by Ms Coulbeck’s admittedly poorly expressed question about whether the claimant saw himself as a disabled person. However, the claimant was not put under pressure to undertake on-call work, but it was merely a matter for discussion as to whether he could do it and what the state of the medical evidence supporting such an adjustment was. In fact, the email sent in the few days following this meeting he did not mention being pressurised into doing on-call work.

[107]Following the meeting the claimant emailed Dr Girgis, Ms Coulbeck and others complaining that he had been subjected to repeated allegations that an OH report had been withheld he had evidence that an OH report had been sent on 15 July 2022 by OH. He said he had been subjected to unnecessary work related stress which perhaps should go into the stress risk assessment document he had recently been sent. The following day he sent a further email quoted in the paragraph preceding this one. On 5 August 2022 the claimant sent a further email to Dr Girgis, Ms Coulbeck and others saying that he had not refused consent to the release of an OH report, and that he was going to make a formal complaint against both of them. He did in fact submit a formal grievance on this date alleging that he had been harassed by both women concerning the allegation of refusing consent for the release of the OH report. He complained that he had been subjected to an abusive, humiliating and degrading interrogation. He said he was waiting for evidence that he had refused consent.

[108]On 16 August 2022 Dr Girgis emailed the claimant. She set out that at the meeting on 3 August 2022 she and Ms Coulbeck had attempted to explain that they had been told by OH that he had been unable to release the report regarding physical health issues. This was a follow-up report. She explained that in the absence of any such report it could be assumed the claimant could participate in the full range of duties. She said the claimant disagreed that he had refused to release the report but refused to look at the letter she was trying to show him. She set out that there was a discussion about asking the claimant to update his job plan on the IT system known as Allocate to reflect the actual work that he was doing. She said that it was agreed that there would be a further meeting on 1 September 2022 with a view to agreeing an accurate job plan. She said that there was some confusion regarding OH reports which had and had not been released. She said “if you would kindly agree to release all outstanding OH reports, then we will be able to take any recommendations into account in this job planning conversation”. She recognised that the claimant’s return to clinical work had not gone as smoothly as all would have hoped and she apologised for this. She said that her sole concern now was to get everyone to a place where there was a transparent agreed job plan that was acceptable to both parties.

[109]We find that the likelihood is that Dr Girgis, at this point, genuinely believed, wrongly, that there was in existence an OH report which the claimant was refusing consent to release.

[110]On 17 August 2022 Mr Critchell emailed the claimant confirming receipt of his formal complaint. He proposed discussing concerns with his own line manager. There were a number of issues which needed to be discussed including the outcomes of datixes. He proposed a meeting the following week. He indicated that the claimant’s well-being was a priority and hoped that some reconciliation of outstanding matters would go towards helping this. He further set out “For my own clarity there are clearly issues over the release or otherwise of one of two recent OH reports. I am aware that OH have written to management in July stating that you did not give permission for them to release one of the reports. You have suggested to [Ms Coulbeck and Dr Girgis] that this is incorrect. In fairness to them they can only go off what OH are telling them but if this is not accurate it can be swiftly resolved. If you could let me know in writing that you are happy to release all of the OH reports I can confirm this with OH alternatively you could write to OH and copy me in confirming the same. This could well be a complete misunderstanding and if so I would hope it could be resolved amicably and without further tensions”.

[111]The claimant did not attend the follow up meeting with Dr Girgis and Ms Coulbeck on 1 September 2022. The claimant also responded to Mr Critchell’s email (and one chasing a response on 24 August 2022) by saying that he did not want to meet as meetings had been arenas for colleagues to lash out with abuse and harassment and demeaning behaviour. He looked for outcomes to complaints in author-locked PDFs 31 August - 1 September 2022 – further incidents

[112]On 1 September 2022 Nurse Raju emailed Matron Palinha about “not having a good experience” with the claimant the previous day. She referred to the claimant having asked her and a colleague whether they have had any training in positioning a patient with straps. She went on to describe how a colleague, Nurse Freeman, was upset about an issue with times she had put on a piece of paper. She was surprised that the claimant had said he would not do the case because of that. She said that she had worked twice with the claimant and both times she was not comfortable with him. She said that his way of talking to staff “is the most depressing one and not nice enough”.

[113]A healthcare assistant, Ms Gurung, emailed Matron Palinha about the positioning issue. She said that from her perspective things were fine while she was there. Matron Palinha replied that the claimant had behaved professionally and there was no cause for concern as regards the positioning issue.

[114]Also on 1 September 2022 Nurse Freeman sent an incident form about an incident that happened the previous day. She had been coordinating at the reception to main theatre and was jotting down the times of the starts of operations for her own use. The claimant had arrived at 13.30, the patient had been sent for at 13.40 and there had been a team huddle at 13.35. There had been a delay because of consent issues. The claimant looked over her shoulder and started shouting at her that he wasn’t late and that she was trying to get him into trouble. The claimant continued to shout and was getting very angry. He stormed towards the changing room and said he was leaving as everyone was writing things about him to try and get rid of him. He protested that he was not late. Nurse Freeman explained she was just making a note for herself and was not trying to get him into trouble. She diffused the situation. She added in her incident report “I would like to add that I have worked with Mr Deguara for several years and was shocked by his outburst. I am only concerned that he is unwell and wondering if she should be operating while being so stressed”.

[115]Nurse Freeman also approached Mr Jefferies, the Divisional Manager for Clinical Care. Mr Jefferies emailed Mr Critchell cc Mr Sandhu expressing concern that the claimant had performed an eight hour surgery following this outburst. Mr Sandhu forwarded this email to Dr Oldfield saying “Isn’t it time to draw a line under this?” Dr Girgis involves PPA September 2022

[116]In around early September 2022 Dr Girgis decided to involve Practitioner Performance Advice (“PPA”), a part of the NHS which provides impartial advice to trusts about how effectively to manage and resolve concerns around clinical practitioners.

[117]Dr Girgis was due to have a meeting with a PPA adviser, Mr Cremer, on 7 September 2022. Dr Girgis’ notes in preparation and during the course of the meeting were in the bundle. Mr Critchell, Ms Burton and Dr Girgis attended the meeting. Dr Girgis raised issues of the claimant’s lack of engagement with job planning, refusing to release the OH report, refusing to deliver the full range of clinical activities, his complaining about all of his senior colleagues, refusing to meet with HR, and the complaints made about him by nursing staff and Ms Boven.

[118]The discussion with Mr Cremer covered a number of issues, and various scenarios were discussed. Mr Cremer offered to speak to the claimant or to write to him. There were suggestions about offering a mentor or to the claimant. PPA would send a follow-up letter which could be shared with the claimant. There could be a behavioural assessment involving an occupational psychologist and psychometric tests. The claimant could be reminded of offers of psychological support services. The importance of empathy was stressed. It was further stressed that this was not an adversarial process and they were all on the same side.

[119]Mr Cremer sent Dr Girgis a letter following the meeting on 21 September 2022. He recommended that the claimant be informed that PPA had been involved. He reiterated his happiness to discuss matters with the claimant himself. He set out his understanding of the issues raised by management, including the apparent declining of consent to disclose the OH report, complaints by colleagues, and the claimant not being fully engaged in job planning. Mr Cremer said that his initial thoughts were that this had been a difficult time for the claimant, taking into account his cancer, his treatment and the pandemic. He highlighted that a behavioural assessment from PPA might be a useful tool to allow a better understanding and to shape a supportive and developmental behavioural action plan. It would also be useful to have sight of an undisclosed OH report to allow the trust to ensure that it was taken into account on the question of reasonable adjustments. He indicated that without sight of the report, the trust might have no option but to move forward on the basis that no adjustments were needed. He suggested that a meeting be held with the claimant to discuss the merits of a behavioural assessment and the disclosure of the OH report. He should be encouraged to bring a union representative. Any consequent steps would depend on the claimant’s response. If he declined a behavioural assessment it may be that it colleagues complaints needed to be investigated formally under the Dignity at Work policy. It was again suggested that the trust may wish to share this letter with the claimant.

[120]An important feature of this letter was that Mr Cremer referred to the trust having commissioned a separate OH assessment specifically to consider the claimant’s mental health. He said “you received an opinion that there were no relevant mental health problems”. What was not mentioned was that the report specifically did highlight that the claimant continued to have symptoms related to his stress, and that in the view of the OH practitioner is personal stress was due to his serious illness, i.e. cancer, which made him less resilient to workplace stress, and which had influenced his communication style with colleagues and the way he addressed work issues. We can only conclude that these matters were left out of the discussion with PPA entirely. 6 October 2022 letters

[121]On 6 October 2022 Dr Girgis sent two letters to the claimant.

[122]One letter [452] concerned “Concerns about your behaviour”. It set out that there had been several allegations of bullying and harassment over a period of months. Dr Girgis said she had hoped to discuss these at the meeting on 1 September 2022 which the claimant did not attend. She summarised the complaints made by Ms Palinha, Ms Boven, Nurse Freeman and Nurse Raju.

[123]The letter gave the option of either going down an informal route which would require the claimant to accept the concerns were valid. Ms Palinha and Ms Boven had indicated that they would not pursue grievances if the claimant provided the written apologies, and a similar approach would be welcomed by nurses Freeman and Raju. If the claimant wished to consider this option, he would be expected to provide genuine emailed apologies to the members of staff for any distress or upset caused, would need to show insight and reflection that he accepted his approach was not appropriate, that he would commit that going forward he would ensure his correspondence and conduct was professional and courteous to reintegrate himself to be an active team member. If the claimant accepted that his behaviour fell short of acceptable standards then this would be a good first step to improving working relationships. Dr Girgis also said she was happy to discuss options such as a mentor or a management course.

[124]If the claimant did not wish to take this approach, the letter set out that a formal process could be pursued which could include disciplinary action or consideration of matters under the MHPS.

[125]The second letter of 6 October 2022 was around job planning. The letter set out a chronology of interaction with OH. It included reference to the Oldfield report of 26 June 2022. It was set out that this indicated that “there were no relevant mental health problems”. No mention was made of the observations about stress and how this impacted his communication style. The letter also indicated that there had been no OH report issued updating previous OH reports. It was set out that OH had written on 4 July 2022 that the claimant had declined to disclose the contents “although the claimant denied this”. Again it was suggested that if the claimant believe this was incorrect and that he was happy to share a copy of the OH advice he should contact Dr Girgis. If the claimant was unwilling to share this advice it could not be taken into account, and the trust would have to progress with the information it possessed to determine the contents of the job plan. Further reference was made to attempts to meet with the claimant to resolve issues which were unsuccessful, and leading to complaints of harassment.

[126]The letter went on to deal with the complaints raised by the claimant in numerous Datixes. Dr Girgis set out that the claimant’s request for author locked PDFs was not a reasonable one, and she proceeded to outline the findings in relation to the Datix concerning the 17 January 2022 meeting and the Datix concerning working at QMH. In short, neither complaint was upheld.

[127]The letter concluded with a section on next steps. Dr Girgis proposed one final meeting to discuss job plans at which the claimant could be accompanied by a trade union representative or a colleague. If the claimant did not engage with this process, Dr Girgis would write to him again notifying him of his new job plan, which would likely be a return to full duties including on call as there was no up to date medical evidence to suggest he could not perform the full range of duties. The claimant could appeal this under the Job Planning policy if he wished. She informed him that she had involved PPA about his lack of engagement and hostility towards anyone who tries to address job planning and about the allegations of bullying against him.

[128]The claimant was urged to respond within 7 days.

[129]We had a number of concerns about the content and tone of these letters.a. The whole tenor of the PPA advise was not to adopt an adversarial approach. In parts, the tone appears to be more accusatory and adversarial.

b. In part this is due to the way that the complaints against him were introduced, for the very first time.

c. The Oldfield Reports finding that there was no underlying mental health condition was referenced, but nothing was said about the very important observations about stress due to his underlying illness which impacted on his communication style and way he addresses work issues.

d. There was no reference to a behaviour assessment, a key suggestion of PPA.

[130]It appeared to us that just as PPA was suggesting a non-adversarial exploration of factors that may be behind the claimant’s behaviour, the respondent toughened up its approach. Important observations about what might be behind the claimants communication and approach to work issues were ignored. The claimant might reasonably have taken these two letters as indicating a choice of accepting that he had bullied colleagues, admitting he was wrong and apologising to them or that he would face disciplinary action. In respect to job planning, he could either disclose an OH report he knew did not exist, or full duties would be imposed on him.

[131]The claimant did not respond to these letters. 3 November 2022 meeting with Dr Oldfield

[132]On 3 November 2022 the claimant had a meeting with Dr Oldfield by Microsoft Teams. The claimant covertly recorded this meeting and a transcript was in the bundle [479-485]. The meeting covered a number of matters including:a. The claimant raised that he had experienced “systematic abuse, discrimination, bullying and harassment towards me to try to get me out of the organisation”. He went on to say that there was no knowledge of the “Disability Act” and that his diagnosis brought him under this. He also said it his governance lead position was taken away from him as a discriminatory act.

b. There was discussion about job planning and whether there was an OH assessment of what the claimant was currently able to do or not do.

c. The claimant said he had not withheld any OH reports and asked for evidence that he had. Dr Oldfield suggested that he wrote to him indicating his agreement to access OH records. The claimant was concerned about blank consent to release everything without him knowing what was said, and Dr Oldfield suggested he ask that all information went to the claimant himself “and then you can release what you consider appropriate”.

d. The claimant asked how much Dr Oldfield knew about this situation, and Dr Oldfield said he was aware there was a situation going on “but I have to remain slightly detached as it could proceed to a hearing and I have to be neutral”.

e. He complained that surgical equipment should be available equitably without “turf wars”.

[133]After the meeting the claimant wrote to OH asking for evidence that he withheld consent, and asked for copies of all his OH reports. October-December 2022

[134]Towards the end of October early November the claimant informed Ms Dowse, his manager, and HR that he expected to be going on paternity leave around 10 November 2022.

[135]By 30 November 2022 the claimant had not responded to either of the letters of 6 October 2022 from Dr Girgis. Mr Critchell emailed the claimant on 30 November 2022 to say that as attempts to resolve matters informally had failed the trust would proceed by bringing in an external investigator to review the concerns about the claimant’s job plans, complaints made against him by colleagues, and grievances he had raised.

[136]On 19 December 2022 Dr Girgis received a letter from a PPA adviser, Ms Allen, which set out details of the conversation they had had on 13 November 2022. This letter included Ms Allen observing that a case manager may need to be identified and appointed as the Chief Medical Officer (“CMO” i.e. Dr Oldfield) “is potentially conflicted as they have had some previous involvement in this case”. The letter also indicated that there was no concern that the claimant’s lack of engagement and behavioural issues posed a risk to patient safety and there were no concerns about his clinical practice therefore there was no plan to restrict or exclude the claimant.

[137]On 19 December 2022 claimant put in a Datix complaint in which he alleged that the Deputy Surgical Manager had told him he would not be using cholangiography equipment, he had indicated that he did not know whether he would need it until the operation started, and she had accused him of being unhelpful. He said he had been interrogated, harassed and undermined by colleagues about the use of this equipment. That same day the Deputy Service Manager, Mr Bansal, emailed HR setting out his perspective on the incident. He indicated that the Datix was a complete fabrication of the conversation, and that he asked for a witness to be with him whilst any conversation is had with the claimant. He indicated that the claimant was selective in the emails he replies to and often there is no answer. He said that he had on a number of occasions had to console members of staff who wish to have no further dealings with the claimant as he had been rude and abrupt and the staff are “scared and intimidated to even contact him”. Mr Bansal wanted nothing further to do with the claimant and would not stand by for his further mistreatment of staff members. The Wise investigation

[138]On 20 December 2022 Ms Dyson, Deputy Director of Workforce, emailed Ms Wise, external HR consultant about a “doctor investigation” she wanted to discuss. Ms Dyson and Ms Wise had previously worked together for Capsticks, the respondent’s solicitors, in an HR capacity some time previously. On 21 December 2022 Mr Critchell emailed a proposed Terms of Reference to Ms Dyson, which was forwarded to Ms Wise. These terms of reference covered various allegations of undermining behaviour towards colleagues, allegations relating to job planning and failing to release an OH report, and the claimant’s own complaints against Dr Girgis and Ms Coulbeck for bullying and harassment.

[139]On 20 January 2023 Mr Critchell emailed the claimant introducing Dr Hogh, Chief of Medicine and Unplanned Care who had been appointed Case manager for the MHPS investigation, and Ms Wise the investigator. The broad scope of the investigation was outlined, the claimant was told that he could be accompanied at any interview under the investigation, and he was signposted to support and counselling from OH and the employee assistance programme.

[140]On 23 January 2023 Ms Wise emailed the claimant to introduce herself and provide the terms of reference. The claimant did not respond to this email. Ms Wise emailed again on 30 January 2023 asking if the claimant was available for interview on 8 February 2023. If that time and date was not convenient she asked him to let her know of a couple of alternative times and dates that would work better for him. She invited him to ask any questions he had about the process.

