Dr S Nzekwue v Ashford and St Peter’s Hospitals NHS Foundation Trust and Others: 2304981/2022

EMPLOYMENT TRIBUNALS

Case No 2304981/2022

Between

Dr S NzekwueClaimant

1) Ashford and St Peter’s Hospitals NHS Foundation Trust 2) Dr T Lawson 3) Dr V Ponnusamy 4) Dr S Edwards RECORD OF A PRELIMINARY HEARINGRespondent

Before

Employment Judge Burge

Mr A Korn (instructed by Counsel) for claimant

Ms D van den Berg for respondent

Date 13 February 2026

JUDGMENT

It is the Judgment of the Tribunal that the following complaints are dismissed upon withdrawal:

[1]The complaint of protected disclosure detriment; and

[2]Allegations 8(f), (g) and (j) in the Agreed List of Issues.

[1]None of the complaints of discrimination against first, second, third or fourth respondent are well-founded. They do not succeed.

[2]None of the complaints of victimisation against the first second third or fourth respondent are well-founded. They do not succeed.

[3]The complaint of constructive unfair dismissal if not well-founded. It does not succeed. Approved by: F Mclaren JUDGMENT having been sent to the parties on 24th February 2026 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided: Background

[1]The claimant was employed by the first respondent as a consultant in neonatology between 1 June 2021 and 30 June 2023. The claimant was one of 10 neonatal consultants which included the second, third and fourth respondent. The Neonatal Consultants' roles involve clinical and managerial duties including attending handovers, leading comprehensive ward rounds and identifying any clinical concerns and addressing these.

[2]The claim is about events which the claimant says began when she raised concerns about the way in which she was treated which she considered to be acts of race discrimination. On her case she expressly used this language. Despite raising these terms, the claimant says that the respondents failed to characterise her complaints as relating to discrimination.

[3]From 20 April 2022 the claimant says there was then an escalation of clinical incidents involving her. Other neonatal consultants were not treated in the same way. The claimant was subjected to a clinical incident investigation in circumstances where the claimant says the respondent did not believe she had committed any act of misconduct. Further there was a protracted delay in carrying this investigation out.

[4]The claimant raised complaints about the respondents’ discriminatory treatment of her including a delay in dealing with these and the conclusion failing to adequately address the complaints of race discrimination. As a result of all these matters the claimant resigned as she considered the respondent had acted in fundamental breach of her contract.

[5]All of the respondents deny the allegations of discrimination. The respondent’s perspective is that from an early point in the claimant’s employment by the first respondent concerns were raised about her clinical decisions. There were informal conversations about this. However, the decision was taken to carry out a Maintaining High Professional Standards (MHPS) investigation because of the number of these incidents. The second and third individual respondents state that they were unaware of the nature of the complaints made against them and their part in raising clinical concerns was nothing to do with the complaints raised by the claimant about them. The fourth respondent was made aware of the complaints of discrimination but these did not influence the decision to investigate the incidents.

[6]The claimant is making the following complaints:• Direct race discrimination.

• Victimisation under the Equality Act

• Constructive unfair dismissal

[7]We heard evidence from the claimant on her own behalf For the respondent we heard from.• Dr James Thomas, Consultant Obstetrician and Gynaecologist and Divisional Director for Women’s Health and Paediatrics at all times relevant to this claim.

• Dr Maria Samantha (known as Sam) Edwards, the Fourth Respondent, Consultant Neonatologist and Clinical Lead for the Neonatal Intensive Care Unit(‘NICU’) from October 2020 to November 2022. She was the Claimant’s line manager.

• Dr Tracy Lawson, the Second Respondent, Consultant Neonatologist and Clinical Governance Lead.

• Dr Vennila Ponnusamy, the Third Respondent, Consultant Neonatologist and Clinical Lead for NICU.

• Dr Tosin Otunla, Consultant Neonatologist and the Claimant’s mentor.

• Mr Shashidhar Irukulla, Consultant Upper GI and Bariatric Surgeon, Deputy Medical Director and Interim Medical Director from January to April 2022.

• Dr David Fluck, Consultant Cardiologist, Medical Director and Responsible Officer; also Acting Chief Executive from January to May 2022 during which time Mr Irukulla acted as Medical Director on an interim basis.

[8]We were provided with a bundle of 3022 pages. An additional set of papers was added by the claimant an the morning of day 3 ( which we accepted as the respondent did not object ) taking the total number of pages to 3162.

[9]The findings of fact set out below were reached by the tribunal on a balance of probabilities, having considered all the evidence given by witnesses during the hearing, including the documents referred to by them, and taking into account the tribunal’s assessment of the witness evidence.

[10]Only findings of fact relevant to the issues, and those necessary for the tribunal to determine, have been referred to in this judgement. It would not be necessary, and neither would it be proportionate, to determine each and every fact in dispute. If the tribunal has not referred to every document it has read and/or was taken to in the findings below, that does not mean it was not considered if it was referred to in the witness statements/evidence. Preliminary applications

[11]We were asked to consider three preliminary applications. One related to the word count on the respondents’ statements and there were then two separate applications to amend the pleadings by the claimant. Reconsideration of the word count

[12]The first to be considered was a request by the respondent for reconsideration of the decision by Employment Judge Wright made on 26 January refusing the respondents request to extend the word count on the respondent’s witness statements.

[13]The history of the matter was this. On 3 February 2025 EJ Lumby, when making case management orders, had prescribed a maximum length of witness statements. The anticipated six witnesses for the respondent were limited to 22,000 words. The claimant was similarly limited to 22,000 words for all witnesses that she wished to bring.

[14]On 19 January 2026, witness statements having only recently been finalised after a number of agreed extensions to accommodate the claimants requests, the respondent made an application to extend the word limit from 22,000 to 26,000 words. The respondent set out its reasons for this request. At the time the order was made it anticipated there would be six witnesses, there were now seven. The claim involves 13 alleged detriments and seven protected acts additional words been required to properly address the numerous allegations of sensitive factual background.

[15]It was this request that was refused on 26 January on the basis that the respondent had known of the word limit since 4 February 2025 and the application was made only nine working days before the tribunal hearing.

[16]We heard submissions from both parties. Mr Korn, on behalf of the claimant confirmed that he had understood the application was to add additional evidence beyond the witness statements that had already been served. He had already done his preparation on the basis of the served statements which are over the word limit.

[17]We accept that we can only reconsider a decision where there has been a material change of circumstances or a material omission. In this case we accept Ms Criddle’s submission that at the time Judge Wright made her decision the adjustments for the claimant were not known. It has now been confirmed that she needs additional adjustments to assist her with processing with documentary evidence. This is a change in circumstances.

[18]We also accept Ms Criddle’s submissions that there is no prejudice to the claimant if the documents over the word limit are accepted. The contrary is in fact the case. If they were not allowed to stand as already served then time would need to be spent identifying which words or sections to remove in each one of the respondent’s witness statements, a new set of documents would have to be served and the claimant would have to be prepared to respond to a new set of witness statements, albeit covering most of the same ground but not all parts would be there. This would create a complexity for the claimant. It would also use up tribunal time and would jeopardise the completion of his hearing within the trial window.

[19]We also accept that having the same word limit for seven witnesses as for one puts the respondent at a disadvantage. We also accept that the tribunal will benefit from a clear explanation of the clinical issues involved and it is very difficult to set that out when constrained by word count. Ultimately the extra word count requested amounts to around six pages. They are spread across all the documents and the claimant’s Counsel has confirmed he is ready and able to deal with them in their current form. For these reasons we feel that it would be prejudicial to the respondent not to agree the extension of the word limit. In these circumstances when the preparation has been done on the extended statements e also conclude it would also be prejudicial to the claimant if we did not agree the extension of this word limit and let the witness statements stand as exchanged.. First application to amend

[20]The claimant also had two outstanding amendment applications. The first was made in writing on 6 November 2025. It followed a dispute resolution appointment heard on 4 November when Employment Judge Burge brought the parties attention to the fact that injury to health, while it appeared in the issues list, was not pleaded. This application was to expressly add a claim for personal injury.

[21]We considered the written application and submissions made on behalf the claimant. In essence it was submitted that this was not a substantial amendment. It was set out in the list of issues and schedule of loss and respondent was therefore on notice of it and had never objected. The issue of causation could be addressed in evidence after the liability hearing. There was no date for a remedy hearing and therefore there would be sufficient time to prepare any relevant medical evidence or other disclosure. There would however be substantial prejudice to the claimant if she was not permitted to pursue this as it would deprive her of a significant part of her claim were she to succeed.

[22]The respondent’s submissions set out that this claimant had been represented by her Counsel and solicitor from the outset. This was the fourth amendment. The schedule of loss and list of issues are not pleadings and personal injury was clearly not pleaded in the original claim form. Further this was a very late amendment with no real explanation being given for why it had not been made earlier, particularly considering that other amendment applications had been made. This was a significant amendment and it would be prejudicial to the respondent as preparation for a remedy including personal injury required significantly more evidence. Further the claimant would not be prejudiced as she was able to pursue her claim for injury to feelings which she had always set out. Second application to amend

[23]The second application was to amend the pleadings effectively to extend the time period of the escalation of matters against the claimant from 21 March to 22 September. Issues of escalation were already pleaded and what was requested was an extension to paragraph 7H. This would also mean that there was an additional claim for victimisation arising out of ongoing escalations.

[24]The application was made on the last working day before this hearing began. The explanation given was that counsel had not seen copies of the documents until two weeks previously. It was submitted that it would not extend the hearing length. The tribunal would already have to hear issues of the claimant’s competence which is given by the respondent as an explanation for the escalations. This evidence was set already been addressed in the witness statements. There would be no additional time required.

[25]It was accepted that the claim was out of time, the issue of jurisdiction is already being addressed by the tribunal as one of the issues in this case. It would prejudicial to the claimant because she could not pursue victimisation direct discrimination case to the full extent.

[26]The application was opposed on the basis that, again this was the fourth amendment made at an extremely late point. On behalf the respondent it was submitted that no good explanation have been given for this delay. No explanation been given for why the claim was made out of time.

[27]Counsel for the respondent questioned whether not the amendments were in fact adding anything. If they were not then they should be dismissed. If they were attempting to add a new issue then this was a significant one. It extended the scope of the complaint considerably and pulls it back to 21 March. That is not the pleaded claim.

[28]The respondent’s witness statements have been prepared on the basis of the pleadings. To allow this amendment now would severely prejudice the respondent. It’s witnesses would have to deal with entirely new matters at this very late stage. There would be no prejudice for the claimant who could still pursue her existing claims for escalation and her existing claim for direct discrimination. Relevant law

[29]An application to amend is an application for a case management order. Rule 31 of the Employment Tribunal Rules of Procedure provides: Applications for case management orders 31.—(1) A party may apply for a case management order at a hearing or by sending a written application to the Tribunal. (2) Where a party makes a written application under paragraph (1) they must notify the other parties that any objections to the application should be sent to the Tribunal as soon as possible. (3) The Tribunal may deal with an application made under paragraph (1) in writing or order that it be dealt with at a preliminary hearing or final hearing.

[30]The discretion must be exercised in accordance with the Overriding Objective and “in a manner which satisfies the requirements of relevance, reason, justice and fairness inherent in all judicial discretions”:( Selkent Bus Co v Moore

[1996] IRLR 661

). The relevant legal principles

[31]Guidance as to the main factors that shed light on the balance of injustice when considering an application to amend where set out in Selkent. In Abercrombie and others v Aga Rangemaster Ltd [2014] ICR it was emphasised that the guidance in Selkent's case was not intended as prescribing some kind of a tick-box exercise. It is simply a discussion of the kinds of factors which are likely to be relevant in striking the necessary balance. Case law, together with the Presidential Guidance on General Case Management for England and Wales on amendments identifies the following considerations. Nature of the proposed amendment;

[32]The Presidential Guidance, draws a distinction between amendments seeking to add or substitute a new claim arising out of the same facts as the original claim and those which add a new claim entirely unconnected with the original claim.

[33]In considering applications to amend which arguably raise new causes of action the focus should not be on questions of formal classification but on the extent to which the new pleading is likely to involve substantially different areas of enquiry from the old: the greater the difference between the factual and legal issues raised by the new claim and by the old, the less likely it is that the amendment will be permitted.

[34]In order to determine whether the amendment amounts to a wholly new claim, as opposed to adding or substituting a new cause of action linked to or arising out of the same facts as the original complaint, it will be necessary to examine the case as set out in the Claim to see if it provides a causative link with the proposed amendment. The entirety of the Claim form must be considered.

[35]This should be considered first, before any time limitation issues are brought into the equation, as it is only necessary to consider the question of time limits where the proposed amendment in effect seeks to adduce a new complaint, as distinct from ‘relabelling’ the existing claim. Timing and whether time should be extended pursuant to the statutory test

[36]Time limits are required to be considered where there are entirely new claims unconnected with the original claim as pleaded. It is essential for the tribunal to consider whether that claim or cause of action was out of time and, if so, whether the time limit should be extended. The timing and manner of the application.

[37]In Ladbrokes Racing Ltd v Traynor EATS 0067/06 the EAT gave guidance as to how a tribunal may take account of the timing and manner of the application in the balancing exercise. It will need to consider:• why the application is made at the stage at which it is made and why it was not made earlier ,whether, if the amendment is allowed, delay will ensue and

• whether there are likely to be additional costs because of the delay or because of the extent to which the hearing will be lengthened if the new issue is allowed to be raised, particularly if these are unlikely to be recovered by the party that incurs them; and

• whether delay may have put the other party in a position where evidence relevant to the new issue is no longer available or is rendered of lesser quality than it would have been earlier. The balance of hardship the hardship and injustice of allowing the amendment against the injustice and hardship of refusing it.

[38]In Vaughan v Modality Partnership

[2021] IRLR 97

the EAT confirmed that the core test in considering applications to amend is the balance of injustice and hardship in allowing or refusing the application. The parties must therefore make submissions on the specific practical consequences of allowing or refusing the amendment. This requires a focus on reality rather than assumptions. It requires representatives to take instructions, where possible, about matters such as whether witnesses remember the events and/or have records relevant to the matters raised in the proposed amendment. Representatives have a duty to advance arguments about prejudice on the basis of instructions rather than supposition. They should not allege prejudice that does not really exist.

[39]Where they do not do so, it will be difficult for them to challenge a judgment on the basis that the balancing exercise has not been carried out correctly.

[40]In summary it is vital to appreciate that, whichever ‘type’ of amendment is proposed, the core test is the same: the tribunal must review all the circumstances, including the relative balance of injustice, in deciding whether or not to allow the amendment Conclusion on Amendment Applications

[41]The first application in relation to remedy. We considered the factors as identified above. A claim for personal injury is not pleaded. We take the view that this is a significant amendment.

[42]It is made at a very late stage with no real explanation as to why. The claimant had the same legal team throughout and has made a number of previous amendments but has omitted to make this one. To argue that it was referred to in a schedule of loss is not adequate .Represented parties understand the difference between these documents and pleadings.

[43]We accept that this hearing is to decide liability only and therefore there is an opportunity for evidence to be gathered and the parties to prepare for any remedy hearing. In that sense allowing this amendment will not delay this hearing. In this case the impact of the delayed application, is relatively small. Nonetheless there is some.

[44]We accept, however, that, not having the medical evidence that would be required, while not strictly relevant for cross-examination relation to liability, could be prejudicial to the respondent who are not able to ask questions that could be relevant to this process.

[45]We have balanced the weight of prejudice against each party. We conclude that while not allowing the amendment does deprive the claimant of an additional remedy, however, she is still able to pursue her claim for injury to feelings .She is not therefore denied a remedy.

[46]The respondent, however, would be prejudiced in the sense that, notwithstanding that these resources have yet to be spent, preparing for a personal injury claim will involve significant additional cost and likely add to the length of any hearing being listed. It has been denied the opportunity to consider other outcomes which may have been a consideration if the potential liability had been higher. On balance we are therefore refusing this application as we consider the weight of prejudice is in the respondent’s favour.

[47]The second application to expand the claim of escalation. We find that this is an amendment. It is not a mere relabeling. It is adding a new separate claim for victimisation. It is expanding the scope of the direct discrimination claims. In terms of timing, again this application is made at a very late stage. The respondent, having finalised its case would, if the amendment were accepted, now be facing an expanded claim and having to deal with it at extremely short notice with little ability to prepare. The claimant has been represented by the same legal team throughout and there is no good reason given as to why this application could not been made in a more timely way to avoid this.

[48]We are concerned that allowing this amendment would expand the amount of evidence required and therefore put at risk the length of this hearing. We are satisfied that in order to address the point evidence would be required which would not necessarily be covered in the existing witness statements.

