Dr S Ismail v University Hospitals Sussex NHS Foundation Trust: 2303125/2022 and 2303145/2022

EMPLOYMENT TRIBUNALS

Case No 2303125/2022, 2303145/2022

Between

Dr S IsmailClaimant

University Hospitals Sussex NHS Foundation TrustRespondent

Before

Employment Judge Heath

In person for claimant

Mr T Kibling (instructed by Counsel) for respondent

Date 8 September 2025

JUDGMENT

[1]the Claimant’s complaints of being subjected to a detriment for making protected disclosures is dismissed upon withdrawal.

[2]the Claimant’s other complaints continue to a final hearing on 11 - 22 August 2025. Employment Judge Burge 23 July 2025 Case Number: 2303125/2022 & 2303145/2022 EMPLOYMENT TRIBUNALS Claimant: Dr S Ismail Respondent: University Hospitals Sussex NHS Foundation Trust Heard at: London South On: 11, 12, 13, 14, 15, 18, 19, 20 August 2025, in chambers 21 and 22 August 2025 Before: Employment Judge Heath Mr J Hutchings Mrs M Foster-Norman Representation Claimant: In person Respondent: Mr T Kibling (Counsel)

[1]The complaint of unauthorised deductions from wages is well-founded. The respondent made an unauthorised deduction from the claimants wages in the sum of £260, and must pay the claimant this sum.

[2]The complaint in respect of holiday pay is well-founded. The respondent shall pay the claimant the sum of £4725.50 (less any sums already paid to him in respect of this holiday entitlement). The claimant is responsible for paying any tax or National Insurance.

[3]The claimant’s complaint of automatically unfair dismissal under section 103A Employment Rights Act 1996 is not well-founded and is dismissed.

[4]The claimant’s complaint of unfair dismissal under sections 94 and 98 Employment Rights Act 1996 (“ordinary unfair dismissal) is not well-founded and is dismissed.

[5]The claimant’s complaints, in their entirety, of direct race discrimination are not well-founded and are dismissed.

[6]The claimant’s complaints of breach of contract are not well-founded and are dismissed.

REASONS

[1]The claimant was a consultant urogynaecologist employed by the respondent NHS Trust. He says that he was subjected to certain acts of race discrimination by the respondent. He says that he made protected disclosures in respect of certain matters, and that he was taken through an unfair disciplinary/capability process which led to his automatically (for whistleblowing), “ordinarily” and discriminatory dismissal. He also makes claims for breach of contract relating to alleged breaches of a previous COT3 agreement, deductions from wages and failure to pay holiday pay.

[2]The respondent accepts that the claimant made protected disclosures in certain respects, but denies that these were the reason or principal reason for his dismissal. It denies racially discriminating against him, and asserts that it dismissed him fairly for reasons relating to conduct and capability. It denies breaching his contract, accepts that some holiday pay is due (which it says it paid with deductions) and denies deductions from wages.

Issues

[3]The List of Issues was finalised (subject to the respondent providing some information on holiday pay and deductions from wages) at a Case Management Preliminary Hearing on 23 July 2025. This List of Issues (“LOI”) is annexed below. Procedure

[4]This is a case with a complex procedural history, which we do not propose to set out beyond what is necessary to deal with the procedural points that were raised before us.

[5]There had been a Case Management Preliminary Hearing (“CMPH”) as recently as 23 July 2023 before EJ Burge. EJ Burge, among other things:a. Refused an application to amend the claim;

b. Ordered the parties to clarify their position on holiday pay and deductions from wages;

c. Dismissed the claim for protected disclosure detriments on their withdrawal (having been about to make a deposit order in respect of them);

d. Reminded the parties of their duty to cooperate with each other;

e. Made orders limiting witness statements – 20,000 words to the claimant, and 20,000 words in total to the respondent;

f. Directed exchange of witness statements by 4 August 2025;

g. Limited the length of the bundle to 5000 pages (the bundle at that stage was almost 13,000 pages long, which EJ Burge understandably viewed as being “totally disproportionate”);

h. Made orders relating to supplementary bundles to be produced and shared by 1 August 2025.

i. Finalised the List of Issues (subject to the respondent adding in information about holiday pay and deductions).

[6]Prior to EJ Burge’s involvement there had been judicial input from a number of judges relating to the parties inability to deal with case management effectively. Reducing the bundle, especially, after 23 July 2025 in such a short timescale obviously involved a mammoth effort, and would have been so even for parties with a history of cooperating with each other.

[7]Prior to the hearing, but not received by the panel before the hearing, the claimant sent in written submissions dealing with various issues.

[8]At the start of the hearing we made it clear that our focus was not so much on establishing blame, but on how we could pragmatically ensure that we could have a smooth hearing. One problem brought to our attention was that although a bundle of 4,764 pages had been produced, the documents within it still bore the “hard copy” page numbering of the original 13,000 page bundle. This was less of a problem with the bundle in digital form as this would have an “electronic number”. The respondent was in a position to supply later that day their own witness statements which cross- referenced documents in their “hard-copy numbering” and their electronic numbering. The claimant’s witness statement still only made reference to the hard copy numbering. The respondent offered to go through the claimant’s 73 page witness statement and add in electronic page references to every page reference in his witness statement.

[9]Reading time of 1.5 days had been timetabled, so we agreed to start our reading in, starting with the respondent’s witness statements before coming to the claimant’s, which would be supplied later, when the cross- referencing exercise had been done by the respondent. It was flagged up by the parties that 1.5 days of reading time may have been a conservative estimate, and so it proved. We took all of day 2 to read in.

[10]At the end of day 1 the judge had to deal with further correspondence from the parties in which the respondent requested the claimant’s statement in an unlocked form so that it could be annotated. The claimant took the view that they could annotate by hand. The judge again reminded the parties of their duty to cooperate, and indicated that he saw no reason why an editable statement could not be provided to speed up the annotation exercise.

[11]On the morning of day 3 the claimant sent in a further 15 page written submission raising a number of further points. We dealt with these further points at the start of the day. In short:a. The claimant said that as his appeal against dismissal had been by way of rehearing, he should have been reinstated and been paid between his dismissal and appeal hearing. Insofar as we understood this as a request to amend the List of Issues, we refused it, as the parties had been told (with very limited exception) that the List of Issues had been finalised. We told the claimant that if he succeeded in his unfair dismissal claim, an order for reinstatement or re-engagement was open to us. Additionally, we reminded him that in considering his unfair dismissal claim we would be making determinations on the reasonableness of the procedure adopted, and that he could cross-examine and make submissions on that;

b. The claimant made submissions about the respondent not being allowed to amend its Response. It was established that at a previous case management hearing the claimant had been ordered to set out any amendment he wished to make to include victimisation, and the respondent would be given permission to amend its Response to deal with such. The claimant did not make an application to amend, and no amended Response was therefore put forward. Two subsequent judges made clear that there was no extant victimisation claim. This was a non-issue.

c. The claimant said that the respondent should not be permitted to raise in their witness statements any matters that had not been upheld against him in the disciplinary/capability process. We indicated that we would not cut out parts of witness statements, and that it was open to the claimant to cross-examine the witnesses on any matter which he felt was not borne out by the other evidence.

d. Various criticisms were made about bundle preparation. We indicated that case preparation had been sub-optimal, but that we had a bundle, had witness statements that referred to documents in that bundle, and that we should press ahead with what we had.

e. The claimant wished to add further documents to the bundle, which he said arose from witness statements and the tribunal’s indication on day 1 that it would not be following hyperlinks the claimant had provided in the bundle or the witness statements and would not be reading those further linked documents. The respondent said that it had only that morning received the claimant’s submission and was not in a position to deal with that application. We urged the parties to talk about this and would deal with it later.

[12]On many of the further days of the hearing the parties (mainly the claimant) sent to the tribunal copies of further documents which they sought to add to the bundle. As before, the respondent started the day not in a position to agree to the admission of further documents as they had not been given sufficient notice for them to take instructions on them. By day 7 (19 August 2025) there still had not been agreement about which additional documents were to be put before us. When the claimant sought to cross-examine one of the respondent’s witnesses about a document which he said he had “sent in” the tribunal indicated that this was becoming unmanageable. The hearing was paused for an hour for the parties to agree which additional documents would be put before us, and for the respondent’s solicitor to prepare a further supplementary bundle of those documents. This was done. Even after the evidence and submissions closed and the panel had begun to deliberate, the claimant emailed the tribunal on a couple of occasions attempting to add further evidence and submissions. We instructed a letter be sent to the parties indicating that no further evidence would be received or read.

[13]The ten day listing had been to consider liability only. After the first two days of reading in, on the morning of day 3 the judge indicated to the parties that he noted that “Polkey” and contributory fault did not appear in the agreed List of Issues despite those issues being clearly pleaded in the Response. He set out that these are issues that are normally considered in the liability portion of a split hearing, and that there were advantages in the liability hearing dealing with these matters. He invited the parties’ observations. Mr Kibling said that his assumption was that as the hearing was liability only, a decision may have been made to leave these issues out of the List of Issues, but he considered that these were issues that were apt to be considered at this hearing. The claimant said that he had focussed all his attention on preparing for the hearing on the basis of the current List of Issues and resisted the inclusion of further matters as he did not know about Polkey and contributory fault and did not have access to legal advice. He also indicated that it was unfair to include such matters when he had wanted to add amendments and a victimisation claim earlier, and these had been refused. The judge said that he would “park” the issue for the claimant to think about matters.

[14]The judge raised the issue again on day 6. The respondent again took the view that it was appropriate for this hearing to deal with Polkey and contributory fault. The claimant again resisted the inclusion of these issues. On balance, while there are considerable advantages to considering such issues at a liability hearing, given the challenges set out above, the tribunal did not consider it appropriate, having regard to the overriding objective, to oblige the claimant to deal with issues he said he felt unable to cover.

[15]Further challenges arose during the hearing. The claimant complained that the respondent was in breach of case management orders by exchanging witness statements totalling some 21,000 words as opposed to the 20,000 limit. The judge asked him what he wanted the tribunal to do about this, and he told us that he was not urging us to do anything, but wanted to make us aware of the respondent breaching case management orders again.

[16]The claimant complained in his closing submissions that he was interrupted when he was cross-examining on a number of occasions by Mr Kibling and the respondent’s other lawyers. Our take on this was that Mr Kibling, on numerous occasions made valid observations about i) the fact that the claimant’s questions were not relevant to the issues, ii) amounted to his “giving evidence” when he was cross-examining about matters not in his witness statement or given orally by him. We did not observe the respondent’s lawyers interrupting the claimant. Indeed, the judge and the panel members attempted on a number of occasions the guide the claimant about i) the relevance of his questions to the issues, ii) “giving evidence” when cross-examining, and iii) putting lengthy, and often multifaceted statements to the witnesses rather than questions, and which were impossible for witnesses meaningfully to respond to. We attempted to stress that we were not criticising him, but attempting to guide him, acknowledging that (despite his being an obviously intelligent consultant medical practitioner) he was a litigant in person.

[17]Dealing with a hotly contested 10 day unfair dismissal, whistleblowing and discrimination claim can be difficult at the best of times. Having a 5000- odd page bundle where the “paper” page numbers did not match the electronic page numbers, a further claimant’s bundle, further documents arriving piecemeal and not collated until substantially into the trial, and parties who clearly struggled to cooperate with each other made a difficult task even more challenging. We attempted to approach matters with a forward-facing pragmatic approach that acknowledged the difficulties we were in, but focused on how best to do justice between the parties rather than looking back and apportioning blame.

[18]We had a 4764 page core bundle, a 623 page claimant’s supplementary bundle, a 49 page “Binder 1” produced on 19 August 2025 with further 8 documents from the respondent and a further document (a 2013 behavioural assessment) from the claimant.

[19]The claimant, a Consultant Obstetrician and Gynaecologist, produced a witness statement and gave evidence on his own behalf.

[20]The respondent provided witness statements from, and called the following witnesses:a. Dr M Maccario (Consultant Cardiac Anaesthetist, investigation officer);

b. Professor W Roche (Emeritus Professor of Pathology, chair of Capability Hearing);

c. Dr R James (Consultant Cardiologist, former Deputy Medical Director and Case Manager of capability process);

d. Ms H Fogden (People Manager);

e. Mr V Wong (Consultant Obstetrician and Gynaecologist and Lead Consultant for Gynaecology);

f. Dr F Usifo (Consultant Obstetrician and Gynaecologist, Clinical Director Gynaecology and Obstetrics Department.

[21]Mr Kibling provided a Note at the start of the hearing. The claimant and Mr Kibling provided written closing submissions and made oral closing submissions after being given time to refine their closing submissions after the end of the evidence on day 8. The 10 day time slot originally had time for deliberation and delivery of an oral judgment on day 10. We made clear to the parties after the end of their closing submissions at around 4.45pm on day 8 that we would not be able to deliberate, prepare and deliver an oral judgment in that timescale. We asked the parties to email us by 4pm the next day whether they wished to list a further hearing for an oral decision, or whether the wished to receive a written reserved decision. The claimant wrote in to express a preference for an oral decision at a further hearing; the respondent wrote in to say it required a written decision. As it was not proportionate to list a hearing when one party indicated that it required a written decision (which it was entitled to under Rule 60) we told the parties we would send them a reserved written

Facts

[22]The documentary evidence was voluminous, and not all of it was relevant to the issues. In our pre-reading we read the witness statements and documents referred to in those statement, and we read the passages within documents the parties referred to during the course of the hearing. We will only make findings of fact on matters relevant to the determination of the issues, and any failure by us to mention evidence should not be taken to mean we have not read or taken account of it. This summary of the facts, and the conclusions which follow are intended to let the parties know, in broad terms, why they have won or lost on the issues we have to determine. It is not our function to set out or adjudicate upon every single point of difference aired between the parties during this litigation. The parties

[23]The respondent is an NHS trust operating across four hospitals; the Royal Sussex County Hospital, Brighton (“RSCH”), the Princess Royal Hospital, Haywards Heath (“PRH”), Worthing Hospital, Worthing and St Richard’s Hospital in Chichester.

[24]The claimant is a consultant in Obstetrics and Gynaecology with a special interest in Urogynaecology. He was appointed as a consultant with the respondent with a start date 7 February 2011.

[25]The matter was not set out in the pleadings, List of Issues or the claimant’s witness statement, so during the claimant’s oral evidence he was asked by the panel to confirm how he identifies his race for the purposes of his race discrimination claim. He confirmed that he identifies as Black African. Relevant policies, procedures and contractual provisions

[26]The claimant’s contract of employment sets out general mutual obligations including the parties cooperating with each other and maintaining goodwill.

[27]The General Medical Council (“GMC”), the regulatory body that regulates doctors, has a code of conduct known as Good Medical Practice. This includes guidance on conduct in clinical practice doctors set out under a number of domains. These include:a. Domain 1, to make good use of the resources available, to be competent in all aspects of work, to recognise and work within the limits of one’s competence.

b. Domain 2, in respect of safety, to regularly reflect on standards of practice and care provided, to promote and encourage a culture that allows all staff to raise concerns openly and safety, to work collaboratively with colleagues, respecting their skills and contributions, to be aware on how one’s behaviour may influence others within and outside the team.

c. Domain 3, to treat the patient as an individual and respect their dignity and privacy.

[28]The respondent operated a Patient Access Policy which outlined the general roles and responsibilities of consultants and others. This included a responsibility on consultants to ensure that the plan for the patient is recorded in a timely and appropriate manner so that administrative teams clearly know how to administer patient pathways, including accurate completion of documentation indicating when patients are to attend hospital and completion of clinic outcome forms. All staff must ensure that patient referrals, treatment episodes and waiting lists were to be managed from the Trust’s patient administration system, and all information relating to patient activity must be recorded accurately and in a timely fashion. The respondent operated a system known as Careflow.

[29]Within the NHS there is an online system for staff to report incidents and risks, known as Datix. If a staff member raises a Datix, and investigation is triggered. A Datix can be “closed” upon investigation, but this is not an indication that an incident or risk event has not occurred.

[30]The NHS operates a framework 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.

[31]Under the MHPS, NHS bodies must have procedures for handling serious concerns about a practitioner’s conduct and capability, and such procedures must reflect that MHPS framework. The MHPS prescribes key roles to be assigned when capability or conduct concerns are addressed through the MHPS, such as a Case Manager (usually a medical or clinical director) who oversees the process, a Responsible Officer (who has certain regulatory responsibilities), and an Investigator.

[32]The MHPS makes clear that the “duty to protect the patient is paramount” and allows for the Case Manager to consider whether to amend or restrict a practitioner’s practice, and when a clear judgment is reached that a practitioner may present a potential danger to patients or staff, to refer to regulatory bodies.

[33]The MHPS also provides that, at any stage of a case, consideration should be given to involving Practitioner Performance Advice (“PPA” formerly NCAS). PPA, a body which provides impartial advice to healthcare organisations to effectively manager and resolve concerns raised about the practice of doctors, dentists and pharmacists.

[34]The respondent operated a disciplinary policy which sets out the procedural elements of a disciplinary process. It includes an non- exhaustive list of matters which are considered to amount to gross misconduct which will “except in the most exceptional circumstances” justify dismissal without notice. This list included “deliberate and/or continued failure to follow reasonable instructions”. 2013 restriction from practice

[35]The focus of the claims before us was on protected disclosures made from September 2017 onwards, allegations of race discrimination from June 2021 onwards and a disciplinary process commenced in June 2021 onwards leading to a dismissal on 28th of March 2022. It also concerned allegations of breach of a COT3 agreement signed in April 2016. The evidence relating to the issues in the case was vast in scope. Nonetheless, in his witness statement, the claimant referred to matters going back to 2013. We will deal with this issue reasonably briefly, indicating that we felt that a very partial account was put before us.

[36]The claimant in paragraphs 1.5 to 1.11 his witness statement, very much in brief summary, states that he was “involved in two poor neonatal outcomes” which led to a mother complaining to the GMC. He suggests GMC report “ignored systematic failures and blamed me for the poor outcome”. He suggests that he was “cleared of all allegations, such that I did not need to respond to any of them. However, I got mixed up in the foetal heart monitoring. I relied on an out-of-date table saved on my laptop and was seven months out of practice at the time. This was not a concern raised and no case mismanagement”. The strong impression he gave, which was fortified by some of his questioning of witnesses and his own responses in oral evidence, was that he had done very little wrong, had been scapegoated for the faults of others and was “cleared of all allegations”.

[37]We found this again difficult to square with documentary evidence, including a letter from NCAS dated 26 January 2016, which provided a short summary of the 2013 matters. This letter indicated that “The GMC completed its assessment and concluded that [the claimant’s] performance as a Consultant Obstetrician and Gynaecologist was deficient. The GMC assessment concluded that there were particular concerns regarding intrapartum care which may present a risk to patient safety.” Additionally, it was noted that, in cross-examining Dr Wong, the claimant put to that witness a document from his own supplementary bundle headed Assessors Report of the General Medical Council dated 14 November 2013, in which literally everything apart from one sentence which commented positively about the claimant’s ideas to develop the service and some forms, was blanked out by the claimant.

[38]As we have indicated, these were background issues of marginal relevance to the issues we had to determine, but we found it difficult to accept the claimant’s account that he was “cleared of all allegations” by the GMC, and that the issues that arose were minor and largely due to the failings of others. We can, however, find as a fact that the GMC concluded that the claimant was deficient in practice as an obstetrician. His performance as a gynaecologist was not found deficient by the GMC.