[141]The claimant responded to this email on 2 February 2023 Saying that this was extremely short notice for an interview, but did not say whether or not he could attend. He flagged up that the terms of reference did not include his concerns about the outcomes of previous investigations and other undermining behaviours. He raised a further complaint about a receptionist yelling at him about wearing scrubs.

[142]Ms Wise responded later that day. She confirmed that any concerns the claimant had about behaviours he had been subjected to would be considered under the final term of reference, and he could provide information either in written format or when they met. She explained the purpose of the investigation meeting and set out the process. She invited the claimant to send any documents he felt were relevant so she could consider them as part of the investigation. The claimant replied that the terms of reference needed to be specific and structured so there were no surprises and that he did not consider clumping things under a broad umbrella of “other” was helpful. He did not provide any dates when he could meet as Ms Wise had asked.

[143]Ms Wise emailed the claimant again on 7 February 2023, assuming that the claimant would not be attending an investigation meeting the following day. She asked the claimant to indicate a suitable time to meet, and requested that he let her know as soon as possible so she could protect time in her diary. She said that when they met she intended to ask questions about the first two terms of reference, i.e. the allegations against the claimant by his colleagues, and the matter relating to non-engagement with job planning. She said it they could meet on a further occasion when there was clarity about the third term of reference, i.e. the claimant’s complaints. The claimant responded later that day saying that he would get in touch about when to meet. He said he would be asking for a much more extensive terms of reference to give a picture of the environment. He sent a further email attaching a document with eight bullet points where he set out a variety of complaints, including verbal abuse and harassment by, unfair dismissal from surgical clinical governance role, problems with the IT system, emotional blackmail, and other matters.

[144]Ms Wise interviewed Ms Palinha, Mr Bansal, Ms Raju, Dr Girgis and Ms Coulbeck during the course of late January and February 2023.

[145]On 21 March 2023 Dr Hogh wrote to the claimant informing him that the further allegations he had raised had been included in the terms of reference. She also told the claimant that, for completeness, any Datix complaint he had raised which had a bullying and harassment component was also added. She attached the amended terms of reference.

[146]The following day Ms Wise emailed the claimant trying to arrange a meeting with the claimant. She again suggested that it might be helpful to discuss concerns over two meetings. The claimant did not respond, and Ms Wise sent a follow-up email on 29 March 2023 offering the claimant two dates for a meeting, 4 April 2023 or 12 April 2023. If either of those dates were not convenient, she asked the claimant suggest alternatives. She emphasised that it was important for her to gather as much information about the concerns, and that interview would be a fact-finding exercise as part of the investigation process. She again urged the claimant to send her any relevant documents. Study leave grievance

[147]On 29 March 2023 the claimant emailed Mr Gerogiannis to ask him to approve study leave expenses for books. Mr Gerogianis emailed back to indicate that a Mr Fawcett was the appropriate person to approve study leave. The claimant emailed back to say it was concerning expenses rather than leave. Mr Gerogiannis emailed a response to say he had not approved expenses in the past, and suggested asking someone else to clarify the issue. The claimant emailed back say the issue was the clinical lead’s responsibility and “unfortunately, I have no other alternative but to launch a formal grievance for undermining behaviour towards my professional development unless this is rectified as a matter of urgency”. Mr Gerogiannis signed the form later that day.

[148]The following day, the claimant put in a grievance in which he alleged Mr Gerogiannis had refused to sign a study leave expenses form and used a tone of intimidation and belittling. He alleged that only after an unnecessary exchange of emails and “begging” the form was signed. He referred back to numerous other allegations against Mr Gerogiannis.

[149]The email exchange was in the bundle, and there is no sense of intimidation and belittling the claimant. Mr Gerogiannis had never signed off an application for books and clearly wanted to ensure the correct person signed off. Mr Gerogiannis felt blackmailed into signing off the application under threat of a grievance. When he did sign off the application, the grievance came in any event. Further progress of Wise investigation

[150]On 31 March 2023 Mr Critchell emailed the claimant as he was aware the claimant had put in Dignity at Work forms to raise further bullying and harassment complaints. He set out the scope of the claimant’s complaints that would be considered in the terms of reference. He set out certain historical matters which occurred five years previously, an IT issue which was experienced by all staff, and an insufficiently detailed complaint would not be considered. Other matters which the claimant raised have been included in the terms of reference. Mr Critchell reinforced that it was important that the claimant cooperated with the process, as there appeared to be a failure to engage. If the claimant continued to be unavailable to meet with Ms Wise a decision may have to be made on the various allegations, including his own, without any input from the claimant and based on the available evidence. The claimant was encouraged to engage, and was given a deadline of 6 April 2023 to respond so that matters can be taken forward. He was encouraged to discuss dates with Ms Wise.

[151]Mr Critchell emailed the claimant again on 6 April 2023 as neither he nor Ms Wise had heard anything from the claimant. Further grievance 18 April 2023

[152]On 18 April 2023 the claimant put in a further very lengthy grievance concerning undermining, bullying, harassment, discrimination and victimisation. Some of the allegations were duplications of other complaints, such as that against Mr Gerogiannis for refusing to sign a study leave expenses form. He also raised serious allegations against Ms Palinha for inciting a breach of patients trust for coercing an operative list to go ahead. He complained about nurse Raju, Mr Sandhu about an incident in 2018, and more recent matters. In all the claimant named or made reference to the roles around 20 or so people. He also referenced a number of Datix reports. In the section on resolution, the claimant made it clear that, among other things, he was seeking disciplinary action towards named or referenced individuals. There is no formal determination of this grievance, and it appears somehow to have fallen through the cracks. It raises concerns which do overlap with the Wise investigation. We do not find that there was any conscious decision not to proceed with it. The explanation that best fits with the facts is that it somehow got lost, with the assumption that the claimant’s complaints would be somehow dealt with within the Wise investigation. Further progress of the Wise investigation

[153]On 17 April 2023 Mr Critchell emailed the claimant attaching the terms of reference, and clarified a few matters relating to them.

[154]The claimant replied to this email on 19 April 2023 saying that the terms of reference failed to meet his expectations. He asked for a written declaration from Dr Hogh that she had no conflict-of-interest. He had known that Ms Hogh had been the case manager since January, but only raised it for the first time at this point.

[155]On 21 April 2023 Mr Critchell replied to the claimant observing that the terms of reference had undergone numerous revisions at the claimant’s request since January 2023 without any indication that the claimant was willing to cooperate with the investigation. Every effort had been made to accommodate the claimant’s grievances within the investigation which had caused further delays. The investigator would now proceed with the investigation on the basis of the latest terms of reference. He urged the claimant to participate in the investigation “as your voice needs to be heard”. He explained that if the claimant wished not to cooperate with the investigation that was his prerogative. However, it would mean the investigator would have to base a decision on the evidence presented to her. New submissions of allegations made by the claimant would not be added to the terms of reference, however the were acknowledged and could be considered through the lens of existing concerns already documented.

[156]On 25th of April 2023 Ms Wise emailed the claimant offering him a further date for interview on 4 May 2023, suggesting that if that date was not convenient the claimant should provide alternatives. The claimant responded to say that he was on annual leave. He did not indicate that he was only on annual leave for that day, and he did not offer alternatives.

[157]On 27 April 2023 the claimant said he had not had a written confirmation that there was no conflict-of-interest with regards to the case manager role. The following day Ms Dyson emailed the claimant to give him this written confirmation.

[158]On 27 April 2023 the Deputy General Manager of General surgery emailed various senior people to raise various concerns about the claimant as it was affecting the morale of staff. A number of concerns were raised about the claimant’s ways of working and it was stated that “Most of the admin staff do not want to work with him because of his behaviour. They fear complaints/backlash/Datix raised against them etc“. That day Ms Wise email claimant asking him to provide dates when he could meet her.

[159]On 4 May 2023 Ms Allen from PPA wrote to Dr Girgis confirming a recent conversation they had. She confirmed they had discussed the fact that the claimant had not engaged with the investigation. Ms Allen said that the claimant should be given every opportunity to participate, but if he continues not to engage it should be made clear to him that the investigation will have to conclude and report without his contribution.

[160]On 15 May 2023 Ms Wise emailed the claimant to say she had heard nothing from the claimant since he had told her that he was on annual leave (for one day). She highlighted that it was in the claimant’s best interests to meet with her, and she asked for his availability to meet over the next two weeks. She informed him that if he did not engage in the process before week commencing 29 May 2023, the investigation would continue without his participation. Annual leave grievance

[161]On 24 April 2023 the claimant put in a grievance about the start date of his annual leave year and requesting pay in lieu of leave for 6 days for 2019-20, 5 days for 2020-21 and for 5 days to be carried forward into the current year. OH audit review 31 May 2023

[162]It appears that Mr Critchell had made his own efforts to attempt to get to the bottom of whether there had been a refusal by the claimant to disclose an OH report. He drafted a series of questions on the issue. On 22 May 2023 he emailed Ms Wise a chronology of OH referrals.

[163]On 31 May 2023 Ms Andrews, Associate Director of Learning and Well-being made the following responses (in normal font) to questions (in bold) in an email subject “OH – Audit Review”: Did Basil Assouﬁ ever gain answers to the questions asked in March 2022? – There is no oﬃcial record on OPAS of the questions being answered. Did Basil meet with JD to gain these answers and if so when? – The system shows that an appointment was booked for the 22nd April 2022 for the client to meet with Basil. The system does not show if the client attended as this information was not captured. Did Basil produce a report (which JD has vetoed from being released) or did Basil never complete a report? – The information held on OPAS shows that there was no evidence that refusal was given by the client for the report to be released. (I understand the client was away on holiday and did not receive the email that stated they had 48 hours to respond, as OH had not received a response a standardised email was sent to the manager, I am reviewing this approach moving forwards to ensure there is no further issues). Basil did confuse the report for Bill Oldﬁeld with that which was requested by Jennie Coulbeck. Did he also do the same with the vetoed reports letter he sent Jennie on the 4th July? – The information shown on OPAS identiﬁes that only one report was written, that was the report for Bill Oldﬁeld.

[164]Mr Critchell forwarded this email to his manager Ms Dyson and to Ms Wise on 31 May 2023. He referred to a 22 April 2022 appointment and a report being sent to Ms Coulbeck, but observed “There is also no evidence that the client ever refused to release evidence. This is obviously extremely serious in terms of the hostilities that have been directed towards managers by the client based on management misperceptions of his being difficult and not releasing the report”.

[165]Ms Wise replied to this email on 5 June 2023 saying that she had further interviews. She said that although she had already asked about their understanding of what happened, she felt it was useful to ask them again in the light of this new information to see if they had any further insights.

[166]Following this, Ms Wise held a second interview with Dr Girgis and with Ms Coulbeck. Obviously one significant aspect of these two witnesses’ evidence was on the issue of engagement with job planning and in particular the question of whether the claimant had withheld his consent for the release of an OH report. Despite what Ms Wise had said in her previous email, she did not raise with either witness the fact that the claimant had never refused to release evidence, which was serious in terms of the hostility directed by the claimant managers based on their misperceptions of him being difficult and not releasing the report.

[167]On 8 June 2023 Ms Wise emailed the claimant asking him to clarify one point in relation to one of his allegations. She said she was conscious that they had not met, and offered him the opportunity to make written responses to questions instead. The claimant did not reply. Threat to take claimant’s car

[168]The claimant had a car which he was buying through a scheme with the respondent based on salary sacrifice. He alleges that Mr Sandhu said in the car park of New Victoria Hospital that “We will take your car”. The claimant presents this allegation without any context. At a time when he was able to make numerous complaints in writing, this is something which was not the subject of a contemporaneous complaint. We also consider that it is an odd threat to make, and we cannot readily discern a motive for Mr Sandhu to make such a comment, not least as he would have no power to do anything concerning the car. We do not find that Mr Sandhu made these comments. At the very most, we find that some sort of innocent comment was misconstrued and exaggerated. The Wise Report and case managers report

[169]At some point in June 2023 Ms Wise finished her investigation report [810-845]. She completed this report with virtually no input from the claimant himself. He had not attended any meetings or indicated any availability to attend such meetings and he had not taken up the invitation to answer questions in writing. He had not provided any documents in relation to the complaints against him or his complaints.

[170]Ms Wise set out the terms of reference, set out her methodology and listed the witnesses she interviewed. They were:a. Ms Palinha;

b. Mr Bansal;

c. Nurse Raju;

d. Nurse freeman;

e. Dr Girgis;

f. Ms Coulbeck;

g. Mr Sandhu;

h. Mr Gerogiannis.

[171]Ms Wise set out the evidence she had received in respect of each of the terms of reference.

[172]Ms Wise then made conclusions in respect of all the terms of reference. She said at some detail to her conclusions, but in summary:a. Terms of Reference 1 – Ms Wise found there was there was a consistent pattern of the claimant being aggressive or shouting at colleagues and that they had been negatively impacted by his behaviour.

b. Terms of Reference 2 - Ms Wise concluded that the claimant had not engaged about his job plan. As a sub-theme, she concluded that he allowed for the release of an OH report following the meeting of 22 April 2022 “but not an amended version of this report in May 2022 which would help determine whether there should be continued restrictions on his work patterns despite multiple communications on the matter. The evidence is not clear whether a follow-up OH appointment took place, and certainly no OH report was generated for approval”. It was concluded that the claimant had not appropriately engaged with service management and senior management over job plans and the OH advice that may inform these job plans.

c. Terms of Reference 3 - Ms Wise considered 10 areas of complaint from the claimant, but the lack of engagement from him had prevented her from being able to understand how he felt he was bullied and harassed. No evidence came to light which could be investigated, but in fact others have felt bullied and harassed by him.

[173]Ms Wise’s extensive report is notable for not including certain things.a. There is no reference within the report to the claimant being a disabled person with protection under the Equality Act 2010.

b. There was no reference to the OH conclusion that the claimant continued to experience stress due to his serious illness, which made him less resilient to stressful work situations. Nor that this had no doubt influenced his communication style with colleagues and the way he addressed work issues. Ms Wise’s report had specifically referred to the Oldfield report section 6.50 at [825]) but not referred to its contents.

c. There is no reference to the OH Audit Review which concluded that the claimant had not withheld consent for the release of any report.

[174]On 10 August 2023 Dr Hogh wrote to the claimant providing him with a Case Managers report for the disciplinary hearing. She set out the allegations that the disciplinary hearing would consider, which were: Being publicly critical of colleagues:a. Belittling Ms Palinha in an email exchange on 12 April 2022;

b. Being unfairly critical or unpleasant towards another nurse on 31 August 2022 which was not the first time;

c. Shouting at a nursing colleague on 31 August 2022/1September 2022;

d. Undermining admin manager on 19 December 2022 as well as further experiences of her colleagues. Failure to engage with management and OH concerning job plans;

e. Failure to operate with the job planning process since 12 January 2022 when he last made changes on the system. Failure to engage on 3 August 2022 and to attend a follow-up meeting on 1 September 2022.

f. Releasing an OH report on 22 April 2022 but not an amended version of the report in May 2022 which would help determine whether there would be continued restrictions

g. Not responding to 2 letters of 6 October 2022;

h. Claiming for additional work on top of original job plans, including the Locally Employed Doctors Tutor and Cancer Lead. Failure to engage with the investigation stage of this MHPS investigation process

[175]Dr Hogh summarised the terms of reference, the process and the conclusions made in the Wise Report. She said following consideration of the Wise report she felt it appropriate to convene a disciplinary hearing to consider the allegations. She made reference to the claimant’s nonengagement with job planning, his interactions with OH which raised concerns, in that he allowed release of some occupational health reports but not in relation to an amended version of a May 2022 report, communication and incivility, additional responsibilities, lack of response and lack of engagement with the investigation. She pointed to a consistent pattern of non-engagement which continued. She considered that the pattern of behaviour were serious and the potential to undermine team working and to create an unpleasant and unacceptable working environment for other staff . She believed that the risk of breakdown of communication could impact negatively on patient care and safety. She noted the claimant had a significant period of long-term sickness from the summer of 2020 returning to work in January 2022. She recognised that he had no formal disciplinary record.

[176]Again, there was no reference to the claimant’s disability, to OH observations about stress arising from serious illness and the impact on his communication and approach to work, and no reference to the fact that there had been a finding that refused to release an OH report. The disciplinary hearing – preliminary matters

[177]At some point in September there was some internal discussion on who should chair the hearing. On 26 September 2023 Mr Critchell emailed Dr Oldfield to say that he had discussed with his manager and the head of HR Dr Oldfield’s query about chairing the view of HR was that there was no conflict of interest. The email referred to the fact that the claimant had not attended a meeting at which the investigation outcome was to be discussed with him.

[178]On 28 September 2023 (emailed the following day) Dr Hogh wrote to the claimant referring to not having attended the investigation outcome meeting on 22 September 2023 or communicated his reasons for nonattendance. She set out the terms of reference of the investigation and gave outcomes.