[49]While the claimant would suffer some prejudice from not being able to expand her claim by adding these further matters, she already has existing claims of direct discrimination and victimisation. The respondent, on the other hand, is prejudiced by its inability to have properly prepared for the case. On balance we conclude that the prejudice is greater for the respondent and we therefore refuse this amendment. Issues

[50]The issues had been agreed by the parties prior to this hearing. Following the unsuccessful Amendment applications the agreed issues list was accepted as final with one further amendment that was the removal of paragraph 22C.

[51]The parties agreed that the matters the tribunal was to consider were as set out below. We have not set out the agreed issues on Remedy as this a hearing to determine liability only. JURISDICTION (TIME LIMITS) 1. In respect of her claims against each of the Respondents, the Claimant contacted ACAS on 24 November 2022 (‘Day A’) and was issued with an ACAS Early Conciliation certificate on 28 November 2022 (‘Day B’). An ET1 was submitted to the Tribunal on 28 December 2022. Any allegations or claims relating to matters which occurred before 25 August 2022 are prima facie out of time. 2. The Claimant made an application to amend her claim on 4 September 2023 to include a claim for constructive unfair dismissal. The Claimant resigned on 7 June 2023 and her EDT was 30 June 2023. Her claim for constructive unfair dismissal was accordingly brought for the purposes of limitation on 4 September 2023 and is in time. 3. For the claims under the EqA 2010:a. To the extent that any of the complaints are out of time, do they amount to conduct extending over a period, with the last act being in time? (s.123(3)(a) EqA 2010)

b. If not, would it be just and equitable for the Tribunal to extend time DIRECT RACE DISCRIMINATION 4. The Claimant identifies as being Black of Ibo ethnicity and Nigerian origin. 5. Did the Respondents subject the Claimant to the following treatment? a. On 21 March 2022, the omission of “discrimination” and the discussion about the Claimant being subjected to discrimination, intimidation, character assassination by Respondents 2-3 in the Fourth Respondent’s summary of the meeting with the Claimant on 21 March 2022 [R1/4]; - Actual comparators, Second and Third consultants who are not of the same ethnic original and nationality as the Claimant’. b. On 11 April 2022, the omission of “discrimination” or the discussion of the Claimant feeling she was being subjected to discrimination, intimidation, character assassination by Respondents 2-3 in Mr James Thomas’ email of the summary of the meeting on 31 March 2022 [R1]; - Actual comparators, Second and Third Respondent and/or hypothetical – ‘other neonatal consultants who are not of the same ethnic original and/or nationality as the Claimant’.

c. On or about 28 April 2022, the Respondents’ escalation of the clinical incidents involving the Claimant and/or without the Claimant being asked to provide her account and without being given an opportunity to explain the circumstances, as would have been expected in the Datix/SIRI process [R1/R2/R3/R4]; - Actual comparator, Second consultants who are not of the same ethnic origin and/or nationality as the Claimant’. [The Respondent’s position is that R2 cannot be appropriate actual comparators for acts of discrimination which are alleged to have been carried out by R2/R3]

d. The Claimant being denied the opportunity to provide information on the clinical incidents which were escalated to Mr Irukulla until June 2022, after the Claimant met with Mr Irukulla on 3 May 2022 and complained about this [R1]; Actual comparator, Second Respondent and/or hypothetical comparator who was not of the same ethnic origin and/or nationality as the Claimant.

e. On or around 3 May 2022, the Second and Third Respondents’ complaint about the Claimant’s performance and behaviour [R1/R2/R3]; - Actual comparators Second and Third Respondent and/or hypothetical comparator – ‘other neonatal consultants who are not of the same ethnic origin and nationality as the Claimant’. [The Respondent’s position is that R2/R3 cannot be appropriate actual comparators for acts of discrimination which are alleged to have been carried out by R2/R3]

f. The inaction and/or delay in dealing with the Claimant’s complaints about the Respondents since 21 March 2022 under the First Respondent’s policies and procedures [R1]; - Hypothetical comparator as defined above

g. The First Respondent’s failure to investigate the Claimant’s complaints/grievances properly or at all [R1]; - Actual comparators, defined above.

h. The Respondents subjected the Claimant to a clinical incident investigation in circumstances when they did not believe the Claimant had committed any act of misconduct because she was asked for her comments on the incident on 22 September 2022, more than 5 months after the clinical incidents- Actual comparators, defined above. [The Respondent’s position is that R2/R3 cannot be appropriate actual comparators for acts of discrimination which are alleged to have been carried out by R2/R3]

i. The Respondent’s action of subjecting her to an MHPS investigation and the protracted delay in the investigation is discriminatory [R1]; and - Actual comparators, Second and Third Respondents and hypothetical comparator as defined above.

j. The decision to subject the Claimant to an MHPS investigation whilst Respondents 2-4 have not been subjected to the same proceedings amounts to racial discrimination [R1]; - Actual comparators, Second and Third Respondents and hypothetical comparator as defined above.

k. Protracted delay in carrying out the MHPS investigation [R1]; - Actual comparators Second and Third Respondent and hypothetical comparator as defined above.

l. Constructively Dismissing the Claimant [R1]; and

m. By upholding complaints, in whole or in part, against the Second (complaints 3,4, 5, 6 and 9) and Third Respondent (complaints 4, 8 and 15 including a complaint of victimisation) but concluding that there was no evidence of discriminatory behaviour, Dr Fluck failed to address or failed to adequately address the Claimant’s complaints of race discrimination and/or harassment and thereby either consciously or sub-consciously discriminated against the Claimant because of her race. [R1]. The Claimant relies on a hypothetical comparator who was not of the same ethnic and/or national origin as herself. 6. Was any of that treatment “less favourable treatment”, i.e. did the Respondents treat the Claimant as alleged less favourably than they treated or would have treated the comparator(s)? The Claimant relies on the actual comparators and/or hypothetical comparators set out above. 7. If so, did the Respondents treat the Claimant less favourably because of the Claimant’s race? 8. Did the Claimant do a protected act? The Claimant relies on the following as amounting to a protected act (the Claimant has set out the protected acts relied upon within her Further and Better Particulars of Claim dated 30 July 2024): a. 12 March 2022: Claimant had discussions with Dr Tosin Otunla via phone on how she was being treated differently and less favourably by R2 and R3, set out fully in the Claimant’s response to the Request for further information dated 30 July 2024, compared to other Neonatal Consultants and that she believed this was because of her race. b. 21 March 2022: Claimant had an informal meeting with R4 and Dr Tosin Otunla during which, and in a subsequent email dated the same day, the Claimant discussed being subjected to disrespect, blunt, condescending and demeaning behaviour. The Claimant informed them during this meeting that she was being treated differently and less favourably by R2 and R3, set out fully in the Claimant’s response to the Request for further information dated 30 July 2024, compared to other Neonatal Consultants and that she believed this was because of her race. c. 24 March 2022: Claimant’s email to James Thomas, R4 and Dr Tosin Otunla requesting to have a meeting with them to discuss her informal complaint of discrimination, intimidation and character assassination. d. 31 March 2022: Claimant attended a meeting with James Thomas and Dr Tosin Otunla to discuss her past and ongoing treatment at work by R2 and R3. The Claimant complained she was being treated differently and less favourably by R2 and R3 and that she believed this was because of her race, set out fully in the Claimant’s Response to the request for further information dated 30 July 2024. e. 3 May 2022: Claimant attended a meeting with Shashi Irukulla and Kate Clarke where she explained how she was being treated differently and less favourably by R2 and R3 because of her race, set out fully in the Claimant’s response to the Request for further information dated 30 July 2024. f. 27 November 2022: Claimant’s formal complaint of discrimination, intimidation, character assassination, bullying, harassment and victimisation against R2 and R3. g. 6 December 2022: Claimant’s email to Dr David Fluck and Kate Clarke including a list of her complaints. 9. Did the Respondents subject the Claimant to the detriments set out at paragraph 9 (a)-(j) above? 10. If so, was the Claimant subjected to that detriment because she had done a protected act? 11. The Claimant claims that the Respondent acted in fundamental breach of contract in respect of the implied term of mutual trust and confidence and/or in breach of the implied term to investigate a grievance and/or to investigate a grievance in a timely manner. The Claimant relies on the following in support of her complaint that the First Respondent breached the implied duty of trust and confidence either individually or cumulatively namely: a. The decision to subject the Claimant to an MHPS investigation whilst Respondents 2-4 have not been subjected to the same investigatory proceedings; b. The failure to investigate the Claimant’s grievance and/or to investigate a grievance in a timely manner and protracted nature of the investigation; and c. The matters set out in paragraph 7(b) to (e) which cumulatively or individually entitled the Claimant to resign. 12. Did the matters at para 11 (a)-(c) amount to a breach of the implied term of trust and confidence? If so, was the breach fundamental? 13. Did the matters at para 11(b) amount to a breach of the implied term to investigate a grievance and/or to investigate a grievance in a timely manner? If so, was the breach fundamental? 14. The Tribunal will need to decide: a. Whether the First Respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the Claimant and the First Respondent; b. Whether it had reasonable and proper cause for doing so. 15. If so, did the Claimant resign because of the breach(es)? 16. Did the Claimant affirm the contract before resigning on 7 June 2023? Finding of facts Background

[52]While the claimant was appointed as a consultant in neonatology in February 2021, her employment with the first respondent began on 1 June 2021. This was her first substantive consultant post.

[53]The claimant joined a team which included the individual named respondents. The fourth named respondent, Dr Edwards was the Clinical Lead within the Department at the relevant time. Dr Lawson, the second named individual respondent was the Neonatal Clinical Governance Lead responsible for overseeing the trusts quality and safety framework. She was also the deputy college tutor and was responsible for education and training of the neonatal medical teams. The third named respondent, Dr Ponnusamy, was the Clinical Lead for the Neonatal Intensive Care Unit.

[54]At the relevant times Dr Edwards was line manager for all of the consultants and so was the claimant’s line manager. Dr Thomas was the Divisional Director and Dr Edwards reported to him. Mr Iirukulla was Interim Medical Director from January 2022 until the end of April 2022. Dr Fluck, who had been acting up as Chief Executive between January and May 2022, returned to his role as Medical Director in May 2022. Dr Fluck was the Responsible Officer for the first respondent throughout the period of the claimant’s employment.

[55]It is accepted that the neonatal consultants had worked together for some time before the claimant joined the team and were generally on good terms with each other. All agreed that the first respondent had a particular culture in the way it did things. This was referred to as the “St Peter’s way”. It was accepted that there are other ways of doing things but the unit prides itself on being non-invasive compared to other neonatal units. We understand references to culture made by the witnesses in this case to be a reference to that workplace culture, “the St Peter’s way” and not to differences in culture based on ethnic origin. The respondent’s policies and practices on investigations and medical guidance

[56]We were taken to a number of policies and other documents which it was agreed were relevant to the claimant’s employment. This included the General Medical Council booklet on Good Medical Practice. The claimant accepted that these guidelines include an obligation to promote and encourage a culture that allows all staff to raise concerns openly and safely. The claimant accepted this was part of her obligation as a doctor.

[57]She also accepted that it was part of the obligations of a doctor to take prompt action if patient safety, dignity or comfort is or may be seriously compromised. She understood that that means that if there are any concerns that patients are at risk that concern must be raised in line with GMC guidance and the doctors own workplace policy. The claimant understood that this applied not only to her, but all doctors and therefore applied to both Dr Ponnusamy, Dr Lawson and Dr Edwards.

[58]The claimant also understood that it was an obligation that if a doctor knew or suspected that their performance could be affected by a condition, they must consult a suitably qualified colleague and must not rely on their own assessment of the risk to patients. The claimant accepted that this in effect meant the doctor must not practice if they are not well enough to do so and they must not rely on their own judgement in reaching this conclusion.

[59]We understand that in order to meet those obligations the first respondent has a number of policies in place. These include the policy for reporting and management of incidents. We were taken to a number of parts of this policy and note that under the heading” incident review (not SI, never events or concise)” the policy requires all incidents to be investigated within 10 working days unless declared as a serious incident or concise investigation.

[60]It was agreed that when a clinical incident occurs an incident report known as a Datix is completed. It was Dr Edwards’ unchallenged evidence that a Datix is also used where a near miss has occurred or where an audit trail is required for monitoring purposes. Again it was her unchallenged evidence that the practice of the first respondent is that where an incident has involved harm, or there has been a near miss, a neonatal consultant is allocated the case and performs a rapid review.

[61]It was agreed that this process includes gathering information from clinical notes and interviewing and/or gathering statement from those involved in the case. Lessons learned are then sent out to the whole team. A rapid review round table meeting would be arranged with all involved in attendance. Following that, the clinical governance team would decide on whether or not the matter needed to be escalated to a serious incident requiring investigation. For the first respondent the clinical governance team included Dr Lawson.

[62]A serious incident requiring investigation (SIRI) is a nationally mandated program. It is used where something very serious has gone wrong. It is a panel decision by senior members at divisional leadership level if they feel there is a significant concern about harm or evidence of that to raise such process. Such a process must, however, be instigated where there is a never event. The outcome is reported nationally.

[63]There are other processes that are also used. There is a nationally mandated process where a death occurs when a Perinatal Mortality Review Tool (PMRT) is undertaken. This involves an investigation and a report is generated which is shared nationally. Dr Edwards’ evidence was that all consultants involved have access to an online system which allows them to review an evolving PMRT report that is being prepared was not challenged.

[64]The first respondent may also call for a Divisional Investigation. This is one step down from SIRI as the reporting does not go external to the trust. Dr Edwards told us that the manner of investigations and reporting is, however, very much like an SIRI report.

[65]We understand that the intention of all of these processes is not intended to be punitive but to identify where things could have been done differently to improve processes. The reason for such investigations is set out in the aims section of the policy for reporting and management of incidents. That clearly states that the first respondent supports an active approach to managing incidents and places emphasis on lessons learnt rather apportioning blame. It goes on to say that there may, however, be occasions when the disciplinary policies will need to be considered. The claimant understood that this was the position. She was aware of the fact that a case is investigated as an incident did not prevent the possibility of a disciplinary process. Conduct and capability matters

[66]We were also taken to the conduct, capability, ill-health and appeals policies and procedures for practitioners which included doctors. The introduction to this policy identifies that it has been put in place in order to comply with maintaining a high professional standards (MHPS). Where concerns of substance have been raised

[67]This section specifies that if an employee had a concern about the conduct or capability of the practitioner or a patient they must immediately report it to their line manager. It is for the line manager to urgently notify such concern to the chief executive or medical director. Common sense is to be applied as to whether such concerns need to be reported. If a line manager is in any doubt they should err on the side of caution. The claimant accepted that her line manager was Dr Edwards and the medical director was Dr Fluck, and while he was acting up, Mr Irukulla.

[68]The second step where a concern has been raised with the chief executive is that he/she must ensure that a case manager is appointed. That case manager must be the medical director where the concern relates to a consultant. That case manager must carry out a preliminary assessment to establish the nature and seriousness of the concern whether it is necessary to appoint a case investigator to carry out a full investigation.

[69]The policy provides a time limit for carrying out the investigation. The case investigator is to complete the investigation within four weeks of their appointment and submit the report to the case manager with a further five working days. In circumstances where a case investigator cannot meet the four-week target this must be notified in writing to both the case manager and the individual being investigated explaining the reasons why with revised timetable being provided.

[70]The case investigator has a wide discretion into how investigations should be carried out provided the facts are established in an unbiased way and he or she adheres to the terms of reference.

[71]Where a concern is raised the possibility of restrictions on practice or exclusions must be considered The capability procedure

[72]The same policy contained the capability procedure. The specified that wherever possible capability should be resolved through ongoing assessment, retraining and support. If concerns could not be resolved routinely by management then the practitioner performance advice (PPA) must be contacted for support and guidance before the matter can be referred to a capability panel. Dignity at work policy

[73]This policy set out the process for raising concerns about bullying and harassment. It started with stage I informal. It suggested that in many cases it was sufficient for the recipient to raise the problem of the person they think is harassing or bullying. That can be done either verbally or in writing.

[74]The formal procedure is used at the request of the complainant where they can show the informal resolution has not worked, would be unlikely to work, or the issue was so serious that the informal procedure is not appropriate. The complaints are to be put in writing to the line manager who will contact HR for advice. The policy provides that when formal action is to proceed the medical director and investigation team will be nominated to carry out investigations.

[75]The claimant accepted that the policy does not provide for an investigation before a formal written complaint is made. The complaints raised by the claimant June 2021 – December 2021

[76]When she joined the first respondent Dr Otunla, a consultant neonatologist who had been employed by the first respondent since 2005, became her informal mentor. Dr Otunla is British Nigerian.