[39]Following this conclusion, the claimant was assessed as fit to practice on a limited basis subject to GMC undertakings to develop a performance improvement plan requiring supervision of some of his practice. NCAS (the predecessor organisation of PPA) were involved in a remediation programme, known as “Back on Track” to address the GMC assessment. Part of this involved a placement at a separate NHS Trust. COT3

[40]At some point in 2015 the claimant brought proceedings in the Employment Tribunal against the respondent. These proceedings were compromised under a COT3 agreement signed 7 April 2026. The terms of this agreement included:a. Paragraph 5: “..The Trust further reassures Dr. Ismail that it will approach any future serious concerns regarding his practice and/or behaviour in an open manner, adopting appropriate due process and to be dealt with in good faith. The Trust accepts the outcome of the National Clinical Assessment Service (NCAS) Behaviour Assessment and the General Medical Council Performance Assessment in relation to the concerns raised about Dr. Ismail’s practice. For the voidance of doubt, this does not preclude any new concerns raised concerning Dr. Ismail after his return to clinical practice from being looked at and investigated according to national and local policies and procedures.”

b. Paragraph 9: “Dr. Ismail and the Trust will work together in good faith to facilitate Dr. Ismail’s return to clinical practice at the Trust. In this respect Dr. Ismail will drop any obstetric sessions from his job plan which will be revised to reflect a new job plan in gynaecology.”

c. Paragraph 10: “In facilitating Dr. Ismail’s return to clinical activity the Parties will work together, in good faith, with the National Clinical Assessment Service (NCAS) to agree and then implement an NCAS Back on Track return to work programme (Back on Track), such programme to be agreed and implemented as soon as is practically possible.”

d. Paragraph 11: “The Parties agree that the NCAS back on track will not include re- training in obstetrics. During the Back on Track period Dr. Ismail will not be working under his current job plan and instead the Parties will be implementing the NCAS Back on Track return to work programme.”

e. Paragraph 12: “The Trust acknowledges and supports Dr Ismail's aspirations to develop his career in gynaecology and will support this in line with the needs of the clinical service and agreed objectives in his Personal Development Plan.”

f. Paragraph 13: “During the Back on Track period the Trust will consult with Dr. Ismail and Dr. Ismail will co-operate in good faith, to agree a new Job Plan. This job plan will not include obstetric sessions, but otherwise encompassing such duties as are consistent with Dr. Ismail’s practice as a Consultant Gynaecologist with a sub-specialism in Urogynacology”.

g. Paragraph 17: “In so far as there are working environment problems the Trust will work in good faith to resolve such issues.”

h. Paragraph 18: “Dr. Ismail may resume input in guideline, protocol and service development as a Consultant Obstetrician and Gynaecologist / Subspecialist Urogynaecologist with immediate effect.”

i. Paragraph 19: “The Trust will complete revision of the report of investigation into the second Serious Untoward Incident Dr. Ismail was involved in (STEIS 2013/4559) in line with the requirements of the Brighton and Hove Clinical Commissioning Group (CCG) and provide a copy to Dr. Ismail on completion of that revision.”

j. Paragraph 20: “The Trust will provide Dr. Ismail with the external review of the first Serious Untoward Incident I was involved in (STEIS 2012/17946) on receipt. The Trust will send this external review to the CCG for advice on revision of the existing SUI report and will take such action to revise the report as is recommended by the CCG. If the report is to be revised in the light of the external review a copy of the revised report will be provided to Dr. Ismail on completion of the revision. Unless precluded by the CCG or restricted from doing so by any statutory or other mandatory guidance, Dr. Ismail’s initials will be removed from the action plan of any revised report, including the copy available on the Trust intranet.” Return to practice

[41]While was not entirely clear, it appears the claimant returned to full practice at some point in 2016. It appears there continued to be restrictions on his obstetrics practice, so he practised exclusively in gynaecology.

[42]Mr Wong joined the respondent as a urogynaecology fellow in 2011. He was appointed a consultant in 2015. In 2017 Mr Wong was appointed the Lead Consultant for Gynaecology, a role the claimant had also applied for without success.

[43]At this point Dr Ajala, consultant Obstetrician and Gynaecologist, was the Clinical Director Women’s Directorate at the trust. He was the claimant’s line manager.

[44]On 28 June 2017 Ms Stacey, outpatient matron at Lewes Victoria Hospital, wrote to the claimant as follows: I have been informed that you are giving sexual health counselling to some patients in your uro-gynae clinic at Victoria Hospital Outpatients department Lewes. If this is the case and I appreciate the relevance of a history of abuse to their condition, you must not see these patients in this department for the following reasons:• We have no appropriate facilities to support these ladies as a result of counselling of such an intimate nature.

• There isn’t anywhere quiet for them to compose themselves before leaving for home.

• The patients are not prepared for this causing more distress.

• The clinic timetable does not allow adequate time for counselling, therefore it is not appropriate to start something you don’t have time for. It also causes delays for others.

• The staff are not trained sufficiently to support you or the patients.

• A member of staff would be required to stay with the patient. I believe we are unable to provide the appropriate care in this area therefore they should be seen on the acute sites. I will be in Lewes on the 12th July and am willing to discuss any of the above if necessary.

[45]On 14 August 2017 two consultants wrote to Dr Ajala raising a number of concerns about the respondent’s gynaecology service. In short, certain criticisms were levelled at the confidence, decision-making and insight of some other consultants. The claimant in his witness statement asserted that none of this applied to him. It is impossible for us to reach a judgement about whether that is true or not.

[46]On 20 August 2017 Ms Stacey responded to communication from two individuals from the Institute of Psychosexual Medicine (we have not seen that communication) as follows: Thank you for your letter of the 04/08/17. To clarify the situation this matter is not one of departmental confidence nor do I wish to suspend the Doctor from practicing psychosexual counselling. My concern is the appropriateness of the environment for such activity in a general outpatient setting. The department was unaware that this Doctor was undergoing training in this field of practice. I appreciate fully the relevance of sexual problems, past experiences, etc. with the onset of uro-gynaecological symptoms but my department is not suitable for counselling. There are several clinics running at the same time for different specialities. We have no facilities to support the ladies should they become distressed by this line of enquiry. Often they are accompanied by a partner, spouse or other family member who is unaware of any past history. The patient is not prepared for this counselling and appointment times do not account for counselling of this nature leading to delays for other patients. The Doctor has been asked to see these patients on a site that has the staff, facilities and time allocated to ensure the safety and wellbeing of the patient should this psychosexual counselling be necessary.

[47]On 3 September 2017 Dr Ajala emailed the claimant raising his concern that 7/10 cases for urodynamics that had been requested by Mr Wong and another gynaecologist had been cancelled on the day by the claimant. This rang “alarm bells” for Dr Ajala in terms of capacity and patient experience. The claimant responded with his rationale in respect of each of these cases. He said that urodynamics guidelines were not in line with NICE and made observations that the planned conversion of urodynamics to a nurse-led activity was unwise. This was the disclosure in paragraph 3.1.1.3 of the List of Issues (we will use the shorthand PID 3.1.1.3 for this and subsequent disclosures to indicate which paragraph of the List of Issues each disclosure relates to). The respondent accepts this disclosure attracts the protection of Part IVA Employment Rights Act 1996 (“ERA”).

[48]On 6 September 2017 the claimant emailed Ms Stacey, cc Mr Wong, Dr Ajala and others referring to a meeting he had had with her on 16 August 2017. In short, he indicated that sexual history was an important part of gynaecology and urogynaecology and that sexual problems can be a manifestation of underlying problems behind patient presentation. He justified his approach and stated that his patients have been grateful for it. He criticised her unwelcome attitude and lack of support. Dr Ajala responded as follows later that day: I remain concerned on your persistence in carrying out psychosexual consultations, I cannot support the pathway of referring patients to the RSCH for this service as you mention in your email. I have explained to you that this is not a service presently commissioned by the CCG in this Trust. Whilst I completely agree that patients presenting at the gynaecological and urogynaecological clinic may have underlying psychological issues, it is expected that these patients are referred back to their GPs with the view that they are referred to the appropriate clinicians to manage them. I would ask that this stops immediately. [Emphasis added] Thank you for your understanding and cooperation.

[49]On 2 October 2017 the claimant submitted a business case for the establishment of a Clinic For Psychosexual Problems to Mr Wong. In it he outlined a his belief in the need for the establishment of such clinic, there being no such services offered in Sussex, Kent or Surrey.

[50]While we were not taken to any documentation on this issue, Mr Wong gave evidence, which we accept, that he discussed the claimant’s business case with Dr Ajala and Dr Watkins, Chief of Service Children and Women’s Division. A decision was made that the respondent did not have the facilities to set up such a clinic and it was not part of the respondent’s clinical strategy to set one up at this time.

[51]In February 2018 the claimant completed his Back on Track remediation program.

[52]On 13 March 2018 the claimant had a meeting with Dr Haigh, Medical Director of the respondent. Over a year later the claimant referred to this meeting in a 38 page letter to Dr Haigh. This is an extremely lengthy letter containing a large amount of medical information which, as lay people, went significantly over the heads of the tribunal panel members. While the claimant did, on occasion, refer to potential adverse experiences of patients, and did refer to breach of NICE guidance, the overwhelming tenor of this lengthy letter is of criticism of his colleagues and the overwhelming sense of unfairness he felt about treatment of himself. Nonetheless, the respondent accepts that issues raised by the claimant at this meeting were protected disclosures of information (PID3.1.1.1 ). The respondent also accepts that the letter of July 2018 contained protected disclosures (PID

3.1.1.2 ).

[53]On 20 December 2018 Dr Ajala emailed the claimant, subject “psycho- sexual clinic” as follows: It has been brought to my attention that psychosexual counselling continues to be informally offered to women. I would like to remind you that this is not currently funded service one that can be provided within existing clinics. I have been made aware that a patient you invited for a clinical session with you from the colposcopy clinic has declined to attend and has asked not to see you again. Please refrain from this practice within the Trust. [Emphasis added]

[54]The claimant replied on 22 December 2018 at reasonable length saying that he was sorry the patient was unhappy but would not have reached the issue have not got the “impression that she was happy to get help in this respect. I am sorry if I got the wrong impression and will bear that in mind”. He went on to say dealing with sexual dysfunction was part of gynaecology and attached an article to this effect. He said he had refrained from addressing these kinds of problems when working at Lewes Victoria Hospital due to the lack of support from nurses. The email appears to suggest that he found the nurses at RSCH more supportive, and the patients found his approach helpful. He referred to his unsuccessful business case and reiterated his perception of a need for psychosexual services and welcomed the respondent’s future support in this.

[55]Dr Ajala replied on 6 January 2019 asking Mr Wong to look again at the possible provision of psychosexual services. Although it was not currently part of the respondent’s clinical strategy, he was open-minded to possibilities subject to commissioning arrangements. He concluded his email “In the main time [sic] Sharif, my initial email stands [emphasis added]. I would suggest that you discuss the proposal with [Mr Wong] who has previously developed a number of pathways with the CCG”.

[56]Additionally, Mr Wong at this stage was having various concerns about the claimant’s practice which led him to believe that even if such a service was set up, the claimant would not be the appropriate person to lead it. There was no evidence that any further decision on the setting up of a psychosexual clinic was made or was communicated to the claimant. The situation therefore remained that the explicit and repeated instruction from Dr Ajala to the claimant to refrain from providing psychosexual services stood.

[57]In September 2019 Dr Usifo, a consultant obstetrician and gynaecologist, who had practised at the respondent Trust since August 2016, was appointed to the role of Clinical Director, managing and leading the Gynaecology and obstetrics department’s in the respondent’s hospitals. Again, the claimant had applied for that role and been unsuccessful. Dr Usifo became the claimant’s manager. Dr Usifo is a Black African man.

[58]Dr Usifo met with the claimant shortly after he started as Clinical Director. We accept Dr Usifo’s evidence firstly that the claimant told him that he was being persecuted by the Department. Dr Usifo’s evidence on this point very much corresponds with a significant body of documentary evidence. Dr Usifo also discussed the claimant’s job plan. The claimant articulated his desire to set up a psychosexual clinic. Dr Usifo told the claimant that this was not part of the claimant’s job plan and that this was not a service he should be practising.

[59]On 28 August 2019 Dr Gayen, another consultant Obstetrician and Gynaecologist, emailed the claimant and Mr Wong, cc Dr Walkins and Dr Usifo, raising concerns that a patient that he had operated upon on 25 July 2019 had been operated upon again by the claimant on 23 August 2019. Dr Gayen said that it was his practice not to re-operate for this particular procedure within three months to allow for the healing process. He said he was happy to discuss the matter “rather than long emails”.

[60]Dr Watkins replied to express concern that the claimant may have operated upon Dr Gayen’s patient without discussing this with him. He said “If there are concerns about patient safety, please datix and escalate”. This response might indicate a receptiveness within the upper echelons of the respondent to receiving concerns raised about patient safety.

[61]On 6 September 2019 the claimant responded with a long email. He set out at length his rationale for treating the patient the way that he did. He concluded his email with numerous criticisms of the way the patient had been assessed, forms not used, the lack of risk assessment guidelines, the inadequate supervision of middle grades whose attitude and performance was poor and the general poor management of the patient. The claimant and Dr Gayen continued to discuss matters by email.

[62]The respondent accepts that the claimant’s email of 6 September 2019 contained protected disclosures (PID 3.1.1.4).

[63]One matter that Dr Usifo discussed with the claimant around this time was the claimant’s wish to undertake colposcopy. He had been prevented from doing this due to a previous investigation by the multidisciplinary team and concerns about his poor management of patients and his relationships with other members of the team. Dr Gayen was the colposcopy lead, and he and the colposcopy team were reluctant to work with the claimant due to previous bad experiences. Mr Wong took over from supervising the claimant in colposcopy following Dr Gayen’s refusal to supervise him. After supervising the claimant, Dr Wong too began to have a number of concerns about the claimant’s practice, including his interaction with patients and multiple errors. Nonetheless, Dr Usifo then offered to support the claimant personally by allowing him to attend his colposcopy clinics. The claimant attended two, and then did not continue to attend. Covid

[64]As is very well known, the Covid pandemic hit in 2020. By 23 March 2020 the country went into a national lockdown. As is also very well known, the NHS was very much at the frontline in the response to Covid, and it faced some hugely significant challenges.

[65]One of the many issues caused by the pandemic was the restriction on theatre services offered to patients. Surgery was only offered at the height of the pandemic for cancer or suspected cancer cases or absolute emergencies. What this meant in the obstetrics and gynaecology department was that Dr Usifo established that all cases proposed for surgery would be referred to him before they took place. Complaints and the claimant’s own grievances

[66]It is a fact of life for medical practitioners (as it is for many others in all walks of life) that mistakes will be made. Also, for medical practitioners, that patients will complain. What came through strongly from the respondent’s witnesses was a number of issues:a. The patient is at the heart of everything the NHS does.

b. Unfortunately, mistakes will be made.

c. As is set out in the Good Medical Practice guidance, it is essential that a doctor reflects on their own practice. This is especially important when mistakes may have been made or patients have raised complaints.

d. Doctors work as part of a team of skilled professionals, often in very challenging circumstances. It is vital that practitioners foster a culture that allows all staff to raise concerns openly and safely, and to work collaboratively with colleagues.

[67]As a very broad point, and one which we will return to when we deal with capability proceedings, it was not clear from the voluminous documentation we read and evidence we heard, that these values (which would appear to be self-evidently valid, even if not incorporated into the Good Medical Practice) were embraced by the claimant. As we have set out earlier, his evidence in his witness statement around the GMC restriction of his obstetrics practice, which was found to be deficient, reads as him being the victim of systematic failures by the respondent, which the GMC failed to pick up on, and which led to his scapegoating. Entirely absent from the narrative is the experience of the mother who made the complaint, apart from the claimant asserting that she was prompted to complain because he was unfairly excluded by the respondent from inputting into a report provided by them to her.

[68]Complaints can be made by patients to the GMC, to the Patient Advice and Liaison Service (“PALS”) or raised informally. As set out above, staff can raise concerns about risk and safety via Datix, by grievance, through the respondent’s whistleblowing procedure or informally.

[69]Dr Usifo and Mr Wong were the two witnesses called by the respondent who worked with the claimant.a. Mr Wong’s witness statement did not refer to any documentation. However, he gave evidence of numerous concerns he had about the claimant’s vaginal prolapse surgeries (including how the claimant spoke to patients about the outcome of such surgery), colposcopy, several complaints by trainees about the claimant, informal complaints by surgical theatre staff about the claimant’s decision-making and communication, his own observations of the claimant in theatre, high complication rates in the claimant’s patients and the claimant’s relationship with colleagues.

b. Dr Usifo described the claimant as not taking on board the concerns raised by colleagues about him, and his being defensive or going on the attack with grievances against colleagues (on this issue the claimant admitted that he had taken out 17 grievances against colleagues in his time with the respondent; the respondent’s case is that these grievances contained some 7,000 pages of documents, and his final grievance, which was in the bundle, was over 600 pages long). He said that he received multiple complaints about the claimant from colleagues, junior doctors and theatre staff.

[70]The claimant, for his part, questioned Dr Wong to point to evidence in the (4674 page) bundle of the complaints. He pointed to one GMC case examiner decision of 6 August 2020 which led to no action being taken. This was one complaint which we actually saw documentation about (aside from the matters raised in capability proceedings which we refer to later in this decision). The patient had complained that the claimant had made inappropriate comments about her appearance, mental health, sexuality and relationships and that he was dismissive and patronising towards her. The interaction with the claimant had led to a serious and lasting effect on her mental health after the claimant had made a series of harassing phone calls to her in which he tried to enrol her onto his research study. The GMC expert found that an analogy the claimant made about a procedure being akin to rape was insensitive and unprofessional given the patient’s history, but this did not lead to a conclusion that the standard of care provided fell seriously below the expected standards, as the claimant’s intention was to act in the patient’s best interests. He concluded also that the claimant had been seeking legitimately to explore the patient’s history.

[71]We also saw an email of 13 November 2020 from Mr Watkins (cc’d to Dr Usifo and another) inviting the claimant to a meeting to discuss:• The recent moderate incident and patient complaint

• The recent feedback from junior doctors following the HEE questionnaire

• The plan in place to approve patients listed for surgery

• The concerns raised by theatre staﬀ

• The concerns raised by nursing staﬀ on how you manage / communicate

• The concerns about complication after surgery

[72]While both sides gave evidence on the issue of complaints about the claimant, we considered it best not to make findings on these background issues, but to confine ourselves to the issues which were later to arise in a capability hearing. That said, it is clear that the claimant did not enjoy good working relationships with his colleagues, was certainly the subject of one complaint that found he acted insensitively and unprofessionally, but not seriously below expected standards, that he was invited to a meeting to discuss various concerns about him, and that he put in numerous grievances against colleagues which generated an enormous amount of paperwork. Further disclosures

[73]On 4 February 2021 the claimant emailed Dr Usifo, Dr Walkins, Dr Haigh, Dr Findlay (the respondent’s CEO) and Dr James outlining what he saw as substandard practice in urogynaecology to an “unthinkable level” despite having raised complaints for many years. He gave examples of what he saw as poor practice in relation to certain specific patients and raised concerns about junior colleagues and their poor supervision. He said he had been penalised for raising datixes and that his concerns had been ignored. The respondent accepted that he was making protected disclosures (PID 3.1.1.7).

[74]On 8 February 2021 the claimant emailed Dr Usifo, Dr Watkins, Dr Haigh, Dr Findlay and Dr James about what he saw as substandard practice of a colleague. The respondent accepts this amounted to a protected disclosure (PID 3.1.1.5). We accept Dr James’s evidence that she had no independent recollection of being copied into this email.