[179]The outcome of the grievance was in the enclosed report of Ms Wise. It had not been possible to reach conclusions, and the grievance was dismissed.

[180]In relation to disciplinary matters, Dr Hogh decided that one matter would not go ahead. This was in relation to complaints of undermining Ms Boven. There have been no evidence from Ms Boven to the investigation (it is understood she was on maternity leave) and this would not be proceeding to a hearing in view of the lack of evidence. The rest of the disciplinary allegations would go ahead to a hearing.

[181]Dr Hogh also added that a further allegation for consideration would be the claimant’s failure to engage reasonably with the MHPS process. The Good Medical Practice guidance created an obligation for doctors to cooperate with formal enquiries and complaints procedures and to offer all relevant information.

[182]The claimant was invited to a formal hearing on 10 October 2023 he was informed that the hearing would be chaired by Dr Oldfield who would be on a panel with Mr Fitzgerald and Dr Jones. The claimant was informed that the trust intended to call Ms Wise, Ms Palinha, Dr Girgis, Dr Sandhu and Ms Coulbeck.

[183]The claimant was informed of his right to accompaniment and was told that as the panel was being asked to consider allegations of gross misconduct, one possible outcome was summary dismissal. The claimant was asked to let the case manager know of any witnesses he was calling. The latter raised other practical matters. The letter included the Wise report and its annexes. The disciplinary hearing on 10 October 2023

[184]The disciplinary hearing took place on 10 October 2023 in accordance with the invitation letter, with Dr Oldfield chairing, Fitzgerald and Dr Williams on the panel, supported by Mr Vickers of HR. The claimant attended accompanied by his wife, Ms Borg, who is a surgeon working at a different Trust. The tribunal had copies of notes of the hearing prepared by the respondent [921-967] and those prepared by the claimant [928-962], which were the respondents with significant additions.

[185]Additionally we were taken to some brief handwritten notes made by Dr Oldfield. In Dr Oldfield’s notes under Ms Palinho’s evidence there is the following”*very aggressive approach to witness*”. It was suggested on the claimant’s behalf, at first obliquely, and then more directly that Mr Oldfield had fabricated these minutes. The reason for suggesting this was Ms Palinho’s evidence was that the claimant was not aggressive towards her during the meeting. She had said in her witness statement that she found it intimidating having the claimant’s wife ask questions, and that the hearing itself was a most unpleasant experience and she felt distressed throughout.

[186]We do not find that Dr Oldfield fabricated his notes. It is quite often the case that people form different impressions of an interaction or series of interactions. Dr Oldfield notes do not spell out that the aggressive approach was specifically from the claimant. There is also the point (often not a very good point, but a point nonetheless) that if Dr Oldfield was going to go to the trouble of falsifying his notes, he probably would have done a better job of it.

[187]The hearing lasted most of the day, and we are satisfied that the respondent’s seven pages of minutes and even the claimant’s 35 page minutes will not contain a completely complete or accurate record of what went on. Dr Oldfield described the hearing as the worst he had ever done in his career. We can well understand that this would have been a difficult hearing with challenges for all parties involved.

[188]The claimant’s minutes suggest the claimant made an opening statement. The claimant was interrupted on occasion when he raised issues such as questioning who was the disability representative on the panel, and to explain the purpose of the hearing. There is reference during this part of the hearing in the claimant’s minutes that Dr Oldfield would leave it up to the claimant to decide “when to read out his statement”.

[189]The claimant’s wife also spoke at some length at the start of the hearing. Dr Oldfield intervened to stop Ms Borg saying that he wanted to hear from the claimant rather than her. Mr Vickers said that he “would need to hear from JD himself”. The response was “JD said that he understood he need not talk at all if he chose not to and that his representative could do all the talking other that he knew had to answer questions from the panel. JD said he expected to be asked questions and would respond but JD said CP was allowed to speak at his representative”.

[190]The respondent’s witnesses to the disciplinary hearing (Ms Wise, Ms Palinha, Dr Girgis, Dr Sandhu and Ms Coulbeck) gave evidence and were questioned by the claimant and Ms Borg.

[191]We make the following further findings about the conduct of the hearing:a. Ms Wise gave evidence about how she conducted her interview and set out her efforts to get the claimant to engage, which in her view he failed to do.

b. Ms Wise was asked about OH evidence, and she said that there had been some confusion about whether there had been a rereferral. She set out that Ms Coulbeck and Ms Girgis believed further information was required, but no progress could be made after the August 2022 meeting because the claimant had not behaved appropriately. Ms Wise did not set out the contents of the OH audit report which she had specifically been sent.

c. When Ms Coulbeck gave evidence she spoke of feeling attacked by the claimant at the August 2022 meeting and described his behaviour as aggressive. The claimant “apologised to JC for causing her to feel this way”.

d. The claimant similarly “apologised to SP for the upset” when M Palinha gave evidence. Ms Palinha went on to speak about the claimant’s behaviour and said she had “never witnessed this level of aggression from a colleague”. The claimant “stated he was sorry to hear about SP’s reaction and offered an unreserved apology”. He said that he had sent the email that he had because he felt his position was being threatened and there was a plot to undermine him in the organisation.

e. When Dr Girgis gave evidence the claimant said to her that “she had hated his guts since April 2022”. Ms Hogh challenged this as an unacceptable verbal assault on Dr Girgis.

f. After Mr Sandhu gave evidence “there was an adjournment to allow parties to prepare for their summing up and closing remarks”.

g. After the respondent’s witnesses gave evidence the panel did not specifically give the claimant the opportunity to give evidence. The hearing moved straight from the hearing of evidence from the respondent’s witness to summing up. There was no formal demarcation of the hearing allowing the claimant to give evidence and allowing for his being questioned. During the course of the respondent’s witnesses evidence, it appears the claimant made certain statements, for example saying that he had not received a copy of any OH review. He was also asked a couple of questions during the course of the respondent’s witnesses evidence, for example he was asked whether he had consented to the release of his OH report, and was asked whether he made a conscious decision to disengage from the organisation because of the way he felt he had been treated after his return to work. In response to the latter question he said that he had deliberately disengaged for that reason. Nonetheless, there was no formal part of the hearing in which the claimant gave evidence.

h. Dr Hogh summed up and submitted that the case against the claimant had been proven.

i. Ms Borg summed up on behalf of the claimant. She began by explaining that the claimant had a life changing condition with a long-term disability. She referred to the haphazard return to work which led to conflict. She referred to the confusing process with HR and OH with allegations of documents not been released. She said this led to the breakdown of trust between the claimant and his managers and an unwillingness to cooperate with an organisation that treated him so badly. She confirmed that the claimant had made mistakes and he apologised for those.

j. The claimant himself addressed the meeting saying the situation should not have happened. He said he had no guidance and support which led to a downward spiral which should have been stopped earlier. He felt he had been subject to defamation. He referred to safety issues. He denied refusing consent to the release of an OH report. He said he would like to move forward and agree a job plan with the organisation.

[192]At the end of the hearing there was a discussion about whether the claimant would be operating the following day. It would have been open to the respondent to impose a restriction on the claimant operating if it was felt he presented a risk to patients. No such restriction was imposed.

[193]At 5:14 PM Mr Vickers emailed Dr Oldfield a first draft disciplinary outcome letter. The draft set out the disciplinary allegations and conclusions that misconduct was proven. It also contained a section on the claimant’s appeal against the grievance outcome which was not upheld. There was a further section on the claimant’s behaviour during the hearing, with a conclusion that the claimant demonstrated verbal aggression which made witnesses uncomfortable. A conclusion that the claimant’s actions over the past 12 months had irrevocably damaged relationships within the service was set out. There was a conclusion that the claimant had committed gross misconduct and that the claimant’s employment would be terminated without notice. This draft was two pages long.

[194]It was put to Dr Oldfield that the existence of this draft in the early evening the same day as the hearing demonstrated that a concluded view had been reached prior to the hearing. We find that this is not the case. We find that an experienced HR professional is likely to be able to put together a quick first draft. It made reference to matters which emerged during the hearing itself, and this does not indicate a preordained dismissal.

[195]Dr Oldfield and his colleagues on the panel did not reach a decision on the day and wished to take some time to consider the evidence the panel reached a unanimous decision which was communicated to the claimant by letter dated 17 October 2023.

[196]The letter included the following:a. The panel found this to be a difficult and distressing case which impacted a number of individuals including the claimant. It was regrettable that it had not been possible to correct matters before reaching this stage, and in particular that the claimant had not been able properly to engage with efforts to find a way forward.

b. Dr Oldfield included a heading “Behaviour towards colleagues”. He set out the clear evidence that behaviour towards colleagues had been far below the minimum standard expected. He referred to the evidence of Ms Coulbeck and Ms Palinha. The latter had felt humiliated and undermined by the claimant’s email, and had given evidence that the claimant was unpleasant to the nurses’ team and there were fears among nursing staff of raising matters with the claimant. Ms Coulbeck described a hostile deteriorating working relationship with the claimant, who avoided engagement with her over discussing job plan.

c. Dr Oldfield acknowledged the claimant apologised today claiming mitigation, but the panel was not persuaded that the claimant fully accepted his role in these interactions or the consequential impact. Dr Oldfield concluded that the claimant’s behaviour towards colleagues had resulted in a clear and fundamental breakdown in a professional working relationships. There was evidence of a clear inability to work cooperatively, respectfully and professionally with junior, nursing, administrative and senior colleagues within surgery and beyond. Dr Oldfield said that the trust could not run a safe service for patients or provide appropriate working conditions for colleagues if people disregarded courtesy and respect. He set out a number of breaches of the trust’s values and the disciplinary policy. The allegation was therefore proven. The panel considered that it alone constituted gross misconduct in the light of the claimant’s sustained behaviour which he could not fail to notice impacted on others.

d. Dr Oldfield set out conclusions under a further heading “Engaging with management over job planning and the Occupational Health referral”. He said there was compelling evidence the claimant did not properly engage with the trust around agreeing a job plan taking into account his return to work following a prolonged absence. He set out the claimant admitted he had not wanted to engage with the trust because of the way he felt he had been treated when he returned to work following the long-term illness. Dr Oldfield said that “although there was some confusion about whether you had or had not given consent for Occupational Health to release their final report to support this process, you saw this (at the time and still) as another “defamation” on you and did not focus efficiently on having a constructive dialogue over the content of your job plan. If there was confusion over the OH report, you could have resolved this simply and amicably by confirming consent but instead you refused to engage”.

e. Dr Oldfield went on to observe that it was inappropriate for the claimant to provide no comment responses to Dr Girgis and Ms Coulbeck on 3 August 2022, and to fail to attend the follow-up meeting on 1 September 2022. The allegation was therefore proven, and the panel considered that the claimant’s behaviour during the meeting 3 August 2022 “was another example of very poor behaviour towards colleagues which we took into consideration as part of allegation 1”. This constituted misconduct.

f. Under “Engagement with the Maintaining High Professional Standards investigation” Dr Oldfield set out the claimant’s failure to take up opportunities to meet with Ms Wise or offer dates of his own. He did not turn up to the outcome of the investigation meeting, which further indicated disengagement from the trust processes as well as being contrary to Good Medical Practice guidelines. This constituted misconduct.

g. Under “Appeal against your Grievance outcome” Dr Oldfield observed the claimant had not participated in Ms Wise’s investigation. Dr Oldfield observed that the disciplinary hearing was not a rehearing or opportunity to reinvestigate issues due to be considered by Ms Wise under her investigation. It was not possible to examine the substantive matters in detail at the hearing given the claimant’s non-engagement. It was not considered appropriate to re-open the investigation. The panel was satisfied that there was no conflict of interest in respect of Dr Hogh. The grievance appeal was not upheld.

h. Dr Oldfield also set out findings under heading “Your behaviour during the hearing”. It was a matter of great concern to the panel that the claimant demonstrated verbal aggression through raising his voice and making derogatory side remarks and accusations which made witnesses uncomfortable. Even having regard to the stressful circumstances of the hearing, this intimidatory behaviour had no place in work interactions. There was little evidence of insight into this poor behaviour and no evidence that the claimant’s mindset had changed despite him saying he wanted to look to the future. The panel concluded that the claimant actions since 2022 had irrevocably damaged relationships in the service. Given the critical nature of surgical practice this brought with it a risk to patient safety. Junior colleagues may well avoid raising concerns with the claimant because of potential reactions and there may become a cultural barrier to good clinical practice. The claimant’s behaviour and comments during the hearing suggested the relationships were irrevocably damaged.

i. The panel unanimously concluded that the individual allegation about behaviour to colleagues alone amounted to gross misconduct. However, in addition and taken together as a whole it was concluded that the claimant had committed gross misconduct and that his employment be terminated without notice with immediate effect. The panel took account of the claimant’s mitigation, including length of service, previous sickness absence and clean disciplinary record. It considered sanction short of dismissal, including a final warning. It concluded this was not appropriate as there was no confidence that the claimant’s behaviour and engagement with colleagues would improve. This was based on a clear pattern of behaviour identified in the report and subsequently. The claimant’s behaviour during the hearing was not taken into consideration as to whether to uphold the allegations themselves, but it was relevant to the decision on sanction. There was evidence of the claimant’s behaviour continued during the investigation and in the hearing itself. Behaviour of this sort created an untenable environment for staff to work in where they feel they cannot speak up will discuss openly matters of concern and this in turn threatens patient safety. The claimant was given the right of appeal.

[197]There is no reference in the letter to the claimant’s disability, nor to the fact that there was OH evidence to the effect that he was experiencing symptoms of stress due to his serious illness which made him less resilient to stressful work situations influenced his communication style with colleagues and the way he addressed work issues. The claimant’s grounds of appeal

[198]The claimant appealed his dismissal in a lengthy document under 11 different headings. These included his substantive response to the allegations, allegations that were not put to him, breaches of MHPS, patient safety, the conduct of the disciplinary hearing, the investigation, unresolved grievances that were not considered, flawed reasoning in the decision letter, mitigation and penalty. He asked to be reinstated. He also asked that, given a considerable unfairness is in the disciplinary hearing, any appeal be conducted by way of a rehearing. Other matters post-dismissal pre-appeal

[199]Under The Medical Profession (Responsible Officers) Regulations 2010 a doctor must have a legal connection to a designated body for that body to act as their designated body and their responsible officer. When the claimant was dismissed the disconnection was actioned by Ms Harris, the Medical Appraisal and Re-validation Manager on the receipt of the claimant’s leaver’s form. We find that this disconnection was triggered by the dismissal, actioned administratively, and was not in any sense because of the fact that the claimant had done protected acts or made protected disclosures.

[200]Dr Oldfield also prepared a written response to the claimant’s grounds of appeal. He addressed the matters raised by the claimant. At the beginning of the document he challenged the claimant’s assertion that action against the claimant was linked to patient safety. Dr Oldfield wrote “As the Trust Chief Medical Officer it is part of my professional and executive responsibilities to ensure patient safety issues are raised and acted upon. This is an outrageous slur on my personal integrity and I refute it absolutely”.

[201]It was put to Dr Oldfield, effectively, that he was “protesting too much”. We find that Dr Oldfield’s response does indicate a degree of unnecessary defensiveness, but we do not take it as being supportive of the suggestion that patient safety was a motivating factor. It is not uncommon for dismissal officers to address grounds of appeal in writing, and we do not find anything improper in the fact or manner of Dr Oldfield’s document.

[202]On 5 January 2024 the claimant notified ACAS of the claim, a certificate was issued on 16 February to 24 and the claimant issued proceedings on 14 March 2024. It is accepted that these acts were

[203]On 2 May 2024 Mr Hall, Chair in Common of the Trust, who was to chair the appeal, wrote to the claimant about appeal hearing arrangements. He set out that the claimant had presented his appeal documents between 17 November 2023 and 1 December 2023. An appeal hearing had been arranged on 6 December 2023, but this had to be postponed to allow sufficient time to prepare for the hearing. The new date was proposed for 12 December 2023, but the claimant was unable to make this date and suggested 14 December 2023. The respondent could not accommodate this date, and nothing could be done between 20 December 2023 until 5 January 2024 as the claimant was on holiday. The respondent offered a date of 12 January 2024, but this was postponed “on an agreed basis whilst without prejudice conversations took place”. On 19 March 2024 an invitation was sent to the claimant for a hearing to be held on 19 April 2024. The claimant could not attend this date because of a personal health appointment. Various other suggestions for dates were put forward. Mr Hall was anxious, given the number of attempts made to schedule the appeal date, that the hearing went ahead on 10 May 2024.

[204]We are satisfied that this letter sets out the reason why the appeal was delayed. No different narrative has been put forward, apart from the claimant’s mere assertion that the appeal hearing was delayed as an act of victimisation and whistleblowing detriment. We do not accept that this was the reason why the appeal was delayed. The appeal hearing 10 May 2024

[205]Mr Hall did not give evidence to the tribunal as he was a prebooked holiday in the USA when the expedited tribunal hearing was listed. The respondent did not seek to call him remotely or to call a different panely member. Accordingly we have not given significant weight to Mr Hall’s evidence, and we primarily make our findings from the contemporaneous documents.