[77]It was the claimant’s evidence that she began to experience difficulties in the way which was spoken to during handovers by Dr Lawson and Dr Ponnusamy. In the log that the claimant prepared she records an incident on 4 June 2021 with Dr Lawson when she records that Dr Lawson was not keen for the claimant to undertake a particular procedure. On 18 June the claimant records that Dr Lawson made snide comments to her in relation to the insertion of cannula in a sick baby. On 16 August the log records that Dr Lawson started bullying and harassing her to stay in the staffroom while she had her breakfast. On 19 August the log records that Dr Lawson intimidated and harassed her by raising her voice for leaving a meeting that she was leading when the claimant needed to go and put in some eyedrops. On 20 August the log records that she was criticised shouted at and bullied by Dr Lawson for asking her colleague and mentor for an opinion regarding a particular case.

[78]In relation to Dr Ponnusamy, the log records being given a negative and opinionated response in public on 13 June. The claimant records been criticised shouted at and discredited and disrespected in public relation to a plan for a lumbar puncture for baby HB. She records from 16 June she received blunt and condescending remarks regarding suggested antibiotics for a baby. On 7 June the claimant’s log records an incident with contact from a colleague from Kings College Hospital. The claimant records that when she updated Dr Ponnusamy she made insidious comments stated she had also contacted colleague who chose not to confide in the claimant really but in her as she had known colleague longer. In this log the claimant refers to this as bullying and harassment but does not set out that she believes it is discrimination.

[79]None of these incidents as recorded in this document use the words discrimination or racism. There is some reference to harassment and intimidation. On the balance of probabilities we find that if she had read this list out or described the incidents without reading the list she would have done so in similar terms. That is she would describe incidents which sound like allegations of bullying but she would not and did not use language which would suggest that these were acts of discrimination and in particular were acts of race discrimination.

[80]The claimant said that on 11 September 2021 she had a discussion with her assigned mentor about these matters. She explained that she told him that she had been spoken to in rude and condescending tone during handovers in the presence of colleagues that clinical decisions were being criticised in front of colleagues and parents. The claimant’s witness statement said that she had told him that she did not see the second or third respondent behaving the same way to other consultants andthat she believed it was because of her race.

[81]Dr Otunla did not recollect that the claimant’s concerns as she raised them to him were said by her to be discrimination. He had no recollection that she had said it was because she was black. He considered that her concerns were vague and more to do with her feeling of being undermined or not respected. He formed the view that she was for various reasons not gelling with others in the team.

[82]The bundle contained a text sent by Dr Otunla on 11 September which referred to this meeting. He thanks the claimant for opening up to him and said he looks forward to working with her and the rest of the team towards creating a more inclusive, respectful and harmonious environment. He explained that this was in answer to her comments that she had not been made welcome. She felt she was disliked and he believed that she was struggling to settle in. This response is consistent with that understanding. It is not consistent with the claimant having identified that her struggles were because of racism. We find the claimant made no such comment. She shared only concerns that she was not settling in and did not make any reference to it being because of her race.

[83]Dr Otunla could recollect that fairly early on in her career with the respondent the claimant appeared to have some interpersonal relationship issues with her colleagues and that she told him that she sometimes felt she was being undermined. His written evidence referred to an ultrasound meeting that they had both attended after which the claimant had said that she felt she had been undermined because somebody had disagreed with her. That was not his sense of what had happened.

[84]The bundle contained an exchange of WhatsApp messages between the two of them that took place in October 2021. In these the claimant explains she is feeling apprehensive about the coming week because she’s going to have to work with the third respondent. She explains this is because she believed the third respondent does not like her. Dr Otunla encourages the claimant to be positive and confirms that he has never heard and expressions of dislike from the third respondent but that she can be direct in her manner. This exchange does not characterise the behaviour the claimant says that she is encountering as discrimination.

[85]We find that the log in which the claimant describes the incidents makes no reference up to this point about there being any racial elements to what is occurring. Dr Otunla does not recall the claimant making any such comment. The WhatsApp exchange makes no such comments. On the balance of probabilities we find that the claimant did not say that this was happening to her because she was black. We find this comment was simply not made. We find that the claimant made no comments of any kind from which anyone could infer that she was claiming there was a racist element to what was happening or that there was any discrimination in the equality act sense at all. We find it entirely reasonable that at this point the respondent did not understand this to be the claimant’s position because she had not said that it was. All she had done was raise some vague concerns that she was being undermined. That is in fact consistent with what she is recorded in the log.

[86]In her log the claimant records further incidents involving Dr Lawson. On 30 November she states that Dr Lawson was brutal, blunt and condescending in a communication towards her there which will not remain right information to the team. On 6 November she says that Dr Lawson kept on maliciously interrupting her presentation disputing the data she was presenting as the neonatal safety champion.

[87]In relation to Dr Ponnusamy she recorded on 2 November at an evening handover she was heavily criticised in public about a procedure being performed in the evening. On 2 November the claimant says she was updating Dr Ponnusamy in private regarding one of her trainees when she turned on the claimant and accused of not assisting the trainee adequately, undermining her credibility and accusing her of inappropriate leadership skills.. It is not suggested at this point the claimant shared these details, it’s her evidence that she did so later. Again there is no language in the log of these incidents that link them to the claimant’s race or make any reference whatsoever to discrimination. The appraisal

[88]The claimant completed her appraisal on 23 December 2021. This covered the period from 29 September 2020 until 31 August 2021. It was to cover only matters that arose within that time period. In order to prepare for the process Dr Otunla was sent a medical staff risk profile covering this period. This identified that there were no incidents involving harm at any level during this period.

[89]Of the seven incidents which were subsequently investigated six occurred after the time period covered by the appraisal. The first, involving baby ES took place on 16 July 2021 and was not noted within the system in terms of being on a risk profile at that point. That may have been because the investigations were still open.

[90]Dr Edwards did have a conversation with Dr Otunla prior to him carrying out the appraisal when she relayed to him that there had been concerns raised about the claimant’s communication and team working. This was based on matters that she said arose from the beginning of the claimant’s employment which included an issue about communication which had been reported to her in June and August. We accept Dr Edwards’ evidence that the appraisal process is a separate and independent one. We find that it would not link into any capability or disciplinary concerns.

[91]We find that an appraisal is an opportunity for individual self-reflection and that it was a matter for the claimant to have raised these concerns to allow for reflection on them. She did not do so. We find that the fact there are no concerns noted in the appraisal does not mean they had not been raised, only that the claimant had not referenced them.

[92]In submissions the claimant’s counsel suggested that the appraisal was an opportunity to raise matters that had arisen. In particular it was submitted that matters of leadership, management and soft skills with trainees could and should have been addressed at the annual appraisal. This was not evidence given by the claimant. We have found that Dr Edwards did raise some concerns with Dr Otunla. We also find that the appraisal was, covering only a specific period up to 31 August 2022. It could not cover matters that had not arisen.

[93]The appraisal document does made reference to feeling discriminated against. The claimant included a statement that she was making genuinely positive and optimistic efforts in developing good professional relationships with all her colleagues. Where she had felt discriminated against and intimidated her mentor had been there as a reliable source of useful advice and practical tips.

[94]Dr Otunla explained in his witness statement that the claimant had messaged him on WhatsApp asking if she could include this wording about his level of support. He had asked her not to as he would find it embarrassing. As this was an express reference to the support that she had given him we find that this is the support that he provided to assist with her concerns about interpersonal relationships. He did not understand it to be a reference to race discrimination. We find it is not said to be a reference to race discrimination. We find that at this point the claimant had not raised any such concerns and was making a complaint about unfairness. The complaints raised by the claimant January 2022 – 15 March 2022

[95]Dr Otunla recalled that in January 2022 he had an informal conversation with the claimant in which she mentioned she was not looking forward to working with Dr Lawson and wanted to change her attending week. He gave an account of this meeting during subsequent investigation process in which he explained that having been told this by the claimant he asked for an explanation. The claimant had told him that she felt unsupported the last time she worked with Dr Lawson and explained that she had an eye issue. This relates to the eyedrop scenario the claimant has set out in her log occurred on 19 August. The claimant makes no reference to this and we accept Dr Otunla’s evidence.

[96]As a result of this, Dr Otunla followed up with Dr Lawson to let her know the claimant was nervous about working with her that week. He recollected the end of the week the claimant told him the week had gone well and you therefore he thought that matters were improving. We accept his unchallenged evidence on this point. We find therefore that in January the claimant had not raised any concerns that amounted more to being uncomfortable, these were addressed informally by a conversation with Dr Lawson and the claimant reported an improvement in the situation to her mentor. This is consistent with the complaints being about interpersonal issues. It is not consistent with the claimant’s position that she was raising complaints of discrimination and we find that at this point she certainly had not.

[97]On 17 January the claimant records in her log that Dr Lawson bluntly and harshly disregarded her suggestion to consider discontinuing a particular drug for a baby.

[98]On 1 February the claimant’s log records Dr Ponnusamy having intimidated and harassed her during a combined in-person virtual meeting in relation to baby LC.

[99]On 23 February 2022 the log records that at an evening handover when the claimant bent close to Dr Ponnusamy to ask discreetly for required information she was commanded to stand upright and to stop whispering to her. Again, just after the evening handover on the same day log records that Dr Ponnusamy harassed and bullied the claimant .

[100]Dr Otunla also recalled that on 12 March 2022 he had a phone conversation with the claimant when she was due to work alongside Dr Ponnusamy in the week beginning 14 March and she was nervous about this. He recollected that the claimant said she felt slightly undermined by Dr Ponnusamy on one or two occasions. He understood that the claimant felt that Dr Ponnusamy was picking on her and she did make a comment that she did not think the Dr Ponnusamy would do the same to him. He encouraged the claimant to approach the week with an open mind and to be less apprehensive and he agreed to have a conversation with Dr Ponnusamy.

[101]Dr Otunla sent the claimant a text on 12 March telling her that he had never heard any expressions of dislike from Dr Ponnusamy about her. Dr Otunla thanks the claimant for letting him decide how best to proceed. This is consistent with her having raised concerns that Dr Ponnusamy was picking on her. It is consistent with the fact the claimant did not raise any issues that this was related to race.

[102]Dr Ponnusamy agrees that they did have a conversation at this point. She records that Dr Otunla texted her to ask to speak. They then had a telephone call. At this point she was scheduled to work alongside the claimant for the first time in the week beginning 14 March. On 13 March, when she spoke to Dr Otunla, he told her the claimant was not feeling emotionally well and asked her to look out for the claimant. Dr Ponnusamy explained that she would do her best to support the claimant during the week working together. She is clear that Dr Otunla did not tell her the claimant had any issues with her, nor was she aware of any issues or concerns raised by the claimant at that time.

[103]The claimant’s account set out in further particulars is very different. It is the claimant’s account that during this telephone call she read from her mobile phone and set out the list of complaints against both Dr Lawson and Dr Ponnusamy. The particulars also say that the claimant told Dr Otunla that she was being treated differently from other colleagues by these two individuals because of her colour and mannerisms and that Dr Ponnusamy disliked her and anything she did. The claimant’s particulars also say she complained that the first respondent was failing to provide her with an environment free from discrimination and harassment and not treating her equally on grounds of race or colour.

[104]Dr Otunla was clear that the claimant did not say any of this during her call. She did not mention race or colour at all. Had she done so he would not have offered simply to call Dr Ponnusamy but would have asked the claimant to expand on things and treated the matter formally. He’s evidence is clear that the claimant did not read out a list complaints about Dr Ponnusamy complaints about Dr Lawson during this phone call.

[105]On the balance of probabilities we prefer the account given by Dr Otunla to that given by the claimant. As we have already noted there is nothing in the log at this point which describes the incidents as relating to the claimant’s race or colour. Even if she had read them out this list of complaints, it is not a complaint about discrimination related to race. It is about bullying. No explanation or link to race or colour is mentioned in the log. It is inconceivable that Dr Otunla, who is also black with Nigerian heritage would not have reacted to allegations of racism had they been made.

[106]We also find that had the claimant read out such detailed accounts of a number of incidents, then again Dr Otunla’s reaction would have been very different. We find that, as he says, he would not just a phone Dr Ponnusamy. We find therefore that the conversation between the claimant and Dr Otunla was simply her saying that she was nervous about working with Dr Ponnusamy. There was absolutely no mention of racism. There was no mention of any event being linked to the claimant’s race or colour. There was no mention of the first respondents failing to provide her with an appropriate environment or treating her equally on grounds of race or colour. The claimant did not read out her log. The complaints raised by the claimant 15 March 2022- end of April 2022

[107]Four incidents are then logged by the claimant as occurring on 15 March by Dr Ponnusamy. She says that she is harassed and intimidated in public regarding suggested antibiotics. In the middle of the unit Dr Ponnusamy is said to displayed micro aggressive and demeaning behaviour towards the claimant.. Again on the same day Dr Ponnusamy log records that she intimidated the claimant and assassinated her character by nagging and shouting out in the middle of the unit in public asking why should made a management plan without a baby’s current weight. The last incident on that day is said to occur when handing over baby to Dr Ponnusamy and explaining an increase in dose she says that Dr Ponnusamy went ballistic, discrediting and disrespecting her in public by the baby’s cot side.

[108]On 28 March the claimant says she was not given a chance to present. Dr Lawson blatantly ignored the fact that she had prepared a presentation and was waiting to present during a meeting and the slide of neonatal consultant Leads had the claimant’s name and roles omitted.

[109]Again, with all these later incidents up to 28 March, the claimant does not use the words discrimination or race discrimination. On an objective basis the log records that she is being bullied.

[110]On 21 March 2022 the claimant says she requested a meeting with Dr Edwards and Dr Otunla. It is the claimant’s account that in this meeting she read from her phone her list of complaints and the notes. That is 13 complaints about Dr Ponnusamy and 8 for Dr Lawson. These are the complaints set out above.

[111]The claimant’s evidence is that she explicitly and repeatedly used the terms of racial discrimination intimidation, character assassination, discrediting and disrespect, blunt condescending and demeaning behaviour. In the further particulars she states that she asked that racially discriminatory conduct to come to an end. She also says she made references to being treated differently because of her colour. Again that she stated that the first respondent was not treating her equally because of her race and that she was being put in a position to be victimised.

[112]The evidence of both Dr Otunla and Dr Edwards is that the meeting of 21 March was set up as a result of the concerns raised about the claimant’s performance. The meeting was to discuss the concerns that were still being raised. We find that was the case and this was primarily a meeting about clinical concerns.

[113]Dr Edwards recollection is that the claimant did refer to Dr Lawson in this meeting and she was upset about a recent governance meeting where she felt that Dr Lawson had spoken over her. She did not recall the claimant raising any specific or explicit allegations of race discrimination against anyone and believed she would have remembered had that happened. Dr Edwards did not recall the claimant making any comments about Dr Ponnusamy.

[114]She agreed that the claimant used the words “discrimination, intimidation, character assassination, discredit and disrespect, blunt, condescending and demeaning behaviour”. The claimant did also talk about how unfriendly the unit was and made a passing comment that her face didn’t fit but she did not construe this to mean that Dr Lawson treated the claimant differently because of the claimant’s race. In her witness statement Dr Edwards says that she interpreted this comment about her face not fitting as the claimant suggesting that there was racism in the unit more generally but not specific to any one individual. She did not understand her complaint about the way the claimant had said Dr Lawson treated her to be a complaint of race discrimination. No complaints were raised about Dr Ponnusamy. Dr Edwards does not, in giving this written evidence, say that the claimant mentioned race discrimination, it is an inference that she drew from the comment about her face.

[115]Dr Edwards was very clear that the claimant did not provide any specific examples of this undermining behaviour during the meeting itself. She did not go through the list that the claimant refers to. Both the claimant and Dr Edwards agree that the claimant handed her a note during this meeting. That has five numbered points repeating the words“ disrespect, blunt, condescending and demeaning behaviour”.

[116]Following this meeting the claimant sent a WhatsApp to both Dr Edwards and Dr Otunla which set out as five numbered points the words “discrimination, intimidation, character assassination, discredit and disrespect, blunt, condescending and demeaning behaviour”. The note goes on to say that most of the above occurred in public settings and that the actions have directly or indirectly emanated from a few senior members of staff on NICU medical and nursing. It She would get back to them both soon in terms of the future. While it does reference discrimination within a list, it does not use words which suggest race discrimination. It makes no complaints about Dr Lawson or Dr Ponnusamy. Indeed it suggests that there are other people who been involved in this.

[117]Dr Edwards wrote to the claimant later that day. In her response she acknowledged that this had been a difficult meeting for the claimant. Practicalities were discussed and the client was offered the opportunity not to do her on call shifts that night and not to attend the next consultants meeting. In her response Dr Edwards believed that she had summarised the points raised by everyone at the meeting. This summary does not refer to any complaint of discrimination having been raised by the claimant.

[118]Dr Edwards explained that she did not include the word discrimination because, while the claimant had used that word during the meeting, she had done so as part of a phrase and she had not provided any specific examples and had not confirmed that she was raising allegations of race discrimination against any individual. She referred to undermining behaviour and that appeared to be related to interpersonal issues with Dr Lawson in particular and unrelated to race.

