Dr M Norton v East Kent Hospitals University NHS Foundation Trust: 2305484/2019

EMPLOYMENT TRIBUNALS

Case No 2305484/2019

Between

Dr M NortonClaimant

East Kent Hospitals University NHS Foundation TrustRespondent

Before

Employment Judge Ferguson

Members

Ms B Von Maydell-Koch

Mr M Cann

In person for claimant

Mr T Kirk (instructed by counsel) for respondent

Date 24 June 2021

JUDGMENT

It is the unanimous judgment of the Tribunal that: The Claimant’s complaints of age discrimination fail and are dismissed.

REASONS

[1]The Claimant was employed by the Respondent as a Foundation Year 1 (“FY1”) Trainee Doctor from 9 July 2018 until 6 August 2019. By a claim form presented on 12 December 2019, following a period of early conciliation from 28 October to 13 November 2019, the Claimant brought complaints of direct age discrimination. He complains that he was treated less favourably than his younger FY1 colleagues.

[2]Because of restrictions relating to the Covid-19 pandemic the hearing took place by remote video hearing with the consent of the parties.

[3]The issues were agreed at a preliminary hearing on 22 June 2020. The parties confirmed at the start of the hearing that they were accurate, with one minor amendment that was not disputed. The final agreed list of issues is as follows: Jurisdictional Issues 1) Are any or all of the Claimant’s claims for age discrimination out of time? 2) If so, do the allegations made by the Claimant amount to an act extending over a period of time so as to bring the Claimant’s claims in time? 3) If not, would it be just and equitable to extend the time limit for submitting such claims? Direct Discrimination 1) Did the Respondent treat the Claimant less favourably than it treated the Claimant’s FY1 colleagues (the “Comparator(s)”) by? a) On 9 July 2018, the Claimant was informed by Dr McGettigan that he was “overconfident” b) On 3 October 2018, Ms Sharp informed the Claimant that he was not to undertake any locum shifts; c) On 3 October 2018, Ms Sharp informed the Claimant that doing extra shifts could make the Claimant “tired or anxious”; d) On 8 October 2018, Dr McGettigan informed the Claimant “you are not to do any locum work because of your age”; e) On 22 November 2018, Dr McGettigan informing the Claimant he was “not the same” as other F1 doctors; f) Ms Sharp extending the duration for the Claimant’s TAB and adding to his TAB on her own volition (as set out at para 16.5 and 16.6 of the Grounds of Claim); and g) The Respondent failing to conduct the Claimant’s Annual Review of Competency Progress (ARCP) until 1 August 2019; 2) If so, was the less favourable treatment (a – g above) because of the Claimant's age contrary to the Equality Act 2010?

[4]We heard evidence from the Claimant. On behalf of the Respondent we heard from Elizabeth Sharp, Christopher McGettigan and Paul Stevens. We had a bundle of around 500 pages and some additional documents were produced during the hearing.

FACTS

[5]The Claimant was born in May 1960. When he was in his 40s, having spent many years working as a school teacher, he changed career and began medical training. He graduated from Nottingham Medical School (“NMS”) in 2011, aged 51. He then undertook an FY1 post at the Royal Devon & Exeter Hospital. The Claimant says he experienced age discrimination during his FY1 training which contributed, alongside other issues in his personal life, to him suffering from depression. He was prescribed medication and had nine days off work before returning part-time. Before the Claimant completed his FY1 training a patient made a series of allegations against him. The Claimant left the hospital in December 2013 without completing his FY1. He was given an “Outcome 4” (released from training programme).

[6]Shortly afterwards the General Medical Council (“GMC”) commenced an investigation into the allegations against the Claimant. The Claimant says he undertook some locum work in two different hospitals in early 2014, but was then unable to practise in medicine from July 2014 as a result of the investigation. He says the GMC investigation resulted in a hearing before the Medical Practitioners Tribunal Service (“MPTS”) and findings were made of dishonesty, but he successfully challenged the outcome in the High Court and by 2018 the GMC had returned his name to the register.

[7]In the meantime, the Claimant had also brought proceedings for age discrimination in the Employment Tribunal against the Trust where he undertook his FY1. He says the case was settled and this included the hospital writing a letter saying it no longer objected to him having a second attempt at FY1 at a different hospital.

[8]In 2018 the Claimant approached South Thames Foundation School, which operates under the auspices of Health Education England (“HEE”), to enquire about taking up an FY1 post that summer. Because of his untypical history, the mechanism for repeating FY1 was somewhat unusual in that the Foundation School (also known as the “Deanery”) had to create a “LAT” post – Locum Appointment for Training. This meant that the Claimant was outside the normal training path and there was no guarantee of progression to FY2.

[9]The Claimant was offered an FY1 post at Queen Elizabeth The Queen Mother Hospital in Margate (“QEQM”), which is operated by the Respondent, to commence in August 2018.

[10]There was correspondence between the Claimant, the Foundation School and NMS in the run-up to the Claimant starting at QEQM. By the time he started it was clear that NMS’s position was that they would not issue a Certificate of Experience on completion of FY1, so the Claimant would not be able to obtain full registration with the GMC or progress to FY2. The Claimant disputes NMS’s reasons for their position, which relate to the fact that he did not appeal the Outcome 4 decision from his first FY1 within the relevant time limit.

[11]It was agreed between the Claimant, the Foundation School and QEQM that because the Claimant had been out of clinical practice for some time he would undertake a three-week period of shadowing at QEQM before starting his training.

[12]The Claimant completed a Transfer of Information form for QEQM, which disclosed that he had graduated from medical school in 2011 and that he had been diagnosed with depression in 2013. The Claimant explained that he had been out of clinical practice for some time. He said his medication stopped in December 2016 without problems.

[13]The Claimant commenced work at QEQM on 9 July 2018. The Clinical Tutor at QEQM was Miss Elizabeth Sharp, a consultant surgeon. She described her role in her witness statement as follows: “As Clinical Tutor, I am responsible for overseeing the provision of education for doctors in training at QEQM and ensuring that this is carried out to a satisfactory standard. This role includes overseeing the Foundation Year 1 and 2 doctors. I am supported by Dawn Warren, the Administrator. I have held this role since 2006.”

[14]The foundation training programme director was Dr Christopher McGettigan. He gave evidence that his role “involves organising the training, management and quality control of the teaching programmes, to provide support for trainees in difficulty and to discuss educational and programme development issues with colleagues and trainees at Faculty meetings.”

[15]The Claimant’s educational supervisor was Dr Anne Ballinger.

[16]It is not in dispute that the majority of the other FY1s in the Claimant’s cohort were under 30. One was 31 and another was 34.

[17]On 2 July 2018 Dawn Warren, the Administrator, sent an email to all FY1s due to start at QEQM, inviting them to the summer ball on 28 July. The Claimant replied the same day saying he would not be attending and he offered to do locum work that evening “so everyone who wants to go can do so”. He said, “Unlike the new doctors I am allowed to work as an F1 as soon as I have fulfilled local recruitment requirements”. Ms Warren forwarded the email to Miss Sharp and Dr McGettigan.

[18]On 9 July, his first day at QEQM, the Claimant had a meeting with Dr McGettigan. Dr McGettigan says in his witness statement that he was aware of some of the Claimant’s background through the Transfer of Information form, so he wanted to understand if there was a need to provide extra support. There was discussion during the meeting of the Claimant’s past depression. Dr McGettigan offered a referral to occupational health, but the Claimant said it was not necessary. It is not in dispute that in the course of the meeting Dr McGettigan cautioned the Claimant about being over-confident, and that this was related to the Claimant’s offer to do locum work before he had even started at QEQM. Dr McGettigan said in his evidence to the Tribunal that he did not in fact recall saying this, “but I may well have made a comment cautioning the Claimant against overconfidence because he had been out of practice for such a long period of time but was volunteering for additional duties before he had even commenced the foundation year . This comment was not made because of the Claimant’s age. I would have made the same comment to any junior doctor who had been out of practice for so long.”

[19]Dr McGettigan also says that the question of the Claimant’s age came up at the meeting. He says the Claimant mentioned that it had been an issue at his previous placement. Dr McGettigan told the Claimant that his age was irrelevant and the focus was to get him through the FY1 year. Dr McGettigan’s evidence to the Tribunal was that this made him aware that age was a sensitive issue for the Claimant.

[20]The Respondent set up regular meetings between the Claimant and Dr McGettigan because they were concerned the Claimant might need additional support due to his unusual route to FY1 and history of mental health issues.

[21]A further meeting between the Claimant and Dr McGettigan took place on 20 September 2018. The notes record the following: “CM [Dr McGettigan] stated that from the feedback he had received on MN [the Claimant] he was found to be very keen and earnest but can lack a bit of focus at times and needs to think about what is important at the time. Also that he mentioned his age a lot — this was understandable at the start but that it was not important or relevant now. MN took this on board.”

[22]On 29 September 2018 the Claimant emailed the Medicine Directorate Support Assistant offering to do locum work. Miss Sharp became aware of the email and asked the Claimant to attend a meeting with her on 3 October 2018. The meeting is central to the Claimant’s complaints, so the notes (which are not disputed) are cited here in full: “ES requested to meet with MN as a query had arisen from an email sent from MN to the Medicine Directorate Support Assistant on 29th September. In this MN had stated that he is a ‘Locum Appointed for Training’ and should be offering to do locum work’. The email went on to state he had ‘done hot on-call in the Emergency Department (ED) and his Clinic Week is in ED and offering to undertake weekend, evenings or twilight shifts’. ES asked how MN was getting on and she went on to reassure him this meeting was not for any major concerns. ES confirmed with MN that he had been appointed by the Foundation School as a Locum for Training and that his contracted work plan was for standard F1 hours and that there was not an expectation for him to work locum shifts. ES then asked if he had undertaken additional shifts for Medicine and he said he had. ES explained that, as he was a trainee in need of support, she would not wish him to undertake locum shifts to reduce unnecessary stress. He appeared surprised at this point stating that he felt capable to undertake the extra hours. ES went on to explain that in a busy environment, doing extra hours it is possible to become stressed, which we would wish to avoid. MN stated that he did not feel stressed at work or that the extra hours would cause him stress and that he had not had any mental health issues for a number of years. ES went on to state that our aim was to support him in completing his FY1 successfully with an Outcome 1 at ARCP. She went on to enquire if his experience in ED was during his medicine hot on-call or if he had worked on the ED shift. MN confirmed that any patients he had seen in the ED where in his role as a medicine FY1 undertaking hot on-call. In the email from 29th September MN had stated that he would undertake his clinic week in ED and ES enquired who he had arranged this with, as the purpose of the clinic week was to gain experience in a variety of clinic settings in different specialities and was a training opportunity. The A & E doctor MN had arranged the clinic week with has now left the Trust. ES stated she would be happy for him to do a half day shift in the ED with the Consultant, Dr WK, but MN should arrange to attend a variety of clinics for the remainder of this clinic week experience. ES also mentioned the option of Cardio, Cardiac Catheter Lab or Respiratory clinics as options. He asked about the possibility of attending a Neurology clinic. MN said he would review his clinic week and look for alternatives. MN stressed that he was not worried about his mental health and ES replied that nor was she but did not want him to get tired or anxious and we were all keen to give him every opportunity to succeed this year. The meeting ended.”

[23]Miss Sharp’s evidence to the Tribunal about this meeting was that she told the Claimant he should not undertake locum shifts not because of his age but because he had previously dropped out of his FY1 training and was at higher risk of failing so she felt he should focus on successfully completing the year. She said that FY1s were generally discouraged from carrying out additional locum duties because it is well recognised that there are issues regarding junior doctor working hours and there is considerable pressure to ensure that excessive hours are not worked. She said in her witness statement: “FY1 doctors can be asked to fill rota gaps by the rota co-ordinator when they arise, but these locum duties are not common and the preference is to limit FY1s from doing additional hours. However, I considered there was an extra responsibility to ensure the Claimant did not work additional hours because he had come to us as a trainee in need of support. He had abandoned his previous training which he attributed to stress, although he had said this was due to outside pressures. The Claimant did say that he did not feel stressed at work or that the extra hours would cause him stress and that he had not had any mental health issues for a number of years. I was not entirely convinced by this because I had been copied into an email chain which had included an email he had sent to Professor Welch when he had not received his salary on 24 July. The Claimant had referred to trying to do his best to avoid situations which might affect his mental health and the lack of pay was not helping and he had no antidepressants with him in Kent. I am sure the Claimant in our meeting felt that he was sufficiently robust to undertake additional work but I did not consider it to be sensible. This was nothing to do with the Claimant’s age.”

[24]On 4 October 2018 the Claimant sent an email to Employee Relations at QEQM saying that he would like to meet to discuss a complaint of disability discrimination. The Claimant said in his evidence to the Tribunal that Miss Sharp’s words had made him feel upset and humiliated. He said he had complained of “disability discrimination” because he wondered whether the multiple references to stress were alluding to the depression he had experienced in 2013. A meeting was arranged to take place with Employee Relations on 9 October 2018.

[25]The Claimant alleges that on 8 October 2018 he passed Dr McGettigan in the corridor and mentioned that Miss Sharp had stopped him from doing locum shifts. The Claimant says that Dr McGettigan replied, “You’re not to do any locum work because of your age”. Dr McGettigan denies making any such comment. His evidence to the Tribunal was that it was possible he may have passed the Claimant in the corridor, but he doubted they would have had a conversation of that type. He said there would have been no reason to make this comment because the Claimant’s age was not the basis of the concerns that he and his colleagues had. It was the fact that the Claimant had come to the Trust against a background of difficulties and had previously dropped out of his training. Dr McGettigan said he would not have referred to his age in light of their initial discussion in July.

[26]Our findings on this factual dispute are set out in our conclusions below.

[27]The Claimant’s meeting with Employee Relations took place on 9 October 2018. The Claimant said that he felt he was being treated differently to everyone else. He mentioned that Dr McGettigan had said on his first day that he was “over confident”. He referred to Miss Sharp having said he should not do locum work and her comment about him getting “tired or anxious”. He then alleged that Dr McGettigan had said the previous day he was not to do any locum work because of his age. The Claimant said he did not want to make a complaint, but he did not want to be treated differently. It was agreed that the Claimant would raise his concerns with his educational supervisor, Dr Ballinger.

[28]Around this time the Claimant was due to complete his “TAB” (Team Assessment of Behaviour), which is a process for gathering feedback on trainees from other practitioners in the hospital. Trainees are given guidelines on the number of pieces of feedback required and the type of doctors from whom feedback should be sought. The TAB has to be signed off as satisfactory in order to complete the training.

[29]The Claimant spoke to Dr Ballinger on 22 October 2018. She then emailed Miss Sharp and Dr McGettigan. She said that the Claimant had interpreted the ban on locum shifts as being related to his age, and that she discussed with him why it was not related to his age. She said the Claimant was putting a lot of emphasis on his “TAB” feedback, hoping that if the feedback was all good he would be allowed to do extra shifts. Dr Ballinger explained to him that a good TAB would not necessarily change things. She asked in the email, “Is there any parameters I could say to him would eventually allow him to do extra shifts during this academic year?”. She said currently it was not an issue as his portfolio was not up to date and there were things that needed to be addressed. There does not appear to have been any reply to this email from Miss Sharp or Dr McGettigan.

[30]On 2 November 2018, Professor Welch from the Foundation School emailed the Claimant to say that she had been discussing the Claimant’s training with Professor Dewhurst (the Dean) and Miss Sharp. Professor Welch wrote, “Our view was very much that you should be focusing on the foundation curriculum and your e portfolio. We appreciate that you would like to do locums, but they are not a requirement for foundation training and can be an unhelpful distraction. If you can demonstrate that you are focusing on foundation training, as set out in the Curriculum and evidenced in your e portfolio, then the locum issue could be reviewed. If you feel that it is impossible for you to continue without doing locums, then you would need to make a decision about whether you wish to continue. I do not believe that the Trust is being discriminatory, but instead commendably supportive in giving you this training opportunity and in trying to assist you make a success of this year.”

[31]On about 14 November 2018 a patient complained to Dr Katherine Hills, a consultant gastroenterologist, about comments made by the Claimant towards a female patient. The Claimant had been examining the patient without a chaperone and made a comment about scars underneath the patient’s breasts, “I know what those scars are”. A complaint was made by the patient in the next bed. Dr Hills discussed the matter with the Claimant. She then emailed Dr Ballinger with a report of the complaint and her discussion with the Claimant. Dr Hills explained that the Claimant said he was probably being too keen to demonstrate knowledge. On reflection he could see this was unnecessary and potentially embarrassing for the patient. Dr Hills said she had no ongoing concerns following the conversation.

[32]A further meeting between the Claimant and Dr McGettigan took place on 22 November. The Claimant explained that he was struggling financially because he was not able to do any locum shifts. Dr McGettigan said that FY1s do not usually do locum shifts and encouraged the Claimant to concentrate on getting through the year successfully and not to be distracted. The notes then record the following exchange: “MN said he wanted to be treated the same as the other F1s but CM stated that as MN needed more support he was not.”

[33]During the meeting Dr McGettigan told the Claimant that his TAB was good but that he had not “ticketed” (i.e. requested feedback from) any of the “MiddleGrades”. The Claimant said he had but they had not completed the feedback yet. Dr McGettigan asked the Claimant to add Dr Crisan, a doctor with whom he had worked closely on his current rotation. The Claimant said he would.

[34]On the same day, 22 November 2018, Ms Warren emailed the Claimant to inform him his TAB had expired, but she had extended it for a further 14 days. She explained that Dr Ballinger needed to complete the TAB summary form in order for the TAB to be completed. It is not in dispute that Ms Warren similarly extended the TABs of around seven other FY1 trainees for the same reason, i.e. their educational supervisor had not completed the TAB summary form.

[35]On 26 November 2018 Miss Sharp reviewed the Claimant’s TAB. She was concerned that the Claimant had not selected assessors who reflected his duties on a day to day basis. She was aware that it had been agreed in the meeting on 22 November that the Claimant would add Dr Crisan and she noted that he had not done so. Miss Sharp accepted that the Claimant appeared to have met the minimum requirements for the TAB, but her view was “there was also an overriding need to reflect the picture of doctors duties”. She accepted in her evidence that this may not be contained in the guidance, but she did not know that at the time. Her view was that it was common sense and if it was not in the guidance it should be. The system permitted her to add assessors herself, so she added both Dr Crisan and Dr Ballinger. Both provided feedback on the same day. The Claimant had also received feedback from Dr Mazur on 23 November. The three additional responses all indicated “some concern” with respect to team working.

[36]The Claimant’s evidence to the Tribunal was that he had hesitated about adding Dr Crisan because she was “emotionally volatile”. In cross-examination, he also said that he was “unsure” about her and that she was “under the control of Dr McGettigan and Miss Sharp”. He believed that adding her was done deliberately to turn his TAB into a failure.

[37]Around the same time Dr Ballinger carried out some internet research and discovered the Claimant’s previous history and the investigation by the GMC, which had resulted in a condition being placed on him for 18 months that he should not carry out consultations with female patients without a chaperone. She also noted the Claimant had changed his surname from “Norton Brookman” to “Norton”. Dr Ballinger emailed Dr McGettigan and Miss Sharp about this, saying that she had been “mildly uncomfortable” previously, but now she was “very unhappy”. She was concerned that given this background the Claimant was not more cautious.

[38]On or around 4 December 2018 Dr Ballinger assessed the Claimant’s TAB and marked it unsatisfactory. The Claimant was told the TAB would need to be repeated.

[39]In the meantime, as a result of Dr Ballinger’s concerns about the Claimant’s history and the patient complaint, the Medical Director Dr Paul Stevens arranged to meet with the Claimant. The meeting took place on 5 December 2018. Dr Stevens advised the Claimant to have a chaperone present for all female examinations. It was also agreed at the meeting that the Claimant would be referred to occupational health, notwithstanding that he did not feel he had a health issue.

[40]On 13 December 2018 the Claimant raised a formal grievance about his TAB. It is unnecessary to give details of the grievance process. The grievance was initially not upheld, but as explained below it was upheld on appeal in July 2019.

[41]On 4 January 2019 the Claimant wrote to the Chief Executive of the Trust saying that he was expecting an investigation into the patient complaint but had discovered there was not going to be one. He said that his rotation had been changed as a result of the complaint and he insisted on there being an investigation so that he could clear his name. The Claimant also said he believed he had done nothing wrong and that the other patient had misheard what he said.

[42]Although the Trust had initially decided to deal with the patient complaint informally, in January 2019 Dr Stevens decided to commission a “MHPS” (Maintaining High Professional Standards) investigation into the Claimant’s conduct. In his evidence to the Tribunal he said this was because of a number of emails he received from the Claimant. His view was that the Claimant had not demonstrated insight.

[43]The Claimant was notified of the investigation on 24 January 2019. It was originally expected that the investigation would be completed and a report submitted by 8 March 2019. The investigation report was in fact completed on 10 June 2019. The report explains that the reason for the extension was the delay in receipt of statements, contacting the female patient in question and obtaining her health records. An investigatory meeting took place with the Claimant on 12 April 2019.

[44]The Claimant, along with all other FY1s, was due to have his “ARCP” (Annual Review of Competency Progress) on 5 June 2019. On 4 June Miss Sharp emailed Ms Warren to inform her that the ARCP for the Claimant would not go ahead as he was the subject of a MHPS investigation. Miss Sharp’s evidence to the Tribunal was that she considered it was appropriate to await the outcome of the MHPS process before arranging the ARCP. She said the Claimant’s age was irrelevant to her decision. The Claimant was the only FY1 under investigation at that time.

[45]Miss Sharp also gave evidence, which was not challenged by the Claimant, that delays in conducting ARCPs are not common, but they do occur and there is usually at least one most years. This can be for a variety of reasons. She said that in 2015 the ARCP for three FY1s was delayed. In 2016 it was delayed for one FY1 and one FY2.

[46]The investigation report was completed on 10 June 2019 and sent to the Claimant on 11 June 2019. It concluded that there was a case of misconduct that should be put to a conduct panel.

[47]On 20 June 2019 Dr Stevens informed Miss Sharp that the MHPS investigation had concluded and now “just requires the case manager to complete his deliberations”. Dr Stevens said that that should not preclude proceeding with the Claimant’s ARCP.

[48]At a meeting on 21 June 2019 Miss Sharp informed the Claimant that the MHPS investigation was still outstanding and this would have a bearing on his ARCP outcome.

[49]The report of the MHPS case manager, Jonathan Purday, was published on 25 June 2019. Mr Purday said he was “concerned that Dr Norton is not fully aware of his professional responsibilities in relation to record keeping and interaction with patients and GMC’s Good Medical Practice”. He said he planned to meet the Claimant to work through his conclusions and recommendations. He did not consider the Claimant’s actions warranted formal disciplinary action, but that informal action in the form of a “recorded oral warning” may be appropriate. Mr Purday said he would make a judgement on this after he had seen the Claimant and considered his responses.

[50]The meeting between Mr Purday and the Claimant took place on 5 July 2019. Mr Purday decided to issue the Claimant with a recorded oral warning. The outcome letter states: “I explained that moving forward I expected you to be considerate of the language, style and topics discussed with patients, making sure that you are aware of the boundaries of what is and is not acceptable and appropriate. I also explained the importance of good record keeping. I advised you to familiarise yourself with the GMC guidance of good practice in terms of communication with patients, recording of examinations and also in relation to use of chaperone. I advised you that formal disciplinary action may be taken if there is any repetition of this behaviour or a failure to improve.”

[51]The Claimant was informed on 10 July 2019 that his appeal against the outcome of his grievance was upheld. This was on the basis that the extension of the TAB and the adding of additional assessors was done outside the process outlined in the guidance from HEE. It was confirmed that the mix of assessors who had provided comments at the point of the TAB expiring did meet the criteria outlined by HEE.

[52]The Claimant’s ARCP took place on 1 August 2019. Miss Sharp’s evidence to the Tribunal was that convening a panel for the Claimant’s ARCP was difficult. She said that five consultants were approached. 1 August was the first day the panel could meet.

[53]The Claimant was initially given an Outcome 5 (incomplete evidence presented) because “Form R” uploaded by the Claimant as part of his evidence did not disclose the MHPS investigation. A new Form R was then uploaded by the Claimant and the panel reconvened on 3 August 2019. The Claimant was given an Outcome 1 (satisfactory completion of F1).

[54]The Claimant claims that because of the delay in completing his ARCP he was unable to take up a position as Speciality Registrar at Torbay Hospital. Instead he was offered a FY1 position with Torbay Hospital from August 2019.

[55]It is not in dispute that the Claimant would have needed approval from NMS in the form of a Certificate of Experience in order to obtain full registration from the GMC. He could not progress to FY2 or any Speciality Registrar position without this.

[56]On 6 August 2019 Danielle Stewart, a Senior Case Management Officer at HEE, emailed the Claimant in response to an email the Claimant had sent to Professor Dewhurst. Ms Stewart said that although the Claimant had had his ARCP, a successful outcome was not sufficient for him to be granted full registration. She noted that NMS had said they were not in a position to approve his application. Professor Dewhurst had agreed to consider contacting NMS to ask them to reconsider if the Claimant passed his FY1 training, but the GMC were now considering another matter regarding the Claimant and whether to investigate. Ms Stewart said they were not in a position to contact NMS regarding the application for full registration until the case with the GMC was resolved. She confirmed that the Claimant could not be employed as an F1 after the end of his F1 LAT post, which was due to end shortly, because such positions are only open to doctors with full registration or who are training within the Foundation Programme.

[57]The matter that the GMC were considering resulted from a referral by Professor Welch on 13 June 2019. One of the concerns was that the Claimant had misled the GMC by saying in an email on 4 February 2019 that NMS had given their approval to Professor Welch for the Claimant to take up the F1 LAT post before he started.

[58]The Claimant commenced work at Torbay as a Locum F1 doctor in August 2019. He was suspended on 23 September 2019 following concerns that he may not have been entitled to take up such a post. The Claimant resigned in October 2019. In an outcome letter on 18 December 2019 the Claimant was issued with a first written warning.

[59]The Claimant was made aware of the GMC investigation by September 2019. The GMC case examiners’ decision was sent to the Claimant on 4 February 20211. They considered that there was a realistic prospect of proving that the Claimant knew his comments to the GMC in February 2019 were not true and that his actions were dishonest. They concluded, however, that it would not be proportionate to refer the case to a medical practitioners tribunal. The GMC’s overarching objective would be satisfied by a decision to end the investigation, which would lead to the end of the Claimant’s registration with the GMC. In those circumstances it was not proportionate to take the matter further. The case examiners noted that the Claimant was not barred from applying for full registration in the future, but said he would need to obtain the required experience outside the UK.

THE LAW

[60]The Equality Act 2010 (“EqA”) provides, so far as relevant: 13 Direct discrimination(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

(2) If the protected characteristic is age, A does not discriminate against B if A can show A's treatment of B to be a proportionate means of achieving a legitimate aim. … 39 Employees and applicants … (2) An employer (A) must not discriminate against an employee of A's (B)— (a) as to B's terms of employment; (b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service; 1 The covering letter is dated 4 February 2021. The case examiners’ decision itself is dated 4 February 2020 but it is assumed that this is a mistake and should read 2021. (c) by dismissing B; (d) by subjecting B to any other detriment. … 123 Time limits (1) Subject to section] 140B 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. … 136 Burden of proof (1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.

CONCLUSIONS

[61]Allegations (a) to (f) in the list of issues above are on the face of it out of time. Early conciliation having commenced on 28 October 2019, all acts before 29 July 2019 are outside the ordinary time limits. The Tribunal therefore only has jurisdiction to consider them if they form, together with allegation (g), part of conduct extending over a period for the purposes of s.123(3), or if it is just and equitable to extend the time limit.

[62]We therefore consider allegation (g) first because it is the only allegation that is accepted to be in time if the Claimant is able to establish that delaying his ARCP until 1 August 2019 was an act of direct age discrimination. g) The Respondent failing to conduct the Claimant’s Annual Review of Competency Progress (ARCP) until 1 August 2019

[63]It is not in dispute that the decision not to hold the ARCP on 5 June 2019 was made by Miss Sharp. The explanation she gave at the time, and her evidence to the Tribunal, was that this was because the MHPS investigation was ongoing. We have no reason to doubt that explanation. The Claimant relies heavily on Dr Stevens’s email of 20 June 2019 informing Miss Sharp that the ARCP could go ahead, but that was after the investigation report had been produced on 10 June. At the time that Miss Sharp decided to postpone the ARCP the investigation had not yet concluded.

[64]There is no basis on which we could find that Miss Sharp’s decision had anything to do with the Claimant’s age. If, as the Claimant suspects, she had taken against him because of his age, it is not clear what purpose would be served by delaying the ARCP. It caused her considerable additional work to reschedule it. Her evidence that 1 August 2019 was the first day that the reconvened panel could meet was not challenged. That was less than four weeks after the conclusion of the MHPS process. We do not consider there is anything surprising or unreasonable about the extent of the delay or Miss Sharp’s conduct that could lead to a conclusion, in the absence of any other explanation, that she was motivated by the Claimant’s age. Further and in any event, we accept the explanation that she has given. The Claimant has not established that she would have treated an FY1 trainee who was younger than him, and also subject to an MHPS investigation, any differently. He was the only trainee under investigation.

[65]The complaint of age discrimination relation to allegation (g) therefore fails and is dismissed.

[66]There was much discussion during the hearing about the consequences of the delay to the ARCP. The Claimant maintained in the hearing that he had lost income as a result because he was not able to take up a staff post at Torbay on 8 August 2019. There is no need for us to make findings about this. All we consider it appropriate to say is that it is far from clear that the Claimant would have been able to take up the post even if his ARCP had taken place (with Outcome 1) on 5 June 2019. Leaving aside the issue of whether NMS would have issued a Certificate of Experience, by mid-June 2019 the GMC were considering a new conduct allegation against the Claimant. We do not have sufficient information to be sure about the consequences of this for the Claimant’s registration, but having read the case examiners’ decision, we consider it inconceivable that the Claimant would have obtained full registration in time to take up a staff post on 8 August 2019.

[67]Having dismissed the complaint relating to allegation (g), allegations (a) to (f) cannot have formed part of a continuing act of age discrimination that ended on or after 29 July 2019. They are all therefore out of time. The burden is on the Claimant to establish that it is just and equitable to extend the time limit. The Claimant has put forward no evidence and made no submissions as to why he delayed in bringing proceedings or why time should be extended. We note that the Claimant is a well educated and intelligent man with a good understanding of Employment Tribunal procedure. He has brought proceedings for age discrimination against another former employer in the past. He also had access to advice from the BMA. The delay in respect of some of the complaints is very significant; allegation (a) for example is more than a year out of time. The Claimant has not established any good reason for the delay. We note that at least in respect of allegation (d), where there is a straight dispute of fact, the Respondent is likely to be prejudiced by one of its witnesses having to recall the details of a conversation that took place in a corridor more than a year before the claim was presented. In all the circumstances we consider it is not just and equitable to extend the time limit. The complaints are therefore dismissed on the basis that the Tribunal has no jurisdiction to hear them.

[68]Having reached that conclusion it is unnecessary for us to address the merits of the complaints, but having heard evidence on all of the allegations, we set out below reasons why we would have dismissed each of them even if the Tribunal had jurisdiction to consider them. a) On 9 July 2018, the Claimant was informed by Dr McGettigan that he was “overconfident”

[69]There is no dispute that Dr McGettigan made a comment along these lines and that it was related to the Claimant’s offer to do locum work before he had even started at QEQM. Dr McGettigan did not recall saying this but accepted that he may have done so. The Claimant did not challenge Dr McGettigan’s evidence that it was the Claimant who brought up the subject of his age at the meeting, and that Dr McGettigan told him it was irrelevant. We consider there is no basis on which we could find that the “overconfident” comment was related to the Claimant’s age. There were good reasons for Dr McGettigan to caution the Claimant, who was proactively offering to take on additional duties having been out of practice for a long time and before he even started his FY1 post. We find the reason the comment was made was because of Dr McGettigan’s genuine concerns that the Claimant was over-confident, and it had nothing to do with the Claimant’s age. We accept that he would have said the same thing to a younger FY1 trainee who behaved in that way. b) On 3 October 2018, Ms Sharp informed the Claimant that he was not to undertake any locum shifts c) On 3 October 2018, Ms Sharp informed the Claimant that doing extra shifts could make the Claimant “tired or anxious”

[70]We address these allegations together because there is no factual dispute about what was said in the meeting on 3 October. The only issue in dispute is whether Miss Sharp was motivated by the Claimant’s age.

[71]It is recorded in the minutes of the meeting, which are not disputed, that Miss Sharp told the Claimant she did not want him to undertake locum shifts because he was a “trainee in need of support” and she wanted to “reduce unnecessary stress”. Miss Sharp gave a detailed, thoughtful and coherent explanation in her evidence to the Tribunal. She explained that concerns about excessive hours applied to all junior doctors and consequently they are not encouraged to take on additional work. It was not in dispute that some other junior doctors did do occasional locum work, covering the shifts of other FY1s, but there were additional factors in Claimant’s case. He had a history of mental health problems during his previous attempt at FY1 and had an unusual route through his medical training to date. Miss Sharp also noted that the Claimant had mentioned his mental health soon after starting at QEQM, in the context of issues related to his pay. It was therefore reasonable for her not to be entirely reassured by the Claimant’s insistence that it was no longer an issue. There were good reasons for her to be somewhat nervous about the Claimant getting through the year, including his apparent desire to take on as much additional work as possible. We accept her evidence that that was the reason she told the Claimant not to do locum work, i.e. she was acting in what she felt was his best interests, to help him succeed in his FY1 training. We accept it had nothing to do with the Claimant’s age and that she would have treated a younger FY1 trainee in the same circumstances in the same way.

[72]As for the “tired or anxious” comment, this was entirely in line with her reasons for telling the Claimant not to take on locum work. She was concerned about him working excessive hours and about his previous mental health problems. There is nothing inherently age-related about referring to tiredness in this context. It is common knowledge that junior doctors often work long hours and there are rules on working time to protect them and patients. We accept that this comment had nothing to do with the Claimant’s age and that Miss Sharp would have made the same comment to a younger trainee in the same circumstances. d) On 8 October 2018, Dr McGettigan informed the Claimant “you are not to do any locum work because of your age”

[73]There is a straight dispute of fact as to whether this comment was made. Dr McGettigan does not remember the conversation, but denies making the comment. He said there would be no reason to do so because age was not the basis of the concerns that he and his colleagues had. We have accepted that Miss Sharp was not motivated to any extent by the Claimant’s age so we consider it very unlikely that when she and Dr McGettigan discussed the matter the Claimant’s age was mentioned. We accept that both Miss Sharp and Dr McGettigan understood that the reason for the decision on locum work was the Claimant’s background of difficulties. We also note that Dr McGettigan was aware from his first meeting with the Claimant that age was a sensitive issue, and that in a later meeting Dr McGettigan had to advise the Claimant to stop bringing it up. It is therefore extremely unlikely that he would have told the Claimant the decision was because of his age.

[74]We should make it clear that we do not find that the Claimant has invented this allegation. We accept that he genuinely believes that Dr McGettigan had said something that gave him the impression the decision was related to his age. The Claimant complained about that to Employee Relations the next day. It is difficult to speculate about how the misunderstanding occurred given that Dr McGettigan does not remember the conversation, but it is possible that he said something along the lines of the Claimant not doing locum work because of his “circumstances” or “history” which the Claimant interpreted as his age. On the balance of probabilities we find that the alleged comment about the Claimant’s age was not made. This complaint therefore fails on the facts. e) On 22 November 2018, Dr McGettigan informing the Claimant he was “not the same” as other F1 doctors

[75]There is no dispute that this comment was made. Again, we find that the reason it was said was because Dr McGettigan genuinely believed, as he said at the time, that the Claimant was not the same as the other F1 doctors because of his background. It had nothing to do with the Claimant’s age.

[76]We observe at this juncture that there was some inconsistency in the Claimant’s approach to his training. He said on numerous occasions that he wanted to be treated the same as everyone else, but he also frequently gave the impression that he expected some recognition of what he considered to be superior medical experience and knowledge. His personal circumstances also differed from the other trainees in that he had greater financial responsibilities and he expected those to be taken into account when he was asking to do more locum work. It was clear from the Claimant’s evidence to the Tribunal that he considered himself to be a better doctor than most of the other trainees. That is consistent with how he appears to have presented to the Respondent during his training, and is part of the reason they were concerned about him. His unusual background, combined with a very confident attitude, rang some alarm bells. We consider that all of the matters the Claimant complains of were, to some extent, a consequence of that. They had nothing to do with his age. f) Ms Sharp extending the duration for the Claimant’s TAB and adding to his TAB on her own volition (as set out at para 16.5 and 16.6 of the Grounds of Claim)

[77]During the hearing the Claimant withdrew the complaint about extending the TAB. He accepted that this was not related to his age. He maintained, however, that Miss Sharp’s decision to add assessors was age discrimination. He submitted that Dr Crisan was a “stooge” and Miss Sharp was deliberately attempting to convert the TAB from a pass to a fail.

[78]We accept Miss Sharp’s evidence about the reason for adding the assessors. She believed the assessors the Claimant had selected were not truly representative of his work. We acknowledge that the grievance appeal panel concluded that Miss Sharp acted outside the guidelines, but we accept her evidence that she believed at the time she was allowed to add assessors, and that even if the Claimant had formally satisfied the guidelines it was common sense that those familiar with his work on a day to day basis should contribute to the TAB. We accept that Miss Sharp had a genuine belief that it was appropriate in the circumstances to add Dr Crisan and Dr Ballinger, and that she did so in order for the TAB to reflect the Claimant’s work, not because of his age.