[206]The respondent’s disciplinary policy [152] does not appear to offer a rehearing to those who appeal against disciplinary findings. At the start of the appeal hearing, it was not argued on the claimant’s behalf that the hearing should be by way of a rehearing, and the claimant’s solicitor put forward his grounds of appeal very thoroughly. She made an opening statement in which she covered a number of points, including the fact that the OH report of June 2022 which said the claimant’s cancer had affected his ability to cope with stress and affected his communication style was not taken into account at the disciplinary.

[207]Prior to the hearing the claimant put forward a witness statement, also described as a reflective statement. The claimant set out his difficulties in returning to work following his cancer diagnosis and treatment. He referred to the OH report of 27 June 2022, quoting from it, and stating that he realised that the immense pressure following his return to work did have a major impact on his communication skills with colleagues. He said that no stress risk assessment was done, but he did think his mental state was caused by the cancer. He turned to the allegations against him, and outlined the stress he was under when he was overly critical of Ms Palinha when she did not support his decision to “cancel the list”. He said he worked without problems with Ms Coulbeck for many years. He denied ignoring her, but had taken onboard her comments and realised he needs to make more of an effort. He would undergo counselling to find coping strategies. He felt under attack by Ms Coulbeck and Dr Girgis in the meeting in August 2022 and very under stress. He would find better ways of dealing with stress in the future. He was unaware of how his stress affected others, but gave his unreserved apology to witnesses during the hearing. He would repeat this apology. He would undergo counselling and a communication course to modify his communication skills. He would apologise to anyone he had offended and believed he could work effectively with colleagues following this experience. He said he had learnt a lot from the disciplinary hearing and would happily take part in mediation to clear the air.

[208]Mr Hall chaired the panel which also included Mr Lafferty, Deputy Chief Executive and Dr Etheridge, Interim Chief Medical Officer for St George’s NHS trust. Ms Hill was the HR adviser to the panel and the claimant was represented by Ms Norris a solicitor. The minutes of the meeting ran to almost 50 pages.

[209]Ms Norris made an opening statement on the claimant’s behalf. She made another number of points including the fact that the claimant was curtailed from cross-examining witnesses, and that none of the allegations were put to him. She also made clear that the OH evidence that the claimant’s serious illness affected his ability to cope with stress and impacted his communication style and behaviours was not considered.

[210]On the former point, Dr Oldfield said that the claimant had not participated in the investigation process, and tried to turn the disciplinary hearing into an investigation process which was not appropriate. The hearing was given to consider the investigation report and not matters not related to the terms of reference with the wrong individuals in the room and the wrong evidence available on the day.

[211]The claimant also was able to speak directly to the panel. He said that he wholeheartedly apologised if his actions and behaviours had come across negatively and that he did not intend to antagonise anyone. He wanted to work happily with his colleagues.

[212]The panel also considered the question of the confusion surrounding the claimant apparently not consenting to the release of the report. Dr Oldfield said that this confusion could have been cleared up by the claimant giving his agreement to receive any occupational health report available.

[213]The claimant solicitor also explored the OH report of 26 June 2022. Dr Oldfield said that he had some interactions with the claimant where the claimant was being inappropriate and irrational and he wanted to ensure there wasn’t an underlying condition that the trust should be offering help with. It was suggested that possibly he should have had a referral to some sort of psychiatrist rather than the occupational health. Dr Oldfield said that that would have to go through occupational health. Ms Norris made the point that OH were saying that the stress caused by cancer made him less resilient to work situations and also influences communication style. Dr Oldfield said that he did not think that that excused poor behaviour. He was asked what reasonable adjustments might be made where somebody’s health affects their behaviour. Every accommodation that OH advised was put into place. The panel retired and deliberated. Mr Oldfield did not retire with the panel and had no further input. Appeal decision 24 May 2024

[214]Mr Hall wrote to the claimant giving him an outcome for his appeal. He dealt with each appeal ground in turn.a. Substantive responses to the allegations/allegations which were never put to you: Mr Hall set out the history of Ms Wise’s investigation and the opportunity the claimant had to feed into that. The panel was satisfied, on looking at both sets of minutes, that there was adequate opportunity for the claimant question witnesses, challenge the management case and present his version of events. Where the panel had questions about his position, they were asked in the course of the hearing and the claimant was given an opportunity to respond.

b. Breaches of MHPS: the panel considered the claimant was given the opportunity to question all witnesses and challenge their statements. The investigation took longer than four weeks, but this was because of the complexity of the case and the need to conduct a proper investigation. There were no breaches of MHPS.

c. Patient safety issues: this was not discussed in detail by the panel, but the claimant had raised a number of concerns in Datixes. There was no evidence that these impacted on the outcome of the disciplinary hearing.

d. Conduct of the hearing: it was acknowledged that Dr Oldfield had met with the claimant, but this did not impact on his ability to chair the disciplinary hearing objectively. It was not necessary or practicable that the chair of the disciplinary panel should have had no contact with the individual subject to the process. Dr Oldfield had not been involved with matters which were the subject of the investigation and hearing. The claimant was notified of panel members in advance of the hearing and made no objections of the time. There was some interruption of the claimant but at times when it appeared necessary to conduct the hearing in an appropriate manner. The appropriate external clinical adviser was also engaged. This was not upheld.

e. The investigation: some of this was dealt with in other sections. The question of detrimental statements being made by witnesses could have been dealt with during the investigation process or by cross-examining the witnesses at the disciplinary hearing. The minutes suggested the claimant was able to cross examine appropriately. This was not upheld.

f. Unresolved grievances: the panel was satisfied the claimant had ample opportunity to engage with the investigator, but did not do so. This was not upheld.

g. Flawed reasoning for dismissal in outcome letter: the panel was satisfied that the original panel carefully considered the evidence and concluded that the combination of the volume and type of behaviours identified in the investigation and found proven were not in line with the trust’s values and fell below acceptable standards. Additionally, the panel found that the conduct of the disciplinary hearing reflected the manner in which witnesses were questioned and mirrored the types of behaviour that had been the cause for concern. The original panel was entitled to come to the conclusions it did based on the evidence before it. The investigation set out clear negative behaviour exhibited over a sustained period of time which impacted on others. The finding of gross misconduct undermining trust and confidence was appropriate.

h. Mitigation: panel considered the disciplinary outcome letter clearly stated mitigation. The outcome letter set out “You have asserted that Dr Assoufi’s report has identified that your stress had an impact on your behaviour and the panel accepted this. The panel also accepted that management did not offer any evidence in relation to stress at work risk assessment been conducted and in fact have acknowledged that you return to work could have been handled better (management statement of case response to appeal – page 3). We heard clear evidence from Dr Oldfield at the appeal hearing that mitigation was considered and we saw that this was set out on page 4 of the Disciplinary Hearing Outcome letter. However, Dr Oldfield explained that the sanction was decided upon due to your behaviour and that the mitigation offered was not sufficient to warrant a lesser sanction”.

i. Penalty: the appeal panel referred to Dr Oldfield explaining that the claimant’s behaviour at the hearing demonstrated no insight despite apologies offered. Following the disciplinary hearing Dr Oldfield was satisfied that the claimant’s behaviour could be managed for a few more days while in outcome was carefully considered. The appeal panel did not consider that this was not indicative of the fact that the behaviours were not serious it was a significant step to exclude a doctor. The appeal panel considered that relationships had broken down beyond repair, and had the claimant not been dismissed for gross misconduct his employment would have become a untenable and a dismissal for some other substantial reason would be necessary. However, the panel made findings around conduct which amounted to gross misconduct.

[215]The panel dismissed the appeal. Datixes – schedule of disclosures

[216]We have not found it easy to grapple with the alleged protected disclosures, to make findings of fact on them and go on to conclusions. In part this is because of the sheer number of them, and the way they were presented to us as a tribunal. During the course of the hearing there was constant behind-the-scenes dialogue between the parties seeking to narrow down the issues by the claimant withdrawing certain of the proposed alleged disclosures, and the respondent admitting that certain of them were accepted to be protected disclosures. This meant that a finalised schedule of disclosures was presented to us more or less at the end of the hearing.

[217]This sort of narrowing of the issues is to be encouraged, and tribunals are well used to the case presented them altering during the course of the hearing. That does not mean to say that what has been presented is easy to follow. Most of the proposed alleged protected disclosures are contained in Datix the bundle in no particular order. They each have incident numbers and each report is dated. The schedule presented to us is not chronological and there appears to be no real rationale as to the order. The parties have, no doubt in an attempt to be helpful, included a box in the table the subject of the datix. This is the parties own brief description of what was raised in the data. There has not been any distillation of the actual information which is relied on as amounting to a protected disclosure.

[218]We also did not hear detailed submissions from the parties on the disclosures either. All of this has not made matters easy for us.

[219]What we have had to do as a tribunal is spend a significant amount of time picking through the bundle and looking at these individual Datix reports. By the end of the hearing only 27 remained (9 were withdrawn), but this is still a very significant number.

[220]It would be disproportionate to spend too much time examining the intricacies of each datix, so we will be fairly brief in this fact-finding element. We will set out the incident number and the page number of the bundle which can be cross referenced to the schedule below we will follow the order of the schedule, which, as we have pointed out, is not chronological. While this is, strictly speaking, the fact finding section of our decision, we will set out our conclusions about whether the disclosure was

[221]13244: this disclosure was not made by the claimant. He cannot therefore rely on it as a protected disclosure that he made.

[222]19208 [848]: this does appear to set out that there was a lack of equipment and no radiographer, which could potentially impact patient safety. This disclosure is protected. We would observe that it forms part of a theme of complaints about not having particular equipment.

[223]13594 [644]: while this disclosure is part of a theme relating to cholangiography equipment, the datix is more of a personal complaint about colleagues. This disclosure is not protected. 224. 7028 [633]: this is the datix we deal with at paragraph 54-55 above. We find, just, that this was a protected disclosure, raising patient safety, but observe that it is also part of a personal agenda.

[225]19900 [867]: this is about an admin error. We do not find it raises health and safety issues, or other relevant failures, and is not protected.

[226]17061 [R66]: the claimant is raising a personal issue about the ratio of patients booked for him. There is no protected disclosure.

[227]6847 [270]: this was a complaint that a patient was transferred from another consultant’s list onto the claimant’s list. It does not raise health and safety concerns or any other relevant failures. It is not protected.

[228]17060 [R65]: this is about a last minute change of the claimant’s list, which inconvenienced the claimant. It does not raised health and safety or other relevant failures. It is not protected.

[229]15562 [788]: the respondent accepts this was a protected disclosure.

[230]16926 [690]: the respondent accepts this was a protected disclosure. 231. 6810 [270]: the respondent accepts this was a protected disclosure.

[232]13220 [632]: the claimant is complaining about the cholangiography equipment not being available, this does raise health and safety issues and is protected. We do, however, observe the main focus of the complaint is that another surgeon has the equipment, a perennial personal gripe of the claimant’s.

[233]7815 [633]: the claimant is complaining about the cholangiography equipment not being available, this does raise health and safety issues and is protected. We do, however, observe the main focus of the complaint is that another surgeon has the equipment, a perennial personal gripe of the claimant’s.

[234]16456 [665]: there is a series of complaints about the list and the theatre booked for the day. The complaints about the list transferring and the scrubs being the wrong size is not protected. The other complaints about the equipment and facilities raises health and safety issues, and is

[235]15191 [R61]: the fact that faulty equipment caused delays in operating is a potential health and safety issue and is protected.

[236]13594 [651] this is the issue we set out at paragraph 138 above. It is a complaint about a colleague and does not raise health and safety concerns or other relevant failures. It is not protected.

[237]10733 [638]: the complaint of faulty equipment leading to a delay when a patient had been anaesthetised raises health and safety issues, and is protected.

[238]14369: there is no page reference and no description or evidence of the disclosure.

[239]14916 [567] the claimant is complaining that another surgeon was given his table. This is not protected.

[240]11494 [R46]: there is a complaint that there were numerous failings in rota and allocation. While there is an element of the claimant’s personal issues among this, there are patient safety concerns and this is protected. 241. 6822 [270]: the respondent admits this is protected.

[242]10408 [642]: a patient was unaware of an operation, but was made aware, and came in. There are no health and safety or other relevant failures here.

[243]9940 [587]: a patient attended with false expectations of the magnitude of surgery. There is no disclosure of a health and safety issue or other relevant failing, and this is not protected. 244. 5767 [270]: the respondent admits this is protected.

[245]14931 : there is no page reference, but this relates to no pregnancy test being carried out. The patient was a 52 year old woman who had been sterilised 20 years previously. We do not find that the claimant had a reasonable belief that anyone’s health or safety was being endangered. 246. 10819 [585] the respondent admits this is protected. Further findings about the claimant’s disability

[247]Although this is a case where the claimant’s condition automatically amounts to a disability, we will make a few brief observations relating the issues we have to decide.

[248]The claimant had, prior to his diagnosis, a clean disciplinary record. None of the witnesses who gave evidence referred to any behavioural or conduct related issues. Many had been colleagues with the claimant for a number of years. There was a general acceptance among the respondent’s witnesses that the claimant was a “changed man” when he came back from his sickness absence.

[249]During the course of the disciplinary investigation Nurse Freeman said in her interview that she had “known him forever. It’s shocked to see how much he changed. I’m glad to hear he’s being helped”. She “got on well” with the claimant. Prior to his sickness absence he could be moody, but was not horrible, and was a nice person you could go to. She heard from others that he had started to shout at people before COVID, but Nurse Freeman did not witness this and found it hard to believe as she did not think he was “that kind of guy”.

[250]Ms Coulbeck also said during her disciplinary investigation interview that she found the claimant “pleasant and supportive” and had “no concerns whatsoever” about him prior to his sickness absence.

[251]The claimant also referred us to NICE guidance on colorectal cancer, which was in the bundle, which states that there are “short-term, long-term, permanent and late side effects which an affect quality of life, including: pain, altered bowel, urinary or sexual function nerve damage and neuropathy, mental and emotional changes, including anxiety, depression, chemotherapy-related cognitive impairment, and changes to self-perception and social identity”. General observations about reliability Reliability of evidence

[252]We would observe that there is a difference in the accounts being put forward by the claimant, and the respondents and their witnesses. Before we embarked upon our fact-finding we reflected on the observations made by Leggatt J in Gestmin SGPS SA v Credit Suisse (UK) Limited and another

[2013] EWHC 3560 (Comm)

about the fallibility of human memory. He observed that the vividness of memories and the confidence in their accuracy of those who hold them is no guarantee of reliability. Memories are fluid and malleable and external information can cause dramatic changes to them. Memories of past beliefs can be unreliable in that they are liable to be brought into alignment with current beliefs by external influences. The process of litigation itself “subjects the memories of witnesses to powerful biases” which cause the memory of events to be based increasingly on such things as the contents of a witness statement and later interpretations of an event rather than the original experience of the event.

[253]All of this led Leggatt J to the conclusion that “the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts”. These observations, though made in the context of commercial litigation in the High Court, are applicable to employment litigation.

[254]All people are also subject to powerful cognitive biases of various descriptions. One of these is confirmation bias. In an employment case this might manifest itself in an employee, who thinks he has been unfairly treated, reading into innocent matters a motivation that conforms to his belief that he is being poorly treated. Similarly, a manager who believes a member of staff is a troublemaker may view actions of that person through that particular lens. Recall of past events will be shaped by these biases.

[255]There is even a well-known phenomenon (sometimes known as the Mandela Effect) whereby a particular matter is misremembered by more than one person. In this case both the claimant and his wife both say they remember Mr Gerogiannis say that the claimant should “Beg for his job”. Ms Borg said how this was “Etched on her memory”.

[256]The observations about recall apply to all witnesses and not just one side. However, we have found that the claimant was particularly prone to view events in a certain way, and then to revise them further to bring them into line with a narrative of unfair treatment. An example is the “Beg for your job” narrative. As we have set out above, the claimant’s complaint the following days was that Mr Gerogiannis “implied that I had to re-justify my role after my diagnosis”. At the disciplinary hearing Ms Borg said that the claimant had a “feeling that he had to beg for his job back”. We note that in his grounds of appeal against dismissal, repeated at the appeal hearing, the claimant sets out that Mr Gerogiannis “told me I needed to ‘fight for my job’”. By the time of the claimant’s and Ms Borg’s witness statement this morphs into an allegation that Mr Gerogiannis told the claimant he had to beg for his job back.

[257]This was not the only example of this. There is also the allegation that Dr Girgis accused the claimant 19 times of withholding consent at the meeting of 3 August 2022, when the contemporaneous evidence suggests otherwise. All in all, it has not been easy for us to take at face value some of the allegations made by the claimant unless there has been some sort of corroboration in the contemporaneous documents.

[258]Mr Bromige was plainspeaking in how he invited us to view Dr Oldfield’s evidence. He accused him of telling “malicious lies” in cross examination and was scathing about his credibility in submissions.