[119]The letter ends with the line “please let me know if you do not feel this is an accurate representation of our discussion”. The claimant does reply to this. She asks Dr Edwards to kindly note that she specifically used the list of five points. She says she also mentioned she would kindly appreciate supportive gestures such as being friendly, polite and professional. She asked that confidential constructive feedback given as opposed to matters being raised in a public setting. She makes no other criticism of Dr Edwards note. She does not identify that race discrimination has been omitted. She does not identify that complaints about Dr Ponnusamy or Dr Lawson have been omitted or that there is a failure to note that their conduct was motivated by race..

[120]In answer to cross examination questions Dr Edwards maintained that the claimant had not verbalised the word racial or racism in the meeting. She was taken to notes prepared by Kate Clarke on the telephone conversation that they had on 24 March 2022.

[121]In this note Dr Edwards makes reference to the prepared note the claimant provided. Ms Clarke records being told that the claimant told Dr Edwards she had prepared some thoughts to share and then her note refers to some bullet points. These are not set out in the same order but do use some of the same terms as the note the claimant provided. Next to the word discrimination Ms Clarke’s notes have “-racial and culture”.

[122]The action points from the meeting, however, record the advice given is that bullying and harassment concerns should be escalated to Mr Irukulla. It also recorded the performance concerns will probably need investigating and again Mr Irukulla will need to deal with that. It does not record as an outcome that there are any concerns about racism or race discrimination that need to be investigated.

[123]Dr Edwards was asked to explain this reference and it was suggested to her that this record in Ms Clarke’s note must mean that the claimant had complained about racism. It was put to her that she was perfectly well aware that what the claimant was complaining of racial discrimination. She recollected that in her conversation with Ms Clarke she was asked what sort of discrimination might be being raised and they had a discussion about what the claimant might have been implying and one of the possibilities was race discrimination. However, this had not been verbalised and she understood that discrimination had been used of the word but this was linked to bullying. She did not understand this to be a complaint of race discrimination. This was simply an interpretation that she had considered. She pointed out that the actions that Ms Clarke recorded did not deal with race discrimination.

[124]Dr Otunla’s recollection about whether racism was mentioned on 21 March was less clear. He was present both at this meeting and following one on 31 March 2022 . In his written witness statement he set out that at one of these meetings that the claimant made a reference to racism. In whichever meeting that was, 21st or the 31st, he believed it was a vague reference to discrimination and racism and he responded that they were both black and Nigerian to which the claimant replied it would not happen to him. It was his testimony that this is the first and only time, the claimant made any comment about race during the meeting and she did not bring it up again. He did not recall that she felt that Dr Lawson and Dr Ponnusamy in particular had been treating her differently because of her race or that she had raised any specific allegations of race discrimination.

[125]Dr Otunla was taken to the notes of his interview as part of the MHPS. In those, when he is asked about the meeting on 21 March, he provides further details about this recollection of the claimant’s reference to race. In this account he says that the claimant mentioned being undermined and he thought that she brought up a list of events on her phone. He also says that the outcome of the meeting was the claimant had said she felt there was discrimination and racism she made reference to her face not fitting. Dr Otunla pointed out that they were both the same colour and both from Nigeria. He records that the claimant said that Dr Lawson and Dr Ponnusamy would not be racist to him because he was senior to them and had been there a long time.

[126]We find that Dr Otunla would not have understood any comment about her face not fitting to be racism as she coupled this with referring to length of service. On the balance of probabilities we find that it was understood by Dr Otunla and the respondent more generally as a reference to the fact that the claimant had a different way of doing things from the first respondent's culture of being non-invasive.

[127]When he was asked about this in cross examination Dr Otunla said that his recollection was that the claimant had read a list of complaints but they were not complaints of race discrimination. He accepted that that the word discrimination was used but she also mentioned things like intimidation and character assassination. The emphasis was on that with no mention of a racial element to it. He maintained his understanding that he believed the claimant was complaining of bullying and harassment and discrimination but that there was no racism or racial element to it. He told us that his radar is quite sensitive to matters of race discrimination and he would have been aware had she raised this.

[128]It is obvious that memories fade over time. Even at the point that Dr Otunla was asked about this meeting in the MHPS interview that was almost a year later in March 2023. We prefer to rely on contemporaneous or near contemporaneous documents. In this case we have a document produced by the claimant at the time of the meeting. We have a summary of the meeting by Dr Edwards which is accepted by Dr Otunla as an accurate account of that meeting made on the same day. We have the claimant’s response. We also have a note of a telephone call with Ms Clarke a few days afterwards. We also have the claimant’s email of 24 March (which we address in more detail below) which refers to an informal complaint of discrimination, intimidation character assassination as set out in 21 March.

[129]On the balance of probabilities we find that on 21 March the claimant did not read out her list or log of matters. We find that the claimant did use the word discrimination alongside the words “intimidation, character assassination, discredit and disrespect, blunt, condescending and demeaning behaviour”. We find that the claimant did make reference to her face not fitting.

[130]On the balance of probabilities we find that the claimant said no more than this and did not give details or any information which would allow the respondents to properly understand that she was complaining about race discrimination or that the matters that were understood to be about bullying were motivated by her race. The claimant’s own response to the note of the meeting gives a very different sense to her evidence now. It is consistent with the complaint being raised about bullying but not to their being any racial element to that bullying or treatment. The claimant’s subsequent email 24 March again refers to an informal complaint which includes the word discrimination in a list, but does not link this to race.

[131]We accept therefore that Dr Edwards understood the claimant was raising concerns of bullying. Any thought that it might’ve been about racism more generally was simply that and was not one articulated by the claimant and the other person in the meeting, Dr Otunla, who was potentially more sensitive to such allegations being made, did not think this. We conclude that the claimant did not raise a complaint of race discrimination in the meeting on 21 March. We also conclude that respondents reasonably did not understand that she had. We find that it was not obvious that the claimant was complaining of discrimination and that is not the way that this complaint was understood by either the first respondent or Dr Edwards.

[132]We find that the claimant did not make any allegations about or name Dr Ponnusamy at this meeting on 21 March. The claimant described one incident of Dr Lawson talking over her. This was not described by the claimant in that meeting as an example of race discrimination. We find that Dr Edwards could not have understood from this meeting that there was a problem between the claimant and the second and third respondent such that they needed to be a separation between the claimant and these colleagues.

[133]We accept Dr Edwards explanation as to why the word discrimination and the further reference to the other words the claimant used was not in a summary note. We have found that the claimant did no more than in effect read out this list of words with no other details. Dr Edwards was providing a summary not a verbatim note of the meeting. She took away from that meeting that the complaint was about how difficult the claimant found it to work at the first respondent and she reflected that in her note. She did not take away from this meeting that the complaint was about discrimination, intimidation and character assassination because the claimant made that comment and gave no examples to support it. We find that it is for that reason, because it was not legitimately understood by those at the meeting to be the thrust of the claimant issues that the word was not included.

[134]On 24 March the claimant sent a further email asking for meeting to discuss a complaint of discrimination. This records that prior to the necessity to raise a formal complaint with the assistance of the BMA, regarding her informal complaint of discrimination intimidation character assassination she would like to meet on that day and time convenient to everyone. It concludes as we are all aware there are always two sides to every story. Dr Thomas and Dr Otunla arranged that meeting because Dr Edwards was due to go on leave on 26 March.

[135]Dr Edwards was conscious that the allegations that the claimant did make in setting out her list about “discrimination, intimidation, character assassination, discredit and disrespect, blunt, condescending and demeaning behaviour were serious. Further the claimant had requested a further meeting about these. She therefore followed up with the claimant with a telephone call on or around 25 March just before she began annual leave. On this she acknowledged that the claimant was making serious allegations but explained that they would need further information to take this forward with HR.

[136]This is consistent with the claimant not having provided any specific information as we have already found. We find therefore that action was taken in relation to the complaint of bullying raised by the claimant. The claimant was asked for further information because she had not given any specifics would have allowed the respondent to investigate. In the absence of any understanding or knowledge about the detail of the claimants complaints when they are not specified to be about particular individuals but general concerns we find that the respondent took such action as was possible. This included arranging the meeting the claimant had requested.

[137]This meeting took place on 31 March 2022. The claimant met with Dr Thomas and Dr Otunla. The claimant says at this meeting she read from her phone the list of complaints. She also specifically and repetitively used terms referring to race discrimination during the meeting. She compared her treatment with other neonatal consultants and told them that she believed her treatment was because of her race.

[138]Dr Otunla set out in his witness statement that it was at this meeting that the extent of the claimant’s concerns that Dr Lawson and Dr Ponnusamy came to light. He recalls that it was at this meeting she read a list of complaints from her phone and he was shocked by the level of detail and the fact that she had compiled a lengthy list of complaints but had not mentioned many of these to him previously. When he expressed his disappointment to her that she had not come to speak to him she responded that he was always busy.

[139]Dr Otunla could not recall the claimant referring to race during this meeting. He does not remember that she claimed that her complaints about Dr Lawson and Dr Ponnusamy were related to her race. He understood that her complaint was one of bullying and not of race discrimination.

[140]Dr Thomas gave an account of this meeting. He had received the claimant’s email of 24 March and therefore knew that she wanted to discuss a complaint of discrimination, intimidation and character assassination. He did not understand from this that she was making a complaint of race discrimination. He did not infer from this request that that was her complaint. He was clear that the claimant did not describe race issues to him during the meeting and he was unaware of any race claim.

[141]Dr Thomas was shown the note prepared by Ms Clarke but had not seen that previously. He had not been briefed by anybody that a complaint of racism had been raised. His evidence was that it was not obvious that the claimant was raising a complaint about being black Nigerian. It was suggested in submissions that Dr Otunla would have briefed Dr Thomas in advance of this meeting that the claimant had raised complaints of race discrimination. We find that did not happen.

[142]Dr Thomas meeting summary sets out he recollects that in the meeting the claimant made vague references to undermining behaviour and discrimination but did provide specific details of what Dr Lawson and Dr Ponnusamy were anything to do with the claimant race. He does not recall her presenting the list of complaints on her phone but does recall her referring to 16 occasions about Dr Ponnusamy and 11 or 12 occasions with Dr Lawson.

[143]As both Dr Otunla and Dr Thomas remember a list of complaints being identified, we find that the claimant did on this occasion, for the first time, list the details that are set out in her log. Again, on the balance of probabilities, we find that it is unlikely the claimant used different language to describe these events except as they are written down. If, as on her account she read them, then she would have used identical language. This language does not indicate that there is anything to do with the claimant’s race at the bottom of the conduct she complains about. It is set out and fairly understood as a list of complaints about bullying with no cause being assigned.

[144]The claimant sent a follow-up email after this meeting in which she thanked both for meeting her today which is much appreciated. It set out her perception of the situation that she was in. This showed confrontational avoidance, insidious public criticism, self-conscious, guard up and defensive reactions as a circle. Nowhere does it mention discrimination or racism.

[145]Dr Thomas summary does not record that she mentioned race during her meeting or explained that she felt that the difference in treatment was because of her race. This is because he did not recollect that she had made any reference to race. He also did not refer to discrimination because she had not provided any examples of this nor had she confirmed she was raising allegations of race discrimination specifically. Based on the meeting he believed her complaint to be of bullying with the crux of it seeming to be she was receiving constant criticism from Dr Lawson and Dr Ponnusamy. Had she surfaced a complaint of race discrimination he would have responded very differently. He would have gone straight to HR for their input.

[146]The claimant responded to the summary email that Dr Thomas sent on 11 April. She clarifies a number of matters and again uses the phrase “discrimination, intimidation, character assassination.” She does not expressly make any reference to race.

[147]In response to the claimant now for the first time having raised the complaints that are set out in her log about Dr Lawson and Dr Ponnusamy, Dr Edwards and Dr Thomas then had separate meetings with Dr Ponnusamy on 14 April and Dr Lawson on the 11 and 19 April 2022. In these meetings they explained the claimant had made a complaint of bullying against them. Both Dr Lawson and Dr Ponnusamy agreed to attend informal mediation and they asked that the claimant specify the allegations against them. This is consistent with the claimant having merely read the list and not provided any copy of it.

[148]We find that the respondent took such action as it could shortly after this meeting. Once it became aware that there were allegations about two particular individuals those individuals were advised of this. No further action could be taken, however, the claimant did not provide details that could be put to them. Until the claimant had done so there was little the respondent could do. It could not even understand whether there was a need to separate the individual on shifts. While is accepted that resolution was promised “soon”, that could not be achieved without the claimant providing the necessary information.

[149]It was Dr Edward’s recollection that these meetings took place on the phone and were led by Dr Thomas. At that time they did not have detail of the specific allegations from the claimant in order to share these with Dr Lawson and Dr Ponnusamy. This is consistent with the claimant having read points to the meeting but not having provided any copies of these or any written document. The claimant accepted that the first time she sent the document was on 6 December 2022. Thereafter, her complaints were addressed of part of the MHPS which was based on advice. We find that they were dealt with within a reasonable timeframe given that the claimant did not provide any information that would allow the respondent to investigate before 6 December. We also take into account that been a period of agreed mediation which had failed because the claimant would not provide these details.

[150]On the balance of probabilities, and taking into account the claimant’s response to the meeting summary we prefer the evidence given by Dr Thomas over that of the claimant as to what was said at this meeting. Dr Thomas’ actions are entirely consistent with him having heard complaints of bullying. They would be inconsistent with the claimant having raised a complaint of race discrimination. His action list focuses on feedback issues and mentoring and coaching for new starters. That is not the response of a divisional director who has been presented with complaints of conduct by two consultants against another motivated by race.

[151]We are further supported in this because Dr Edwards and Dr Thomas took immediate action and spoke to Dr Lawson and Dr Ponnusamy and raised with them only unspecified complaints of bullying. They did not give them any idea that this was connected to racism and we find that is because they did not know that as the claimant had not raised it. Dr Edwards then had no further involvement with Dr Lawson and Dr Ponnusamy relation to this complaint as HR took over responsibility for liaising.

[152]We find that as at the 31 March 2022 all any of the respondents are aware of where unspecified allegations against Dr Lawson and Dr Ponnusamy of some form of bullying. While the word discrimination had been used, it was not used to express a concern of discrimination based on any particular protected characteristic. We conclude that it was used in a generic sense and needs to be read in conjunction with the other phrases the claimant used. We find that the claimant had made a general complaint which was not one of racism and it was reasonable for the respondent to have understood her complaint in that way.

[153]We find that as a matter-of-fact the claimant had not raised any matters on 12 March, 21 March, 24 March or 31 March 2022 which raised a complaint to which the Equality Act 2010 potentially applied. Her use of the word discrimination was used in a generic sense and was part of a complaint about unfair treatment not linked to any protected characteristic. Clinical concerns raised about the claimant in 2021

[154]At the same time as the claimant was raising her concerns about the way she felt she was treated, a number of concerns regarding unclear decision-making and poor communication skills were being raised to the respondent.

[155]Dr Edwards explained within a few weeks of the claimant starting her role she began to receive concerns from a range of staff at different levels of seniority and progression. She could not remember who fed back early concerns in June 2021 but she believed about 15 to 20 people approached her informally between the time the claimant started at the trust until around December 2021.

[156]These complaints included a concern which was fed back to Dr Lawson that the claimant was not making safe decisions and was unable to properly lead in stressful situations. Dr Edwards also recollected that in around August 2021 there was an issue involving the claimant’s communication with a trainee which resulted in him wanting to swap tutors. This concern was fed back to Dr Edwards by Dr Lawson who was responsible for the trainees. Dr Edwards also heard the juniors were swapping their shifts to avoid being on call with the claimant.

[157]Dr Edwards had her own experience that there seemed to be a feeling of uncertainty and discomfort across the unit about the claimant’s practice. Dr Edwards received the first feedback herself from a junior doctor after the claimant’s first weekend rota on the 12th 13 June 2021. As a result, Dr Edwards met with the claimant on 14 June 2021 to see if there was anything they could do in relation to differences in approach which seemed to be causing issues. The claimant gave evidence that she expressed concerns about Dr Ponnusamy and Dr Lawson in that meeting and there was a discussion about different approaches and the St Peter’s way. The claimant does not say she raised her complaint in any other way. Dr Edwards was surprised by the claimant’s reaction that her colleagues were attacking her but put this down to her being tired from having just worked the weekend.

[158]In July 2021 concerns were raised about the death of baby ES and the claimant’s management of resuscitation and administration and subsequent paperwork. This was discussed at a meeting 20 September 2021. This later became incident 1 Baby ES.