[75]Going slightly out of the chronology, the claimant emailed Dr Watkins, Dr Usifo, Dr Haigh and Ms Denyer (in HR) on 6 April 2021. In this 9 page email the claimant made a number of allegations of unfair treatment, and raised complaints about the practice of a colleague. The respondent accepts this amounted to a protected disclosure (PID 3.1.1.6). Patient A and Patient B

[76]On 20 March 2021 the claimant operated on a patient and removed a skin tag which the patient (known as Patient B) had not consented to. Patient B made a complaint about this through PALS.

[77]On 6 May 2021 the claimant carried out a vaginal hysterectomy on Patient A.

[78]The surgical procedures in respect of Patient A and Patient B were to form part of the subject matter of capability proceedings commenced against the claimant. Capability proceedings

[79]In addition to the issues raised in the email of 13 November 2020, and the subsequent concerns relating to Patients A and B, Dr Usifo was also becoming increasingly concerned by other matters. He was alarmed by the fact that the claimant was contacting patients and consulting with them by telephone outside the respondent’s operating hours and procedures, overlisting patients for surgery and not adhering to explicitly agreed arrangements to discuss all cases with him before booking them into theatre. Dr Usifo believed this was leading to a “chaotic and challenging” situation where the claimant was not keeping to agreed policies and processes which placed a huge level of pressure on the department and on colleagues during a difficult time. Dr Usifo considered that the claimant’s actions and practice were so serious that he had no option but to escalate matters to the Medical Director, Dr Haigh, such were his concerns about safety, and considering that his attempt to manage concerns directly with the claimant had failed.

[80]Dr James was the Deputy Medical Director at the time. At this point, apart from having been cc’d into two emails sent by the claimant on 4 and 8 February 2021 (about which she had no independent recollection) Dr James had had no previous professional or social contact with the claimant. She was appointed by the respondent as the Case Manager under the MHPS in an investigation into the claimant’s conduct and capability which the Trust deemed as being necessary.

[81]On 8 June 2021 Dr James met with the claimant and informed him that the respondent had decided to begin a formal investigation under MHPS into various concerns that had been raised against his conduct and clinical practice. These were:a. Allegation 1 - Dr Ismail has failed to follow usual processes with regard to outpatient appointments, resulting in some patients being asked to attend clinics at short notice, causing concern and confusion to patients, and impacting on the booking and reception team;

b. Allegation 2 - Dr Ismail is routinely over-listing patients and / or booking multiple surgical procedures for patients which results in operational difficulties in managing theatre lists;

c. Allegation 3 - Dr Ismail’s working relationship with colleagues has broken down resulting in difficulty communicating with medical colleagues and wider professional groups and staff reporting that they are unwilling to work with him;

d. Allegation 4 - A trainee alleges that Dr Ismail’s behaviour in theatre is misogynistic and that he has created an unfriendly atmosphere in the operation theatre;

e. Allegation 5 - trainee alleges that Dr Ismail is providing inadequate opportunities for their learning;

f. Allegation 6 – Dr Ismail performed a vaginal hysterectomy on Patient A which was described by theatre staff as barbaric, deeply unpleasant to observe and left staff feeling traumatised by his actions;

g. Allegation 7 - that on 20 March 2021 Dr Ismail performed laparoscopic surgery on Patient B during which he removed a skin tag without appropriate prior consent, causing Patient B a significant amount of distress; and

h. Allegation 8 - Dr Ismail has continued to provide a psycho-sexual medicine service to patients, despite this not being a service commissioned by the Trust .

[82]Dr James explained to the claimant that because of the seriousness of the concerns, including patient safety, that a formal investigation under MHPS was appropriate, and that Dr Maccario would be the Case Investigator. She confirmed to the claimant that she had drafted Terms of Reference for the investigation. She explained that as the concerns were serious, and as there was a need for the claimant’s clinical work to be supervised in light of the concerns, she was of the view that he needed to be placed on restricted duties immediately until the conclusion of the investigation. Dr James confirmed all this in a letter to the claimant dated 18 June 2021, providing him with a copy of the respondent’s MHPS policy and the terms of reference of the investigation. She also signposted him to the Trust’s support services, HELP, and the BMA’s support services, recognising that the investigation could be a source of distress to him.

[83]The claimant asserts that commencing the investigation into him was an act of direct race discrimination (LOI 4.1.9). Allegations of acts of direct race discrimination against Dr Usifo. The claimant intimates he will take out a grievance

[84]On 16 June 2021 the Emergency Surgery Team Leader, Mr Codd, emailed Dr Usifo about a gynaecology patient whose surgery had been delayed. He mentioned that the claimant had said the patient was stable. He anticipated a patient complaint. Dr Usifo responded later that day, cc’ing the claimant, saying that he was surprised the patient had been added to the operating list that late, and that the claimant had said the patient was stable. He said that he himself had discussed the patient with the claimant and had made clear that the medical presentation of the patient required urgency. There were further emails in the chain discussing the patient and her treatment. The chain was in the bundle at [672-8] and the claimant asserts that Dr Usifo was criticising and undermining him as an act of direct race discrimination (LOI 4.1.1).

[85]Also on 16 June 2021 the claimant emailed Ms Denyer of HR to say that he was taking out a grievance about the way he had been treated by theatre staff at PRH. He said he had experienced delays in being allocated equipment and had been bullied and undermined by a former colleague. Ms Denyer replied the following day to say that the contents of the email related to the concerns under investigation, and would be shared with the case investigator, would be considered as part of his response to the investigation, and that he would be given the opportunity to discuss them during the investigation. The matters would not be taken forward as a separate grievance. There was further correspondence in this chain, in which the claimant said that he wanted to appeal this decision, and Ms Denyer reiterated the position. The claimant copied Dr James into the chain, and on 21 June 2025 she confirmed that the investigation would look into the theatre at PRH and the claimant’s concerns would be looked into, but that a separate grievance would not be taken forward.

[86]On 21 June 2021 the claimant emailed Dr Usifo and Dr Ryan about a meeting he had had with them on 18 June 2021 during which the restrictions on his work during the investigation were discussed. He complained that he was being asked to cover on-call gynaecology instead of his theatre clinics and sessions. He asked to be given four weeks to prepare for his investigation. He said that Dr Watkins had referred to allegations made by his junior colleagues are these are blindly upheld and his own complaints are ignored. Dr Watkins replied to indicate that he had a different memory of what had been discussed on the 18 June 2021, and considered that it was reasonable for the claimant to cover on-call gynaecology once a week.

[87]The claimant asserts that by changing his elective sessions to on-call and not giving him sufficient time to prepare for his investigation was less favourable treatment on grounds of race, and he compares himself to a white colleague, Mr Utting (LOI 4.1.3). The claimant in his witness statement refers to the email chain referred to in the paragraph above as evidencing this. There is no reference to Mr Utting in this email chain. Dr Usifo gave evidence, which we accept, that Mr Utting was not in a comparable position, in that he was not facing and MHPS investigation, and that he was medically certified as off sick for an extended period. Furthermore, the restrictions placed on the claimant’s practice were made as a result of concerns that had come to light prior to the start of the formal investigation. Additionally, the claimant was covering one on-call in gynaecology (the previous GMC intervention had meant that he could not cover obstetrics) once a fortnight, and he had ample time to prepare for the investigation.

[88]The claimant further asserts that additionally he was required to cover the on-call rota on 2 July 2021, and that this was less favourable treatment on racial grounds (LOI 4.1.4). He compares himself to Dr Mallick, a white colleague. The claimant in his witness statement set out that pages 233 to 330 of his supplementary bundle supported this. Between pages 233 and 409 of his supplementary bundle the claimant included around 180 pages of copies of the rotas of the RSCH and PRH. He did not include the rota for 2 July 2021. Nonetheless, the respondent accepts that the claimant was asked to cover one rota on this date. Dr Usifo gave written and oral evidence that at times a surgical list may be cancelled, in which case a clinician would have other work to get on with. Dr Mallick worked at a different hospital. If her list had been cancelled on 2 July 2021 it would be only in the most exceptional circumstances that a doctor would be asked to cover the work of another doctor in another hospital. If Dr Mallick had been subject to an investigation (which she was not) and the claimant’s list had been reduced or cancelled, he would not have been asked to go to another hospital to cover her work.

[89]On 7 September 2021 the claimant emailed a number of colleagues about a middle grade doctor who he said had not taken the bleep back from him when she was due to be on-call covering gynaecology. After a few responses in this email chain he forwarded it to Dr Usifo. There is no evidence of a response from Dr Usifo. The claimant says this failure to respond was an act of direct discrimination (LOI 4.1.7). He cites Dr Brown as his comparator and relies in his witness statement on the email chain.

[90]On 22 September 2021 the claimant emailed a number of people, including Dr Usifo, Dr Watkins, and Dr Brown, a Consultant Obstetrician and Gynaecologist to complain that a middle grade doctor had been uncontactable on their bleep that day. The ensuing email chain would suggest that Dr Brown was supervising the middle grade doctor in question and she said she would be happy to discuss any issues with the claimant. Dr Usifo responded “Thanks Heather for your response. And thanks [claimant] for raising your concerns”.

[91]The claimant asserts that Dr Usifo racially discriminated against him in that he thanked Dr Brown, a white colleague, yet ignored concerns that he himself raised (LOI 4.1.5). He relied on the 22 September 2021 email chain in support of this.

[92]Taking things slightly out of chronology, the claimant sent an email to Dr Usifo and Dr Watkins on 29 November 2021 in which he again complained that a third middle grade doctor had not responded to a bleep. There is no evidence of a response. The claimant says this lack of response was direct race discrimination (LOI 4.1.6).

[93]Making relevant factual findings requires a little background, some of which is outside the chronology. It is abundantly clear from the voluminous papers in this case that the claimant during the course of his employment had made numerous complaints about colleagues. He has done so at extreme length at times. He has raised 17 grievances about colleagues, which, we are told, and have no reason to doubt, have generated over 7000 pages of documents. His last grievance against Dr Usifo was over 600 pages long. Dr Usifo himself was candid about the demands of his role as Clinical Director, which he undertook in addition to his clinical work. He routinely received 200 emails a day and regularly found himself having to catch up with work in his free time.

[94]If Dr Usifo did not immediately respond to the claimant’s initial email of 7 September 2021, we find that it was because he assumed that the issue would have been taken up by the middle grade doctor’s supervisor Dr Brown and he did not think it was a matter he needed, as one of many recipients of the email, to respond to. When he did respond, it is of note that he thanked the claimant as well as Dr Brown. With respect to the 7 September 2021 and 29 November 2021 emails, we find that the reason why Dr Usifo did not respond to the claimant’s email was that he either thought the matter was being dealt with by the middle grade doctors’ supervisors, or that he was incredibly busy, or possibly a combination of these factors.

[95]On 28 September 2021 the claimant emailed Mr Utting, cc Dr Usifo, to say that Dr Usifo had asked him to pass on the message that Mr Utting was to carry out an operation on a particular patient the following morning. Dr Usifo responded that he did not “quite understand some portion of your email” and went on to explain that he had advised the claimant to let Mr Utting know that there was a patient who had been on the ward for 48 hours waiting for surgery, so that pressure could be put on CEPOD (the emergency surgery team) due to her complex medical problems. Mr Utting responded to set out the patient’s presentation and drug regime and linked to an article on the BBC website about surgical services being unsafe. Dr Usifo responded “This is the point I was making yesterday”.

[96]The claimant asserts that Dr Usifo directly discriminated against him on grounds of race by asking him to pass on information to Dr Utting, and then denying having done so (LOI 4.1.2). In his witness statement he relies on the email chain itself as establishing this claim.

[97]Our findings of fact are that Dr Usifo had previously had a discussion with the claimant about the patient in question, and was setting out his understanding of that conversation in his emails with Mr Utting. Dr Usifo’s focus was on trying to ensure the best outcome for the patient, and we do not find that he was attempting to misrepresent the claimant or undermine him in front of a colleague. PID 8 – email of 4 October 2021

[98]For convenience we will set out, slightly outside of the chronology, that the claimant emailed Dr Watkins, Dr Brown and others on 4 October 2021 to say that colleagues in Accident and Emergency had not prepared a patient for surgery and that a middle grade doctor had not signed a handover sheet. The respondent accepts that this was a protected disclosure (PID 8). The investigation

[99]As set out above, Dr Maccario had been appointed in June 2021 as Investigator under the MHPS capability proceedings. He was a Consultant Cardiac Anaesthetist employed by the respondent who had previously carried out five MHPS investigations. He had previously had no personal or professional dealings with the claimant and did not know him. He was supported in his investigation by Ms Fogden, then Employee Relations Manager.

[100]Dr Maccario’s Investigation Report was completed on 30 September 2021, was 42 pages long (pages 2115ff) and contained 89 appendices. Because of the cutting down of the bundle, as described above, many of these appendices were not in the bundle. We understand that Dr Maccario considered over 5000 pages of documentation.

[101]Dr Maccario structured his report by setting out the appendices, setting out an introduction Including the Terms of Reference), setting out the details of the allegations (the 8 matters being investigated), setting out the procedure he adopted, setting out the findings of the investigation and setting out its conclusions.

[102]In terms of procedure:a. Dr Maccario identified the 11 individuals he interviewed during the course of the investigation. These included the claimant, Mr Wong, Dr Usifo and various theatre and managerial staff.

b. He set out that he had not interviewed certain witnesses, two of whom were no longer employed by the Trust and one who was not a witness relevant to any of the allegations.

c. He identified individuals put forward as being relevant to the investigation by the claimant. One was not employed by the trust and was not relevant to the investigation. Several were middle grade doctors who were not interviewed as Dr Maccario had determined that allegations 4 and 5 involving trainees would not be upheld, and there was no need to delay the investigation by interviewing further witnesses when those allegations would not be proceeding any further.

d. Dr Maccario set out that he had obtained expert reports from Dr Monga, Consultant Urogynaecologist from University Hospital Southampton NHS Foundation Trust. In the claimant’s supplementary bundle the claimant produced email correspondence between himself, Dr Maccario and Ms Fogden. On 23 August 2021 the claimant emailed to observe that Dr Monga was not a sub-specialist urogynaecologist, had interviewed him for his first application for a consultant post in Southampton and not appointed him despite him being the best candidate. Both Dr Maccario and Ms Fogden pointed out that if the claimant had concerns with the impartiality of the expert he should raise that directly with Dr James. We were not taken to any evidence to suggest he did that.

e. Dr Maccario referred to the documentation he considered, which included written submissions and documentation supplied by the claimant in respect of each allegation.

[103]Dr Maccario’s findings included:a. Allegation 1 – appointment processes: i. The Clinical Services Manager reported that the claimant booked patients ad hoc, that patients attended clinics at appointments that had not been pre-booked, that patients were being telephoned by the claimant at weekends and evenings, that receptions teams were being faced with patients not booked on the Careflow system, that the claimant was telephoning patients and asking them to attend appointments sometimes outside of the gynaecology assessment unit, that staff were often unaware of which patients would be turning up. She reported that patients were feeding back that they were cross, confused, anxious, rushed and panicked and were worried about such things as cancer. Staff were feeling stressed about being asked to do tasks outside of their remit, and improper booking procedures meant that no finance would be coming into the Trust for the patient. A specific example was given of the claimant telephoning a patient, speaking to the patient’s sister on the telephone and then booking the sister, without any proper referral, for pelvic floor repair. ii. As a consultant since 2011 the claimant would have been aware of the requirements of the Trust’s Patient Access Policy. iii. Of 106 appointments of the claimant’s, only 38 had been booked through the correct booking procedure. iv. The claimant confirmed that he had been told to stop booking patients outside the procedure. Dr Maccario saw documentary evidence that this had been reiterated to the claimant on 6 occasions by the Clinical Services Manager and Dr Usifo, which very clearly directed him to adopt the correct booking processes. He ignored this instruction. v. The claimant told Dr Maccario that he was only trying to help out his patients, whom he felt responsible for, and that he was being obstructed.

b. Allegation 2: overlisting patients and booking multiple procedures: i. Dr Maccario referred to evidence that the claimant was routinely overlisting patients and had 481 patients on his waiting list compared to the next highest consultant who had 149 patients.

c. Allegation 3: breakdown in relationships: i. Dr Maccario saw emails that showed theatre staff were unwilling to work with the claimant because of concerns about his operating techniques and the fear of him causing long-term problems to patients, the claimant’s feedback to staff, a lack of rapport and teamwork, a perception from staff that they are being watched and having records kept about them and a fear that staff will not be able to staff the claimant’s lists safely. ii. The Clinical Theatre Manager stated that 3 out of 4 members of the nursing team had requested not to work with the claimant due to concerns about his operating technique, which one described as “brutal to watch”. They felt he was abrupt, closed off and did not want to share information. There was a fear concerning safety issues. iii. Dr Usifo described the claimant’s relationship with colleagues as “contentious” and referred to being the subject of grievances from the claimant. iv. Another consultant described a “complicated” and “unpleasant working relationship” and stated that the claimant had put in grievances against her. Colleagues were wary that the claimant was making notes about them, and she found the claimant was apt to send long and aggressive emails. He labelled trainees as incompetent. v. A trainee described being subjected to “severe psychological abuse” from the claimant after he accused her of providing untrue information. vi. The claimant said that Mr Wong and Dr Usifo were doing everything to get him out of urogynaecology to “get it for themselves”. He said he was the victim of untrue allegations. He criticised nursing staff and said his colleagues did not do things by NICE guidelines. He said he trusted his colleagues, but they make up allegations behind his back.

d. Allegations 4 and 5 – misogyny, and inadequate opportunities for trainees. i. Dr Maccario heard and saw mixed evidence and did not uphold these allegations.