[259]We have some reservations about some aspects of Dr Oldfield’s evidence. We found that his outrage in his appeal statement at the perceived slurs in the grounds of appeal was needlessly defensive.

[260]Mr Oldfield was cross-examined extensively about Dr Assoufi’s report of 27 June 2022 (the Oldfield report). Part of this cross-examination was about “stress [the claimant] has experienced due to his serious illness”. Counsel not unreasonably put to him that the serious illness was cancer, a disability. Dr Oldfield responded “Yes. It may be cancer or something else”. It was put to him that Dr Assoufi was obviously referring to cancer, and Dr Oldfield replied “It could be an assumption. A reasonable assumption”. He was later asked why he could not just say that the illness was clearly cancer and he responded “You asked me to look at this report”.

[261]The report refers to a “serious illness” rather than cancer. But there has never been any suggestion of any different serious illness in this case. Dr Oldfield’s refusal to make such an obvious concession is troubling. His bizarre guardedness certainly leaves the impression of someone who perhaps is not going to be fully forthcoming with reliable evidence.

[262]We were also concerned that Dr Oldfield’s reference in his witness statement to the Oldfield report was “It said that there were no concerns regarding Mr Deguara’s mental health, which I was surprised at considering the behaviour that he exhibited”. There was no reference to stress due to the serious illness, his resilience to stressful working situations, and how his communication and way he addressed work issues was impacted. While it is fair to say that he referred to the page number of the report, again, it left an impression of someone either not open to giving the full picture, or someone who had closed his mind to a potentially important aspect of the case. The law Harassment

The law

[263]Section 26(1) EqA provides: - A person(a) (A) harasses another

(b) (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

[264]Section 26(4) EqA sets out factors which tribunals must take into account: - (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a)the perception of B; (b)the other circumstances of the case; (c)whether it is reasonable for the conduct to have that effect.

[265]Section 212(1) EqA provides that conduct amounting to harassment cannot also be direct discrimination.

[266]The Court of Appeal in Richmond Pharmacology v Dhaliwal

[2009] IRLR 336

stated:- “an employer should not be held liable merely because his conduct has had the effect of producing a proscribed consequence. It should be reasonable that that consequence has occurred. The claimant must have felt, or perceived, her dignity to have been violated or an adverse environment to have been created, but the tribunal is required to consider whether, if the claimant has experienced those feelings or perceptions, it was reasonable for her to do so….We accept that not every racially slanted adverse comment or conduct may constitute the violation of a person's dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.”

[267]The Court of Appeal again emphasised that tribunals must not cheapen the significance of the words of section 26 EqA as “they are an important control to prevent trivial acts causing minor upsets being caught up by the concept of harassment” (Land Registry v Grant

[2011] ICR 1390

). Victimisation

[268]Section 27 EqA deals with victimisation and provides: -(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.

[269]A person suffers a detriment if a reasonable worker would or might take the view that they have been disadvantaged in the circumstances in which they had to work (Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] UKHL 11

. An unjustified sense of grievance is not sufficient (Barclays Bank plc v Kapur (No. 2)

[1995] IRLR 87

and EHRC Employment Code, paragraphs 9.8 and 9.9). Discrimination arising from disability

[270]Section 15 EqA provides:(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.

[271]Guidance was given by the EAT on the correct approach to section 15 claims in Pnaisner v NHS England

[2016] IRLR 170

. In shorta. Was there unfavourable treatment and by whom?

b. What caused the alleged treatment, or what was the reason for it?

c. Motive is irrelevant.

d. Was the cause/reason “something” arising in consequence of the claimant’s disability?

e. The more links in the chain of causation, the harder it will be to establish the necessary connection.

f. This stage of causation test involves an objective question and does not depend on the thought processes of the alleged discriminator.

g. The knowledge requirement is as to the disability itself, not extending to the “something” that led to the unfavourable treatment.

h. It does not matter in which order these matters are considered by the tribunal.

[272]The question of whether something arose in consequence of the disability is a question of objective fact for the tribunal to decide in the light of the evidence. The tribunal is to adopt a broad approach when establishing whether there is a causal connection, assessed objectively Sheikholeslami v University of Edinburgh [2018] 1090). Burden of proof

[273]The burden of proof provisions are set out in section 136 EqA 2010:-(1) This section applies to any proceedings relating to a contravention of this Act.

(2) 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.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision.

[274]When considering direct discrimination, the tribunal must examine the “reason why” the alleged discriminator acted as they did. This will involve a consideration of the mental processes, whether conscious or unconscious, of the individual concerned (Amnesty International v Ahmed

[2009] IRLR 884

). The protected characteristic need not be the only reason why the individual acted as they did, the question is whether it was an “effective cause” (O'Neill v Governors of St Thomas More Roman Catholic Voluntary Aided Upper School and anor

[1996] IRLR 372

[275]Guidance on the application of the burden of proof provisions of the Sex Discrimination Act 1975 (which is applicable to the EqA) were given by the Court of Appeal in Igen v Wong

[2005] IRLR 258

: ''(1) Pursuant to s 63A of the SDA 1975, it is for the claimant who complains of sex discrimination 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 against the claimant which is unlawful by virtue of Part II or which by virtue of s 41 or s 42 of the SDA 1975 is to be treated as having been committed against the claimant. These are referred to below as “such facts”. (2) If the claimant does not prove such facts he or she will fail. (3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that “he or she would not have fitted in”. (4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. (5) It is important to note the word “could” in SDA 1975 s 63A(2). At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them. (6) In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts. (7) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with s 74(2)(b) of the SDA 1975 from an evasive or equivocal reply to a questionnaire or any other questions that fall within s 74(2) of the SDA 1975. (8) Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account in determining, such facts pursuant to s 56A(10) of the SDA. This means that inferences may also be drawn from any failure to comply with any relevant code of practice. (9) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent. (10) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act. (11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since “no discrimination whatsoever” is compatible with the Burden of Proof Directive. (12) That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question. (13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.''

[276]Tribunals are cautioned against taking too mechanistic an approach to the burden of proof provisions, and that the tribunal’s focus should be on whether it can properly and fairly infer discrimination (Laing v Manchester City Council

[2006] ICR 1519

). The Supreme Court has observed that provisions “will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence, one way or the other” (Hewage v Grampion Health Board

[2012] UKSC 37

[277]The Court of Appeal has emphasised that “The bare facts of a difference in treatment, without more, sufficient material from which the tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination” (Madarassy v Nomura International plc

[2007] IRLR 246

). “Something more” is needed for the burden to shift. Unreasonable behaviour without more is insufficient, though if it is unexplained then that might suffice (Bahl v Law Society

[2003] IRLR 640

). 278. Limitation

[279]Section 123 EqA governs time limits and provides: - (1)… 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. Protected disclosures

[280]The Employment Rights Act 1996 (“ERA”) provides as follows in relation to protected disclosures: Section 43A In this Act a “protected disclosure” means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H Section 43B (1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, [is made in the public interest and] tends to show one or more of the following— (a) that a criminal offence has been committee, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, … (d) that the health or safety of any individual has been, is being or is likely to be endangered,

[281]Section 47B ERA provides in relation to detriments: (1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.

[282]Section 48 ERA provides inter alia: (1A) A worker may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 47B.] (2) On a complaint under subsection …(1A) … it is for the employer to show the ground on which any act, or deliberate failure to act, was done.

[283]The authorities stress the importance of the tribunal taking a structured approach to determinations relating to protected disclosures. As set out in Williams v Michelle Brown AM

UKEAT/0024/19

“First, there must be a disclosure of information. Secondly, the worker must believe that the disclosure is made in the public interest. Thirdly, if the worker does hold such a belief, it must be reasonably held. Fourthly, the worker must believe that the disclosure tends to show one or more of the matters listed in subparagraphs (a) to (f). Fifthly, if the worker does hold such a belief, it must be reasonably held.''

[284]There must be a disclosure of information, that is to say the conveying of facts, and it is not sufficient for the claimant simply to have made allegations Cavendish Munro Professional Risks Management Ltd v Geduld

[2010] IRLR 38

. However, a disclosure may contain sufficient information to qualify for protection even if it includes allegations. The question of whether there is sufficient information will be a matter of fact for us taking into account context and background Kilraine v London Borough of Wandsworth

[2018] EWCA Civ 1436

[285]In terms of the public interest element, in Chesterton v Nurmohamed [2017] IRL 837 the Court of Appeal set out factors to be considered by a tribunal in deciding whether there was a reasonable belief a disclosure was made in the public interest. They are the numbers whose interests the disclosure serve; the nature of the interests affects; the nature of wrongdoing disclosed; the identity of the alleged wrongdoer. Where a disclosure raises questions of a personal character, the question of whether it is reasonable to regard it as being in the public interest is to be answered by considering all of the relevant circumstances of the case. Dobbie v Felton

[2021] IRLR 679

held that a disclosure relevant to one person could nonetheless be in the public interest.

[286]The tribunal is to determine whether, i) the claimant had a genuine belief that the disclosure was in the public interest, and ii) whether he had reasonable grounds for so believing. The claimant’s motivation, as such, is not part of the test (Ibrahim v HCA International

[2019] EWCA Civ 20

). Whistleblowing Detriments

[287]Section 48 ERA is set out above.

[288]The tribunal is to determine the reason why the claimant was treated as he was, which requires an analysis of the mental processes, conscious or unconscious, which caused the employer to act as they did. It is for the employer to prove that the act complained of did not materially influence the employer’s treatment of the whistleblower (Fecitt v NHS Manchester

[2011] EWCA Civ 1190

). Automatic unfair dismissal

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

[290]The “reason” for the dismissal “connotes the factor or factors operating on the mind of the decision-maker which causes them to take the decision.” Beatt v Croydon Health Services NHS Trust

[2017] ICR 1240

[291]The focus of the Tribunal is on the mind of the individual responsible for making the decision to dismiss. Royal Mail Ltd v Jhuti

[2019] UKSC 55

provides an exception to this general principle where a person in the hierarchy of responsibility above the decision maker decides to dismiss and hides the true reason behind an invented reason which the decision maker adopts.

[292]Where there is an overall plan to dismiss an employee, to which a number of managers are party, then a Tribunal can draw inferences from the overall circumstantial evidence to conclude that the dismissing manager was acting in accordance with that plan University Hospital North Tees & Hartlepool NHS Foundation Trust v Fairhall,

UKEAT/0150/20

[36].

[293]The burden is on the claimant to prove some evidence of the facts that support a claim of automatically unfair dismissal. If this has been done, the burden is on the employer to establish that the reason for dismissal was not the automatically unfair reason (Kuzel v Roche Products Limited

[2008] ICR 143

. Ordinary unfair dismissal

[294]Under section 98(1) ERA 1996: 1)In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a)the reason (or, if more than one, the principal reason) for the dismissal, and (b)that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

[295]It is for the employer to show the reason for the claimant’s dismissal, and that this is a potentially fair reason under section 98(2) ERA 1996. In this context, a reason for dismissal is “a set of facts known to the employer, or it may be beliefs held by him, which cause him to dismiss the employee” (Abernethy v Mott, Hay & Anderson

[1974] ICR 323

[296]Potentially fair reasons include a reason relating to conduct (section 98(2)(b)).

[297]The approach to fairness of dismissal is governed by section 98(4) ERA, which provides: - Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case.

[298]The EAT set out the approach to what is now section 98(4) ERA in Iceland Frozen Foods v Jones

[1983] ICR 17

.(1) the starting point should always be the words of [s.98(4)] themselves;

(2) in applying the section an Industrial Tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the Industrial Tribunal) consider the dismissal to be fair;

(3) in judging the reasonableness of the employer's conduct an Industrial Tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

(4) in many (though not all) cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another;

(5) the function of the Industrial Tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.

[299]Where the reason for the dismissal is misconduct, the approach to fairness is the test in British Home Stores v Burchell

[1980] ICR 3

“First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.” This approach is suitable to an SOSR dismissal where it is alleged that trust and confidence broke down (Perkin v St George’s Healthcare NHS Trust

[2006] ICR 617

[300]It is important to focus on the wording of section 98(4) ERA, which does not set out a perversity test. It is for the tribunal to decide how serious the claimant’s conduct was on the information available to the employer.

[301]In Mbubaegbu v Homerton University Hospital

UKEAT/0218/17

the EAT held that “It is quite possible for a series of acts demonstrating a pattern of conduct to be of sufficient seriousness to undermine the relationship of trust and confidence between an employer and employee. That may be so even if the employer is unable to point to any particular act and identify that alone is amounting to gross misconduct. There is no authority to suggest that there must be a single act amounting to gross misconduct before summary dismissal would be justifiable or that it is impermissible to rely on a series of acts, none of which would, by themselves, justify summary dismissal”.

[302]In considering a dismissal that is disciplinary in nature, the tribunal will have regard to the ACAS Code of Practice on Disciplinary and Grievance Procedures. Provisions relating to the holiday pay claim

[303]Prior to 1 January 2024 Reg 13(10) to (13) contained provisions allowing for the carry-over of in certain circumstances relating to the coronavirus pandemic. Those provisions do not persist past 1 January 2024, and we are satisfied that those provisions cannot be implied into the claimant’s contract.

Conclusions

[304]In such an extensive case there is probably never going to be a perfect way of structuring conclusions. The approach we have taken is to start our conclusions with the allegations of harassment. We will then set out findings on protected disclosures and protected acts together and then go on to deal with the detriments for both whistleblowing and victimisation. The detriments alleged in each claim are basically the same, and it makes sense for us to deal with both claims at the same time. We will then go on to make conclusions about the dismissal, considering the reason for the dismissal, its fairness or unfairness, whether it was wrongful, and whether it was unlawful under section 15 Equality Act 2010. We will finally deal with the holiday pay claim.

[305]Some of our conclusions will not need to be set out at length because of the nature of our findings of fact. Some will require more elaboration.

[306]We will use the format LOI 6.1(a) to indicate paragraph 6.1(a) of the List of Issues. Harassment LOI 6.1(a) (c) and (d) Mr Sandhu’s remarks 2021 and early 2022

[307]Our findings of fact on these issues are set out above at paragraphs 26, 27, 32 and 33. We do not find that the claimant has factually made out his allegations. We do not find that he was subjected to the unwanted conduct he alleges. Although we cannot be certain exactly what was said, we do not find it likely that it related to disability or crossed the threshold into harassing conduct (we will use the shorthand harassing conduct to describe the conduct set out in section 26(1)(b)). This claim is not upheld. LOI 6.1(b) Mr Gerogiannis “Beg for your job”.

[308]We have made findings relating to this issue at paragraphs 34-42 above, and made references to it elsewhere (paragraphs 251-2). We do not find that Mr Gerogiannis said these words, and the claimant has not established the unwanted conduct he alleges. The likelihood is that a nondisability-related exchange, that was not harassing conduct has been exaggerated. This claim is not upheld. LOI 6.1(e) Dr Girgis pressure on claimant to do on-call work

[309]Our findings on this are at paragraphs 97 to 109 and are not unanimous. The majority does not find that the factual basis of the allegation of unwanted conduct is made out. Dr Girgis did not pressurise the claimant to do on-call work. The majority finds that there was appropriate attempts to explore the issue with the claimant in circumstance where there was confusion about his current medical position. The discussion, which the majority does not find to be pressurising, related to disability in that it concerned an exploration of capabilities in the context of the claimant’s medical position. But again, the majority concludes that this exploration does not cross the threshold into harassing conduct. Dr Girgis was in her rights to explore the issue. We find that the atmosphere of the meeting was challenging, but that Dr Girgis’s conduct did not cross the line, having regard to what the authorities say on the meaning of the words of the statute. The claim is not upheld. LOI 6.1 (f)(g)(h) Mr Sandhu remarks 11 February 2022

[310]Our findings on these issues are set out at paragraphs 43 to 45 above. We do not find that the claimant has factually made out these allegations. We are not satisfied that the claimant has established the unwanted conduct he alleges, and that something that was not harassing conduct has been misconstrued. The claim is not upheld. LOI 6.1(i) Mr Sandhu “We’ll take your car”.

[311]We have set out our findings at paragraph 168 above that Mr Sandhu did not say these words. The alleged unwanted conduct is not made out and the claim is not upheld. LOI 6.1(j) Mr Sandhu’s comment at disciplinary hearing about cancelling operations

[312]We have not gone into the detail about certain of the things said at the disciplinary hearing of 10 October 2023, so we will set out some facts here. The 2 sets of minutes of that hearing show:a. Mr Sandhu said at the disciplinary hearing that other people had told him that the claimant had refused to operate on patients that other colleagues had assessed. The claimant challenged this assertion [958].

b. Mr Sandhu also said that on one occasion the claimant refused to speak to a patient whose operation had been cancelled due to an overrun, and that Mr Sandhu himself had to speak to the patient [958].

