Mr V Raghavakurup (aka Mr Kurup) v North Tees and Hartlepool NHS Foundation Trust: 2501513/2023
EMPLOYMENT TRIBUNALS
Case No 2501513/2023
Between
Mr V Raghavakurup (aka Mr Kurup)ClaimantNorth Tees and Hartlepool NHS Foundation TrustRespondent
Before
Employment Judge T.R. SmithIn person for claimantMs Levene ( (instructed by counsel)) for respondentDate 27 June 2024
JUDGMENT
[1]The claimant’s complaint of direct race discrimination is not well founded and is dismissed.[2]The claimant’s claim of harassment related to race is not well founded and is dismissed.[3]The claimant’s complaint of victimisation is not well founded and is dismissed.[4]The claimant’s complaint of being subjected to a detriment for making protected disclosures is not well founded and is dismissed.[5]Further or in the alternative the claimant’s complaints of discrimination were not presented within the time limit set out in section 123 Equality Act and it was not just and equitable to extend time.[6]The claimants claim of being subjected to a detriment on the ground he made a protected disclosure(s) was not presented within the time limit set out in section 48 Employment Rights Act 1996 or within such further time as the tribunal considered reasonable. Written reasons supplied pursuant to a request by the claimant 1.Definitions 1.1.EQA 10. The Equality Act 2010. 1.2.ERA 96. The Employment Rights Act 1996. 1.3.GMC. The General Medical Council, the independent regulator of the medical profession. 1.4.JPI. Judicial Proceedings Immunity. 1.5.The Blount report. An external independent investigation into the claimant’s grievance. 1.6.Guardian of Safe Working. A consultant having particular responsibility for monitoring the hours and workload of junior doctors to ensure they practice safely. 1.7.Responsible Officer. A doctor, usually the medical director who is accountable for the local clinical governance processes in an NHS trust, with particular emphasis on the conduct and performance of doctors. A Responsible Officer is involved in the revalidation of a doctor’s fitness to practice. 1.8.LC, a laparoscopic cholecystectomy, a medical procedure. 2.The evidence 2.1.The tribunal had before it a master bundle which initially totalled 562 pages. By consent further documents were added during the hearing and the final bundle totalled 607 pages. 2.2.The parties were reminded of the importance of taking the tribunal to such document or documents that they considered relevant to support their contentions. 2.3.The tribunal had placed before it a number of witness statements, as set out below. 3.On behalf of the claimant 3.1.The claimant’s witness statement dated 10 June 2024. 3.2.A statement of Mr. B. Gopinath dated 28 March 2024. 3.3.A statement of Mr. P. Bhaskar dated 08 April 2024. 3.4.A statement of Mr. M. Dordea dated 08 April 2024. 3.5.Ms Levene indicated she did not challenge the evidence of either Mr. Gopinath or Mr. Dordea and their evidence was taken as read. 4.On behalf of the respondent 4.1.A statement of Mr. M. Kassem dated 08 April 2024. 4.2.A statement of Mr.a. A. Dwarakanath dated 08 April 2024. 4.3.A statement of Ms. L. Johnson dated 08 April 2024. 5.The key personalities. 5.1.Mr. A. Agarwal, Consultant Surgeon, Clinical Director of the respondent from July 2016. 5.2.Mr. P. Bhaskar, Consultant General Surgeon. 5.3.Ms. L. Blount, External grievance investigator. 5.4.Ms. S. Cook, Chief People Officer. 5.5.Mr. A. Dwarakanath Consultant Physician, Medical Director and Gastroenterologist . 5.6.Mr. M. Dordea, Consultant Surgeon. 5.7.Ms. J. Gillon, Chief Executive of the respondent. 5.8.Mr.b. B. Gopinath, Consultant Surgeon. 5.9.Ms. L. Johnson, Workforce Business Manager. 5.10.Mr. M. Kassem, Consultant Surgeon. 5.11.Mr. V. Kurup, the claimant, Consultant Surgeon. The claimant utilised this shortened form of his surname and this explains the discrepancy between his full name and the documentation. 5.12.Mr. G. Raffelle, Deputy People Officer; Case Manager for the claimant’s grievance. 5.13.Mr.c. C. Tulloch, Consultant Surgeon and formerly Deputy Medical Director (now retired). 6.The issues 6.1.At a hearing before Employment Judge Jeram, held on 31 October 2023 the parties agreed the issues. They were given the opportunity to object if there was any misstatement , omission or error contained therein. Other than the claimant providing some limited further clarification in an e-mail of 23 November 2023, there was none. 6.2.This tribunal expressed concern that the claimant’s proof appeared to go beyond what were the previously agreed issues. If the claimant proceeded on the basis of his statement it would not be fair to the respondent without giving it an opportunity to call evidence in rebuttal and seeking an amendment to the list of issues. Even if an amendment was granted to the list of issues, (the tribunal having reminded itself that they are not set in stone, Millin -v- Capsticks Solicitors LLP EAT/0093/14,) an adjournment was almost inevitable and that could attract a cost application from the respondent. The claimant indicated, having been given time to reflect, that he was content with the agreed issues and any additional information was contextual background. Ms Levene indicated she was happy to proceed on that basis. 6.3.An issue arose in respect of whether the respondent could withdraw a concession made in its amended response namely that the claimant’s grievance was a protected act for the purposes of his victimisation claim. For the oral reasons the tribunal gave, the respondent was held to its unambiguous concession. 6.4.At the start of the hearing this tribunal went through the issues and obtained further clarification and concessions on certain points and it was agreed that the only points the tribunal had to decide were as set out below.[7]Time limits 7.1.Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 03 January 2023 may not have been brought in time. Were the discrimination and victimisation complaints made within the time limit in section 123 EQA10 The tribunal would decide:-• Was the claim made to the tribunal within three months (plus early conciliation extension) of the act to which the complaint related?• If not, was there conduct extending over a period? 7.2.If so, was the claim made to the tribunal within three months (plus early conciliation extension) of the end of that period? 7.3.If not, were the claims made within such further period that the tribunal thought was just and equitable? The tribunal would decide why the complaints were not made to the tribunal in time? 7.4.In any event, was it just and equitable in all the circumstances to extend time? 7.5.Was the detriment complaint made within the time limit set out in section 48 (3) ERA 96? 7.6.The tribunal would decide:-• Was the claim made to the tribunal within three months (plus early conciliation extension) of the act complained of?• If not, was there a series of similar acts or failures and was the claim made to the tribunal within three months (plus early conciliation extension of the last one?• If not, was it reasonably practicable for the claim to be made to the tribunal within the time limit? 7.7.If it was not reasonably practicable for the claim to be presented to the tribunal within the time limit was it made within such further period as the tribunal considered reasonable?[8]Direct race discrimination (EQA10 section 13) 8.1.The claimant’s race is Indian and/ or a person of colour Did the respondent do any of the following things:- 8.1.1.Did the respondent fail to notify or discuss Mr. Kassem’s grievance dated 14 June 2017 with the claimant. [The respondent conceded this amounted to a detriment] 8.1.2.Did the respondent fail to notify or discuss with the claimant Mr. Kassem’s reliance upon him as a comparator in his subsequent tribunal claim ; [The respondent accepted that this amounted to a detriment save for in relation to the preparation of documents/witness statements for judicial proceedings which were not capable of amounting to a detriment due to JPI] 8.1.3.Did the respondent fail to notify or discuss with the claimant the evidence it intended to present to the tribunal in respect of Mr. Kassem’s claim which related to him, in circumstances where the respondent knew or ought to have known that it could impact upon the claimant’s fitness to practice with the GMC, and also subject him to the possibility of adverse finding by the tribunal in respect of his behaviour and integrity. [The respondent accepted that this amounted to a detriment save for in relation to the preparation of documents/witness statements for judicial proceedings which were not capable of amounting to a detriment due to JPI.] 8.1.4.Did the respondent fail to notify the claimant of the adverse findings made by the tribunal about the claimant’s conduct after the Kassem judgment was promulgated in January 2021; [The respondent conceded this amounted to a detriment] 8..1.5.Did Mr. Kassem refer the claimant to the GMC in 2021; [the respondent did not accept that this was capable of amounting to a detriment due to JPI. In the alternative Mr Kassem was not acting in the course of his employment] 8.1.6.On 13 February 2023, did the chief executive [ Ms Gillon] write to the claimant stating that it could not be legitimately said that had the respondent interviewed the claimant in 2017, the processes or events that followed would not have occurred; [the respondent did not accept the alleged factual matrix and/or that the comment amounted to a detriment] 8.2.