e. Allegations 6 – patient A’s hysterectomy. i. Dr Maccario set out the circumstances of Patient’s A’s medical condition. She required a hysterectomy. ii. The day before the surgery the claimant had seen the patient and emailed the theatre manager to advice that the procedure would be “better open subtotal hysterectomy”. In the event, the claimant did not perform open surgery, but a laparoscopic assisted vaginal hysterectomy. iii. The Unit Manager of the LVH Day Surgery Unit raised a datix about the events of 6 May 2021 in which she described “the surgeon was cutting chunks from the uterus via the patient’s vagina. I was concerned that he was not doing surgical incisions he was literally grabbing and hacking chunks from this lady’s uterus’ and that ‘theatre staff were visibly shocked by what they were seeing’. In interview she explained how she had been called to the theatre by the Specialty Registrar who was concerned about what was happening. She said “I went and observed and some of the scrub nurses were very upset, what I observed was quite traumatic. SI was standing where you’d expect him and the patient was in stirrups and he was clearly struggling to remove the uterus. He was very sweaty and flustered and he kept looking around him and it looked like he was panicking. … what I observed was not a surgical procedure that I was familiar with. He had forceps in one hand and in the other he had a big pair of scissors and he was literally lunging with one hand taking a chunk with the forceps and cutting and throwing it on the scrub table. I’ve never seen it before. He was lunging, grabbing, chopping and throwing it”. She described how she had approached the claimant to ask if he should stop and consider his options. She also said that Dr Usifo had asked the claimant if he needed help, and the claimant said that he would be done in a few minutes. She said after the surgery completed “there was a bowl of about 25 chunks of flesh and it was horrific”. She described how the atmosphere in theatre was quiet and a number of healthcare assistants were visibly in tears and others were distressed. She explained she was concerned that the surgeon had adopted a technique of “chopping, cutting and throwing pieces of the patient on the trolley”. iv. The consultant anaesthetist working with the claimant was asked if the procedure she saw was usual and she responded “the one thing I found really unusual was the uterus coming out in chunks, it looked quite brutal to be honest”. She explained how the team, including the gynaecology registrar, had asked the claimant to consider converting to an open procedure, but the claimant reassured them this was not required. v. The gynaecology registrar said she had felt very uncomfortable when the uterus was mobilised vaginally due to its size and fibroid appearance. She said that when the patient had lost over 500ml of blood she asked the claimant why he was pursuing this approach and he replied that she “must be attempting Part 2 MRCOG [Membership of the Royal College of Obstetrics and Gynaecology] so she should know the answer”. She considered the claimant was aware the size of the uterus meant that it would not be suitable for a vaginal approach. vi. The claimant in his interview with Dr Maccario apologised to everybody for the patient saying “it was not the best thing but there are factors to consider here”. He explained that research suggested the size of the uterus in this case was a “grey area” and it depends on the patient’s circumstances and the consultant’s expertise. Given the circumstances he considered it best to conduct the vaginal hysterectomy. He noted the comments from theatre staff but said that taking the uterus and piecemeal was “standard”. He said that in retrospect an open operation would have been better but that there would still be other complications. He acknowledged that he had been offered help but considered that he had been “almost there” in completing the procedure. He considered the theatre staff were upset by his approach because they were not familiar with all his approach and they compare to other surgeons who do not perform the hysterectomy the way he does. The claimant reported that he believed the unprofessional behaviour he outlined in his grievance against theatre staff affected his ability to operate safely on patients. vii. Dr Usifo said that he had checked the claimant’s list prior to the operation on Patient A and expressed his concerns about the planned surgery, which had also been raised with the claimant by other theatre staff prior to surgery. He therefore contacted staff on the day of surgery to say he would be in his office if needed. Staff had called him and he went to offer help at the theatre on two occasions which was declined by the claimant. The claimant had said that if he decided to perform open surgery then theatre staff would take a long time which would risk further bleeding. Dr Usifo said that dissecting the uterus was not advisable in a woman of patient A’s age. viii. Dr Monga, the expert witness, told Dr Maccario that a safer approach would have been to perform an abdominal hysterectomy, and that the claimant would have benefited from obtaining scans to determine the size of the fibroid prior to surgery. Dissecting the uterus and removing it in pieces was a recognised technique “years ago but not in 28 pieces”. The claimant should have looked at alternative options. Surgery does not always go to plan but a surgeon should seek help no matter how experienced they were. It would not have taken a long time to convert the procedure into an open procedure.

f. Allegation 7 Patient B, skin tag removal i. Dr Maccario described the circumstances of Patient B, who consented to a laparoscopic cystectomy. She complained to PALS when she discovered after surgery that her bellybutton had been altered by a skin tag being removed without her consent. There was no reference to the skin tag removal in the patient’s medical records. The claimant complained that she did not feel herself since the removal of the tag, which she considered was part of her uniqueness and her link with her birth parents. ii. The claimant did not deny removing the skin tag without appropriate consent, but explained that the skin tag was in a place where he would normally have made the incision appropriate to the operation in question. He did not remove the skin tag against the claimant’s prior instructions not to. This was unintentional and he did not expect it to be a significant thing. He denied telling the patient that he the skin tag to make her bellybutton look “beautiful”, and stated that he would usually use the word “neat”. He said he had learnt from the incident and would not remove a skin tag in the future. iii. The expert explained that if a skin tag was in the way of an incision area then it might be removed but not without consent.

g. Allegation 8 continuing to provide psychosexual medicine i. The claimant denied providing psychosexual medicine service to patients, although he confirmed that he had been told to stop. He believed that colleagues were raising this allegation based on their own perception of what he was doing but that he was doing “bread and butter general gynaecology and urogynaecology”. He said he did not have conversations with patients unless they brought things up and he felt that he helped many patients. He confirmed that he been asked to stop providing psychosexual medicine and following this he tried to get the service commissioned but he was not supported. He gave examples of the types of discussions he had had with patients. ii. Mr Wong in his interview said that “many times, often from patient complaints and there is ’discussion about its patient sexual activities where patients have felt it was not appropriate to discuss at the time’”. He said that the respondent’s clinics were general gynaecology and urogynaecology clinics and not psychosexual ones, and this led to patients feeling “ambushed with that type of questioning”. iii. Dr Usifo confirmed that he had discussed psychosexual medicine with the claimant who wanted it part of his job plan. Psychosexual medicine was not the service offered by the trust and he had told the claimant to stop discussing psychosexual matters with patients. iv. The Clinical Services Manager stated that psychosexual medicine would frequently be mentioned in the claimant’s clinic letters, and he would often triage patients to his clinic if the referral made reference to mental health issues. v. Dr Maccario made reference to the correspondence involving Ms Stacey mentioned above. vi. Dr Maccario made reference to the complaint by the patient in December 2020 mentioned above. vii. The expert commented that providing psychosexual medicine was not considered part of routine practice unless you have specific qualifications and a specific clinic is set up for it.

[104]Dr Maccario then set out how each of the allegations which were upheld in his investigation linked with the relevant policies and procedures of the respondent and the GMC guidance for Good Medical Practice.

[105]Dr Maccario included a section considering any relevant background. He set out that the claimant had previously had his practice restricted in 2013 by the GMC which resulted in the interim orders and finding that his practice in obstetrics was deficient. He referred to the performance improvement plan that was developed and the supervision of the claimant’s practice.

[106]Dr Maccario included a section considering reasons for the claimant’s conduct and any mitigating circumstances. He observed that the claimant appears to have undergone an adequate period of training and retraining and that he held adequate qualifications. He did not have any underlying health issues. Dr Maccario referred to the fact that the claimant had apologised at times and expressed an intention to learn from mistakes, but observed that the claimant “did not demonstrate a convincing reflective practice and insight”.

[107]Dr Maccario set out his conclusions arising from his findings. These included:a. Allegation 1 i. Only 38 out of 106 appointments undertaken by the claimant were booked through the usual booking procedures. ii. The claimant had been reminded on several occasions of the process required, which he acknowledged himself. Additionally he had been a consultant for over 10 years and would reasonably be expected to be aware of the correct process to follow. iii. By not following processes the claimant has failed to carry out a reasonable management’s instruction. This was considered serious misconduct.

b. Allegation 2 i. This was not substantiated.

c. Allegation 3 i. Dr Maccario acknowledged that staff reported theatres as not being a welcoming environment towards the claimant and this may have impacted on his behaviour and ability to practice. ii. The breakdown of relationship with theatre staff could be seen within other allegations, for example Allegation 6 relating to Patient A, where the claimant’s inability to change his practice due to his concerns about theatre staff’s abilities and a lack of communication in theatre. iii. There was a history of the claimant submitting grievances against staff across the trust which inevitably impacted working relationships. Although the claimant in part accepted that there was a breakdown in working relationships, “his response to the concerns raised appeared to be defensive in nature rather than reflecting on why so many colleagues may report a breakdown in communication he became critical of their behaviours and practices. [The claimant] focused on his urogynaecology colleagues but did not appear to recognise that concerns were raised by a multitude of different staff members”. iv. The claimant does not appear to promote good teamwork and appeared to be working in silos. This might be due to his perceived behaviour from other colleagues. v. Dr Maccario observed “the claimant appeared to be unable to carry out instructions, working in teams, receive feedback and reflect and he appears to be highly critical of others without having any insight into his own possible behaviours”. vi. Staff appear to be unwilling to work with the claimant due to concerns about his clinical practices. vii. The allegation was upheld as a capability issue.

d. Allegation 4 and 5 i. These were not upheld.

e. Allegation 6 i. Dr Maccario concluded “It was noted that there were concerns raised by FU and theatre staff prior to the procedure and despite numerous concerns and offers of assistance being raised during theatre by his Clinical Director (FU), theatre nurse in charge (EC), theatre sister (NiB), Consultant Anaesthetist (CD) and the specialty registrar (NH), SI proceeded to continue with the vaginal hysterectomy without explanation . SI main reason was due to his concern of the length of time that it would take to convert to abdominal “open” approach. It is difficult to understand this as a plausible reason; theatre staff are trained in converting to open procedure that is an essential skills. It is noted that staff present on the day in theatre are experienced and regularly cover laparoscopic lists, surgery was performed during daytime and extra help would have been easily available from other theatres. [The expert] confirming that he would expect this to take no more than 5- 10 minutes. It is opinion of the investigator that if the bleeding was so significant to preclude a conversion to open, SI failed to communicate and make the team aware of the situation, it is also concerning that offers from help were dismissed. In addition, some of SI’s reluctance appeared to be due to relationship issues between him and the theatre staff…The independent clinical expert acknowledged that dissecting and removing the uterus in pieces was a recognised approach ‘years ago’ but not the number of the pieces that SI removed and that in his opinion, SI should have looked at alternative options and open abdominal surgery. AM raised concerns about SI’s apparent lack of ability to seek help from others which the case investigator would concur with. Although SI confirmed after the event that the surgery should have been performed as open surgery his failure to pause, listen and act upon the concerns raised by his colleagues is concerning. It is clear from witness interviews and statements obtained that the way SI performed the vaginal hysterectomy was perceived to be unusual, shocking, brutal, barbaric, deeply unpleasant to observe and traumatising to staff and this extended beyond the theatre staff. Although not part of the terms of reference for this investigation it should be noted that previous concerns were raised in which they described SI following a similar clinical practice and ‘chopping at the uterus’ as well as being ‘deeply unsettling’.” ii. This allegation was upheld as a capability issue.

f. Allegation 7 i. This was upheld as a capability issue, though Dr Maccario acknowledged that the impact and distress to the patient was more significant than the claimant could have imagined at the time, and he appeared to be remorseful.

g. Allegation 8 i. Dr Maccario concluded “There is evidence that SI has been asked to stop providing a psycho-sexual medicine service to patients and SI does not deny being told this, although does deny providing this service. SI has in the past made attempts to commission a service on being asked to stop practicing within general clinics but this was not supported, his attempts to commission a service would suggest that he has awareness that this is a separate provision for patients. Although it was SI’s perception that this allegation was raised as others do not understand psycho-sexual medicine, it was the view of the Gynaecology Lead and Clinical Director for Obstetrics & Gynaecology that psycho-sexual medicine was not a service provided by the other Urogynaecologist’s employed by UH Sussex. It was also the independent clinical expert’s view that psycho-sexual medicine was not part of routine practice. SI confirmed he was aware of the external services available for patients to be referred to but that he had only referred 1 as he was able to help all others ‘in a basic way’ and he gave examples of patients that he had helped within general clinics. Recent complaints confirm that SI continues to offer this service to patients…Although SI has given some indication that he understands the need for psycho-sexual medicine to be delivered within a commissioned service, he is insistent that this is a part of general gynaecology and routinely offered in general clinics by other Trusts despite providing evidence himself that these Trusts state clearly on their Gynaecology web pages that it is a service they provide to their patients. The opinion that psycho-sexual medicine is part of general gynaecology is not held by the Trust, Gynaecology Lead, Clinical Director for Obstetrics & Gynaecology or independent clinical expert and SI confirms himself that he has been requested to stop providing the service.”. ii. This allegation was upheld as a serious misconduct issue. Further progress of investigation

[108]On 14 October 2021 Dr James, and 2 HR professionals, had a Teams meeting with an Adviser from PPA. The content the meeting was summarised in a letter sent by the PPA adviser on 25 October 2021. The Adviser, having set out the nature of the investigation, recorded that it was Dr James’ view that the matter should be combined in a capability process, which PPA agreed was the appropriate way forward. The adviser set out the previous attempts at local action, and noted that the claimant had previously undergone behavioural and occupational health assessments by PPA, and a GMC performance assessment followed by an external placement. The adviser said that given the time which had lapsed, there would need to be a new referral for consideration of an assessment as part of the prehearing process before convening a capability panel.

[109]Accordingly, on 9 November 2021 Dr James sent a referral to PPA for an assessment to consider whether further assessment was required.

[110]On 3 November 2021 the claimant set out his written response to Dr Maccario’s investigation report. The response was 66 pages and included six attachments, including the 600 page grievance against Dr Usifo.

[111]On 16 November 2021 Dr James wrote to the claimant to inform him that PPA had advised that a referral for consideration of an assessment should be submitted to them to determine appropriate next steps. She supplied the referral form, and asked the claimant to fill out Section B of the referral form. The claimant filled out this form indicating that he believed an assessment was appropriate as it would “enable fresh and independent look at the issues upheld in the investigation and my working environment problems to guide the Trust and myself as to how to deal with the issues upheld in the investigation and my working environment problems. It will identify areas for improvement and outline how to do this and/or reassure the trust about my performance”. He indicated that he had reservations about some of the judgements made in the investigation report. He enclosed 13 annexed documents.

[112]On 24 November 2021 the referral was made to PPA.

[113]One 8 December 2021 PPA emailed Dr James and the claimant recommending that “a clinical performance assessment should not be offered”. PPA set out the factors they considered in reaching this assessment. It observed that there had been a number of interventions including a behavioural assessment and a PPA action plan completed in 2018. It was felt that neither a clinical performance assessment nor a behavioural assessment would add to what is already known about the case. PPA added that even if a clinical performance assessment had been offered, there would have been constraints on the feasibility of undertaking it due to the pandemic. PPA commented that any assessment that would be offered would not provide a “fresh and independent look at the issues upheld in the investigation and working environment” as the claimant proposed. The claimant was given the opportunity to request for a review PPA’s recommendation within 10 working days. The claimant did not seek such a review.

[114]On 20 December 2021 Dr James met with the claimant to review next steps. She set out the contents of that meeting in a letter to the claimant dated 23 December 2021. In it she summarised the recent involvement of PPA. She set out the conclusions of the investigation report. She set out that as a result of the findings and conclusions of the investigation report she was of the view that there was a case to answer on both conduct capability. She set out that in such circumstances the MHPS indicates that both conduct and capability concerns will be considered together capability hearing. She said that the claimant would soon receive a further copy of the investigation report and an invitation to a capability hearing with details of its agenda and the panel. She signposted him to sources of support and invited any queries he may have. PID 9

[115]On 31 January 2022 the claimant emailed Dr Watkins to say that a gynaecology handover sheet included details of the patient who had passed away on 20 January 2022. The claimant had gone to see this patient to discover that she passed away. The respondent does not accept that this amounted to a protected disclosure. Further allegations of race discrimination

[116]Again stepping slightly out of the chronology, there was an email chain on 14 February 2022 between the claimant and Mr Brooks the Deputy Divisional Director of Operations. The claimant emailed Mr Brooks to request a set of needles to carry out a specific procedure. Mr Brooks responded to say the trust would not be looking to introduce any new treatments because of waiting lists. The claimant explained why he felt the needles were needed, and Mr Brooks responded that if the needles were required it would have to be discussed with Dr Usifo as the treatment in question have not been offered for a while. The claimant forwarded the email chain to Dr Usifo. Dr Usifo responded that it appeared the claimant had been requesting the equipment from Mr Brooks without prior discussion with him. He questioned why the claimant thought it was not necessary to discuss the matter with himself before asking Mr Brooks. The claimant says that this response from Dr Usifo was an act of direct race discrimination (LOI 4.1.8). Capability Hearing

[117]On 10 February 2022 Professor Roche wrote to the claimant inviting him to a Capability Hearing under Part IV MHPS to take on 10 March 2022. He enclosed an information pack including the agenda for the hearing, the management case and copies of the respondent’s policies. He set out that he would chair the panel with support from Dr Walker, Medical Director and Consultant Cardiologist at a another trust. There would be a further panel member whose identity would be later confirmed. The panel would also have the expert assistance from Dr Oliver, Lead for Urogynaecology, Consultant Urogynaecologist, at another trust. There would be HR support in addition. Professor Roche summarised the terms of reference of the investigation and the allegations. The claimant was told that Dr James would present the management case and that Dr Maccario would be called as a management witness. The claimant was told that he would have the right to state his case, call witnesses, be accompanied by a companion who may be another employee of the Trust for a representative from the BMA or a lawyer instructed by this organisation, or a friend, partner or spouse. He was given the opportunity to submit papers the panel, which should be provided at least five working days before the

hearing.

[118]On 10 March 2022 the Capability Hearing took place. The minutes were in the bundle from page 938 onwards. The third panel member, in addition to Professor Roche and Dr Walker, was Mr Stevens, the respondent’s Chief Operating Officer. The claimant was accompanied by a BMA Representative. The BMA representative was able to offer support to the claimant in respect of conduct but not capability matters. The representative therefore participated in conduct related aspects of the hearing, and absented themselves for the capability elements.

[119]The minutes of the meeting were not verbatim but included the following:a. At the start of the hearing the claimant was made aware that one result of the hearing could be the claimant’s dismissal. He understood this.

b. The claimant indicated that he hoped to call three witnesses. One could not attend but had sent in an email. He could call his two witnesses to attend remotely.

c. Dr James called Dr Maccario, who introduced his investigation report. Professor Roche gave the claimant the opportunity to ask questions of Dr Maccario, he indicated he had “no questions but responses” on Allegation 1. Prof Roche explained to the claimant that this was the claimant’s opportunity to ask questions about the evidence presented. The claimant had only one question, which was to what extent did COVID impact in appointments. Dr Maccario replied other consultants do not have a problems.

d. Dr Maccario was asked a number of questions by the panel on Allegation 1.

e. Dr James, the BMA representative and the panel asked a number of questions of Dr Maccario in relation to Allegation 3. Dr Maccario said there was significant evidence that the claimant did not communicate with colleagues indicating a breakdown in relationships. He said it was difficult to function when staff refused to work with each other, which “can put patients at risk”. Dr Maccario said that he had not seen any sort of reflection by the claimant during the investigation. The claimant has been highly critical of colleagues and put the blame on others. Dr Maccario could not detect any sense of malice in the claimant’s colleagues, who had reasonably held beliefs.

f. The panel considered Allegations 6 and 7, and again, Dr James and the panel asked a number of questions of Dr Maccario. Dr Maccario said there were unanimous comments about never having seen such a procedure before (in relation to allegation 6) and the claimant appeared to be flustered, panicky and sweaty and had not listening to anybody and was not stopping to think. People asked him if he was okay or needed help and he just continued with what he was doing. There was no communication and the claimant ignored staff. Dr Maccario was very worried about the fact that there was no insightful communication with theatre staff, which was a good example breakdown in communication and lack of leadership. He considered it very poor practice. He said that staff described the procedure in “very traumatic terms”. On allegation 7 Dr Maccario noted an absence of reflection from the claimant. The claimant asked no questions on these allegations, but observed that he hoped he performed his surgery well.

g. The claimant was given an opportunity to make an oral presentation. On allegation one, he explained at length that he had triaged a large number of patients during the pandemic. He did not wish to break rules but wanted to address the waiting lists. He said when he was told to stop doing what he was doing he did so. He said there was no evidence of unhappy patients. He said if he had done anything wrong he apologised.

h. This the claimant was asked a number of questions by Dr James and the panel. He was taken to emails where it was clearly pointed out that he was listing patients without consultations, and patients complaining, for example, that they felt they would be rushed into hospital. The claimant said that he was told to stop booking patients outside the procedures and he did. Dr James drew the claimant’s attention to 3 emails in which he was asked to stop the practice after which he still continued. The claimant said that he did not get the impression that he was doing this. He thought he was being helpful. He said that if was doing things outside the process he apologised and would not do it again.

i. There was some discussion about when the claimant’s witnesses could be fitted in, and attempts were made to accommodate the witnesses.

j. The hearing moved on to Allegation 3. At one point Dr Roche observed that the claimant had submitted 9000 pages of evidence, but did not appear to be addressing the allegations. He appeared to be addressing the shortcomings of his colleagues.