[313]The issue as framed in the List of Issues does not quite correspond to the evidence. It is also difficult to see how the evidence Mr Sandhu gave to the hearing related to disability. Furthermore, while this evidence at the disciplinary was unwanted by the claimant, it does not approach the level of harassment having regard to the observations of the authorities. It was disputed evidence at a disciplinary hearing. It would not be reasonable, even if we could discern some relation to disability, to regard this as violating the claimant’s dignity or creating the requisite environment. The claim is not upheld. LOI 6.1(k) Dr Girgis’s comment about AGPs at the disciplinary hearing

[314]Again, this is an allegation about something arising at the disciplinary hearing, and we will set out some further findings. During the disciplinary investigation Dr Girgis was interviewed, and the interview was minuted. The minutes contained the following “And also he wouldn’t expose himself in Endoscopy as it’s not AGP” [571]. “AGP” is an aerosol generating procedure, which is a COVID risk.

[315]At the start of her evidence in the tribunal Dr Girgis explained that endoscopy is an AGP. The minutes at [571] make more sense with this correction.

[316]It is also right to say that Dr Girgis did not give any evidence about this at the disciplinary hearing and the issue was raised by Ms Borg.

[317]There has clearly been a misunderstanding based on either a typo or just a plain error in Dr Girgis’ minutes of interview. We do not conclude that Dr Girgis was criticising a reasonable adjustment. We do not conclude that the claimant has established, factually, the unwanted conduct alleged.

[318]Further, while this does conceivably relate to disability, we do not conclude that this error, which did not reflect a criticism of reasonable adjustments, crossed the threshold into violating the claimant’s dignity or creating the requisite environment. It cannot reasonable have been perceived to have done so. The claim is not upheld. Acts protected under section 27 Equality Act 2010 (LOI8) LOI 8.1

[319]We can take this issue reasonably shortly. We have set out our findings at paragraphs 132-3 above that the claimant asserted to Dr Oldfield at the meeting of 3 November 2022 that he had been discriminated against, and that he was a disabled person. This was clearly protected under section 27 Equality Act 2010.

[320]His grievance of 18 April 2023 also clearly identified that the claimant felt he had been discriminated against, and identified his disability. This was a protected act, as was his notification to ACAS on that date.

[321]His proceedings in the tribunal commenced on 14 March 2024 are also clearly protected. Protected disclosures LOI 9.1(a) Datix reports

[322]We have set out findings on datixes above at paragraphs 217-247. These findings strayed into conclusions. It is probably helpful to set out something approaching a chronology of what we found to be protected:a. On 16 February 2022 he complained that a patient was sent home without clot prevention;

b. On 23 March 2022 he complained that there had been no ligasure;

c. On 7 April 2022 he complained that there was no radiographer for a cholangiography;

d. On 10 May 2022 he complained that there was no stack for cholangiography;

e. On 5 September 2022 he complained that an operating table was not working;

f. On 3 October 2022 he complained that there were problems with the junior doctor rota;

g. On 10 February 2022 he complained that there were spurious blood results;

h. On 14 February 2023 he complained that there were faulty scopes causing operating delay;

i. On 27 February 2023 he complained that there were changes to the operating list;

j. On 29 March 2023 he complained about equipment;

k. On 3 April 2023 he complained that there were problems with equipment;

l. On 19 April 2023 he complained about various problems with equipment and facilities;

m. On 10 July 2023 he complained about no operating table or radiographer.

[323]We indicated in our factfinding that we concluded that these matters were protected. In all of these datixes we are satisfied that information was disclosed (equipment not provided or faulty or no radiographer supplied).

[324]We further conclude that the claimant believed that raising these matters was in the public interest. The public has a high degree of interest in care being delivered safely in hospital.

[325]We find that it was reasonable for him to hold this belief. It is right to say that the claimant raises numerous issues about the lack of cholangiographic equipment. He appears not to have followed the booking procedure, not been allocated equipment and then complained about the lack of it. At times he puts these complaints in the form of comparing himself with another surgeon, who we strongly suspect is the locum Dr Boven, who he said was getting preferential treatment over him. This complaint certainly overlaps with his own personal agenda arising out of professional insecurity. The motivation of the claimant in some of these complaints was probably to raise a safety issue in order to highlight what he saw as unfair treatment of himself. But, nonetheless, he did raise a concern about matters which could impact patient safety.

[326]We further find that, notwithstanding the mixed motivation for raising some of these complaints, he did believe, and genuinely so, that the matters he was highlighting raised at least the possibility that patient safety could be impacted. LOI 9.1(b) complaints about locum

[327]We have found above at paragraph 35 that no such disclosure was made. LOI 9.1(c) email of 11 February 2022 to Mr Sandhu

[328]Our findings on this email are at paragraph 46 above, and we note that the email is actually dated 15 February 2022.

[329]Again, there is a strong personal element to the disclosure of information that the claimant had been sent to operate in an unfamiliar environment with an unfamiliar team while he was on a phased return to work. On balance, just, we find that there is an implication here that it is not good for patient safety that a surgeon should be obliged to work in such circumstances. We conclude that the claimant did believe, and reasonably so, that raising this issue was in the public interest and tended to show, in his reasonable belief that an impact on patient safety is likely to occur. LOI 9.1(d) concerns that image intensifier not available

[330]Our findings on this are at paragraphs 58 to 61, and the email allegedly containing the disclosure of information is at paragraph 60. The information appears to be the “failure to provide equitable access to safe operating theatre etc” [emphasis added] and “Discrimination in the extended theatre support provided to individual surgeons”. In other words, the red carpet was rolled out to his colleagues (perhaps Ms Boven in particular). The focus is squarely an allegation about how he feels he has been treated unfairly. We do not conclude that the claimant reasonably believed that this disclosure was in the public interest. LOI 9.1(e) matters raised to Dr Oldfield

[331]Our findings on the meeting are at paragraph 73-6. The claimant certainly said he had been discriminated against, that equipment was given to other surgeons and not him and that there were problems with how the department operated.

[332]It is not easy to see the specific information that is relied on. The minutes of the meeting in general show that the slant is very much the claimant articulating a serious of unfair things that happened to him.

[333]On balance, just, we consider that information that he is not provided equipment when he needs it is specific enough. It is expressed in terms that are not quite as clearly about unfairness to him as the previous alleged disclosure at LOI 9.1(d), that we conclude, just, that the claimant reasonably believed it was in the public interest to raise such information, and that he reasonably believed that it tended to show patient safety could be compromised. Again, only just. LOI 9.1(f) grievance 18 April 2023

[334]Our findings on the Ms Palinha exchange are at paragraphs 58-63. We do not conclude that the claimant had a reasonable belief that the information (Ms Palinha “incited a breach of patients’ trust” and “coerced for an operative list to go ahead”) tended to show that persons health and safety was likely to be endangered. This information mischaracterised the communications of Ms Palinha. Detriments – victimisation and whistleblowing General observations

[335]There is a very substantial overlap in the detriments which the claimant relies on for both his victimisation and whistleblowing detriment claims. We will take them together, examining whether the acts were done, and if so, whether the respondent did the acts because the claimant had done protected acts, and/or whether protected disclosures materially influenced the doing of the acts.

[336]We remind ourselves that the tribunal has something of an armchair view of an employment dispute. In victimisation and whistleblowing detriment claims, protected acts and disclosures are identified in pleadings, list of issues and in witness statements and subjected to intense scrutiny. In the context of a difficult employment relationship, where numerous issues are raised by both parties, we must remind ourselves that sometimes the litigation process risks giving acts or disclosures highlighted during the process a prominence they may not have had in the workplace. We are careful to see the acts and disclosures not in isolation but very much within the context of the claimant’s employment with the respondent.

[337]On the issue of whistleblowing, we would make the broad point that Dr Oldfield told us that were welcomed by the respondent – it wanted to provide safe care to patients and wanted to learn about matters that might affect this. While we have indicated some concerns about Dr Oldfield’s evidence, we find that he was sincere in this. In the minutes of the covertly recorded meeting of 3 November 2022, there is nothing to suggest that he is anything other than open to properly dealing with any complaints the claimant might bring. The claimant brought a vast number of complaints in datixes, some of which legitimately raised patient safety concerns, while others were more personnel -related. The respondent investigated these and provided outcomes. LOI 8.2(a) and 9.4(a) – the disciplinary investigation into “historic” allegations

[338]The first point to make is that the bullying allegations were not historic, having allegedly taken place in April and May 2022 and the end of August beginning of September 2022. There was a further issue in December 2022.

[339]Again, there is a substantial context to these allegations. There were concerns about engagement with job planning, concerns about consent to disclosing an OH report, the claimant’s own complaints and concerns about his mental health during the period from April 2022 to the beginning of the disciplinary investigation. In more straightforward circumstances, one might expect to see conduct issues raised and dealt with promptly. Here there were many complex moving parts in a complicated employment dispute.

[340]The disciplinary investigation arose out of a very complex situation. Shortly after the April 2022 Palinha email, the respondent had concerns about the claimant’s mental health and he was referred to OH. The majority has found that Dr Oldfield had the opportunity to raise disciplinary issues with the claimant to nip them in the bud. However, the claimant’s mental health was referred to OH and a report was received in July 2022 (the Oldfield report). A stress risk assessment was due to be completed in late July early August 2022, which appears never to have been done. Further concerns persisted about the claimant’s engagement in job planning. Additionally, the respondent was labouring under the misapprehension that the claimant was refusing to consent to release of an OH report. The respondent attempted to resolve this situation, but the 3 August 2022 meeting rather turbocharged the ill feeling between the parties. From the respondents perspective the claimant did not turn up to a meeting on 1 September 2022, and Dr Girgis referred the matter to PPA. Dr Girgis then wrote to the claimant on 6 October 2022 to attempt to take forward conduct and job planning issues. The claimant did not reply to these. There was a meeting between the claimant and Dr Oldfield on 3 November 2022. On 19 December 2022 there was a further PPA letter which pointed a way forward towards an investigation under MHPS. It is at this point that the respondent contacted Ms Wise with a view to a disciplinary investigation.

[341]The preceding paragraph is a simple distillation of a number of complex facts. However, we are satisfied that the reason why the respondent moved this matter towards a disciplinary investigation when it did was that it was satisfied that there were misconduct allegations which needed to be investigated.

[342]There is nothing from which we could conclude that deciding in late December 2022 had anything to do with an observation in the meeting on 3 November 2022 to Dr Oldfield that the claimant had discriminated against him because of his disability. Even in the minutes of the meeting itself that comment rather gets lost amongst the myriad of other issues being raised. We do not consider that it was the reason why, a year later, disciplinary process was started.

[343]In terms of the whistleblowing, we are satisfied that the disclosures in the datixes and otherwise did not materially influence the decision to discipline. There were misconduct issues in the form of allegations of bullying by colleagues and non-engagement in job planning. These were worthy of investigation. There were numerous complicating factors, which we have outlined above, which delayed the crystallisation of the disciplinary investigation. But it is quite clear from the documentary evidence that the respondent had very clear concerns about the claimant’s conduct which it sought to take forward navigating the complexity. In short, senior management at the hospital genuinely believed that the claimant’s conduct was worthy of investigation and that a disciplinary investigation, which would look at his complaints also, was the appropriate way forward. We cannot see how the claimant’s complaints had anything to do with this.

[344]We do not uphold the claimant’s claims of victimisation and whistleblowing detriment. LOI 8.2(b) and 9.4(b) inclusion of hearsay remarks and failure to carry out fair investigation

[345]Ms Wise was the person who carried out the investigation, and who, on the claimant’s case, must be the person motivated by the protected acts and disclosures. It is difficult to see why something said in a meeting a year previously, or allegations concerning patient safety, would have shaped the actions of an external HR professional. Mr Bromige formally put in cross examination that protected acts and protected disclosures were the reason why she investigated as she did, but did not put any rationale as to why these motivated her in anyway.

[346]In terms of the hearsay, these included comments in people’s interviews about how other unnamed members of staff believed they were being mistreated by the claimant. We accept Ms Wise’s evidence that it was appropriate to record what people said in witness statements, and not seek to redact their words. We concluded that she would have taken this approach with someone in exactly the same circumstances as the claimant but who had not alleged discrimination in meeting a year previously, and, by this stage, in a grievance and ACAS communications, or raised issues of patient safety.

[347]We have set out at paragraph 173 above some concerns we have with Ms Wise’s report, namely the lack of reference to the claimant’s disability, the Oldfield report observations about stress and communication style and the OH Audit Review. These are the only concerns we have about the fairness of the investigation report. There is nothing from which we could conclude that Ms Wise would have conducted her investigation differently for someone in materially the same circumstances as the claimant, but who had not alleged discrimination or made disclosures about patient safety. LOI 8.2(c) and 9.4(c) outcome report and classification as gross misconduct

[348]Neither the outcome report nor the case manager’s report do classify the claimant’s conduct as gross misconduct. The claims of victimisation and whistleblowing detriment are not upheld. LOI 8.2(d) and 9.4(d) manner of conducting disciplinary hearing, false testimony of Mr Sandhu and Dr Girgis

[349]The claimant’s case is that not allowing him to present his case, interrupting him and curtailing his arguments with detriments. He says that inaccurate false testimony from Mr Sandhu and Dr Girgis was similarly detriments.

[350]Our findings on the disciplinary hearing are above paragraphs 184 to 196.

[351]Our conclusion is that this was a difficult and emotionally fraught hearing. It was made no easier by the fact that the claimant had not engaged with the investigation process. His attendance at the hearing was, essentially, his first meaningful engagement with the disciplinary process. In the normal run of events he would have been interviewed by the investigator and his comments would be in the investigation pack. We also have found that the minutes from both sides probably do not totally accurately reflect this difficult hearing.

[352]The likelihood is that the claimant was interrupted in a number of occasions. This we are satisfied that the reason why Dr Oldfield interrupted the claimant was to cut short the relevance and to attempt to focus things on the relevant issues. If there was any curtailing of the claimant’s arguments, it was when they did not appear relevant to the issues at hand. In the section below on unfair dismissal, we make some procedural comments about what the claimant not formally being called to give evidence in the same manner as the respondent witnesses. This potentially could amount to a detriment.

[353]We do not find that Dr Oldfield managed the procedure of the hearing in the way that he did because the claimant had raised discrimination to him, in a grievance or to ACAS. We also do not find that Dr Oldfield managed the process as he did because the claimant had raised patient safety issues in various forms over the past year. We accept Dr Oldfield’s evidence that he was accepting of, even welcoming of, anything that would highlight any issues of patient safety. The only possible curtailment of the claimant’s raising issues had been to tell him in May 2022, quite reasonably, that the datix procedure was not suitable for employment relations type complaints.

[354]We repeat our conclusions concerning LOI 6.1(j) at paragraphs 314-5 above, and LOI 6.1(k) 316-320 above. We do not find that Mr Sandhu or Dr Girgis gave false information to the hearing. The factual allegation is not made out, but, for good measure, we find that Mr Sandhu and Dr Girgis gave the evidence they did because they believed it to be accurate. They were not saying what they did because of protected acts or protected disclosures. These claims are not upheld. LOI 8.2(e) dismissal

[355]We consider this as an act of victimisation only, as the whistleblowing complaint about dismissal must be considered under section 103A ERA.

[356]For reasons we will set out below, we consider that the respondent formed a belief that was genuine and based on reasonable grounds that the claimant had committed acts of misconduct. Although we have something to say on the issue, we conclude that the respondent itself believed that this misconduct was sufficient to merit the claimant’s summary dismissal. In short we find that the reason why the respondent dismissed the claimant was because of this genuine and reasonable belief in his misconduct and its view that dismissal was the appropriate sanction.