[159]Dr Edwards met with the claimant again on 19 August 2021 following a complaint made by a senior clinical fellow to her educational supervisor about the feedback that the claimant had given her. The claimant became upset when this was raised with her and said the people were getting at her all the time and she was going to resign. Dr Edwards asked her to think about it and the following morning the claimant retracted her resignation. The claimant did not raise any concerns about racism or any other matters.

[160]In September 2021 Dr Edwards escalated concerns about the claimant to Dr Thomas. She asked for his advice about how to manage the situation because she was getting feedback from different people within the first two or three months of the claimant joining. Dr Thomas evidence confirms this. He recalls asking Dr Edwards whether anyone had raised formal concerns and that there would need to be firm evidence before being able to approach the claimant to either informally address the issues or proceed to formal action. He encouraged Dr Edwards to speak to the claimant to find out what help she needed. Nonetheless, in the following months concerns about the claimant and her clinical issues continued to be raised to him by Dr Edwards.

[161]In December 2021 Dr Edwards relayed to Dr Otunla some concerns about the claimant’s communication and team working. A complaint had been raised by an associate specialist who is also of Nigerian heritage. This individual was upset about the decision to cancel a session that she had prepared for and had come in on a nonworking day to deliver. While the claimant accepted that there was such a complaint she maintained that it was not her fault and that she was being blamed as the messenger. We find, however, that the complaint made was about the claimant. Whether it was fair or not and whether it was the claimant’s fault or not is a different point. The concern was raised.

[162]At this point Dr Edwards was told by Dr Otunla that the claimant was likely to be making a complaint about bullying within the department. As we have set out above, this represented Dr Otunla’s understanding of the position at that time as we have found this is all the claimant had told him.

[163]Dr Edwards met with the claimant on 8 December to discuss these concerns. By this point Dr Edwards was aware that there had been an issue in August 2021 with Dr Lawson involving eyedrops. In this meeting the claimant complained that she had a challenging relationship with Dr Lawson who she said was undermining her in front of colleagues.

[164]After the meeting Dr Edwards emailed the claimant her summary note of that meeting. This note reflects that the claimant told Dr Edwards that she had been finding things tough but she felt that things had slightly improved over the last few months. She described that she had challenging issues including a challenging relationship with one colleague which was negatively affecting her due to undermining talk in front of colleagues and a lack of empathy. She also raised a concern about cases of conflicting information. Dr Edward suggested that the claimant try meet with all other colleagues outside of clinical meeting settings to get to know them. This supports our finding that the claimant was raising issues about interpersonal relationships and was not raising any matter of racism. We accept that there were genuine concerns about the claimant’s performance.

[165]Following this meeting Dr Edwards asked Dr Thomas for advice about whether she should go to HR at this point. The claimant was at this point going through the process of revalidation and David Fluck, the medical director, had requested information about whether there were issues that impacted the claimant’s revalidation. This is a matter of standard practice. Dr Edwards questioned with Dr Thomas whether she should raise any concerns but he considered there was insufficient evidence because the claimant had not been named on any clinical incidents and that she should be given a chance to improve before deciding whether to escalate to a formal capability process.

[166]On 23 December 2021 concerns were raised with Dr Edwards by two individuals about the delay in outpatient following up on a high risk patient baby KM. This later became incident 2 Baby KM. Dr Edwards believes she raised this verbally of the phone with the claimant but could not recall exactly when. It did raise concerns in her mind about the claimant’s organisational skills and understanding of her role as a consultant. Clinical concerns raised about the claimant in 2022

[167]On 15 February 2022 a further concern was raised to Dr Lawson about the management of resuscitation of baby C which later became known as incident 3 Baby C. Dr Edwards heard multiple people saying claim to be really upset and crying afterwards. A matron expressed concerns about the claimant’s response and this led Dr Edwards to ask what had happened and she was updated on the concerns voiced about the way the claimant had managed this resuscitation. The incident was similar to incident one.

[168]On 17 February Dr Edwards, Dr Thomas and Dr Otunla met to discuss the concerns that had been raised about the claimant over the previous eight months. Dr Thomas considered that the threshold of escalating to a formal process was not met because there was more that could be done to help and resolve the issues. It was decided that as a next step Dr Otunla should meet the claimant and offer further leadership training and wellbeing support. The three also discussed what the next step should be should that meeting with the claimant be unsuccessful and it was agreed at that point they would involve HR to take their advice. It is agreed that this was Dr Thomas conclusion on that date. It is also agreed that by 17 February there had been three incidents. That is incident 1, baby ES, incident 2 baby KM and incident 3 baby C. The latter incident, incident 3 baby C had only occurred two days previously, while it was extremely serious at the point Dr Thomas made this decision it had not been investigated. The first respondent therefore undertook further informal action only at this point based on a smaller number of incidents than later occurred.

[169]The notes that followed this meeting records that Dr Edwards had met with the claimant on three occasions and at the last occasion further leadership training which had been offered was declined. This confirmed that the next step was to arrange a meeting with Dr Otunla, Dr Edwards and the claimant. This would be to offer well-being support and further leadership training opportunities, with the emphasis that this should be taken up. The note is consistent with the evidence given by Dr Thomas that the next step, should the outcome of the meeting with the claimant not be successful, would be to involve HR to formalise the process.

[170]On 28 February 2022 Dr Edwards updated Dr Otunla and Dr Thomas about the meeting on 17 February. She asked them to confirm that they wished her to arrange this meeting. They agreed.

[171]The meeting to discuss matters with the claimant is the one that took place on 21 March. The meeting was set up from the respondent’s side to discuss the concerns about the claimant’s practice how best to address these and support her

[172]It was explained to the claimant that this was still an informal process but the purpose of the meeting was a serious one as there were concerns based on ongoing feedback from a variety of sources. It was explained that this was the fourth meeting since the claimant had begun work in June 2021 and that if meetings continued to be necessary then the support of human resources would be sought. The primary objective of the meeting was expressed to be to make sure the claimant was happy and fulfilled in her role. The case of baby C was used as a starting point for the discussion. The claimant asked for clarification on the feedback and for some examples of it. Some was given and the claimant found this upsetting. Dr Edwards did refer to the positive feedback provided by families.

[173]The summary of the meeting, which we accept as accurate, concludes that they want to continue to support the claimant and her enjoyment of her role.

[174]Mr Irukulla, as Interim Medical Director, was briefed by Dr Thomas on these issues sometime at the end of March 2022. Mr Irukulla was told that there were concerns about the claimant’s clinical skills, decision-making and patient safety and the concerns are being raised by numerous members of staff. He was also told that the claimant had raised concerns about two consultants in the team. He understood that this related to alleged bullying and behaviour issues involving Dr Lawson and Dr Ponnusamy. He does not believe he was told that there were any allegations of race discrimination. We accept his evidence on this.

[175]On 18 March 2022 concerns were raised by three individuals, including Dr Ponnusamy, about the claimant following the death of baby EL. This became incident 5 Baby EL. On 21 March Dr Lawson therefore updated Dr Thomas that had been another incident of concern and Dr Reynolds was asked to undertake a rapid review. Having done this, the incident was escalated to a Serious Incident.

[176]On 23 March 2022 concerns were raised by Dr Ponnusamy via a Datix regarding the claimant’s management of a baby which later became incident 4 Baby K. This related to the management of pneumothorax and occurred on 16 March 2022. Dr Edwards reviewed this form on 22 April and emailed the claimant the same date for her recollection.

[177]On 18 April Dr Edwards was alerted to an incident which took place on 16 April by a sister in the unit. This became incident 6 Baby EL 2. Dr Edwards spoke to the registrar who attended the baby who relayed her concerns about the claimant’s care of the baby. As a result Dr Edwards asked that a Datix be raised the matter could be investigated.

[178]The claimant was made aware that this investigation was going to take place and she responded saying that she took full responsibility. She explained that she was unwell the terrible headache and dizziness and she had dizzy spells while dealing with the baby. This point was dealt with informally by Dr Edwards in an email of 16 April 2022. In that Dr Edwards who explained that if the claimant not feel well enough to continue working that she had to make that plain. The note also indicated that the incident was fairly serious and it would be further investigated.

[179]At the same time as incident 6, concerns were also raised about the claimant following a missed abdominal perforation on 18 April 2022. This became incident 7 – baby J. It was the day after incident 6. A Datix was raised the same day and a Serious Incident Investigation was automatically triggered because harm was caused to a baby by a medical device and this is a “never event” which is required to be investigated under the national framework.

[180]By the end of April 2022 Dr Edwards had serious concerns the claimant was not safe to be the responsible person for the out of hours unit given the number of serious concerns that have been raised in quick succession. It is agreed that she prepared a log which identified incidents 1 to 7. We find that, while some of these incidents had already been considered by Dr Thomas not to require formal action, the respondent was now looking out a pattern of incidents and it was therefore appropriate and reasonable to include in the consideration of that pattern incidents from prior to 17 February 2022.

[181]On 25 April Dr Edwards spoke to Mr Irukulla. In particular she said she would like to take the claimant off the on-call rota while concerns were looked into formally. That would allow her to work clinically during the day but she would not be able to work call out of hours when she would not be supported by other consultants.

[182]Dr Edwards, Mr Irukulla and Ms Clarke, Head of Medical Workforce, met on the 25 April 2022. In this meeting Dr Edwards went through each incident as set out in her log explained the concerns raised, the risk to patient safety and the impact on team and morale. We find that in escalating these concerns Dr Edwards was acting in accordance with the first respondent’s policy. She had an obligation to raise concerns. Her obligation was to raise them with the Medical Director. This is exactly what she did.

[183]In doing so we find that she was fulfilling an obligation placed upon her as a doctor and by her employer. We have also found that as at this date Dr Edwards was not aware of any complaints of racist bullying by any of her colleagues against the claimant. We are satisfied that her motive in escalating these matters was a genuine concern for the claimant’s wellbeing and for patient safety and that she had an obligation to do this.

[184]Mr Irukulla’s review of the log concluded that there were concerns about the claimant’s clinical decision-making, poor communication, lack of leadership as a consultant on call, concerns about her relationship with other colleagues and concerns about lack of support to juniors and a lack of confidence in her.

[185]Mr Irukulla then attended a meeting on 26 April with Dr Fluck, Acting Chief Executive Officer, and Ms Clarke. During this meeting they discussed concerns about the claimant and Dr Fluck advised that Mr Irukulla and Ms Clarke should meet with the claimant to discuss the matter further and discuss restrictions of her clinical practice with her. This is in accordance with the respondent’s policy. This was not required as the claimant went on sick leave from 4 May. Meeting of 3 May

[186]Neither Dr Lawson nor Dr Ponnusamy raised any complaints about the claimant on or around 3 May 2022 about her performance and behaviour. Dr Edwards compiled a log of a number of incidents. Incident 4 was from a datix by Dr Ponnusamy who also raised a complaint about incident 5. She was not the only one who raised concerns on incidents 4 and 5 Dr Lawson had not raised any of the concerns.

[187]Any action that occurred on or around 3 May was based on the information provided by Dr Edwards which in turn had been provided to her from many people and was a decision by Mr Irukulla and Dr Fluck. None of these individuals had any knowledge of the fact the claimant was complaining about racism and racist bullying by any member of the Department.

[188]We find that they took this action as a result of a genuine belief that there were serious concerns that needed to be looked at as a pattern. In doing so they were acting in response to the first respondent’s policies and their obligations as physicians to take care of patient safety. The actions had nothing to do with any complaints the claimant had raised.

[189]Ms Clarke emailed the claimant on 27 April to arrange a meeting. The claimant responded saying that she would attend the meeting and she made reference to her informal complaint of discrimination, intimidation and character assassination which she said had been made on 21 March 2022. We have referred above to her email of 24 March which said this.

[190]As we are set out above, Mr Irukulla was aware of the complaints that had been raised about Dr Lawson and Dr Ponnusamy from the meeting on 31 March, but he had not understood this related to her race. We have also set out above that he could not have had this understanding as the claimant had not raised them in this way. He was also aware of the claimant’s email of 24 March.

[191]Ms Clarke sent a follow-up email which confirmed that this was intended to be an informal meeting to discuss the claimant’s concerns and to understand if, and how, these might be affecting her given the number of clinical incidents she had been involved in. It was also to discuss the concerns she had raised in her email of 24 March regarding some members of the neonatal team.

[192]The meeting took place on 3 May. The claimant was accompanied by her husband. Mr Irukulla recalled that they reviewed the incidents from the incident log Dr Edward had prepared with the claimant and heard her brief response. He confirmed that he did not give a copy of this log but went through it with her on his laptop screen.

[193]Mr Irukulla gave evidence that the meeting was not controversial or unfriendly in any way in both the claimant and her husband were thankful for the report that he provided during the meeting. In this meeting we find that the claimant was given an opportunity to say anything she wished to. It had been framed as a meeting for her to raise her concerns and to identify whether these were impacting her clinical performance. The claimant confirmed in answer to cross examination questions that she agreed in this meeting that her clinical performance was being impacted by stress.

[194]It was clear to Mr Irukulla that an investigation would be necessary as there were two versions of events for each incident and they raised potential concerns about patient safety. Mr Irukulla recalled that in this meeting the claimant mentioned she felt she had not been treated fairly but he did not recall her saying she felt had been subject to race discrimination and the notes of the meeting do not refer to any complaints of race discrimination being raised by the claimant. The claimant did say that she felt that Dr Lawson and Dr Ponnusamy had been hostile to her from the first day.

[195]If she had said this was related to race discrimination Mr Irukulla is confident he would have remembered and it would have been recorded in Ms Clarke’s notes. There is no reference in the notes to race discrimination. We prefer the evidence of the contemporaneous notes and that of Mr Irukulla that the claimant did not refer to race discrimination.

[196]We find that as a matter-of-fact the claimant did not raise any matters on 3 May which raised a complaint to which the Equality Act 2010 potentially applied. Her use of the word discrimination was used in a generic sense and was part of a complaint about unfair treatment not linked to any protected characteristic We find that the way in which the meeting operated the claimant was given every opportunity to say what she wished and she simply did not bring this up.

[197]During this meeting the claimant did not raise any concerns that she had not been given an opportunity to provide information on the clinical incidents 1- 7 which had been escalated to Mr Irukulla by Dr Edwards in June 2022.

[198]It is submitted by the claimant’s counsel that she was not properly advised of the allegations against her at this meeting. She was not given a copy of the allegations. She did not have a proper opportunity to respond to these allegations. Indeed, as agreed, if the claimant had not gone on sick leave she would have been restricted in duties.

[199]We find that the claimant was given a full opportunity to engage in the clinical incidents through the usual channels. To the extent that the concerns were being put as a potential pattern of incidents, the respondent’s policy does not have an investigation stage while matters are informal. We find that the outcome of the meeting was that Mr Irukulla was able to form a view that there were two sides of the story and that an investigation was necessary. This meeting was not intended to be a full investigation. We find the claimant was sufficiently able to raise her perspective because that led to a conclusion that the was another side to the story.

[200]At this point the first respondent was looking at a position where concerns of substance had been raised. In that case the policy requires the possibility of restrictions on practice or exclusions be considered. In considering it, Mr Irukulla was acting within policy. We have found, as set out below, that once the formal process began the claimant was given a full opportunity to give her side of the story. There is no requirement to hold a pre-investigation into an investigation.

[201]The meeting discussed the claimant’s ill health. She volunteered that she was very unwell over the Easter weekend, that is when incidents 6 and 7 occurred. She talked about resigning. There was a discussion about making occupational health referral.

[202]The claimant was referred to occupational health by Mr Irukulla. In that referral it specifies that the claimant had raised concerns about discrimination, intimidation and character assassination by two consultant colleagues. It explains that Mr Irukulla had met with the claimant to ascertain how those may be affecting her in light of the number of recent clinical incidents in which she had been involved, several of which were subject to serious incident investigations. In that referral it was confirmed that Mr Irukulla had suggested the claimant voluntarily take a period of time off sick while matters were progressed. The claimant had agreed.

[203]Following this meeting Mr Irukulla understood that there were clear concerns about the claimant’s clinical practice and a behaviour and at that the same time the claimant had concerns about Dr Lawson and Dr Ponnusamy of a bullying nature. We find that he did not understand these to be about racism. The most that he understood, in common with all of the respondent side up was that the claimant was raising general concerns about discrimination as part of a list of matters including intimidation. This was not linked to race by her at any point.

[204]The claimant began a period of sick leave on 4 May. She confirmed that since that date she has been too unwell to return to work and is unable to work as a doctor from that date until today. The claimant says that she felt forced to do this. We find, however, that on her own evidence she was too unwell to attend work and we find that this was a supportive gesture by the respondent.

[205]On 24 May 2022 Dr Edwards contacted Mr Irukulla to say that she was concerned that the claimant would not be able to participate in investigations where practice has been reviewed because she was off sick. It was agreed that they would need the claimant’s co-operation to complete these investigations so Ms Clarke was asked to contact the claimant to find out if she would be happy to participate in the roundtable investigations. On 8 June it was confirmed the claimant had agreed that she was willing to participate in roundtable meetings whilst on sick leave via teams.