k. The claimant spoke at length about false allegations raised against him and said that colleagues, including three consultants, were making his life difficult. He said he had been subjected to false allegations, bullied, treated rudely. He said, of his colleagues “I cannot work with them any more. I cannot manage working in urogynae”. The claimant was asked by the panel whether he contributed at all to the breakdown in relationship. The claimant said that he would be more than happy to admit that, but he had been constantly accused and his grievances have not been upheld. He referred to his grievances and indicated he had raised eight, but his colleagues had not raised any against him. The claimant, in answer to further questions, said that one particular nurse “cannot be relied on” he was specifically asked “Do you consider any colleagues as competent?” His response was “From what I have seen, no”.

l. The hearing moved on to Allegation 8. The claimant was given the opportunity to give evidence. He indicated that psychosexual medicine is part of the gynaecology curriculum. He said “I am dealing with gynaecology problems; I am not dealing solely psychosexual therapy” [emphasis added]. The claimant said he had been accused of providing psychosexual medicine without it being commissioned. He said he had tried to speak to the Commissioner, and he had spoken to colleagues who said that he was correct in his approach. He said he would provide the service for free but it was refused. He said he had proved that this therapy was needed as part of gynaecology and it is in the curriculum. The claimant was taken to various emails, including one from Dr Ajala. There is a passage in the hearing where the claimant is responding to a number of questions asked by Dr Oliver (“RO” the expert on the panel), Professor Roche (“WR”), Mr Stevens (“BS”) and Ms Kestle (“SK”), as follows: RO You have received an email asking this to be stopped? SI Yes. RO And you continued to provide this? SI Yes RO Is a counsellor attached? SI Yes RO Are they always present in clinic? SI No RO Are details provided of what to do if a patient feels ambushed? SI No RO Is a physiotherapist or dermatologist attached in clinic? SI No RO Is there a multi-disciplinary team attached in clinic? SI No RO Have any of these patients been put through? SI No WR Any other questions? SK Yes, Appendix 67, page 3353, a letter from the Matron at LVH. She wrote to you in 2017 expressing concerns and her reasons for them. Do you accept the concerns as legitimate? SI I accept them. WR Were all the concerns addressed in RSCH? SI Yes. WR So you had appropriate time and staff? SI Yes. RO You are contradicting yourself, you answered no to all my questions. SI I need time to explain myself. WR So you wanted time to prove the service was beneficial? SI Yes WR So you wanted to continue providing a service after being told the criticisms? SI Yes. WR Any further questions? BS Do you recognise that you were told the service was not provided? SI Yes. BS On the basis you were told this, did you write a business case? SI Yes. BS And the service was still not commissioned? SI No. BS Is there a referral pathway for patients to be referred to another organisation? SI It is provided in Worthing and Crawley, but I cannot refer people in Brighton or East Sussex”

m. The claimant gave evidence in relation to Allegation 6. He referred to colleagues previously making sarcastic comments to him. He said that if he did not have issues with his colleagues he would have changed this procedure. He said the patient had recovered well after the operation. He said that there was ample literature confirming the surgery he performed was beneficial. He said his colleagues were not aware of this type surgery and this may have coloured their perceptions. The claimant was asked why he had not changed his approach when colleagues were raising concerns. The claimant said he was more confident doing laparoscopic surgery. He accepted that not carrying out an open procedure was a mistake in retrospect. The expert took the claimant to a document suggesting he was on the top of the list detailing excessive blood loss, and was concerned that the claimant put this down to him being given the wrong type of equipment. She questioned whether he had learnt from his previous surgery which caused her concern. The claimant said that staff refused to let him use a particular machine. The claimant said that he had made mistakes and learnt from them, the GMC had cleared him. He said that he had been prevented from calling the patient at this hearing.

n. The claimant was given the opportunity to sum up his case.

[120]On 14 March 2022 the claimant sent in a 16 page email making further submissions to the capability panel. He also sent in an email from a witness who had not been able to attend the hearing. Capability outcome

[121]On 28 March 2022 Professor Roche sent the claimant a letter with the outcome of the capability hearing. He set out the allegations. He summarised the procedure adopted at the hearing. He then summarised the evidence provided at the hearing, and the summing up. Professor Roche then turned to the outcome, which we will set out in full: “Outcome In relation to allegation 1 That you failed to follow usual processes with regards to outpatient appointments, resulting in some patients being asked to attend clinics at short notice, causing concern and confusion to patients, and impacting on the booking and reception team. The panel acknowledged that the Covid 19 pandemic had impacted on the waiting lists for elective gynaecological appointments and that this required that patients were triaged prior to attending clinics. However, it was not disputed that you were telephoning patients outside of normal working hours and we saw evidence that you had continued with this practice, despite instructions not to. We heard that you were seeing patients outside of the normal clinic arrangements in various hospital locations and that you had not booked many such patients onto the Careflow management system. We also heard that patients had been booked for surgery without being seen in advance. In particular, we heard that you had discussed the symptoms of a relative of a patient on the telephone and booked that patient for surgery without the patient being referred to the service. We also heard that you were the only consultant with whom these issues had emerged. You insisted that you had acted in patients’ best interests and that you had volunteered to undertake extra work but, when questioned about the distress caused to some patients as a result of your actions, you did not exhibit insight into the impact of unscheduled telephone calls and ad-hoc appointments on patients with intimate gynaecological problems. Similarly, you did not recognise the impact of your practices on the staff and the management of the service. The panel found that the allegation was proven on the balance of probability, that your persistent conducting of telephone and in-person consultations, outside of then current arrangement and the Trust’s policies, amounted to misconduct involving a risk of psychological harm to patients, and a deliberate and continued failure to follow reasonable instructions. We noted that this could be regarded as gross misconduct but we recognised that this could be in part mitigated by your stated desire to assist with pandemic-related waits, although the outcome was disruptive for both staff and for some patients. On balance, we regarded this as amounting to serious misconduct. In relation to allegation 3: That your working relationships with colleagues has broken down resulting in difficulty communicating with medical colleagues and wider professional groups and staff reporting that they are unwilling to work with you. We heard evidence that experienced theatre staff and trainee medical staff did not wish to work with you because of the attitudes and behaviours that they felt you exhibited towards them, and because of their perception of your surgical practice. We also heard of poor relationships with your fellow consultants, and we read and heard of the low esteem in which you hold the trainees in gynaecology. You responded by blaming your colleagues. You told us that you have raised eight grievances against staff members, although no grievances had been raised against you. You ascribed this to the advice that you said you were given by a coach about your assertiveness. You were of the view that you should lead the urogynaecology service and you indicated in writing and in response to questions that you regard your fellow consultants, the nurse specialist and the clinical fellow in that service as incompetent. You were not able to identify any colleague within the Trust from whom you would seek professional help or advice about difficult clinical issues. The panel acknowledge that there had been no recent formal interventions in this team to address the dysfunctional relationships. However, we were made aware of previous interventions including a behavioural assessment and a Practitioner Performance advice action plan in 2018, and that the Practitioner Performance Advice Service was of the view that a further assessment would not contribute to the matters before us. We acknowledge that there are conduct and capability aspects of this allegation. The detailed reasoning behind the capability findings are dealt with under allegation 6 below, in order to avoid repetition. Overall, we found that this allegation was proven on the balance of probability, that the conduct matters included undermining behaviour towards colleagues and that you had contributed significantly to the breakdown in relationships with medical, nursing and theatre colleagues. We gave some weight in mitigation to the absence of recent behavioural interventions or mediation. We also noted the evidence that you had maintained good relations with the emergency gynaecology theatre staff during your restricted practice, although we noted the limited nature of the work that you undertake in this regard. Nevertheless, we found that the misconduct identified in this allegation was serious. In relation to allegation 8: That you have continued to provide a psycho-sexual medicine service to patients, despite this not being a service commissioned by the Trust. We saw evidence that you had persisted in practising psychosexual medicine despite instructions to cease, including the rejection of a business case for the service. We were persuaded by and accepted the evidence of the external expert, Mr Monga, and of the advice of Ms Oliver that contradicted your view that the practice of psychosexual medicine was part of routine gynaecology clinics. You acknowledged that this practice was not supported by a multidisciplinary team and that patients did not have access to follow up support and counselling. You told the panel repeatedly that you held a diploma in psychosexual medicine and we found it incredible that the study for such a diploma would not make you aware of the need for proper pathways, multidisciplinary assessment, psychological and physical therapy support for patients with needs in this area, as described in the questions from Ms Oliver. When asked why you persisted in this practice, you stated that it was to prove its value. The business case having being rejected, we were of the view that you persisted in this practice in order to prove yourself right, without due regard to the dignity, safety and wellbeing of your patients. We found that this allegation was proven, on the balance of probability, and that it amounted to subjecting patients to potentially grave psychological harm and a deliberate and continued failure to follow reasonable instructions. We concluded that you have persisted in unsafe practice in order to pursue your own agenda. This, in our view, amounted to gross misconduct. In relation to allegation 6 That on 6 May 2021 you performed a vaginal hysterectomy on patient A which was described by theatre staff as barbaric, deeply unpleasant to observe and left staff feeling traumatised by your actions. In the context of this case, Ms Oliver took us to the surgical complication rates for you and your consultant colleagues in urogynaecology in which you appeared as an outlier. This data contrasted with the views which you espoused about the capabilities of every other senior clinician in the urogynaecology service. These data and the documented poor relationships with your colleagues formed the background to this case concerning patient A. We heard that you had persisted in a technically challenging vaginal hysterectomy. When questioned as to why you did not proceed to an open approach or avail of help as offered by colleagues, you stated that you believed that the theatre staff could not achieve a laparotomy in a timely fashion, based on a previous experience some three years ago. When questioned as to why you had attempted a predictably difficult vaginal hysterectomy in that theatre whilst holding that belief, you were unable to provide a cogent answer. Ms Oliver questioned you about whether you had achieved control of the left sided vascular pedicle and was of the opinion that the patient had been exposed to potential harm because of your clinical capability combined with your poor relationship with your consultant and theatre colleagues. We were of the view that you had failed to explain the progress of the surgery to the theatre staff or to your consultant colleague who had come to the theatre. We found that this amounted to seriously deficient capability and that the risk to the patient had been aggravated by your poor relationships with your clinical colleagues. In relation to allegation 7 That on 20 March 2021 you performed laparoscopic surgery on patient B during which you removed a skin tag without appropriate prior consent, causing patient B a significant amount of distress. This allegation was admitted. The views of Mr Monga and Ms Oliver were that it was not necessary to remove the skin tag and that the reasons that you offered were not credible. We noted that you repeatedly said that the patient had not drawn the skin tag to your attention pre-operatively. We saw this as another example to placing the blame on others rather than fulsome acceptance of your error. Whilst we found no malice in your actions, we were concerned that your capability was such that you were driven by ill- informed opinions to act without consent in removing the skin tag. We found that this was a serious failure of capability on your behalf which had a serious impact on the individual patient. In summary, allegations 1, 3 ,6 7 and 8 are upheld. In combination, we have found that these allegations amount to gross misconduct in respect to allegation 8 and serious misconduct in respect of allegations 1 and 3. In addition, we have found that allegations 6 and 7 amount to serious lack of capability, as would be reasonably expected of a consultant gynaecologist. We formed the view that the risk to patients arising from the lack of capability on your behalf is aggravated by your relationships with your consultant and theatre colleagues. You have not demonstrated insight into the impact of your behaviours on your colleagues or the risk that this poses for your patients. We are also of the view that the finding of allegation 8 reflected the desire to pursue your own agenda contrary to the expressed wishes of your employer and of the commissioners of services. In our view, this combined with the capability issues, leads to you exposing patients under your care to unwarranted and unnecessary risks. Sanction We therefore had to consider an appropriate sanction. In this respect, the finding of gross misconduct carries the sanction of summary dismissal. We have considered whether a sanction other than dismissal could be an effective and appropriate response to your gross misconduct. However, it was apparent to us that the impact of your misconduct on your relationships with colleagues combined with your persistent refusal to obey reasonable instructions and your lack of insight, make it very unlikely that you could return safely to the gynaecology service. Your serious lack of capability led us separately to conclude that dismissal on the grounds of capability is also appropriate. We also considered the professional, financial, family, social and personal implications of dismissal on you as a consultant. Grave as the impact of such a sanction is, it had to be balanced against the risk that we regard you as posing to patients, the breakdown in relationships with colleagues and the persistent refusal to engage with proper management of the gynaecology service. Therefore, it is with regret that we have concluded the correct sanction is dismissal from your employment. This is on the grounds of:• Gross misconduct; and

• Serious poor capability. On the basis that there is a finding of gross misconduct your employment is terminated immediately, without notice or any entitlement to any payment in lieu of notice. This decision is effective from the date you were notified which is 28th March 2022.

[122]The letter gave the claimant the right of appeal and set out some practical issues. Appeal

[123]On 8 April 2022 the claimant appealed his dismissal setting out his grounds for appeal over 12 pages. His grounds included (very much in summary):a. Procedural issues that led to bias among the original decision makers. He said he was interrupted in his presentation and prevented from adducing evidence and information.

b. He was not given the chance to improve;

c. Insufficient weight was attached to the difficult working environment;

d. His grievances were ignored;

e. Allegations were upheld without any basis;

f. No mediation was tried;

g. He was prevented from adducing evidence of previous PPA involvement;

h. He realised his mistakes and had learned from them;

i. The sanction was disproportionate;

j. Experts advice was wrong;

k. Policies were not followed.

[124]On 31 May 2022 PPA wrote to Dr James after the claimant had contacted them, and he consented to information being shared. PPA set out their previous decision and its rationale not to offer a further assessment. PPA indicated that remediation was a matter for a capability panel.

[125]On 5 and 6 September 2022 the claimant submitted ET1s to the tribunal.

[126]On 7 September 2022 the claimant was invited to an appeal hearing to take place on 8 November 2022. In further correspondence on 14 September 2022 with the claimant’s BMA representative on this issue, Ms Kestle, from HR, pointed out that the claimant’s grievance against theatre staff (which he raised on 16 June 2021) which had not been heard, could be heard as part of the appeal. The claimant did not agree to this proposal.

[127]On 1 November 2022 the claimant sent in an appeal statement. On 3 November 2022 Ms Kestle emailed the claimant to say that, regrettably, the appeal hearing would have to be postponed due to the content of the appeal statement. The claimant questioned what matters warranted the postponement, and on 8 November 2022 Ms Kestle set out 3 fresh allegations (relating to the involvement of a Non-executive director in the capability proceedings, the role of Dr James, and various procedural matters) which required further instructions and preparation.

[128]On 30 November 2022 Ms Kestle emailed the advisor at PPA who had previously been involved in the decision not to offer an assessment. She set out some text from the claimant’s appeal statement and states “We have the outcome letter of the referral decision not to offer an assessment, but it would be helpful to have a statement or letter from you or someone from PPAS which clarifies that there was no realistic prospect of progress/remediation for [the claimant] or however you think it best worded”. The claimant suggested to us that this was an example of the respondent attempting to influence PPA provide misleading information. We do not accept this. The respondent was seeking clarity on what PPA’s decision was. In the event PPA responded on 13 December 2020 to clarify its previous involvement.

[129]At some point in December 2022 the appeal officer nominated to conduct the claimant’s appeal died. A new appeal panel chair had to be found. A further chair was identified, and a new date set for 28 February 2023. Unfortunately this individual suffered a family bereavement and withdrew from the process. It was not until March 2023 that a further appeal officer was identified and an appeal hearing set for 20 June 2023. The claimant asserts that delaying his was an act of direct race discrimination (LOI 4.1.11). Appeal hearing

[130]The appeal hearing took place on 20 June 2023. The panel was chaired by Mr Cetti, Chief Medical Officer from another Trust, Dr Hawdon, a Medical Director from another Trust, and Ms Keatinge, a non-executive director of the respondent. A further urogynaecology expert, Dr Nicholls, Consultant Gynaecologist from another Trust, supported the panel, together with further HR support. Professor Roche and Ms Kestle represented management, and the claimant was accompanied by another BMA representative.

[131]The hearing lasted 2 days and was specifically heard as a re- hearing. The minutes of the hearing cover 92 pages and it would not be proportionate to set out the content of the hearing. We note also, that the only specific complaints the claimant levels against the appeal hearing area. That a re-hearing should have meant that he be reinstated to his job (raised at the hearing before us);

b. That the appeal raised a fresh allegation, namely that he had operated on Patient B at 3am.

[132]In the circumstances, we will confine ourselves to a few observations about the appeal hearing, given the neutral burden in considering fairness under section 98(4) Employment Rights Act 1996.a. The hearing allowed the claimant the opportunity to present documentary evidence, make a presentation, answer questions from management and the panel, to question management witnesses and to sum up his case. All of this took place over the course of 2 days.

b. The claimant confirmed in the course of the hearing that, as he felt he had been hampered in his presentation at the capability hearing, he welcomed the broad opportunity to put his case.

c. All the upheld allegations were aired during the course of the appeal hearing.

d. In respect of Allegation 8, Professor Roche gave clear evidence, in response to questions from the claimant, that he had heard from two experts (this would be Dr Monga and Dr Oliver) that while psychosexual medicine was part of general gynaecology, this needs to be practiced in an appropriate environment with specialist support. Psychosexual issues cannot be resolved by a simple conversation, but deep seated issues need to be resolved in an appropriate supported environment. Doing so outside this environment put patients at risk, and the panel had heard evidence of complaints from patients in that regard. Professor Roche gave evidence to the appeal hearing that a matron had complained about the claimant, and the clear view was that he was going beyond his remit as a gynaecologist and was repeatedly writing to GPs indicating that he had a diploma in psychosexual medicine and was triaging patients into his clinic who might have a psychosexual aspect to their conditions. The trust believed the claimant was providing a psychosexual service in justification of his failed business case, and was persisting in providing the service to prove his point that it was necessary. And this was being done without the necessary supporting environment. The trust had on a number of occasions asked the claimant to stop, and he persisted. The experts were of the view that the claimant had crossed the line from normal gynaecological practice. If psychosexual issues arise in a consultation, then a referral should be made to appropriate services. The claimant was asked, on the point of psychosexual medicine, what would motivate women to make complaints about him. He referred to a complaint made to the GMC and he said she made a lot of untrue allegations.

e. On the issue of appropriate sanction, the claimant asked Professor Roche why a sanction less than dismissal was not considered. Professor Roche confirmed that the panel gave considerable thought to the issue, but were faced with a situation of a breakdown in relationships with colleagues, a repeated refusal to engage with the proper management of the service and obey management instruction. The claimant had also stated he would not be able to seek help from his colleagues (who he regarded as incompetent) together with serious concerns about the claimant’s own capability. The panel had not been able to formulate any other sanction that would allow for patient safety or reflect the gravity of the findings. Although the claimant had stopped some activity after repeated requests, there was no confidence that there would not be a repetition, especially given his expressed views about his colleagues.