[357]Sometimes when there is an unfairness in a dismissal it can support a conclusion that there must be some sort of agenda behind it. However, there is nothing from which we could conclude that the claimant’s protected acts were in any way influencing his dismissal. We conclude that someone in materially the same circumstances of the claimant, but who had not raised allegations of discrimination would have been treated in exactly the same way by the respondent. This claim is not upheld LOI 8.2(h) and 9.4(h) Failing to deal promptly with the claimant’s appeal

[358]We have set out our findings on the reasons why the appeal was delayed at paragraphs 203-4 above. They had absolutely nothing to do with the claimant’s protected acts and protected disclosures. These claims are not upheld. LOI 8.2(i) and 9.4(i) removal as responsible body

[359]We set out our findings on the removal of the respondent as the claimants responsible body at paragraph 199 above. We have found that this had nothing to do with the protected acts or disclosures, and everything to do with the respondent’s legal obligations. These complaints are not upheld. LOI 9.4(l) failing to investigate 18 April 2023 grievance

[360]We have set out our finding at paragraph 152 above that this grievance, which raised a number of duplicated matters against a vast number of people somehow fell between the cracks. We do not find that there was any conscious decision not to investigate, but rather an assumption that the claimant’s grievances would be dealt with in the Wise investigation. Insofar as there was any act or omission we do not conclude that it was in any way linked to the claimant’s protected disclosures (this does not appear to be pursued as victimisation). Somebody in exactly the same position, in the middle of a hugely complex workplace dispute with many moving parts, but who had not made protected disclosures (or, for that matter done protected acts), would have been treated the same way. That is to say, their grievance would have fallen between the cracks. This complaint is not upheld LOI 8.2(l) and 9.4(m) Dr Oldfield’s appeal statement

[361]Our findings are above at paragraphs 200-1. As set out, we find there was a degree of defensiveness about one part of this statement. Without protected acts there would not have been this defensiveness. Dr Oldfield expressed outrage about being accused of subjecting a whistleblower to detriment. However, we do not consider that this expression of outrage itself subjected the claimant to any detriment. If it was a detriment, it was because of the allegation or implication that the claimant had been dismissed for whistleblowing, rather than any whistleblowing itself. No assertions in the appeal itself were said to be protected disclosures. We do not find any linkage whatsoever the protected acts. These complaints are not upheld. LOI 8.2(m) Refusal to allow the appeal to proceed as a rehearing

[362]As we set out in paragraph 206 above, the respondent’s disciplinary policy does not appear to offer a rehearing, and this issue was not pressed at the hearing itself. The reason why the appeal went ahead as a review was following this policy. It had nothing to do with the fact that the claimant had raised issues of discrimination in a meeting, grievances or tribunal process. This complaint is not upheld. LOI 8.2(n) and 9.4(o) Dr Oldfield being present throughout the appeal process

[363]The allegation is that Dr Oldfield was present throughout the appeal process. We find that he was present during the hearing itself, but did not attend all contribute in any way to the panel’s deliberations. We find this entirely appropriate and common industrial practice. There is no detriment here, in the process had absolutely nothing to do with protected acts of protected disclosures. These claims are not upheld stop LOI 8.2(o) and 9.4(p) Dr Oldfield misleading the appeal panel

[364]The claimant gave evidence that Dr Oldfield misled the appeal panel by exaggerating his conduct at the disciplinary hearing. This was not put to Dr Oldfield in cross examination. While there was a degree of conflict in the evidence about aggression or intimidation at the disciplinary hearing, we find that Dr Oldfield gained the impression, which he noted in his own notes, that there was aggression during the course of the hearing. Looking at the tone and content of some of the documentary evidence in this case, we do not consider that was lying about this. He may have had a different impression from the claimant, but it was honestly formed impression. We do not find that anything Dr Oldfield said about his impression of the claimant during the disciplinary hearing was in any way because he had done protected acts were made protected disclosures. These claims are not upheld. LOI 8.2(p) not upholding the claimant’s appeal

[365]This is solely a claim of victimisation. We did not hear from any of the appeal panel, but we are able to form an impression of their reasoning from the minutes of the appeal meeting and the appeal outcome letter.

[366]Although we have formed different impressions about the fairness of the dismissal to the appeal panel, there is nothing from which we could conclude that the reason had anything to do with the fact that the claimant had alleged disability discrimination. There is nothing to suggest that this was anything other than an assessment of the claimant’s grounds of appeal based on the evidence the panel heard at the appeal hearing. This claim is not upheld. Unfair dismissal (automatic and ordinary)

[367]We will deal with both types of unfair dismissal claim together, as in both we have two determine the reason for the dismissal. Reason for dismissal

[368]As set out above, the reason for the dismissal is a set of facts known to an employer, or beliefs held by it which cause it to dismiss the employee.

[369]Dr Oldfield chaired the disciplinary hearing and the dismissal letter was sent out in his name. In terms of the evidence that he considered, this was that set out in the investigation report (paragraphs 169-177 above) and the disciplinary hearing above (paragraphs 184-195 above). His findings were set out in the dismissal letter of 17 October 2023 (paragraphs 196-7).

[370]As will become apparent, we do have some concerns about the dismissal and about Dr Oldfield’s evidence. In a nutshell, this revolves around the lack of consideration of the evidence in the Oldfield report about the claimant’s susceptibility to stress and the impact it may have had on his behaviour. What Dr Oldfield seemed to do, is to focus on Dr Assoufi’s conclusion that there was no underlying mental health condition at the expense of the surrounding observations.

[371]We have carefully considered whether this, coupled with some other concerns about the process, is suggestive of there being some sort of agenda at play. The claimant suggests that the agenda is one against him as a whistleblower.

[372]On balance we do not find that the claimant’s protected disclosures had anything to do with his dismissal:a. As set out above, there was nothing to undermine Dr Oldfield’s evidence that he welcomed information about how patient safety might have been impacted. In his unguarded comments to the claimant on 2 November 2022, when he did not know he was being recorded, he appears receptive to complaints the claimant might make. Earlier, in May of that year he had also indicated that he was receptive to any complaints the claimant might make, as long as he ensured that complaints about HR matters went down the grievance rather than the datix route.

b. We have observed that Dr Oldfield appeared strangely guarded about accepting that the “serious illness” Dr Assoufi referred to in the Oldfield report was cancer (paragraph 260-1 above). There was nothing here to suggest, however, that the reason he was guarded was because he was masking an agenda.

c. We have also referred to Dr Oldfield’s defensiveness in his appeal statement about being accused of taking action linked to complaints of patient safety (paragraph 200-1 above). Someone might be genuinely outraged at what they see as an inaccurate accusation against them, or they might feign outrage to deflect an accurate accusation. The expression of outrage itself cannot simply be considered as probative of deflection. On balance we consider that Dr Oldfield was genuinely committed to patient safety and was receptive to disclosure of issues where patient safety might be compromised. We conclude that he was angered by what he saw was a false suggestion.

d. Standing back, and looking at this as a whole, as well as looking at the detail, the overwhelming impression of the respondent’s “problem” with the claimant was his lack of engagement in job planning, and later with the disciplinary process, and his behaviours towards colleagues. The fact that he was raising complaints about matters that impacted patient safety really does fade so far into the background as to be negligible.

e. There was ample evidence to support misconduct. The claimant did not engage with his job planning; there was evidence to suggest poor behaviour towards colleagues; and there was evidence of lack of engagement with the disciplinary process. It is not as though we are dealing with trumped up charges, which might point more towards a sinister agenda.

f. The main problem with the dismissal, from the tribunal’s perspective, is the failure to factor in the whole of the OH advice. Dr Oldfield’s evidence to the appeal hearing (see paragraphs 215 and 216(h) above) was to the effect that the lack of resilience to stress was no excuse for poor behaviour, and insufficient to mitigate the sanction from dismissal. There is nothing to suggest this approach was driven by his view of the claimant as a whistleblower. Had the claimant been in the same circumstances but not made disclosures we are certain that Dr Oldfield’s approach would have been the same.

[373]In the circumstances we find that the reason that the respondent dismissed the claimant related to conduct. We do not find that the fact that he had made protected disclosures in any sense caused the respondent to dismiss the claimant. Potentially fair reason

[374]Conduct is a potentially fair reason under section 98 ERA. Genuine belief in misconduct on reasonable grounds

[375]We take these two elements of the Burchell test together, as the reasonableness of the grounds upon which a belief is sustained shed light on the genuineness of the belief.

[376]The panel concluded that the claimant had committed misconduct based on the evidence within the Wise report, which itself had contained witness statements from numerous individuals (see paragraph 170 above) and heard evidence from several of those same individuals. The panel set out that it found these witnesses credible and accepted their evidence. It did not conclude that the claimant fully accepted his role in the interactions with colleagues or the consequential impact.

[377]The panel considered that there was compelling evidence that the claimant did not properly engage with the trust around agreeing with the job plan. In the dismissal letter Dr Oldfield set out that the claimant appeared to accept during the disciplinary hearing that he made a deliberate decision to disengage because of the way he felt he had been treated. In the dismissal letter Dr Oldfield acknowledged there was some confusion about whether the claimant had given consent forOLH to release their final report, but commented that the claimant could have resolved this “simply and amicably by confirming consent but instead he refused to engage”.

[378]On the latter point, Dr Oldfield did not refer to the findings of the OH audit review (paragraph 162-4 above). This review had indicated there was no evidence that the claimant refused to release evidence and hinted that this was a factor in management misperceptions of his being difficult. Talking of “confusion” and placing the responsibility on the claimant to clear it up appears to run counter to the OH audit review findings.

[379]While we have some concerns about this aspect of things, in the round and on balance we find that the panel did have a genuine belief in the claimant’s misconduct and that this belief was sustained on reasonable grounds. Reasonable investigation following reasonable

Procedure

[380]Again, we take these two elements of the Burchell test together. We also make the point that, in assessing fairness and reasonableness of the investigation and procedure, we are considering the whole process from initial investigation to the conclusion of the appeal when we address this aspect.

[381]We have already set out our findings in relation to the investigation stage, the disciplinary hearing and the appeal in detail. What we will do in reaching our conclusions is to set out certain concerns that we have about the fairness of the investigation and the procedure.

[382]We would observe that, notwithstanding the concerns we raise, there were aspects of the investigation which were extraordinarily painstaking and thorough. We would also observe that matters were not made easy by the fact that the claimant did not engage with the investigation stage with Ms Wise. However, despite these observations we do have concerns about the fairness of the process as a whole. Consideration of the Oldfield Report and the claimant’s disability

[383]As set out above in paragraph 173 of Ms Wise’s report had specifically referred to the Oldfield report but had not referred to its content. The investigation was quite clearly into the claimant’s communication and behaviours towards his colleagues. Furthermore, his engagement in the job planning process was under scrutiny. It seems to us that medical evidence suggesting that the claimant’s personal stress due to his disabling condition making him less resilient to stressful work situations which influenced his communication style with colleagues and the way he addresses work issues was of critical importance. Under Ms Wise’s nose was OH evidence that had, at least, the potential to shed light on issues at the very heart of the investigation.

[384]It was known to Ms Wise, and the HR personnel who instructed her, that the claimant had cancer, a disability under the Equality Act 2010. This is a feature which assumed no prominence whatsoever in the investigation. Again, this is something which had, at least, the potential to illuminate matters. The Oldfield report suggested that stress due to his disabling condition influenced the behaviours for which he was being investigated. Failing to recognise this deprived the respondent of the opportunity to consider, for example, whether reasonable adjustments might apply.

[385]The observations on the Oldfield report and the fact of disability was not picked up in the case manager’s report (paragraph 176 above).

[386]We note, even before the investigation started, that Dr Girgis had not made PPA aware of the observations in the Oldfield report (paragraph 120 above). Instead, the trust have maintained the line that there were no relevant mental health problems. While this was strictly correct in terms of the report itself, it entirely ignored the steer from OH that there might be a disability -related explanation for problematic behaviours.

[387]The blindspot towards what Dr Assoufi was saying about stress, cancer, communication and behaviours persisted at the disciplinary hearing. Furthermore the dismissal letter makes no reference to there being OH evidence which offered a link between the claimant’s cancer, his stress reaction and his communication and behaviours. This is despite the fact that communication style and behaviour towards the trust was the very thing being investigated.

[388]The claimant squarely put in issue the contents of the Oldfield report in his appeal (see above paragraphs 207, 209 and 213). The response of Dr Oldfield at the appeal hearing was that he did not think that this excused poor behaviour. The conclusion of the appeal panel is set out at paragraph 214h).

[389]We repeat the conclusion of the appeal panel: “We heard clear evidence from Dr Oldfield at the appeal hearing that mitigation was considered and we saw that this was set out on page 4 of the Disciplinary Hearing Outcome letter. However, Dr Oldfield explained that the sanction was decided upon due to your behaviour and that the mitigation offered was not sufficient to warrant a lesser sanction”.

[390]We conclude that the appeal panel did not properly engage with the claimant’s arguments. Notwithstanding its apparent finding that no evidence suggested a stress work risk assessment had been conducted it merely accepted Dr Oldfield’s evidence that he considered mitigation and decided upon a sanction due to the claimant behaviour which was not sufficiently mitigated to warrant a lesser sanction. The way Dr Oldfield appeared to approach things was that the OH evidence did not “excuse” the behaviour. What he did not engage with was whether what the OH report was saying is that there was an explanation for the behaviour.

[391]We conclude that the potential importance of the Oldfield report was simply not picked up on by the respondent at any stage prior to or during the investigation into the claimant. The evidence was clearly important as it, on the face of it, posited a possible explanation of the claimant’s communication style and behaviours which was linked to his disability.

[392]Mr Bromige pursues the line that there was a concerted attempt to “bury” the Oldfield report. We do not consider that this is the case. The report was obviously there and obviously referred to during the investigation. There was significant confusion surrounding OH reports in this case. Despite spending extensive time reading, hearing evidence and submissions over the course of a number of days a confusion about OH evidence has persisted. There appears to be a genuine suspicion that the claimant was not consenting to OH evidence being passed on. Even after the OH audit review suggested that he had not refused consent, management took the view that he could have done more to clear up the confusion. We do not consider that management were burying the Oldfield report but, probably unaccountably, putting inordinate emphasis on its conclusion that there was no underlying mental health problem and ignoring the important evidence in other parts of the report.

[393]All in all, the failure to address the contents of the report throughout the investigation impacted the fairness of the investigation. A critical line of enquiry simply was not pursued. This is an exceptionally complex issue, and it is impossible at this stage to say where things might have led had this issue been properly pursued. It is right to say it even within the Oldfield report the claimant was denying inappropriate behaviour, which tends to suggest a lack of insight into the very problematic behaviour which the report says is due to his disability. Issue of OH consent

[394]As we have set out at paragraphs 162 to 167, the OH audit review found no evidence that the claimant refused to release evidence. HR recognised that this was “extremely serious in terms of the hostilities that had been directed towards managers by the client based on management misperceptions of his being difficult and not releasing the report”.

[395]As we have also set out, Ms Wise did not raise this with Dr Girgis or Ms Coulbeck when she reinterviewed them. These findings also did not make it into her report or feature during the disciplinary hearing. As we have observed, the conclusion of the disciplinary panel was that the claimant had a responsibility for clarifying the confusion, but did not do so.

[396]Our findings are that Dr Girgis and Ms Coulbeck genuinely believed the claimant was withholding consent for potentially important OH evidence being released. This belief probably covered their view of the claimant. In turn, the claimant, already described by colleagues as “paranoid” and “erratic” understood himself on 3 August 2022 to be “accused” of withholding consent. He became upset and angry about this. Positions probably entrenched on both sides and matters became much worse. We agree with Mr Bromige’s description of the events at this meeting as being a “significant roadblock in subsequent cooperation between the employer and employee”.

[397]Again, had the findings of the OH audit review made their way into the investigation and assumed a prominence during the disciplinary hearing, some light, at least, might have been shed on this workplace dispute.

[398]It is of note that the dismissal letter says “although there was some confusion about where the you had or had not given his consent for Occupational Health to release their final report to support this process, you saw this (at the time and still) as another “defamation” on you and did not focus sufficiently on having a constructive dialogue over the content of your job plan. If there was confusion over the OH report, you could have resolved this simply and amicably by confirming consent but instead he refused to engage it was entirely inappropriate for you to provide a “no comment” response to the Deputy Medical Director when meeting with her and Ms Coulbeck to discuss your plan in August 2022”. Dr Oldfield also refers to Ms Coulbeck’s evidence about deteriorating and hostile working relationships with the claimant. She had, during the disciplinary hearing, spoken about the meeting of 3 August 2022. This appears to be part of Dr Oldfield’s reasoning in upholding the TOR1 allegation about behaviours towards colleagues.

[399]Mr Critchell had recognised that the claimant had not refused consent and recognised the importance of this fact in understanding the claimant’s behaviours. The fact that this evidence was overlooked again undermines the fairness of the investigation process. While it is difficult to say quite where the investigation would have gone had this been highlighted during the investigation process, it is right to say that a potentially important driver in the claimant’s behaviours, and one which was taken into account in dismissing the claimant, was simply not considered. Claimant not giving evidence at disciplinary hearing

[400]Our impression of the disciplinary hearing was that it was somewhat messy. Emotions and things did not proceed in the most orderly manner. Things were not made easier by the fact that the claimant had not engaged with the investigation process and so had not given an interview or statement setting out his account in relation to the disciplinary charges.

[401]That said, the claimant was not formally given the opportunity to give evidence. He did make certain statements during the course of the hearing, some of his questions appear to be in the forms of statements and he was asked a couple of questions during the course of the respondent’s witnesses evidence. However, under the policy he should have been given the opportunity to give evidence. This would have allowed for questions to be asked of him. Given the deficiencies we have identified with the lack of consideration of OH evidence and the failure to factor in the OH review evidence this was potentially very important. Formally taking evidence from the claimant and asking his questions could have elicited information on these issues. Then again it might not have. The point is no opportunity was given for evidence to be given all questions to be asked on these issues.