[206]One of the complaints raised by the claimant is that she was not given an opportunity to take part in the investigation of the incidents until they were escalated to Mr Irukulla in June 2022. We set out below the investigation that took place into all the incidents. We find that she was afforded an opportunity to make her comments although this was impacted by her absence from work due to ill health. Date Incident Investigation SN 16 July 2021 Death of Baby Datix SE Discussed with SN at M&M INCIDENT 1 ES PMRT Meeting on 22/9/21 Mortality Review 23 Dec 2021 Baby KM SE Discussed with SN over the INCIDENT 2 Delay in OP phone appt 15 Feb 2022 Death of Baby C Datix SE Discussed with SN prior to INCIDENT 3 PMRT M&M on 21/03/22 Mortality Review 23 March 2022 Baby K Datix View sought prior to investigation INCIDENT 4 Pneumothorax Divisional as outlined in IR (p181 13.21(a) Investigation 18 March 2022 Baby EL Datix Asked for response to themes INCIDENT 5 Extubation PMRT listed in Specialtyy Report – some months later Email from Peter Reynolds on 28 July 22 17 April 2022 Baby EL2 Datix SN received notification of INCIDENT 6 LISA procedure Divisional investigation and asked for her Investigation version of events on 13 June 22 Round Table on 6/6/22 18 April 2022 Baby J SIRI SN received report 5 May 23 INCIDENT 7 Perforation Investigation SN declined to participate in RT complete Feb opting to have separate 23 conversation with AV 7 JT via Teams

[207]We find that the claimant was given a proper opportunity through the normal datix/SIRI processes to raise her point of view. We accept that investigation processes can take some time. The nature of the incidents meant that there are a mixture of mortality reviews, divisional investigations and Siri investigations. These are complex with different stages. We find that the investigations happened at an appropriate pace and the claimant had a full opportunity to give her input in the usual way. Mediation process

[208]On 16 May 2022 Dr Edwards asked Mr Irukulla and Ms Clarke for an update on the claimant’s position. She reiterated that neither Dr Lawson nor Dr Ponnusamy had been given the details of the allegations raised by the claimant. She was informed by Mr Irukulla that while waiting for occupational health review that asked the claimant to attend mediation. This was to resolve the concerns raised by the claimant.

[209]Both Dr Lawson and Dr Ponnusamy agreed to attend informal mediation. We were taken to Dr Lawson’s email on this point of 20 April 2022 in which she confirmed she had been made aware of allegations on 6 April but still did not have any specific details. She asked for there to be mediation.

[210]While initial meetings took place in May 2022 with mediation sessions held for the claimant and Dr Lawson in June, July and September 2022, ultimately the mediation process did not succeed. The claimant was not prepared to meet either of her colleagues in person and she was not prepared to provide details of her complaint.

[211]During this period the investigation of the clinical incidents involving the claimant was also ongoing. In August 2022, during a period of Dr Fluck’s absence on annual leave, Mr Irukulla and Ms Clarke contacted the practitioner performance advice (PPA) for advice on the situation.

[212]That advice letter sets out the history of the matter and the approach that should be taken in accordance with the MHPS framework. The advice sets out that the respondent had considered whether they could resolve performance concerns through a supportive local action plan but since then further concerns had come to their attention in respect of the claimant’s behaviour and conduct. The advice was that if remediation is to be attempted the nature and scope of the concerns requiring remediation needed to be clear and there needed to be acceptance by the practitioner of the need for this. There were not yet at that position.

[213]The advice records that they discussed a formal investigation under MHPS and that seemed to be a reasonable way forward. The advice was that the terms of reference should include the clinical and behavioural concerns and the concerns raised by the claimant about a working environment could be included as part of the investigation. That would allow an impartial gathering of evidence.

[214]Having taken this advice the matter was passed to Dr Fluck. He considered this on 1 September and therefore arranged a meeting with the claimant, her husband, Mr Irukulla, Dr Edwards and Ms Clarke on 22 September 2022. This was intended to discuss the findings of the investigations for instance 5, 6 7 and get an update from the claimant and to find out how mediation was progressing.

[215]The notes of this meeting were detailed. They record the claimant saying that she sent the mediator a list of complaints about Dr VP and Dr Lawson. We understand this to be the log which she did not give the respondent until 6 December. They also record the claimant saying “I’m just sitting down here and I’m gonna say it as it is, you know, the truth is a bitter pill to spill to follow. I just feel and it’s gonna be nasty but I’m gonna say gonna say, I just feel I wasn’t a black lady Afro-Caribbean going through all this we wouldn’t be where we are at right now and that’s the way, that’s my perception and it could be wrong people might think it’s wrong but that’s the way I feel”

[216]We find that this is in fact the first time that the claimant articulates to the respondent that complaints are connected with her race and draws a direct link between the matters that she had logged about Dr Ponnusamy and Dr Lawson to her race. We find that from this point on the respondent is on notice that this is the claim of race discrimination and that there is an Equality Act issue.

[217]It was Dr Fluck’s evidence that by 22 September it was clear mediation was not going to achieve the outcomes to be hoped for and that the clinical concerns need to be managed formally. He therefore decided that it was appropriate in line with the PPA advice to arrange investigation would address both the clinical concerns and the claimant’s allegations against her colleagues.

[218]Dr Fluck met with the PPA on 4 October 2022 and their letter of advice confirming the outcome of this meeting was dated 11 October. This advice was shared with the claimant. It confirmed that the MHPS process required a preliminary information gathering process to determine whether or not matters can be resolved informally or whether a formal investigation would be needed. Dr Fluck was advised to review and triangulate all the available information. He was also advised that the claimant should be asked to provide more specific details of her complaints.

[219]Dr Fluck was advised that if the preliminary information gathering process did not provide him with assurance regarding the safety of the clinical practice, then a formal investigation would be the appropriate way forward. This should be an investigation of all the concerns and the terms of reference should focus on the circumstances surrounding particular instances of concern. That would allow the matters raised by the claimant to be investigated as part of that investigation.

[220]The advice did consider an alternative option, that is a parallel investigation into the concerns raised by the claimant about a colleagues. The advice was, however, that having simultaneous investigations may be more complex procedurally and create additional stress and pressure for the participants.

[221]We are satisfied that the respondent took appropriate advice and the advice given was based on appropriate and sufficient information about the claimant’s circumstances. We accept that in the circumstances having two separate investigations would not have been appropriate. On the claimant’s account there is a direct link between the clinical issues and the treatment she complains of. There is a clear reason why the respondent went down the MHP’s investigation route. In doing so was acting entirely reasonably.

[222]On 24 November the claimant sent an email saying that she wished to lodge a formal grievance about the SIRI report findings. In reply the claimant was reminded that she had been asked to detail her concerns about discrimination, intimidation character assassination in writing so that those could be investigated given the mediation not been able to reach a resolution. These were received on 6 December. This was the log of the events that we have already referred to.

[223]Dr Fluck set out that he considered the evidence around the clinical concerns and decided an investigation which considered these, as well as the concerns she raised about a colleagues, should be commissioned.

[224]It has been suggested on the claimant’s behalf that there should have been an investigation about the performance capability aspect of incidents 1 – 7 in addition to the opportunity she was afforded to take part in the more mainstream investigations. The claimant accepted that there is no provision for an investigation while matters remain at an informal stage.

[225]The policy, which we have referred to previously, places an obligation on the line manager where they have concerns to escalate these to the medical director. Once they have been escalated then the chief executive must ensure that a case manager is appointed. That case manager must be the medical director where the concern relates to a consultant. That case manager must carry out a preliminary assessment to establish the nature and seriousness of the concern and whether it is necessary to appoint a case investigator to carry out a full investigation.

[226]We find that is precisely what happened. Dr Edwards escalated the concerns to Mr Irukulla. They were in turn escalated to Dr Fluck. He as case manager carried out a preliminary assessment, considering in particular the specialty report, and determined that a formal investigation was required. The MHPS

[227]This was commissioned on 27 January 2023 and concluded on 3 November 2023. Dr Fluck took the advice that he had been given that the investigation should deal with both the concerns raised about the claimant and the concerns that she had raised about her colleagues. The investigation was raised under the conduct, capability ill-health and appeals policy and had regard to the dignity at work policy.

[228]It was suggested that it would have been a much quicker process had the respondent had done a number of things differently. Firstly, if it had carried out a preliminary investigation into the clinical concerns before going formal. We have dealt with that above and have identified that the actions the respondent took were in line with its policy. Secondly it was suggested that if the two concerns have been separated the matter could be dealt with more quickly. We accept Dr Fluck’s position on this, adopting the advice he was given. We accept it was reasonable for the respondent to conclude that separating the matters would be more complex procedurally and create additional stress. We also conclude that because the claimant had said that the stress caused by the treatment she was receiving was a factor in the clinical issues, the fairest and most appropriate way of dealing with it was to look at the two aspects together.

[229]The MHPS was therefore an investigation both into the clinical concerns raised about the claimant’s performance and was an investigation into Dr Lawson, Dr Ponnusamy and Dr Edwards conduct in relation to bullying and discrimination. The latter were also investigated and were part of the process in that capacity and not just as witnesses. All received outcome letters. The claimant was not singled out. The delay in the process

[230]While the claimant raised a general complaint about discrimination and bullying et cetera on the 21/24 March 2022, she did not raise a formal grievance until 24 November 2022. She did not provide the details that had been requested before 6 December 2022. Up until that point, while we have found that she read some details from her phone in the 31 March meeting they were not given in sufficient detail to allow them to be put to the 2 colleagues she complained about. She was asked to do this but would only provide it to the mediator so the respondent did not have enough information to do more than it did – that is tell the 2 colleagues there were allegations.

[231]The respondent had already received advice that it needed to investigate both her concerns and the clinical issues together. It could not begin this process before 6 December. We find that it then acted within a reasonable timeframe to commission the report and begin the process. Any delay at this stage were due to the claimant’s default.

[232]The report process itself took around 10 months. The report itself explains the reasons for this. The scale of the investigation was not immediately apparent with some relevant witnesses only emerging during the course of investigation to be with another witness. Ultimately 27 witnesses were interviewed. 34 allegations/ concerns were investigated and the report was very lengthy being 271 pages with 2085 pages in appendices. A huge amount of information was read and collated.

[233]A number of meetings took place with the claimant, the last on 17 May 2023. Some meetings had to be rescheduled because of the claimant’s illhealth. Those who had to be interviewed were of course staff in the NICU with high pressured intensive roles. The interviews had to be fitted in around other commitments.

[234]On 13 April 2023 the investigator told Dr Fluck that the claimant had been too unwell to proceed. The meeting was postponed and they would try to have the meeting with her in May. That meant that she anticipated the report would be provided at the end of May/early June. On 20 April that information was passed to the claimant. The claimant was not provided with any other update on timing prior to her resignation. The claimant’s resignation

[235]The claimant’s witness statement sets out why she decided to resign when she did on 7 June 2023. She gives a long list of reasons. She states that her grievance was first submitted on 12 March 2022. It had not been investigated. No one was assigned to investigate her complaints until February 2024. We have found that that is not the case. She did not raise a formal grievance until 24 November 2022 .

[236]She relies on having been subject to an MHPS investigation because Dr Lawson and Dr Ponnusamy raised concerns about her performance and behaviour. We found that is not the case. Instead we have found that the respondent acted in accordance with its policies

[237]The claimant cites the fact she was too unwell to function properly and the last straw was the email of 20 April from the investigator saying there would be another extension. As referred to above, the need for this extension was triggered by the fact that the claimant could not attend the interviews due to her ill-health. She resigned without any further update and around the very time when she would have been expecting the report. She had no reason on 7 June to expect that it would not be arriving in a matter of days.

[238]She also makes reference to the fact that Dr Lawson and Dr Ponnusamy had complaints about their clinical practice but there were no formal investigations. In her witness statement the claimant compares her treatment with that of Dr Lawson. She says that on 28 April 2022 Dr Lawson was involved in a clinical incident which was not escalated and no Datix was prepared. Her witness statement says that when she brought this up both Dr Lawson and Dr Edwards laughed over it and said it was not necessary.

[239]This point was not put to either witnesses in cross examination. We find that, as set out in the GMC guidelines and the first respondent’s practice, it is up to each consultant to raise a concern where they feel it is appropriate. There is no evidence the claimant ever raised a concern. We were not taken to any other evidence that clinical incidents were not pursued against the second or third respondent in comparable circumstances. There is no evidence of numerous significant clinical incidents involving either the second or third respondent. We find that there is no evidence of any difference in treatment.

[240]The claimant references the omission of the word discrimination in the summary of the meeting on 21 March and 11 April. We have found that there was no such omission. The notes reflected what actually happened. She relies on what she says is an escalation the clinical incidents involving her on 28 April 2022. We have found that Dr Edward was acting entirely appropriately and escalating with incidents. They clearly indicated a pattern that needed to be investigated.

[241]The claimant relies on the fact she was not given an opportunity to provide information on clinical incidents until June 2022. That is to some extent because processes take a while. We have set out previously how and when she was able to participate in all the clinical investigations.

[242]She cites the fact that on 3 May Dr Lawson and Dr Ponnusamy made a complaint about her performance. That is simply not the case.

[243]While her witness statement sets all of these out, it was submitted on her behalf that the significant reason was delay which amounted to a breach of implied term of trust and confidence. We have set out our findings on delay.

[244]We note that the respondent could not begin to investigate the claimant’s concerns before 7 December 2022 as she did not provide details which been requested for many weeks before 6 December 2022. We have found that it was reasonable and proper for the investigation process to deal with both the claimant’s complaints and the concerns about her clinical performance.

[245]The MHPS was not commissioned until 27 January 2023, but we find that that was a reasonable delay given its complexity. It began in February 2023. It involved significant amounts of investigation. We find this was inevitable and necessary.

[246]It included, as is entirely proper, interviewing the claimant. This was due to take place in April but was postponed because of the claimant’s illhealth. As at 7 July, the date of the claimant’s resignation, the delay in the report was because the claimant had asked to delay meetings with her because of her ill-health. Her last interview 17 May 2023. It was the claimant illness that led to her being sent the letter of 20 April stating that the report would now be delayed until the end of May or early June. This would be to allow the claimant’s case to be properly considered.

[247]As at the date she resigned, the claimant could not know that the report would take until November. She resigned at the very point where she understood the report was close to completion. We find therefore that, since we must take into account what the claimant would know at the point of resignation, she cannot have been resigning in response to a delay. The date she resigned the report was imminent. We find that delay was not part of her reasoning. The outcome of the report

[248]This was delivered to Dr Fluck on 30 November 2023. He considered the report and its appendices. Having done so he agreed with the findings that have been upheld by the investigator.

[249]The investigator had found that there was evidence of bullying in respect of three allegations against Dr Ponnusamy. There was found to be evidence of bullying with five incidents involving Dr Lawson and partial evidence of bullying in relation to another incident. There was no evidence to support either allegation made against Dr Edwards.

[250]In reading the report Dr Fluck found no evidence to corroborate the claimant’s complaints of race discrimination. He concluded that none of the allegations of bullying were connected to race.

[251]It was suggested that the issue relating to the allegation that Dr Fluck failed to adequately address the claimant’s complaints should be read to mean that the investigator’s report focused only on allegations of direct discrimination. It was suggested that the report did not look at race as a motive for the bullying and did not consider a pattern of behaviour. Dr Fluck rejected that suggestion.

[252]We have reviewed the report and we note that after each allegation of bullying is set out, the investigator then turns her mind to whether or not that could amount to discriminatory behaviour on the grounds of race. We accept Dr Fluck’s position that the report dealt with allegations of direct discrimination and considered whether or not the bullying was racially motivated. It found that it was not.

[253]Dr Fluck sent all those involved in the MHPS an outcome letter. The claimant’s letter set out the investigation findings about the main concerns into her clinical practice. It identified that no further action would be taken. Dr Fluck reached the view it would not be appropriate to proceed with any formal action. While concerns had been identified about clinical practice, particularly about communication, he believed those could be dealt with informally. Where the claimant still employed by the Trust he advised her that no formal action be required and support will be provided to allow her to return to work. Law/Submissions Time limit Time limits Equality Act 2010 (“EA”)

[254]Section 123 EA 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.

[255]The key question in determining whether there was conduct extending over a period is whether there was an ongoing situation or continuing state of affairs which amounted to discrimination (Hendricks v Metropolitan Police Commissioner

[2002] IRLR 96

). The claimant bears the burden of proving, by direct evidence or inference, that numerous alleged incidents of discrimination are linked to each other so as to amount to a continuing discriminatory state of affairs. Direct Discrimination

[256]The claim includes direct discrimination. S13 of the Equality Act (“EqA”) provides “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.”.

[257]S.13 EqA focuses on whether an individual has been treated ‘less favourably’ because of a protected characteristic, the question that follows is, treated less favourably than whom? The words ‘would treat others’ makes it clear that it is possible to construct a purely hypothetical comparison.

[258]Whether the comparator is actual or hypothetical, the comparison must help to shed light on the reason for the treatment. Shamoon v the Chief Constable of the Royal Ulster Constabulary

[2003] UKHL 11

identified that the comparator required for the purposes of the statutory definition of discrimination must be a comparator in the same position in all material respects of the victim so that he, or she, is not a member of the protected class. There must be ‘no material difference between the circumstances relating to each case’ when determining whether the claimant has been treated less favourably than a comparator.

[259]A complaint of direct discrimination will only succeed where the tribunal finds that the protected characteristic was the reason for the claimant’s less favourable treatment. We considered the question of the degree of connection between the employer’s action and the influence of the alleged discrimination and the Supreme Court decision in Royal Mail Group Limited v Efobi

(2019) EWCA Civ 18

paragraph 28 “The aspect of section 136(2) which is the focus of this appeal is not the only respect in which the opportunity was taken to alter the wording of the old provisions so as more clearly to reflect the way in which they had been interpreted by the courts. The old provisions referred to “an adequate explanation” (or “a reasonable alternative explanation”). Those phrases were also apt to mislead in that they could have given the impression that the explanation had to be one which showed that the employer had acted for a reason which satisfied some objective standard of reasonableness or acceptability. It was, however, established that it did not matter if the employer had acted for an unfair or discreditable reason provided that the reason had nothing to do with the protected characteristic: see eg Glasgow City Council v Zafar

[1997] 1 WLR 1659

, 1663; Bahl v The Law Society

[2004] EWCA Civ 1070

;

[2004] IRLR 799

; Laing v Manchester City Council, para 51”.

[260]This decision confirmed the question is whether discrimination had nothing to do with the decision or the behaviour of an alleged wrongdoer responsible for the impugned conduct.

[261]In the Supreme Court decision in R (on the application of E) v Governing Body of JFS and the Admissions Appeal Panel of JFS and ors

2010 IRLR 136

, SC. Lord Phillips’s explained that direct discrimination can arise in one of two ways: where a decision is taken on a ground that is inherently discriminatory, or where it is taken for a reason that is subjectively discriminatory.

[262]The ‘but for’ test will apply principally in cases where some kind of criterion has been applied that is indissociably linked to a protected characteristic and, in that sense, is inherently discriminatory. However, in the majority of cases, the best approach is to focus in factual terms on the reason why the employer acted as it did. This entails the tribunal considering the subjective motivations of the putative discriminator in order to determine whether the less favourable treatment was in any way influenced by the protected characteristic relied on.

[263]As Lord Nicholls put it in Nagarajan v London Regional Transport

1999 ICR 877

, HL: ‘Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator. Treatment, favourable or unfavourable, is a consequence which follows from a decision. Direct evidence of a decision to discriminate on [protected] grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances.’

[264]The relevant provisions of section 27 of the EA 2010 provides that: ‘(1) A person(a) (A) victimises another person

(b) (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act— ….. (d) making an allegation (whether or not express) that A or another person has contravened this Act.’

[265]Detriment means some form of disadvantage, to be assessed from the view point of the worker: Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

(HL).

[266]When considering the reason for the detriment, the tribunal is considering the mental processes of the discriminator. Discrimination may be, and often is, unconscious and unintended, therefore the Tribunal’s decision will often depend on what inference it is proper to draw from all the relevant surrounding circumstances: see Qureshi v Victoria University of Manchester

[2001] ICR 863

EAT and Anya v University of Oxford

[2001] EWCA Civ 405

. It is well established that it is not necessary for the protected act to be the sole reason, if it has significantly influenced the reason for the treatment, victimisation is made out: Nagarajan v London Regional Transport

[1999] IRLR 572

(HL). Further, an employer can be well meaning but still discriminate: Amnesty International v Ahmed (UKEAT 0447/08).

[267]We were referred to Durrani v London Borough of Ealing UKAEA to the/0454/2012/RN (23 – 24). This was a case when an employment tribunal’s decision to dismiss complaints the claimant had been discriminatory against on the grounds of race was upheld. It was accepted that the claimant used the word discriminated in a way that was not linked to race or other characteristics. It concluded that in some circumstances simply using the word discrimination is insufficient for an employer to reasonably understand that a complaint of discrimination under the Equality Act has been raised. Burden of proof in discrimination

[268]Igen v Wong Ltd

[2005] EWCA Civ 142

[2005] ICR 931

, CA. remains the leading case in this area. There, the Court of Appeal established that the correct approach for an employment tribunal to take to the burden of proof entails a two-stage analysis. At the first stage the claimant has to prove facts from which the tribunal could infer that discrimination has taken place. Only if such facts have been made out to the tribunal’s satisfaction (i.e., on the balance of probabilities) is the second stage engaged, whereby the burden then ‘shifts’ to the respondent to prove, again on the balance of probabilities, that the treatment in question was ‘in no sense whatsoever’ on the protected ground.

[269]The bare facts of a difference in treatment and a difference in status only indicate a possibility of discrimination, they are not 'without more' sufficient material from which a Tribunal can conclude that there has been discrimination, Madarassy v Nomura International

[2007] IRLR246

CA.

[270]Section 95(1)(c) of ERA 1996 states that there is a dismissal when the employee terminates the contract, with or without notice, in circumstances such that he or she is entitled to terminate it without notice by reason of the employer’s conduct. To do so there must be a breach of a fundamental term of the contract, which can include the implied term of trust and confidence.

[271]Western Excavating (ECC) Ltd v Sharp

1978 ICR 221

, CA set out that in order to claim constructive dismissal, the employee must establish that:• there was a fundamental breach of contract on the part of the employer

• the employer’s breach caused the employee to resign

• the employee did not delay too long before resigning, thus affirming the contract and losing the right to claim constructive dismissal.

[272]Counsel for the respondent reminded us that in Nottinghamshire CC v Meikle [2005] ICR, it was held that whether there is a breach of contract must be viewed objectively. There will be no breach of contract simply because the employee subjectively feels that such a breach has occurred regardless of whether such a belief is genuinely held. If, on an objective view there has been no breach of contract, then the employee’s claim must fail.

[273]Individual actions by an employer that do not in themselves constitute fundamental breaches of any contractual term may have the cumulative effect of breaching the implied term of trust and confidence The Court of Appeal in Lewis v Motorworld Garages Ltd

1986 ICR 157

, CA, held that a course of conduct can cumulatively amount to a fundamental breach of contract entitling an employee to resign and claim constructive dismissal following a ‘last straw’ incident even though that incident by itself does not amount to a breach of contract.

[274]In Omilaju v Waltham Forest London Borough Council

2005 ICR 481

, CA, Lord Justice Dyson considered that the last straw does not have to be of the same character as the earlier acts in the series, but it must contribute something to the breach of trust and confidence.

[275]If the employee is constructively dismissed then the employer must show that the dismissal was for a fair reason (Savoia v Chiltern Herb Farms Limited

[1982] IRLR 166

[276]Pursuant to Section 98(4) ERA 1996, if the employer has shown a potentially fair reason for dismissal, the Tribunal must consider whether dismissal is a fair sanction in the circumstances and in accordance with equity and the substantial merits of the case.

[277]When considering Section 98(4), and the reasonableness of the employer’s conduct, the Tribunal should not substitute its decision as to what was the right course to adopt. The function of the Tribunal is to determine whether, in the particular circumstances of the case, the Respondent’s decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If a Respondent so demonstrates this, the dismissal is fair (Iceland Frozen Foods v Jones

[1982] IRLR 439

, paragraph 24)

[278]Both counsel in this case referred us to the case of Gogay v Hertfordshire County Council [2000] IR and R702. The facts of this case involved a suspension pending an investigation. The Court of Appeal held that this amounted to a breach of an implied contractual duty of trust and confidence. Whether it does amount to such a breach will depend upon whether or not there was reasonable and proper cause for the employer’s action.

[279]We were also referred to WA Goold (Pearmark) Ltd v McConnell [195] IRLR 516. The facts here relate to the failure by the employer to pursue a grievance procedure in the circumstances where there was no written statement of terms specifying a method of pursuing a grievance. The EAT held that it is an implied term in a contract of employment that the employers will reasonably and promptly afford a reasonable opportunity to their employees to obtain redress of any grievance they may have. It was said that the right to obtain redress against a grievance is fundamental and on its facts, allowing a grievance to fester in apathy or prevarication indecision meant the employers were in breach of implied contractual term which is sufficiently serious to justify the employees and terminating their employment.

[280]Counsel for the claimant submitted that the latter case displaces what is in effect a defence to the breach, namely that a breach will arise only where there is no reasonable and proper cause for the employers action. It was the claimant’s submission that a grievance procedure is a fundamental right and any failure to give a reasonable opportunity for it to be heard is sufficient to amount to a breach.

[281]Counsel for the respondent did not accept that. It was her submission that the facts of the Goold case arose where there was no procedure. That’s not the case here. The more appropriate test would be to consider whether there has been a breach of the term of trust and confidence and there must be no reasonable proper cause of the conduct said to amount to that breach.

[282]We conclude that the Goold case is specific of its facts. That decision must be seen in the light of there being no grievance procedure at all. We accept that we should consider the severity of any breach and if there is any reasonable cause for the conduct said to amount to the breach. Conclusion

[283]We have then considered the findings of fact as we have made them and the applicable law as we have set out above. Our conclusions are set out below, adopting the issues list as a framework. Jurisdiction/time limits

[284]We have considered the jurisdiction point. The complaint of constructive dismissal is made within time. As to the complaints of discrimination, we conclude that the matters complained of can properly be considered a continuing state of discriminatory conduct. We have jurisdiction to hear the complaints. Direct discrimination

[285]Taking each issue from the issues list in turn our conclusions are as follows. In each case the numbered issue follows the question “Did the Respondents subject the Claimant to the following treatment?”. We have also answered the question of whether or not any of these matters were less favourable treatment and if so, whether the client was treated less favourably because of her race.

[286]In reaching our conclusions will rely on our findings of fact that, while the claimant used the word discrimination from around 21 March 2022, we have found that she did not do so in a way that linked this to the Equality Act. She did not raise any specific complaints. She did not specify what these complaints were. It was understood by the respondent, and we found that it was reasonable for them to do so, that she was making a generic complaint of unfair treatment. We take into account the decision in Durrani to which we were referred and conclude that in the circumstances of this case, it was not until 22 September when the claimant articulated a link to race, that her complaint could have been understood to be a complaint of race discrimination.

[287]We’ve also found more generally that the question of whether or not individuals acted as they did because of the claimant’s race (and because of alleged protected acts which are relevant to victimisation claim) were not put to many of the witnesses. The claimant has generally made a link between her race and what happened to her and has not done more than that. a. On 21 March 2022, the omission of “discrimination” and the discussion about the Claimant being subjected to discrimination, intimidation, character assassination by Respondents 2-3 in the Fourth Respondent’s summary of the meeting with the Claimant on 21 March 2022 [R1/4]; - Actual comparators, Second and Third consultants who are not of the same ethnic original and nationality as the Claimant’.

[288]We have found that the complaint that the claimant was being subjected to discrimination, intimidation, character assassination was not said by the claimant to have been done by Dr Lawson or Dr Ponnusamy. Only one reference was made to Dr Lawson and that was that she had spoken over the claimant at a meeting. No complaints of any sort were raised about Dr Ponnusamy. The reference to Dr Lawson was not made as an allegation of discrimination, intimidation or character assassination. To that extent a complaint that this was not recorded cannot succeed as a matter of fact.

[289]In closing submissions the claimant’s counsel has not focused on this issue being about the matters being raised about the second and third respondents, but about the fact that the word discrimination and the discussion of this was not included in the notes. We have found as a matter of fact that the word discrimination and the list of words the claimant used was not included in the summary of the meeting.

[290]In submissions the issue is further expanded to include a complaint that no action was taken in relation to these complaints and no nondescript explanation its failure to investigate those complaints was given. We have found that action was taken. To the extent that this complaint is within the issues list it does not succeed as a matter of fact.

[291]We have gone on to consider the question of less favourable treatment only in relation to the omission of the word discrimination and the discussion of the other words since any other matters that are now said to be part of this issue do not succeed on the facts.

[292]The claimant relies on both Dr Lawson and Dr Ponnusamy as well as a hypothetical comparator to evidence less favourable treatment. We have found there was no evidence that Dr Edwards would have included the word discrimination in a meeting of this kind with other people in the circumstances where they had not provided any examples and she did not understand this to be the main thrust of the meeting. This part of the claim does not succeed on that basis. There is no less favourable treatment. In any event there is no evidence from which we can determine that the claimant’s protected characteristic was the reason why this word is omitted. As noted above we accepted Dr Edwards reason for this omission and find that it is an objective one which has nothing to do with race. Issue 5 a does not succeed. b. On 11 April 2022, the omission of “discrimination” or the discussion of the Claimant feeling she was being subjected to discrimination, intimidation, character assassination by Respondents 2-3 in Mr James Thomas’ email of the summary of the meeting on 31 March 2022 [R1]; - Actual comparators, Second and Third Respondent and/or hypothetical – ‘other neonatal consultants who are not of the same ethnic original and/or nationality as the Claimant’.

[293]We have found that Dr Thomas summary of the meeting of 31 March summarised in the note of 11 April does omits discussion of the claimant feeling she is subjected to discrimination by Dr Lawson and Dr Ponnusamy as this was not what the claimant said. The claimant had made a vague reference to undermining behaviour and discrimination but had not attributed discrimination as a motive to either Dr Lawson or Dr Ponnusamy for the undermining behaviour that she referenced. It was not in the note because it was not said. This part of the allegation fails on the facts.

[294]It is accepted that Dr Thomas did not report the word discrimination of discussion around character assassination. We have then gone to consider whether this omission is less favourable treatment. The claimant relies on both Dr Lawson and Dr Ponnusamy as well as a hypothetical comparator to evidence less favourable treatment.

[295]We have found Dr Thomas did not record the word discrimination because the claimant had not provided examples of this or confirmed that she was raising allegations of race discrimination. The notes are intended to be a summary of the main points that are not verbatim.

[296]We have found there was no evidence that Dr Thomas would have included the word discrimination in a meeting of this kind with other people in the circumstances where they had not provided any examples. This part of the claim does not succeed on that basis. There is no less favourable treatment. Further we have accepted that the reason why Dr Thomas did not include these words was an objective one and had nothing to do with the claimant’s race. Issue 5b does not succeed. c. On or about 28 April 2022, the Respondents’ escalation of the clinical incidents involving the Claimant and/or without the Claimant being asked to provide her account and without being given an opportunity to explain the circumstances, as would have been expected in the Datix/SIRI process [R1/R2/R3/R4]; - Actual comparator, Second Respondent and/or hypothetical comparator – ‘other neonatal consultants who are not of the same ethnic origin and/or nationality as the Claimant’. [The Respondent’s position is that R2 cannot be appropriate actual comparators for acts of discrimination which are alleged to have been carried out by R2/R3]

[297]We have found that around 28 April Dr Edwards did escalate a number of clinical concerns about the claimant. We have found that in doing so she was acting within the respondents policy and fulfilling a professional obligation.

[298]We have found that the claimant was given the normal opportunity to provide feedback to these via the Datix/SIRI processes. We have also found that the respondent took all the steps the policy required in investigating the seven incidents as a capability concern. The claimant accepted that there is no provision for an investigation while matters remain at an informal stage. We have found that the respondent acted within its policy, serious concerns were escalated to the appropriate person. Once that occurred the case manager carried out a preliminary assessment to establish the nature and seriousness of the concern and determined that a case investigator should be appointed to carry out a full investigation.

[299]During that full investigation the claimant had every opportunity to comment on these incidents. As a matter of fact we find that the claimant was afforded full opportunity both for the usual processes and through the MHPS policy which was properly implemented by the respondent.

[300]We have found that the claimant was not treated less favourably because in accordance with the policy a consultant would not be given an opportunity to explain a pattern of serious concerns before the incidents were escalated. There is no less favourable treatment.

[301]We are satisfied that Dr Edwards would have done the same in relation to any hypothetical comparator where she had a concern as to patient safety. We have found that it is an obligation on doctors to report in this way. Further, while the complaint fails on the basis of no less favourable treatment, we would also find that Dr Edwards motivation was to fulfil her professional obligation. It was nothing to do with the claimant’s race. Claim 5c does not succeed.

[302]In closing submissions the claimant’s counsel also made reference to action not being initiated against the second or third respondent in comparable circumstances. We have addressed the claimant’s complaint around the incident on 28 April 2022 and found that it was a matter for the claimant to have raised the concern and there is no evidence that she did so. We have also found that there is no evidence of any comparable circumstances relating to the second or third respondent and therefore there is no failure to investigate clinical concerns about others. d. The Claimant being denied the opportunity to provide information on the clinical incidents which were escalated to Mr Irukulla until June 2022, after the Claimant met with Mr Irukulla on 3 May 2022 and complained about this [R1]; Actual comparator, Second Respondent and/or hypothetical comparator who was not of the same ethnic origin and/or nationality as the Claimant.

[303]The claimant was given the opportunity to provide information on all of the clinical incidents which were escalated to Mr Irukulla. We have found as a matter of fact that she did not complain about any lack of opportunity to do this to him. It is not the case therefore that she was provided with this opportunity because she made a complaint to Mr Irukulla that she had been denied any opportunity.

[304]We have also found that the investigation processes can take some time. The nature of the incidents meant that they were a mixture of mortality reviews, divisional investigations and Siri investigations. These are complex with different stages. We find that the investigations happened at an appropriate pace and the claimant had a full opportunity to give her input.

[305]To the extent that this issue is intended to be about either a failure to allow the claimant an opportunity to comment on the seven incidents as performance/capability concerns prior to the MHPS, or a failure in the meeting on 3 May for the claimant to be shown the allegations in full, we have reached this conclusion.

[306]The MHPS process does require the appointed Case manager to carry out a preliminary assessment to establish the nature and seriousness of the concern. This happened. There is no provision for a prior investigation before the case investigator investigate.

[307]Mr Irukulla, at the meeting on 3 May did hear the claimant’s side of matters as he was able to identify that there were two sides to the story. We conclude that the claimant was given a sufficient opportunity at this meeting given that it was primarily an opportunity for her to raise her concerns.

[308]While we have not found that there was any failure, if there was, we have considered whether not this would amount to less favourable treatment. As we have said it was entirely appropriate for Dr Edwards to raise concerns in this way and the policy provides for this. She is under an obligation to do so. There is no less favourable treatment in these allegations being raised. If it was the case, which we have rejected, that the claimant did not have a proper opportunity to raise these matters we would nonetheless find that any other consultant would have been treated in the same way. The respondent had two ways of investigating. The claimant was afforded the opportunity in both of these ways. The respondent allowed her an opportunity to respond via the normal processes. It allowed her to respond to the MHP process and the steps of that policy were met. Further we are satisfied that the reason the concerns were raised were genuine concerns over patient safety and had nothing to do with race. Further, if the claimant was not given a full opportunity to comment (which we have found was not the case) this would not be because of a race but because of the way in which the policy works. Issue 5d does not succeed. e. On or around 3 May 2022, the Second and Third Respondents’ complaint about the Claimant’s performance and behaviour [R1/R2/R3]; - Actual comparators Second and Third Respondent and/or hypothetical comparator – ‘other neonatal consultants who are not of the same ethnic origin and nationality as the Claimant’. [The Respondent’s position is that R2/R3 cannot be appropriate actual comparators for acts of discrimination which are alleged to have been carried out by R2/R3]

[309]We found that this did not occur as a matter of fact. There were no such complaints from these respondents. Dr Lawson did not raise any complaints about the claimant’s performance which were investigated. Dr Ponnusamy was involved in two of the seven incidents but the complaints were raised by a variety of people. The 3 May meeting was not triggered by anything that either Dr Lawson or Dr Ponnusamy said. This issue does not succeed.

[310]In closing submissions the claimant’s counsel references Mr Irukulla’s state of knowledge of the claimant’s complaint of race discrimination. It does not appear to us to be immediately connected to the issue as set out. Nonetheless, we repeat that we have found that the respondent had legitimate reason to be concerned about the claimant’s clinical practice. At the time 3 May meeting took place we have found that the Mr Irukulla was not aware that the claimant had raised a claim of racism because she had not articulated it in that way.

[311]The claimant’s counsel repeats the points he made in relation to issue 5d about a failure to provide the claimant with full details at the meeting 3 May. We have already addressed that. f. The inaction and/or delay in dealing with the Claimant’s complaints about the Respondents since 21 March 2022 under the First Respondent’s policies and procedures [R1]; - Hypothetical comparator as defined above

[312]We have found as a matter of fact that the claimant sent an email 24 March asking for a meeting to discuss a complaint of discrimination. That makes reference to an informal complaint of discrimination, intimidation and character assassination. Thereafter she was invited to a meeting which took place on 31 March. We have found that what she complained of was bullying with no cause being assigned. Dr Thomas responded to what he was told by summarising the meeting to the claimant and setting out an action list. Further, Dr Abbott and Dr Thomas spoke to Dr Lawson Dr Ponnusamy and raised with them the unspecified complaints of bullying.

[313]We have found that the respondent was unable to progress this matter because the claimant did not provide details of her complaint until 6 December 2022. Thereafter, following advice from the PPA a decision was taken to deal with her complaints alongside the clinical investigation and the matter was dealt with. There was a delay in starting this process because it was hoped that mediation would succeed. It only became clear in December that this was not going to happen. It was only from 6 December that the respondent had the details to take forward. Complaints cannot be investigated within a four-week window where those complaints are not voiced. It cannot be the fault of the respondent that it failed to meet this window. It cannot be an act of discrimination not to progress matters when it was unable to do so because the claimant did not cooperate.

[314]The respondent did not take the complaints made by white people in the neonatal unit more seriously the matters raised by the claimant. As we have found the complaints about the claimant were made by a variety of people which included those of different ethnicity. The complaints the claimant raised and the complaints about her were dealt with through the same MHPS process.

[315]The MHPS was then commissioned in January 2023. We found that the delay in dealing with the matter from when the claimant says she raised it on 21 March was because the claimant had not given enough details, despite being asked. We find that there was no less favourable treatment as any individual who failed to provide the requested details to allow a matter to be investigated would face the same delay in investigation. This claim does not succeed.

[316]We have found as a matter of fact that the claimant’s grievances were investigated as part of the MHPS process. The investigation was extremely thorough and detailed. All aspects of the claimant’s grievance was investigated. This claim does not succeed as a matter of fact.

[317]In any event in the circumstances where grievances and clinical performance are said to be linked, we conclude that a comparator would have been treated in the same way with an investigation that dealt with both aspects. There is no less favourable treatment. We also found that the reason why the two were linked and the MHPS process was started was on the basis of advice and genuine concerns. There was no racial aspect to this. g. The First Respondent’s failure to investigate the Claimant’s complaints/grievances properly or at all [R1]; - Actual comparators, defined above.

[318]We repeat the points we have made above. For the same reasons this allegation does not succeed. h.The Respondents subjected the Claimant to a clinical incident investigation in circumstances when they did not believe the Claimant had committed any act of misconduct because she was asked for her comments on the incident on 22 September 2022, more than 5 months after the clinical incidents- Actual comparators, Second and Third Respondents and hypothetical comparator as defined above. [The Respondent’s position is that R2/R3 cannot be appropriate actual comparators for acts of discrimination which are alleged to have been carried out by R2/R3]

[319]We understand the clinical investigation incident that is referred to here is the investigation that arose as a result of Dr Edwards compiling the list of seven incidents which ultimately was dealt with through the MHPS.

[320]We have made findings of fact that the matters were escalated in response to a genuine concern by Dr Edwards that the incidents revealed a pattern. In raising these concerns we have found the Dr Edwards was fulfilling her professional obligation. In order to maintain high professional standards if an employee has a concern about conduct or capability the most immediate report of their line manager. The line manager must urgently notify such concern to the Chief Executive or medical director. We find that the concerns were genuinely held.

[321]We are satisfied that any individual in the same circumstances would have been treated the same way. There would have been a clinical incident investigation where there were legitimate and general concerns as was the case here. We are satisfied that the reason that the concerns escalated were nothing to do with race. They were entirely reasonable concerns.

[322]In submissions claimant’s Counsel characterises this issue as being about when the claimant was given an opportunity to comment on the incident. That is not how we read this issue. It appears to us to focus on a lack of genuine belief by the respondent. We’ve already addressed above the lack of opportunity to coment and on our finding of fact that is not the case. i.The Respondent’s action of subjecting her to an MHPS investigation and the protracted delay in the investigation is discriminatory [R1]; and - Actual comparators, Second and Third Respondents and hypothetical comparator as defined above.

[323]We have found that the respondent’s conduct in beginning an MHPS investigation, to which the second, third and fourth respondents were also subject, was based on appropriate advice and was a fair and reasonable decision in all the circumstances.

[324]It may have been quicker if the claimant’s complaints, which were not raised in an appropriate form that allowed investigation until 6 December, had been dealt with separately and the grievance procedure. However, we have found that it would have been inappropriate as there was a clear link between her concerns and the concerns raised about.

[325]We conclude that any individual who had voiced that there was a link between their concerns and clinical concerns would have been treated in the same way. We are satisfied that the explanation of the respondent has given is a non-discriminatory one. This complaint does not succeed. j.The decision to subject the Claimant to an MHPS investigation whilst Respondents 2-4 have not been subjected to the same proceedings amounts to racial discrimination [R1]; - Actual comparators, Second and Third Respondents and hypothetical comparator as defined above.

[326]We have dealt with the reasons for this in answer to the previous issue. We repeat these. This complaint does not succeed.

[327]We note as a matter of fact that the second third respondents were subject to the exactly the same MHPS. k. Protracted delay in carrying out the MHPS investigation [R1]; - Actual comparators Second and Third Respondent and hypothetical comparator as defined above.

[328]We have found that the claimant did not raise complaints that were understood, or articulated to be about race discrimination until at the earliest 3 May 2022. She did not raise was identified as a grievance by her until 24 November 2022. She did not provide the information that was needed to progress her issues until 6 December 2022.

[329]We have already set out that the decision to begin an MHPS investigation was a reasonable one. It was commissioned in January 2023 and began in February 2023. The delay in investigating the claimant’s issues was largely due to her default in not providing the necessary information to 6 December. Thereafter we find that the respondent acted within a reasonable time period in beginning the investigation in February. It was a complicated matter that required a detailed remit. This was not less favourable treatment than any comparator as we consider the same time would have been spent on any such investigation as this was driven by complexity. The time spent had nothing to do with race. l.Constructively Dismissing the Claimant [R1];

[330]As we have found that the MHPS report fully considered all the allegations of racism, both direct and whether or not the bullying amounted to discriminatory conduct, we have found that Dr Fluck did adequately address all her complaints. The claimant cannot therefore have resigned in response to any discriminatory conduct. There was none. This claim cannot succeed. m By upholding complaints, in whole or in part, against the Second (complaints 3,4, 5, 6 and 9) and Third Respondent (complaints 4, 8 and 15 including a complaint of victimisation) but concluding that there was no evidence of discriminatory behaviour, Dr Fluck failed to address or failed to adequately address the Claimant’s complaints of race discrimination and/or harassment and thereby either consciously or sub-consciously discriminated against the Claimant because of her race. [R1]. The Claimant relies on a hypothetical comparator who was not of the same ethnic and/or national origin as herself.

[331]We have found that Dr Fluck carefully considered the report. We have found that the report dealt with both allegations of direct discrimination and also considered whether the bullying allegations, some of which were upheld, were racially motivated. The Report concluded that they were not.

[332]We have found a matter of fact that Dr Fluck did adequately address the claimant’s concerns. This allegation fails as a matter of fact.

[333]For these reasons none of the claims of discrimination succeed.

[334]Turning next to the claim of victimisation and in each case considering the following questions: Did the Claimant do a protected act? Did the respondent subject the claimant to detriments. Were these detriments because she had done a protected act. a.12 March 2022: Claimant had discussions with Dr Tosin Otunla via phone on how she was being treated differently and less favourably by R2 and R3, set out fully in the Claimant’s response to the Request for further information dated 30 July 2024, compared to other Neonatal Consultants and that she believed this was because of her race. b.21 March 2022: Claimant had an informal meeting with R4 and Dr Tosin Otunla during which, and in a subsequent email dated the same day, the Claimant discussed being subjected to disrespect, blunt, condescending and demeaning behaviour. The Claimant informed them during this meeting that she was being treated differently and less favourably by R2 and R3, set out fully in the Claimant’s response to the Request for further information dated 30 July 2024, compared to other Neonatal Consultants and that she believed this was because of her race. c. 24 March 2022: Claimant’s email to James Thomas, R4 and Dr Tosin Otunla requesting to have a meeting with them to discuss her informal complaint of discrimination, intimidation and character assassination. d. 31 March 2022: Claimant attended a meeting with James Thomas and Dr Tosin Otunla to discuss her past and ongoing treatment at work by R2 and R3. The Claimant complained she was being treated differently and less favourably by R2 and R3 and that she believed this was because of her race, set out fully in the Claimant’s Response to the request for further information dated 30 July 2024. e. 3 May 2022: Claimant attended a meeting with Shashi Irukulla and Kate Clarke where she explained how she was being treated differently and less favourably by R2 and R3 because of her race, set out fully in the Claimant’s response to the Request for further information dated 30 July 2024.

[335]We have found that the claimant had not raised a complaint under the Equality Act up to and including 3 May. We have found sheused the word discrimination in a generic sense and was part of a complaint about unfair treatment not linked to any protected characteristic. There was no protected act. f.27 November 2022: Claimant’s formal complaint of discrimination, intimidation, character assassination, bullying, harassment and victimisation against R2 and R3. g.6 December 2022: Claimant’s email to Dr David Fluck and Kate Clarke including a list of her complaints.

[336]While the emails referred to by the claimant do not themselves raise an Equality Act issue clearly, we have found that the claimant had raised this in a meeting on 22 September 2022 and therefore the respondent was on notice of her claim. On that basis we are satisfied that her subsequent complaints should be read and understood as being complaints of racism. These therefore amounts to protected acts.

[337]The claimant relies on a list of complaints of detriments. Based on our finding, only those acts that occurred after 22 September could conceivably be a detriment related to that protected act.

[338]We therefore find that issues a-g could not amount to detriments. These actions cannot be in retaliation for complaints made because they had not been made at that point.

[339]In considering the remaining issues, three relate to the decision to subject the claimant to an MHPS investigation and the delay in carrying that out. We have dealt with the reasons for this in making a decision on the question of direct discrimination. We are satisfied in relation to all these matters that they had absolutely nothing to do with the claimant’s complaints of racism. We rely on the reasoning we have already set out.

[340]None of the claims for victimisation succeed.

[341]The issue is put in this way The Claimant claims that the Respondent acted in fundamental breach of contract in respect of the implied term of mutual trust and confidence and/or in breach of the implied term to investigate a grievance and/or to investigate a grievance in a timely manner. The Claimant relies on the following in support of her complaint that the First Respondent breached the implied duty of trust and confidence either individually or cumulatively namely:a. The decision to subject the Claimant to an MHPS investigation whilst Respondents 2-4 have not been subjected to the same investigatory proceedings;

b. The failure to investigate the Claimant’s grievance and/or to investigate a grievance in a timely manner and protracted nature of the investigation; and

c. The matters set out in paragraph 5(b) to (e) which cumulatively or individually entitled the Claimant to resign.

[342]Our findings of fact have concluded that issues 5(b) to (e) did not occur. They cannot amount to a breach of any implied term. We have found that the three named individual respondents have been subject to exactly the same MHPS procedure. That cannot amount to a breach of contract.

[343]In submissions the claimant’s counsel focused largely on the question of delay as a breach of the implied term. We have found that the claimant did not provide sufficient detail to allow her claim to be investigated until 6 December 2022. There was then a short delay before the process was started but we find that this was inevitable and necessary given the complexity of the matters. We have already found that the claimant’s grievances had to be heard with the clinical concerns because they were interlinked. In any event even if the matters had been dealt with separately, this could not have started before 7 December 2022. Delay up to this date is because of the claimant’s lack of action.

[344]Once the MHPS process began, it was then further delayed because the claimant was unable to take part in interviews. She contributed to the delay in the process. It was her delay that led to the notification of 20 April that matters would not then be dealt with before the end of May early June. We have found that it was appropriate for the claimant’s concern to be dealt with at the same time as the clinical concerns and we also conclude that the respondent could not complete its report until it had heard from the claimant. That did not happen until May 2023. The last meeting with the claimant is recorded as taking place on 17 May 2023.

[345]While we accept that matters were not dealt with speedily, we have also found that the policy provided for extensions of time if these were notified. That occurred. We have found that the investigation was necessarily complex. Any delay the claimant is reacting to was significantly contributed to by her own actions.

[346]She also resigned before she knew that the report was not going to be delivered in June. We have found as matter of fact that she did not resign because of the delay in the report being delivered.

[347]For the reasons set out above we conclude that there was no delay that amounted to a breach of the implied duty of trust and confidence. We also conclude that the claimant did not resign because of any delay. This claim does not succeed. F Mclaren