[133]On 29 August 2023 Dr Cetti wrote to the claimant unanimously dismissing his appeal against dismissal. We will set out the findings on all Allegations in full: Allegation 1: You failed to follow usual processes with regards to outpatient appointments, resulting in some patients being asked to attend clinics at short notice, causing concern and confusion to patients, and impacting on the booking and reception team. This was considered a conduct concern. We concluded that it was clear that you had not followed the required process with regard to booking outpatient appointments. There were numerous examples provided where you had contacted patients out of hours and on weekends. You had also asked patients to attend appointments at short notice, outside of the usual booking procedure and you saw a patient without an appropriate referral. Although we all understood the significant impact that Covid had on working practices, it did not result in a chaotic situation for everyone, for example some areas were quiet and cases that needed to be prioritised were. Although we understand that some processes had changed due to Covid and become confused in some cases, you were the only consultant that had an issue in this respect; there was no evidence that your colleagues were engaging in the same practices persistently. We acknowledge that you wanted to help as many women as possible but concluded that you took advantage of the situation to do things in the manner you felt worked best for you. You repeatedly continued after being told to stop. There was evidence that you had been reminded on a number of occasions of the correct procedure for booking appointments. Allegation 3: Your working relationship with colleagues has broken down resulting in difficulty communicating with medical colleagues and wider professional groups and staff reporting that they are unwilling to work with you. This was considered as both a capability and conduct concern. We accept that it is not uncommon for colleagues to fall out with one another from time to time. However, we felt that in your instance this went beyond this and your antagonism with colleagues went far beyond what one may consider normal. We felt that you showed no reflection or insight into how you may have contributed to the relationship breakdowns and blamed others for the situation. We were concerned that communication issues can create operational difficulties which potentially put patients at risk. You explained that you were banned / told to stop raising datix for errors. This is something we will ask the Trust to look into, but we found had no impact on our decision. Allegation 6: That on 6 May 2021 you performed a vaginal hysterectomy on patient A which was described by theatre staff as barbaric, deeply unpleasant to observe and left staff feeling traumatised by your actions. This was a matter of capability. We concluded that you lacked confidence in your surgical timings, specifically in regard to patient A, and therefore should not have started the surgery in the first place. We also felt that you lacked the capability to work in a team. Allegation 7: That on 20 March 2021 you performed laparoscopic surgery on patient B during which you removed a skin tag without appropriate prior consent, causing patient B a significant amount of distress. This was considered a capability concern. This was not an emergency surgery situation and you opted to undertake this at 3am, so that you could be the one to do the surgery. We found that there was a failure of consent and communication. You presented no new evidence to challenge the outcome. We were concerned that you demonstrate a lack of insight into consent. Allegation 8: You have continued to provide a psycho-sexual medicine service to patients, despite this not being a service commissioned by the Trust. This was considered a conduct concern. A psycho-sexual medicine service was not a service that was commissioned from or provided by the Trust. You accept this. You denied that you were instructed to cease the provision of this service. We reviewed appendices 67-69 and considered evidence that you were told to stop. We are happy that you were instructed to cease this service, but despite these instructions, continued to do so. Your conduct was demonstrative of an insistence on providing this service. Incorrect advice from hearing expert We were content that the panel had confidence in the external expert advice. Mitigating circumstances One ground of appeal was that mitigating circumstances were not taken into account. We considered all of those circumstances when considering each allegation and they informed our decisions. We also took account of these in considering the sanction imposed and our findings in relation to that are set out below. Process We also considered your grounds of appeal that related to process and other more general matters.• You were concerned that you had insufficient time during the disciplinary hearing to present your case. Your appeal hearing lasted for two days. The majority of this was taken by you in presenting your appeal, with the management response taking less than an hour. We have also approached this as a rehearing of the evidence. The panel did not find any procedural unfairness in the disciplinary hearing, but I hope that you accept now that you have had sufficient time, and that the approach taken in this appeal addressed your ground of appeal that there was procedural unfairness and potential bias, which you felt precluded an even handed approach, and you say prevented you from providing vital information and evidence as well as correcting misinformation. In any event, given the outcome, any concerns you may have had were not material to the outcome, as our finding is to uphold the dismissal and the findings of the disciplinary panel.

• Another of your grounds of appeal is that the change in timing of the disciplinary hearing meant that a vital witness could not come to the hearing for a genuine reason, due to the change in timing. We specifically asked you the relevance of this witness and we are satisfied that their non-attendance had no material impact on the findings.

• You submitted that the Trust should have gone through an informal approach (mediation) first instead of straight to formal. The panel considered that informal approaches had been tried (as referred to below) and that the level and seriousness of the allegations warranted a formal approach in the circumstances. You appealed on the basis that there had been no adequate learning and interventive support offered to you, contravening the adoption of a just and fair culture by the Department and therefore the Trust. The panel agreed with the management response about the seriousness of the allegations and therefore does not uphold this ground of appeal.

• You were concerned that if management say to PPA that mediation is not possible, they will agree. We disagree. Further, PPA is an advisory body. Additionally, regardless of PPA’s views on capability, there were serious allegations of conduct that are not relevant to the PPA and regardless of mediation, would have proceeded through a formal conduct process. Your appeal included a ground of appeal that allegations were upheld without basis. We find this is incorrect and that there was sufficient evidence for the disciplinary panel to arrive at its conclusions. Sanction We then considered the sanction of dismissal imposed and your ground of appeal that this was too severe or disproportionate to the misconduct. We were aware that prior to your dismissal, you had not received any formal sanctions in the past, and this was considered. As the findings included some of gross misconduct, we considered that ordinarily this results in summary dismissal. We considered whether a sanction other than dismissal would have been appropriate and effective. We agreed with the disciplinary panel and concluded that it was very unlikely that you could return safely to the gynaecology service. We considered the impact of your misconduct, including on relationships with colleagues, your persistent refusal to obey reasonable instructions and lack of insight. We also concluded that you demonstrated a serious lack of capability and that dismissal on the grounds of capability was an appropriate sanction for the disciplinary panel. We noted that the disciplinary panel had gone on to consider the professional, financial, family, social and personal implications of dismissal on you as a consultant. We found no reason to overturn their decision. Dismissal was the only reasonable and fair option having regard to your actions and the impact on patient safety. We were not sufficiently confident that you demonstrated sufficient insight to change. We agree with management that some matters involved repeated and persistent misconduct despite management interventions and, in the cases of allegations 1 and 8, in the face of clear instructions to desist. We also took account of the evidence dating back several years that demonstrates informal actions taken by the Trust to support you, including many informal meetings with relevant clinical leads and a “Back on Track” programme devised by NCAS which was supported by the Trust in 2016. We also noted that when the Trust referred you again for remediation to PPAS they responded that there was nothing further that they could offer in terms of support. Overall, we therefore concluded that the disciplinary panel’s decision to dismiss you on the grounds of gross misconduct and serious poor capability was correct and we do not uphold your appeal.

[134]On 14 December 2023 a case examiner at the GMC concluded that there would be no further action in regards to the claimant’s registration with the GMC. A report set out the case examiner’s reasoning. The report included the following:a. It set out the background and the allegations which led to the claimant being dismissed by the respondent.

b. It set out the process of the GMC investigation and the documentation it considered.

c. The report focussed on “Communication with colleagues”, Patient A, and Patient B. The report did not consider any allegations in relation to non-adherence to booking procedures or practising psychosexual medicine.

d. The case examiner was supported by an independent expert.

e. The report considered Trust documents and comments from the claimant.

f. With respect to Patient A, the expert raised criticisms about the care provided by the claimant, including notes written before and after the procedure which fell below, but not seriously below, the standard of care expected. There were three causes for concern in relation to the claimant’s clinical competency, including the size of the patient’s uterus being overlooked in planning surgery, the blood loss and length of the procedure were excessive and the claimant should have called for help earlier, persisting in removing the uterus piecemeal despite major bleedings fell below the expected standard. He said that the claimant should have opted for open surgery from the start. If the claimant’s actively concealing the amount of blood flow had been deliberate rather than ineffective communication, this would have fallen seriously below the standard expected of him. The evidence did not establish intentional deceit.

g. Of Patient B, the care fell below, but not seriously below, the standard expected of the claimant.

h. On the issue of communication with colleagues, the expert commented that the claimant appeared not to get along with colleagues, but there was no evidence that this amounted to bullying, aggression, hostility discrimination or harassment, such that would call into question his fitness to practice.

i. In summary, the conclusion was that the claimant was not found to be unfit to practice. General observations on reliability of evidence

[135]We had some concerns about the claimant’s reliability as a historian of fact. We have set out above our views about the claimant presenting a partial account of his having, allegedly, been “cleared by the GMC” relating to the 2013 referral, when the documentation suggested otherwise, and his presentation that matters that led to this intervention were the faults of others.

[136]We noted also that in the claimant’s supplementary bundle he included some but not all pages of the investigation interviews of the Unit Manager and of Mr Wong. He included pages 1 and page 6 of Mr Wong’s interview but not pages 2-5. He cross-examined Mr Wong about the first sentence of page 6 of his interview, which started mid-sentence with the first half of the sentence not being included in the supplementary bundle, and put a proposition to Mr Wong. When he was asked why he had only included only certain parts of these interviews he said that he had been limited by EJ Burge in the number of pages he could include in his supplementary bundle. This did not square with the fact that he had included 180 pages in his supplementary bundle of rotas which were entirely irrelevant to the issues. Dr Maccario’s investigation report quotes and summarises extensively from the Unit Manager’s and Mr Wong’s evidence (much of it highly critical of the claimant), and it is hard to avoid the impression that the claimant was attempting to present a partial account to the tribunal.

[137]The claimant made a factual assertion that Dr James had said that he was “irremediable” at the capability hearing, which he said indicated an unfairness in her approach. When he was asked to set out where this evidence appeared he relied on the 30 November 2022 email we refer to at paragraph 128 above. This email merely sets out Ms Kestle’s attempt to ask for clarification from PPA about their previous intervention.

[138]We have also made reference above at paragraph 94 to the 7 September 2021 email which the claimant said was evidence of Dr Usifo thanking Dr Brown, in contrast with how he had been treated. The claimant took Dr Usifo to this email in cross-examination, drawing his attention to him thanking her, but ignored the very next sentence in which Dr Usifo thanked him. This was not the only example of the claimant putting various discrete passages in documents to witnesses, to assert a particular proposition, but ignoring the context of the document which might not support the proposition.

[139]The case of Gestmin SGPS SA v Credit Suisse (UK) Ltd

[2013] EWHC 3560

provides useful observations about the fallibility of human memory. 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.

[140]We formed the impression of the claimant as being a man very much invested in his own narrative of being a victim of unfairness while the incompetence and bad faith of his colleagues is overlooked. He appeared to be a man very much able to find support to this narrative everywhere he looks, and very much able to screen out or explain away information that does not support this narrative. Cognitive biases of this sort operate on all of us – that is how we all make sense of the world. However, this confirmation bias appears to operate very strongly with the claimant and gives us some cause to question his reliability as a historian of fact.

[141]In contrast, the respondent’s witnesses largely anchored their evidence in contemporaneous documentation, and were willing to make appropriate concessions at times.

[142]In all the circumstances, all things being equal, if there is a conflict of evidence we are inclined to accept the respondent’s witnesses evidence over that of the claimant’s. The law Direct discrimination

The law

[143]In respect of direct discrimination, Section 13(1) of the EqA provides as follows: A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

[144]Section 23(1) of the EqA deals with comparisons, and provides:- On a comparison of cases for the purposes of section 13, 14, or 19 there must be no material difference between the circumstances relating to each case.

[145]The EAT in Chief Constable of West Yorkshire v Vento

[2001] IRLR 124

made clear that using examples of individuals who were not true comparators was a proper way of constructing a hypothetical comparator.

[146]The burden of proof provisions (which apply equally to harassment) 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.

[147]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

[148]Guidance on the application of the burden of proof provisions of the Sex Discrimination Act 1975 (which is applicable to the EqA, including claims of harassment and victimisation) was 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.''

[149]Tribunals are cautioned against taking too mechanistic an approach to the burden of proof provisions, and that the process of drawing inferences of discrimination is a matter for factual assessment and is situation-specific, 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

[150]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

). Limitation

[151]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. Whistleblowing

[152]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— … (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,

[153]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.

[154]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.

[155]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 sub- paragraphs (a) to (f). Fifthly, if the worker does hold such a belief, it must be reasonably held.''

[156]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

[157]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.

[158]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

). Automatic unfair dismissal

[159]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”.

[160]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

[161]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.

[162]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]. “Ordinary” unfair dismissal

[163]Under section 98(1) ERA 1996 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

[164]Potentially fair reasons include a reason relating to conduct and a reason relating to capability (section 98(2)).

[165]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.

[166]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.

[167]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.”

[168]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.

[169]When there is a dismissal for incapability (not health related) the general approach of the tribunal involves a consideration of the evidence considered by the employer to concluded that the employee lacks capability, the procedures adopted, consideration of warnings given and the time to improve (Taylor v Alidair Ltd

[1978] IRLR 82

, N C Watling & Co Ltd v Richardson

[1978] IRLR 255

, Mansfield Hosiery Mills Ltd v Bromley

[1977] IRLR 301

[170]In Mbubaegbu v Homerton University Hospital

UKEAT/0218/17

the EAT held that “It is quite possible for a series of accident 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”.

[171]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. Unauthorised deductions from wages

[172]Section 13 ERA provides: (1) An employer shall not make a deduction from wages of a worker employed by him unless— (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction.

Conclusions

[173]In cases of some complexity there is rarely a perfect way of structuring conclusions. We agree with Mr Kibling that, at its heart, this is an unfair dismissal case, with the claimant asserting that his race and his having made protected disclosures were the reason why he was dismissed. Around this core, the claimant makes certain discrete allegations of direct race discrimination, a breach of contract claim relating to the implementation of his COT3, and various money claims. All but one of the disclosures are admitted by the respondent to attract protection. We will therefore start by determining whether this one disclosure was protected, and then move on to the unfair dismissal claim. Part of our consideration there will be to determine the reason why the claimant was dismissed. We will therefore determine whether the reason, or principal reason was because of protected disclosures, and also whether his race significantly influenced the decision to dismiss. We will also, in our assessment of the fairness of the dismissal, consider Issues 4.1.9 (commencing an investigation), 4.1.1 (delaying appeal) and 4.1.12 (raising new matters at appeal) and whether race was a significant influence at play. We will then move on to consider the other allegations of race discrimination, then the breach of contract and money claims. PID 9

[174]Our findings of fact are at paragraph 115 above.

[175]In his witness statement the claimant asserts that he disclosed information (presumably that important information was not being recorded correctly) which he reasonably believed tended to show colleagues were failing to follow standards set out in their contracts, and which exposed patients to risk.

[176]While the claimant did not specifically point to the legal obligation, and it is not clear what specific risks failing to report the death on handover documents presented to other patients, on balance we find, just, that this disclosure qualifies for protection. Automatically, ordinarily unfair dismissal and dismissal as an act of direct race discrimination The reason for the dismissal

[177]The claimant asserts that the reason, or principal reason, why he was dismissed, was because he had made the nine protected disclosures.a. PID 1 and PID 2 was disclosure of information to Dr Haigh in March 2018 and a follow up letter in November 2020, 4 years and 2 years before the dismissal. Dr Haigh did not feature at all in the capability investigation or dismissal.

b. PID 3 is a disclosure of information about cancelled operations made in September 2017 to the previous clinical director, Dr Ajala. This was 5 years prior to the dismissal and Dr Ajala had no involvement in the capability or dismissal process.

c. PID 4 is a disclosure in email in August and September 2019 to Dr Watkins following the claimant’s operating on a colleague’s patient without discussing the matter with him. This was 3 years before the dismissal, and Dr Watkin had no role in the capability or dismissal process. As we have observed at paragraph 60 above, Dr Watkin had urged the claimant to “datix and escalate” if he had concerns, which might, in fact, demonstrate a receptiveness on behalf of, at least Dr Watkins, to patient safety issues being raised.

d. PID 5 concerns emails to Dr Watkins, Dr Haigh, Dr Usifo, Dr Findlay and Dr James complaining about a colleague in February 2021, a year before dismissal. Dr Usifo was the Clinical Lead and was involved in raising concerns about the claimant which led to his capability process which led to his dismissal. Dr James was later to become the Case Manager. However, it is difficult to see the link between this email and the subsequent disciplinary action against the claimant. With this disclosure, as with all of the disclosures, it is difficult to see what is difficult or embarrassing to the respondent, or these individuals, that might motivate them to take adverse action against the claimant. It also might be said, in the context of a doctor who has put in 17 grievances (one of which was 600 pages long) which generated 7000 pages of documents, that this email is something of a snowflake in a blizzard of complaint. It is difficult to see what marks this (or other disclosures) as worthy of retaliation.

e. PID 6 is an email in April 2021 to the same individuals as in PID 5 with the addition of Ms Denyer of HR. In it he complains about the failings of colleagues. The same points as in PID 5 can be made about this email.

f. PID 7 is an email of 4 February 2021 to Dr Usifo, Dr Walkins, Dr Haigh, Dr Findlay complaining about colleagues’ practices. Again, Dr Usifo as the Clinical Lead who raised concerns which led to the capability process is the only person who has any connection to the dismissal.

g. PID 8 is an email sent on 4 October 2021 to Dr Watkins, Dr Brown, Dr Kaushik, Dr Wong and Dr Usifo about various failings. Again, Dr Usifo had a role in escalating matters which led to a capability hearing, and Dr Wong was later interviewed.

h. PID 9, as set out above is an email on 31 January 2022 about a patient’s death not being reflected on paperwork. The email was to Dr Watkins who had no connection with the proceedings which led to the claimant’s dismissal.

[178]On the other hand, the respondent asserts that the reason for the claimants dismissal related to conduct and capability. While the Burchell test for fairness separates the reason for dismissal from the genuiness of the belief in the dismissal and further separates the reasonableness of the grounds for the belief, it is sometimes the case that the reasonableness for the grounds for belief can shed some light on what in fact was the reason for dismissal. Genuine belief on reasonable grounds Allegation 1

[179]We have set out the findings Dr Maccario made on the appointments process at paragraph 103 a) above, together with his conclusions at paragraph 107 a) above. We have set out at paragraph 119 above the fact that the claimant did not meaningfully question Dr Maccario on this issue at the capability hearing.

[180]We have set out the text of Professor Roche’s conclusions on Allegation 1 at paragraph 121 above that the claimant had telephoned patients out of hours, that he persisted with this despite being told not to, that he had not booked patients on the Careflow system, that patients had been booked for surgery without being seen in advance, that he had discussed symptoms with a patient’s relative over the telephone, and then booked that person for surgery without referral. Professor Roche concluded that the claimant showed no insight into the impact of all of this on patients and on his colleagues and the wider service.

[181]We have set out at paragraph 133 above the conclusions of the appeal panel on Allegation 1. The panel heard numerous examples of the claimant having contacted patients out of hours and outside of the normal booking process despite numerous reminders not to. Allegation 3

[182]We have set out Dr Maccario’s investigation findings at paragraph 103 c) above, and his conclusions at 107 c). The evidence from a number of colleagues was of difficulty in working with him, his being defensive and overtly critical of colleagues, his propensity to initiate grievances, and the unwillingness of numerous staff to work with the claimant.

[183]At paragraph 119 j) and k) we have set out that the claimant talked about false allegation made about him and described a number (possibly all) of his colleagues as incompetent.

[184]We have set out the conclusions of the capability panel at paragraph 121 that experienced staff did not want to work with the claimant because of his attitude, behaviours and clinical practice. The claimant viewed his colleagues as incompetent. He undermined his colleagues and this significantly contributed to the breakdown of the relationship.

[185]At paragraph 133 above we set out the conclusions of the appeal panel that the claimant’s antagonism beyond colleagues went beyond the normal. Many staff did not want to work with the claimant, such were the communication problems. Critically, the appeal panel found that this was an issue that could impact patient safety. Allegation 6

[186]We have set out our findings in relation to Dr Maccario’s investigation into Allegation 6 at paragraph 103 e) above. He set out, in fairly graphic terms, the observations of a number of clinical professionals on the claimant’s clinical practice in relation to Patient A.

[187]We have set out at paragraph 119 f) and m) the oral evidence at the capability hearing.