[402]We conclude that this undermines the fairness of the process. Dr Oldfield conflict

[403]The PPA adviser had flagged up (see paragraph 136 above) that Dr Oldfield was “potentially conflicted as they have some previous involvement in this case”. On balance we conclude that an absolutely ideal process would not have seen Dr Oldfield hearing the disciplinary hearing. However, we have set out above that his involvement with disciplinary issues before the hearing was extremely limited and no objection was raised by the claimant to his hearing the disciplinary. Overall

[404]Taking all the above matters together, we conclude that the issues we have highlighted take the investigation and procedure outside the band of reasonable responses open to a reasonable employer. Of critical importance is that the investigation did not cover the contents of the Oldfield report and did not properly focus on the findings of the OH audit review. This evidence was potentially critical in explaining the behaviours for which the claimant was being disciplined for or at the very least mitigating them. Reasonable sanction

[405]We remind ourselves that we are to assess whether the claimant’s conduct in its totality amounted to a sufficient reason for dismissal. Without substituting our own opinions, we are to assess whether the conduct in question is such as to be capable of amounting to gross misconduct or whether it was reasonable for the employer to believe it was (Eastland Homes Partnership Ltd v Cunningham

UKEAT/02/72

/13). We keep in mind that whether or not dismissal by reason of conduct is fair or unfair within the meaning of s 98(4) depends not on the label attached to or characterisation of the conduct as gross misconduct, but on whether, in the circumstances, including the size and administrative resources of the employer's undertaking, the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee.

[406]Critical to our analysis of this element of the test are our conclusions above relating to the failure to factor in the observations of the Oldfield report and the failure to incorporate the findings of the OH audit review. The decision to dismiss took no account of the apparent linkage in the Oldfield report of the claimant’s communication and way of addressing work issues with his reduced resilience to stress due to his cancer. The decision failed to consider, in the context of both engagement with job planning and behaviours towards colleagues, the finding that the claimant had not refused consent of release of an OH report and that this was an important factor essentially behind his relationship with managers.

[407]In short the decision to dismiss was made without regard to significant potential explanatory or mitigating factors. We note above, Dr Oldfield’s attitude that the appeal hearing at the contents of the Oldfield report does not excuse poor behaviour. We have observed earlier that matters within this report provide a possible explanation for some of the behaviour. We have also observed that the misunderstanding between management and the claimant on 3 August 2022 turbocharged the deterioration of the relationship between the parties.

[408]These two elements bleed into both TOR1 and TOR2. The fact that the claimant perceived himself to be wrongly accused of withholding consent is likely to have worsened his attitude towards engaging with the respondent on job planning. The worsening of the mistrust between the parties in August 2022 appeared also to impact the claimant’s relationship with Ms Coulbeck, which featured in the panel’s decision on his behaviours towards colleagues. The observations in the Oldfield report went to the issue of the claimant’s behaviours which formed part of his reasoning for dismissal. In short these two shortcomings infected the decision in respect of all disciplinary matters.

[409]We make a few further observations on the reasonableness of the sanction.

[410]We found at paragraph 136 above that PPA did not take the view, on the available information, that the claimant’s lack of engagement or behavioural issues posed a risk to patient safety. The claimant was never suspended at any point and no suggestions were made that he constituted a risk to patient safety. Having heard all the evidence that the disciplinary hearing Dr Oldfield, when specifically asked about it by the claimant, put no restrictions on the claimant operating the following day. These factors potentially undermine the finding in the disciplinary outcome letter that the claimant’s behaviour constituted a risk to patient safety.

[411]We have set out in paragraph 123 above that the claimant was given an option to go down an informal route to deal with the behavioural aspect of the allegations against him. He was informed that Ms Palinha, Ms Boven, Nurse Freeman and Ms Raju would be content to accept written apologies from him as a step towards closure of the matter.

[412]In terms of Ms Raju’s complaint, it appears that it had two aspects; issues about positioning and observing behaviour towards nurse Freeman. As we have set out above at paragraphs 112-3 above, Ms Gurung had a different perspective on the positioning issue. As for nurse Freeman’s complaint, we note that while she was shocked at his behaviour she said “I am only concerned that he is unwell and wondering if she (sic) should be operating while being so stressed”.

[413]Taking all these matters into account, we conclude that the decision to dismiss fell outside the band of reasonable responses open to a reasonable employer. Critical to this is our conclusion that explanatory, potentially exculpatory and mitigating factors were not properly explored. Wrongful dismissal

[414]It follows from our conclusions above that the respondent was not entitled to dismiss the claimant without notice for gross misconduct. His summary dismissal was therefore wrongful. Discrimination arising from disability LOI 5.3 (b) and (c) disciplinary investigation and dismissal

[415]We have considered it appropriate to deal with these two matters together (as counsel did in their submissions).

[416]It is difficult to tell from the list of issues whether it is the decision to investigate the process of the investigation or something else to deal with the investigation which is said to be unfavourable treatment. In any of those cases it is fairly straightforward to say that being the subject of the investigation was unfavourable treatment. Quite who made the decision to investigate is more difficult to say. The person who conducted the investigation was Ms Wise.

[417]The panel chaired by Dr Oldfield. It is unproblematic to say that dismissal is unfavourable treatment.

[418]We turn to the question of what caused the disciplinary investigation and what caused the dismissal. Or put another way, what were the reasons for those actions. We remind ourselves that motive is irrelevant.

[419]The genesis of the disciplinary investigation can be seen in the 6 October 2022 letter relating to “concerns about your behaviour” sent by Dr Girgis (paragraph 121-4 above). The matter moved on to the Wise investigation which was started to investigate various allegations of undermining behaviour towards colleagues, allegations relating to job planning and failing to release an OH report.

[420]The reason why the respondent conducted a disciplinary investigation into the claimant was its belief that there were potential acts of misconduct, relating to his undermining behaviour towards Ms Boven, Ms Palinha, Ms Raju and Nurse Freeman, and that he had failed to engage with his job planning.

[421]The reason why the panel chaired by Dr Oldfield dismissed the claimant can be seen from its letter dismissing him of 17 October 2023 [981-984]. The panel believed:a. That the claimant’s behaviour towards colleagues fell below the minimum standard expected of a senior member of staff. It believed he undermined Ms Palinha and caused a reluctance to work with the claimant among staff. It believed the claimant was responsible for a deteriorating and hostile working relationship with Ms Coulbeck. It believed that there had been a fundamental breakdown in professional working relationships with the claimant unable to work or actively respectfully and professionally with junior nursing, administrative and senior colleagues.

b. That the claimant did not properly engage with the trust around agreeing a work plan. It believed the claimant had admitted he did not want to engage with the trust because of the way he felt he had been treated when he returned to work following sickness.

c. That the claimant did not engage with the MHPS investigation by failing to take opportunities to meet Ms Wise or Dr Hogh.

[422]The question we have to address is whether these reasons or causes where something arising in consequence of the claimant’s disability, namely cancer.

[423]We refer back to our further findings about the claimant’s disability at paragraph 247-251 above.

[424]Prior to the events in question the claimant had a clean disciplinary record with the respondent. We heard evidence from a number of people who had worked with the claimant for years. The broad thrust of the evidence was that the claimant was a “changed man” when he came back to work following his cancer diagnosis and treatment. Ms Coulbeck had known him to be a pleasant and supportive man, and nurse Freeman was shocked to see how much he changed, having got on well with him beforehand. At one point in her oral evidence Dr Girgis referred to the claimant’s behaviour as being “so out of character” as to be notable. In cross-examination of Dr Girgis, Dr Sandhu and Dr Gerogiannis there was a common acceptance that the claimant’s cancer could provide an explanation for his changed behaviour. Had these witnesses been accountants or shopkeepers these concessions might not be worth anything. However, these were all senior consultant surgeons. While surgery was their speciality rather than psychiatry, one would expect their perspectives on the possible behavioural consequences of serious illness to be worthy of respect.

[425]We were also provided with NICE guidance on colorectal cancer which set out potential side-effects of the condition. These included “mental and emotional changes, including anxiety, depression, chemotherapy -related cognitive impairment, and changes to self perception and social identity”.

[426]Finally, we have the observations in the Oldfield report itself. Again, this was not from a psychiatrist or psychologist, but from a doctor specialising in occupational health. We have referred to this document extensively during this decision, but we will set out the conclusions one final time: “In my opinion his personal stress he has experienced due to his serious illness, makes them less resilient to stressful work situations. This has no doubt has influenced his communication style with colleagues and the way he addresses work issues”.

[427]Dr Assoufi does not appear to have any doubt that the claimant’s experience with cancer has affected his ability to cope with work situations which influences how he communicates with colleagues and deals with work issues. The behaviours subject to the disciplinary investigation which led to the conclusions which caused the dismissal were to do with how the claimant communicated with his colleagues and how he approached work situations.

[428]The respondent submits that there is no plausible medicolegal evidence to suggest that any of the behavioural issues arose as a consequence of his cancer. It suggests that there are other factors which could have led to the claimant being a changed man, such as the different NHS dealing with the tail-end of Covid, the acute demands of the pandemic, the backlog in operations pressuring surgical departments and the post-Brexit exodus of staff. What this ignores is that there was NICE guidance suggesting that the claimant’s cancer could lead to emotional changes, and an OH opinion that the communication issues and the way he addresses work issues was due to the reduced resilience to stress which follows from his cancer related personal stress.

[429]The respondent also takes issue with the fact that the claimant has not produced medical evidence to substantiate the link between his cancer and the behaviours for which he was disciplined and dismissed. In his closing submissions Mr Edwards refers to a passage within the appeal where the claimant solicitor refers to occupational health not being “fully qualified to sort of give mental assessment – he probably should have had a referral to sort of a psychiatrist rather than the occupational health, a private referral”. Mr Edwards further refers to the fact that on day eight, during his cross-examination, the claimant referred to a “very interesting letter from a psychologist”, which he confirmed the existence of the following day. No further expert documents had been disclosed. It also emerged from the claimant’s oral evidence that he saw Dr Assoufi on several occasions after 27 June 2022, and again no documents have been disclosed by the claimant.

[430]Our difficulty with this argument is that it would have been open to the respondent to seek disclosure of these documents during the hearing. No such application was made. There is no obligation on the claimant to produce medical evidence, not least when there is, in the form of the Oldfield report, a medical report which seems to support his claim. We can only go on the evidence before us, and we bear in mind the task we perform is a broad assessment on the evidence.

[431]Nonetheless, we find ourselves slightly troubled that there is potentially some evidence which may shed light on causation which was not put before us. On the evidence before us we conclude that the behaviours for which the claimant was disciplined and dismissed arose from his cancer.

[432]We turn to the question of justification. The respondent’s aims are set out at LOI 5.6. It says it has a duty to address and manage workplace issues and concerns fairly, consistently and reasonably, including conducting an investigation under MHPS. It had a contractual requirement to manage the claimant’s job plan. It had a duty to maintain patient safety and the claimant’s well-being in respect of managing his job plan. And it had an obligation to ensure a safe and appropriate working environment for all its employees.

[433]We find these aims are legitimate ones.

[434]The respondent, in brief, submits that it acted rationally and responsibly in pursuit of these aims. It says:a. The claimant behaved inappropriately colleagues on numerous occasions, and this needed to be investigated to address problems that were seriously adversely affected the operation of its business.

b. The respondent repeatedly sought to address issues with the claimant informally and gave him the opportunity to reset relationships. It points towards the tone of the emails of Mr Critchell and the opportunity Dr Girgis gave him by letter of 6 October 2022 to address matters informally.

c. The claimant refused to engage with the investigation of Ms Wise. The claimant’s conduct and that of his wife at the disciplinary hearing has just made matters worse. It became reasonably necessary, given the claimant’s poor behaviour over such a long period and his failure to engage with the job planning process and the disciplinary process to dismiss.

d. The issue of patient safety was at the forefront of the respondent’s mind. The well-being of other staff who are the subject claimant’s aggression were also a factor. The primary responsibility of the respondent is to run a safe service and its assessment of how to do that should be afforded a significant margin respect. The claimant was refusing to take part in job planning and potentially making staff afraid to speak up as a result of his behaviour towards them

e. The respondent took necessary and appropriate action to achieve its aims.

[435]Once again we find that the failure of the respondent to have any regard to the observations of the Oldfield report fundamentally undermine its justification argument. Similarly, the failure to factor in the observations of the OH audit review undermined the justification arguments. These issues, in the context of this case, do tend to go hand-in-hand.

[436]There is no doubt that an employer needs to ensure that its employees are working in an environment safe from hostile and untoward behaviour. It is also right that the respondent needs to ensure that the claimant’s work is properly planned. It is difficult to argue that it is reasonably necessary to achieve these aims by disciplining and dismissing the claimant when the respondent appears to ignore evidence of what appears to be a factor in the behaviours. Additionally, the respondent appears to have left out of consideration entirely fact that the claimant was a disabled person. While this case has not been run as a breach of the duty to make reasonable adjustments claim, the respondent, in ignoring the claimant’s disability, did not even get to a stage where it might even consider whether the claimant was disadvantaged by anything within the workplace and whether adjustments would be required.

[437]Proportionality requires a balancing exercise between the pursuit of the legitimate aims and the discriminatory effect upon the claimant. We have regard to the fact that there was an appeal against dismissal in this case which could have reinstated the claimant. During the appeal process the claimant was represented and presented in a much more reflective and conciliatory way. He set out a reflective statement (see paragraph 207 above) which made clear that his mental state was caused by the cancer. He set out his commitment to undergoing counselling to find coping strategies and finding better ways of dealing with stress in the future. He gave unreserved apologies and would set those out in writing. He would happily take part in mediation. During the appeal hearing the claimant solicitor trod a very careful line between outlining the unfairness she considered her client to have experienced and giving the respondent confidence that he could be accepted back into the workplace as a member of the team who would not be likely to be causing problems in the future.

[438]The way the respondent pursued its aims had a devastating impact on the claimant. A dismissal for gross misconduct has potential to end his career as a surgeon. It deprives him of an income not only in the NHS but also in private practice. We consider that it was not reasonably necessary for the respondent to pursue its aims by dismissing the claimant. It could have taken the claimant at his word at the appeal hearing and reinstated him with a number of safeguards in place, such as his apologies, mediation, counselling et cetera, as protective measures against a repeat of the behaviours.

[439]We find that the respondent treated the claimant unfavourably because of something arising from his disability, and that such treatment was not justified. LOI 5.3(d)

[440]We have set out the circumstances of the removal of the clinical governance role above at paragraphs 22 and 29 above. The role was “removed” by virtue of the claimant being absent for a lengthy period of time and a colleague agreeing to carry it out. This was potentially unfavourable, but the role needed to be covered. It might be said that disability related absence was a causative factor in the “removal” of the role, but given the claimant made no contemporaneous complaint and came back to undertake a different and more prestigious Lead role, any such “removal” was justified. Holiday pay

[441]With the greatest respect to counsel’s industry in setting out the complex factual and legal position, we will deal with things rather more shortly.

[442]The claimant’s claim for accrued but untaken leave in the leave year of his dismissal (2023/24) is 2 days. He claims 60 further days in respect of previous years, claiming an entitlement to roll over up to 20 days of Regulation 13 leave each year as it was not reasonably practicable for him to have taken such leave for reasons connected with Covid. He claims this is possible as a breach of contact claim in that Regulation 13(10) (which was no longer part of domestic law from 1 January 2024) should be implied into his contract of employment.

[443]We do not imply such a term. We also were not presented with a sufficient evidential basis (the burden is on the claimant) to conclude that it was not reasonably practicable for the claimant not to have taken leave.

[444]The respondent in its closing submissions appears to accept that the claimant is due 1.5 days, the claimants closing submissions state 2 days for 2023/24. Our notes of Mr Critchell’s concession in evidence about the number of days in unclear. In the circumstance we will conclude that the claimant is entitled to 1.5 or 2 days as the parties may agree, or the tribunal shall subsequently determine.

Remedy

[445]The parties will see that we have not set out any conclusions on Polkey/Chaggar and contributory fault. We have found this in many ways a very difficult case. We are also aware of the potential consequences to both parties depending on how we address issues, in particular, related to contributory fault. A finding of contributory fault impacts not only on the amount of compensation but also on the remedies of reinstatement and reengagement.

[446]That, in itself, however, does not mean we should shy away from dealing with these issues. There are other matters of potential concern, however, which lead us to conclude that all matters relating to remedy should be dealt with together.

[447]While we have found sufficient evidence, on a broad assessment, to find that the claimant’s dismissal was causally connected, we have not made finding (as we do not need to) of the extent of the causal connection. There is room for exploration of the extent to which the claimant is blameworthy himself which may impact the remedies claimed. In the normal course of events we would have determined the issue of Polkey/Chaggar and contributory fault at the liability stage of the hearing. However, in our deliberations we found ourselves ill-equipped confidently to make findings on the basis of the evidence we have been presented. This unease was compounded by reflecting on the possibility that there exists expert evidence which may help us with these issues, which has not been put before us. A we have set out, the consequences for both parties are of real significance. We want the opportunity to be given for all these issues to be properly addressed.

[448]The parties are to write to the tribunal within 21 days of this decision being sent, with their proposals for the further progress of this matter. It may well be that a half day case management hearing before me sitting alone is desirable for further orders to made as to the future conduct of this case. Approved by: