Mr P Bhaskar v North Tees and Hartlepool NHS Foundation Trust: 2500741/2023

EMPLOYMENT TRIBUNALS

Case No 2500741/2023

Between

Mr P BhaskarClaimant

North Tees and Hartlepool NHS Foundation TrustRespondent

Before

Employment Judge Jeram

In person for claimant

Date 27 March 2026

JUDGMENT

The unanimous judgment of the Tribunal is as follows:

[1]The following complaints are well founded:1.1 Harassment related to race – On or about 11 May 2018, at a meeting of the General Surgery and Urology Directorate, the respondent disclosed the claimant’s identity – allegation

3.1 / 6

1.2 Direct race discrimination – the respondent failed to investigate the matters contained in the claimant’s letter of 14 May 2018 - allegation

3.2

1.3 Direct race discrimination – the respondent failed to investigate the claimant’s concerns reported on 9 October 2018 that MK was selectively reporting incidents – allegation 3.4

1.4 Direct race discrimination – the respondent failed to make any recommendation in relation to MK accusing the claimant of framing him – allegation 3.8

1.5 Harassment related to race – MK reporting the claimant to the GMC on or about October 2021 and May 2022 (only) – allegation 3.29 / 6

1.6 Victimisation – telling the claimant that he could not hold the role of GOSW and also requiring him to step down from the role – allegation 13.3

1.7 Harassment related to race – MK’s conversation with the claimant’s secretary in November 2021 and June 2022 – allegation 3.13 / 6

1.8 Direct race discrimination – the respondent failed to investigate 15 patient cases included in the claimant’s grievance - allegation 3.12

1.9 Direct race discrimination – the respondent failed to disclose the claimant’s grievance investigation report in accordance with its policy – allegation 3.19

1.10 Direct race discrimination – the respondent failed to act on the claimant’s letter of 16 June 2023 – allegation 3.26

[2]The following complaints are not well founded and are dismissed:2.1 The respondent failed to undertake a clinical investigation of the matters contained in the claimant’s email of 18 September 2018 – allegation 3.3

2.2 The respondent breached the claimant’s confidence in an investigation meeting in December 2018 – allegation 3.5

2.3 The respondent failed to investigate the claimant’s concerns reported in February 2021 – allegation 3.10

2.4 The claimant was unable to apply for the role of Deputy Medical Director – allegation 13.3.3

2.5 The respondent failed to provide the claimant with a junior team in January 2022 – allegation 3.14.4

2.6 The respondent failed to complete a stress risk assessment in January 2022 – allegation 3.14.1

2.7 The respondent moved the claimant to theatres 9 and 10 – allegation 3.20

2.8 The respondent asked the claimant to take on duties outside his return to work agreement – allegation 3.14.3

2.9 The respondent failed to provide the claimant with junior support in March 2022 – allegation 13.4.5

2.10 The respondent failed to protect the claimant in June/July 2022 - allegation 13.4.7

2.11 The respondent failed to advertise an award – allegation 3.21

2.12 The respondent failed in the manner set out at allegation 3.24

2.13 The respondent failed to provide him with a job plan – allegation 13.4.10

2.14 The respondent removed the claimant from on call duties – allegation 13.4.11

2.15 MK made a false statement to the GMC in January 2023 – allegation 3.29

2.16 The respondent discontinued a WhatsApp group – allegation 3.27

[3]The following complaints are dismissed on withdrawal by the claimant:3.1 The respondent did not permit the claimant to chair the Doctors In Training Forum – allegation 3.15

3.2 The respondent did not allow the claimant to access patient information – allegation 3.17

REASONS

[1]By a claim presented on 13 April 2023, the claimant complains of direct race discrimination, harassment related to race, victimisation, and public interest

[2]The case was managed at preliminary hearings that took place on 6 September 2023, 6 November 2023, 19 January 2023 and 24 June 2024.

[3]In a case management hearing before EJ Loy on 24 June 2024, the allegations contained in the parties’ list of issues were discussed and during which hearing, the respondent agreed to amendments sought by the claimant, subject to determination at the final hearing of any amendments identified as having been made out of time.

[4]At the outset of the final hearing, the Tribunal clarified with the respondent whether it sought to suggest that any complaint contained in the list of issues did not appear in the pleadings. The respondent confirmed that it took no such issue, save for remind the Tribunal of the basis upon which it had consented to amendments, as raised before Judge Loy. For the avoidance of doubt, the claimant was therefore given permission to add to the claim form any complaint not already contained therein, subject to any time points specifically taken by the respondent at the case management hearing before EJ Loy, in addition to any time limits relating to our own jurisdiction generally.

[5]The issues arising were confirmed at the outset of the hearing and set out in a List of Issues appended to this Judgment.

Evidence

[6]The Tribunal had regard to an agreed hearing bundle.

[7]In support of the claimant’s case, the Tribunal:a. heard from the claimant, Mr Gill (consultant colorectal surgery), Angela Rutter (claimant’s personal assistant).

b. read the witness statements of Jamie Catlow (consultant gastroenterologist), Luqman Randeree (neonatal specialist registrar), Milind Rao (consultant upper GI and Bariatric surgery), Tracy Whyte (emergency surgical nurse practitioner).

[8]In support of the respondent’s case, the Tribunal:a. Heard from: Deepak Dwarkanath (site medical director and consultant gastroenterologist), Kevin Etherson (consultant in General Surgery and Clinical Director for Surgery and Urology from 1 February 2023), Janet Alderton (at the relevant time, Head of Patient Safety), Alison Coates (Care Group Manager), Kerry McLean (Information Governance Manager), Tracey Lynch (at the relevant time HR Business Partner), Lisa Johnson (at the relevant time Independent Lead Investigator and Head of People Services).

b. Read the witness statements of Manuf Kassem (locum consultant upper GI and laparoscopy – permanent) and Steve Pett (Independent Investigator). The respondent sought to place before the Tribunal documentation to explain Mr Kaseem’s absence but refused to disclose that documentation to the claimant. In the circumstances, the Tribunal refused to consider the documents and his absence from the hearing was therefore unexplained. The Tribunal was informed that there were personal circumstances that prevented Mr Pett from attending the hearing in January 2025; no explanation was given for his absence in October 2025.

[9]We had regard to an agreed hearing file, consisting of 2315 pages together with additional documents agreed during the hearing.

[10]We received oral submissions from the claimant and written submissions from the respondent on the issue of liability.

[11]On 1 December 2025, the Court of Appeal handed down its judgment in the case of Rogerson v Erhard Jensen Ontological / Phenomenological Initiative Limited

[2025] EWCA Civ 1547

. On 11 December 2025, the Tribunal invited the parties to make any supplementary submissions they wished to make in light of that decision. Both parties made written submissions. Preliminary Observations

[12]These are the fourth set of proceedings against the respondent involving its Department of General Surgery and Urology. In the first set of proceedings, Manuf Kassem (‘MK’) presented complaints of race discrimination and public interest disclosure detriment which succeeded in part (case number 2502292/2019 ‘the Morris Tribunal’). MK brought a second set of proceedings against this respondent, that the parties settled. In the third set of proceedings, a consultant Mr Kurup (case number 2501513/2023, ‘the Smith Tribunal’) presented a complaint of race discrimination against the Trust; he was unsuccessful. This is the fourth set of proceedings arising out of similar circumstances. The factual background to this litigation is therefore lengthy and detailed but large parts of it are uncontroversial.

[13]The respondent places the claimant’s credibility at the centre of its response to these proceedings, and so we consider it appropriate to address the point from the outset. We had no significant concerns about the claimant’s credibility. He is intelligent, and he was impressively well prepared, although occasionally frustrated and latterly showing obvious signs of fatigue. He presented as mildmannered, deferential and highly principled. He was careful to avoid hyperbole, correcting himself when his frustration led him to overstate a point. The factual issues were unfortunately convoluted and our ability to follow the evidence was not assisted by the disordered state of the hearing file. His evidence frequently required clarification. The core points he sought to make were sound and logical although not always succinctly expressed. Once background facts were established, the essence of his complaints was generally clear. We did not agree with his perspective always, as reflected in our findings. We note that the respondent relied on the claimant’s evidence in proceedings considered by the Morris Tribunal. In summary, we found little about his evidence to be so unusual that the claimant’s credibility could reasonably be described to be in significant issue.

[14]We were not satisfied that the respondent placed before the Tribunal relevant witness and documentary evidence relevant to the issues, for reasons we address below.

[15]We clarify at this early stage that whilst we received lengthy and detailed evidence of medical treatment and clinical decisions, it is not appropriate for us to make determinations about whether, and if so how, any particular medical practitioner failed in his execution of their clinical duties or the nature of the respondent’s response to them. Our findings are limited to those of relevant factual and legal, not medical, significance.

[16]We have read the judgments of the Morris Tribunal and the Smith Tribunal. Those judgments are persuasive but not binding upon us.

FINDINGS OF FACT

[17]The claimant is a Consultant General and Oncoplastic Breast Surgeon, working at the University Hospital of North Tees, principally from the Hartlepool site. He was a deputy clinical director for the Surgery and Urology Directorate in 2006- 7 and then Clinical director for the Directorate for two terms from 2007 to 2016. He held the role of Guardian of Safe Working from 2016-2022.

[18]Externally, the claimant conducts national and international courses in breast surgery. He is a Senior Lecturer at Sunderland Medical School and provides postgraduate training. He sits on committees for the Association of Breast Surgery. He is a panel member for standard setting of exams for the Member of Royal College of Surgeons. He inspects 22 NHS Breast Screening programmes across the country. He is a professional and clinical adviser for the NHS Breast Screening Programme, for NHS England.

[19]The claimant carries out complex surgery and has one of the lowest morbidity and mortality among peers in the region and across the country.

[20]The claimant held the appointment of Guardian of Safe Working (‘GOSW’) for two terms, commencing in 2016. A key role of the GOSW is to ensure that issues of compliance with safe working hours are addressed by both the doctor and the employer and it enables trainees to receive safe working supervision. The employer has a duty to respond where the clinician receiving the report considers that there are serious concerns and agrees that there is a risk to patient and/or doctor safety. The respondent should have processes in place to ensure that this occurs. The report of the GOSW is received by the Trust Board, so that it can ensure both compliance with the necessary requirements, and provide assurance that the correct procedures, including escalations and actions are in place.

[21]In April 2022, in correspondence with the General Medical Council the chief executive, Julie Gillon (‘JG’) described the claimant as a ‘highly regarded and esteemed clinician and leader’.

[22]The claimant is of Indian origin. General Surgery Directorate

[23]The Directorate of General Surgery and Urology consists of five specialisms: upper gastrointestinal surgery, colorectal surgery, breast surgery, endocrinology and urology.

[24]There are approximately 21 substantive consultants in the directorate; since we are concerned with the General Surgery division of the Directorate, 19 of those consultants are specialists in upper gastrointestinal surgery, colorectal surgery and endocrinology. Seven of those 19 consultants are of Indian origin. There are five locum consultants, four of whom are based in the urology department. In the absence of any suggestion otherwise, we take those figures as being broadly representative of the period 2017 – 2023.

[25]Dr Manuf Kassem (‘MK’) is an associate specialist doctor. He has in the past held the role of locum consultant surgeon in the General Surgery Directorate. Since around 2021 or 2022 and ever since he has occupied again the role of locum consultant. He describes his role as ‘permanent’. He is not a qualified consultant; he is not on the GMC specialist register. MK is of Iraqi origin.

[26]For several years up to and including 2018 MK selected the claimant to conduct his annual appraisals.

[27]Around the same time, the claimant, again in his role as Clinical Director, decided that, in order to facilitate the respondent’s decision to expand into bariatric surgery, he would reallocate some of the upper GI theatre sessions to provide capacity for bariatric surgery. MK failed to engage with the claimant in his attempt to discuss the plans.

[28]The claimant was informed by the then Medical Director, Mr E, that MK had alleged that the claimant was harassing and bullying MK, by trying to ‘sack’ him. Mr E confirmed to the claimant that he had not been implicated by MK in a separate allegation of race discrimination that MK was making about other consultants of Indian origin about their non-clinical conduct in the workplace, and which was subsequently resolved by way of mediation. The claimant was invited by Mr E to find a resolution to accommodate sessions for MK and he suggested to the claimant that he might want to identify ways in which he could assist MK’s career. We infer from that advice Mr E that he was telling the claimant that it might be in his own interests to be actively supporting MK.

[29]Also in 2015, a consultant took a sabbatical. The claimant decided to appoint two locum consultants to cover his role, on a temporary basis, splitting the breast surgery and emergency on call elements of the role. In accordance with the advice he was given by Mr E, the claimant appointed MK to carry out the emergency on call duties. MK was a substantive middle grade doctor; this opportunity would allow him to obtain Article 14, a prerequisite for a qualification as a consultant.

[30]Later, the substantive consultant resigned and his role was advertised. Consultant YJ was appointed to commence on 1 August 2017; he was also of Indian origin.

[31]In or around April 2016, the claimant’s tenure as Clinical Director ended. He was superseded in the role by AA. AA is a consultant who is also of Indian origin.

[32]In 2017, AA spoke to MK about the need to revert to his substantive middle grade doctor role now that YJ had been appointed as the permanent consultant. MK resisted. On the agreed evidence, MK responded poorly to the request; he held the view that he had acquired sufficient experience to be recognised as conducting consultant level work although he had not obtained Article 14 to obtain entry on the GMC’s specialist register. It appeared to the respondent that the claimant’s decision to appoint MK as a locum consultant had created in MK ‘false expectations’. MK’s grievance – The First List of Patient Cases

[33]In June 2017 MK submitted a grievance against AA in which he accused AA of bullying, harassment and unfair treatment. One of the two Deputy Clinical Directors in role, Mr Tulloch (‘CT’), was appointed to investigate the grievance. The first meeting took place in July 2017.

[34]A second grievance meeting took place on 4 August 2017. It was not until this meeting that MK alleged that AA’s conduct was motivated by race. The minutes of the second investigation meeting was the only document in relation to MK’s grievance that was before us.

[35]In summary, MK complained that AA, as Clinical Director, had sought to discuss with him a clinical matter that MK described as ‘a simple complication’. He contended that, by contrast, AA deliberately chose to overlook more serious matters implicating other colleagues, although he did not state how he knew about any action AA might have taken with colleagues.

[36]MK said that AA treated more favourably his ‘close friends’ who were described as ‘untouchable’. MK informed CT that there were people who could support what he said, but that they were not prepared to be witnesses.

[37]MK alleged that AA protected friends who MK described as being ‘of Indian origin, or white’. MK listed six names. The names belonged to consultants of Indian origin; none were white. The six consultants’ specialism were breast surgery, upper GI surgery and colorectal surgery.

[38]The respondent therefore knew, in August 2017, that MK had selected the six consultants on the basis of their race.

[39]To support his allegation that AA had turned a blind eye to more serious clinical complications concerning his colleagues of Indian origin, MK produced a handwritten list of alleged patient safety incidents.

[40]He claimed that there were 25 patients who had ‘suffered complications, negligence, delayed treatments and avoidable deaths’ by reason of his colleagues’ standard of care.

[41]Each patient was identified by their individual patient number. Alongside the patient number he had written a paragraph or so about treatment that MK claimed gave rise to patient safety concerns. The medical history of each patient included, variously, a description of their symptoms, diagnosis, date and sometimes the time of treatment, which local hospital they were transferred to and operated on, and what the clinical findings were.

[42]In the margin of the list, appeared the handwritten name of a secretary who worked for the respondent, alongside the words ‘scanner’ and ‘ops notes’.

[43]It was not suggested by either party that any person other than MK had raised any of the 25 patient cases as giving rise to clinical concern.

[44]Of the 25 patients listed, two had been treated by the claimant. He had treated them in or around 2011, i.e. some 6 years before MK reported them to the

[45]Next to MK’s handwritten notes about the claimant’s first patient (‘Patient One’), he wrote ‘I was told by Breast Consultant that his colleague was experimenting new technique and did the procedure laparoscopically’ (sic).

[46]According to the minutes of that meeting, MK repeated verbally to CT that the procedure was conducted laparoscopically and added that it was one that ‘should only be done in a research centre . . why is someone practising on a patient?’.

[47]We have no difficulty concluding, on the facts before us, that Patient One was not treated by the claimant in the manner alleged by MK and furthermore the respondent knew that.

[48]We make the finding above based on the following matters: the claimant’s own evidence to us; the claimant’s evidence to the Morris Tribunal that he had conducted ‘approximately 150 procedures’ of the type he had in fact conducted on Patient One evidence we consider to be unlikely the claimant would give if it was prohibited; the undisputed fact that the respondent does not own the equipment necessary to undertake the procedure that MK alleged was undertaken on Patient One; confirmation by the respondent to the GMC in relation to its enquiry of the same allegation made by MK that ‘no such surgeries have taken place in the last five years’ (a reference, we believe, to what is known as ‘the five year rule’ itself a reference to the GMC Fitness to Practice Rules).

[49]Of the second patient (‘Patient Two’) he suggested that the patient had suffered a recurrence of cancer. Again, because of the undisputed nature of the evidence before us, we make a finding that this was not an unusual event in the particular circumstances of Patient Two. The Tulloch Investigation

[50]At some point between August 2017 and April 2018, CT clinically reviewed the 25 patient cases (‘the Tulloch investigation’). He concluded none of the 25 cases gave rise to patient safety concerns.

[51]Before we proceed further, there are a few matters it is necessary to mention now.

[52]First MK was able to report those 25 cases because he was accessing confidential patient records outside the respondent’s governance procedures.

[53]Second, the respondent knew this. On the balance of probability, it was likely to have known this when it received the list of 25 patients, given the level of detail the list contained.

[54]Third, and as to the contention that MK made to CT in August 2017 that he was subject to race discrimination by AA. That allegation, the Tribunal learned only on the last day of evidence, was a complaint was ‘not proceeded with’ the circumstances of which Lisa Johnson (‘LJ’), at the time Independent Lead Investigator, was unable to explain to us, despite assisting with the appeal stage of MK’s grievance.

[55]We take the view that, on the balance of probability, MK abandoned the allegation of race discrimination soon after he raised it, since if that complaint had been determined, we would have expected to see that addressed in the grievance outcome letter, although that letter was not placed before us.

[56]That leaves a gap in our understanding as to the basis upon which the respondent agreed to this and subsequent investigations in relation to the same six consultants of Indian origin, and to supply the results of those investigations to MK. Certainly, there is documentary evidence before us that the respondent may have been conducting investigations pursuant to its whistleblowing procedures (e.g. outcome letter of Steve Pett as to which see further below). There is, however, later documentary in which the respondent explained to the claimant that it was necessary to do so because it was investigating a race discrimination complaint (appeal outcome letter). We proceed on the basis that the respondent was investigating MK’s reports of clinical incidents on the basis that they were whistleblowing disclosures, but we are not prepared to make that finding of fact.

[57]The introduction to the respondent’s whistleblowing policy, in common with the introductions to other policies belonging to the respondent, states respondent’s ‘commitment to the fair treatment of all’ regardless of their protected characteristic, including race, colour, ethnicity and nationality.

[58]The grievance appeal stage commenced in or around January 2018 and concluded in or around August 2018. We shall return to the appeal stage shortly. January 2018 – Exception Report and Appraisal

[59]On 2 January 2018, the claimant received, in his capacity as GOSW, a report from Dr Luqman Randeree, then a junior doctor in training (‘Dr R’). An incident was said to have taken place during a shift worked on the evening of 27 December 2017 when Dr R attempted to escalate a case involving an acutely unwell patient to the middle grade doctor on call, MK. Dr R told the claimant that MK took the view that it was not an acute situation. Dr R was sufficiently concerned to secure a review by an alternative senior doctor after which the patient was listed for surgery. In the meantime, the patient was left waiting for surgery for many hours.

[60]The claimant completed an exception report in which he recorded his determinations, one of which was to advise AA that MK should be providing help to junior doctors ‘both for educational value and for patient safety reasons’.

[61]In early 2018, MK asked the claimant to conduct MK’s appraisal. In this year, as in previous years, MK had selected the claimant to conduct his appraisal.

[62]The appraisal took place in late January 2018. The claimant raised with MK the incident raised by Dr R. MK responded by criticising Dr R for allegedly spending time on the telephone. The Chadwick Investigation

[63]As we have stated, the Tulloch investigation revealed nothing of clinical significance in respect of the treatment given to any of the 25 patients. There was no suggestion to us on the part of the respondent that the Tulloch investigation was in any way flawed.

[64]Also as stated above, MK appealed the outcome of his grievance. He was dissatisfied with the outcome of the Tulloch investigation.

[65]The respondent agreed to conduct a second investigation into the 25 alleged patient concerns. It was to be chaired by the Medical Director of the James Cook University Hospital (‘the Chadwick investigation’). The panel included Deepak Dwarkanath (‘DD’) in his role as Medical Director, AA as Clinical Director and the Associate Director of Risk & Clinical Governance. On the evidence before us, we find that the respondent agreed to this second investigation in order to appease MK. 11 May 2018 – Directorate Meeting

[66]The consultants in the Directorate were called into a meeting on 11 May 2018.

[67]The reason, or perhaps part of the reason, that there was a consultant-wide meeting was because, by now on the agreed evidence, MK had caused widespread unrest in the directorate as he had been seen to take personal notes during Morbidity and Mortality meetings.

[68]Morbidity and Mortality meetings are held monthly to discuss cases with adverse outcomes, complications and death. They are intended to create a ‘safe space’ in which patient complications are discussed and reviewed by colleagues. Their objective is to promote open communication and foster learning amongst peers. That can only be achieved effectively if those in attendance feel free to openly discuss matters. Cases are discussed at the time the event occurs.

[69]Yet, for ‘a period of years’ before this meeting the respondent had received reports from consultants who were growing increasingly concerned that MK was making notes of cases during Morbidity and Mortality meetings, only to then approach either secretaries or the patient safety team about them. We infer from that that there was a concern that he was conducting his own investigation of the cases discussed at the meetings. On the respondent’s own evidence, what was being reported, if true, was an improper use of the information MK obtained in the meetings.

[70]There were approximately 23 consultants in attendance. The meeting was chaired by CT and DD. They informed the attendees that the respondent would be investigating reports of patient complications.

[71]Six consultants were asked to remain behind after the meeting; they were the six consultants named by MK and included the claimant. It was therefore obvious to those in attendance that there was to be an investigation into patients treated by those six consultants.

[72]The identification of those consultants whose practice was to be investigated was contrary to the respondent’s procedure; in evidence not substantially disputed by DD, the claimant in his role as Clinical Director had been trained to raise clinical concerns sensitively and in confidence with the consultant in question.

[73]The claimant was particularly upset about the way this meeting was handled, not least because he witnessed the reaction of one of his colleagues; we understand the claimant believed that colleague was the person who MK claimed had provided MK with information about the claimant’s treatment of Patient One.

[74]The claimant provided to the respondent his explanation for the treatment provided to Patient One and Patient Two. 14 May 2018 – GOSW Letter

[75]On 14 May 2018, the claimant to wrote to AA in his capacity as GOSW to notify him of the contents of his exception report. In his letter, the claimant said he had attempted to address directly with MK the allegation that MK had declined a patient who was in an acute state, and that MK had sought to deflect the matter by criticising the reporting junior doctor. He asked AA to investigate the matter ‘given the implications to both junior doctors training and patient safety’.

[76]This was not the first time AA had received written notification of MK’s ability to support junior doctors. For example, approximately 6 months previously, he had received notification from the Nurse Lead for Unplanned Care that two named junior doctors had ‘expressed their concerns about the support they receive overnight from MK’.

[77]On 25 June 2018, DD wrote to the consultants in the General Surgery and Urology department. He confirmed that the Chadwick review had been completed and all cases had been dealt with appropriately; furthermore that learning and reflection had occurred and the matter was now closed. He stated that the respondent had ‘fed back’ to MK. June 2018 - Two Datix Reports

[78]The Datix system is a reporting system by which employees of the Trust can raise matters of concern, in confidence. Reported matters are to be dealt with by the Patient Safety Team in accordance with the Incident Reporting & Investigation Policy. The Policy provides for different responses, depending on the level of risk identified.

[79]Janet Alderton (‘JA’) was, at the time, Head of Patient Safety.

[80]On 4 June 2018, Mr S submitted a Datix, he was one of the six consultants about whom MK had made patient safety reports to the respondent. Mr S said that he had informed MK on 3 June 2018 that a patient was extremely unwell and required an immediate surgical debridement. The following day, he learned that MK had not carried out the procedure. He said that when he spoke to MK, MK responded with what Mr S described as ‘intense arguments and explanations’. Mr S said he had decided it was no longer safe to carry out on call duties with MK, adding in his Datix that he had emailed AA about this matter.

[81]Two days later, on 6 June 2018, AA spoke to the claimant. AA told the claimant that he should submit a Datix in relation to the matter contained in the claimant’s email of 14 May 2018 i.e. the incident involving Dr R.

[82]On the face of that chronology alone, we can see how Mr S’s email to AA informing him of the Datix he was submitting might trigger in AA a reminder to action the email from the claimant of 14 May 2018. In any event, and for the avoidance of doubt, we are satisfied that when AA spoke to the claimant, Mr S was neither present nor in any way involved in that discussion; there was no agreement between AA, Mr S and the claimant during which they agreed to coordinate the submission of the two Datix. Without having heard from AA, our impression of the evidence around this time is that his advice might have allowed him to distance himself from further difficulties involving MK, by redirecting such issues to the Patient Safety Team. Our impression of the evidence is supported by an interview conducted by Liz Blount (‘LB’) when she investigated the claimant’s grievance in 2022; he told her that he had been advised by HR to distance himself from matters regarding MK because of ‘disagreement and difficult circumstances surrounding MK’s job plan’.

[83]Those were the circumstances in which, we find, the claimant submitted a Datix on 6 June 2018 about an incident that took place in late December 2017.

[84]The claimant stated in the Datix that, contrary to MK’s opinion that the patient was not in an acute state, a reviewing consultant sent the patient for surgery. The claimant identified the risk as ‘moderate’. Under the heading ‘Suggested Actions’ the claimant suggested that statements be taken from those involved, adding ‘junior doctors should be supported by middle grade doctors at all times making decisions on emergency patients’.

[85]Both Datix were reviewed on 7 June, by the same member of JA’s team.

[86]Having expressed her view that there were some elements of the report made by Mr S that were a management / HR issue, she continued: ‘Totally agree that the delay in debridement should be on and looked at though [we] will reject it if you advise’.

[87]The same team member, on reviewing the Datix submitted by the claimant wrote: ‘Hi. The Coding of moderate harm needs consideration? Did it result in that level of harm to the patient. It's difficult as this is more a management issue, although there are clinical implications’.

[88]Almost no action was taken in respect of either Datix until 12 October 2018 when JA reviewed both Datix.

[89]JA closed the Datix submitted by Mr S on 12 October 2018, because that same day, DD told her to. She had asked for an ‘update’ of DD, who responded ‘There's been a HR process. The doctor is no longer on the on call rota. Can be closed’.

[90]JA also reviewed the claimant’s Datix on the same day that she had contact with DD, and she reduced the risk level identified by the claimant, to ‘low’.

[91]Where a risk is identified as ‘low’, the Incident Reporting and Investigation Policy does not require statements to be taken but it does direct that an ‘appropriate investigation’ is undertaken with ‘with appropriate staff’ and that there is ‘implementation of any required actions’. According to the policy, the incident should be closed within 20 working days of the report.

[92]JA was interviewed in early 2022, when the claimant’s grievance was being investigated by LB, JA said in that investigation only that the Datix would trigger emails to AA and that it ‘up to the local team to decide actions’.

[93]In her oral evidence before us, JA accepted that the claimant’s Datix gave rise to an ‘overarching concern’, and that there were ‘missed opportunities’, she suggested, on the part of others who she regarded equally might have taken action.

[94]The Patient Team did not conduct an investigation with appropriate staff.

[95]The lack of investigation of the Datix was to have repeated unfortunate consequences for the claimant. 18 September 2018 - Claimant’s Email

[96]In late August 2018 and early September 2018, two separate incidents occurred when MK was the middle grade doctor and the claimant was working on call. The claimant sent an email to AA and the general manager, RD, on 18 September 2018 in which he described his concerns about the two events.

[97]In the first of those instances, the claimant stated that there had been a handover of a patient ‘without any communication to myself’. He said that left him ‘without any information about symptoms, admission, discussion with parents etc.’. He said that on exploration at 8.30am, he discovered the patient had partially necrotic tissue; he noted that, according to the notes, the patient had been admitted at 6.00am. He added that his team ‘rely on the first on call team enormously in the decision making process. Without any communication with [MK], this is proving to be difficult’. The claimant managed to salvage the tissue.

[98]The second incident took place in early September 2018. The claimant stated he received no clinical information until a consultant colleague told him that the patient needed to go to theatre as soon as possible, and that the diagnosis was uncertain. He instructed theatre staff to set up theatre on the basis that the patient was stable, he had received no information to the contrary. He found that he was faced with a very significant emergency situation. The claimant stated in his email ‘again, the absence of communication with [MK] has made me . .adjust my plans unnecessarily causing confusion to the theatre staff and possible safety of the patient’.

[99]The claimant stated that he found working on call with MK stressful and difficult, and that he hoped ‘the situation will be appropriately dealt with’.

[100]The claimant explained in evidence that in his view both incidents were clinically significant; the latter one leaving the patient in intensive care for many days. Conduct Investigation – MK

[101]The respondent commenced a disciplinary investigation into the conduct of MK. The investigation team comprised of Prof JM (Deputy Medical Director, based in the Department of Gastroenterology with DD; she was one of two people holding that post, the other being CT), CG (corporate investigator, General Manager and qualified nurse) and Tracey Lynch (‘TL’) (HR Business Partner).

[102]There were 8 allegations to be investigated, approximately half of the allegations could be described as arising from matters raised by the claimant, Mr S or AA. The rest were unrelated to any of the six consultants of Indian origin.

[103]All matters related to MK’s conduct. None related to MK’s clinical performance; the respondent was unable to explain the circumstances in which MK’s clinical performance or the extent to which his actions might give rise to patient safety concerns, was excluded from the remit of this

[104]On a reading of the conclusion of the report, it is evident that the investigation was a difficult one for the investigation team to manage. Most of the appendices to the report were not before us. Nevertheless, and save for certain observations below, the body of the report appeared to be well reasoned and its conclusions were robust. Identification of the Claimant

[105]One of the allegations investigated by the team related to the incident contained in the claimant’s Datix of 6 June 2018. Although it is mandatory for the person submitting a Datix to identify themselves, the integrity of the Datix system rests upon the being able to do so without being subsequently identified as the source of the information reported.

[106]The respondent’s Speaking Up Policy states that ‘staff should understand that there may be times when the Trust is unable to resolve a concern without revealing their identity, for example, where personal evidence is essential. Such cases would always be discussed with the person raising the concern in relation to how the matter can best proceed’.

[107]It should have been evident when the terms of reference were drafted that an investigation into the claimant’s Datix required consideration of whether it was necessary to reveal the claimant’s identity as being the person who reported. Instead, the investigating team disclosed an unredacted copy of the claimant’s Datix to MK. They discussed it with MK at an investigation meeting on 14 December 2018 and on two separate occasions drew his attention to the fact that it was the claimant who had made the report.

[108]We have considered whether the investigation team disclosed to MK the claimant’s identity because it acquiesced to his demand to see the Datix. However, there is no evidence before us that MK demanded to see an unredacted copy of the Datix.

[109]Having regard to that, we therefore accept that revealing the claimant’s identity to MK was an oversight and we do so, somewhat ironically we recognise, because of the very fact that it drew MK’s attention to the claimant as the reporting doctor (the other possible reporting doctor was Dr R). We take the view that had the investigation team been alert to the claimant’s right to remain anonymous, it would not have acted as it did.

[110]The disclosure of the claimant’s identity was unfortunate for two reasons.

[111]First, it was ultimately unnecessary. The investigation team did not recommend proceeding with the allegation. It did not, contrary to its report ‘review the Datix alongside the accounts of [the claimant] etc’; it did not ask him a single question about the Datix. Instead, it rejected this allegation on the basis that there was ‘a significant time lapse in the reporting, recording and management of the incident’.

[112]Second, by the time the Investigation Team produced its report, the team was, itself, sufficiently concerned to note that MK had a propensity to discredit and make counter allegations in respect of witnesses to the investigation. As TL recognised, the disclosure of the claimant’s identity to MK enabled MK to later refer the claimant to the GMC, with certainty, alleging that it was the claimant who had submitted a Datix in ‘retaliation’ for raising patient safety concerns about the claimant. ‘Favouritism’

[113]The claimant was interviewed by the investigation team on 19 October 2018. He was invited to the interview without notice or explanation; he was unprepared.

[114]The investigation team discussed with the claimant the meeting of 11 May 2018, when he and his 5 colleagues were asked to stay behind to discuss further the list of 25 patient cases identified by MK.

[115]The claimant told CG and TL that he was unhappy about the way in which the patient complications had been reported.

[116]According to the minutes that were prepared by the respondent, the claimant informed CG and TL that ‘one of the things that he was upset about was that MK was selective in who he wanted to choose and had left out the other three consultants who were there at the time which showed favouritism it should have been done generically as it was not a fair way to whistle blow’ (sic).

[117]A few questions later, the investigation team asked the claimant what he thought MK’s motive was. The claimant replied that MK had responded poorly to the request to step down from the locum consultant position in 2018 and ‘therefore did this in retaliation [the claimant states] however, this is only his feeling, otherwise why would someone wait that long to bring a patient safety issue that happened years ago’.

[118]We did not find TL’s evidence altogether easy to follow. She was the only person who gave evidence about this interview, and we are mindful of the fact that she held an advisory role only. She maintained in her oral evidence that the investigation team did not ‘pick up’ on the claimant’s comments that MK was selectively reporting some consultants, excluding others, that this showed favouritism and it was unfair. That much is not in dispute; indeed, that is precisely the claimant’s complaint. In neither her written nor evidence did TL go as far as to say that the Investigation Team did seek to explore the claimant’s complaint and satisfied itself that what he meant was that he believed he was targeted by MK because MK had been asked (by AA) to resume his substantive role. Had she done, we would have rejected her evidence because it makes little sense why MK would be selecting a number of consultants and excluding others. TL also appeared to introduce another explanation namely that the investigation team took the view that any matters the claimant was now raising were dealt with in the earlier investigations into alleged clinical concerns.

[119]TL maintained, however, that ‘if concerns are raised’ that she would expect someone to be ‘prescriptive’ about what they sought i.e. that they should explicitly state that they wanted a matter to be investigated, independently. We were not taken to any policy relating to how the respondent deals with equality and diversity matters.

[120]We accept that the claimant was raising with the investigation his concern that he was being racially discriminated against by MK and furthermore; we turn to whether the investigation team understood for the reasons that follow.

[121]First, on the agreed evidence before us was that the respondent’s Equality Diversity and Inclusion training encourages its employees to use the word ‘favouritism’ when speaking about discrimination matters.

[122]Second, we were generally impressed with the report; we take the view that the investigation team was an experienced team.

[123]Third, its exchange with the claimant took place against a lengthy history that had impacted significantly on the Directorate. On the respondent’s own evidence, MK’s actions had caused widespread concerns for ‘a period of several years’ before the meeting in May 2018. There had been, by this time, two investigations into MK’s patient cases, which between them involved an external chair, the Medical Director, one of two Deputy Medical Directors, the Clinical Director and the Associate Director of Risk and Clinical Governance. Because the investigation team was led by one of the two Deputy Medical Director, we take the view that, more likely than not, the investigation team was aware of the history to the claimant’s comment; notable in its absence is any denial of such knowledge on the part of the investigation team by TL. We find that, on the balance of probability, it was aware of that history.

[124]If there were any doubt about this, we note that the investigation did not take place in a hermetically sealed bubble. Whatever MK was telling the investigation team about the patient cases he reported (and we cannot be certain, since the majority of the appendices to the report were not included in the hearing file), it raised sufficient concern for the team to seek reassurance about the accuracy or otherwise of his statements: Of particular concern to the investigation team, of the staff identified as witnesses to the investigation, MK has in some way attempted to discredit them as individuals or the information they provided. . . MK throughout this process has made significant counter allegations. The investigation team have sought assurance that those matters raised in relation to patient safety and poor practice of other colleagues have been addressed with and dealt with previously’

[125]Furthermore, from the body of the report, it is apparent to us that MK was making statements to the investigation team that were in terms very similar if not identical, to the those he made to CT in August 2017. The report conclusions contain the following passage: ‘MK has made some very significant statements throughout the course of the investigation process. MK stated that [Mr S], PB and AA have motives to put allegations in against MK, as he raised patient safety concerns about PB and [Mr S] in the past. MK believes that those making allegations are all protected as they are of Indian descent and are friends of AA. MK has stated that the allegations made against him are unfounded, without substance and made up in a hurry for some other motive’.

[126]According to the report, such was the strength of MK’s feelings towards the claimant, AA and Mr S, it said: ‘MK categorically believes that the entire investigation is a conspiracy following the fact he raised a number of . . .patient safety issues in April 2018’. MK has strong views that AA/[the claimant] and [Mr S] are plotting against him because of the issues he raised and suggests these colleagues are evil’.

[127]We therefore find that the claimant was telling the investigation team that he believed that MK had selected patient safety cases based on his race, and we find that the respondent understood that.

[128]The respondent has not placed before us its equality and diversity policy.

[129]We were, however, provided with the respondent’s grievance policy which mandates all managers to be ‘proactive in promoting an atmosphere free from harassment’ and ‘to inform their manager or HR Department if they suspect that harassment is taking place’. Investigation into the events of late August 2018 and early September 2018

[130]As part of its investigation into MK’s conduct, the team investigated the two incidents that the claimant had reported in his email of 18 September 2018.

[131]Of the events taking place on a date in late August 2018, the investigation team found that at 6.55am MK categorised the patient as ‘immediate’ in accordance with the NCEPOD Classification of Intervention Grading of Care Surgical Outcome, a category relating to life or organ saving interventions and directing a target time to operate of ‘within minutes of the decision to operate’. To the disciplinary investigation, MK attributed his delay in treatment to an alleged difficulty on the part of his team in locating the patient’s parent to obtain consent. The investigation team concluded ‘Given that MK assessed the patient as immediate (NCEPOD) within the Booking form, this would indicate the clinical urgency of the situation. It is concerning that there was not an immediate and clear strategy to get the child straight to theatre at this point, booked with teams at the ready, whilst the search for the father took place and consent completed.’ It was noted that the relationship between MK and the claimant was a ‘key factor in the lack of robust handover’ to the claimant before continuing ‘MK should have been able to handover to [the claimant] regarding the care needed for the child . . . by not being able or indeed willing to participate in effective clinical handover, has the real potential to put patient safety at risk’.

[132]Of the second incident that occurred in early September 2018, MK told the investigation team that he had attempted to relay to the claimant information about the patient but that the claimant had ‘ignored him completely’ and, furthermore, the claimant’s registrar, GB, was ‘excited about the diagnosis’. The investigation team stated that it had not been able to speak to GB, who had left employment very recently. The consultant who had provided the claimant with some information about the patient told the investigation team that he would expect his middle grade doctor i.e. MK to discuss the case with the operating surgeon i.e. the claimant. The investigation team were unable to conclude who had handed over to the claimant, or the exact nature of the communication given but concluded in relation to the dynamics between MK and the claimant that ‘in all considerations, however, it remains very clear and evident the distinct inability or unwillingness to communication has real potential risk for patient safety’.

[133]We were taken an account subsequently given by GB to the GMC about the event in September 2018. In a detailed letter dated 12 January 2023, GB, said the severity of the situation had not been conveyed to either the operating or anaesthetic team; they were ‘alarmed’ when they saw the patient who was described as exceedingly unwell, haemodynamically unstable and imminently peri-arrest.

[134]We consider it necessary to record the following points about the contents of the investigation report that are relevant to our findings.

[135]First, it is evident that, not only was there a ‘communication issue’ between MK and the claimant (and we do not disagree with the claimant that the only evidence we have seen relates to the flow of information from MK to the claimant, and not the other way), it was not specific to their dynamics; in the investigation team’s ‘clear’ view arrived at having spoken to ‘many witnesses’, MK did not ‘really consider himself to be part of the clinical team’.

[136]Following on from the observation above, neither were the reported events in August and September 2018 peculiar to their dynamic; the investigation team formed the view that on 13 September 2018, in relation to an incident unconnected to the claimant or any other consultant of Indian origin, MK had ‘failed in his responsibility to ensure that he operates within the Five Steps to Safer Surgery, which has a significant and real risk of putting the safety of patients in jeopardy’.

[137]The claimant invites us to find that he did not, as the Morris Tribunal found ‘overstate’ the events contained in his email of 18 September 2018. We are not prepared to be drawn into a debate about whether the content of the claimant’s email or was not ‘overstated’ against a measure that we are not qualified to apply. We are prepared to make the following observations and findings, however.

[138]First, both parties in this litigation took the view that the lockdown restrictions under which the Morris hearing took place significantly hampered the respondent’s ability to defend itself; MK was present throughout the hearing as was LJ on behalf of the respondent. She was required to provide daily updates, including about evidence given in relation to clinical matters, to witnesses who were required to remain outside.

[139]Second, and in relation to the event that took place late August 2018, we are satisfied that this part of the email did contain information about matters of clinical substance for the simple reason that we are not prepared to go behind the findings of the investigation team (which included a deputy medical director and a nurse): see the extracts of the report above.

[140]Next, in relation to the incident in early September 2018 the claimant in his email stated that in his view the quality of the handover had ‘possible safety [implications for] the patient’. That aspect of his email, too, had substance. Neither the investigation team, nor the Morris Tribunal had the benefit of the statement that the registrar, GB, gave to the GMC. The evidential value of her statement is not in relation to the state of the patient per se; it is the fact that when the claimant’s team attended to the patient, what they found was ‘alarming’. That was precisely the claimant’s point in his email of 18 September 2018; the quality of the handover should not have placed the team in a situation where they were required to fundamentally rearrange their planned treatment. The claimant’s statement is again supported by the views of the investigation team, who added that in its view there was ‘real potential risk for patient safety’.

[141]MK in his written evidence to us did not address either incident in any detail; in particular, he did not address why it is that GB’s account to the GMC significantly differed from the account that he gave to the investigation team. He ‘disputes the allegations’ and invites us to note that the Morris Tribunal ‘accepted his evidence’. We have departed from the findings of the Morris Tribunal in the way, and for the reasons, above.

[142]Before moving on from the investigation report, we consider it necessary, for our findings, to make three further points about its contents that are relevant to our findings.

[143]First, the investigation team recorded MK as being capable of being pleasant and a good surgeon but that he becomes erratic when asked to comply with reasonable requests.

[144]Second, such was MK’s ability to make ‘significant counter allegations’ that the investigation team had to seek reassurance that those matters that he had raised in relation to ‘patient safety and poor practice of other colleagues have been addressed and dealt with previously’.

[145]Third, although MK told the investigation team that he considered that his patient morbidity and mortality rates were ‘unmatched’ by consultant colleagues, the investigation team noted ‘that MK does not ordinarily operate on high risk patients’.

[146]In February 2019, the investigating team presented its report; it concluded that ‘this case’ should proceed to a disciplinary hearing.

[147]Between the sending of the report to MK and his presentation of his first complaint to the Employment Tribunal, three things happened that are relevant to our findings:a. In May 2019, MK raised with TL a fresh complaint about the claimant and AA;

b. Also in May 2019, MK presented 44 more allegations of patient complications that he alleged was caused by the quality of treatment by the same 6 consultants. This investigation was conducted wholly externally, by Prof. MacFie (‘the MacFie investigation’);

c. Third, and at some point, the respondent decided to discontinue disciplinary action for reasons that were not sufficiently explained to the May 2019 to February 2020 – A New Allegation

[148]On or about 10 May 2019, MK raised a grievance against the claimant as well as AA. In it, MK complained about comments that the claimant and AA allegedly made to colleagues about MK; if the grievance was made in writing, we were not taken to it.

[149]Steve Pett (‘SP’) was commissioned by the respondent to investigate the allegation. SP describes himself as a retired former employee of the respondent, who conducts investigations for the respondent as well as with various health care regulators. He describes himself as HR qualified and up to date with Equality and Diversity and Inclusion training. He claims to be experienced in dealing with matters of evidence.

[150]The respondent relied on SP’s written evidence; he did not attend Tribunal to be questioned about its contents for reasons that were not explained to us.

[151]The only relevant documents the Tribunal was taken to, were the minutes of the claimant’s interview, the first page (only) of the first of MK’s two interviews, and the outcome letter.

[152]According to the outcome letter, MK’s allegation against the claimant and AA was they had discussed with colleagues that they had ‘managed to frame [MK] to be suspended from on call duties and referred [him] to a disciplinary hearing’. In addition, it appears that a further specific allegation against the claimant was that he had informed theatre staff that he had ‘managed to suspend [MK] from on call duties, also [MK was] awaiting the disciplinary hearing so that [he] will be sacked’.

[153]It is apparent from a reading of the outcome letter that, at the same time SP was investigating MK’s complaint about the claimant and AA, he was also investigating a separate allegation: that the respondent had revealed MK’s identity in the Directorate wide meeting that took place on 11 May 2018. SP interviewed DD in relation to this allegation.

[154]SP was commissioned to conduct the investigation by the Care Group Director, MW. If he was provided with any written or verbal terms of reference for his investigation of the claimant, he made no reference to their existence in his written evidence. In his statement he did, however, state that was required to hear the grievance independently and in accordance with the respondent’s grievance policy.

[155]The respondent’s grievance policy, in terms similar to that contained in its the whistleblowing policy, restates its ‘commitment to the fair treatment of all regardless of . .colour. . ethnicity . .nationality, race’ as well as other personal characteristics.

[156]The grievance policy contains definitions of harassment, racial harassment and workplace bullying. It defines harassment as unwanted conduct affecting the dignity of employees at work; it describes harassment as taking ‘many forms and may be based or influenced by an employee’s . .race, colour, ethnic or national origin’. Racial harassment is described as unwanted conduct of a racial nature, or other conduct based on race affecting the dignity of people at work. Workplace bullying is said to include offensive, intimidating, malicious, and humiliating behaviour ‘which attempts to undermine an individual or group of employees, and which may cause them to suffer stress’.

[157]In his witness statement, SP said that he had ‘some awareness that this case is a part of longer chain of events, including previous litigation’ before confirming he had had no involvement with MK or the claimant before. He stated that he did not have ‘any awareness of the other processes that have occurred’. We will return to these two statements in our discussions and conclusions.

[158]SP first met with MK, according to his witness statement, on 4 October 2019. That meeting took place 5 months after the complaint was first made, and two weeks before publication of the outcome of the MacFie investigation.

[159]By the time SP met with MK for the second time, on 6 December 2019, the outcome for the MacFie investigation had been known for some 6 weeks. At both interviews, SP also discussed both aspects of MK’s complaints.

[160]Notably, although in his statement, SP cross referred to other documents contained in the hearing bundle, he made no reference in his statement to the minutes of his meetings with MK. Yet those minutes plainly exist; the respondent confirmed to the Tribunal, when it sought clarification, that only a single (first) page of the interview with the claimant on 4 October 2019 was included in the hearing file - it contains little of relevance to the issues for the Tribunal to determine. No explanation was provided as to why this was done.

[161]SP met with the claimant on 7 November 2019. When he did, SP had with him the investigation report relating to MK’s conduct.

[162]By the time they met, the outcome of the MacFie investigation was known to the respondent for some 3 weeks. It had concluded that there was nothing of significant clinical concern identified in the list of 44 patients MK had reported. In addition, MK had by now presented his first Tribunal claim in which he alleged that he was the victim of race discrimination and whistleblowing detriment and in which he named the claimant, AA, Mr S and DD as alleged perpetrators. He had included a complaint about the respondent revealing to the meeting held on 11 May 2018, his identity.

[163]The claimant told SP that he had no knowledge that MK was subject to a disciplinary procedure and furthermore, he was unaware of the rationale for it. He denied speaking to either of the two people that MK named as potential witnesses. The claimant said that both individuals were aware of the disciplinary investigation because MK was telling colleagues himself.

[164]The claimant told SP he was concerned he was being targeted by MK such that even after being informed that there was no substance in the clinical cases reported, MK was still being allowed to make further unfounded allegations. He said he should be treated equally as an employee of the respondent, but that, in his view, the respondent was protecting MK. He asked SP how long this could continue. SP made placatory remarks to him; we accept that SP agreed with the claimant that what the claimant had told him did seem quite ‘one sided’ and ‘very imbalanced’.

[165]Furthermore, SP provided an assurance that to the effect that he would reflect, take advice and revert to the claimant.

[166]The claimant felt reassured that he had been heard by SP and that SP would take steps to ensure that his concerns that he was being targeted by MK were considered further.

[167]The respondent sought to rely on its own minutes of that meeting to qualify or undermine the claimant’s evidence. We note that the relevant part of those minutes are ambiguously worded. We take the view that it was for SP to explain in his witness statement what he believed had been discussed but he did not. Indeed, his statement is not inconsistent with the claimant’s description. We accept the claimant’s description of the exchange, not least because he did not seek to expand much beyond the words contained in the minutes.

[168]SP also interviewed AA. SP’s witness statement does not refer to the interview, and the Tribunal were not taken to any minutes of that meeting, either.

[169]According to the outcome letter, SP said that AA, like the claimant ‘strenuously denied’ the allegation, with the claimant pointing out that he had played no part in instigating disciplinary proceedings against MK and that he had had no inappropriate discussion about it with colleagues.

[170]On 13 February 2020, SP sent to MK the outcome of his grievance investigation. He rejected the grievance against the claimant and AA. The outcome letter set out the allegations SP was investigating, the evidence for and against the allegations, his conclusions and his rationale.

[171]From the outcome letter, it is apparent that MK had not alleged that he had himself heard either the claimant or AA make the remarks he complained about; his allegation rested upon what he claimed he had been told by others. It appears he had not ever specified a date on which he says he was told of this information. When asked by SP to name witnesses, MK provided two names; the first belonged to was someone who no longer works for the respondent and of the second person he named, he himself immediately discounted, on the basis that they would not be prepared to support him. SP interviewed the witness who had left employment. That witness told SP that he was unaware of any disciplinary investigation involving MK. On that basis, SP concluded that neither the claimant nor AA could not have discussed anything with that witness. The witness added that he had not heard anyone else talking about disciplinary proceedings, either.

[172]Of the specific allegation that the claimant ‘managed to suspend me from the on-call duties, also I am awaiting the disciplinary hearing so that I will be sacked’ SP noted that MK had himself produced a document he had obtained via a subject access request in which another witness, ST, was during an interview asked whether there was any talk about getting MK sacked, to which ST said ‘no none had a said a bad [word] about MK. MK had tortured us for weeks about this on a Friday morning. No one has been nasty or saying about MK getting sacked’.

[173]SP upheld the other complaint that he was investigating i.e. that at the meeting on 11 May 2018, the respondent breached his confidence by identifying him. By the time the outcome letter had been provided to MK, he had already issued his first Employment Tribunal complaint in which he made this allegation; we consider it more likely than not that SP knew that this was the case.

[174]At the conclusion of his outcome letter to MK, SP addressed a ‘further issue’ that he said MK had raised ‘during our discussions’. The issue was described as ‘an update on a further potential breach of confidentiality relating to a previous grievance process’. He continued ‘as I was unaware of the detail of this issue, I took the opportunity to raise this with [MW] as commissioning manager and [LJ] who supported [MW] in your previous appeal process. I was informed that this was raised during a previous discussion with [MW] and [LJ] and as such, further enquiries into this issue would take place. It was confirmed that it was an oversight on their part not to have confirmed the outcome of this with you however will follow this up in writing as soon as possible, for completeness’ (sic).

[175]SP did not return to the claimant to discuss his views of what the claimant had told him. The claimant’s upset that SP let him down was plain to the

[176]We turn to what information SP had before him and what he knew or, in our view, what he was likely to know, in addition to the contents of the investigation report.

[177]From a reading of the outcome letter, he knew that MK had presented two lists of patients; he knew that ‘investigations’ that had been conducted internally (the Tulloch investigation) and ‘with external independent review’. This latter comment must include the Chadwick investigation (chaired externally and the purpose of the meeting on 11 May 2018 that SP was investigating in relation to DD). Given that SP interviewed the claimant, AA and DD during and after the MacFie investigation, we consider it more likely than not that he also knew of the fact of, and outcome of, that investigation.

[178]Furthermore, he knew because it appears MK told him, that he that he had raised complications said to have been caused by AA’s treatment and specifically he told SP about Patient One.

[179]He knew that MK had raised those two lists against ‘a number of your Consultant Surgeon colleagues’. Given that SP interviewed the claimant, AA and DD, we think it more likely than not that he knew that both lists related to the same consultants.

[180]In his witness statement, SP states ‘I was not under any obligation to propose a solution, or to make recommendations, in relation to any aspect of [MK’s] grievance, and did not do so because it did not feel necessary in the circumstances’. He said his ‘responsibility was to answer the points of [MK’s] grievance based on the evidence and the discussions with interested parties’.

[181]Implicit in that statement is, as we have found, an agreement to return to the claimant after SP had had an opportunity to reflect further on what the claimant had told him; if he had not agreed to return to the claimant, we would have expected him to say so in explicit terms. Also absent from the witness statement is any mention of what thoughts he had had about what the claimant told him, whether he had made any further enquiries about MK’s past conduct and why he ‘did not feel it was necessary’ to make any recommendations or proposals.

[182]Although MK appealed SP’s decision in March 2020 it was rejected in June 2020 (Morris Tribunal para 10.150). May 2019 – A Second List of Patient Cases – The MacFie Investigation

[183]In the period between MK being invited to a disciplinary hearing and the date on which the disciplinary hearing was due to take place, MK produced a further list of alleged patient safety incidents said to have occurred in the care of the same six consultants he had identified in his first list.

[184]On 21 May 2019, MK sent to the respondent an email with an attachment. He stated that he had ‘patient documents’ that contradicted the outcome of the Tulloch and Chadwick investigations. MK claimed that despite this, he was the subject of ‘disciplinary proceedings for a bogus allegation fabricated by the same Doctors whom I had raised about my patent safety concerns’ (sic).

[185]The attachment contained further comments about the outcome of the investigations into the first list of 25 patients. Of Patient One, MK alleged that the claimant had ‘mutilated’ the patient ‘with experimental treatment prohibited by NICE guidelines’ and furthermore that the medical notes were ‘false’.

[186]The attachment contained a list of a further 44 patients that he alleged ‘suffered adverse complications and death related to the above themes’. Two of the 44 patients related to the claimant. MK asserted that this was ‘just a sample of recurrent themes’, adding that the focus of the monthly Mortality and Morbidity meetings held by the respondent was to ‘justify wrongdoing and find excuses’.

[187]On the face of the evidence before us, therefore, MK was explicitly linking these 44 alleged patient safety concerns with his earlier list of 25 patients.

[188]As with the earlier list of 25 patients, there was no suggestion before us that anyone other than MK was concerned about the treatment of these 44 patients or that any of them had been identified by internal governance processes.

[189]As before, MK obtained the information about these 44 patients from their confidential medical records.

[190]MK demanded an investigation; he felt sufficiently emboldened to stipulate the terms of an enquiry that he would find acceptable.

[191]As before, the respondent again agreed to commission a review of the treatment of the 44 patients, this time wholly externally, by Professor MacFie; he reported on 17 October 2019 (‘the Macfie investigation’).

[192]Prof MacFie identified learning outcomes but found no substantial clinical concerns in relation to any of the reported cases. In the paragraph headed ‘General Observations’ he stated: ‘As all surgeons would recognise, it is very easy with hindsight to look at the management of cases after the event and find cause for concern. I would venture to suggest that there is not a busy surgeon the country in who retrospective review of case notes would not raise some issues. As such my comments and criticism of individual cases should be seen in this context. Overall the impression I have is that the surgical management of both the elective and the emergency patient in North Tees and Hartlepool Trust is good and the clinical governance procedures are eminently satisfactory’. MK’s First Employment Tribunal Claim

[193]By around mid-2019 MK had presented his first complaint to the Employment Tribunal. He made complaints of race discrimination, victimisation and whistleblowing detriment against a number of colleagues, including the claimant, AA, Mr S and DD.

[194]The claimant was a witness in those proceedings, as was AA, Mr S and DD.

[195]The final hearing took place in September 2020.

[196]The Tribunal upheld various complaints of race discrimination, harassment related to race, victimisation and public interest disclosure detriment. It accepted the claimant’s evidence that consultants of Indian origin comprised ‘a culture within a culture, a group within a group’.

[197]As regards the claimant, the Tribunal found:a. Of the incidents contained in the claimant’s email of 18 September 2018, ‘the allegations while not being entirely fabricated or bogus (to borrow [MK’s] words) were overstated’ (Morris judgment paragraph 10.122);

b. The claimant did not want to work on the on-call rota with MK (paragraph 10.126);

c. The claimant was alongside Mr S, AA and DD, part of what it described as an ‘initial decision’ to remove MK from the on-call rota (paragraph 19p of the Morris judgment).

d. The claimant submitted the Datix in June 2018 in response to MK’s protected disclosure (the list of 25 patients) with the purpose of removing MK from the emergency on call rota (Morris judgment, paragraph 27a). It is unclear to us whether the finding about the claimant’s motivation was based on direct evidence, or the drawing of an adverse inference.

[198]The reserved judgment was promulgated on 18 January 2021.

[199]The remedies judgment was promulgated on 23 February 2023, after MK presented a second claim to the Tribunal. February 2021

[200]The findings of the Morris Tribunal, and its implications, caused great distress and upset within the Directorate.

[201]The response to that judgment led the respondent to review its procedures at executive team level. One of the learning outcomes identified by the chief executive, Julie Gillon (‘JG’) in discussion with LJ was to arrange surgery specific training on ‘civility and unconscious bias’. It was delivered on 12 November 2021.

[202]In February 2021, the claimant was again on call when he was required to attend to two patients, both of whom had been treated by MK.

[203]The first patient underwent a removal of the gall bladder under MK’s care; the matter needed to be reported as an adverse event. The second patient had undergone an umbilical hernia repair by MK, but had, what we understand to be, avoidable symptoms for months afterwards.

[204]DD advised the claimant to submit a Datix about the incidents. AA advised the claimant that if he did, that he, AA, would not look at it; instead, he advised the claimant to refer the patients back to MK i.e. the very person the claimant sought to raise a patient safety issue about.

[205]We formed the view from the papers that AA, who we add, we have not heard from, was unclear how to deal with the challenges of managing MK even before the Tribunal hearing, e.g. his advice to the claimant in June 2018 to submit a Datix. By now, he was subject to adverse findings in the Morris judgment, as was DD. JA had no knowledge of the incidents until her preparation for this hearing.

[206]The claimant, having received conflicting advice, decided against submitting a Datix; nevertheless, he points out, the incidents were reported to the

[207]We accept DD’s evidence, not substantially disputed by the claimant, that the reason why the respondent did not address the reported incidents was because ‘nobody knew how to handle and how to manage MK’ in the aftermath of the judgment being promulgated. September 2021 – First GMC Notification

[208]The background to this matter can be summarised as follows. When MK made his first complaint to the employment tribunal his claim form included a claim of public interest disclosure detriment. He indicated made claims, amongst others, of race discrimination, harassment related to race and public interest disclosure detriment. He indicated in his claim form that he wished for the Tribunal to notify the GMC as a person prescribed by an Order under section 43F ERA 1996. On 31 July 2019, the Tribunal sent a copy of the ET1 to the GMC.

[209]In October 2019, MK sent to the GMC further documents.

[210]On 10 February 2020, the GMC wrote to MK explaining that the GMC would not be taking further action as the issues appeared to be employment matters, rather than fitness to practice concerns.

[211]In January 2021, the Morris Tribunal promulgated its decision on liability.

[212]Also in January 2021, MK wrote to the GMC, enclosing a copy of the Tribunal judgment and requested a review of the closure decision in respect of the claimant (and others) in light of the judgment. He repeated his requests to the GMC on 9 February, 27 April and 24 July 2021. MK alleged that was happening was a national scandal and that immediate action was necessitated. He quoted the Morris Tribunal’s endorsement of the claimant’s evidence that there was a ‘culture within a culture – a group within a group’.

[213]On 20 September 2021, the claimant received a notification from the GMC that it intended to review the closure decision. It was to conduct an enquiry into the claimant’s fitness to practice as a result of the Tribunal’s adverse findings about him. Given that MK was the maker of the allegation i.e. he was the person who sought a review of the closure decision, it is more likely than not that MK received a similar notification around this time.

[214]On 4 April 2022, the GMC wrote to JG about its review of the claimant’s fitness to practice. Although, it said, it would ordinarily direct the enquiry to DD, as the respondent’s Responsible Officer, since he was closely connected to the substance of the issues raised, it said, to maintain independence, it had written to her.

[215]The particular concerns it was investigating were, first, that the claimant had submitted an unnecessary Datix in June 2018, despite addressing with MK those same matters in his appraisal and second, that the claimant had conspired with others to ensure that MK was removed from the emergency on call rota.

[216]In a signed statement to the GMC dated 24 January 2023, MK said, amongst other things that he believed that the claimant had submitted a Datix in June 2018 as ‘retaliation’ for him presenting the list of 25 patients to the respondent and furthermore, the two incidents reported by the claimant in his email dated 18 September 2018 were ‘bogus’.

[217]The claimant was one of 6 people MK complained to the GMC about, after promulgation of the Morris judgment; five were of Indian origin, one was described in the Smith judgment as ‘white’.

[218]To finish this part of the chronology, no formal allegations were ever put to the claimant by the GMC. It closed its enquiry and notified the claimant of this on 7 March 2024. October 2021 - Claimant’s Intention to Submit a Grievance

[219]In the meantime, the claimant resolved to submit a grievance about MK. He decided to notify DD of his intention, as a matter of professional courtesy.

[220]On 1 October 2021, the claimant met with DD and informed him that he intended to submit a grievance about MK’s selective reporting of clinical incidents against his colleagues of Indian origin. We accept that the claimant informed DD of the subject matter of his grievance; it would make little sense for the claimant to go to the lengths of meeting him to inform him that he intended to submit a grievance without also explaining the basis for it.

[221]DD informed the claimant that he and JG, had already formulated an agreed response if anyone involved in the Tribunal case submitted a grievance. The plan must have been both settled and inflexible because at that meeting, DD informed the claimant that the consequence for anyone who intended to submit a grievance would be that they could no longer hold a ‘corporate role’. In the case of the claimant, he was told he could no longer occupy the role of GOSW. A ‘corporate role’ included, according to DD’s evidence, the role of Deputy Medical Director.

[222]The claimant decided to reflect further.

[223]On 7 October 2021, the claimant went on sick leave with stress. It was the first time in his professional life that he had taken sick leave.

[224]On 20 October 2021, the claimant, via his BMA representative, notified the respondent that he would be submitting a grievance. November 2021 – The Claimant’s Secretary

[225]Towards the end of 2021 MK presented a second claim to the Employment Tribunal. MK did not seek to implicate the claimant in this second set of proceedings, but he did allege for the first time that JG, the chief executive, was a perpetrator of race discrimination.

[226]In around November 2021, which is to say, approximately two months after the GMC had opened an enquiry into the claimant’s fitness to practice and whilst the claimant was on sick leave, MK visited the claimant’s secretary, FD.

[227]The conversation that took place between MK and FD was a matter subsequently investigated by Liz Blount (‘LB’) as part of the claimant’s grievance. LB described FD as providing her with a ‘clear’ and ‘unprompted’ account of their exchange. We summarise that exchange in the following paragraphs.

[228]MK was predominantly based in Hartlepool, he had not visited the office in North Tees for some 3 years; he was not someone who had much to do with FD; she tended to avoid MK; MK did not inform FD of the reason for his visit, and it was not evident to her why he was there. MK spoke about his Tribunal success. He said he had received a lot of money and expected to receive more; he left FD with the impression that he knew the respondent was in a difficult position. He said he had been speaking to people in the executive team and that they had offered him a post. FD resisted being drawn into the conversation.

[229]MK commented that ‘it would be a difficult year ahead for [the claimant]’.

[230]FD also revealed to LB something that she had not revealed to anyone, not even the claimant, ‘as she didn’t’ want to cause more difficulties’. She said MK had told FD that the reason the claimant was off work was ‘because he had been suspended’.

[231]The claimant, of course, was not present during the exchange between MK and FD.

[232]Turning to MK’s witness statement on this matter, he stated in his written evidence that, having sought to ‘cast [his] mind back’ to the events of November 2021 he has no recollection of making any comment to FD.

[233]In her oral evidence, LJ volunteered that she had met with MK, together with the SC, the Chief People Officer, to address the finding made by LB in her grievance report of March 2022 about this matter. According to LJ, MK had made a partial admission at the meeting, and a written record of the meeting made; MK was counselled not to do it again. LJ was unable to explain why event was not referred to in the respondent’s written evidence, and the relevant documents had not been disclosed to the claimant or appeared in the hearing file.

[234]We consider that if MK was – as we find he was - called to a meeting with LJ and the Chief People Officer, at which he made a partial admission that was recorded in writing, and that he was counselled on his behaviour, on the balance of probability, he was likely to remember those events.

[235]We find that in November 2021, MK approached FD and they had the discussion that FD reported LB.

[236]MK’s second employment tribunal claim was settled before any hearing on liability. The claimant and other consultants were called into a meeting to be informed that his second claim was being settled. There was widespread unhappiness and unrest about the lack of appeal against the Morris judgment and the respondent’s decision to settle MK’s second claim without first seeking to defend it. December 2021 - Deputy Medical Director Vacancy

[237]The Deputy Medical Director role was, at the time, a shared role, held by JM and CT. Towards the end of 2021, JM retired.

[238]On 22 December 2021, the respondent sent an email to a number of consultants, notifying them that the vacancy that had arisen on Prof M’s retirement was now being advertised and providing a link they could follow. The closing date was 10 January 2022.

[239]The claimant was one of the recipients of the email. It was open to him to apply. He did not do so because he felt that his chances of succeeding in securing a role as Deputy Medical Director were diminished by the fact that he had been advised by DD, the Medical Director, in October 2021, that if he were to submit a grievance, he could not maintain his role as GOSW, nor occupy what DD described as a ‘corporate role’. DD was to be on the interview panel for the Deputy Medical Director role. January 2022 - The Claimant Submits a Grievance

[240]On 5 January 2022, the claimant submitted his grievance to the respondent.

[241]The first line of his grievance stated ‘I would be grateful if these [grievances] could be investigated and an appropriate response and remedies be provided to me’

[242]Section A bore the heading ‘Discrimination, victimisation, bullying and harassment’. He wrote: ‘I assert that I have been subjected to discrimination, victimisation, bullying and harassment by [MK] I am of Indian origin and my racial background has been used to discriminate against me. Complications under my name have been recorded and reported by another colleague selectively. There have been similar complications under other colleagues of an ethnicity different to my own which has been selectively ignored by [MK]. I believed I have been targeted on the basis that I am of Indian origin.’

[243]The claimant set out 15 complications that he said were open to MK to select and that occurred in the same period in which MK had raised complications. They were said to relate to patients treated by 6 colleagues of a variety of races, but who were not of Indian origin. He listed 15 cases against the name of the consultant, in notably less detail than MK had listed the patients in his list of 25 and 44 patient cases. We take the view that that is likely to reflect the fact that the claimant had not reported these matters having first obtained access to patient records, as MK had.

[244]The claimant continued: ‘during investigatory interview on 9 October 2018, I explicitly stated to the investigator that I am unhappy with the way these complications have been reported. Out of the 12 consultants in the team 6 of us have been conveniently and selectively picked by whistleblowers report incidents. If it is reported that 50% of the team have had complications of this nature, it is important to the rest of the team to make it a fair process’.

[245]The claimant said that the failure of the investigating team led to not only adverse findings by the Morris Tribunal, but also ‘being reported to the GMC’.

[246]The claimant alleged that the respondent had no mechanism to regulate MK’s behaviour, or a clear mechanism to address clinical and non-clinical concerns relating to MK. He described the respondent’s response when he tried to escalate concerns about MK’s clinical practice in January 2021.

[247]He reminded the respondent that its policies were to be applied equally to all employees, regardless of colour, nationality, ethnicity or race.

[248]He complained under the heading ‘B. Harassment’ that MK had repeatedly made requests for the claimant to be removed from clinical practice, including to the GMC. He described the impact of MK’s behaviour and his referral to the GMC on him personally as well as professionally. He said he felt the referral to the GMC was ‘personal and vexatious’ adding ‘the Trust is directly responsible for me being referred to the GMC due to its inefficiencies and mismanagement of [MK’s] case’. He said he was worried that MK would refer the claimant to the GMC and that he had lost faith in the respondent’s ability to ‘protect me and support me in future attacks of such nature’.

[249]In a separate section marked ‘D. Hostile environment making it impossible to work’, the claimant described the indirect impact of MK’s conduct on the claimant’s relationships at work. He said he was proud of what he had achieved as a GOSW, but that DD had in conjunction with JG requested he step down from the position ‘because I was raising a grievance against the Trust. I feel that this was a retaliation behaviour from management’.

[250]He said that if the respondent had investigated the Datix when he submitted it, or the two events reported in his email 18 September 2018, he would not have been so vulnerable to adverse findings by the Morris Tribunal.

[251]He described MK’s behaviour as creating a distressing and intolerable working environment for him; he complained, amongst other things, about MK openly discussing his victory before the Morris Tribunal and the impact of the resultant gossip on his ability to maintain healthy relationships with his colleagues. He described MK’s behaviour as a ‘witch hunt’.

[252]He set out the impact that events since 2018 had had on his health, wellbeing and professional life. He said he felt he had little option but to raise his grievances formally.

[253]The respondent commissioned Liz Blount (‘LB’) to conduct an independent investigation into the claimant’s grievance.

[254]LB had commenced her interviews by mid-January 2022 and completed her report by mid-March 2022. The grievance hearing, and the appeal to the grievance outcome took place over much of the rest of 2022.

[255]We return to that process after we address other matters that took place in the first half of 2022. January 2022 - The Claimant Returns To Work

[256]The claimant was due to return to work on 10 January 2022.

[257]The respondent’s attendance management policy requires, where workplace stress is indicated, the respondent to arrange a meeting, in advance of a return to work, at which an individual stress risk assessment is to be completed in discussion with the employee, and actions identified to enable a return to work.

[258]The last Occupational Health report before the claimant returned to work, was dated 14 December 2021 and contained no recommendation for a stress risk assessment to be completed.

[259]A meeting took place on 6 January 2022 i.e. before the claimant returned to work and it was attended by the then Care Group Manager, EC, the Workforce Business Manager, CC, People Business Manager, the claimant and his BMA representative.

[260]No stress risk assessment was undertaken in accordance with the respondent’s attendance management policy.

[261]At the meeting, the respondent was offered support to reintroduce him back into the team, but the claimant said he was comfortable to reintroduce himself gradually back into the team.

[262]However, he remained concerned about being remaining under scrutiny by MK. The parties agreed two measures to accommodate the claimant’s concern.

[263]First, they agreed, at the claimant’s request, that whilst the claimant’s grievance was being investigated, and to minimise contact with MK, he was to be relocated to the University Hospital of North Tees.

[264]Second, the claimant said he was worried about resuming emergency oncall duties, since complications are more likely to arise then. The claimant said he said he did not feel confident enough to be questioned by MK in relation to any complications that arose. They agreed that emergency on call duties would be deferred until March to allow time for the claimant to build up his confidence.

[265]More generally, it was agreed that the claimant would, in the middle two weeks in February 2022, start to undertake work of ‘increased complexity’. That timescale was in line with the recommendations of Occupational Heath, contained in the report dated 15 December 2021.

[266]At the meeting, the claimant mentioned the GOSW role, the duties associated with it. As part of that role, the claimant chaired the Doctors In Training (‘DiT’) Forum. Those meetings take place quarterly and the chair is required to prepare a quarterly report. The inevitable consequence of requiring the claimant to stand down from the role of GOSW, was to preclude him from occupying the role of chair of the DiT Forum. As DD stated in his written evidence, ‘there cannot be one without the other’.

[267]A quarterly report was due, or more likely, overdue.

[268]CC agreed that she would pick this up on the claimant’s behalf. On 9 January 2022, CC emailed LJ asking her to approach DD ‘to confirm [the claimant’s] position in the [GOSW] role as he is required to arrange a junior doctor’s forum which he is currently out of compliance for as they are to be held quarterly’.

[269]On 10 January 2022, the claimant returned to work.

[270]On 12 January 2022, the claimant received an email from a colleague asking him to confirm that he would be preparing the GOSW quarterly report. The claimant asked that colleague to liaise with DD, which is what happened; on 14 January 2022, DD was asked by the colleague for clarity about whether the claimant would be writing the report. The same day, DD replied stating, ‘yes, he is still in role’. The claimant, we note, was not copied into that email.

[271]On 4 February 2022, the claimant wrote to CC to remind her that he was told there would be clarity about whether he was to continue in the role of GOSW. He said he had received no communication about it, but that in the meantime he was receiving ‘demanding emails’ from other colleagues. There was to be a DiT meeting on 11 February 2022.

[272]CC replied, stating that she had escalated the matter, and that LJ would be picking the matter up.

[273]On 11 February 2022, the DiT Forum proceeded; it was chaired by someone else; the claimant questions the propriety of that.

[274]According to her oral evidence, LJ spoke to DD at a meeting with the Chief People Officer and informed him that ‘if’ what was said in the claimant’s grievance was true, the claimant should be reinstated to the role of GOSW. She was unable to explain why there was no reference to this conversation in the respondent’s written evidence.

[275]It was not until 16 February 2022 that DD emailed the claimant about the GOSW role, in circumstances he did not explain in his written or oral evidence. We find, therefore, that it was not until after the claimant had chased for an update, in circumstances where he was worried about compliance with the requirements of the DiT Forum, that DD wrote: ‘Good afternoon Pud Trust you are keeping reasonably well. Investigation of your grievances are on-going, can I suggest you pick up the GOSW work to ensure continuity for the DiT. This is a role you have undertaken well and enjoy. Happy to discuss. Thanks Deepak’

[276]That was how the claimant came to learn he had been reinstated in the role of GOSW. January 2022 – Theatres 9 & 10 at North Tees Hospital

[277]The claimant, pursuant to his request at his return-to-work meeting, was relocated to the hospital at North Tees. At the North Tees site, breast surgery can be conducted in the main theatre and in theatres 9 and 10.

[278]There was an issue before us as to whether all breast surgical procedures can be conducted at the North Tees site, but on agreed evidence the main theatre is under pressure for capacity. Certain procedures can be conducted at theatres 9 and 10, but the claimant alleges that conditions in the theatres 9 and 10 are cramped, have poor facilities and carry with them a higher risk of infection.

[279]Theatres 9 and 10 are old style theatres, designed in the 1960’s. They are cramped; for seating and computer work KE acknowledged that he would relocate when performing lists there. They have relatively poor telephone and internet facilities. There was a single spike in infection rates in quarter 2 of 2023 for breast surgery, which occurred simultaneously at the North Tees site and the Hartlepool site. An investigation took place, and the cause identified as multifactorial.

[280]Although the claimant himself had asked to minimise contact with MK and the parties agreed to move him to North Tees whilst the claimant’s grievance was investigated, the indirect consequences to the claimant of doing so is that he found himself physically and socially isolated, and performing complex surgery in dated, but nevertheless still functional, operating theatres. January 2022 – Incomplete Junior Support - Elective Duties

[281]Prior to the claimant’s period of sickness absence, he enjoyed the support of a junior team, i.e. a senior house officer and registrar, that was not only consistently constituted but who worked well together. He felt he had a ‘strong’ team. That degree of consistency allowed the claimant to work on complex procedures effectively and efficiently and with confidence.

[282]That changed when he returned to work on 10 January 2022, when he resumed his elective work; his phased return meant that he did not return to on emergency call work until March 2022.

[283]When the claimant returned to work in January, he no longer enjoyed the support of a consistent team. We accept that operationally, the respondent could not at any stage guarantee a consistent team. The reasons for it are multifactorial, including where in the rota cycle the claimant returned to work, absences as a result of leave, sick leave, study leave, and the fact that placements of junior doctors are at the behest of the Deanery, and not the respondent. The respondent did not suggest that the claimant’s temporary relocation to the North Tees Hospital was likely to be a factor.

[284]We are satisfied that the variability of registrars that the claimant faced, were not materially different from KE, or Mr D, having examined their rotas for the equivalent period. February 2022 – Care Group Manager Request

[285]In early 2022, EC was the Care Group Manager.

[286]During the claimant’s absence, the number of patients waiting for complex procedures had grown. In February 2022, the claimant was approached by EC whilst standing by the lifts, who asked the claimant about the patients on the ‘long waiters’ list.

[287]On 15 February 2022, EC emailed the claimant stating that he was ‘just wondering if you have had a chance to look at any plans for these long waiters or if there is anything we can do in order to get these patients off the waiting list’. A list of patients followed. End March 2022 – Incomplete Junior Support – On Call Duties

[288]By 25 March 2022, the claimant had resumed his on-call duties in accordance with the return-to-work plan.

[289]A consultant on call should be supported by a full junior team consisting of a senior house officer (or equivalent) a registrar and an F1 grade medic. Rotas are designed by the rota administrator. They are designed on a twelve weekly cycle and published six weeks in advance. Occasionally, the required level of support may fall below those levels and require a managed response; examples include leave or sickness absence at short notice.

[290]On 25, 26 and 27 March 2022, for the purposes of his on-call duties, the claimant was accompanied by a full team i.e. they were the same team on all three days.

[291]The team that accompanied the claimant on 25, 26, 27 March 2022 were not the same team that the claimant was accustomed to before his period of sick leave commencing in October 2021. The likely reason for this is firstly that the claimant is likely to have returned to work mid-way through the 12-week cycle, and second, because the identity of his usual registrar changed, the respondent having no control over the requirements of her deanery. The claimant makes no significant criticism about the fact that his usual team had changed; we consider it likely that he recognises that the identity of his team members is not something that he can realistically expect to be maintained.

[292]On the morning of 28 March 2022, the claimant was left without a registrar; in the afternoon he was accompanied a full team. That absence was plainly foreseen because on 24 March 2022, a note had been added to the system identifying a registrar from the colorectal team who could assist if necessary. It is not suggested by the claimant that note was inaccurate.

[293]On 29 March 2022, the claimant was supported by a full junior team.

[294]On 30 March 2022, being a date that is not the subject of complaint, the claimant was supported by a full team save for a two-hour period in the evening when is senior house officer was on mandatory training and the replacement cover was unavailable for two hours in the evening. The claimant was notified of this arrangement in advance.

[295]On 31 March 2022, the claimant was supported by a full team in the morning but did not have a registrar in the afternoon. The rota administrator had noted his view: ‘staffing levels ok’.

[296]On 1 April 2022, the claimant was supported by a full team.

[297]The situation faced by the claimant on 28 March and 30 March 2022 was not unusual. In the 70 days between 21 February 2022 and 1 May 2022, 8 consultants (other than the claimant) were carrying out on call duties of which the majority, 6 consultants, did not have a full team for each session. Those six consultants were required to conduct their on-call duties without a full team between 1 and 5 times each. It was not suggested by the claimant that the deficiencies were consistent with the race of any affected consultant. We concur with the respondent’s evidence that unscheduled changes and absences impacted on a significant group of consultants including the claimant himself. Second Period Of Sick Leave

[298]The claimant was absent from work on sick leave, again by reason of stress, between 6 April 2022 and 29 July 2022.

[299]As with his previous period of sick leave, Occupational Health had produced a report for the respondent. On this occasion, and in contrast with its report immediately before the claimant resumed work in January 2022, it had recommended that an individual stress risk assessment be undertaken. The respondent, on this occasion, did conduct such an assessment.

[300]We accept the evidence of AC, successor to EC in the role of Care Group Manager, noting her evidence to be consistent with written responses submitted during the grievance investigation conducted by LB, that there was a historical inconsistency about the way in which the attendance management policy was applied to medical staff. In the twelve months following September 2022, it was said that 8 senior medical staff had returned to work following a period of sickness and no return to work meetings had taken place. It is not explicitly stated that they returned to work after work related stress was indicated, nor was their race identified. January 2022 To October 2022 – Investigation of the Claimant’s Grievance

[301]We return to the claimant’s grievance.

[302]The claimant’s grievance, submitted on 5 January 2022, was investigated by Liz Blount (‘LB’). She was commissioned to carry out an independent investigation of the grievance.

[303]We turn to the relevant grievance procedure. The claimant’s allegation contends that the respondent contravened certain provisions of version 11 of its Grievance Policy. In its written evidence, the respondent did not disagree that that was the applicable procedure, and the claimant was cross examined on that basis. We observed during evidence that version 11 appeared to be out of date, the policy suggesting that it was to be reviewed some two years before the claimant’s grievance was submitted. In response to our enquiry, the respondent adduced a copy of version 13, which was in force at the relevant time. The respondent now submits that version 13 is the version by which this allegation should be considered. We address both here, for the avoidance of doubt, but in summary, for the reasons set out in the section Discussion and Conclusions, what differences there are do not matter.

[304]As with other policies, both version 11 and version 13 of the grievance policy confirms the respondent’s commitment to fair treatment to all, irrespective of race or nationality.

[305]The relevant passages of version 11 are as follows:a. Paragraph 2.2 relates the when a grievance meeting is to take place; it is to be held ‘in any event’ within 10 working days of receipt of the grievance save that where it is a ‘complex one or requires detailed investigation’;

b. Paragraph 2.4 requires the ‘appointed manager’ (who is defined at paragraph 2.3 as the person who chairs the grievance meeting and who listens to all of the information put forward by the employee/s) to prepare a letter summarising the complaint, ‘background information where relevant’ and ‘their decision and the solutions proposed, if any’.

c. Paragraph 2.5 requires the letter at paragraph 2.4 to be provide ‘within 5 working days of the grievance meeting or as soon as possible thereafter’

d. Paragraph 2.6 states: ‘in complex grievance cases where a further and more detailed investigation is required, an investigation report will be created. This will be given to the employee/s concerned together with a letter detailed in 2.4. (our emphasis).

[306]Version 13, for the avoidance of doubt, is much less clear: e. paragraph 5.4.4 states ‘after the completion of the Formal Resolution process . . the outcome of the findings and conclusion will be confirmed in writing’; f. Paragraph5.5.1 requires an appeal to be presented within 10 working days of receiving ‘the letter’ (we assume this to be the written outcome); g. Paragraph

5.5.2 requires an appellant to ‘be specific about the grounds of the appeal . . these will effectively form the agenda for the appeal’ h. Paragraph 5.5.2 identifies four grounds of appeal, identical to those indicated to the claimant in the respondent’s letter dated 17 June 2022 (see further below); i. At paragraph 5.7.1 under the heading ‘Documentation/Evidence’, the policy states ‘at the formal stages of the procedure, all documentation, including witness statements/notes of witness meetings to be presented as evidence must be submitted in order that the written evidence can be circulated to all parties involved’ (our emphasis)

[307]LB conducted interviews between 28 January 2022 and 18 March 2022. Her report was finalised on 18 March 2022. The relevant aspects of the report are addressed below.

[308]Issue 1 – this was identified as ‘the Trust failed to investigate concerns made at the time, leading to the claimant being unable to defend himself at the Tribunal and now the subject of GMC referrals’.

[309]LB was not satisfied that had the respondent investigated the claimant’s complaint of 14 May 2018 and his Datix of June 2018, that the outcome of the Morris Tribunal would have been different.

[310]Issue 2 – This issue was identified as follows: ‘MK’s selection of concerns was due to race discrimination; that PB raised this concern at the time but it was not looked into’.

[311]There appear to be two parts to this ground; first, the complaint of race discrimination itself, and second, whether he had made a complaint of race discrimination at the investigation meeting in October 2018.

[312]We did not find this part of LB’s report altogether easy to follow, in contrast with other parts of her report that we regarded as impressive.

[313]LB concluded that the claimant had made no explicit reference to race discrimination during his meeting with the investigation team, and therefore the claimant’s ‘interpretation of MK’s motivation has therefore only come with hindsight, following the Tribunal’.

[314]That finding appears to relate to the second part of this issue i.e. whether he had raised race discrimination during the investigation meeting in October 2018. It does not address the first part of issue 2 i.e. whether MK had discriminated against the claimant. That was the crux of the claimant’s grievance: it comprised the first two pages of his grievance and could not reasonably, in our view, be inadvertently overlooked.

[315]Whatever it is that LB meant, the respondent adopted this passage as a finding on her part that the claimant (in her view) delayed in reporting his concern that MK’s actions were racially motivated and therefore, that delay undermined the claimant’s complaint that MK’s actions were motivated by race. If that is what she meant, we consider that approach to be illogical and unsustainable. Nevertheless, that was the approach the respondent not only appears to have adopted but invites us also to adopt. We do not.

[316]Nothing in LB’s report suggests that she reviewed evidence relating to MK’s motivation; there is no explicit finding relating to it.

[317]She stated ‘it seems reasonable that the Trust chose to take MK’s concerns at face value and focused on investigating the clinical issues, rather than by responding to MK’s concerns by accusing him of racial discrimination. [the claimant] did not raise this possibility at the time and himself attributed MK’s actions to retaliation’.

[318]LB dismissed the whole of issue 2 as ‘not upheld’.

[319]She added: ‘However, with the benefit of hindsight it now appears that this may merit further consideration. There is an inherent issue that whenever someone is raising a claim of discrimination, their list of comparators will, by their very nature, be of a certain group. Therefore, in this instance, if MK was seeking to show how he was treated compared to doctors of Indian origin, this will mean he will be focussing on this specific group. However, having established his comparison, if MK continues to report concerns only regarding his colleagues of Indian origin, then the Trust needs to consider how they are clear whether this in itself becomes a racially motivated and discriminatory action (our emphasis). Recommendation: a review of the concerns raised by MK in the past and currently, to establish whether these do only cover doctors with a certain nationality / ethnic origin. If this proves to be the case, this should be investigated further with MK to ascertain why he continues to identify these clinicians specifically’.

[320]It is clear from this paragraph that LB knew that MK had raised a complaint of race discrimination, but what is less clear is what she knew of its outcome i.e. that MK had abandoned that complaint. We would have expected her to know this – or at least have been informed of it - given that she was commissioned to investigate the claimant’s grievance. Nor is it clear why she believed that it was ‘reasonable’ for the respondent to investigate the 69 reported cases without being concerned itself of MK’s motivation.

[321]LB did not explicitly deal with the claimant’s central grievance i.e. that MK had racially discriminated against him. It is not evident to us why she did not it; we are conscious we have not heard from her, nor received any evidence about the terms of her engagement.

[322]Rather, the effect of her recommendation is that she handed the claimant’s main complaint of race discrimination back to the respondent to conduct a ‘review’ of MK’s past and current reporting patterns.

[323]Before we leave this particular issue, we note that LB had spoken to the respondent’s Freedom to Speak Up Guardian, FG, who agreed that ‘whilst the Trust might want to keep in mind an individual’s motivation, if someone has raised genuine concerns, then they need to be dealt with’. By his grievance, the claimant had raised his concerns.

[324]Issue 6 – this issue was identified in the report was as ‘MK’s behaviour since the conclusion of the Tribunal, and the lack of control the Trust has over this, including his speaking to others about the Tribunal, his continued harassment of [the claimant] and raising of concerns’.

[325]In this section of the report, LB noted that JG and LJ spoke to MK following a case review on 28 June 2021, apparently to discuss learning for the organisation, and issues around culture and perception. She also noted that that it included no discussion about MK’s behaviour in general or specifically in relation to his Tribunal success.

[326]LB considered the claimant’s complaint that MK had approached his secretary FD. She said that FD gave a clear and unprompted account of how MK talked about his victory at the employment tribunal, that he was getting a lot of money and would be getting more. She said FD spoke very highly of the claimant and his popularity and general demeanour. She stated she had not heard the claimant, or anyone else speak about the tribunal proceedings.

[327]LB said ‘MK has not been given the opportunity to give his side of the event: however, should any of this prove to be the case it would be inappropriate and very troubling behaviour, particularly in terms of stating that [the claimant] was suspended when he was not’ (our emphasis). She regarded the comment that the claimant would be having a difficult year ahead appeared to be ‘somewhat threatening’.

[328]We take her comment at face value i.e. the respondent did not ask or require MK to be interviewed by LB in respect of the claimant’s grievance. The respondent did not explain why.

[329]LB upheld the complaint about MK’s behaviour when speaking to FD. She observed again that there seemed to be ‘a reluctance by individuals to challenge any behaviour of MK that they find difficult’.

[330]LB said her findings pointed to the requirement for ‘further investigation; either everyone was getting their approach to MK wrong, or there is a concern that he is becoming unmanageable. This is not a suitable way to work, for either MK or anyone else’.

[331]LB made recommendations. She recommended clarity about LJ’s role ‘to remove conflict between her role as Independent Lead Investigator and other people’s perception of her managing MK’.

[332]A further recommendation was that the respondent set clear expectations about MK’s behaviour, stating it was reasonable to put limits on his behaviour. Finally, she recommended further investigation with MK ‘to enable him to explain what happened from his point of view’, and for clear expectations to be set about his behaviour.

[333]Issue 8 - LB upheld the complaint that the claimant had been asked to step down as GOSW. DD agreed in his interview that he did ask the claimant to step down during their conversation on 1 October 2021, and he did so after discussion with JG. DD said that whilst it was acceptable as a member of the corporate team to disagree in private but that ‘we should present as a united team’.

[334]LB disagreed that GOSW was a corporate role, observing that the suggestion that the role ‘cannot be held by someone who might ‘rock the boat’ – even for personal matters – risks undermining the post’.

[335]LB recommended that it needed to be ‘made clear that this should not have happened in the first place and it is recommended that [the claimant] receives a formal apology for being asked to resign’, adding that it needed to be ‘made clear to all staff that the raising of a grievance will not impact on consideration for any roles’.

[336]DD maintained to LB when interviewed in March 2022 that MK had raised all patient incidents ‘through M&M or Datix’ . We have difficulty reconciling this statement with LJ’s evidence to us (see further below) that the respondent knew and had sought legal advice about MK obtaining information by accessing patient records either after he had submitted the first list of patients in August 2017, or the second list in May 2019.

[337]LB considered it important to note that everyone she interviewed spoke very highly of the claimant and that he is obviously a highly valued and respected colleague, but that relationships within the department were already strained, with the Morris judgment serving to amplify the difficulties. She considered that an urgent review and restorative work was required.

[338]Nothing in her report suggested that LB conducted the investigation as part of a team; nothing in her report suggested that her recommendations were subject to amendment or veto by anyone else.

[339]The report was approved by LB on 18 March 2022. With appendices, it was over 120 pages. It contained interviews of 6 people in addition to the claimant, including interviews given by JG and DD.

[340]The respondent did not suggest that there was any delay in receiving the report.

[341]For reasons not adequately explained by the respondent, the claimant was not notified of the outcome until three months later, on 16 June 2022, when he met with LJ and Natalie McMillan (‘NMcM’). NMcM described herself as an ‘Independent Case Manager’; we remain unclear of her role in this investigation; no reference to a role such as this is contained in either version of the respondent’s grievance policy provided to us.

[342]LJ attended the meeting in her capacity as ‘Independent Lead Investigator’.

[343]The claimant received a letter described as the grievance outcome letter on 17 June 2022 from NMcM. It was four pages long. Two pages consisted of a rehearsal of the allegations and a table, its contents identifying which complaints had been ‘not upheld’, ‘partially upheld’ or ‘upheld’. The table appears to be a reproduction of the table contained in LB’s report. LB’s report was not provided to the claimant. The letter did not mention the date of LB’s report. The letter contained no rationale for the findings.

[344]The letter stated: ‘in conclusion, there are issues within your complaint that have been upheld or partially upheld. The issues where they were not upheld is where the investigating officer and myself as case manager believe that the Trust has behaved reasonably in the circumstances’ (our emphasis).

[345]In any event, NMcM continued that the ‘the actions I recommend are taken forward’ (our emphasis) were those for urgent restorative behaviour and clarification regarding the line management of MK and support to address his behaviour in the same way as others.

[346]The letter stated that there were ‘other recommendations including the Trust reviewing is approach to communication around tribunals and ensuring that there is a culture where it is accepted and encouraged for people to speak up and raise grievance (sic) regardless of their roles, position or seniority’.

[347]No reference in the letter was made to the recommendation that the respondent undertake ‘a review of the concerns raised by MK in the past and currently, to establish whether these do only cover doctors with a certain nationality / ethnic origin’. No reference was made in the letter to the recommendation that it should be made to clear to the claimant that he should not have been asked to step down from the role of GOSW, or that he receive a formal apology for being required to step down from his GOSW role.

[348]NMcM concluded: ‘I realise that there is a lot of information to digest and hope this has clarified the issues’ before informing him that he had ten working days within which to appeal.

[349]The grounds of appeal open to the claimant, according to the letter, were:• ‘The procedure: a failure to follow procedure had a material effect on the outcome

• The decision: the evidence did not support the conclusion reached

• Any proposed action: was inappropriate given the circumstances of the case

• New evidence: which has genuinely come to light since a formal resolution meeting’.

outcome

[350]The letter was copied to LJ as ‘Independent Lead Investigator (to ensure actions are addressed)’.

[351]We think that the claimant has a fair point, that if LJ was identified as the person to ‘ensure actions were addressed’ she might reasonably be able to assist with why the respondent chose to action certain recommendations, but not others. She was not able to provide that information, however. Neither LJ nor DD were able to provide an explanation for why the claimant had not received a formal apology from the respondent for being asked to step down as GOSW, as LB had recommended. Neither could explain why LB’s recommendation that MK’s reporting patterns be reviewed, was not actioned.

[352]On 17 June 2022, the claimant stated that he wished to appeal the outcome of his grievance. He said he did so on the ground that the evidence did not support the findings. His union representative was copied into both items of correspondence on 17 June 2022.

[353]The claimant sought from LJ a copy of the report written by LB. He was still seeking a copy on 20 September 2022 when in an email in which he referred to earlier attempts to obtain the report to enable him to formulate his appeal.

[354]At 16:38 on Tuesday 20 September 2022, another officer sent to the claimant a copy of the report, agreeing that it may be possible to extend the date for submission of his appeal grounds until Friday 23 September 2022. The appeal hearing was due to take place on Wednesday 28 September 2022. The claimant received LB’s report one week before the appeal hearing.

[355]The appeal hearing commenced on 28 September 2022 and concluded on 5 October 2022. The claimant was accompanied by his BMA representative. LB was also in attendance. The appeal was heard by a panel of three, chaired by the respondent’s Director of Planning and Performance.

[356]LB said at the first meeting that she did think MK’s behaviour was because of the claimant’s Indian origin. The claimant pointed the panel to a matter that he described as a ‘major patient safety concern’ which, he said, if MK had been genuine, he would have disclosed this case.

[357]On 2 November 2022, the appeal panel sent to the claimant its decision.

[358]The claimant’s appeal in relation to issue 1 was not upheld.

[359]In relation to issue 2, the claimant had informed the appeal panel that he believed that MK had deliberately restricted his reporting of patient incidents to consultants of Indian origin, repeating his contention that there were other consultants in respect of whose treatment he might have raised complications but did not. He added at the appeal hearing that since then, MK had been actively requesting people for information about complications arising from the claimant’s treatment.

[360]The appeal panel rejected this ground. It ‘acknowledged’ that MK had restricted his ‘research’ to his colleagues of Indian origin, continuing ‘the panel acknowledged there was a rationale behind MK focussing his focusing his research, as it was his belief that Indian doctors had been treated more favourably’.

[361]The panel said it had ‘considered the response of LB [in which she had] confirmed discrimination of you had not been raised as an issue and so had not been investigated’ (emphasis applied).

[362]That response was wholly inadequate. The respondent knew that MK had abandoned any complaint of race discrimination but nevertheless still pursued, with the respondent’s agreement, two sets of complaints in relation to 69 patient cases against consultants of Indian origin. The claimant’s central grievance was that MK had discriminated against him. LB had not investigated the complaint of discrimination but had recommended a review of MK’s reports.

[363]It was for the respondent to investigate the claimant’s grievance, whether via an independent investigator, or directly. LB did not, herself, investigate whether MK’s reporting of his consultant colleagues was racially motivated. She had, however, provided her clear recommendation to the respondent. She had included in her report the view of the respondent’s own Freedom to Speak Up Guardian that genuine concerns required consideration.

[364]The appeal panel response provides no explanation why the respondent did not investigate the claimant’s grievance of race discrimination. Nor did it explain why LB’s recommendation that MK’s reporting be reviewed was not actioned by the respondent.

[365]Furthermore, it made no comment about the claimant’s reported concerns that MK was continuing to search for information about patient complications. As will be seen, the claimant’s concerns were not without substance.

[366]Seemingly, on that basis, the appeal panel rejected the claimant’s complaint that MK’s complaints about the clinical treatment of his consultant colleagues was racially motivated.

[367]We turn to other events taking place in 2022. May 2022 – A Second Notification from the GMC

[368]On 12 May 2022, the claimant received a second notification from the GMC.

[369]The GMC informed the claimant ‘that [MK] has contacted us to raise concerns about a type of breast surgery you are carrying out’. This given a case number by the GMC ending ‘-6243’.

[370]The case number designated by the GMC in respect of the notification he received on 20 September 2021 and that we have addressed above, bore a case number ending ‘-3672’. The two investigations were being conducted by different investigation officers at the GMC.

[371]Furthermore, when the claimant received the outcome of this enquiry in November 2023, the GMC described the circumstances in which it had commenced this enquiry. It said MK had ‘initially raised [it] with the GMC in October 2019; it has been identified through a rule 12 review that clinical concerns raised within [case number ending -6285] had not been considered as part of the previous Enquiry’.

[372]We do not know what the enquiry bearing the case number ending -6285 was about. However, we are satisfied, given the different subject matters, the different case numbers and the different investigation officers, that there were (at least) two separate enquiries of the claimant, initiated by MK.

[373]Returning to the date the claimant received notification of this matter i.e. May 2022. There is no evidence before us that the claimant was aware of the GMC’s intention to open a second enquiry until 12 May 2022. In addition, we consider it more likely than not that, as the maker of the allegation, MK received a similar notification from the GMC about its intention to open an enquiry around this time.

[374]This matter related to the claimant’s treatment of Patient One. The claimant had treated Patient One 11 years earlier, in or around May 2011. The letter from the GMC stated that amongst the documents it had received, was a witness statement that the claimant had given to the Morris Tribunal in 2020. That witness statement was dated 9 October 2019. In that statement, the claimant had stated that he had carried out ‘approximately 150’ of the type of procedure he had carried out on Patient One.

[375]The Morris judgment, promulgated in January 2021 contained no relevant findings on this matter. The letter from the GMC stated that ‘further information’ was received by the GMC on 24 July 2021, 8 August 2021 and 13 September 2021.

[376]A Provisional Enquiry had been opened to obtain information about the concern that the claimant ‘is carrying out the type of surgery which is only to be used in a research setting’.

[377]On 20 November 2023, the claimant received notification from the GMC of its decision to close the enquiry. No formal allegations were ever put to the claimant. According to that closure notification, MK had initially raised concerns with the GMC on 30 October 2019.

[378]The GMC noted that the Trust had confirmed that no such surgeries had taken place ‘in the last five years’. This, as we have said above, is likely to be a reference to what is known as the ‘5-year rule’, since the GMC was required to consider the question of delay. The GMC noted that it had ‘not had sight of any evidence to justify the extent of the delay’ in the reporting of the matter to the GMC. Of the various factors that it was required to take into account when considering whether to waive the ‘five-year rule’, it took into account the number of alleged incidents, noting that MK had ‘only provided details of two particular surgeries’. For the avoidance of doubt, we do not know what that second surgery was said to relate to and nor does the GMC comment any further about the quality of that second example. It concluded that there were ‘no factors that weigh in favour of the waiving of the five-year rule in this case and some significant factors against’. The outcome was that the ‘five-year rule’ should not be waived and the Provision Enquiry was closed.

[379]MK did not address the circumstances of either referral he made about the claimant to the GMC in his written evidence; he simply stated he had received legal advice that the allegations were subject to judicial proceedings immunity. June 2022 – A Second Discussion with the Claimant’s Secretary

[380]In June 2023, MK again visited the claimant’s secretary, FD; his visit was conducted shortly after the second notification by the GMC of its intention to enquire into the claimant’s fitness to practice.

[381]The respondent draws our attention to the following facts: that the claimant was not physically present at the exchange; when invited to be interviewed by Graham Brown (‘GB’) who investigated the claimant’s grievance presented in June 2023, FD did not attend.

[382]We took into account the following matters: that FD appeared to be showing signs of reluctance to become involved when she spoke to LB - she told her that one of the reasons she did not tell even the claimant that MK had told her that the claimant was suspended was because she didn’t want to ‘cause more difficulties’; that FD did say to GB that the conversation happened, but that she could not remember much of the content; that we consider the claimant to be a fundamentally truthful witness who has not exaggerated this, or indeed, any other complaint; MK does not deny the allegation, rather he claims not to recall it; we do not regard MK to be a generally truthful witness, since he sought to claim that he had obtained 69 sets of patient records from Morbidity and Mortality Meetings, when he had not; we have disbelieved his written evidence that he cannot recall his conversation with FD in November 2021, when there is significant evidence before us to suggest that he ought to have done and therefore on balance we disbelieve him when he says he cannot recall the conversation in June 2022.

[383]We are satisfied that MK told FD that he ‘felt sorry’ for the claimant in a manner that we accept was patronising and disparaging. November 2022 - Outstanding Contribution Award

[384]The respondent celebrates outstanding staff achievements via ‘shining star’ awards. MK was neither nominated for, nor did he receive, a Shining Star award in 2022.

[385]MK was nevertheless invited to the award ceremony that took place in November 2022, although he declined the invitation. At the awards ceremony, a slide was displayed containing images of 5 governors of the Trust whose tenure had come to an end and whose service was acknowledged; MK was included in that slide because he was one of those five retiring governors. December 2022 - Inaccurate Statement sent to the GMC

[386]The GMC liaised with the respondent about the referrals that MK had made to it about the claimant and his colleagues.

[387]On 4 April 2022, the GMC wrote to the respondent seeking further information about MK’s first referral about the claimant. The GMC said it was investigating a concern that the claimant had submitted a Datix in June 2018 despite the having been ‘previously addressed during [MK’s] appraisal’.

[388]The query related to the incident involving Dr R. The GMC asked for a response to specified matters including concerns about fitness to practice together with any relevant documentation.

[389]On 5 December 2022 the claimant discussed with LJ the respondent’s response to the GMC. He says that LJ gave him the distinct impression she was either unprepared or unwilling to engage with him, alternatively she was disorganised; she could not find various documents.

[390]LJ, it is said by the claimant, acted with notably more care with others, when replying to the GMC by, for example, sitting down with them to check the accuracy of the information it had asked the respondent to send to it. He named, as examples, other consultants of Indian origin who he said had been treated better than him.

[391]The claimant discovered that LJ had sent to the GMC erroneous information. Specifically, the claimant takes issue with a comment LJ made in a document she sent to the GMC, on behalf of JG, entitled ‘Further information’. In it, LJ informed the GMC that ‘[the claimant] maintained that he had not undertaken [MK’s] appraisal at or around this time’.

[392]The GMC was not querying with the respondent whether the appraisal in 2018 had taken place; it was querying MK’s complaint that the claimant had already addressed with MK during an appraisal in January 2018 the matter he subsequently raised in the Datix of June 2018.

[393]We take the view that LJ understood that; she did not suggest otherwise. Nor did the contents of her reply to the GMC suggest that she believed it had not in fact taken place. The appraisal of January 2018 and the Datix of June 2018 were a key part of the evidence considered by the Morris Tribunal in 2020, at which LJ was present; it referred to both documents in its judgment: paragraphs 10.75 and 27.

[394]We note that in LJ’s sworn statement to the GMC in May 2023, to which the document entitled ‘Further information’ was attached, she described that her role included overseeing the respondent’s preparation for MK’s Tribunal claim, reviewing and preparing the documentation that the Trust held, and involvement in the disclosure process.

[395]In addition to the document entitled ‘Further Information’ she also appended a document dated March 2021 entitled 'Learning lessons and actions following Employment Tribunal Case Review’, produced by JG and containing discussions had by the respondent’s executive team following the Morris Tribunal judgment.

[396]In the proceedings before us, at paragraph 37 of LJ’s signed statement, she stated that she had discussed the 2018 appraisal with the Revalidation Officer (responsible for collating appraisals), ‘at the time’ one implication being that she had received erroneous information about the existence of the appraisal. The hearing file contained earlier appraisals conducted by the claimant with MK, but notably absent from the documents was the 2018 appraisal. In cross examination, the claimant said that the impression given in paragraph 37 of LJ’s written evidence was demonstrably untrue; the Revalidation Officer had a duty to maintain a file of appraisals.

[397]When she came to give her evidence, LJ withdrew that part of paragraph 37 of her statement, without explanation.

[398]Instead, she said in her oral evidence that, when formulating her response to the GMC, she had relied upon a short exchange in an interview conducted with the claimant by the Investigation Team when it was investigating MK’s conduct.

[399]That interview was conducted in January 2019. The minutes of the interview commence with the statement ‘this is not a verbatim account of the meeting held but serves as an overview of the main points discussed’. Nothing before us suggested that the claimant had been given the opportunity to review or correct them.

[400]The minutes record as follows: ‘CG stated MK had informed her that [the Dr R incident] ‘wasn’t discussed with him when he had his appraisal with [the claimant] in the January’. [the claimant] said he didn’t do his appraisal’ (our emphasis).

[401]The exchange is far from clear.

[402]The complaint MK made to the Morris Tribunal, consistent with the concern being investigated by the GMC, is that the Datix was unnecessary and inappropriate because that incident was discussed during his appraisal in January 2018.

[403]Furthermore, the claimant had conducted the appraisal in January 2018 but, equally, he had not conducted MK’s appraisal in January 2019, when the interview took place.

[404]We accept the claimant’s evidence that the minutes are inaccurate, either as to what was said, or what he meant; the fact that the appraisal in 2018 had taken place was a matter of unassailable record.

[405]According to LJ’s written and oral evidence, so large was the volume of documents that she was tasked to manage, she encountered repeated difficulties uploading them to the GMC portal. Nevertheless, it appears that she alighted on an exchange consisting of 3 lines amongst thousands of documents, to offer up the GMC information that it had not sought. She did so without first clarifying the comment with the claimant, and at the obvious risk of further compounding the difficult situation in which the claimant found himself.

[406]The comment to the GMC that the claimant ‘maintained that he had not undertaken [MK’s] appraisal at or around this time’ was not only inaccurate; it was gratuitous. It was also one of the ‘facts’ that the GMC later took into account when reviewing the claimant’s fitness to practice. December 2022 to July 2023 - Claimant’s Job Plan

[407]On 12 December 2022, the claimant met with his then, Clinical Director AA, the Care Group Manager Alison Coates (‘AC’), and the service delivery manager, CB. The purpose of the meeting was to discuss a review of the claimant’s job plan.

[408]Job planning is, by its very nature, a collaborative exercise. A consultant has a number of PAs (programmed activities) or slots in their diary, to which a variety of activities might be dedicated, for example, elective duties, emergency on call duties or teaching. A job plan should be reviewed annually. A consultant is paid in accordance with their job plan, whether or not the activities are in fact undertaken.

[409]The claimant had a job plan, but it required updating, hence the need for the meeting. His job plan included PAs dedicated to emergency on call duties. He said he was reluctant to resume on-call duties, having stopped since March 2022, in part because of his concerns about being deskilled, in part because of his concerns that he would receive a complete junior team only inconsistently, or a junior team that was inconsistently constituted. Finally, and as against those concerns, he told AA, he was concerned about the levels of scrutiny he would face from MK in the event of patient complications.

[410]The claimant informed AA that the last Morbidity & Mortality meeting two weeks before, MK had been argumentative with at least one if not two consultants of an Indian origin about their treatment of patients.

[411]There appeared to be some recognition on the part of AA that this was a difficult environment in which to work.

[412]AC was charged with returning to the claimant with a job plan which included on-call duties and one which did not. The claimant said he had been waiting for this since his return from sick leave in August 2022 and he said that lack of planning was affecting patients, staff as well as himself. He asked for it to be dealt with as soon as possible. AC apologised for the delay.

[413]On 19 January 2023, the claimant and AA corresponded with one another, copying in AC and others. The claimant described to AA the ‘continued mistrust and a hostile environment in the last M&M meeting’. He recounted AC’s apology stating that ‘she is still working on a job plan without on call for me’. Read literally, the claimant’s own correspondence suggested that, by this stage, AC was charged only with the design of a job plan without on call activities.

[414]On 20 January 2023 AA replied to the claimant, stating he had spoken with AC and the service delivery manager, CB that morning, informing him that AC would send him a document and ‘the job plan without on calls on Monday’.

[415]On 1 February 2023, Kevin Etherson (‘KE’) commenced a new tenure in the role of Clinical Director.

[416]On 27 April 2023, the claimant emailed KE. He informed KE that he had been waiting a long time for a job plan. If the lack of a job had caused overbooked clinic on 25 April, or overbooked theatres on 26 April, the claimant did not mention it in his email.

[417]The same day, KE responded, stating that one of the issues was likely to be the on-call rota. He referred to a national trend in which specialist breast surgeons were phasing out emergency general surgery i.e. on call work, to concentrate on elective work, so as to avoid the risk of deskilling. KE invited the claimant to state whether he wished to withdraw from on call work permanently in line with his specialist colleagues.

[418]Correspondence between the claimant and KE continued about on-call duties, including the number of PAs his on-call work amounted to and the effect of their removal from his job plan.

[419]On 13 June 2023, the claimant, his BMA representative, KE, AC and CC (People Business Manager) met. They discussed a wide range of matters including the extent to which the respondent could or could not guarantee a complement of junior support that would assuage the claimant’s concerns, what a job plan might look like (no draft had been prepared) the number of PAs he understood his on call element of his current job plan represented and the number of teaching PAs that might be available. The claimant voiced his unhappiness at being restricted to operating in Theatres 9 & 10 in North Tees, his isolation from the Hartlepool site and his concern that MK had been spreading rumours about the claimant’s relocation to North Tees.

[420]On 27 June 2023, KE sent to the claimant a summary of their discussions. As with his other correspondence, it was impressively detailed and thorough. KE stated that, having reflected, he would like to explore the claimant’s repatriation to Hartlepool, meaning he would return to working alongside his specialist breast colleagues, undertake much of his elective work there, and furthermore KE said he wished to explore how this might be done whilst minimising unnecessary contact with MK. He asked the claimant to reflect further on whether he sought to maintain his on-call rota.

[421]On 12 July 2023, the claimant confirmed that having seen the draft job plan uploaded by AC, he did not wish to resume on call rota duties he said, because of the lack of assurance that the respondent could provide him with adequate junior support.

[422]He also emailed KE to inform him that he would like to return to working at Hartlepool. His move was subsequently managed without, or without any significant, operational difficulties. January 2023 - The Information Governance Team

[423]Over Christmas 2022, the claimant asked to meet with someone from the Information Governance team (‘IG’), on a confidential basis. Kerry McLean (‘KMcL’), the IG Manager agreed to meet the claimant on 6 January 2023 although her manager, the Head of Information Governance, Neil Dobinson (‘ND’) did not attend.

[424]When the claimant sought information relating to patient safety incidents as well as personal information belonging to others, he was informed that he was not entitled to documents that did not constitute his own personal data pursuant to GDPR.

[425]According to the respondent’s own evidence, when the claimant indicated he could obtain the information from other people if it was not provided via the Trust, KMcL cautioned him against that approach, ‘to protect the Trust and [the claimant] from the possibility that he may commit a data breach by requesting / accessing that sort of information directly’.

[426]Again, according to the respondent’s own evidence, the IG team were unaware that MK had accessed patient data directly, until sometime after 6 January 2023 when the claimant himself informed ND of this.

[427]The IG team has the ability to conduct a sophisticated audit of access to patient records, which includes the identification of which patient records, and which parts of patient records have been accessed at which date and time and by which particular terminal. It has not been asked to do so in relation to the patient records that are relevant to these proceedings.

[428]The respondent did not place before the Tribunal any IG policies. KMcL confirmed that she was unaware of the implication of any another person by MK, e.g. a secretary to assist in the obtaining of confidential patient records (as appeared to noted by MK in his handwritten list of 25 patient cases); this, she said, would be regarded as a particularly serious breach.

[429]There was a meeting between ND and DD, although the Tribunal remains unclear when that took place or what, precisely, was discussed; no documents or written evidence about that meeting was placed before the

[430]ND, who remains in employment with the respondent, and despite being a named perpetrator to an allegation, did not provide a written or oral evidence. February 2023 - WhatsApp Group

[431]In February 2023, KE commenced his tenure as Clinical Director of General Surgery and Urology, having succeeded AA. He had no previous involvement in the relevant history of the Directorate, meaning, we accept, that he was able to attend to matters with a fresh perspective and from a neutral standpoint. We take the view that that was undoubtedly a significant strength, although he recognised in both his written and oral evidence it also meant that he was unaware of some of the background to the claimant’s case.

[432]In his first month of his new appointment, KE directed that a WhatsApp group (‘Fox and Fistula’) be deleted. For the avoidance of doubt, there was no suggestion before this Tribunal that the contents of that WhatsApp group were in any way inappropriate. KE’s ostensible reason for so directing, was that the WhatsApp group was contrary to the respondent’s policy. That policy was routinely ignored; there were other WhatsApp groups in existence in the Directorate including one group in which KE was a member.

[433]We find, having regard to all of the evidence before us, that the likely reason KE directed the disbanding of the ‘Fox and Fistula’ WhatsApp group was because he was concerned that MK was not part of the group, and that its continued existence might expose the respondent to the risk of yet further complaint by him. For the avoidance of doubt, there was no suggestion before us that MK had been intentionally excluded from membership of that WhatsApp group. March To April 2023 – Freedom To Speak Up Guardian

[434]On 23 March 2023, the claimant spoke to the respondent’s Freedom to Speak Up Guardian, FG, because, he said, he was lost and did not know what to do next. FG called a member of the HR team, CC (People Business Manager) to the office, where they discussed his concerns further. FG reassured the claimant in correspondence that she would be meeting with LJ and KE and that he may receive further contact from LJ, KE, AC or DD. April 2023 – A Further List of Alleged Patient Complications

[435]In or around April of 2023, MK submitted to the respondent a further list of alleged patient safety incidents. There were around 15-20 incidents on the list. This time the patients had been treated by a new and junior upper GI consultant, Mr Gk. He is of Indian origin.

[436]Mr Gk carries out complex bladder surgery. DD shares his specialism and he regards Mr Gk as a highly competent surgeon.

[437]As before, there was no suggestion before us that anyone other than MK was concerned about the patient cases he raised about Mr Gk.

[438]Nevertheless, the respondent authorised another audit of Mr Gk’s patients as reported by MK. This time, the audit was conducted internally and the scope of the audit was cast wider so that it included other consultants’ cases also.

[439]In a description that the Tribunal considered particularly evocative, the claimant described seeing Mr Gk, on the floor of his office, collating evidence for his audit. Our impression of the claimant is, consistent with DD’s own view of the way the claimant conducted his GOSW duties, that he was genuinely concerned for the welfare of his junior colleagues.

[440]Nothing of clinical significance was found in this list of cases reported by MK.

[441]In cross examination, DD accepted that he could see some merit in the claimant’s point, namely that MK’s reporting of cases appeared to be surgeon led, and not patient led. Patient Records

[442]MK in his witness statement maintained that he had obtained all patient information from Morbidity and Mortality meetings. That statement was untrue.

[443]On the respondent’s own evidence, he had obtained the information by accessing confidential patient records ‘directly’, which is to say, outside the respondent’s own information governance procedures.

[444]We say only this much more: MK’s claim to obtain information from Morbidity and Mortality meetings could not, in any event, withstand the barest scrutiny. Patient complications are discussed when they take place. In the claimant’s case, Patients One and Two were treated in 2011; if they had been discussed at such a meeting, they would have been discussed in 2011. On MK’s own evidence he waited 6 years before to the attention of the respondent matters he described as avoidable negligence. In any event, we understand that neither of the claimant’s cases were discussed at Mortality and Morbidity meetings.

[445]On the respondent’s own oral evidence, MK had acquired the information by accessing confidential patient records belonging to 80 to 90 patients - that is to say, the first list of 25 patients, the second list of 44 patients and 15-20 patients belonging to Mr Gk. This information was not contained in any witness statement; the respondent was unable to provide an explanation for what we regard as a significant omission.

[446]We received unclear evidence about when the respondent knew that MK had accessed patient records, but we take the view that it knew, or at least ought to have reasonably known, when it received the detailed information contained in the first list of patients, in August 2017; the handwritten note contained patient numbers and significant detail.

[447]We were informed that the respondent took legal advice about MK’s access of patient records after the first list of 25 patients was presented to in August 2017, alternatively, after the second list of 44 patients was submitted by MK in May 2019, when some consultants voiced their concern about MK’s access to patient data.

[448]Having taken legal advice, we were told, the respondent was satisfied that there not only existed a ‘threat to life’ or ‘vital interest’ exception, to the GDPR prohibition on accessing personal data, but also that it was applicable to the actions of MK.

[449]If that explanation is accurate and reliable, we are troubled by the lack of its appearance in any of the respondent’s written evidence or documentation, particularly given that, as we were informed, that conclusion was endorsed by ND, as Head of IG. ND was named as a perpetrator to the claimant’s allegation that the IG team had refused access to patient data but permitted MK to access patient data. The respondent disclosed no documentary evidence of the matters above.

[450]Nor are we able to reconcile the respondent’s evidence that it took legal advice either in or after 2017 (after the first list of 25 patients was presented by MK) or in 2018 (after the second list of 44 patients was presented by MK) and yet KMcL confirmed in questions from the claimant, her written evidence, i.e. that the IG team was unaware that MK was accessing patient information ‘outside the normal process . . directly using his own access to systems’ until the claimant told ND this 5 years later, in 2023.

[451]We do not understand the respondent to say it was satisfied that those were the only patient records accessed by MK, or if it was, how it was when it has not conducted an audit or investigation or interrogated the IT system in the manner KMcL described was possible.

[452]Nor were we able to understand, because the respondent was unable to explain, how it was satisfied that the ‘threat to life’ or ‘vital interests’ exception applied to MK’s access to patient records, when it had not asked MK about how he knew which patients’ records to search for, or the state of his knowledge of those patients when accessing their records.

[453]MK had described the patients he reported as having ‘suffered complications, negligence, delayed treatments and avoidable deaths’ . LJ was unable to explain to the Tribunal, although we accept that she may not have been the most suitable person to ask, how the respondent had reconciled the applicability of the ‘vital interests’ exception to 69 patients notwithstanding the fact that it had concluded after 3 investigations that not a single case gave cause for any significant clinical concern.

[454]It is not our remit to consider whether MK’s accessing of patient data was lawful, but nevertheless, we cannot help but to wonder about the rigour with which the respondent approached the issue.

[455]MK obtained the information by accessing patient records directly. The respondent could not explain why it adduced MK’s written evidence that he had obtained the information from Morbidity and Mortality Meetings, when it knew that that evidence was false.

[456]For the avoidance of doubt, there was no suggestion before us that the claimant had accessed patient information impermissibly. Claim Form and Response

[457]On 30 January 2023 the claimant commenced ACAS Early Conciliation. It ended on 13 March 2023.

[458]On 13 April 2023, the claimant presented his claim form to the Tribunal. Its contents were detailed, containing a lengthy chronology of events beginning in August 2017. Amongst other things, the claimant alleged that ‘it could be seen that .. .Indian consultants are being persecuted by MK when there is evidence that there is no difference between any group of consultants’.

[459]In its response, filed on 1 June 2023, the respondent stated, amongst other things: ‘The respondent has an obligation to deal with all concerns raised by its employees under its policies. It should be noted that multiple accusations have been made both by the claimant and [MK] over recent years. The Respondent has always investigated these allegations as required under the relevant policies’. It added ‘following the claimant’s grievance, the respondent took on board the suggestions [of LB]’. June 2023 – Letter to the Chief Executive

[460]The claimant learned that JG, the chief executive, was soon to retire. On 13 June 2023, he wrote to her. We accept he did so ‘out of desperation’. By now, and over a period of years, the claimant had discussed his belief that he had been racially discriminated against with: LJ, DD, LB the Head of Employee Relations, and the Freedom to Speak Up Guardian. He thought a plea to someone who he regarded he had a shared professional history with, might make a difference.

[461]In his email to JG, he gave his best wishes for her pending retirement and reminded her that the last time they spoke was about the claimant’s GMC referral. He set out a summary of the history, much if not all, we consider she already knew, and certainly was information she had access to.

[462]He said that the GMC referrals and his own divorce had taken his attention away from his central complaint about MK’s behaviour that he said had been ‘completely mishandled’ by management. He said the trust knew, yet took no action about, MK’s behaviour. He said that MK was being treated differently to ‘all of us’.

[463]He described MK’s second referral to the GMC as a continuation of his harassment, and that it caused him to go on sick leave for a second time. He said ‘again, the respondent took no action’.

[464]The claimant said that he was seeking ‘remedy and action’ for a number of matters, the first of which was described as ‘[MK selectively reporting clinical and other concerns on me and other colleagues of Indian origin’ in respect of which he said he had already submitted a grievance in January 2022.

[465]He added that he was being continually harassed by MK and yet no action was being taken against him; he complained about his removal from his GOSW post because he had said he intended to submit a grievance.

[466]On 21 June 2024, and in advance of a third case management hearing, the claimant sent to the respondent and the Tribunal proposed amendments to his claim form. He sought to include an allegation that the respondent had failed to act on his email to JG dated 13 June 2023 and remedy a number of matters, the first of which was described as ‘MK selectively reporting concerns on me and other colleagues of Indian origin maliciously with false accusations. The respondent has sufficient proof but failing to act and provide remedial measures’ (sic).

[467]On 24 June 2023, Judge Loy conducted a case management hearing, at which he allowed, by consent, the claimant’s application to amend ‘subject to the issues of time limitation in respect of each of the amended grounds of claim being determined by the Tribunal at the final hearing’.

[468]On 27 June 2023, JG wrote to the claimant. In a conspicuously short response, she advised that the ‘correct route’ would be to raise a grievance. She said he could seek support from the Freedom to Speak Up Guardian or the Head of Employee Relations.

[469]On 2 August 2023, the claimant wrote to DD stating that he did not understand why he had been treated differently to MK in relation to access to medical records of those 15 incidents that he had listed in his grievance in January 2022.

[470]On 4 August 2023, LJ responded to the claimant in DD’s stead. She said she wanted to ‘discuss and confirm’ the 15 patients he had referred to in his email to DD. She asked him if it would be helpful to arrange a discussion with JW (Head of Employee Relations) and Information Governance ‘to understand the information requested’.

[471]The claimant’s response on 6 August 2023 was long and detailed. He listed by name and date all the people he had spoken to over the last two years, the advice he had been given and the various directions he had been sent in by them.

[472]He said he had already met with DD on 1 October and 22 October 2021 to explain the reasons for raising a grievance. He said he had identified 15 cases in his grievance in January 2022. He said he had continually raised it throughout his grievance which took almost one year, with the conclusion ‘just mentioned that no investigations were conducted because I did not specify that I was targeted because I was Indian’ (we take this to likely be a reference to the respondent’s reliance on the conclusion of LB that the claimant’s delay in specifying race discrimination seemingly undermined his complaint that MK was motivated by race). 257. He said he had met with Catherine Connor (People Business Manager) in December 2022 who directed him to JA; he met with JA who told her that she would need to speak to DD before disclosing patient data; on the same day he met with the Freedom to Speak Up Guardian; in January he spoke with KMcL who advised him that any request for patient data must be via the information governance procedure and that she and ND and JA and CC would work together to look at the information he requested; that he received a rejection from JA; that he spoke with the Freedom to Speak Up Guardian on 23 May 2023 who called CC to her office and asked him to give her his list of patients; that in that conversation CC said she had received no contact from ND; that he heard nothing further so he wrote to KMcL who replied on 10 July 2023 to inform him that everything he sought he had and asked her ‘what was missing’ so he replied to her telling him the whole list of information he sought was missing because he had been provided with nothing; that his most recent redirection was to JW, Head of Employee Relations who he had never met, but told him that she had appointed Graham Brown (‘GB’) to investigate the contents of his email to JG, and that he had met with GB twice and shown him the list of 15 cases, but that GB had advised him to write to the Trust and ask why they had not been investigated.

[473]The claimant concluded ‘I am completely bewildered as to why I am having to go through all this, while [MK] is just able to put in multiple patient safety concerns which are taken seriously and investigated every time against only one group of consultants without any IG issues’.

[474]LJ responded on 11 August 2023 by saying she believed that his ‘ask’ had been ‘lost in translation over the past few months’ but that the respondent was ‘commissioning an independent expert to review the cases outlined by you’.

[475]The claimant expressed his concern that MK was being given access to patients’ medical records without satisfying the condition that it for it to be processed under the ‘special category vital interests’ and furthermore, that ND, the Head of Information Governance, had told him that LJ or the Head of Employee Relations would explain.

[476]The respondent decided to treat the claimant’s email to JG as a grievance. It appointed Graham Brown (‘GB’) as the external investigator into the claimant’s grievance. In his report dated 16 October 2023, GB stated that the ‘25 plus 44’ cases were the subject of a referral to the GMC and furthermore that ‘all such matters were part of an investigation by the GMC’. He said he was ‘clear’ that the claimant’s contention that MK was ‘picking on and targeting Indian medical staff’ was beyond his investigation and that it was ‘a matter for the Medical Director to address’.

[477]On 20 November 2023, the claimant received notification from the GMC that in relation to the second matter that MK had referred to the GMC (type of breast surgery), the concerns did not raise any questions about his fitness to practice. The first enquiry, into any relevance of the Morris Tribunal findings, was still ongoing.

[478]On 29 January 2024 the claimant was involved in an email exchange with HMcC, the Independent Advisor to the Chief Medical Officer, about the 15 patient cases the claimant referred to in his grievance of January 2022 and that he said MK could equally have pointed to. The claimant was of the view that those 15 cases would be important information to provide to the GMC in the event it required him to respond to any matter of race discrimination. HMcC was reluctant to engage in looking at surgeons ‘on the basis of their race because it felt discriminatory’ and furthermore, if there was a problem he would have expected ‘governance processes’ to have already flagged them up. He described reviewing 25 cases (there were 15) as a ‘huge task’ and noted that they had decided that ‘there probably isn’t an issue with any of these cases’ but that if the GMC seek specific information ‘around race discrimination’ then more thought would be given to it, but that ‘in the meantime, we’ll park this idea’. The claimant agreed.

[479]On 11 March 2024, the GMC notified the claimant that, having reviewed his fitness to practice in relation to the first enquiry (the impact of the Morris judgment), it intended to take no further action.

[480]On 31 July 2024, the Smith Tribunal promulgated its judgment in the case presented by Mr Kurup. In that case, MK had given evidence for the respondent. The Smith Tribunal described the difficulties with MK’s account as ‘legion’ noting that he provided unnecessary detail. The Smith tribunal gave a single example ‘why did the tribunal need to know a junior doctor was of Pakistani heritage and could not wash his hands properly?’.

[481]Before us, neither DD nor LJ were able to explain to the Tribunal why it was that the claimant’s complaint, submitted in January 2022, that MK had reported the claimant’s patients by reference to his own race, had still not, at the date of the hearing, been investigated. APPLICABLE LAW Direct Discrimination

APPLICABLE LAW

[482]Section 13 of the Equality Act 2010 defines direct discrimination as treating someone less favourably because of a protected characteristic, which includes race.

[483]Section 23 of the Act, which says that in a comparison for the purposes of section 13 there must be no material difference between the circumstances relating to each case. Where there is no appropriate actual comparator, it is incumbent on the Tribunal to consider how a hypothetical comparator would have been treated: Balamoody v UK Central Council for Nursing, Midwifery and Health Visiting

[2002] ICR 646

, CA.

[484]The employment tribunal must consider the mental processes of a decisionmaker or decision-makers: Nagarajan v London Regional Transport

[1999] IRLR 572

, HL; Chief Constable of West Yorkshire Police v Khan

[2001] UKHL 48

[2001] IRLR 830

[485]The test is: what was the reason why the alleged discriminator acted as they did; what, consciously or unconsciously, was their reason? Harassment

[486]Harassment is defined in section 26 of the Equality Act 2010 as follows: ‘(1)A person(a) (A) harasses another

(b) (B) if— (a)A engages in unwanted conduct related to a relevant protected characteristic, and (b)the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (2). . (3). . (4)In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a)the perception of B; (b)the other circumstances of the case; (c)whether it is reasonable for the conduct to have that effect’.

[487]The following principles were summarised in the judgment of HHJ Tayler in Logo v Payone and others

[2025] EAT 95

:a. The conduct must be unwanted;

b. It is the conduct that must be related to the relevant protected characteristic;

c. Whether the conduct is ‘related to’ a relevant protected characteristic is a broad test; it need not be ‘because of’ that characteristic. Nevertheless, there must be still in any given case, some feature of the factual matrix identified by the Tribunal, which properly leads it to the conclusion that the conduct in question is related to the particular characteristic in question, and in the manner alleged by the claim. The Tribunal needs to articulate, distinctly and with sufficient clarity, what feature or features of the evidence or facts found, have led it to the conclusion that the conduct is related to the characteristic;

d. Although in many cases, the characteristic relied upon will be possessed by the complainant, this is not a necessary ingredient: paragraph 7.10(b) of the Equality and Human Rights Commission (“EHRC”) Employment Code of Practice includes the following: Protection is provided because the conduct is dictated by a relevant protected characteristic, whether or not the worker has that characteristic themselves;

e. A’s ‘purpose’ must be to violate B’s dignity or to create an “intimidating hostile, degrading, humiliating or offensive environment”. Recklessness on the part of A will be a complaint under the ‘effect’ limb;

f. In deciding whether unwanted conduct has the ‘effect’ of violating dignity etc, the Employment Tribunal must take into account the perception of B, which is a subjective factor, the other circumstances of the case, which appears to be broadly objective and whether it is reasonable for the conduct to have that effect, which is an objective test;

g. For treatment to constitute harassment it must violate B’s dignity. Employees are expected to demonstrate a reasonable level of robustness: Richmond Pharmacology v Dhaliwal

[2009] ICR 724

EAT and Grant v HM Land Registry

[2011] EWCA Civ 769

[2011] ICR 1390

CA. Victimisation

[488]Section 27 of the Equality Act 2010 defines victimisation. It provides as follows: ‘(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— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act;

(d) making an allegation (whether or not express) that A or another person has contravened this Act. (3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.…’.

[489]For the purposes of sections 27 and 39, a detriment exists if a reasonable worker (in the position of the claimant) would or might take the view that the treatment accorded to them had, in all the circumstances, been to their detriment: Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

. Burden of Proof

[490]The burden of proof in relation to allegations of discrimination, harassment and victimisation is dealt with in section 136 of the 2010 Act.

[491]Section 136 EQA provides: 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.

[492]The section provides for a two-stage process.

[493]At the first stage, the tribunal must consider whether there are facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed the alleged unlawful act against the claimant. If the tribunal could not reach such a conclusion on the facts as found, the claim must fail.

[494]The words ‘could conclude' must mean ‘a reasonable tribunal could properly conclude' from all the evidence before it: Madarassy v Nomura International plc

[2007] IRLR 246

, CA.

[495]Where the tribunal could conclude that the respondent has committed the alleged unlawful act against the claimant, it is then for the respondent to prove that it did not commit or, as the case may be, is not to be treated as having committed, that act.

[496]The Court of Appeal in Igen Ltd v Wong

[2005] EWCA Civ 142

[2005] IRLR 258

made the following points in relation to the application of the burden of proof:a. ‘It is important to bear in mind in deciding whether the claimant has proved facts from which the tribunal could conclude that there has been discrimination that it is unusual to find direct evidence of … discrimination: few employers would be prepared to admit such discrimination, even to themselves and in some cases the discrimination will not be an intention but merely based on the assumption that ‘he or she would not have fitted in.’

b. In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. At this stage, the Tribunal must assume that there is no adequate explanation for those facts.

c. It is important to note the word “could”. At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.

d. The second stage is reached only when the claimant has proved facts from which the tribunal could conclude that the respondent has treated the claimant less favourably because of a protected characteristic, it is then for the respondent to prove that it did not commit that act or, as the case may be, is not to be treated as having committed that act. To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of the protected characteristic.

[497]In Efobi v Royal Mail Group Ltd

[2021] UKSC 33

[2021] IRLR 811

, the Supreme Court confirmed that the Igen principles remain good law and made additional points:a. A tribunal cannot conclude that, in the words of s 136(2), 'there are facts from which the court could decide…' unless on the balance of probability from the evidence it is more likely than not that those facts are true.

b. All the evidence as to the facts before the tribunal must be considered, not just evidence adduced by the claimant.

c. However, facts and explanations should be carefully distinguished from each other since s 136(2) requires that any explanation provided by the employer should not be taken into account at this first burden-shifting stage.

d. If the burden of proof shifts to the respondent, then the respondent is required only to show a non-discriminatory reason for the treatment in question. The explanation need not be reasonable or sensible; it is sufficient to satisfy the Tribunal that the reason had nothing to do with race: Glasgow City Council v Zafar

[1998] ICR 120

and Bahl v The Law Society

[2004] IRLR 799

. The drawing of inferences

[498]In Efobi v Royal Mail Group Ltd the Supreme Court said that so far as possible, tribunals should be free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense without the need to consult law books when doing so.

[499]The issue in that case was whether adverse inferences should be drawn from the fact that the employer had not adduced evidence to show why the claimant had not been appointed to posts he had applied for, and the court said that whether any positive significance should be attached to the fact that a person has not given evidence depends entirely on the context and particular circumstances.

[500]Relevant considerations will include such matters as whether the witness was available to give evidence, what relevant evidence it is reasonable to expect that the witness would have been able to give, what other relevant evidence there was bearing on the point(s) on which the witness could potentially have given relevant evidence, and the significance of those points in the context of the case as a whole.

[501]All these matters are, the court said, inter-related and how these and any other relevant considerations should be assessed cannot be encapsulated in a set of legal rules.

[502]The case of Efobi and the circumstances in which the Tribunal may properly draw adverse inferences was considered more recently in the EAT decision of London Ambulance Service NHS Trust v Sodola (debarred)

[2026] EAT 6

[503]In Sodola, the Tribunal was satisfied that a prima facie case of direct race discrimination was established from the surrounding circumstances including the ‘outward conduct’ of the employer. In the judgment of HHJ Tayler, that was permissible, so long as the focus of the Tribunal’s analysis is at all times on the question of whether it can properly and fairly infer discrimination. At the first stage ‘what must be ignored is what is said by the employer about the subjective motivation for the treatment . . to assert that the treatment was not discriminatory’. That is a factor that can only be considered at the second stage. What is required of the employer once the burden shifts to is, is to demonstrate why it has done what could be considered to be a discriminatory act; that is the ‘other explanation’ referred to at section 136(2) Equality Act 2010. It is ‘probably wise’ for Tribunals to analyse primary facts on that basis as well as by applying the analysis in King v Great Britain China Centre [1991] EWCA Civ 16 in the alternative.

[504]Section 109(1) of the EqA 2010 provides that 'anything done by a person (A) in the course of A's employment must be treated as also done by the employer', with express provision in s 109(3) that 'it does not matter whether that thing is done with the employer's … knowledge or approval'.

[505]In AB v Grafters Group Ltd

[2025] EAT 126

, HHJ Tayler identified some key points relating to s.109 EqA 2010 and the relevant authorities:a. It is the alleged harasser, A, who must be acting in the course of employment: s109(1) EQA

b. the term “course of employment” is not to be interpreted in accordance with the well-established meaning in law derived from the law of tort: Jones v Tower Boot Co Ltd

[1997] ICR 254

c. the words “in the course of employment” are used in the sense in which every layman would understand them: Jones

d. Anti-discrimination legislation should be given a broad interpretation: Jones

e. The application of the phrase will be a question of fact for each Employment Tribunal to resolve, in the light of the circumstances presented to it, with a mind unclouded by any parallels sought to be drawn from the law of vicarious liability in tort: Jones

f. Whether the “thing” is done with the employer's or principal's knowledge or approval “does not matter”: section 109(3) EQA Judicial Proceedings Immunity

[506]There is absolute immunity from suit in respect of things said or done in the course of judicial proceedings. Immunity also attaches to statutory, quasijudicial tribunals, such as the GMC Fitness to Practice Directorate: White v Southampton University Hospitals NHS Trust and Roche: [2011] EWCH 825, in which it was held that a letter to the GMC attracted immunity.

[507]The scope of the rule was considered by the Supreme Court in P v Commissioner of Police of the Metropolis

[2017] UKSC 65

. The case concerned a very particular set of facts, not directly applicable to other employment scenarios; it dealt with police officers who are not employees and therefore involved consideration of whether her directly effective rights under EU law were engaged. The Supreme Court held that the combined effect of articles 3 and 9 of the Equal Treatment Directive was that all persons in the UK, including police officers, had the right to be treated in accordance with the principle of equal treatment in relation to employment and working conditions; and the principles of equivalence and the right to an effective remedy, meant that police officers must have the right to present claims of infringement of that principle to an ET.

[508]Aston v The Martlet Group Limited

UKEAT/0274/418

was decided in 2019. In that case, it was unclear whether the factual basis of the claim fell within the scope of Article 3 i.e. “employment and working conditions, including dismissal and pay”. HHJ Auerbach considered the ratio in P. He expressed his view at paragraph 95: ‘Any person must have the right to present to an Employment Tribunal (as the judicial body that can provide an effective remedy, and is the one to which others have access) a claim of infringement of a right within scope of the Equal Treatment Directive. That plainly applies to the right of a police officer seeking to claim discriminatory dismissal. To the extent that the peculiar nature of a police misconduct panel means that JPI might otherwise be said to apply to such a decision, it cannot preclude the exercise of that right’.

[509]The recent CA decision of Rogerson v Erhard-Jensen Ontological/Phenomenological Initiative Limited

[2025] EWCA Civ 1547

, involved a consideration of non-EU derived rights. The claim was one of post-employment whistleblowing detriment and the act complained of was the initiation, by the respondent, of arbitration proceedings. The CA held that the rule of judicial proceedings immunity did not attach to the complaint that the initiation of arbitration proceedings amounted to a whistleblowing detriment.

[510]In the leading judgment, Lady Justice Andrews identified the following principles: that it is a general principle that every wrong should have a remedy; nevertheless, core immunity attaches to the making of statements, the key rationale underlying that is to encourage freedom of speech and communication by all those involved in the litigation process which is necessary for the proper interests of justice; core immunity does not cover all things said and done (or omitted to be done) by the parties, advocates or witnesses in the course of litigation; where immunity attaches to something that is ‘done’ in the course of legal proceedings, the act in question must related in some way to the statement that is the foundation of the cause of action.

[511]On the facts of the case, the act complained of was the act of initiating arbitral proceedings; that was what caused the detriment. In the view of the CA, the cause of action was not founded on statements made in the request for arbitration or in the arbitration itself. The detriment did not therefore attract immunity.

[512]At paragraph 55, Lady Justice Andrews said: ‘I can see no reason why it could possibly be regarded as essential to the administration of justice that an employer should be immune from suit under s.48(1A) ERA for commencing litigation or arbitral proceedings against a whistleblower, irrespective of whether the employer considers himself fully justified in doing so. On the contrary, to apply JPI in this context would leave a wrong, recognised by Parliament in s.47(1B) ERA, without the very remedy to which Parliament itself has stated the whistleblower is entitled under s.48(1A). The public policy underlying the protection afforded to whistleblowers strongly indicates that JPI should not attach to the commencement of such proceedings. If it did, it would seriously undermine the protection that Parliament intended to apply’.

[513]At the time of writing this judgment, we observe that there is a pending appeal to the Supreme Court. Time points

[514]Section 123 EqA reads as follows: 123 Time limits(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.

(2) . . .

(3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.

(4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it. Continuing Acts

[515]An act of discrimination which 'extends over a period' shall be treated as done at the end of that period: s.123(3).

[516]In deciding whether there was ‘conduct extending over a period’ in cases involving numerous discriminatory acts or omissions, what the claimant has to prove, in order to establish conduct extending over a period, is that(a) the incidents are linked to each other, and

(b) that they are evidence of a 'continuing discriminatory state of affairs'. It is not necessary for the claimant to establish the existence of some 'policy, rule, scheme, regime or practice, in accordance with which decisions affecting the treatment of workers are taken': Hendricks v Metropolitan Police Comr

[2002] EWCA Civ 1686

[2003] IRLR 96

[517]The only acts that can be considered as part of a continuing course of conduct are those that are upheld as acts of discrimination or some other contravention of the Equality Act 2010: South Western Ambulance Service NHS Foundation Trust v King

[2020] IRLR 168

[518]The authorities draw a distinction between a one-off act with continuing consequences and conduct extending over a period. In Barclays Bank Plc v Kapur and Others [1991] 2 A.C. 355 the House of Lords considered a situation in which the bank refused to take previous service with East African banks into account in computing pension entitlement. This ongoing provision of less favourable terms of employment was treated as an act extending over a period rather than an omission. Just and Equitable Extension of Time

[519]The burden is on the claimant to persuade the tribunal to exercise its discretion in their favour.

[520]The approach to extending time limits for causes of action under the Equality Act 2010 was considered by HHJ Tayler in Logo v Payone, drawing from the recent CA decision in Jones v Secretary of State for Health and Social Care

[2024] EWCA Civ 1568

, [2025] I.C.R. 738. He made the following points:a. The Tribunal has a wide discretion to extend time: Jones, EAT, Caston, CA;

b. The common practice of relying on comments made in Bexley Community Centre (t/a Leisure Link) v Robertson

[2003] EWCA Civ 576

[2003] IRLR 434

to the effect that time limits are to be ‘exercised strictly’ and that a decision to extend time is the ‘exception rather than the rule’ out of context as if they are principles of law should cease. The proposition of law for which Robertson is authority is that the Employment Tribunal has a wide discretion to extend time on just and equitable grounds;

c. There is no principle of law which dictates how generously or sparingly the power to enlarge time is to be exercised: Chief Constable of Lincolnshire Police v Caston

[2010] IRLR 327

per Sedley LJ at para 31;

d. Factors which are almost always relevant to consider when exercising any discretion whether to extend time are:

(a) the length of, and reason for the delay and

(b) whether the delay has prejudiced the respondent: Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] ICR 1194

;

e. There is no requirement that the Tribunal must be satisfied that there was a good reason for the delay, let alone that time cannot be extended in the absence of an explanation for the delay. The most that can be said is that whether there is any explanation for apparent reason for the delay and the nature of any such reason are relevant matters to which the Tribunal ought to have regard: Morgan

f. If the claimant gives no direct evidence about why they did not bring their claims sooner, a Tribunal is not obliged to infer that there was no acceptable reason for the delay, or even that if there was no acceptable reason, that would inevitably mean that time should not be extended: Morgan.

[521]Wells Cathedral School Ltd v Souter EA-2020-000801 (20 July 2021, unreported) points out that there are public policy considerations which relate to certainty and finality in time limit enforcement. However, this is to be balanced against another aspect of public policy aims; that parties should endeavour to resolve their disputes without recourse to the courts and tribunals.

DISCUSSION AND CONCLUSIONS

[522]This is a case with a lengthy and detailed history during which the claimant makes numerous allegations against the respondent. At the risk of grossly oversimplifying the respondent’s case, it invites the Tribunal to approach this case as one grounded in an interpersonal difficulty between the claimant and MK. That response, insofar as it is at all accurate, does not, of course, address the respondent’s role in managing the situation.

[523]The claimant’s case is, we consider, very clearly about the alleged failure of his employer to manage MK, the impact of that failure on him both professionally and personally and his employer’s repeated failure to investigate his grievance that he was the subject of discriminatory conduct by MK.

[524]The respondent observed in its cross examination of the claimant that he was not vocal about certain matters about which he now complains, until after the Morris Tribunal. He had no need to be; his professional relationship with MK was sufficiently sound up to and including 2018 such that MK asked the claimant to conduct his appraisal. It was only after the adverse findings made against the claimant in the Morris judgment followed by the first of two GMC referrals that he felt his career was jeopardised.

[525]We address at the outset, the respondent’s contention that it lacked understanding about the claimant’s complaints, both in the context of his communications with the respondent in employment, and within these proceedings. Of course, the information placed before us was, naturally, only part of the communications between the claimant and the respondent. We have already observed in our preliminary observations that we, on occasion, had difficulty following the claimant’s evidence. But it does not follow, and we do not accept, that the respondent did not understand the claimant’s complaints before us. It had the benefit of knowing the full context in which he had made his complaints to the Tribunal, a significant part of the background to this case was already before the Morris Tribunal and this is the fourth set of proceedings involving MK that the respondent has prepared for. In the majority of the complaints that we have upheld, the complaints were simple to understand, in context that was well known to the respondent.

[526]We turn to the quality of the respondent’s evidence in these proceedings; it has been professionally represented throughout these proceedings, as it has for the previous three sets of proceedings. The following are of particular note:a. the respondent, without explanation, adduced written evidence that it knew to be false: MK did not, as he stated in his witness statement, obtain patient data in respect of 69 patients from Morbidity and Mortality meetings;

b. it failed, without explanation, to adduce relevant witness evidence e.g. neither LJ nor DD referred to the circumstances in which the claimant was informed that he could resume the role of GOSW in their written evidence

c. It failed, without explanation, to disclose documentation that existed and that it knew was directly relevant to the proceedings; the respondent failed, without explanation, to include a record of her discussion with MK about his contact with the claimant’s secretary in November 2021.

[527]We regard it significant that the respondent was unable to explain why despite the claimant submitting a formal grievance in January 2022 alleging that he believed he had been racially discriminated against, it has still not been investigated.

[528]As a consequence of the matters above, we are not confident that the respondent has adduced all relevant evidence.

[529]We have considered the relevance, if any, of the respondent’s response to the allegation that the claimant was denied access to patient records by the IG team, yet MK was permitted access. That was an allegation that was not withdrawn by the claimant until he was cross examined. ND had not been called to give evidence and the written evidence of KMcL described only the events relating to the claimant. On the respondent’s own evdience, unlawful access to patient records is a serious governance matter for the respondent. Yet the respondent did not lead any written evidence of MK having accessed patient records directly, much less did it provide a cogent explanation of the respondent’s response to his actions. These were highly material omissions in respect of an allegation that was not withdrawn until the evidence was underway.

[530]We take the view that this omission serves to compound our view that the respondent has been less than transparent. We are not satisfied that the respondent has provided the Tribunal with the whole of the story.

[531]The relevant background commences years before May 2018 (the date of the first allegation). For a ‘period of several years’ before then, the respondent had received reports that MK had been attending monthly Morbidity and Mortality meetings and making notes of cases with a view to using that information for inappropriate reasons including approaching secretaries and the patient safety team to find out further information about those cases.

[532]In 2015 MK raised complaints of race discrimination about the claimant’s consultant colleagues of Indian origin. Although in 2015, the claimant was not implicated in MK complaints about other consultants of Indian origin, the possibility that he could be was something that the then medical director, Mr E, foresaw; he counselled the claimant to take proactive steps to support MK by resuming his sessions, and by identifying ways to support his career.

[533]We pause here to note that although MK had made a complaint to his employer in August 2017 that the claimant’s treatment of Patient One and Two in or around 2011 was so clinically unsound that he had caused them to have ‘suffered complications, negligence, delayed treatments and avoidable deaths’ he had over a similar period, up to and including January 2018, sought the claimant out to conduct his annual appraisal.

[534]Two years later, MK raised a grievance about AA. He did so because MK had taken badly to AA’s direction that he must resume his substantive middle grade doctor role now that a permanent consultant had been appointed. In August 2017, the respondent knew five things. First, that it had taken MK until the second grievance meeting in August 2017 to tell CT that he was raising a complaint of race discrimination about AA - MK did not say he was complaining about a recent event. Second, and in relation to the race discrimination allegation he made against AA, the treatment MK complained about a single alleged act: AA’s request to speak to MK about something that MK himself described as ‘a simple complication’. Third, MK’s response to this request by AA for a discussion about this ‘simple complication’ was to access 25 sets of confidential patient records, selected by the race of the consultant who treated them, to collate a medical history with a view to impugning their clinical treatment. Fourth, even though MK is quoted as saying that AA treated more favourably consultants of Indian origin and white, he did not name or collate evidence in relation to any consultant who was white then or at any stage after that. Finally, it knew that MK was a middle grade doctor who did not ordinarily operate on highrisk patients.

[535]Had MK been required to advance a complaint of race discrimination, he would have had to prove that AA sought to speak to him about a complication so ‘simple’ that did not merit discussion. He would need to establish that AA had known of the alleged clinical significance of the 25 cases (or a significant number of them), including those that took place in 2011, that they warranted discussion with the 6 consultants, and that AA had failed to do so. Furthermore, the respondent would need to be satisfied that the alleged differential in treatment was because of MK’s race, or in some way related to race.

[536]Upon abandoning the complaint of race discrimination and recharacterizing it as a whistleblowing complaint (assuming that is what happened), he no longer bore the burden of establishing those matters; his own clinical conduct escaped scrutiny, and he did not have to establish that he was personally disadvantaged in any way.

[537]We understand the respondent’s obvious need to satisfy itself of the presence, or absence, of clinical concerns when they are reported. It conducted the Tulloch investigation and satisfied itself of the absence of any significant clinical concerns. That is where, in our view, the investigation into the first list of 25 patients ought to have ceased; there was no suggestion before us that the Tulloch investigation was clinically unsound. Furthermore, the respondent had a duty, explicitly recounted at the beginning of its policies, to conduct itself in a manner that was fair to its employees, regardless of race.

[538]Nevertheless, the respondent agreed to conduct a second investigation, this time by appointing an external chair. It was open to the respondent to treat the cases individually, but it did not; the list of 25 patients was treated as one block of complaints to be subject to a second investigation.

[539]In May 2019, MK presented a further list of 44 patient cases, as a continuation of the earlier list of 25 patients; he described it as a ‘recurrent theme’. A further two of the claimant’s patients had been included in this list. The third, MacFie investigation was commissioned, again it identified nothing of clinical significance.

[540]We recognise, for the avoidance of doubt, that there is no allegation before us that MK was in fact racially motivated to advance these two lists of patients; rather, a core complaint before us is that the respondent repeatedly failed to investigate the claimant’s complaint that MK’s actions amounted to race discrimination.

[541]The central facts are these. MK had complained about 69 patients treated by six consultants that he had identified by reference to their race. If there was a problem with the treatment, according to HMcC, the Independent Advisor to the Chief Medical Officer, ‘governance processes’ should have flagged them up. There was no evidence before us that anyone other than MK had raised concerns about the 69 patients. MK described the incidents as involving patients who had ‘suffered complications, negligence, delayed treatments and avoidable deaths’ and yet the respondent had concluded, in relation all 69 cases, nothing of significant clinical concern had been identified. On the respondent’s own evidence, MK’s reports were so wide of the clinical mark, it is of surprise that we heard no evidence from the respondent about whether it had reflected on to MK’s good faith, motivation or clinical knowledge.

[542]If HMcC correctly describes the investigation of 25 cases as a ‘huge task’ then the respondent’s decision to conduct three investigations into 69 cases was exponentially greater.

[543]In April 2023, MK sought to complain about Mr Gk’s treatment of 15-20 of his patients. He, too, is a consultant of Indian origin. The investigation of those cases, too, adduced nothing of significant clinical concern.

[544]On the evidence before us the only consultants that MK has sought to raise clinical competency issues of, are those of Indian origin. We received no evidence that anyone other than MK complained about the cases he raised; we received no evidence to suggest that any of those cases were identified by the respondent’s own governance processes. Of a total of 80-90 cases that MK reported, nothing of significant clinical significance was identified by the respondent.

[545]We turn to the specific allegations and deal with them in broadly chronological order. 11 May 2018, CT, disclosed publicly at a meeting of all consultants in the Department that 25 clinical incidents were reported against Indian consultants by MK, two of which were against the Claimant

[546]This was a directorate wide meeting. It was conducted in that way because CT and DD knew that MK had caused upset by his actions in noting and investigating complications reported at Morbidity and Mortality meetings. Approximately 23 consultants attended the meeting. They knew that the meeting was likely to involve a discussion about MK. The purpose of the meeting was to discuss the respondent’s decision to instigate the Chadwick investigation; it involved an external chair. The majority of those present were not directly affected by the decision to conduct the Chadwick

[547]CT and DD held the meeting; CT chaired the meeting. Six consultants were asked to remain behind. We were satisfied that by doing so, the respondent revealed to the other attendees of the meeting the identities of those consultants whose cases were to be investigated.

[548]Doing so was contrary to the training that the respondent gives to its employees at clinical director level i.e. to raise matters of clinical concern with the relevant consultant both sensitively and confidentially. The claimant’s identity was disclosed to either all or the overwhelming majority of his peers; most of them were not directly affected by the decision to commence the Chadwick investigation. The claimant was particularly upset to see the reaction of one of his colleagues.

[549]We are satisfied that the conduct complained of was not only unwanted, but that it had the effect of violating his dignity, or creating and degrading, humiliating or offensive environment for him. It was not the respondent’s purpose to create the proscribed environment, but we accept, having regard to the matters above, that the conduct complained of did have that effect and that it was reasonable to have that effect, taking into account the claimant’s perception and the other circumstances of the event.

[550]We are satisfied that the claimant has adduced a prima facie case that the treatment complained of was related to race. Noting that the test is a broad one, we take the view that the respondent was treating the claimant and his 5 colleagues as one group because MK had identified them as a group, by reference to their race. The respondent says it was CT who chaired the meeting. It did not call CT. DD was senior to CT and was also present. We find that the respondent advances no explanation, certainly no cogent explanation why the identification of the claimant in front of his colleagues was in no sense whatsoever to do with race. The omission is a notable one, given that the respondent put to the claimant that this complaint was a ‘copycat’ complaint of one made by MK about the same meeting and in respect of which DD was interviewed by SP.

[551]The claimant’s complaint of harassment related to race is well founded and succeeds.

[552]In the circumstances, we have not considered it necessary to consider his alternative complaint of direct race discrimination. 14 May 2018 – the Respondent failed to take statements from junior doctors and investigate after the Claimant raised concerns as part of his Guardian of Safe Working duties

[553]This is a complaint that the respondent failed to act on the claimant’s report of MK’s conduct about the incident involving Dr R.

[554]The respondent contends as with several allegations that the claimant makes, that the Tribunal should take a literal approach to the claimant’s pleaded case. In the current matter that means, we understand the respondent to say, because its Incident Reporting and Investigation Policy does not explicitly require the taking of written statements, only to conduct an ‘appropriate investigation’ the complaint must fail.

[555]We are somewhat surprised by the invitation to apply a restrictive approach, not least because of the obvious risk of prejudice to an unrepresented party, whatever their traits or abilities, if they should be expected to draft pleadings with the clarity of counsel.

[556]We have regard to the claimant’s pleaded case (paragraph 10) where he complains that despite having raised the matter with AA and then with the Patient Safety Team ‘Neither I nor junior doctors involved were approached for written statements’.

[557]We take the view that his complaint, seen in the context of the claimant’s pleaded case, was that there was no formal investigation.

[558]The report that the claimant made was not investigated by the respondent, whether by AA, or the Patient Safety Team.

[559]We are satisfied that the reported incident merited further clinical consideration. In saying so, we disregard our own, lay, view of the situation; rather, we have regard to the following factors.

[560]First, the report was genuine: the claimant sought to raise the matter with MK at his appraisal in January 2018, months before the meeting on 11 May 2018.

[561]Second, the claimant’s concern was for patient safety as well as the treatment of his junior doctors: he raised the matter in his role as appraiser with MK and in his role as GOSW with AA and the Patient Safety Team. That last action, was, on the respondent’s own case, the proper route to raise a matter of clinical concern.

[562]Third, when the claimant raised the matter with AA and the Patient Safety Team, both knew that his complaint was not an isolated report. AA had received reports from others about MK’s clinical support, for example the Nurse Lead for Unplanned Care. The Patient Safety Team had received a Datix from Mr S.

[563]Fourth, the claimant could account for much of the time line between him acquiring knowledge of the incident involving Dr R and raising it with the respondent: insofar as there was a delay that related to the 4 months between the apprsaial at the end of January 2018 and mid May 2018 when he wrote to his Clinical Director; he was then advised by AA to submit a Datix on 6 June 2018 and he did so on the same day.

[564]Finally, the claimant’s concerns prima facie raised a clinical issue: he was sufficiently concerned to raise it with MK during his appraisal; it was open to his Clinical Director to reject the report as being without substance, but he did not and when the Patient Safety Team received the claimant’s report, it recorded its view that the report did suggest there were ‘clinical implications’.

[565]The respondent’s Patient Safety Team did not, in accordance with its Incident Reporting and Investigation policy, conduct an ‘appropriate investigation’ with ‘appropriate staff’ together with ‘implementation of any required actions’ before closing off the Datix, as required of an incident where the risk is identified as ‘low’.

[566]The claimant seeks to draw a comparison with the respondent’s treatment of MK. We consider his point to have substance in relation to the respondent’s treatment of the cases of Patients One and Two in particular.

[567]MK’s ostensible reason for reporting the list of 25 patients was to support a complaint that AA had racially discriminated against him - a complaint which he then abandoned, but the respondent nevertheless agreed to a clinical

[568]Next, MK reports about the claimant’s treatment of Patients One and Two was raised 6 after the event, and without any explanation; he was able to provide the GMC with no justification for his delayed report to them. Nevertheless, the respondent to investigate the claimant’s treatment of Patients One and Two.

[569]It was open to the respondent to refuse a review of one, some, or all the list of 25 patients; Patient One was a paradigm example of a case that the respondent might have refused to review, but it did not. The respondent knew, in relation to Patient One, that the complaint was both speculative and unsustainable. MK stated that he had been told of the matter by a colleague about the treatment and the respondent did not own the equipment necessary to conduct the type of procedure that is ordinarily only undertaken in ‘research centres’ and it confirmed to the GMC that no procedures of the type adopted in the case of Patient One has been conducted by the respondent in the previous 5 years - yet it conducted two clinical investigations into that report.

[570]There is no evidence to suggest that anyone other than MK was concerned about the claimant’s clinical performance.

[571]When MK raised a further 44 cases involving the same six consultants and again, explicitly describing it as an extension of the first list, the respondent again agreed to a further external investigation, knowing he chose who to complain about by reference to their race.

[572]On the evidence before us, MK has not raised concerns about the clinical competency of any consultant colleague other than those of Indian origin and furthermore, the respondent has never refused to investigate his complaints.

[573]In the view of HMcC, Independent Advisor to the Chief Medical Officer, an investigation of 25 cases would be a ‘huge task’ yet the respondent agreed to undertake such a task twice in relation to the first patient list provided by MK. In total it has undertaken investigations into 80-90 cases at MK’s behest. By contrast, the respondent did not investigate the single report that the claimant raised with the respondent about the clinical implications of MK’s conduct.

[574]On the facts above, we are satisfied that we can properly and fairly infer that MK was treated more favourably than the claimant and what difference there are, are not material to the comparison. Alternatively, his treatment is of such evidential probity that we are satisfied that a hypothetical comparator in materially the same circumstances would have been treated more favourably than the claimant.

[575]We look to the respondent to provide a complete and non-discriminatory explanation for its failure to investigate the contents of the claimant’s letter of 14 May 2018.

[576]We have not heard from AA, who we have no reason to believe is not still employed by the respondent and could have been called to give evidence about his lack of investigation.

[577]We heard from JA whose Patient Safety Team was last charged with the complaint. Although we acknowledge that the Patient Safety Team receives a significant volume of referrals every month, on the facts of this case, we might nevertheless have expected a reasoned response, because JA dealt with both the Datix submitted by the claimant and the Datix submitted by Mr S on the same day that she discussed MK with DD.

[578]We are left with the explanation that there were ‘missed opportunities’ that might have been taken up by ‘others’. That is not an explanation, much less a complete and non-discriminatory explanation for the respondent’s failure to investigate the claimant’s report, made in his capacity as GOSW, of 14 May 2018.

[579]The claimant’s complaint of direct race discrimination succeeds.

[580]In the circumstances, we have not considered the claimant’s alternative complaint of harassment related to race. 18 September 2018 – the Respondent failed to follow its Raising Concerns Policy and undertake a clinical investigation following the Claimant raising two serious clinical incidents regarding MK’s clinical practice while on call with MK to RD (General Manager) and AA.

[581]We hope that the claimant’s case might be fairly summarised as follows: the claimant explicitly raised in his email of 18 September 2018 two incidents of patient safety that the respondent should have clinically investigated them; alternatively, the respondent should have appreciated from a reading of the email that the claimant had raised patient safety matters that the respondent should have clinically investigated; alternatively, the respondent knew by now that the matters contained in his email were not isolated events, and therefore should have investigated the contents of his email as patient safety concerns.

[582]If the respondent did conduct a clinical investigation of those matters, it did not share that with us. TL, on behalf of the investigation team, was unable to explain whether, and if so, in what circumstances a clinical investigation was excluded from its investigation. We conclude that no clinical investigation took place, otherwise the respondent would have told us about it.

[583]We think the answer lies in the nature of the claimant’s request. He asked for it to be dealt with ‘appropriately’. The choice was left to the respondent. We do not think it proper in those circumstances, as a lay tribunal, to hold the respondent to account for electing to respond to the claimant’s email by only investigating MK’s non-clinical conduct.

[584]For the avoidance of doubt, since we consider we are at risk of our finding being misconstrued, we do not say that the respondent lack of clinical investigation was justified since we are equally unqualified to make that finding also. The respondent has its own duty to investigate clinical matters, and it is not within our scope to say whether a clinical investigation should have been undertaken. We only go as far as to say that, even as a lay tribunal, it is difficult to read the contents of the email without asking oneself whether any patient safety issues arise from the matters reported.

[585]For the sake of completeness, by the time the investigation team investigated the two events, it had concluded that, in relation to the incident in late August 2018, MK either did, or should have, appreciated that the situation was clinically urgent but that there was a delay transferring the patient to theatre. Whether or not upon receipt of the investigation team’s report in February 2019, the respondent should have investigated that matter as an event of clinical concern is a separate question to whether the respondent should have treated the claimant’s email of 18 September 2018 as a request to investigate the reported matter clinically.

[586]We are not satisfied that the failure to investigate the contents of the email dated 18 September 2018 as a clinical concern was causally connected to race.

[587]The complaints of harassment related to race and direct race discrimination are not well founded and are dismissed. 9 October 2018 – at a disciplinary investigation meeting held by CG and TL, the Respondent failed to investigate concerns raised by the Claimant that MK was selectively reporting incidents.

[588]We have found that the claimant raised with the investigation team on 9 October 2018 his concern that MK had been selectively reporting consultants by reference to his race; we have also found that the respondent understood that.

[589]This investigation took place against a lengthy and well-established history of complaints being made by MK against consultants of Indian origin. By the time the investigation team spoke with the claimant, the respondent had conducted two investigations into a list of 25 patients presented by MK against consultants of Indian origin and that involved the other Deputy Medical Director, the Medical Director, the Clinical Director and an external chair. We have found as a fact that the investigation team knew about that history.

[590]The team had firsthand experience of the derogatory manner in which MK spoke about the claimant, AA and Mr S identifying them as being ‘protected’ because they were of ‘Indian descent’ and describing them as ‘evil’ conspirators.

[591]The respondent’s grievance policy mandates that all managers to be ‘proactive in promoting an atmosphere free from harassment’ and ‘to inform their manager or HR Department if they suspect that harassment is taking place’. requires all managers to escalate any matter it ‘suspects’ may amount to harassment.

[592]We note the respondent’s pleaded case that it recognises it has an obligation to follow its policies.

[593]Nevertheless, the respondent ignored the claimant’s comment that he believed that MK had discriminated against him.

[594]The failing we have found, however, we do not see in isolation. It is, in our view, the beginning of a pattern of conduct on the respondent’s part to avoid in increasingly apparent ways, the claimant’s complaint of race discrimination. Later, SP acknowledged that there might be substance in what the claimant was telling him but failed to revert to the claimant as promised. When LB agreed that the claimant’s complaint of race discrimination required further investigation by reviewing the reports that MK made, the respondent did not do so. When, the claimant wrote to JG, the respondent went through the motions of investigating his grievance but specifically excluded his race discrimination complaint despite being in the midst of litigation of a complaint of race discrimination.

[595]We draw an adverse inference that a hypothetical comparator in materially the same circumstances and who claimed that a colleague was selective about which consultants to complain about, against explicit information known to the respondent that the claimant had been identified by reference to his race, would not have been ignored.

[596]We therefore turn to the respondent to explain the reason for its conduct in failing to investigate the claimant’s concerns in October 2018.

[597]We understand the respondent’s submissions to rest exclusively on its denial that a prima facie case can be established; we have rejected that, for the reasons above.

[598]We have identified a further potential explanation i.e. that the respondent did not investigation the claimant’s concern because he was insufficiently ‘prescriptive’ about what he wanted, the inference being that had he expressly sought an independent investigation, that that is what would have happened.

[599]It is, in our collective experience, unusual for an employer, particularly of the size and nature of this respondent, to suggest that when an employee states their belief that they have been discriminated against that statement must also be both explicit and accompanied by a request for an independent investigation before any response is due. Nevertheless, we take, for the purposes of this discussion, since we do not have before us – or at least we were not taken to - a copy of the respondent’s equality and diversity policy. We observe that the approach suggested in the respondent’s evidence may work well for some personalities and less so for others; we find it difficult to see how that approach in any event would serve the respondent well.

[600]We reject the (possible) explanation for the simple reason that that is precisely what the claimant did, twice, in his grievance of 5 January 2022 and his email to JG on 13 June 2023, yet when LB recommended a review of the complaints that MK made, the respondent did not act on that recommendation. Furthermore, when the claimant asked JG for ‘remedy and action’, the respondent expressly excluded his race discrimination complaint from the remit of the investigation conducted by GB.

[601]We reject the respondent’s explanation.

[602]The claimant’s complaint of direct race discrimination succeeds.

[603]In the circumstances, we have not considered his alternative complaint of harassment. 14 December 2018 – CG and TL breached the Claimant’s confidentiality by sharing his DATIX of 6 June 2018, emails of 14 May 2018 and 18 September 2018 with MK without anonymising them, and used them for the improper purpose of re-opening a discussion about communication issues.

[604]We have found that the reason for the disclosure of the claimant’s identity as the person who submitted the Datix on 6 June 2018 was an oversight, albeit one with unfortunate consequences for the claimant.

[605]We understand the refence in this allegation to the use of the Datix for an ‘improper purpose’ is the claimant’s contention that, having been directed to raise what he genuinely believed to be a significant patient safety issue via the Datix system, the respondent utilised the document to investigate MK’s conduct, instead. We can see the claimant’s unhappiness about it: the decision to use it to investigate MK’s conduct and furthermore, not investigate the clinical matter contained in it, led to a number of unfortunate results for the claimant; he was accused by MK of fabricating the incident; the Morris Tribunal relied on the Datix it to make adverse findings about his motivation and the GMC investigated him for submitting the Datix.

[606]We are satisfied that the reason was not because of the claimant’s race, it was not related to race and it was not conduct done on the ground of a prior protected disclosure.

[607]The complaints of direct race discrimination, harassment related to race, or public interest disclosure detriment are not well founded and are dismissed. 6 December 2019 – SP failed to take make any recommendation in relation to MK when he accused the claimant of framing him by talking to other colleagues working with the Respondent (despite the SP investigating this and finding that it was MK who had been falsifying these allegations).

[608]We have found as a fact that SP had reassured the claimant that he would reflect further on his complaint that he was being repeatedly targeted by MK and revert to the claimant. He did not. The failure is said to amount to harassment related to race, direct race discrimination and a public interest

[609]The date ascribed to this allegation is, we understand a reference to SP’s second interview with MK and by which time, we infer, the claimant expected a response from SP.

[610]SP had a copy of the investigation report into MK’s conduct. From those parts of the report that were contained in the hearing file, it is apparent to us that he also knew that the investigation team had expressed a ‘particular concern’ that MK had sought to discredit witnesses, which included the claimant and others ‘as individuals’ as well as the information they provided. He was aware that MK was capable of making such significant ‘counter allegations’, that the investigation team ‘sought assurance’ that the patient safety issues had been properly addressed. He also knew that MK had regarded the claimant (and AA) as being one of a number of consultants who were ‘all protected as they are of Indian descent’ and who had fabricated allegations that ‘are unfounded, without substance and made up in a hurry for some other motive’. He knew that MK held such a ‘strong view’ of the claimant, AA and Mr S that he had described them as ‘evil’.

[611]The complaint that SP was investigating was a serious complaint, made by one senior clinical professional against two others.

[612]SP had not dismissed MK’s complaint because he found there was insubstantial evidence; the complaint was dismissed because of a wholesale lack of evidence.

[613]Furthermore, the evidence before SP suggested that MK was himself responsible for that which he now sought to blame the claimant and AA for i.e. that MK was the source of his colleagues’ knowledge of his disciplinary proceedings - just as the claimant had told SP in his interview.

[614]SP also knew that this was the third time that MK had made complaints about the claimant, and that this was the third time that those complaints proved unfounded.

[615]In our view, given SP’s experience, he was likely to appreciate that if what the claimant alleged had substance – that he was being targeted by MK – that was likely to affect others, including AA, who he was also investigating.

[616]Insofar as he needed it, SP had a copy of the respondent’s grievance policy, to remind him of the definitions of bullying and harassment. He was not someone who shied away from making challenging decisions; he decided to uphold MK’s other grievance alleging a breach of confidence at the meeting on 11 May 2018 against the respondent in circumstances where he knew that the complaint was to be considered by the Morris Tribunal.

[617]It was open to SP reverting to the claimant to tell him that, having reflected further, or investigated further, no steps were considered necessary or appropriate. But he did not do that, even.

[618]SP did, however, address a matter that MK raised in their discussions. The letter indicates that MK was awaiting an update on a ‘further potential breach of confidentiality’. SP responded to that by making further enquiries of MW and LJ ‘who supported [MW] in [his] previous appeal process’ and providing him with a written response to his queries.

[619]As with our earlier conclusion, we do not see this failing as a single isolated event. The claimant’s pleas were ignored by the investigation team, the respondent failed to follow LB’s recommendation that it review MK’s reporting pattern, despite having commissioned her to act independently; it excluded from GB’s remit the complaint of race discrimination, despite knowing that the claimant had commenced a claim of race discrimination in the Employment Tribunal.

[620]On a King analysis, we are satisfied that the claimant has established a prima facie case that someone in materially the same circumstances would not have been treated as the claimant was treated.

[621]On the approach preferred by HHJ Tayler in Sodola, we go further.

[622]SP did not attend Tribunal to give oral evidence; the reason advanced for his non-attendance in January 2025 were not proffered as an explanation for his non-attendance in October 2025.

[623]SP in his statement accepts that he had ‘some awareness’ that his investigation was part of a wider context, but he does not describe what he was aware of. He states that other than his own investigation and the fact of MK’s first Tribunal claim, he has no awareness of ‘any other processes that have occurred’. On a review of the documents before us, he was aware that MK had presented a grievance, because he spoke to MW and LJ about the grievance appeal. He knew that MK had submitted two sets of patient records that had been scrutinised three times. He knew that MK’s conduct was the subject of an investigation because he had a copy of the investigation report. We are unable to identify a ‘process’ of which he was not aware.

[624]We would have expected SP to explain in his statement what, if anything, he did with the information he received from the claimant, but he said nothing at all in his statement about this.

[625]We would have expected SP to explain whether he considered that what he was being told by the claimant might apply also to AA about whom MK had also complained.

[626]We would have expected SP to state what he was told by MK and how that factored into his conclusion that he ‘did not feel it was necessary’ to make any proposals or recommendations. We noted the absence of any explicit reference to the minutes of his meetings with MK in his witness statement. It is apparent from a reading of the investigation report that MK has a propensity to make ‘significant counter allegations’, to make racially charged and occasionally vitriolic comments; he did so in strident terms to the investigation team whose report SP had. It is apparent to us that MK made gratuitous comments to the Smith Tribunal. If MK said nothing to SP in his interviews with him that would undermine SP’s approach to what he had learned from the claimant, we would have expected SP to says as much and to rely on those minutes to support his view.

[627]We would have expected someone of SP’s experience to have explained whether what he was told by the claimant potentially met any of the respondent’s definition of workplace bullying, harassment and harassment related to race, and if he suspected harassment whether he escalated his concerns as the grievance policy requires.

[628]We would have expected someone of SP’s experience to have explained whether he had reflected on MK’s motives for advancing a serious yet wholly unfounded complaint against the claimant and AA, but if he had, he made no mention of it in his witness statement.

[629]Similarly, we would have expected him to explain whether he had reflected on the significance, if any, of the timing of the allegation, made in direct aftermath of the respondent’s decision to proceed to a disciplinary hearing, again he did not address it in his witness statement.

[630]Finally, we would have expected SP to address in his statement why he took the view that further action on his part was not ‘necessary’.

[631]We turn to the respondent to provide a non-discriminatory explanation for the failure to revert to the claimant and to make any proposals or ‘recommendation’ about what the claimant had told him.

[632]The respondent relies on the explanation that SP did not consider it necessary to revert to the claimant and we reject it. That is an assertion, not an explanation, much less a complete and non-discriminatory explanation. It is not for us to plug the many gaps in his evidence to try to make sense of the bare information the respondent provided.

[633]We see a second potential explanation in SP’s witness statement that is not relied upon in the respondent’s submissions, but that we address, for the avoidance of doubt. He says that his ‘responsibility was to answer the points of [MK’s] grievance based on the evidence and the discussions with interested parties’. Insofar as that is an explanation for SP’s failure to revert to the claimant, we reject that, also. He had no obligation to MK to take up the ‘further potential breach of confidentiality’ that MK raised with SP, either; it was outside the remit that SP describes. Nevertheless, he still made further enquiries on his behalf, with MW and LJ, and in writing explained to MK the enquiries he made and the outcome of those enquiries.

[634]We reject the respondent’s explanation that SP did not consider it necessary to revert to the claimant with recommendations or proposals because it was not considered ‘necessary to do so’, or that it was not within his remit.

[635]The claimant’s complaint of direct race discrimination is well founded.

[636]In the circumstances, we have not considered or addressed the alternative complaints of harassment related to race, or a detriment on the ground of a public interest disclosure. February 2021 – The Respondent’s Medical Director, Clinical Director, and Head of Patient Safety Team, failed to strictly adhere to the need to report concerns raised by the Claimant about MK using Datix.

[637]We have accepted the respondent’s evidence, which was not materially in dispute, that in the aftermath of the Morris judgment, promulgated in January 2021, the directorate was in a significant state of disarray. Nobody knew how to handle MK. Any failure to comply with reporting procedures was not related to race, or because of the claimant’s race.

[638]The complaints of harassment related to race and direct race discrimination are not well founded and are dismissed. JG and DD removed the Claimant from GOSW duties from 21 October 2021 onwards, at a vulnerable time when he was facing a GMC investigation. The claimant was informed by DD, “You cannot hold any corporate managerial posts while submitting a grievance against the Trust. Julie and I agree that you should step down from this post immediately”.

[639]The claimant informed DD on 1 October 2021 that he intended to submit a grievance containing a complaint of race discrimination. In response DD, pursuant to an approach agreed with JG, informed the claimant that in those circumstances he was required to relinquish his GOSW role.

[640]We are satisfied that the claimant was told he could not hold the role of GOSW because the respondent believed the claimant may submit a grievance containing a complaint of race discrimination.

[641]It is not clear to us what happened between October 2021 and February 2022, but we are satisfied that the claimant was in fact removed from the role because he was reinstated on 16 February 2022.

[642]We are satisfied that the claimant was removed from the role because either the respondent believed that the claimant may submit a grievance or because he actually did.

[643]On DD’s own written evidence, the GOSW was an ‘independent role’. The irony is not lost on us that the cost to the claimant of holding the respondent to account for MK’s behaviour, was to be stripped of the role in which he holds the respondent to account for its treatment of junior doctors.

[644]Furthermore, the GOSW role was a role that, in DD’s own words, the claimant undertook well and that he enjoyed.

[645]We conclude that being informed that the price of submitting a complaint of race discrimination was that he could no longer hold the GOSW role and being removed from the role both amount to detriments in the Shamoon sense.

[646]The claimant’s complaint of victimisation is well founded. In those circumstances, we have not considered it necessary to go on to consider whether they were done on the ground of a protected disclosure. The Respondent’s Medical Director, in discussion with its CEO, did not permit the Claimant to chair the Doctors in Training Forum as a GOSW for a period of 4 months from October 2021 to February 2022

[647]This complaint was withdrawn by the claimant. In November 2021 and June 2022, MK spoke to the Claimant’s secretary in a patronising manner, stating that the Claimant had a ‘tough year ahead’ and that he feels pitiful. (Both incidents occurred one month after each GMC referral).

[648]We have found that an exchange took place in November 2021 as FD recounted it to LB.

[649]We understand the respondent to say that ‘the allegation is not entirely consistent’ with FD’s account to LB, and that this ‘goes to C’s credibility’. We understand that in this submission, the respondent takes issue with the difference between the reported words ‘difficult year ahead’ and pleaded case that MK said that the claimant would have ‘a tough year ahead’.

[650]We see no distinction between the words ‘tough’ and ‘difficult’ in the context of this case. To accede to the respondent’s submission would be to allow form to rule over substance. Furthermore, we cannot see the prejudice to the respondent in our accepting ‘tough’ as a synonym for ‘difficult’ on the facts of this case. The respondent has known of the complaint since at least March 2022 when LB reported on the matter. We are unattracted to the submission in particular in light of MK’s claimed inability to recall the incident (which we have rejected) and despite the fact that the respondent met with him about it, recorded his partial admission counselled him against repeating his behaviour but nevertheless failed to adduce any written or documentary evidence about the incident.

[651]We find that MK told FD that the claimant would have a difficult year ahead and further, the comment was unwanted.

[652]We find that the purpose of MK was to create an intimidating hostile, degrading, humiliating or offensive environment. He had not visited the office for some three years previously and attended without any obvious purpose. FD and MK did not have much to do with one another. FD was the claimant’s secretary and so he knew that there was a significant risk that his visit to FD would be relayed to the claimant. In any event, it was reasonable to have the proscribed effect; the exchange took place shortly after the claimant was alerted to the GMC’s decision to review its closure decision and open an investigation into his fitness to practice after promulgation of the Morris Tribunal judgment and in the context of a conversation in which MK was gloating about his Tribunal success in which the claimant was subject to adverse findings. LB describes the comment as ‘somewhat threatening’. We do not disagree with that description and go further; MK’s comment, made to the claimant’s secretary was intimidating, degrading, humiliating and offensive.

[653]We are satisfied that the conduct complained of was related to race. MK had a history of complaining about his consultant colleagues of Indian origin such that the previous medical director, Mr E, suggested it might be in the claimant’s best interests to take steps to appease MK. By 2017, he was selected by MK by reference to his race when his patients were included in the list of 25 patients and again in 2018 when MK presented a second list of patients as an extension of his first list. He made vitriolic comments about the claimant’s treatment of Patient One in the second list, as well as to the investigation team itself, again, explicitly identifying him by his race.

[654]In relation to MK’s conduct in November 2021, the complaint of harassment related to race is well founded.

[655]We take a similar approach to the complaint that MK approached FD again, in June 2022. This occurred in the weeks following the claimant receiving notification from the GMC that it was reviewing a referral made by MK that he had conducted a prohibited laparoscopic procedure on Patient One. He told FD that he felt ‘sorry’ for the claimant in a manner that was patronising and disparaging. For the avoidance of doubt, we again see no distinction in substance between the word ‘sorry’ and ‘pitiful’ in the context of this case, and even if there was one, we fail to see the prejudice to the respondent when we have rejected MK claim that he is unable to recollect the discussion.

[656]The conduct in June 2022 was unwanted and, for the same reasons as above, we find that it was MK’s purpose to create a degrading, humiliating or offensive environment. Alternatively, it was reasonable for his conduct to have had the proscribed effect - this was the second occasion that MK spoke to the claimant’s secretary shortly after he had received notification of action on the part of the GMC. For the same reasons as above, we are satisfied his conduct was related to race.

[657]In relation to the conduct of June 2022, the complaint of harassment related to race succeeds.

[658]In the circumstances we have not addressed the alternative complaints of direct race discrimination and whistleblowing detriment. The Claimant was unable to apply for the Deputy Medical Director vacancy advertised on the 22 December 2021. The claimant had applied for this post in the past and it was given to CT.

[659]The email notification of the vacancy for JM’s role was sent to a number of recipients, including the claimant. There was no practical barrier to the claimant applying for the role of Deputy Medical Director. There was no detriment.

[660]We accept that the claimant felt that his chances of being appointed were compromised by DD’s declaration in October 2021 that if he were to submit a grievance, he could not hold a ‘corporate role’, of which the role of Deputy Medical Director was one, according to DD. We recognise that the claimant might have considered it futile to apply, in circumstances where DD would be on the appointment panel.

[661]In truth this is a complaint about the consequences of what DD told the claimant in October 2021; it is a matter for consideration at the remedies stage as to the chances, if any, of the claimant being appointed to the role, had he applied.

[662]The complaints of victimisation and public interest disclosure detriment are not well founded and are dismissed. 5 January 2022, LJ failed to investigate the 15 patient safety incidents reported by the Claimant against non-Indian consultants, including MK, which were included in his grievance letter.

[663]The claimant’s grievance, submitted in January 2022 clear. He contended that he was the subject of race discrimination by MK. He had identified 15 other cases that he said MK might have identified in the same period, which did not involve treatment by consultants of Indian origin.

[664]We comment on the difference between the allegation read literally (‘failed to investigate 15 patient safety incidents’) and the failing as we had understood it to be (‘failed to investigate my race discrimination grievance’). The respondent urges us to adopt the former interpretation of the allegation and not the latter.

[665]On a careful scrutiny of the claimant’s pleadings, and witness statement, however, we take the view that the respondent’s approach is the proper one for us to adopt.

[666]The list of 15 patients that the claimant had presented was in the context of his race discrimination complaint. He said that they were matters that MK might have raised but did not.

[667]There were two approaches the respondent might have taken to this list. First, it could have regarded the list as intrinsic to the claimant’s complaint of race discrimination. But the respondent repeatedly refused to investigate his complaint of race discrimination.

[668]The alternative approach was to simply regard the list as disclosing potential clinical concerns and review them separate from the complaint of race discrimination. It might have done so simply to satisfy itself whether there were any matters to be examined further. The respondent had no reason to doubt his good faith or motive: he had identified colleagues of a variety of races. Again, the respondent did not do so. The claimant was seeking access to the patient records via the respondent’s IG department in early 2023 in part at least, because he thought it would assist with any GMC investigation into race discrimination. He was still pursuing his conviction that the cases were both clinically significant and important to him in early 2024, two years after he had first raised them. It was only then, when he corresponded with HMcC who told him that governance processes would have flagged up those cases if they were clinically significant that the claimant agreed that ‘there probably isn’t an issue with any of these cases’. Only at that stage was he persuaded to ‘park them’ unless the GMC sought further information about race discrimination matters.

[669]The claimant invites us to contrast the respondent’s response to his list of 15 cases, to its readiness to investigate the two lists of patients presented by MK.

[670]The specific difficulty we see, is the respondent’s response to MK’s first list of 25 patients and more specifically still, its response when MK was dissatisfied with the outcome of the Tulloch investigation. Despite knowing that there was nothing of clinical significance in any of the 25 cases that MK had identified, and despite knowing that MK had identified the cases by reference to the race of the treating consultant, it nevertheless agreed to undertake a second investigation, this time with a panel chaired independently. It did so simply because MK disputed the outcome of the Tulloch investigation. It was, on the respondent’s own evidence a ‘huge task’.

[671]For these reasons, we are satisfied that the claimant has established a prima facie case that he was treated less favourably than MK in materially the same circumstances.

[672]We turn to the respondent’s explanation for the treatment.

[673]The respondent says the reason it did not investigate the claimant’s request in January 2022 to look at the 15 cases is because two years later, in January 2024, some 6 months after the presentation of his claim form, the claimant agreed with HMcC to ‘park them’ until such time as the GMC makes a specific request ‘around race discrimination’.

[674]We are somewhat surprised by that explanation, not least because we might have expected the explanation to come from DD; the claimant wrote to DD, at the suggestion of GB, in August 2023 to explicitly ask him why the list had not been investigated, but at the time LJ responded to the claimant instead.

[675]Returning to the explanation that is advanced. As with a number of other matters, LJ was called upon, to address a point that she herself says she had no involvement in. The reason that the claimant named LJ in the allegation is because he believed as Independent Lead Investigator, identified in the letter from NMcM as the person to ‘ensure actions are addressed’, she might be able to provide the explanation, but that is not the case. According to her evidence, HMcC only joined the respondent in early 2024, and left ‘shortly thereafter’ which, LJ said she believed ‘contributed to the confusion’. We have not heard from HMcC and the respondent has adduced no written evidence from him.

[676]What we are required to look at is the motivation of the alleged discriminator and identify their reason, consciously or unconsciously to identify the reason for acting as it did. That cannot be HMcC, who was not even present for almost all the period with which we are concerned; we were only taken to an email exchange that took place on a single day. Even then, that exchange was, explicitly, about how to deal with the 15 cases in the context of an investigation by the GMC about race discrimination.

[677]The respondent has not provided an explanation that can be regarded as complete and non-discriminatory explanation for the treatment alleged.

[678]The claimant’s claim of direct race discrimination is well founded.

[679]In the circumstances, we have not considered the claimant’s alternative claims of harassment related to race, victimisation and public interest In relation to the return to work after 10 January 2022 the Respondent (AC) failed to complete an appropriate Individual stress risk assessment as recommended.

[680]The respondent did not conduct a stress risk assessment in January 2022 when the claimant returned to work after a period of sickness absence, notwithstanding the requirements of its own absence management policy. It did, however, when the claimant returned to work after a period of sickness absence in July 2022.

[681]We are satisfied that on the balance of probability, the reason for the respondent’s failure in January 2022 was that Occupational Health had specifically recommended an assessment be carried out in respect of his second absence and it had not made that recommendation in relation to his earlier absence.

[682]Put another way, we are satisfied that the respondent was not complying with the requirements of its absence management policy at all; it was simply taking those steps recommended by Occupational Health. That might, in and of itself, explain why there have been historical inconsistencies in the way that the respondent conducts stress risk assessments. Whatever the reason, the data disclosed by the respondent provides no information about the race of those employees who benefitted and those who did not.

[683]It may be that MK was one of the ‘lucky ones’ to have been provided with a stress risk assessment on his return to work, or it may be, as we understand the claimant to suggest, that the respondent is on heightened alert to ‘get things right’ in his case. Even if the claimant is correct about that, that explanation would reveal more about the respondent’s desire to avoid further difficulties when it comes to MK, than it reveals about whether its omission in respect of the claimant was causally connected to race.

[684]We are not satisfied that the claimant has adduced a prima facie case of harassment related to race, or direct race discrimination. The claims are On 13 January 2022 the Respondent moved all the claimant’s clinical sessions to theatres 9 and 10 at University Hospital of North Tees (in response to his request that he have minimal contact with MK so that the ongoing GMC investigation will not be compromised) which have poor facilities, cramped conditions and a higher risk of infection, instead of giving him main theatre sessions.

[685]Insofar as the claimant found himself operating theatres at North Tees were not as salubrious as those the claimant was accustomed to in Hartlepool, that was, as the formulation of the allegation itself acknowledges, because he had asked to be relocated to North Tees whilst his grievance was investigated.

[686]The problems with the harassment complaint are multiple. Even if it could be described as ‘conduct’ we are not satisfied that it created the proscribed environment. It certainly was not the respondent’s purpose and nor can it be said to be reasonable to have that effect given that it was a direct consequence of the claimant’s request to be relocated to the North Tees site. We are not satisfied that any such conduct ‘related to race’ even in the very broad sense with which we are to approach the test: we are not satisfied that had the background facts included complaints and grievances which did not include allegations of race discrimination, the claimant would not have found himself in the same situation. Furthermore, claimants are expected to demonstrate a reasonable of robustness: HM Land Registry v Grant.

[687]The claimant has not adduced evidence from which a tribunal could reasonably infer race discrimination.

[688]The claimant’s complaints of direct race discrimination and harassment are not well founded In relation to the return to work after 10 January 2022, the Respondent failed to provide the Claimant with a junior team as it had to other colleagues, to support his clinical activities and On 28, 29 & 31 March 2022 the Respondent did not provide junior support for on call and elective duties, resulting in a second episode of sickness for the claimant.

[689]We deal with these two allegations together because of the similarity of the themes. In January 2022, the claimant returned to work to carry out elective duties. In March 2022, he resumed his emergency on call duties also. He complains about gaps in his junior team, as well as the lack of a consistent team.

[690]We have found that we are satisfied that the junior teams provided to the claimant in both periods was not significantly different to his colleagues. We have found that it not possible for the respondent to guarantee a consistent team. In truth, we do understand the claimant to be disputing that. Gaps in his team, and changes in his team is, as the claimant said, ‘normal if you are confident’. He was not confident on his return to work.

[691]The claimant was, and remains, a highly valued surgeon who had taken sick leave for the first time in his career, the reasons for which the respondent was fully aware of. His absence was against a background of years of disharmony which, on the respondent’s own evidence, was generated by MK, and affected the claimant professionally as well as personally. By January 2022, MK was emboldened by and was vocal about his tribunal success, he had approached the claimant’s secretary about it, and he had persuaded the GMC to reopen an investigation into the claimant’s fitness to practice.

[692]The respondent obtained and followed Occupational Health advice; it met with the claimant to discuss what he needed. His return-to-work meeting was carried out adequately. It could have done more. It knew the claimant’s confidence had been affected. It asked him what he needed. Notably absent from the respondent’s evidence, however, and particularly against the very peculiar facts of this case, is any attempt on its part to take proactive steps to support the claimant’s return. The claimant told the respondent that he felt vulnerable to further complaints from MK. As the claimant says, even when the rota indicates a ‘full team’ that meant for him something different to having ‘the same team’. An attempt to monitor the constitution of his team, even if it did not yield significant results, may nevertheless have benefitted the claimant’s confidence in knowing that he was being supported by his employer, rather than simply regarded as being capable of undertaking ‘business as usual’ with his anxiety about, and his ability to withstand, any further complaints unimpaired.

[693]On the facts before us we are not satisfied that the claimant has established a prima facie case of harassment related to race, direct discrimination or victimisation. We are satisfied that, on the balance of probabilities, the treatment complained of was not on the ground of any prior public interest disclosure.

[694]The complaints of harassment related to race, direct race discrimination, victimisation and public interest disclosure detriment are not well founded. In relation to the return to work after 10 January 2022, the Respondent asked the Claimant to take on duties outside his return-to-work agreement, namely on 15 February 2022 EC by email after prior verbal requests, requested the claimant to operate on complex patients on the waiting list.

[695]On a plain reading of the email, we are not satisfied, as the claimant alleges, that EC was suggesting that the claimant be personally responsible for the list of patients included in his email or that the claimant attend to them shortly. We do not doubt that the claimant construed the email suggesting just that and, furthermore, he felt pressured by the request. He had only recently returned from his first period of sick leave, and the conversation might have been more suitable for a structured verbal discussion.

[696]Insofar as there was an implicit request that the claimant personally attend to the ‘long waiters’, we note that it was not inconsistent with the plan for a phased return, i.e. that by the middle two weeks of February, the claimant was to undertake work of ‘increased complexity’. The recommendation of Occupational Health was just that; it bound neither the claimant nor the respondent from reviewing the claimant’s progress. It was open to the claimant to raise with EC his ability to attend to the patients in accordance with his own recovery time and needs.

[697]The claims of direct race discrimination, harassment related to race and public interest disclosure detriment are not well founded. On June/July 2022 the Respondent failed to protect the claimant from harassment by MK humiliating the claimant in conversations with his secretary

[698]The substance of this allegation is that the respondent has failed to take appropriate steps to avoid the claimant from being repeatedly harassed by MK and specifically its failure to address his conduct in November 2021 led to a repetition of his conduct in June 2022.

[699]We do not know when it is that LG and the Chief People Officer spoke to MK.

[700]In our view, the failure is wholly unconnected to the making a protected act, or a protected disclosure by the claimant and is firmly grounded in the respondent’s unwillingness or inability to manage MK.

[701]A few examples follow. The respondent knew in August 2017 that MK had selected consultants about whom to complaint by reference to their race; it was not the first time he had made a complaint of race discrimination against colleagues of Indian origin. Nevertheless, it agreed to conduct the Tulloch investigation (and revert to MK with its results), the Chadwick investigation and, later, the MacFie investigations into a total of 69 patient cases. Despite knowing that MK has accessed between 80-90 sets of confidential patient records at least, outside the respondent’s own information governance system, it has not even had a discussion with him about it. When the claimant submitted a grievance, the respondent commissioned LB to conduct an independent investigation. MK was not required to attend a grievance meeting with LB to discuss his alleged conduct towards the claimant’s secretary in June 2022, yet JG and DD did attend to answer the allegation that the claimant had been asked to step down from his GOSW role. We remain unclear quite how the respondent handled that matter, save to observe that the respondent appears to have met with MK only after LB reported her conclusions, and even then, it took action based on MK’s partial admission, rather the conclusion of the independent investigator it had commissioned to deal with the matter. Our impression is that MK sits outside of any system that applies even to the respondent’s own Medical Director and Chief Executive.

[702]We do not accept that the respondent’s motivation was causally connected to any protected act or protected disclosure made by the claimant; the extracts of LB’s investigation report that we have included in our findings provides us with a valuable insight into MK’s behaviour when challenged.

[703]We find that the reason the respondent failed to protect the claimant from a repetition of earlier conduct was because, in our view, it sought to avoid confrontation with MK, notwithstanding the potential impact of that on the claimant, and other colleagues of Indian origin, both professionally and personally.

[704]The complaints of victimisation and public interest disclosure detriment are 20 September 2022 – the Respondent did not follow the grievance policy (Grievance Policy and Procedures HR2 v11) regarding time limits (section 2.4, 2.5 & 2.6 which states the appointed manager will provide the employee the outcome letter containing the complaint, background information, the decision, and the proposed solution, 5 working days of the grievance meeting) by not providing an outcome to the claimant until 20 September 2022 at 16.38 (9 months after submission of the grievance).

[705]The ‘outcome’ that is said in this allegation not to have been provided until 16:38 on 20 September 2022 was the grievance report of LB. That the respondent did not provide the claimant with the LB report until then, is not in dispute.

[706]LB’s report was finalised on 18 March 2022, and it was a further three months before the respondent met with the claimant, on 16 June 2022. In the interim, it had had a chance to consider the contents of the report and identify which recommendations it was prepared to accept and which it had decided to abandon in accordance with a procedure we have not had sight of, nor adequately explained.

[707]The contents of the report that the respondent had been reviewing in that period including the following matters:a. in relation to Issue 2 (‘That MK selection of concerns raised was due to racial discrimination; that [the claimant] raised this concern at the time but it was not looked into’) although LB did not uphold this complaint - and we have set out above the reasons we might disagree with her rationale - she made a recommendation ‘to review the concerns raised by MK in the past and currently to establish whether these two only cover doctors with a certain nationality/ethnic origin. If this proves to be the case should be investigated further with MK to ascertain why he continues to identify these clinicians specifically’. Before us the respondent was unable to explain why the respondent has never implemented this recommendation, or why the same subject matter was expressly excluded from the next grievance investigation conducted by GB.

b. In relation to Issue 6 (‘MK’s behaviour since a conclusion of the tribunal, and the lack of control the trust has over this: including his speaking to others about the tribunal, his continued harassment of [the claimant] and raising concerns’) LB upheld this complaint principally on the evidence of FD. The respondent was unable to explain to us why in these proceedings, it had failed to provide written or documentary evidence about this incident.

c. In relation to Issue 8 (‘Being asked to step down from his [GOSW] role because he declared his intention to submit a grievance’) LB again upheld this complaint, noting that ‘it needs to be made clear that this should not have happened in the first place and it is recommended that [the claimant] receives a formal apology for being asked to resign’. The respondent was unable to provide an explanation for why the claimant did not receive an apology in accordance with the recommendation.

[708]All three matters above were problematic for the respondent. They raised respectively, the spectre of acts of direct race discrimination, harassment related to race and victimisation.

[709]Having decided which parts of the recommendations it would action and which it would not, the respondent invited the claimant to a meeting on 16 June and on the following day provided him with a short letter, approximately half of which comprised a table that had copied from LB’s report in which she summarised which allegations had been ‘upheld’, ‘not upheld’ or ‘partially upheld’ and half of which informed the claimant of its intended actions. Both parts were virtually meaningless without the provision of the underlying rationale.

[710]The claimant could not know whether he had grounds to advance an appeal on the basis that there was ‘a failure to follow procedure [which] had a material effect on the outcome’ unless he was provided with information about how the investigation had taken place. Neither could he know whether he had grounds to maintain an appeal on the basis that ‘any proposed action was inappropriate given the circumstances of the case’ if he had not been provided with the context in which the respondent made its recommendations. Nor could he know whether he had the grounds to advance an appeal on the basis that ‘new evidence . . has genuinely come to light since a formal resolution meeting’ since he did not know what evidence had been adduced during the grievance investigation. His appeal, on the ground that ‘the evidence did not support the conclusion reached’, was the only ground on which he had any hope of successfully appealing since he at least knew what he had told LB, even if the respondent withheld the evidence of the other 6 witnesses, including its own chief executive, JG and its medical director, DD.

[711]The claimant was required to ask, at least twice on our findings, before the respondent provided the report. In the meantime, the respondent had managed to convene a suitable three-member panel, coordinate their diaries, as well as that of the claimant and his union representative, to arrange the appeal hearing of a grievance appeal, without sharing with him the very report the appeal panel would be considering.

[712]We have concluded that the respondent deliberately withheld the LB grievance investigation report form the claimant for the reasons set out in the findings of fact above; in our view those facts support no reasonable alternative explanation.

[713]By the time the claimant received the report, it left him with three days in which to process the contents of a report exceeding 120 pages, including the evidence of 6 witnesses, and formulate a reasoned appeal. It left him with seven days to prepare for a hearing of his own grievance appeal and If he had wanted, in the way the respondent had afforded itself, time to reflect on the contents of the report before formulating his response, he had no time to; he had by this time returned to work for a matter of weeks after a second period of sick leave due to stress. If he had wanted to take further advice about the contents of the report before formulating his approach at the appeal stage, the actions of the respondent precluded any realistic chance of doing so.

[714]The grievance procedure, of which the appeal stage is a part, is one that is provided by the respondent for the benefit of its employees. Here, and on the simplest analysis possible, the respondent knew why the claimant’s grievances had been upheld or rejected, for some six months before sharing with him the report so that he may too, understand why his own grievances had been concluded as they had. If the claimant wished to appeal, it would be for him to substantiate the grounds of his own appeal; if he failed, his appeal would be dismissed. The respondent had six months in which to reflect on the contents of the report, yet it gave the claimant 1 week to prepare for his own appeal hearing. In our firm view, the respondent’s conduct offends the most basic principles of fairness and justice.

[715]We remind ourselves that unreasonable conduct is not, in and of itself, sufficient to discharge the burden of establishing a prima facie case: Bahl. However, here the respondent did not only withhold the LB report for a long period; it withheld a report, the contents of which it knew were problematic for it, for the reasons we have identified above.

[716]The claimant invites us to contrast his treatment with that of MK. When SP sent to MK his grievance outcome letter on 13 February 2020, it contained not only his findings, but also a description of his investigation, the evidence he had obtained, and his rationale for arriving at the conclusions he did. The claimant has a simple, yet effective, point: MK was provided with all the information necessary to enable him to make an effective and reasoned appeal. MK’s treatment is of evidential significance because, in the claimant’s case, sharing the outcome with him was as simple as handing him a physical copy when it met with him on 16 June, or attaching an electronic copy to its letter the following day. It did neither.

[717]In our view the respondent’s behaviour here is consistent with earlier and later conduct demonstrating a clear reluctance to engage with the claimant’s complaints of race discrimination, harassment related to race and victimisation, fairly and properly. He has been twice ignored when he sought to raise his belief that he was subject to unfair and discriminatory treatment, by the investigation team in October 2018 and again by SP in November 2019. No review of reporting patterns of MK ever took place in the way recommended by LB; the claimant’s complaint of race discrimination by MK was excluded from the GB investigation. Even though the respondent had reinstated the claimant to the role of GOSW, it had not provided him with an explanation or apology as recommended by LB.

[718]At the first stage, we conclude that the claimant has been treated less favourably than MK, alternatively he has established a prima facie case that a comparator in materially the same circumstances as him would have been treated more favourably.

[719]We turn to the respondent to provide a complete and non-discriminatory explanation for the treatment.

[720]To summarise the respondent’s submissions, the respondent’s explanation is that its actions were compliant with version 13 of the grievance policy, in addition or alternatively they were compliant with version 11 of the same policy, in addition or in the alternative its actions were reasonable.

[721]We can deal with the points shortly; it not reasonable to, nor compliant with either version of the grievance policy to deliberately withhold a document containing the basis of a grievance outcome.

[722]Insofar as it is necessary to go further, we find that version 11 of the grievance policy required the respondent by paragraph 2.6 to provide the LB report to the claimant on 17 June 2026. If version 13 applied, the report should have been ‘circulated’ to the claimant in accordance with paragraph 5.7.1, which we take the view was either when the respondent received it, or in any event in our view, significantly before he was required to appeal, since paragraph 5.5.2 constrains the appeal hearing to those grounds identified by the employee in their letter of appeal.

[723]The claimant’s complaint of direct race discrimination succeeds.

[724]In the circumstances, we have not considered his complaint of harassment related to race. On 1 November 2022 the Respondent’s CEO failed to advertise, or make the Claimant aware of, an additional award category “Outstanding contribution to the Respondent award” which was subsequently awarded to MK.

[725]MK was not given an award at this ceremony. The complaint fails on its facts.

[726]The claims of direct race discrimination, harassment related to race and public interest disclosure detriment are not well founded. On 5 December 2022 LJ: told the GMC in an email that the Claimant had not done an appraisal for MK in the past when she knew that to be false; forwarded a document from the tribunal proceedings which stated that he had not done an appraisal for MK in the past; and misfiled the claimant’s details so that she could not tell the Claimant what she has sent to the GMC.

[727]On the claimant’s own description, LJ treated other colleagues of Indian origin with greater care and attention when assisting them with their GMC referrals that she treated the claimant.

[728]Whatever we may have found as a fact occurred, we are required to address our minds to his claims that her conduct amounts to race discrimination and harassment related to race. We are satisfied that her conduct amounted to neither.

[729]The complaints of direct race discrimination and harassment related to race are not well founded. On 12 December 2022 failed to provide the claimant with a job plan resulting in unplanned overbooked clinics (25 April 2023) and theatres (26 April 2023).

[730]We profess we had difficulties following this complaint. The purpose of the meeting on 12 December 2022 was to review the claimant’s job plan. Insofar as it required adjustment, the core issue that arose in December 2022 and continued until July 2023 was whether or not the claimant wished to resume and continue with emergency on call duties, or, in line with the national trend for breast surgeons, relinquish those duties.

[731]We understand why the claimant might be anxious about resuming emergency on call duties, which tends to involve the treatment of higher risk patients, since MK was attending Morbidity and Mortality meetings so would be aware of any complications that had arisen in the directorate. We also take the view that the claimant knew that the respondent could not realistically assure him that he would be provided with measures to guard against the risk of repeated complaints by, for example, providing him with a consistent junior team. Furthermore, the identification of a new job plan was not a passive exercise; the claimant was equally well, if not better placed, than the respondent to how he could manage any loss of PAs in his job plan if he were to discontinue emergency on call duties.

[732]AC, who was charged with drafting a job plans that included and excluded emergency on call duties apologised to the claimant for her delay in providing that plan at the meeting on 12 December 2022. In the meantime, the claimant continued to be paid in accordance with his present job plan; he suffered no financial loss, at least none that he informed us of. By January 2023, correspondence indicates that what the claimant was interested in was receiving a draft job plan that did not include PAs dedicated to emergency on call duties. If that was incorrect, it was open to the claimant to correct that drift in direction: he did not.

[733]Throughout this period, the choice as to whether the claimant continued, or discontinued, his emergency on call duties was that of the claimant; the respondent applied no pressure either way.

[734]We feel the need to add that the exercise was managed, after February 2023, by KE who, we considered had engaged with the claimant with detailed and impressive care. He was in regular contact with the claimant. His patience was, on occasion, tested. That is not to be construed as a criticism; rather, we regard that as an indication of the lengths he went to try to accommodate the claimant. He acted in good faith throughout. He recognised in his own evidence, that relatively new to the role of clinical director, he did not appreciate some of the history recounted to us; equally it may be that the claimant regarded KE with a degree of scepticism but if so, we consider that to be unwarranted.

[735]By July 2023 and having seen the two different drafts of the job plan, the claimant chose to discontinue emergency on call duties.

[736]We are not satisfied on the facts that we have found that the clinics on 25 April 2023 or the theatres on 26 April 2023 were in fact overbooked. Nothing in the factual matrix leads us to conclude that could reasonably be causally connected to any prior protected act. We are satisfied that any failure to provide a job plan prior to December 2022 did not preclude the claimant from discussing and agreeing a job plan at the meeting on 12 December 2022, since that was its very purpose. In summary, we are not satisfied that the claimant suffered a detriment.

[737]The claims of victimisation and public interest disclosure detriment are not well founded. 6 January 2023– KMcC and ND, head of information governance, did not allow the Claimant to access patient information on GDPR grounds (in contrast to MK who had been allowed to access patient information in May 2018)

[738]This complaint was withdrawn by the claimant during cross examination. On 20 January 2023 the Respondent removed on call duties from the claimant’s job plan.

[739]For not dissimilar reasons, this complaint also fails. It is unclear to us how the focus had shifted from December 2022 when AC apologised for not providing two drafts of a job plan to the claimant, one which included on call activities and one which did not, to a position in January 2022 when the claimant, on the face of his own correspondence, was stating, without complaint, that AC was preparing only one job plan without emergency on call activities included. Whatever the reason, the claimant’s email of 19 January 2022 was his opportunity to correct any such drift. Equally, it was open to him to correct AA’s impression contained in his email of 20 January 2023.

[740]On no objective view of the correspondence could it be said that AA’s email of 20 January 2023 had the effect of removing from the claimant’s job his on call activities.

[741]The claimant’s claims of victimisation and public interest disclosure detriment are not well founded. MK referring the claimant to the GMC in October 2021, May 2022 and provided false and detrimental information to the GMC on 24 January 2023. He has done this on racial grounds because the claimant is Indian. The Respondent failed to challenge and allowed this.

[742]For the avoidance of doubt, we recognise that the manner in which this allegation is formulated is not strictly correct. On the facts as we have found them, MK was repeatedly corresponding with the GMC with a view to them reviewing earlier closure decisions; his actions led to the GMC notifying the claimant in September 2021 and again in May 2022 that it intended to review its earlier closure decisions.

[743]The respondent takes no issue with the formulation of the allegation and nor do we consider it causes any prejudice to approach his allegations in this way, since the matters he complains of are matters of which the respondent was acutely aware, it having had to liaise with the GMC for a number of years about its review of the claimant.

[744]The respondent contends that even if the acts complained of are unlawful and done in the course of employment, the acts complained of fall within the scope of judicial proceedings immunity (‘JPI’). Judicial Proceedings Immunity

[745]We first address whether the acts alleged fall within the scope of JPI. We find that, save in relation to the complaint that MK made a ‘false’ statement to the GMC in January 2023, they do not fall within the scope of JPI. Our reasons are as follows.

[746]The claims are of harassment related to race, direct race discrimination and whistleblowing detriment. The claimant’s only remedy lies with the Employment Tribunal.

[747]The CA in Erhard-Jensen found that a complaint relating to the initiation of quasi-judicial proceedings did not attract JPI.

[748]The CA in its decision did not address the Supreme Court decision in P, nor the factually distinct High Court decision in White v Southampton University Hospitals NHS Trust.

[749]Unlike the claimant in P, the claimant here does not need to rely on his directly effective rights. White, however, is factually analogous to the present case.

[750]At the time of writing, Harvey on Industrial Relations and Employment Law has not been updated to incorporate, or comment on, the CA decision in Erhard-Jensen. Nevertheless, we concur with what we regard to be an uncontroversial opinion of the editors i.e. that ‘discrimination law and whistleblowing law tend to be viewed as analogous and the policy factors are similar’.

[751]We add that in the case of Erhard-Jensen, the respondent itself initiated quasi-judicial proceedings, by commencing arbitral proceedings. Here, the complaint is that MK sought to persuade the GMC to commence quasijudicial proceedings.

[752]We are persuaded that the proper approach is to adopt the higher, CA approach, in Erhard-Jensen and we find that JPI does not, attach to the complaint that MK referred the claimant to the GMC on two occasions.

[753]By contrast, the claimant’s complaint that MK made a ‘false statement’ to the GMC is a complaint about a statement made to the GMC. That statement was made in the course of quasi-judicial proceedings. We are satisfied that, applying the principles set out in the decision of the CA in Erhard-Jensen, that that complaint falls squarely within the scope of JPI. Lawfulness

[754]Having concluded that JPI does not attach to the two referrals made by MK to the GMC, we turn to consider whether the acts complained of amount to harassment related to race. We find they do.

[755]The conduct, we find, was unwanted. The GMC was already aware of the employment dispute in respect of which MK presented his first claim because it was at his request that the Tribunal provided a copy of his claim form to the GMC. However, on an initial consideration, the GMC took the view that no further action was necessitated because, in its view, the matters raised appeared to employment related and not related to any fitness to practice matters that fell within its jurisdiction.

[756]MK might have left it there, or even only gone as far as providing the GMC a copy of the judgment of the Morris Tribunal, for its information, but he did not. In January 2021, as soon as the judgment was promulgated, he sought a review of the closure decision and repeated his request on at least three subsequent occasions: 9 February, 27 April and 24 July 2021, emphasising that in his view that what was happening amounted to a ‘national scandal’. MK was, in our view, determined to persuade the GMC to review its closure decision and scrutinise the claimant’s fitness to practice as a consultant.

[757]The repeated requests are also a relevant factor in our decision that MK’s purpose was to create the proscribed environment. A review of the claimant’s fitness to practice by his regulatory body was likely to cause the claimant immense professional as well as personal pressure regardless of whether it led to any formal allegations being put to him. MK intended, we find, to create an intimidating hostile, degrading, humiliating or offensive environment for the claimant.

[758]We go further in relation to the second matter investigated by the GMC (type of breast surgery). Had MK genuinely believed that the claimant’s treatment of Patient One amounted to something akin to the type of surgery that should only be carried out in ‘research centres’ we might have expected to see a referral of the treatment of Patient One to the GMC as soon as he learned of it, and certainly by 2018 when the Tulloch investigation had revealed nothing of significance being identified by the respondent. He did not, however; it took him until October 2019 to raise a separate referral to the GMC. By the time MK referred that matter to the GMC, we have found that he was likely to have received the claimant’s witness statement to the Morris Tribunal in which the claimant stated he had conducted approximately 150 of the same procedure he had conducted on Patient One. On any reasonable view, the chances of the claimant openly accepting that he had carried out not one, but 150 procedures, of the type that MK alleged were experimental, were vanishingly unlikely.

[759]If there was any doubt about MK’s motivation, we remind ourselves that MK on our findings received correspondence from the GMC, at approximately the same time as the claimant was notified. On both occasions, MK went out of his way to approach the claimant’s secretary shortly after each notification, to tell her that he believed the claimant was to have a tough (or difficult) year ahead, and that he felt pitiful (or sorry) for him. In his words, we find that MK explicitly recognised, and revelled in, the very serious impact of his own actions on the claimant’s professional standing.

[760]We are satisfied that MK’s conduct related to race. He had identified the claimant as part of a group of 6 consultants, by reference to their race in August 2017; when that led to nothing of clinical significance being identified by the respondent, he pursued a further investigation, and subsequently presented a second list of patients, explicitly as an extension of his first list. We remind ourselves that all that is necessary is that the conduct related to race, the test for which is a broad one; it need not related to the claimant’s race. Insofar as it is necessary to identify a further factor, we remind ourselves that on the facts before us, the only colleagues about whom MK sought to question their clinical competence, were those consultants who are of Indian origin.

[761]We have had regard to the fact that of those MK referred to the GMC, one colleague was white; even taking that fact into account, that is insufficient to lead us to doubt that the conduct complained about was not related to race.

[762]We have not, in the analysis above taken into account any statement MK made to the GMC when deciding whether the alleged conduct amounted to a contravention. We note that the CA decision of Erhard-Jensen permits us to. Applying that approach we make the following additional observation.

[763]In relation to the first notification, MK alleged in his statement dated 23 January 2023 to the GMC that he believed(a) that the claimant submitted the Datix in June 2018 as an act of ‘retaliation’ for presenting his first list of 25 patients and

(b) that the two incidents referred to in the claimant’s email of 18 September 2018 were ‘bogus’. The first of those contentions was supported by a finding of the Morris Tribunal but the second was explicitly rejected: the Tribunal expressly found that the incidents were not ‘bogus’ as MK alleged, but ‘overstated’.

[764]We are satisfied that that MK’s correspondence to the GMC which led to the claimant being notified by the GMC in September 2021 and May 2022 of its intention to review it earlier decision to close any enquiry into his fitness to practice, amounts to harassment related to race.

[765]In the circumstances, we have not considered it necessary to address his alternative complaints of direct race discrimination or public interest

[766]The respondent contends that even if we were to find that MK’s actions were unlawful, it is not vicariously liable for those actions.

[767]The respondent submits that we should regard as significant that in cross examination, the claimant accepted that MK’s actions were not done in the course of employment. We do not consider ourselves bound by the lay opinion of a party, much less that of an unrepresented claimant.

[768]We note that whether an employer is to be held responsible for the acts of its employee is a broad test, for the tribunal to resolve, in light of the circumstances presented to it and, furthermore, that anti-discrimination legislation should be given a broad interpretation: AB v Grafters Group Ltd.

[769]We recognise that the conduct complained of involved matters outside of work, but we regard MK’s request to the GMC to review its closure decision to be so closely connected to his employment that we are satisfied that MK was acting in the course of his employment when he referred the claimant to the GMC.

[770]The complaints made by MK to the Employment Tribunal were, naturally, exclusively related to matters that took place at work. It was at his request that the Tribunal notified the GMC as a person prescribed by an order under section 43F ERA 1996. On an initial consideration, the GMC took the view that no further action was necessitated because, in its view, the matters raised appeared to employment related and not related to any fitness to practice matters that fell within its jurisdiction.

[771]MK provided the Morris judgment to the GMC and wrote to it repeatedly, claiming that what was happening at work amounted to a national scandal. MK provided a copy of the claimant’s witness statement to the Morris Tribunal in which the claimant explained the surgery he undertook on Patient One. It was at his request that the GMC conducted a review of its closure decision to scrutinise the claimant’s fitness to practice by reference to the findings made in respect of the claimant’s actions at work. The matters that MK sought a review in respect of and that were considered by the GMC, were entirely concerned with MK’s employment.

[772]Finally, and though we have no reason to doubt that the respondent was unaware or did not approve of MK’s actions, we remind ourselves that the state of its knowledge or engagement ‘does not matter’: s.109(3) EqA 2010.

[773]We are satisfied that the matters of which the claimant complains were actions carried out in the course of MK’s conduct, for which the respondent is liable. In February 2023 KE, the new Clinical Director, discontinued a WhatsApp group ‘Fox and Fistula’

[774]The conduct is admitted, the question for us is whether the conduct amounts to harassment related to race or direct race discrimination. We have found as a fact having regard to all the evidence before us, that KE’s motivation was to avoid the possibility of MK a complaint that he had been excluded from the group.

[775]Even if the conduct can arguably be said to be ‘related to race’, applying a broad test we are required to apply, it was certainly not KE’s purpose to create the proscribed conduct. Nor do we find that it was reasonable to have the effect of creating an intimidating hostile, degrading, humiliating or offensive environment; we are reminded that we must be cautious not to cheapen the words of the statute: Land Registry v Grant.

[776]The claims of harassment related to race and direct race discrimination are

[777]Lest our decision is misconstrued as a finding that we regard the factual complaint was trivial, we do not. We have accepted, based on KE’s oral evidence, that the respondent’s policy forbids the workplace use of platforms such as WhatsApp. We are equally content that the respondent knows of and tolerates other WhatsApp groups, even in the same Directorate. We have little difficulty understanding why the claimant may, finding himself on occasions geographically isolated from his colleagues, on sick leave, or living alone, place value in that form of communication with his colleagues. It is not difficult to imagine other circumstances in which the maintenance of a WhatsApp group might serve as a useful social glue for work colleagues. Rather, we found this complaint served as a useful insight into the myriad of ways that the claimant and his colleagues have not only been affected by complaints that MK has made but continue to be affected by the respondent’s actions because it is anxious of the complaints he may yet make. On 16 June 2023 the Respondent’s CEO failed to act on the Claimant’s email to her of 13th June 2023, and instead suggested that he put in another grievance.

[778]We agree that JG ‘failed to act’ at all or in substance, to the claimant’s email to her dated 13 June 2023. JG has since retired from employment with the respondent; we have not heard from her and received no explanation why the respondent has not adduced any evidence at all from her.

[779]However, it was under her leadership that the respondent agreed to conduct the Tulloch, Chadwick and MacFie investigations and provide the results to MK, despite knowing that MK had selected the consultants who were to be investigated by reference to their race.

[780]In early January 2021, her organisation had significant adverse findings of race discrimination and public interest disclosure detriment made against it by the Morris Tribunal.

[781]In March 2021, she had led a review of the ‘learning lessons and actions’ with the respondent’s executive team following the judgment. She arranged for training in civility and unconscious bias in response.

[782]By the end of 2021, her organisation faced a second set of proceedings presented again by MK; this time, JG herself was named as an alleged perpetrator. That claim was settled.

[783]In April 2022, JG was still personally dealing with the aftermath of the Morris Tribunal findings. She corresponded with the GMC about the complaints made to it by MK, including that made of the claimant. She described the claimant to the GMC as a ‘highly regarded and esteemed clinician and leader’.

[784]It is difficult against that background to accept that she was anything other than acutely aware of the impact of these proceedings on the claimant.

[785]Having issued proceedings in which the claimant made claims of race discrimination and harassment related to race, he wrote to JG directly on 13 June 2023, out of desperation, drawing her attention to the history.

[786]He received no response from her.

[787]Eleven days later, at a case management hearing, the respondent consented to an amendment to add a complaint that the respondent had not responded to his correspondence to JG or provide him with a remedy for his complaint that ‘MK selectively reporting concerns on me and other colleagues of Indian origin maliciously with false accusations. The respondent has sufficient proof but failing to act and provide remedial measures’ . It was a serious complaint to make.

[788]JG responded to the claimant in a conspicuously short response on 24 June 2023, informing him that the ‘correct route’ would be to raise a grievance and to seek support from the Freedom to Speak Up Guardian or the Head of Employee Relations.

[789]The claimant had already raised his concerns with a panoply of members of senior management and officers acting on behalf of the respondent over the last five years. He raised his concerns with the investigation team in 2018, with SP in 2019, he informed the respondent’s Medical Director, DD, of his intention to submit a grievance in 2021. He raised a formal grievance in 2022. The respondent’s own, independently commissioned investigator, LB, recommended a review of the reports that MK made, but the respondent decided to ignore it. He spoke to and/or corresponded with LJ (Independent Lead Investigator), Catherine Conner (People Business Manager) Jen Wallbank (Head of Employee Relations), Fiona Gray (Freedom to Speak Up Guardian). Suzy Cook (Chief People Officer) was aware of MK’s conduct towards the claimant’s secretary and she had spoken to LB. JA (Head of Patient Safety), KMcL (IG Manager) and ND (Head of IG) were aware of the claimant’s request for access to patient records.

[790]In the middle of that chronology sits JG’s own direction to DD to require the claimant to relinquish his role as GOSW as the price to pay for submitting his grievance.

[791]We are unsurprised that, in those circumstances that the claimant regarded JG’s response as ‘insulting’. We cannot disagree.

[792]We consider the respondent was acutely aware of the paucity of JG’s response because two months later, in August 2023, it took it upon itself to tell the claimant that it was to commission a second, independent investigation into the matters the claimant had raised in his email to JG: the claimant no longer had to do as JG suggested and submit a further grievance.

[793]Having promised as much to the claimant, it then excluded from GB’s remit the very complaint that the claimant had been raising for the previous five years. It did so even though the claimant had presented a complaint of race discrimination to this tribunal in April 2023.

[794]We are satisfied that the claimant has established a prima facie case that a hypothetical comparator in materially the same circumstances would have been treated more favourably than the claimant.

[795]We turn to the respondent for its explanation for the treatment.

[796]We have not heard from JG, and the respondent does not explain why we have not received any evidence from her. We cannot look to DD for evidence of her motivation, since on his evidence, JG had no conversation with DD about the claimant’s email, or her response.

[797]The respondent observes that the claimant did, in fact receive a response from JG, and so, for that reason, the complaint must fail. The claimant had not received even a ‘holding response’ from JG when the parties agreed to the relevant amendment. Further, and in any event, the claimant complains of a lack, at any stage, of a substantive response from JG.

[798]The respondent volunteers, as an explanation, DD’s evidence that JG had ‘stepped out of the role of chief executive’ in April 2023 until September 2023, as she approached retirement, and that Neil Atkinson, Managing Director ‘was appointed’. That explanation gives rise to more questions than it answers. JG corresponded with the claimant in June 2023 in her Chief Executive capacity. If DD’s evidence is correct, we might have expected to see a reference to Neil Atkinsn in JG’s response, or a response directly from him, even.

[799]It is no part of the respondent’s explanation that the quality of her response was dictated by the fact that litigation was underway; even if it had been, we might have expected that to be reflected somewhere in her response.

[800]The respondent has not placed before us a cogent explanation for the treatment alleged.

[801]We take the view that the reason why JG’s response was inadequate was because she was perfectly aware of the long history of challenges that MK’s behaviour had presented to the respondent and to the claimant personally. In other words, we are satisfied that she knew that the claimant’s central complaint had substance. Her response was, at best, deflecting, of her responsibility to ensure that the claimant’s concerns, were properly addressed by her own organisation.

[802]The claim of direct race discrimination is well founded and, in the circumstances, we have not addressed the alternative claims of harassment related to race or public interest detriment. Time Limits

[803]Only the last of the complaints that we have upheld was made within the primary time limit (as extended by ACAS early conciliation provisions): the claimant was given permission on 24 June 2023 to include a complaint that JG had failed to respond to the claimant’s email of 13 June 2023. Conduct Extending Over a Period

[804]We first consider whether that last complaint forms part of an ongoing situation or continuing state of affairs: Hendricks. If so, it will amount to conduct extending over a period which is to be treated as being done at the end of the period: s.123(3) EqA 2010.

[805]There is, in our view, one clear theme that emerges from the complaints that we have upheld, namely the respondent’s repeated refusal to entertain the claimant’s complaint of race discrimination. As the claimant’s requests became increasingly explicit, so too was the respondent’s refusal.

[806]In October 2018, the investigation team ignored the claimant’s complaint that MK was selective about the consultants he chose to complain about. In December 2019, SP failed to revert to the claimant despite acknowledging that MK’s conduct merited further consideration. In October 2021, the respondent sought to deter the claimant for seeking to submit a complaint of race discrimination and then penalised him by removing him from his GOSW role. Between March 2022 and September 2022, it withheld LB’s investigation report into his grievance from the claimant. Finally, in June 2024, JG, who was the last person to whom the claimant might make an effective plea initially failed to respond, and then when she did, suggested that the ‘correct route’ was to submit a further grievance, having herself directed that the claimant should be removed from his GOSW role when he did so in 2022.

[807]Accordingly, we find the following complaints were made in time because they form part of an ongoing situation or continuing state of affairs, the last of which was presented in time:a. Allegation 3.4 – direct race discrimination - that the respondent failed to investigate the concerns reported to the investigation team

b. Allegation 3.8 – direct race discrimination - that the respondent failed to revert to the claimant about concerns reported to SP

c. Allegation 13.3.2 – victimisation - that the claimant was told that if he were to submit a grievance of race discrimination, he must step down from the role of GOSW

d. Allegation 13.3.1 – victimisation - that the claimant was removed from the role of GOSW

e. Allegation 3.19 – direct race discrimination - that the respondent failed to disclose to the claimant LB’s grievance investigation report

f. Allegation 3.26 – direct race discrimination - that the respondent’s Chief Executive failed to act on the claimant’s email of 13 June 2023 Just and Equitable Extension of Time

[808]The remaining complaints that we have upheld are presented long after the expiry of the primary time limit.

[809]We turn to address whether they were brought within ‘such other period as the employment tribunal thinks just and equitable’: s123(1)(b). In other words, we must decide whether it is just and equitable to extend the time for bringing these claims. Allegation 3.1 – disclosing the claimant’s name at a meeting on 11 May 2018

[810]We consider the following factors to be relevant, although none of them are decisive: the incident occurred some 5 years before the claim form was presented and there is a public interest in enforcing time limits; the claimant has no explanation for that significant period of delay; it was not a complaint that the claimant made in his grievance of January 2022, or in his letter to JG of June 2023; the respondent advanced no evidence of prejudice; it does not identify in its submissions any forensic prejudice it was likely to have suffered; this complaint is a mirror complaint of one made by MK in respect of the same meeting and in respect of which DD was interviewed by SP and gave evidence in respect of at the Morris Tribunal.

[811]We remind ourselves that there is no requirement that time cannot be extended in the absence of a reason for the delay and furthermore, there is no principle of law which dictates how generously or sparingly the power to extend time is to be exercised.

[812]We consider the most significant factors are as follows. If we were to refuse to extend time for presentation of this complaint, the prejudice suffered by the claimant is to close the door to a successful complaint. By contrast, the event that forms the factual basis is something that the respondent has been revisited not only in the context of the grievance investigation conducted by SP in 2019, but also within the context of MK’s Tribunal hearing in 2020. MK complained that he was identified, or was identifiable, at the meeting on 11 May 2018. The claimant complains that his identity was made known at the same time. CT was not called in this hearing to give evidence, for reasons that were not explained to us. DD, who was interviewed by SP about the same meeting in relation to MK’s complaint, and who gave evidence to the Morris Tribunal was able to state only that CT chaired the meeting. No minutes of the meeting were created and whilst we acknowledge that ordinarily, there would be some degradation of evidence, the facts and circumstances surrounding that meeting have been alive to the respondent for 3 years after it occurred. The respondent does not advance evidence of prejudice and we are not of the view that the respondent has suffered significant prejudice by the effluxion of what we acknowledge is a significant period of time.

[813]Weighing the relevant factors, we are persuaded to extend time on a just and equitable basis for the presentation of this complaint. Allegation 3.2 – the respondent failed to investigate the claimant’s report of 14 May

[814]Similar considerations to those above apply in this instance.

[815]Factors that are relevant to our considerations include: the length the delay in presenting a complaint to the Tribunal; the lack of any reason for the delay; the circumstances in which the claimant came to submit a Datix in June 2018 about a matter he learned of in early January 2018 was in central issue in MK’s first Tribunal claim presented in 2019; AA gave evidence about the matter at the Morris Tribunal in 2020; the claimant included this complaint in his grievance of January 2022; both AA and JA were interviewed by LB in early 2022 about it; the claimant did not know until September 2022 what the outcome of his grievance was, because the respondent withheld LB’s report from him; his appeal against the grievance outcome was provided in November 2022; the claimant commenced ACAS early conciliation by 30 January 2023 and presented his claim on 13 April 2023; the respondent has adduced no evidence of prejudice; it does not submit it has suffered any forensic prejudice.

[816]In our view, the respondent had kept under scrutiny the claimant’s complaint since the respondent utilised the claimant’s Datix as one of the matters for investigation into MK’s conduct. It chose to use the claimant’s complaint as grounds for a conduct investigation rather than a clinical investigation for reasons that no respondent witness can share with us. Thereafter, the subject matter of the claimant’s complaint was in issue before the Morris Tribunal when AA gave evidence about it. For one year between end of 2020 and beginning of 2022, the claimant did not advance this complaint with his employer. Between January 2022 and 2 November 2022, the claimant sought to have his complaint dealt with internally; it was the subject matter of his grievance (issue 1). Both AA and JA were interviewed by LB. Once the outcome of the grievance appeal as known, there is a relatively modest delay before the claimant commenced ACAS Early Conciliation and subsequently presented his complaint on.

[817]In truth, the respondent’s position has not changed in that time. When AA gave evidence to the Morris Tribunal, he said that he had redirected the claimant to the Patient Safety Team. In January 2022, he told LB that he was advised by HR to distance himself from MK. Also in January 2022, as with her evidence to us, JA advised LB that she regarded responsibility for investigation lay with the ‘local team’ i.e. AA.

[818]We consider the prejudice to the claimant if were not to extend time and deny the claimant a successful complaint considerably outweighs the prejudice to the respondent. The pattern of the respondent redirecting the claimant to others to take action is not unusual to this complaint.

[819]On that basis, we are persuaded to extend time on a just and equitable basis for the presentation of this complaint. Allegation 3.13 - In November 2021 and June 2022, MK spoke to the claimant’s secretary

[820]On each of the occasions above, the incidents occurred around the time that the claimant was notified by the GMC that it was investigating his fitness to practice; on our findings they occurred because MK knew that the GMC would be opening an enquiry on each occasion.

[821]In relation to the November 2021 incident, the claimant raised a grievance in January 2022. It was investigated and LB upheld the complaint in March 2022, but the claimant was not aware of this until 20 September 2022, because the respondent had withheld the report from him.

[822]By that time, in June 2022, a similar incident occurred, but this time the claimant did not submit a grievance.

[823]The claimant provides no reason for the delay in presenting his claim to the Tribunal. On the information available to us, there is some evidence to suggest that the claimant’s referrals to the GMC, and his own divorce, took his attention away from these and other matters: claimant’s email to JG on 13 June 2023.

[824]There is a public policy interest in ensuring that complaints to the Tribunal are made promptly; if we were to apply the time limit strictly, it would deny the claimant a remedy for complaints that we have upheld as successful. The respondent has not adduced evidence of prejudice and nor does it submit it has suffered any forensic prejudice. We would have had difficulties in accepting that the respondent has suffered any prejudice given that we regard MK to be an unreliable witness of fact and furthermore, the respondent has withheld without explanation relevant witness and documentary evidence about the incident in November 2021.

[825]Having regard to the matters above, we consider it is just and equitable to extend time for presentation of these complaints. Allegation 3.12 – Failure to investigate the 15 patient cases contained in the claimant’s grievance

[826]The claimant first raised these cases in his grievance dated January 2022. He sought to resolve his concerns internally. There is a public interest in allowing the parties to resolve their differences without recourse to litigation. He did not know of the outcome of his grievance until 20 September 2022. His complaint of race discrimination was not investigated by LB, but she made a recommendation that MK’s reporting patterns be reviewed; that recommendation, in our view, left open the possibility that the respondent would conduct an investigation into the claimant’s complaint of race discrimination as he had formulated it i.e. by comparing his reports with the 15 patient cases that the claimant contended were open to MK to report, but did not. The claimant’s appeal was rejected in a letter dated 2 November 2022, in which the panel provided a rationale that even we found difficult to follow. Nevertheless, it was therefore not until 2 November 2022 that the claimant was certain that the respondent had no intention of looking at either his race discrimination complaint or the 15 cases which he raised in his grievance and which he considered were important to mount a defence to any formal allegation of race discrimination made by the GMC. This is the date we treat as being the date on which the respondent decided not to investigate the claimant’s 15 patient cases: s.123(3)(b).

[827]We therefore look at the period between 2 November 2022 until 13 April 2023 when the claimant presented his claim form noting that he did not until January 2024, 9 months after he presented his claim form, agree to ‘park’ his concerns until such time as the GMC sought further information. In that period, the claimant took it upon himself to obtain the records himself. We have had regard to the claimant’s email to LJ on 6 August 2023. We consider it encapsulates the claimant’s efforts to obtain information internally, and the respondent’s knowledge of his actions, starting with speaking with the IG team in early January 2023. Having regard to the contents of his email to LJ, it is difficult to see who else the claimant might have turned to resolve his concerns without resorting to litigation; the respondent does not identify who else he might have written to. We have heard from three of the people to whom the claimant referred to in that email: JA, KMcL and DD; at GB’s direction, the claimant wrote to DD for an explanation, yet the respondent cannot explain its failure to investigate the 15 cases the claimant reported.

[828]We regard the contents of the claimant’s email as summarising an approach of direction and redirection that is not atypical of the respondent’s behaviour towards the claimant generally.

[829]The respondent adduced no evidence of prejudice suffered by the delay in the presentation of the complaint; it makes no submissions about forensic prejudice either; we are able to identify only the public policy interest of pursuing complaints in a timely manner. If we were not to extend time the claimant would not have a remedy for what we have determined to be an unlawful act.

[830]Weighing the relevant factors, we are satisfied that it is just and equitable to extend time until the presentation of the claim form. GMC referrals

[831]We consider the two sets of referrals to the GMC made by MK to each amount to a one off incident that had continuing consequences.

[832]In the first notification, MK wrote to the GMC in February, April and July 2021. The claimant was notified of the GMC’s intention to review his fitness to practice on 20 September 2021. It closed its enquiry on 7 March 2024 i.e. almost a year after the claimant presented his claim form.

[833]We consider the following factors to be relevant: if we take the date of the detriment as MK’s correspondence with the GMC (as opposed to the date on which the claimant was notified by the GMC of its intention to open an enquiry), the claimant presented his claim form almost two years after the expiry of the primary time limit; he has advanced no explanation for the delay; there is some evidence before us that the claimant’s delay in presenting his claim is attributable to his attendance to the GMC enquiry; if we were to refuse to extend time, that would deprive the claimant of a remedy for an unlawful act; the respondent was itself heavily involved in the GMC’s enquiry; the matter was not closed until almost a year after the presentation of the claim form; the respondent has adduced no evidence of prejudice caused by the late presentation of the claim form; there is nothing before us to suggest that MK or the respondent has suffered any forensic prejudice by the delay in making the complaint.

[834]Weighing up those factors, we consider it just and equitable to extend time for the presentation of the complaint relating to the first GMC referral / notification.

[835]The second GMC enquiry related to the type of surgery conducted by the claimant. On the evidence before us, MK first wrote to the GMC about this matter on 30 October 2019. However, the only evidence before us about the state of the claimant’s knowledge is that he was notified of it by the GMC on 12 May 2022. Indeed, there is evidence before us to suggest that the GMC had overlooked this subject matter as part of rule 12 review into a matter bearing a different case number altogether. We therefore consider the date of the claimant’s knowledge of this second matter as a relevant factor in our considerations.

[836]It was another 11 months before the claimant presented a complaint about this matter to the Tribunal. The claimant has adduced no evidence of the reason for the delay, but again, we are aware from his email to JG in June 2023 that attending to the GMC enquiry had occupied at least some of his time. To refuse to extend time would deny the claimant a remedy for an act that we have determined was unlawful.

[837]Again, the respondent knew of, and was involved in, the claimant’s GMC referral: it wrote to the GMC to confirm it had conducted no such procedures in the preceding 5 years. It has adduced no evidence of any prejudice to the respondent in the delay in presenting the complaint and its ability to defend itself; there is nothing before us to suggest that MK or the respondent has suffered any forensic prejudice by the delay in making the complaint.

[838]We exercise our discretion to extend time on the basis that, having regard to the factors above, it is just and equitable to do so. Approved by: Employment Judge Jeram 27 March 2026 Notes All judgments (apart from judgments under Rule 51) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimants and respondents. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found here: www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practicedirections/ LIST OF ISSUES Jurisdiction

LIST OF ISSUES

[1]Discrimination claims (Equality Act 2010)1.1 Are the Claimant’s claims brought in time within the period set out in s.123 (1)(a) and 140B of the Equality Act 2010? The Respondent’s position is that anything before 31 October 2022 is out of time for the purposes of s123(a) and 140B.

1.2 Do the claims on any ground form part of a conduct extending over time under s.123(3)(a) of the Equality Act or are they distinct acts?

1.3 If not in time, would it be just and equitable for the Tribunal to extend time for submission of these claims under s.123(1)(b) of the Equality Act 2010?

[2]Public interest disclosure claims (Employment Rights Act 1996)2.1 Are the Claimant’s claims brought in time within the period set out in s48(3)(a) of the Employment Rights Act 1996? The Respondent’s position is that anything before 31 October 2022 is out of time for the purposes of s48(3)(a).

2.2 If not in time, has the Claimant’s claim been brought within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months as set out in s48(3)(b) of the Employment Rights Act 1996? Direct Race Discrimination (s13 Equality Act 2010)

[3]Did the Respondent do the following things? The Claimant relies upon the following alleged acts:3.1 11 May 2018, CT, disclosed publicly at a meeting of all consultants in the Department that 25 clinical incidents were reported against Indian consultants by MK, two of which were against the Claimant.

3.2 14 May 2018 – the Respondent failed to take statements from junior doctors and investigate after the Claimant raised concerns as part of his Guardian of Safe Working duties.

3.3 18 September 2018 – the Respondent failed to follow its Raising Concerns Policy and undertake a clinical investigation following the Claimant raising two serious clinical incidents regarding MK’s clinical practice while on call with MK to RD and AA.

3.4 9 October 2018 – at a disciplinary investigation meeting held by CG and TL, the Respondent failed to investigate concerns raised by the Claimant that MK was selectively reporting incidents.

3.5 14 December 2018 –CG and TL breached the Claimant’s confidentiality by sharing his DATIX of 6 June 2018, emails of 14 May 2018 and 18 September 2018 with MK without anonymising them, and used them for the improper purpose of re-opening a discussion about communication issues.

3.6 . . .

3.7 . . .

3.8 6 December 2019 – SP failed to take make any recommendation in relation to MK when he accused the claimant of framing him by talking to other colleagues working with the Respondent (despite SP investigating this and finding that it was MK who had been falsifying these allegations).

3.9 . . .

3.10 February 2021 – The Respondent’s Medical Director, Clinical Director, and Head of Patient Safety Team, failed to strictly adhere to the need to report concerns raised by the Claimant about MK using Datix.

3.11 . . .

3.12 5 January 2022, LJ failed to investigate the 15 patient safety incidents reported by the Claimant against non-Indian consultants, including MK, which were included in his grievance letter.

3.13 In November 2021 and June 2022, MK spoke to the Claimant’s secretary in a patronising manner, stating that the Claimant had a ‘tough year ahead’ and that he feels pitiful. (Both incidents occurred one month after each GMC referral).

3.14 The Claimant had two periods of time off sick: 7 October 2021 to 10 January 2022 and 6 April 2022 to 29 July 2022, – the Respondent failed to support the Claimant’s phased return to work, in contrast to non-Indian colleagues who were sick for a long period of time and were treated well and all reasonable adjustments were made for them to return to work fully. In particular:3.14.1 In relation to the return to work after 10 January 2022 the Respondent (AC) failed to complete an appropriate Individual stress risk assessment as recommended.

3.14.2 . . .

3.14.3 In relation to the return to work after 10 January 2022, the Respondent asked the Claimant to take on duties outside his return-to-work agreement, namely on 15 February 2022 EC by email after prior verbal requests, requested the claimant to operate on complex patients on the waiting list.

3.14.4 In relation to the return to work after 10 January 2022, the Respondent failed to provide the Claimant with a junior team as it had to other colleagues, to support his clinical activities.

3.15 The Respondent’s Medical Director, in discussion with its CEO, did not permit the Claimant to chair the Doctors in Training Forum as a GOSW for a period of 4 months from October 2021 to February 2022

3.16 . . .

3.17 6 January 2023 – KMcC and ND, head of information governance, did not allow the Claimant to access patient information on GDPR grounds (in contrast to MK who had been allowed to access patient information in May 2018)

3.18 . . .

3.19 20 September 2022 – the Respondent did not follow the grievance policy (Grievance Policy and Procedures HR2 v11) regarding time limits (section 2.4, 2.5 & 2.6 which states the appointed manager will provide the employee the outcome letter containing the complaint, background information, the decision, and the proposed solution, 5 working days of the grievance meeting) by not providing an outcome to the claimant until 20 September 2022 at 16.38 (9 months after submission of the grievance).

3.20 On 13 January 2022 the Respondent moved all the claimant’s clinical sessions to theatres 9 and 10 at University Hospital of North Tees (in response to his request that he have minimal contact with MK so that the ongoing GMC investigation will not be compromised) which have poor facilities, cramped conditions and a higher risk of infection, instead of giving him main theatre sessions.

3.21 On 1 November 2022 the Respondent’s CEO failed to advertise, or make the Claimant aware of, an additional award category “Outstanding contribution to the Respondent award” which was subsequently awarded to MK.

3.22 . . .

3.23 . . .

3.24 On 5 December 2022 Lisa Johnson:3.24.1 told the GMC in an email that the Claimant had not done an appraisal for MK in the past when she knew that to be false;

3.24.2 forwarded a document from the tribunal proceedings which stated that he had not done an appraisal for MK in the past; and

3.24.3 misfiled the claimant’s details so that she could not tell the Claimant what she has sent to the GMC.

3.25 . . .

3.26 On 16 June 2023 the Respondent’s CEO failed to act on the Claimant’s email to her of 13th June 2023, and instead suggested that he put in another grievance.

3.27 In February 2023 KE, the new Clinical Director, discontinued a WhatsApp group “Fox and Fistula”.

3.28 . . .

3.29 MK referring the claimant to the GMC in October 2021, May 2022 and provided false and detrimental information to the GMC on 24 January 2023. He has done this on racial grounds because the claimant is Indian. The Respondent failed to challenge and allowed this.

[4]Was that less favourable treatment?4.1 The Tribunal will decide whether the Claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the Claimant’s except for the Protected Characteristic. The Claimant relies upon both “MK” and a hypothetical character.

4.2 If there was nobody in the same circumstances as the Claimant, the Tribunal will decide whether he was treated worse than someone else would have been treated. 5 if so, was it because of race, namely the Claimant’s Indian origin? Harassment related to race (s26 Equality Act 2010)

[6]Did the Respondent or those acting on its behalf do the following things? The Claimant relies upon the alleged acts in paragraphs 3.1 – 3.29 above. If so, was that conduct unwanted conduct?

[8]If so:8.1 was the conduct set out in paragraphs 3.1 to 3.29 above related to the Claimant’s Indian origin; and/or

8.2 was the conduct set out in paragraphs 3.10 to 3.18, 3.20 to 3.27, 3.29 related to the race discrimination claim brought by MK against the

[9]If so, did the conduct have the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant?

[10]If not, did the conduct have the effect of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant? In considering whether the conduct had that effect, the Tribunal will take into account the Claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

[11]Did the Respondent’s treatment amount to a detriment? Victimisation (s27 Equality Act 2010)

[12]Has the Claimant carried out a protected act? The Claimant relies upon the following as protected acts:12.1 9 October 2018 – In an investigation meeting with CG and TL the claimant verbally raised discrimination concerns against MK into his conduct of reporting incidents selectively. The claimant stated that, “MK was selective in who he wanted to choose and had left out the other three Consultants (meaning MT, CH & OA) who were there at the time which showed favouritism, it should have been done generically as it was not a fair way to whistle blow.”

12.2 23 September 2020 – Claimant appeared as a witness on behalf of the Respondent in an Employment Tribunal.

12.3 On 21 October 2021 the claimant in a meeting with DD verbally confirms that he will be submitting a formal grievance of racial discrimination. The claimant during the meeting stated that, “MK has selectively ignored complications under MT, CH, OA and himself and reported only Indian consultants. MT caused burns to a patient, CH has the highest complication rate in breast surgery and MK had left a gall bladder behind while performing a laparoscopic cholecystectomy, misleading, and causing harm to the patient”.

12.4 5 January 2022 – Claimant submits a formal grievance of racial discrimination, race harassment and victimisation together with raising health and safety concerns linked to patient wellbeing and safety.

12.5 5 January 2023 – Claimant raises concerns with Deputy Medical Director Dr SN verbally in theatre 9&10 recovery stating that, “Mr CT, his predecessor failed to investigate junior doctor and patient safety concerns that I had raised. The Trust continues to appoint white applicants selectively to senior medical management roles. I was unable to apply for Care Group 3 Lead position.” Dr SN stated, “That he had also complained in an email about it at the time when the selection was made, and it was the reason he got the shared Deputy Medical Director role with EG.” I asked him, “Can you give consent for me to obtain your email from the Trust.” He replied, “I have no objection to you getting my email from the Trust.”

12.6 On 23 March 2023 the claimant raises concerns with Freedom to Speak Up Guardian verbally stating that, “Indians were treated less favourably forming a group within a group, which contrasts with what I have been referred to the GMC. MK has quoted as per the previous Tribunal judgement that I belonged to a favourably treated group (Indian) hence my allegations against him were of a racist nature. I have produced a list of information that would show that this was incorrect. I have requested this information through SAR, but without success. The Respondent had upheld in my grievance to provide medical expert reports on the clinical incidents and will fund this. It has not done this.” The FTSU called CC immediately and in front of the claimant handed this list of information to be processed and provided to the claimant as per appropriate policies. The claimant sent the documents in an email on the same day as requested by CC.

12.7 3 April 2023 the claimant formally wrote to KE and LJ and raised concerns that the Respondent has not followed ACAS Code of Conduct, resulting in less favourable treatment of Indians, including the Claimant, in the department.

12.8 13 June 2023 – Claimant raises concerns to the Respondent’s Chief Executive about MK, and the Respondent’s behaviour which included, failure to support or respond to concerns, failure to act upon Grievance Appeal recommendations, failure to discipline MK, and less favourable treatment towards Indians including the claimant, by email.

[13]If there was a protected act, has the Respondent or those acting on its behalf subjected the Claimant to detriment because he had done a protected act or it was believed that he had done or may do a protected act? The Claimant relies on the following detriments:13.1 The conduct referred to in paragraph 3.4 above.

13.2 . . .

13.3

13.3.1 JG and DD removed the Claimant from GOSW duties from 21 October 2021 onwards, at a vulnerable time when he was facing a GMC investigation.

13.3.2 The claimant was informed by DD, “You cannot hold any corporate managerial posts while submitting a grievance against the Trust. JG and I agree that you should step down from this post immediately”.

13.3.3 The Claimant was unable to apply for the Deputy Medical Director vacancy advertised on the 22 December 2021. The claimant had applied for this post in the past and it was given to CT.

13.4

13.4.1 The conduct referred to in paragraph 3.12 above.

13.4.2 The conduct referred to in paragraph 3.20 above.

13.4.3 On 15 February 2022 EC failed to comply with the Claimant’s return to work agreement.

13.4.4 . . .

13.4.5 On 28, 29 & 31 March 2022 the Respondent did not provide junior support for on call and elective duties, resulting in a second episode of sickness for the claimant.

13.4.6 . . .

13.4.7 On June/July 2022 the Respondent failed to protect the claimant from harassment by MK humiliating the claimant in conversations with his secretary.

13.4.8 . . .

13.4.9 . . .

13.4.10 On 12 December 2022 failed to provide the claimant with a job plan resulting in unplanned overbooked clinics (25 April 2023) and theatres (26 April 2023).

13.4.11 On 20 January 2023 the Respondent removed on call duties from the claimant’s job plan.

13.5 . . .

13.6 . . .

13.7 . . .

13.8 . . .

[14]If so, was it because the Claimant did a protected act?

[15]Was it because the Respondent believed the Claimant had done, or might do, a protected act? Protected Disclosure, or ‘Whistleblowing’ (section 47B Employment Rights Act 1996)

[16]Did the Claimant make a protected disclosure in any of the ways set out in the attached Schedule?

[17]If so, has the Respondent or those acting on its behalf subjected the Claimant to a detriment on the grounds that he made a protected disclosure? The Claimant relies on the following detriments:17.1 MK reporting him to the GMC in October 2021

17.2 MK reporting him to the GMC in May 2022

17.3 The conduct set out at paragraphs 3.5, 3.6, 3.8, 3.9, 3.11, 3.12, 3.13, 3.14.3, 3.16, 3.21, 3.26, 13.2, 13.3 and 13.4 above

[18]Was the Respondent vicariously liable for those acts allegedly carried out by MK? If so, which acts?