[188]We have set out at paragraph 121 the capability panel’s conclusions, which also commented on poor relationships being a factor in the events relating to Patient A. The conclusion set out the evidence that had been heard at the hearing in relation to this allegation, and the panel concluded that the claimant had failed to explain the progress of the operation to colleagues.

[189]The conclusions of the appeal panel are set out at paragraph 133 above. The claimant should not have commenced the procedure he did in the first place, and he lacked the capability to work in a team. Allegation 7

[190]Dr Maccario’s findings on this allegation are set out at paragraph 103 f) above. The claimant did not deny removing the skin tag without consent.

[191]At the capability hearing Dr Maccario commented on the claimant’s lack of reflection on this issue (paragraph 119 f) above).

[192]The capability panel set out its conclusions, as we have set out at paragraph 121 above. Professor Roche commented that it appeared here that the claimant was seeking, even despite admitting removing the tag without consent, to apply blame elsewhere rather than a full acceptance of error. Allegation 8

[193]We deal with our findings of fact on the investigation at paragraph 103 g) above. The investigation received substantial evidence that the claimant had been told on numerous occasions to cease offering psychosexual advice as the service was not offered.

[194]We have set out at paragraph 119 l) above a passage of the capability hearing in which the claimant admitted that he had been asked to stop offering psychosexual services and he continued to provide it. He wanted to prove the service was beneficial even after he had been informed of valid criticisms of his approach.

[195]In the circumstances the panel’s conclusions on this allegation are unsurprising, as we set out at paragraph 121 above. After his business case had been rejected, the claimant persisted in offering psychosexual services in order to prove himself right. This subjected patients to potential grave harm and was a deliberate and continued failure to follow reasonable instructions.

[196]The claimant, not unreasonably, appeared to pursue a line that suggested that the GMC findings (see paragraph 134 above) which did not find him unfit for practice, undermined the respondent’s conclusions.

[197]However, as we have observed, the GMC did not consider Allegations 1 or 8. These were two allegations of misconduct where the claimant was found persistently to have failed to follow reasonable instructions.

[198]Additionally, the respondent and the GMC were looking at matters through different lenses. The GMC was reviewing whether the claimant was fit to practice as a doctor. The respondent was considering whether it could continue to employ the claimant. We would also observe that the GMC came to its conclusions drawing largely from the expertise of one expert witness, while the respondent also came to its conclusion, in part, drawing on the expertise of their own different expert witnesses. In medicine, as in other professions, there is often ample scope for differences in professional opinions about professional practice. Finally, we remind ourselves of the “lens” through which we ourselves are looking at this issue. It is not our function to substitute our own view for that of the employer, and we should be wary of substituting one set of conclusions by a regulatory body for that of the employer.

[199]On the question of the reason why the respondent dismissed the claimant, it is often the case that the tribunal should look no further than the decision-maker to establish the reason why. There are exceptions, when someone in the hierarchy above an employee determines that the employee should be dismissed but hides this behind an invented reason which the ultimate decision-maker subsequently adopts. That is not the way the claimant has run his case. He has not identified what is sometimes referred to as a “Iago” figure operating behind the scenes. The furthest that the claimant has come to this is a suggestion under cross- examination, and in fairly vague terms, that a large number of people in the respondent organisation harboured some sort of ill-will towards him.

[200]Having made these observations, Professor Roche was adamant in his evidence that, while he was aware that the claimant had been critical of colleagues, there was no evidence to suggest that this had prompted allegations to be made against him. He confirmed that protected disclosures formed no part of the panel’s thought processes, and asserted that the reason for dismissal was that set out in the decision letter. The claimant did not put forward any meaningful evidence, or in his questions to either Professor Roche, or the other witnesses, to establish any sort of linkage between protected disclosures, largely raised in historic emails, and the dismissal.

[201]We conclude that the reason why the respondent dismissed the claimant was because it believed that he had committed acts of misconduct, and that it believed his action showed deficient capability. We conclude that this belief was genuine. We conclude that there were reasonable grounds to sustain that belief based on the evidence gathered during the investigation and put before the capability and the appeal panel. There was ample evidence from which the respondent could reasonably conclude:a. That the claimant had persistently conducted telephone and in- person consultations and booked patients for clinics outside the Trust’s policies despite repeatedly being told to adhere to those policies;

b. That the claimant’s working relationships with colleagues had broken down to the extent that a number of staff did not wish to work with him. That the claimant bore significant responsibility for this based on the poor regard he held his colleagues in and the undermining behaviours he exhibited. That the breakdown of working relationships presented a risk to patient safety.

c. That the claimant showed deficient capability in his treatment of Patient A. That part of the issue here was that the claimant’s poor relationships with colleagues led to poor communication which presented a risk to the patient.

d. That the claimant had shown deficient capability in performing a procedure without patient consent in respect of Patient B.

e. That the claimant had continued to offer psychosexual medicine to patients, having been clearly told on a number of occasions to cease.

[202]The claim for automatically unfair dismissal is not well-founded and is dismissed.

[203]We then turn to consider whether the claimant’s race influenced his dismissal.

[204]We made it clear to the claimant during the course of the hearing that cross-examination of the respondent’s witnesses was his opportunity to put questions to witnesses to advance his race claims. Professor Roche had been adamant in his witness statement that the claimant’s race played no part in his decision making. The claimant simply put to Professor Roche that he would not have been dismissed if he were white. A tribunal panel member asked Professor Roche for the ethnic background of the two doctors he had previously dismissed under the MHPS process. Professor Roche said that one was White British, and one was British from a North Indian or Afghan heritage.

[205]We also note that at no stage in the capability process or the appeal did the claimant assert that his race played any part in his being disciplined. The absence of complaint of discrimination during employment is by no means determinative of anything, but we bear in mind that the claimant is an intelligent professional man who is better able, and prepared, than most to articulate any disadvantage he considers he has experienced.

[206]At paragraphs 5.17 to 5.19 of his witness statement the claimant gives brief evidence of a white consultant who was given a warning by the GMC who was not investigated, and a white consultant who raised patient safety issues and midwives did not want to work with him. The claimant says in his witness statement that he requested evidence from the respondent about these people, but it was not forthcoming. However, we note that the claimant did not appear to identify comparators in his pleadings, or the List of Issues, and no application was made for specific disclosure in respect of these consultants. From the brief evidence in the witness statement it is clear that these individual are not in materially the same circumstances (they do not appear to have been suspected of the same range of conduct and capability issues) and it is difficult to establish what assistance they can give as evidential comparators given the limitations of the evidence given about them.

[207]Similarly, the claimant gives evidence in paragraphs 5.20 to 5.21 of two non-white consultants who were dismissed by the respondent. However, in cross-examination he appeared to accept that neither succeeded in whistleblowing or race discrimination claims. Again, the evidence given about these individuals is brief, and in all the circumstances it provides little if any assistance in drawing inferences of discrimination.

[208]The respondent’s solicitor produced an analysis of the claimant’s 600 page grievance which was annexed to Mr Kibling’s closing submissions. This would indicate that in this grievance against Mr Usifo the claimant made reference toa. Mr Utting being white, in reference to a complaint that he was given time off;

b. Dr Mallick being white, in reference to the claimant having to cover a rota on 2 July 2021;

c. Dr Brown being white, in reference to a complaint that Dr Usifo had ignored his emails in September and November 2021;

d. Doubting that a white colleague would have been treated the same way as the claimant when Dr Usifo responded to the claimant’s request for needles on 19 February 2022.

[209]These matters raised in that grievance are the subject matter of other complaints in the List of Issues, and we will return to them. But we raise them here to consider whether they assist us in inferring racial discrimination in respect of the dismissal. As we will set out below, we have not found that the acts set out in the paragraph above were, in fact, acts of race discrimination. Also, they do not appear to have anything to do with the matters for which the claimant was dismissed. In short, they are of no assistance whatsoever in inferring any racial element to the decision to dismiss.

[210]On balance, we conclude that the claimant has not established facts from which we could decide, in the absence of any other explanation, that the decision to dismiss him was less favourable treatment on grounds of race. The burden does not shift to the respondent.

[211]If we are wrong on that, we would have concluded that the respondent did not treat him less favourably on racial grounds by dismissing him. The reason why the respondent dismissed the claimant was that it believed on reasonable grounds that he had committed acts of misconduct, and that his capability was deficient. We conclude that the respondent would have dismissed a consultant of a different race to the claimant had it been faced with substantially the same evidence of misconduct and poor capability.

[212]The direct race discrimination claim LOI 4.1.10 relating to dismissal is not well-founded and is dismissed. Reasonable investigation and reasonable

Procedure

[213]We have set out above in our findings of fact an extensive background, and at paragraphs 66 to 72 an emerging series of concerns about the claimant. In particular, at paragraph 71 we set out how the claimant was invited to a meeting by Dr Watkins to discuss a series of issues, and at paragraph 79 how Dr Usifo felt the need to escalate matters due to the chaotic and challenging situation. Dr James was appointed as case manager when it was felt that a formal investigation was necessary. Enlisting the benefit of hindsight, we have also concluded that the investigation revealed evidence that led to the respondent concluding, on reasonable grounds that the claimant had committed misconduct and shown deficient capability.

[214]As we have pointed out, Dr Usifo himself is a Black African man. As a matter of law this does not mean that he cannot have discriminated against the claimant. Evidentially, however, it is a matter that may be of relevance when we are attempting to establish what was in the mind of an alleged discriminator.

[215]There is nothing from which we could decide, in the absence of any other explanation, that the decision to start an investigation into the claimant was made on racial grounds. Again, any limited evidence about comparators is of practically no assistance in inferring discrimination. The reason why Dr Usifo escalated matters, and why the respondent chose to follow an MHPS investigation, was that Dr Usifo and the respondent had reasonable grounds to suspect that there were conduct and capability issues that needed to be investigated.

[216]In the circumstances, LOI 4.1.9 is not well-founded and is dismissed.

[217]Once the investigation started, the relevant individuals that needed to be appointed under the MHPS were appointed (paragraph 80). We have set out in detail how Dr Maccario approached the investigation (paragraphs 99-107). The respondent sought the advice and input of PPA and the claimant was involved in and had input into this process (paragraphs 108-114).

[218]The claimant put to Dr Maccario in cross-examination that it was unfair that he did not interview witnesses he himself had nominated. We do not find that Dr Maccario’s decision not to interview these witnesses outside the range of reasonable responses open to an employer. As Dr Maccario explained in the investigation report itself (see paragraph 102 above), there was no need to interview these witnesses as the allegation relating to trainees was not going any further.

[219]The claimant also challenged the appropriateness of Dr Monga as expert witness. However, as we have set out at paragraph 102 d) above, the claimant was given the opportunity to raise that concern with Dr James and he did not pursue the matter.

[220]We conclude that Dr Maccario’s investigation fell squarely within the range of reasonable responses open to a reasonable employer and followed a fair procedure. He approached his task with thoroughness and diligence. He interviewed relevant witnesses and collated relevant information (on quite a vast scale) including interviewing the claimant and considering voluminous documents supplied by him. He made findings and reached conclusions to recommend the matter proceed to a capability hearing based on the evidence he considered.

[221]When it came to the capability hearing (paragraphs 117 to 120 above) the claimant had been provided with the management case and all the evidence to be considered. He was given the opportunity to provide documentary and oral evidence and to challenge the management evidence and make submissions.

[222]In his witness statement the claimant makes several references to Spink v Express Foods Limited

[1990] IRLR 320

, and suggests that in a number of respects he was not informed of the specific allegations against him.a. Paragraph 3.2.1 – he says that in the capability hearing Professor Roche said that he was not being charged with the quality of his work, but providing a service that was not commissioned.

b. We do not find that a new or different allegation was being put or that the claimant had not been informed of the allegation he was facing. Professor Roche is merely clarifying during the hearing that Allegation 8 was not about the claimant providing a sub-standard service, but that he was providing a service that had not been commissioned. Providing a service that was not commissioned was precisely within the terms of the disciplinary charge itself. The quality of any service was not of relevance, and Professor Roche reasonably clarified this.

c. Paragraph 3.2.40 to 3.2.41 – he says he was adjudged to have failed to explain surgery progress to staff.

d. We again do not find that a new or different allegation is being put. Allegation 6 was about the manner in which the claimant performed surgery on Patient A. It was abundantly clear from the extensive evidence provided to the claimant in advance of the hearing that a number of colleagues were deeply concerned by the claimant’s lack of communication about the surgery. There is no need for a disciplinary charge to set out with granular specificity the minutiae of deficient performance. The claimant knew the charge he was facing, and was in a position to challenge the evidence and put his own case.

e. Paragraph 3.2.56-60 – choice of surgery in theatre where conversion rate was slow.

f. We do not understand the point raised by the claimant. We can only observe that with respect to Allegation 6 we do not detect in any of the evidence we have seen that the disciplinary charge changed. It is inevitable that disciplinary charges will be expressed concisely and evidence will be broader. There was exploration during the capability hearing about the claimant’s decision-making on the day in question, and this is to be expected. There is nothing here that suggests an unfairness to the claimant. There was a legitimate exploration of the way the claimant performed the operation, which was the subject matter of the charge.

g. Paragraph 3.2.63-68 – securing uterine vessels.

h. In these paragraphs of his witness statement the claimant gives significant medical information about an aspect of the procedure. Again, this related to exploration during the course of the capability hearing about the claimant’s decision-making during the course of Patient A’s surgery. The goalposts were not being shifted and the claimant was not facing a different charge.

i. Paragraph 3.2.81 – blaming the patient.

j. This relates to Allegation 7. We do not find that the claimant was facing a charge that he was not made aware of. Allegation 7 was about performing a procedure without consent. In his decision letter Professor Roche was simply referring to the claimant’s case at the capability hearing that the patient had not drawn the skin tag to his attention, which appeared to be shifting the blame to her rather than accepting and reflecting on the fact that he had removed the tag without consent. This was not a fresh charge, but an example of the claimant’s lack of insight and reflectiveness in the face of the charge as put.

[223]While it was not a matter that was part of the claimant’s case, the tribunal put questions to various witness about where the word “barbaric”, which was in the wording of Allegation 6, came from. We could not find it in the evidence. Mr Kibling in closing submissions was candid that he could not find reference to it in the bundle, and assumed that it may have been in one of the annexes that had been taken out of the original 13,000 page bundle. While we do have some concern that we have not been taken to the specific evidence that a witness used this word to describe the claimant’s surgery on the day, we have concluded that this does not take the investigation outside the range of reasonable response. We have seen (and set out above) evidence of how the claimant’s colleagues described his approach, and these include “brutal” and “horrific” as well as other graphic descriptions of how witnesses observed the procedure. Also, it is clear from Professor Roche’s outcome letter that he was not focussing on graphic descriptions of the procedure or the adjectives used to describe it, but was more concerned with the fact that the claimant did not proceed to an open procedure, the poor communication with colleagues and the failure to explain surgical progress to colleagues.

[224]In all the circumstances we conclude that the capability hearing stage of the investigation was reasonable and followed a fair

procedure.

[225]The appeal hearing was substantially delayed, and was significantly outside the 25 day limit for hearing appeal. We note, however, that the MHPS says that the 25 day limit “should” rather than “must” apply.

[226]In circumstances such as this case, involving thousands of pages of documentation and complex issues, it is difficult to see how an appeal was ever going to be heard in anything remotely approaching 25 days.

[227]We have set out above at paragraphs 123 to 129 the further difficulties that arose in convening an appeal. It first had to be adjourned because the claimant was raising fresh matters in his appeal statement; the original chair sadly died, and the second nominated appeal chair had a bereavement.

[228]This delay appears to be at play in two claims: first it is raised as an act of direct race discrimination, and secondly, it falls to be considered as part of the fairness of the dismissal.

[229]The claimant has not given any evidence of a comparator, has not given evidence of any potential racial motive in anyone involved in postponing or delaying the appeal hearing. He has not established facts from which we could conclude that, in the absence of any other explanation, the delay was on racial grounds. The burden does not shift to the respondent. If it did, then, on the evidence before us, the reason why the appeal was delayed was because it was postponed when the claimant raised fresh matters, because one chair died and another experienced a bereavement. We conclude the appeal would have been delayed had all these circumstances applied to someone of a different race to the claimant.

[230]In the circumstances, LOI 4.1.11 is not well-founded and is dismissed.

[231]In terms of fairness, while the delay was substantial, there is no evidence that it caused difficulties for the claimant. The capability investigation and hearing were well documented (many of the documents being supplied by the claimant himself) and he was given the opportunity over two days to challenge the evidence and put forward his own account.

[232]The claimant also asserts, as an act of discrimination, and as part of the alleged unfairness of the dismissal, that new matters were raised at appeal stage.

[233]At paragraph 3.2.86 of his witness statement the claimant says that the appeal panel criticised him for performing surgery after midnight as a violation of the Trusts policies. At paragraph 5.30 he refers to new allegations being added such as deliberately recruiting patients and not following governance mechanisms instead of grievances.

[234]In respect of the first matter, the appeal outcome letter (see paragraph 133 above) does refer to the operation being non urgent and carried out at 3am. However, it goes on to say “We found that there was a failure of consent and communication. You presented no new evidence to challenge the outcome. We were concerned that you demonstrate a lack of insight into consent”. That is the rationale of the decision. The claimant was not being found guilty and punished for breaching policies. Consent was the focus of the appeal panel and was the substance of the disciplinary charge, not the timing of the operation.

[235]In respect of recruitment of new patients and not following governance mechanisms, the claimant referred to passages of the appeal minutes. What is clear is that what the claimant characterises as new allegations are simply responses given by Professor Roche when he was giving evidence to the appeal hearing. He is not introducing fresh charges. This can be seen by examining the appeal decision (paragraph 133 above). Nowhere in this can be seen a determination about recruiting patients or not following governance mechanisms. The appeal panel focused on the disciplinary charges as put, and made determinations on those.

[236]We do not find that new allegations were put at the appeal hearing, and the claimant does not factually make out his allegation in respect of LOI 4.1.12. This complaint of direct discrimination is not well-founded and is dismissed.

[237]In terms of fairness, while we have some concerns about the length of the delay, we do not find that it fell outside the range of reasonable responses. We do not find the claimant’s other challenges to the fairness of the appeal process made out. Looking at the appeal process as a whole, it was an extensive re-hearing of the evidence, the claimant was given the opportunity to put forward his grounds of appeal, adduce his evidence, challenge the documentary and oral evidence of the respondent. The panel considered the evidence and set out its conclusions in an outcome letter.

[238]In closing submissions we drew the parties' attention to the case of Elmore v Darland High School Governors [2017]

UKEAT/0209/16

. This was a case concerning the absence of witnesses from an appeal hearing in a tribunal case. We drew this to the parties attention as we had not heard live evidence from anyone on the appeal panel. However, Elmore was a case where, in addition to their not being witnesses from the appeal panel, there were no written reasons provided by that appeal panel. The EAT held that there is no legal requirement for a respondent to call an appeal officer where no written reasons are provided by the appeal officer. This is a different scenario from the case we had before us. Here there were 97 pages of hearing minutes, and a reasoned decision from the panel. Elmore does not take matters any further.

[239]In all the circumstances we conclude that the appeal part of the investigation conducted by the respondent fell within the band of reasonable responses open to a reasonable employer. We conclude also that the respondent followed a reasonable and fair procedure.

[240]It follows that we conclude that all elements of the investigation fall within the band of reasonable responses. Capability

[241]We have thus far worked our way through the Burchell test, a test in respect of conduct related dismissal. The LOI paragraph 2.7.1 states “The Respondent adequately warned the claimant and gave the claimant a chance to improve”.

[242]The respondent dismissed the claimant for a mixture of conduct and capability reasons. It also dismissed him within the procedural context of the MHPS, which allows for a behavioural assessment. As we have set out in our findings of fact, PPA did not consider it appropriate to offer an assessment of the claimant.

[243]It is difficult, therefore, to see how, in considering fairness, how a warning or chance to improve fits in. Having found that the claimant was guilty of gross misconduct, and having found also that his capability was deficient, is an employer acting unfairly if it does not give an employee a warning and a chance to improve? We conclude that this would be absurd. We also remind ourselves that the primary focus of the tribunal is the wording of section 98(4) itself, and that the consideration for us is whether the dismissal is fair or unfair depends on whether, in the circumstances of the case the employer acted reasonably or unreasonably in treating the reason or reasons for dismissal as sufficient reason(s) for dismissing him having regard to equity and the substantial merits of the case. Subject to our determinations on sanction below (which is inextricably bound with this assessment) we would consider that the respondent acted reasonably in treating the reasons as sufficient to dismiss when there does not appear to be a warning or a chance to improve. The reason for this is that first, the capability element was also mixed with a conduct element; and second, PPA did not consider an assessment appropriate. Sanction

[244]We again remind ourselves that we are not to substitute our view for that of the employer. We also remind ourselves that the GMC, although looking through a different lens, and not considering Allegations 1 or 8, did not consider the claimant unfit to practice.

[245]We conclude that the sanction of dismissal fell within the range of reasonable responses open to an employer. The conduct and capability matters upheld against the claimant were significant:a. He was found to have flouted booking policy on a large scale despite repeatedly being told not to. This was a matter that the respondent found, on evidence, caused considerable anxiety and stress to patients and had a detrimental impact on the claimant’s colleagues.

b. He was found to have exhibited behaviours that led to a breakdown in relationships with a number of his colleagues, a number of whom were unwilling to work with him. The respondent reasonably took the view that such breakdown had the potential to present a risk to patients.

c. The operation on Patient A was such as to call into question his capability. His working relationships played a part in this in that part of the deficient capability was his lack of communication with colleagues and his unwillingness to accept help or suggestions. Again, this put patients potentially at risk.

d. The procedure carried out on Patient B was performed without her consent. Despite the claimant’s apologies, it was within the band of reasonable responses for the respondent to consider that the claimant had not shown sufficient insight or reflection in relation to the incident. We were taken during the course of evidence to email correspondence surrounding the preparation of a response to Patient B following her complaint. We were struck, that even here, where the focus should surely have been on how to communicate with a patient who had a procedure carried out on her without her consent which caused her significant distress, that the claimant’s focus was still on justifying his actions.

e. The claimant had been told on a number of occasion to cease practising psychosexual medicine. He continued to do so in defiance of reasonable instructions, and (in the reasonable conclusion of the respondent on the evidence given at the capability hearing) to prove himself right. Patients had complained, and the evidence suggested that the appropriate supported environment within a commissioned service was vital to providing psychosexual medicine. Practising outside that environment again presented a risk to patients.

f. “Deliberate and/or continued failure to follow reasonable instructions” is an example of gross misconduct in the respondent’s procedures.

[246]It was not outside the band of reasonable responses for the respondent to conclude that a lesser sanction than dismissal was appropriate given the range of conduct and capability issues found proven. The respondent saw in the claimant a doctor who repeatedly ignored policy and instruction which placed patients at risk; who significantly caused or contributed to the breakdown of working relationships, again, creating the potential of risk to patients; whose practice was deficient in a way that created risk to patients; and who displayed little insight or reflection which might give hope for improvement. Conclusion on unfair dismissal

[247]We conclude that the respondent did not unfairly dismiss the claimant (for the avoidance of doubt, either automatically for having made protected disclosures, or “ordinarily”), and this claim is not well-founded and is dismissed. Other direct race discrimination claims LOI 4.1.1 Dr Usifo criticising, blaming, undermining claimant on 16 June 2021

[248]We have set out our finding of fact on this issue at paragraph 84 above. The correspondence appeared to suggest that Dr Usifo was surprised about the delay in surgery to a patient based on the previous discussions he had had with the claimant. This was in response to what Mr Codd has said in this email.

[249]We cannot detect any untoward criticism, blame or undermining words from Dr Usifo. This appears simply to be an email discussion between 3 medical professionals, albeit with a degree of surprise from Dr Usifo about the delay in surgery based on previous conversations with the claimant. Dr Usifo’s focus seems to be on securing appropriate treatment for the patient in question.

[250]There is nothing from which we could conclude, in the absence of any other explanation, that the content of Dr Usifo’s email was influenced by the claimant’s race. We conclude that he would have raised the same issues with a consultant of a different race to the claimant had there been a delay in surgery for a patient, with whom there had been a discussion that stressed the urgency of surgery, and where another colleague had raised that the consultant had advised that the patient was stable. As a matter of both fact and law, there is nothing to prevent a finding of discrimination against someone who shares a protected characteristic with a claimant. However, when “looking into the mind” of Dr Usifo, himself a Black African man, to assess the reason why he did what he did, we conclude that the claimant’s race played no part. He wrote what he wrote because of his concerns about a patient’s treatment and was concerned that information given to him by Mr Codd did not appear to correspond with previous discussion he had had with the claimant.

[251]This complaint is not well-founded and is dismissed. LOI 4.1.2 Dr Usifo passing on information to Mr Utting

[252]This, again, related to email correspondence between the claimant, Dr Usifo, and another consultant Mr Utting, and we set out our findings at paragraphs 95-97 above.

[253]Once again, the correspondence appears to suggest that Dr Usifo was focussing on the needs of a patient whose surgery appears to have been delayed, and once again that the claimant’s email communication did not appear to match previous verbal discussions about the patient. Dr Usifo simply seems to be saying that he did not understand what the claimant was saying in the light of those previous discussions.

[254]There is nothing from which we could conclude, in the absence of any other explanation, that Dr Usifo was treating the claimant less favourably than he would another consultant who was of a different race to the claimant. The reason why Dr Usifo wrote what he did was because he wished to clarify previous discussions and secure appropriate treatment for a patient. Race had nothing to do with this, and we are satisfied that the email correspondence would have been in the same terms if it had been with a consultant of a different race in materially the same circumstances.

[255]This complaint is not well founded and is dismissed. LOI 4.1.3 changing elective sessions to on-call and not giving time to prepare forcapability hearing

[256]Our findings of fact are set out at paragraph 86-87 above.

[257]The reason why the claimant’s elective sessions were stopped was because he was facing a formal MHPS process which has raised issues about his capability and conduct. He was not in a comparable position to Mr Utting, who had been absent for medical reasons. Furthermore, the claimant was only covering limited on-call sessions and had ample time to prepare for formal process.

[258]There is nothing from which we could conclude, in the absence of any other explanation, that the decision to change the elective sessions to on-call had anything to do with the claimant’s race. Any consultant in a comparable position would have been treated in the same way.

[259]This complaint is not well-founded and is dismissed. LOI 4.1.4 covering 2 July 2021 rota

[260]We make findings of fact on this issue at paragraph 88 above.

[261]The claimant relies on Dr Mallick as a comparator. For reasons we set out above, she was not in a comparable position. She worked in a different hospital and would not be required to cover a rota at a different hospital save in exceptional circumstances. Any consultant in the same position as the claimant, regardless of race, would have been asked to cover the 2 July 2021 rota as the claimant was required to.

[262]There is nothing from which we could conclude, in the absence of any other explanation, that the claimant was treated less favourably on racial grounds in this regard.

[263]This complaint is not well-founded and is dismissed. LOI 4.1.5, 4.1.6 and 4.1.7 Dr Usifo thanking Dr Brown and ignoring the claimant

[264]Our findings of fact on this issue appear above at paragraphs 91- 97.

[265]The claimant’s principal difficult with issue 4.1.5 is that the email he relies on to show Dr Usifo thanking Dr Brown for raising issues in contrast to the way Dr Usifo approached the claimant’s emails raising issues, is that this email shows Dr Usifo thanking both Dr Brown and the claimant.

[266]True, there are instances of emails where some of the claimant’s emails raising concerns do not appear to have received a reply from Dr Usifo. Some of these are emails to numerous recipients. We accept Dr Usifo’s evidence that at times he did not respond to the claimant as he assumed others were better placed to deal with the issues (being the supervisors of the junior doctors the claimant was complaining about) or that he was simply too busy to respond.

[267]The evidence does not suggest a disparity of treatment between the claimant and Dr Brown. There is nothing from which we could conclude, in the absence of any other explanation, that not replying to the claimant’s emails was less favourable treatment on racial grounds. The reason why Dr Usifo may not have responded to select emails was because he thought someone else would deal with the matter or that he was very busy.

[268]This complaint is not well-founded and is dismissed. LOI 4.1.8 Dr Usifo accusing the claimant of going behind his back about re- stocking equipment

[269]Our findings of fact on this issue appear at paragraph 116 above.

[270]We conclude that in this email chain Dr Usifo was legitimately questioning why the claimant had sought to source equipment for the Director of Operations without first coming to him, the Clinical Director. We can see nothing sinister in this.

[271]There is nothing from which we could conclude, in the absence of any other explanation, that this was an act of race discrimination. Dr Usifo was merely pointing out that the claimant had appeared to be attempting to source equipment without running it past him. This had nothing to do with race, and we conclude that Dr Usifo would have made the same observations to any other consultant in materially the same circumstances.

[272]This complaint is not well-founded and is dismissed. Time limits

[273]The complaints in this section were all upwards of 7 months before the presentation of the claims. Had we not upheld the complaints on their merits we would have found them out of time. As we have not upheld them on their merits we will not set out our reasoning in any depth, but the claimant has not established that they were part of a continuing act, and has not persuaded us that it would have been just and equitable to extend time. Breach of contract

[274]We have set out the terms of the COT3 agreement at paragraph 40 above. We will set out our conclusions below, but will preface them with a general observation. As must be abundantly clear by now, the parties had an extremely difficult working relationship. While we were not obliged to examine the detail of grievances, the fact that the claimant raised 17 of them and that one of them was over 600 pages long (longer than many novels) tells something of a story in itself. We have also not found the claimant a particularly reliable historian of fact. We have also, broadly, found the respondent’s witnesses to be impressive. We also note that the terms of the COT3 are often couched in broad aspirational terms “working together in good faith” etc. We have not detected bad faith in the respondent. In a highly troubled working relationship over a decade long it is inevitable that the respondent did not at all times do everything perfectly. That sort of perfection does not exist in the real world. Our conclusions are:a. Paragraph 5 – we have found nothing to suggest that the respondent failed to approach concerns about the claimant’s practice with good faith and following due process. We have set out above that in respect of procedures that led to his dismissal followed a reasonable process.

b. Paragraph 9 – we have found no evidence that the respondent did not work in good faith to facilitate the claimant’s return to practice.

c. Paragraph 10 – we have found no evidence that the respondent did not work in good faith to facilitate the claimant’s return to clinical activity.

d. Paragraph 11 – we have found no evidence that the respondent failed to honour the agreement on Back on Track.

e. Paragraph 12 – we have found no evidence that the respondent failed to support the claimant’s career aspirations in line with the needs of the service. He clearly wanted to develop a psychosexual clinic, but this did not fit in with the needs of the service and relevant commissioning arrangements. That does not mean there was a breach.

f. Paragraph 13 – there is no evidence that the respondent did not work in good faith to agree a job plan.

g. Paragraph 17 – there is no evidence that the respondent did not work in good faith to resolve working environment issues. It addressed all his grievances, save the theatre staff grievance that the claimant put in shortly after the theatre staff raised complaints about him. Dr James and HR made clear that these issues would be considered during the capability hearing rather than separately as a grievance. The trust offered again to look at this grievance under the appeal process, and the claimant refused this offer.

h. Paragraph 18 – we heard no evidence that the respondent refused this.

i. Paragraph 19 – we found no evidence of a breach.

j. Paragraph 20 – we found no evidence of a breach.

[275]There is a further difficulty in establishing what, if any, damages flow from any breaches, were we to find them. The claimant simply said he would seek the maximum allowable of £25,000.

[276]In all the circumstances these complaints are not well-founded and are dismissed. Holiday pay

[277]In the witness statement of Ms Fogden it was admitted on behalf of the respondent that the claimant was due holiday pay in the sum of £4725.50 gross. At the start of the hearing it was established that a sum, with deductions had been paid by the respondent. The claimant said that he was paid around £1800, which could not be the proper net amount for a gross sum of £4725.50. The tribunal suggested, with the agreement of the parties, that it would give judgment for the gross sum of £4725.50. Deductions from wages

[278]The claimant says he is due to be reimbursed £260 for expenses he incurred attending a course.

[279]The respondent says that this course was a psychosexual medicine course, that psychosexual medicine was not a commissioned service and was one that he was instructed to stop providing, and that this was not a reimbursable expense.

[280]It seems to us that if the claimant incurred £260 on a course, then such might be classified as “expenses incurred by a worker in carrying out his employment”. As such they are specifically excluded from the definition of wages under section 27 ERA. However, this is not the case the respondent ran.

[281]We note that the respondent reimbursed the claimant for parts 1 and 2 of the course notwithstanding that the subject matter related to a non-commissioned service which he had been told to stop performing. We consider that this sum was properly payable to the claimant, and that he was not paid it.

[282]This claim is well-founded and the respondent must pay this sum. Approved by: Employment Judge Heath 8 September 2025 Notes All judgments (apart from judgments under Rule 51) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimants and respondents. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found here: www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice-directions/

Conclusions

[1]Time limits 1.1 Are any of the complaints out of time and, if so, does the Tribunal have jurisdiction to hear them?

[2]Unfair dismissal2.1 What was the reason or principal reason for dismissal?

2.2 Was it a potentially fair reason?

2.3 Did the Respondent act reasonably or unreasonably in all the circumstances in treating that as a sufficient reason to dismiss the Claimant?

2.4 Was the reason or principal reason for dismissal that the claimant made a protected disclosure or disclosures? If so, the claimant will be regarded as unfairly dismissed.

2.5 The Tribunal will need to decide whether the respondent genuinely believed the claimant had committed misconduct.

2.6 If the reason was misconduct, did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant? The Tribunal will usually decide, in particular, whether:2.6.1 there were reasonable grounds for that belief;

2.6.2 at the time the belief was formed the respondent had carried out a reasonable investigation;

2.6.3 the respondent otherwise acted in a procedurally fair manner;

2.6.4 dismissal was within the range of reasonable responses.

2.7 As far as capability reasons are concerned, did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant? The Tribunal will usually decide, in particular, whether:2.7.1 The Respondent adequately warned the Claimant and gave the Claimant a chance to improve;

2.7.2 Dismissal was within the range of reasonable responses.

[3]Protected disclosures3.1 Did the claimant make one or more qualifying disclosures as defined in section 43B of the Employment Rights Act 1996? The Tribunal will decide:3.1.1 What did the claimant say or write? When? To whom? The claimant says he made disclosures on these occasions:3.1.1.1 In a meeting with the Medical Director on 13th March 2018 by raising concerns about colleagues not following national standards of practice relating to urogynacecology;

3.1.1.2 In an email and letter to the Medical Director on 8 th July 2019 by reiterating the concerns raised above which had worsened;

3.1.1.3 In an email on 3rd September 2017 to Mr Tosin Ajala by raising concerns about the number of patients whom the claimant had cancelled because they had been booked in for invasive procedures where there was no clinical indication that such procedures were necessary.

3.1.1.4 In emails dated 28th August and 6 th September 2019 relating to an incomplete operation on a patient which had to be repeated.

3.1.1.5 In an email dated 8th February 2021 to the respondent's Chief Medical Officer, Medical Director, Divisional Director, Clinical Director and Deputy Medical Director of Standards and Revalidation, raising concerns about the practice of a colleague.

3.1.1.6 In an email dated 6th April 2021 sent to same as in 3.1.1.5 above highlighting failings of two colleagues

3.1.1.7 In an email dated 4th February 2021 to the same as in 3.1.1.5 above regarding unsafe gynaecology practices of colleagues.

3.1.1.8 In an email dated 19th December 2021 in an email to the respondent's Divisional Director and Clinical Director regarding serious failings the night before leading to patient needing emergency treatment.

3.1.1.9 Email to Ryan Watkins dated 31 January 2022 relating to not updating handover information relating to a patient who had died 11 days earlier.

3.1.2 Did he disclose information?

3.1.3 Did he believe the disclosure of information was made in the public interest?

3.1.4 Was that belief reasonable?

3.1.5 Did he believe it tended to show that:3.1.5.1 a person had failed, was failing or was likely to fail to comply with any legal obligation;

3.1.5.2 the health or safety of any individual had been, was being or was likely to be endangered;

3.1.6 Was that belief reasonable?

3.2 If the claimant made a qualifying disclosure, it was a protected disclosure because it was made to the claimant’s employer.

[4]Direct race discrimination (Equality Act 2010 section 13)4.1 Did the respondent do the following things:4.1.1 Did Dr Usifo criticise, blame and undermine the claimant in a series of emails beginning on 15 th June 2021 relating to a patient who had been booked for an emergency laporoscopy that were copied to several people?

4.1.2 On 29th September 2021, did Mr Usifo criticise the claimant for passing on information to a white consultant colleague, Mr Utting, which Mr Usifo had asked the claimant the previous day to provide but then denied having done so?

4.1.3 On 30th June 2021, following a meeting that happened on 18 th June 2021 , did the respondent treat the claimant less favourably in comparison to a white colleague (Mr Utting) by changing all the claimant's elective sessions into on call and not giving him sufficient time off to prepare his defence to the clinical and conduct investigation?

4.1.4 Make the claimant cover the rota on 2nd July 2021 and, by doing so, impose on him a disproportionate workload in comparison with white colleague, Rebecca Mallick?

4.1.5 In emails between Mr Usifo, the claimant and Heather Brown on 2nd September 2021, did Mr Usifo treat the claimant differently in comparison with how he treated Heather Brown, in that he thanked Heather Brown for raising concerns about a white middle grade doctor and ignored the concerns raised by the claimant?

4.1.6 Did Mr Usifo ignore concerns raised by the claimant in an email dated 29th November 2021 about a white middle grade not carrying the gynaecology bleep or transferring it to the other maternity bleep, whilst thanking Heather Brown for her email?

4.1.7 Did Mr Usifo ignore the claimant's complaint dated 7th September 2021 about a white middle grade who was meant to be on call from 9am-5pm? The claimant relies on Heather Brown again as his comparator.

4.1.8 In an email of 19th February 2022, did Mr Usifo accuse the claimant of going behind his back and criticise him in relation to an email which the claimant had sent to a manager on 14th February 2022 about re-stocking a particular device?

4.1.9 By commencing an investigation into the claimant on 6 June 2021?

4.1.10 By dismissing the claimant on 28 March 2022?

4.1.11 By delaying the hearing of his appeal against dismissal?

4.1.12 By raising new matters at the appeal stage?

4.2 Was that less favourable treatment? The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether he was treated worse than someone else would have been treated.

4.3 If so, was it because of race?

4.4 Did the respondent’s treatment amount to a detriment?

[5]Holiday Pay (Working Time Regulations 1988) Respondent to add

[6]Unauthorised deductions from wages Respondent to add

[7]Breach of contract7.1 Did this claim arise or was it outstanding when the claimant’s employment ended?

7.2 Did the respondent do the following: 7.2.1 Breach any or all of paragraphs 5, 9 to 13, 17, 19 and 20 of a COT3 entered into between the parties?

7.3 Was that a breach of contract?