[Initially there had been a further allegation that the claimant was constantly monitored and scrutinised by Mr Kassem. The claimant confirmed in an email to the tribunal dated 23 November 2023 it was not relied upon as a specific allegation of either direct race discrimination or harassment but was merely part of the broader factual matrix]. 8.3.Was that less favourable treatment? 8.4.The claimant relies on a comparable hypothetical white consultant. 8.5.Was that treatment because of the claimant’s race?[9]Harassment related to race (EQA 10 section 26) 9.1.Did the respondent do the following things ( the respondent’s clarifications made in respect of direct discrimination applied equally to this complaint) 9.1.1.Did the respondent fail to notify or discuss Mr. Kassem’s grievance dated 14 June 2017 with the claimant. 9.1.2.Did the respondent fail to notify or discuss with the claimant Mr. Kassem’s reliance upon him as a comparator in his subsequent tribunal claim ; 9.1.3.Did the respondent fail to notify or discuss with the claimant the evidence it intended to present to the tribunal in respect of Mr. Kassem’s claim which related to him, in circumstances where the respondent knew or ought to have known that it could impact upon the claimant’s fitness to practice with the GMC, and also subject him to the possibility of adverse finding by the tribunal in respect of his behaviour and integrity 9.1.4.Did the respondent fail to notify the claimant of the adverse findings made by the tribunal about the claimant’s conduct after the Kassem judgment was promulgated in January 2021; 9.1.5.Did Mr. Kassem refer the claimant to the GMC in 2021; 9.1.6.On 13 February 2023, did the chief executive write to the claimant stating that it could not be legitimately said that had the respondent interviewed the claimant in 2017, the processes or events that followed would not have occurred; 9.2.If so, was that unwanted conduct? 9.3.Did it relate to race? 9.4.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? 9.5.If not, did it have 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.[10]Victimisation (EQA 2010 section 27) 10.1.Did the claimant do a protected act by submitting a grievance on 07 April 2022? [The respondent accepted the grievance was a protected act ] 10.2.Has the respondent or those acting on its behalf subjected the claimant to the following detriment: – 10.2.1.Was an instruction given on 17 August 2022 by Mr. Dwarkanath, the medical director, to the claimant to stop conducting laparoscopic gall bladder surgeries at the respondent or in his private practice; 10.3.If so, was it because the claimant did a protected act?[11]Protected disclosure 11.1.Did the claimant make one or more qualifying disclosures as defined in section 43B ERA 96? 11.2.The claimant said he made disclosures on these occasions:• In a letter to Chief Executive dated 19 February 2023 in which the claimant stated “As you know, MK [ Mr Kassem] was building up a case to establish racial discrimination against him by Indian doctors. His concerns were raised against most Indian doctors in our department, and I believe that false allegations were raised against me purely because I am an Indian. I had no prior issues with him.” (disclosure 1)• At a meeting with Suzy Cook on 14 March 2023 at which the claimant stated ‘I am being referred to GMC for no faults (sic) of mine and due to the failure of the Trust to investigate the false and malicious allegations raised against me as is proven by the grievance investigation outcome. Trust should be taking steps to prevent such things happening in future for its employees and should discipline people who does serious misconducts (sic) as per the Trust’s disciplinary policy”(disclosure 2)• In a letter to Suzy Cook on 08 June 2023 when the claimant wrote “I am being referred to the GMC for no faults (sic) of mine due to the failure of the Trust to investigate the false and malicious allegations raised against me as proven by the grievance investigation outcome. Trust should be taking steps to prevent such things from happening in the future to its employees and should discipline people who commit serious misconduct as per Trust disciplinary procedure” (disclosure 3)• In a grievance dated 07 April 2022 “The Trust through Mr. Tulloch failed to undertake a robust investigation to examine evidence including case notes and job plans, and thus presented a factually inaccurate account to the Tribunal”. The Trust’s failings in these matters raise serious concerns around transparency, fairness and the responsibility to provide accurate information to the regulatory body”. ( disclosure 4) 11.3.Did he disclose information? [The respondent conceded disclosures 1 to 4 were disclosures of information] 11.4.Did he believe the disclosure of information was made in the public interest? 11.5.Was that belief reasonable? [The respondent denied the claimant reasonably believed the disclosures were in the public interest] 11.6.Did he believe it tended to show in respect of each of the disclosures that:• a person had failed, was failing or was likely to fail to comply with any legal obligation;• a miscarriage of justice had occurred, was occurring or was likely to occur; 11.7.If so, was that belief reasonable? 11.8.If the claimant made a qualifying disclosure, the respondent conceded it was a protected disclosure because it was made to the claimant’s employer.[12]Detriment 12.1.Did the respondent do the following thing? 12.1.1.Was an instruction given on 17 August 2022 by Mr. Dwarkanath, the medical director, to the claimant to stop conducting laparoscopic gall bladder surgeries at the respondent or in his private practice; 12.2.By doing so did it subject the claimant to a detriment? 12.3.If so, was it done on the ground that he made the above protected disclosure or disclosures?[13]Judicial Proceedings Immunity 13.1.Were the areas identified above subject to judicial proceedings immunity? 13.2.If so could the claimant rely upon all or part of those matters in support of his claims?[14]Observation on the issues. 14.1.The tribunal raised with the parties that harassment and direct discrimination were mutually exclusive because the kind of conduct that could amount to harassment was usually the kind of conduct that amounted to a detriment for the purposes of bringing a direct discrimination claim. Section 212 EQA 10 made it clear that the concept of detriment did not include conduct that amounts to harassment. The net effect of the legislative framework was that a person who claimed they had been harassed was obliged to bring a Section 26 harassment claim rather than a Section 13 direct discrimination although they could be brought in the alternative. This was conceded. 14.2.The parties also agreed that the tribunal would initially address the issue of liability. If it was necessary to address the issue of remedy that would be dealt with at a separate hearing. 14.3.The tribunal has only sought to address the factual disputes relevant to determine the agreed issues. It has not sought to resolve every factual dispute.[15]Findings of Fact.[16]Credibility of witnesses 16.1.The tribunal found the claimant to be a credible witness who answered questions in a straightforward manner. He made concessions when appropriate, for example accepting Mr. Kassem had not received a star award, as he initially alleged. 16.2.Mr. P. Bhaskar gave short evidence on behalf of the claimant and again the tribunal found him to be a credible witness although his command of the timeline appeared confused. 16.3.Mr. A. Dwarakanath and Mrs Johnson were, again credible witnesses. The tribunal considered that they both sought to assist the tribunal in its findings of fact. Mr. A. Dwarakanath’s evidence and reasoning as to why he curtailed the claimant’s NHS work was impressive and logical. 16.4.Whilst with Mrs Johnson there was some confusion about when she was, or was not informed by the GMC of its interest in the claimant, the tribunal considered this was simply due to the passage of time. 16.5.Mr. Kassem gave evidence on a relatively limited issue. However his evidence in respect of a line of cross examination designed to attack his credibility was extremely unconvincing and improbable which led the tribunal to having significant concerns as to his overall credibility. Given this criticism the tribunal should explain its reasoning. 16.6.Part of the claimant’s cross examination went to whether he had refused to attend the respondent’s premises to deal with an emergency. Mr Kassem alleged he contacted the claimant, at home and asked him to attend the respondent premises to assist him in an emergency procedure. The claimant always denied any such request was made 16.7.The difficulties with Mr. Kassem’s account were legion. 16.7.1.Firstly he described the procedure as an emergency but that did not correlate with how he described the operation in his notes. In addition the normal procedure was that a consultant anaesthetist should have been called if there was an emergancy (117). None was. 16.7.2.Secondly he said he telephoned the claimant who refused to attend the hospital. It was very short call and it was unlikely the alleged complications could have been explained in the period of the call. However it was undisputed that this call apparently took place before Mr. Kassem had spoken to the patient’s next of kin to obtain consent. He therefore could not have known whether the operation would even go ahead when he allegedly requested the claimant to attend. 16.7.3.Thirdly he did not document the alleged refusal in his notes. That was surprising, even bearing in mind the patient’s relatives could ask for sight of the notes, if only, to provide some protection for him. 16.7.4.Fourthly there was no evidence before the tribunal that Mr Kassem promptly completed an untoward incident form, as would have been expected form an experienced doctor.. 16.7.5.Fifthly there was a procedure if the on-call consultant did not attend, namely contacting a further consultant or the clinical director. Mr. Kassem did neither despite the apparent emergency. He asked a junior doctor to assist in the operation. The nurse in charge of the ward subsequently completed an untoward incident form because she was deprived of medical cover on the ward due to Mr. Kassem’s actions. It was only when this concern came to light that Mr. Kassem blamed the claimant. 16.8.The tribunal also noted that Mr Kassem, in his evidence, would not accept he was ever mistaken. Mr Kassem could not accept anything other than his version of events. 16.9.He also frequently failed to answer direct questions or gave unnecessary detail. For example why did the tribunal need to know a junior doctor was of Pakistani heritage and could not wash his hands properly?[17]Background 17.1.The claimant commenced employment with the respondent on 08 October 2021 and is currently employed as a consultant surgeon. He is highly regarded, having particular expertise in breast surgery, breast reconstruction and endocrine surgery. 17.2.The claimant self identifies as being of Indian heritage and a person of colour. 17.3.The respondent is the provider of integrated hospital and community healthcare servicing the population of Stockton and Hartlepool. 17.4.In order to understand the tribunal’s judgement it is necessary to deal with a number of historical matters, which are set out below.[18]The tribunal claim of Mr Kassem ( “The Kassem claim”) 18.1.Mr. Kassem is of Iraqi heritage and a doctor employed by the respondent. 18.2.On 14 June 2017 Mr. Kassem submitted a complex grievance to the respondent. It contained a number of elements, particularly as regards his working arrangements, role, job plan, management by Mr. Agarwal and others. He also raised issues as to patient safety. 18.3.As part of the grievance Mr. Kassem made reference to the working practices of a large number of other employees of the respondent both white and from ethnic backgrounds. 18.4.He believed that Mr. Agarwal favoured Indian doctors. A number of examples were given. One set of examples involve the claimant. In summary Mr. Kassem criticised the claimant lack of attendance at certain meetings and ward rounds, alleged that he undertook private practice in NHS time, that there was a lack of support when on call and the claimant had refusal to attend the hospital when requested. 18.5.It is proper to say that the main body of Mr. Kassem’s grievance centred on other concerns and not on the claimant. 18.6.The grievance was investigated. 18.7.The lead investigator was Mr. Tulloch, the then deputy medical director. He produced a report (the Tulloch report) on 19 October 2017 (502). As part of that report only four people other than Mr Kassem were interviewed. Mr Tulloch did not speak to the claimant. Equally he did not speak to Mr. J, an Indian doctor who also, ultimately, was to became a comparator in Mr. Kassem’s subsequent tribunal claim. 18.8.The report concentrated almost exclusively on the allegations against Mr. Agarwal. There were only two reference to the claimant.• One was that Mr Tulloch found the claimant had not undertaken private work in the respondent’s time but accepted there were flaws with his job plan.• Two that Mr. Kassem had contacted the claimant whilst working but there was no request for him to attend the hospital, but it should have been clear to the claimant that Mr. Kassam required support. 18.9.It is not now disputed that the report was flawed. It is appropriate to mention however that it appears Mr Tulloch did speak to some Indian doctors in the course of his enquiries, although not the claimant. 18.10.The outcome was communicated to Mr. Kassem on 19 October 2017. 18.11.Mr. Kassem was unhappy with the outcome and therefore on 12 January 2018 submitted an appeal. 18.12.A further allegation arose in the appeal, involving the claimant, in which Mr. Kassem suggested that the claimant had changed his story as regards whether a telephone call did or did not take place when, allegedly, he requested help. 18.13.For reasons that are unclear, although the appeal hearing started on 29 January 2018 it wasn’t concluded until 06 August 2018. Mr. Kassem was unhappy with the outcome, hence the subsequent Kassem claim. 18.14.In Mr Kassem’s tribunal claim form, a standard question appeared which said “if your claim consists of, or includes, a claim that you are making a protected disclosure… please tick the box if you want a copy of this form, or information from it, to be forwarded on your behalf to a relevant regulator”. 18.15.Mr. Kassem was making such an allegation and ticked the box and wrote on the form “General Medical Council” and “Care Quality Commission”. 18.16.As a result the GMC received a copy of his claim form from His Majesty’s Courts and Tribunal Service and not, directly from Mr Kassem, as was subsequently confirmed in correspondence (295). 18.17.Mr. Kassem’s principal complaints in his tribunal claim form were of discrimination on the grounds of race and having been subject to a detriment for making protected disclosures. 18.18.The claimant was one of the numerous doctors employed by the respondent, named in the claimant form. 18.19.The claimant was not a named respondent in the claim form. He was not called by the respondent to give evidence at the subsequent tribunal hearing. 18.20.Whilst the Kassem claim was proceeding the GMC looked at his claim form to determine whether any matters therein engaged their remit. 18.21.In January 2020 the GMC indicated that they had closed their file with no further action. 18.22.The claimant had not been contacted by the GMC and was totally unaware of their involvement. He was not aware of the Kassem claim in any detail. All he knew was that Mr Kassem was bringing a tribunal claim. 18.23.Eventually, following a tribunal hearing from 01 to 18 September 2020, ( the Morris judgement) the tribunal found that the respondent had through the actions of various individuals directly discriminated against Mr Kassem on the grounds of race, harassed him on the grounds of race and subjected him to a detriment following a protected disclosure (386 to 478). 18.24.The claimant was not one of those individuals whose acts were directly identified by the tribunal as having led to those conclusions. 18.25.The claimant was referred to as a comparator in the Morris judgement, identified only as Mr Q: the tribunal having made an anonymity order pursuant to rule 50 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013. 18.26.The tribunal itself described the case as “wide-ranging and complex”. It took 15 days. Its judgement ran to 93 pages. Deliberations took a further 7 days. The original bundle totalled over 3616 pages. 18.27.The breadth of the allegations made by Mr. Kassem were such that the respondent called 11 witnesses. None of those who were named by Mr. Kassem as comparators were called by the respondent. 18.28.The respondent had no reason not to call a relevant witness of Indian heritage and indeed it expressly called five such witnesses , Mr. Bhaskar, Mr. Dwarakanath, Mr Gopinath, Mr Shanmugan and Mr. Agarwal. 18.29.Mr. Kassem used a total of four comparators, Mr Agarwal, the claimant, Mr J, and Mr G, together with hypothetical comparators. All four of the comparators were of Indian heritage. 18.30.The tribunal should record, for the benefit of the claimant, it was for Mr. Kassem to choose his comparators. The respondent had no involvement in that decision . 18.31.Only Mr. Agarwal, of the comparators, was called to give evidence, but that was not because he was a comparator but because he was a key decision maker, being the respondent’s clinical director and featured heavily in the allegations in Mr. Kassem’s grievance. 18.32.One allegation upon which Mr Kassem succeeded was an allegation of direct discrimination and in particular that he was subjected to a formal disciplinary process whereas a person who he considered had behaved as badly, the claimant, had not. 18.33.In summary, and at the risk of repetition, Mr. Kassem criticised the claimant’s lack of attendance at certain meetings and ward rounds, alleged that he undertook private practice in NHS time, that there was a lack of support when on call and the claimant had refusal to attend the hospital when requested, the latter aggravated by the fact he did not subsequently tell the truth about the telephone contact between himself and Mr Kassem in relation to his alleged request for assistance. He relied, in part, to support his assertions on the Tulloch report. 18.34.It was common ground that the claimant was not subjected, unlike Mr. Kassem to formal disciplinary proceedings in respect of those allegations. 18.35.The preparation and collation of evidence for the Kassem tribunal was principally undertaken by Mrs Johnson in conjunction with the respondent’s legal advisers. 18.36.The respondent had marshalled its evidence seeking to address how Mr. Kassem had been treated by key management individuals and the decision makers in his grievance process. 18.37.The respondent did not appreciate at the time the defects in the Tulloch report when looking at the different treatment between Mr. Kassem and the claimant. There may well have been very good reasons for the difference in treatment but direct evidence on that was not before the Morris tribunal. 18.38.The respondent took a pragmatic decision to balance the need to defend the claim against the need to maintain senior clinicians treating patients. It took a proportionate response. It had to make tactical decisions and in reality the respondent left this to their legal advisers. The tactical decision was not to call any of the comparators. 18.39.The tribunal found Mrs Johnson’s evidence on this point, that the respondent took a pragmatic decision, persuasive. It was also consistent with her evidence to Ms Blount ( see below) when she said, in relation to the respondent’s failure to call the claimant ” Nobody at the time, including the legal team, realised the significance that the tribunal would put on this” (174) 18.40.Whether the respondent was right or wrong to take that stance is not the point. It is an explanation as to why it acted as it did and one this tribunal accepted. 18.41.The Morris judgement was handed down on 14 January 2021.[19]Subsequent events. 19.1.As a result of the Morris judgement, Mr. Kassem asked the GMC to review its decision to close his complaint against the claimant and others. 19.2.He sent the GMC the Morris judgement. This was not a new complaint, merely a request for a review of what the GMC had already been seized of, and which it had power to review under rule 12 of its own Fitness to Practice rules. 19.3.Mr. Kassem believed, on reasonable grounds, that the Morris judgement disclosed new matters of which the GMC were not aware of when they closed their file and which could influence their decision. This may not, in the tribunal’s judgement have been the only reason. It was clear to this tribunal that Mr. Kassem felt some animosity towards Indian consultants within the department. 19.4.Mr. Kassem identified to the GMC that Mr Q, named in the Morris judgement, was the claimant although he was aware of the anonymity order and had been advised by the GMC to consider taking advice before he revealed the details of the claimant’s identity. 19.5.The GMC reviewed their previous decision which it had closed on 28 January 2020.[20]The GMC further involvement 20.1.On 25 November 2021 the claimant received a letter from the GMC indicating they were initiating a fitness to practice investigation based on complaints made by Mr. Kassem. At this stage the claimant became aware, for the first time, of the Morris judgement, and that he was Mr. Q referred to therein. 20.2.The GMC sent similar letters to five other members of the respondent’s staff. 20.3.The decision as to whom to investigate was one for the GMC and the GMC alone. One of the doctors subject to the further investigation was a white female doctor 20.4.Naturally the claimant was extremely concerned and worried. As a result he spoke to Mr. Tulloch in late November 2021 and raised concerns about his investigation and its apparent errors, and thereafter started to collate evidence to exculpate himself. Thus he was aware that the Tulloch report was flawed at this stage. 20.5.After taking advice from the BMA the claimant initiated a grievance on or about 07 April 2022. 20.6.Before moving onto the grievance it may be opportune for the tribunal to complete its finding in respect of the GMC review. 20.7.No formal allegations were ever put to the claimant and the GMC subsequently concluded there was no realistic prospect of success on the evidence available and formally closed their enquiry on 15 February 2024 (295 to 316), having obtained further evidence from the respondent including the Blount report. 20.8.Mr. Kassem did not accept the decision of the GMC and is apparently seeking to persuade it to reopen its enquiry.[21]The claimant’s grievance 21.1.On 07 April 2022 the claimant submitted his grievance. 21.2.There were five principal themes to the grievance [the emphasis added is the tribunal’s] namely:– 21.2.1.The claimant was denied the opportunity to respond and provide his account of the events that have now become a concern to the GMC following the judgement in the Kassem claim. 21.2.2.The respondent failed to adhere to its internal investigation processes and policies over the two/three-year period, as they did not interview the claimant, request a statement, or seek his input. [This was a reference to Mr Kassem’s grievance and the subsequent process]. 21.2.3.The respondent, specifically through Mr. Tulloch, conducted an inadequate investigation that failed to examine crucial evidence, including case notes and job plans. Consequently, an inaccurate account was presented in the Kassem claim to the tribunal resulting in unfair scrutiny by the GMC toward the claimant. 21.2.4.The respondent had treated the claimant unfairly, lacked a duty of care towards him and causing him harm, thereby breaching the implied contractual term of mutual trust and confidence 21.2.5.The respondent’s failures raised significant concerns regarding transparency, fairness, and its responsibility to provide accurate information to a regulatory body. 21.3.An independent investigator, Ms. Blount was appointed by the respondent. 21.4.A lengthy, comprehensive, impressive and well written report was produced (100 to 139 excluding exhibits) ( “the Blount report”). Ms Blount received advice from Dr Roper in respect of the medical aspects of the investigation. 21.5.The grievance was eventually concluded on 27 September 2022 (95 to 99). 21.6.The claimant’s grievance, on all five grounds, was upheld, but with certain qualifications. 21.6.1.Ms. Blount did not find that there was a breach of the implied duty of mutual trust and confidence. 21.6.2.She found that Mr. Kassem’s account of the alleged request for help was unreliable and there was no evidence the claimant had been untruthful. 21.6.3.Whilst the claimant should have come into the respondent’s premises if Mr. Kassem was operating it was not clear about the communication of this to consultants. 21.6.4.There was some evidence the claimant attended less meetings than others ( Mr. Kassem had produced notes for 8 months with none of them signed by the claimant) but they were not emergency meetings. 21.6.5.Having thoroughly reviewed the claimants job plan there was no case to answer that the claimant undertook private work in NHS time. 21.6.6.She noted that in Mr. Kassem’s grievance, Mr J, a consultant of Indian heritage was spoken to by the Tulloch enquiry to verify an allegation made, which he was able to explain. Similarly Mr. Gopinath, a consultant of Indian heritage was spoken to by the Tulloch enquiry to verify an allegation made, which he was able to explain, and was called as a witness for the respondent at the Kaseem tribunal. However no meaningful steps were taken in respect of the allegations Mr. Kassem made against the claimant to discuss them with the claimant, and he was not called to the Kassem tribunal. 21.6.7.She also found the respondent had provided incorrect information ( principally the Tulloch report) to the GMC but it was not malicious and there was no attempt to treat the claimant unfairly. 21.7.The tribunal is satisfied that the central thrust of Mr. Kassem’s allegations against the claimant were unfounded although it has insufficient evidence to make the serious finding that they were malicious. 21.8.The tribunal reminded itself a person’s evidence may be mistaken, or wrong but that is not the same as saying they have been malicious. Ms Blount found there was some evidence that the claimant attended less meetings than others and that there was a genuine misunderstanding of the division between the claimant’s private and NHS time. 21.9.As part of the subsequent outcome the respondent provided the GMC with corrected information ( i.e. the Blount report) on 30 September 2022. 21.10.The respondent also offered further support to the claimant in his dealings with the GMC. 21.11.A formal apology by the respondent was offered with a promise of a review of relevant learning points.[22]The meeting with the chief executive on 21 December 2022 and subsequent events. 22.1.A meeting took place between the claimant, Ms Gillon, and the respondent’s solicitor Mr. Davison. 22.2.The purpose of the meeting was to engage in a restorative process with the claimant. The tenor of the meeting was that the claimant considered the respondent had allowed false and malicious allegations to be made against him at the Kassem tribunal. 22.3.He wanted the Kassem tribunal dealing to be informed of the Blount report, to see whether the tribunal would correct the information in its judgement and criticised Mr. Kassem for disclosing his name, when it had been anonymised, in the Morris judgement, to the GMC. 22.4.On 13 February 2023 the claimant received a letter from, Ms. Gillon (224 to 226). In reality the letter was written by Mrs Johnson and approved by Ms. Gillon. The full context needs to be read. The tribunal will simply highlight a few relevant issues. 22.4.1.Ms. Gillon repeated her verbal apology for the respondent’s errors, particularly in respect of the Tulloch investigation and re-iterated what steps that had been taken to prevent any re-occurrence. 22.4.2.She went on to explain why, having taken legal advice, the tribunal which handled the Kassem claim was unlikely to amend its judgement. This tribunal found the time for a reconsideration of the Morris judgement had long past and given the evidence was always available to the respondent, had they looked, the prospects of such a process succeeding, were negligible 22.4.3.As part of her response she said:- “it is advised that we cannot legitimately say with any confidence that this process of events would not have occurred even if the grievance process had afforded you the opportunity to provide a statement and be interviewed at the time of the initial investigation”. 22.5.Initially the tribunal considered that appeared somewhat “mealymouthed” in terms of the apology. However Mrs Johnson had lengthy dealings with Mr. Kassem. When the tribunal heard evidence from Mr. Kassem it was clear that he could not accept the possibility of a mistake or misunderstanding on his part. The tribunal was reinforced in this view by the fact he would not accept, at all, any of the findings of the independent Blount report and has appealed against the GMC’s decision to close their investigations against the claimant. 22.6.With that background the tribunal understood why the letter was framed as it was. Come what may, in this tribunal’s judgement, Mr. Kassem would have issued tribunal proceedings and almost inevitably would have named the same people as appeared in his original claim form. 22.7.The claimant himself fairly accepted that even had he been interviewed by Mr Tulloch, Mr. Kassem may still have brought tribunal proceedings utilising him as a comparator. 22.8.Returning to the letter. It ignored the claimant’s request, made at the meeting, for a disciplinary investigation to be implemented against Mr. Kassem because the claimant perceived the allegations were malicious and false. 22.9.There may have been very good reasons why that was not an appropriate course of action but the claimant was given no explanation. The tribunal was left with the impression this was, metaphorically, placed in the “too difficult” box. However it is not part of the claimant’s claim that he was subjected to any form of discrimination by the failure of the respondent to investigate or instigate any action against Mr. Kassem. The tribunal therefore need say nothing further on this point. 22.10.The claimant responded on 19 February 2023 challenging the quotation set out above, given he had been cleared by the Blount investigation. 22.11.He denied that Mr. Kassem had to identify him to the GMC. He repeated he wanted a disciplinary investigation to be instigated against Mr. Kassem. 23.The meeting with Ms Cook. 23.1.At a meeting with Ms Cook, Chief People Officer, on 14 March 2023 the claimant asserted, again, that Mr Kassem by identifying him to the GMC had breached the rule 50 order made in the Morris judgement. 23.2.He also said ‘I am being referred to GMC for no faults (sic) of mine and due to the failure of the Trust to investigate the false and malicious allegations raised against me as is proven by the grievance investigation outcome. Trust should be taking steps to prevent such things happening in future for its employees and should discipline people who does (sic) serious misconducts (sic) as per the Trust’s disciplinary policy” 23.3.He repeated that wording in a letter to her dated 14 March 2023 when he also reiterated much of his previous concerns.[24]Laparoscopic Cholecystectomies (“LC’s”) 24.1.In 2022 Mr. Dwarakanath was the respondent’s medical director and deputy chief executive. 24.2.The claimant enjoyed a good working relationship with senior management, including Mr Dwarakanath. 24.3.The claimant worked in the NHS and had a private practice. 24.4.In 2022 there was significant pressure on the breast surgery team .The claimant worked in that team and was very well regarded. 24.5.The more complicated and higher risk LC operations are performed in the NHS. The less complex are sent to the private sector by the NHS. 24.6.Mr. Dwarakanath knew that the claimant had performed an LC privately as unfortunately it had resulted in a bile leak complication and the patient had been admitted to the respondent as an emergency. Mr Dwarakanath had personal knowledge because he was involved in the remedial surgery. 24.7.Bile leaks are a possible complication of LC’s but relatively unusual. Mr Dwarakanath couldn’t recall an emergency admission from the private sector for a bile leak before. 24.8.In the tribunal’s judgement it was on balance this incident that led to a subsequent discussion between himself and the claimant in August 2022. 24.9.The tribunal noted an internal e-mail dated 08 August 2022 between Mr Agarwal and Mr Dwarakanath, which followed on from a discussion as regards the emergency admission of the private patient. 24.10.Mr Dwarakanath said “ Wow! Only 3 lap chole in 2 years [ this should be three] He should not be doing any in the NHS or independent sector. Please send me details of the patient and where she had the op – I will write to them 24.11.The tribunal found the reference to “ I will write to them “ was a reference to the private hospital where the patient had been initially treated by the claimant. 24.12.On 10 August 2022 Mr Dwarakanath spoke to the claimant and directed he should concentrate on breast surgery within the team. He told the claimant that he thought he should be doing between 50 to 100 LC’s over three years to maintain a good level of competency. That was based on his view that regular repetition of an operation led to a high level of competency and maintained skills. That view is supported by the NHS literature in the bundle. 24.13.He asked the claimant to cease LC’s within the respondent and in his private practice. The claimant agreed, subject to the caveat that he already had a number of private patients waiting and there was consensus that he could clear his private waiting list before ceasing LC’s in his private practice. 24.14.The tribunal was assisted by a contemporaneous email, in which the claimant was copied in, dated 11 August 2022 (483) from Mr Dwarakanath to Mr Agarwal and Mr Carroll. 24.15.The email stated “I note that [the claimant] is now performing very small numbers of Laparoscopic Cholecystectomies at North Tees (three since 2019). I’ve spoken to him about this and we have agreed that he will no longer undertake these operations at North Tees and is voluntary ceasing to perform this procedure at Tees Valley Hospital” 24.16.The claimant did not immediately protest as to the contents of this email. 24.17.The reason for requesting the claimant to cease LC’s at the respondent were compelling. 24.17.1.Firstly the tribunal found there was no requirement for the claimant to perform gallbladder surgery for the respondent, given the respondent had a dedicated upper gastrointestinal surgical team. 24.17.2.Secondly the claimant had performed very few such procedures for the respondent and it was a requirement of a surgeon, to practice in this area, to regularly maintain those skills. The Association of Upper GI Surgeons recommended that a surgeon should perform a minimum of 10 LC’s per year. 24.17.3.Thirdly Mr Dwarakanath was entitled to direct the claimant to cease such work and concentrate on the area of highest demand for his skills in the respondent, namely breast surgery where the claimant was regarded as having an excellent reputation. The claimant accepted before the tribunal that this was a reasonable management instruction in respect of his NHS work. 24.18.On 11 August 2022 (484) Mr. Dwarakanath wrote to Ramsay Health Care, a private provider in the following terms: – the above patient had a laparoscopic cholecystectomy performed at your hospital recently by [the claimant] she was admitted as an emergency two days later to North Tees hospital with biliary peritonitis, requiring a laparoscopic washout and drainage procedure. The bile duct leak was managed by endoscopy therapy and the patient has improved and been discharged. This note is for your clinical governance procedures” 24.19.This was with reference to the claimant’s private patient who had been admitted to the respondent as an emergency. 24.20.Normally a medical director would not write to a private hospital if one of their patients had a complication. Low level complications, such as infections are usually dealt with by the respondent’s clinical governance department. However the senior medical team is kept appraised of complications resulting from a private patient being admitted into the respondent by means of weekly meetings and there can be, occasions when a medical director would write to a private provider. Here it made sense for Mr. Dwarakanath to write the letter as he had undertaken the remedial sugary and had spoken to the claimant. The tribunal attached no significance and drew no inference to the fact Mr Dwarakanath wrote the letter in the particular circumstances. 24.21.Mr. Dwarakanath, as the respondent’s Responsible Officer, carried the burden of providing information for the purposes of doctors re-validating. 24.22.Whilst he would have no control or involvement in a doctor’s private practice he would receive annual appraisals from a private provider for the purposes of revalidation. The tribunal found that the was a level of communication between NHS trusts and private providers in respect of doctors who operated in both sectors of the health economy. 24.23.The tribunal should record the evidence before it was that the claimant was a highly qualified and competent surgeon, with a low adverse incident rate, and such complications were simply a feature of medicine. 24.24.Ramsay Healthcare replied on 23 August 2022 (593) and stated, as part of the letter “I understand that the operating surgeon is an employee of North Tees trust I will be grateful if you could let me know whether there are any changes to the doctor scope of practice either directly or indirectly” 24.25.There was then a phone call made to Ramsay Health from the respondent. 24.26.The claimant said he was told by Ramsey Healthcare when he next attended that that respondent could not do LC’s. Two LC’s had been taken out of his private list on the basis of the telephone call from a member of senior management at the respondent that the claimant had been stopped from performing LC’s at the respondent. 24.27.Save for Mr Dwarakanath only Mr Agarwal and Mr Carroll, unit manager, knew of the agreement. One of them must have made that phone call. 24.28.It is inconceivable the respondent could not reasonably foresee that Ramsey Healthcare would suspend the claimant doing LC work until they had further information. 24.29.The tribunal considered that the reason a letter was then sent by the respondent to Ramsey Healthcare on 31 August 2022 ( 486) was when the claimant raised the matter with the respondent , given the previous agreement that he could gradually clear his private list. In this letter Mr Dwarakanath confirmed that the reason the claimant was not undertaking LC’s for the respondent was based on low numbers since 2019, and not competency, and that the respondent had no concerns around his competency. 24.30.When Mr Dwarakanath had spoken to the claimant on or about 10 August 2022 he was aware in general terms that the claimant had raised a grievance on or about 07 April 2022. He had not been interviewed by Ms Blount. No part of the grievance was directed to him. The claimant accepted in cross examination that neither the respondent nor Mr Dwarakanath had any particular axe to grind with the claimant because he had brought a grievance.[25]Protected disclosures? 25.1.Of the four disclosures, for reasons that will become apparent in the discussion section of this judgement, it is only necessary for the tribunal to direct its attention to disclosure number four. 25.2.Disclosure number four was in the following terms, contained in the claimant’s grievance dated 07 April 2022: “The Trust through Mr. Tulloch failed to undertake a robust investigation to examine evidence including case notes and job plans, and thus presented a factually inaccurate account to the Tribunal”. The Trust’s failings in these matters raise serious concerns around transparency, fairness and the responsibility to provide accurate information to the regulatory body”. ( disclosure 4). 25.3.The respondent has conceded that this was a disclosure of information. 25.4.It is appropriate to look carefully again at the five core themes of the claimant’s grievance when looking at the above disclosure, as it has to be viewed in context. The full wording of the section of the grievance quoted states The respondent, specifically through Mr. Tulloch, conducted an inadequate investigation that failed to examine crucial evidence, including case notes and job plans. Consequently, an inaccurate account was presented in the Kassem claim to the tribunal resulting in unfair scrutiny by the GMC toward the claimant. (Tribunal emphasis) 25.5.The claimant accepted in cross examination that his reference to being treated unfairly by Mr Tulloch was personal to himself. Similarly when he complained about the GMC process he accepted that was personal, again, to himself. He did not consider there was a public interest until he received the Blount report. 25.6.The claimant was unable to specify what legal obligation the respondent had allegedly broken. 25.7.Mr Bhaskar gave evidence that he was asked to step down as the Guardian of Safe Working following the presentation of a grievance. The tribunal considered that evidence was placed before it in order to invite it to draw an inference on the way the respondent handled grievances. On the evidence placed before it the tribunal was unable to draw an inference one way or the other .In addition given it appears Mr. Bhaskar has his own tribunal pending against the respondent, the tribunal considered it unwise, and not in the interests of justice, to seek to make findings on partial information and evidence .[26]Time 26.1.The claimant entered into early conciliation on 02 April 2023. 26.2.An early conciliation certificate was issued on 14 May 2023. 26.3.He presented his claim form to the tribunal on 13 June 2023. 26.4.The claimant, in his claim form, contended that all his complaints were within time as they were part of a course of conduct which ended with a meeting between himself and Ms. S Cook, on 14 March 2023. 26.5.The claimant first learnt of the tribunal judgement in the Kassem claim towards the very end of November 2021 when he received a copy from the GMC. He arranged to see Mr Tulloch on 25 November 2021 to discuss his concerns as to the Morris judgement and thus was also aware of the 2017 grievance and investigation at this point. 26.6.All material times the claimant was a member of the BMA. It was the BMA who assisted the claimant in the drafting and presentation of his grievance dated 07 April 2022 . 26.7.By July 2022/early August 2022 the claimant had taken specialist legal employment law advice. 26.8.The claimant gave no persuasive evidence to explain why he could not have presented his claim in time[27]Submissions[28]The respondent 28.1.Ms Levine prepared two written documents, the first dealing solely with the issue of JPI and the second prepared having heard all the evidence setting out her arguments which she amplified, briefly, in submissions. 29.The claimant. 29.1.The claimant also prepared a written document dealing with JPI and made oral submissions that concentrated principally on what findings of fact the tribunal should make. 29.2.The tribunal did not intend any discourtesy to either party if it has not referred to each and every submission. It is taken each and every submission into account.[30]Discussion[31]The legal frame work the tribunal applied to protected disclosures 31.1.The claimant must surmount two hurdles 31.2.Firstly the claimant must establish a qualifying disclosure as defined by section 43B of the Employment Rights Act 1996. “…..a qualifying disclosure means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following:-(a) …(b) …that a person has failed, is failing or is likely to fail to comply with any legal obligation to which it is subject(c) …that a miscarriage of justice has occurred, is occurring or is likely to occur(d) …. (e)….” The tribunal noted the decisions in Chesterton Global Ltd -v- Nurmohamed [2017] EWCA Civ 979, Ibrahim -v- HCA International Ltd [2019] EWCA Civ 2007, Babula -v- Waltham Forest College [2007] EWCA Civ 174, and Kilraine -v- London Borough of Wandsworth [2018] EWCA Civ 1436 which gave guidance on how this section should be interpreted. 31.3.Secondly in order to be a protected disclosure, a qualifying disclosure must be made only to the category of persons set out in the ERA96. Six different ways are set out, namely in section 43C, 43D 43E, 43F 43G and 43H. It is not disputed the claimant fulfilled the second requirement in the manner of his reporting.[32]Protected disclosure and detriment 32.1.The only disclosure the claimant can rely upon is disclosure four because the other disclosures post-dated the alleged detriment. 32.2.The respondent conceded that the words relied upon in disclosure four constituted a disclosure of information for the purposes of section 43B ERA 96. That was a proper concession to make. 32.3.The respondent however denied the claimant had a reasonable belief the disclosure was made in the public interest and tended to show one of the matters set out in section 43B(a) (f). 32.4.In law there must be both a subjective and objective element to belief, the subjective element is the claimant must believe that the information disclosed tended to show one of the six matters listed in subsection 43B (1) and objective element is the belief must be reasonable. In looking at the subjective element the personal circumstances of the claimant must be examined so the question is whether it was reasonable for him to believe what he alleges. 32.5.The belief can be reasonable even if wrong as there may be more than one reasonable view as to whether a particular disclosure is in the public interest. The use in the statute of the word "likely" does not mean the claimant must be right, or that, objectively, the facts must disclose a wrong doing as set out in section 43 B (1) (a) to (e) 32.6.If the claimant has a genuine and reasonable belief that the disclosure is in the public interest that does not have to be the predominant motive for making it. 32.7.Factors that could be taken into account when addressing the public interest question include, firstly the number in the group whose interests the disclosure served, the nature of the interest affected and the extent to which they were affected by the wrongdoing. 32.8.The tribunal found that both elements of the belief issue were not satisfied. The claimant has not shown he reasonably believed the disclosure was in the public interest. It came to this conclusion by a careful examination of the claimant’s grievance. The claimant denied he was allowed an input into the Kassem tribunal which in turn led to the GMC adopting a process which caused him considerable distress. As the tribunal has already highlighted the grievance was a personal issue involving the claimant. 32.9.He was the person who was impacted. He lodged a grievance because, as he said to Ms Blount, by the respondent not speaking to him it resulted in inaccurate information about himself being presented both to the Kassem tribunal and the GMC. He sought to clear his name. 32.10.Whilst the claimant suggested that there was a public interest in a large body such as an NHS trust carrying out the conduct of investigations into staff complaints transparently and competently ,at its highest all the claimant could point to was the conduct of the Tulloch investigation. 32.11.The tribunal considered when the line was drawn between a public and private interest this case fell well over the line in the private interest compartment in these particular circumstances. The claimant was not saying that every investigation the respondent undertook was flawed or lacked transparency or there was some form of inherent defect in its processes. His concern was how the processes were applied to him personally and the tactical judgements made as regards which witnesses to call for the Kassem tribunal 32.12.That is sufficient to dispose of the matter but for completeness the tribunal should make the following four findings if its primary conclusion is held, elsewhere, to be flawed. 32.13.Firstly the claimant has not shown that the public interest related to any clear breach of a legal obligation (as he must do and which must be stated with precision, see Blackbay Ventures Ltd -v- Gahir [2014] IRLR 416) or miscarriage of justice. This would have led to the dismissal of the complaint. 32.14.Secondly the claimant had demonstrated he was subjected to a detriment. Given this was disputed by Ms Levene the tribunal ought to say a little more on this point 32.15.In Ministry of Defence v Jeremiah 1980 ICR 13, CA, Lord Justice Brandon said that ‘detriment’ meant simply ‘putting under a disadvantage’, while Lord Justice Brightman stated that a detriment ‘exists if a reasonable worker would or might take the view that [the action of the employer] was in all the circumstances to his detriment’. Brightman LJ’s words, and the caveat that detriment should be assessed from the viewpoint of the worker, were adopted by the House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary 2003 ICR 337, HL. 32.16.The ERA 96 sets out the protection offered to those subjected to detrimental treatment. 32.17.The relevant statutory provision is are found in section 47B ERA 96 which states as follows:- “(1) A worker has the right not to be subject to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure… “ 32.18.Section 48 (2) ERA 96 makes it clear that it is “for the employer to show the ground on which any act, or deliberate failure to act, was done” The correct test therefore is whether the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer’s treatment of the claimant. see NHS Manchester -v Fecitt Court of Appeal 2012 ICR 372. 32.19.The discussion between the claimant and Mr Dwarakanath and the resulting outcome was not a detriment as regards his NHS work for the following reasons: – 32.19.1.Firstly it was a reasonable management decision to require the claimant to concentrate his skills on a specialism in which he was highly competent and where there were significant demands. He was not required to undertake LC’s as the respondent already had a team to perform such procedures regularly. 32.19.2.Secondly the very low number of LC’s performed by the claimant within the NHS were such as to entitle Mr Dwarakanath to have cause for concern, having regard to the more complex nature and greater risk of such procedures in the NHS than in in private practice.. The tribunal is satisfied that to maintain competency, skills must be practised regularly. 32.19.2.1.It was, however a detriment in respect of his private work. 32.19.2.2.The claimant agreed with the outcome on the basis he would scale his private work down over 6 months. However soon after the meeting the respondent telephoned Ramsey Healthcare and as a result he had two private operations taken off his list. That cost him money, affected his reputation and was a detriment 32.19.2.3.It was submitted by Ms Levene it was Ramsey Healthcare’s decision to take two operations off the claimant so the respondent could not have subjected the claimant to a detriment. There was not a shred of evidence they would have done so, absent the communication from the respondent. Indeed why, if so, did the claimant have a waiting list? It was the telephone call itself that amounted to a detriment as the consequences were clearly foreseeable. 32.19.2.4.Being told, as Ramsey healthcare was, that a consultant had immediately ceased to perform LC’s following a discussion with the respondent’s medical director was inevitably going to affect his private practise. The tribunal considered it could infer that Mr Dwarakanath accepted the telephone communication did not fully and fairly reflect his discussion and agreement with the claimant hence the comfort letter to Ramsey Healthcare of 31 August. Whilst the damage was quickly rectified the claimant was subjected to a detriment. As an aside the tribunal was also concerned that such important information was passed to Ramsey Healthcare by telephone so there was no documented evidence of the contact between the respondent and the private provider. 32.19.3.Thirdly even though the claimant would have established a detriment the tribunal would have decided it was not the disclosure that materially influenced (in the sense of being more than a trivial influence) the respondent in the way it treated the claimant. 32.19.3.1.The key decision-maker was Mr Dwarakanath. 32.19.3.2.Whilst he knew of the grievance in his managerial capacity it had no impact upon his decision. He was not the target of the grievance. 32.19.3.3.Mr. Dwarakanath did not even feature in the claimant’s grievance and was not interviewed as part of the process. He therefore had no reason to undertake any form of retaliatory action. 32.19.3.4.As the claimant accepted Mr Dwarakanath had no axe to grind with him and he got on well with senior management. 32.19.3.5.The tribunal found Mr Dwarakanath acted as he did due to his concerns as regards patient safety and ensuring the claimant’s considerable skills were best deployed within the respondent. The disclosure had nothing what so ever to do with the way he acted. As the respondent has satisfied the tribunal why it acted as it did that discharges the burden of showing that the prescribed reason played no part in its decision. 32.19.4.The fourth observation the tribunal would make as to the claimant’s case was one of time. Section 48 ERA 96 states:- “(1A) A worker may present a complaint to an Employment Tribunal that he has been subjected to a detriment in contravention of section 47B… (2) On [such a complaint] it is for the employer to show the ground on which any act, or deliberate failure to act, was done; (3) An Employment Tribunal shall not consider a complaint under this section unless it is presented— (a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or(b) 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. (4) For the purposes of subsection (3)— (a) where an act extends over a period, the “date of the act” means the last day of that period, and (b) a deliberate failure to act shall be treated as done when it was decided on; and, in the absence of evidence establishing the contrary,… [an employer] shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done.” 32.19.4.1.Time flows, at the latest from when the claimant found out about the act complained of, that is when he found out two LC’s sessions were cancelled by Ramsey Healthcare, which was before the end of August. 32.19.4.2.Even allowing for ACAS early conciliation the claimant is over four months out of time. 32.19.4.3.The burden of proof was therefore upon the claimant to show the tribunal it was not reasonably practicable to present his complaint within time and, if he did, that he then presented his claim within such further period of time as was reasonable. 32.19.4.4.The case law is voluminous on this subject but the tribunal considered Palmer -v- Southend-on-Sea Borough Council [1984] ICR 372 helpfully summarised the relevant principles the tribunal had to apply, and which it did apply. 32.19.4.4.As the tribunal already noted the claimant was a member of a competent protection organisation, and had sought legal advice in July/August 2022. 32.19.4.5.He knew all the facts he needed to know to enter into early conciliation in August 2022 had he so chosen. 32.19.4.6.The burden of proof is upon the claimant and he is not established why it was not reasonably practicable to present within time 32.19.4.7.The time limit is strictly enforced and the tribunal’s discretion, unlike with a time limit for discrimination claims, under section 123 EQA 10, is limited. 32.19.4.8.This complaint was therefore out of time and thus would be dismissed in any event on the basis the tribunal lacked jurisdiction.[33]Time and the discrimination complaints 33.1.Section 123 of the EQA 10 states: – “…Proceedings on a complaint … may not be brought after the end of –(a) the period of three months starting with the date of the act to which the complaint relates, or(b) such other period as the Employment Tribunal thinks just and equitable…. (3) For the purposes of this section – (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it (4) in the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something- (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.” 33.2.Whilst a tribunal has a wide discretion in determining whether or not it is just and equitable to extend time the burden is on the claimant to convince the tribunal that it is just and equitable to extend time. The discretion is the exception rather than the rule, Robertson-v-Bexley Community Centre 2003 IRLR 434 CA. 33.3.The claimant contended there was a continuing act. The mere assertion that there was a continuing act by the claimant will not suffice. 33.4.In Barclays Bank PLC v Kapur 1991 ICR 208 HL the Supreme Court distinguished between a continuing act and an act with continuing consequences. This concept was further explained in Hendricks v Commissioner of Police for the Metropolis 2003 IRLR 96 CA. The Court of Appeal said that in determining whether there was an act extending over a period, as distinct from a succession of unconnected or isolated specific acts, the focus should be on the substance of the complaints that the employer was responsible for and whether it was an ongoing situation or a continuing state of affairs. 33.5.The tribunal considered it instructive to determine whether the acts complained of were linked and whether there was a continuing discriminatory state of affairs, (Lyfar -v- Brighton and Sussex University Hospitals Trust 2006 EWCA Civ 1548 ) and whether the same person or persons were responsible for each of the acts, see Aziz –v- FDA 2010 EWCA Civ 304. 33.6.The tribunal has reminded itself that not every incident relied upon may be a continuing act. In a discrimination claim there may be some matters that are a continuing act and others that are not. There may even be more than one continuing act. It is not a binary decision as to whether all the matters relied upon are or are not continuing acts. 33.7.Here the tribunal found there are number of specific and unrelated acts. It should explain how it has come to that conclusion. 33.8.The principal player in the failure to discuss Mr Kasem’s grievance was Mr Tulloch. 33.9.The failure to notify the claimant and discuss with him his role as a comparator and to call him at the Kassem tribunal was principally a matter that fell at Mrs Johnson’s door as she was coordinating the respondent’s defence supported by its lawyers. Given the claimant was not identified in the Morris judgement is difficult to identify who it is said should have discussed the judgement with the claimant. 33.10.The referral to the GMC was made by Mr Kassem. 33.11.The communication to which the claimant took exception to dated 13 February 2023 was the response from the respondent’s Chief Executive. 33.12.There was no one person or small group of persons responsible for these acts and nor was the continuing act. A continuing act is akin to a state of affairs. So for example if an employee is suspended, called to an investigative meeting, disciplined, appeals and has that appeal is rejected and contends that at each stage there were acts of discrimination, although there might be different personalities that has the potential to be a continuing act as it is an ongoing state of affairs. This was not such a case. 33.13.Time ran from, at the latest when the claimant discovered the alleged acts or omissions. All were out of time save for the letter from the chief executive and the tribunal did not found that to be a discriminatory act 33.14.Thus as there was no continuing act, the tribunal then determined whether it would be just and equitable to extend time. The burden is upon the claimant and he offered no credible explanation. 33.15.The delay ranged from a number of months to years. Even when the claimant was aware of this state of affairs he did not promptly institute legal proceedings, although he had access to professional advice. 33.16.Looking at matters from the claimant’s position, from its most favourable, once he had the Blount report he had every conceivable bit of information he required to issue proceedings. He still did not. 33.17.In the circumstances the tribunal determined it would not be just and equitable to extend time. That therefore disposed of the discrimination complaints. 33.18.However for completeness, if the tribunal was wrong in its judgement in respect of time it is looked at each individual complaint of discrimination.[34]Burden and standard of proof in discrimination complaints 34.1.The burden of proof is set out in section 136 EQA 10. It does not change the requirement on a claimant that in a discrimination case. It is for the claimant to prove, on the balance of probabilities, facts from which, in the absence of any other explanation, the tribunal could infer an unlawful act of discrimination, see Royal Mail Group Ltd -v-Efobi 2021 UKSC 33.[35]Victimisation 35.1.Under Section 27 (1) of the EQA 2010 :- “A person (A) victimises another person (B) if A subjects B to a detriment because- (a) B does a protected act, or (b) A believes that B has done , or may do, a protected act” 35.2.The tribunal must ask itself three questions.• Firstly, did the alleged victimisation arise in any of the prohibited circumstances covered by the EQA 10?• Secondly did the respondent subject the claimant to a detriment?• Thirdly it so was the claimant subjected to that detriment because he had done a protected act, or because the respondent believed that he had done or might do a protected act? 35.3.The essential question in determining the reason for the claimant’s treatment is what consciously or subconsciously motivated the respondent to subject the claimant to the alleged detriment. This requires an enquiry into the mental processes of the respondent and if there was a necessary link between detriment suffered and the protected act than a claim of victimisation was made out. 35.4.The tribunal reminded itself that it was not necessary to show that any less favourable treatment was solely by reason of protected act. It sufficed if it was a significant influence on the respondent’s decision-making. Further there did not need to be conscious motivation. If the earlier protected act subconsciously influenced the respondent to treat the claimant as it did, that would suffice. 35.5.The tribunal can deal with this complaint quite shortly as it factually mirrors, in many respects, the claimant’s whistleblowing detriment complaint. 35.6.The respondent conceded the claimant had done a protected act. 35.7.The claimant was subjected to a detriment in respect of his private work. 35.8.However the protected act did not consciously or subconsciously motivate Mr. Dwarakanath to act as he did. As the tribunal have already noted he acted in the manner he did due to his concerns as regards patient safety and ensuring the claimant’s considerable skills were best deployed within the respondent organisation. 35.9.There was no evidence that the person who telephoned Ramsey Healthcare knew anything about the claimant’s grievance. 35.10.Finally for the reasons already explained the claim was out of time and it was not just and equitable to extend time.[36]Direct discrimination 36.1.The tribunal raised with Ms Levine whether it should deal with the harassment or direct discrimination complaints first, given they were identical. The tribunal considered the better course was to deal with harassment first having regard to section 212 EQA 10. However Ms Levene invited the tribunal to deal with direct discrimination first and it acceded to that request. 36.2.Direct discrimination is defined in section 13 (1) EQA 10 as follows: – “(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.” 36.3.The legislative test is therefore broken down into two elements namely less favourable treatment and the reason for that treatment. In some cases, however, it may be appropriate to ask the latter question first, see, Shamoon -v-The Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11 as explained in Stockton-on-Tees Borough Council -v-Aylott [2010] IRLR 994 where it was suggested that it would often be appropriate to start by identifying the reasons for the treatment the claimant complained of. If the answer was that the reason was a protected characteristic then a finding of less favourable treatment was likely to follow as a matter of inevitability. 36.4.The test of what amounts to less favourable treatment is an objective one. The fact that the claimant believed he may have been treated less favourably than a comparator does not of itself establish that there was less favourable treatment: Burrett v West Birmingham Health Authority [1994] IRLR 7. 36.5.Direct discrimination is concerned with less favourable, rather than unfavourable, treatment. It is the equality rather than the quality of the treatment that matters. Unreasonable treatment is not less favourable treatment, see Glasgow City Council- v- Zahar [1998] ICR 120 and unreasonable behaviour cannot found an inference of discrimination, although a lack of explanation for the unreasonable treatment (as opposed to the unreasonableness of the treatment) might found such an inference: Bahl -v- Law Society [2004] IRLR 799. 36.6.As the statutory definition requires less favourable treatment that in turn requires a comparison to be made.. 36.7.Section 23 EQA10 states : “(1) On a comparison of cases for the purposes of section 13… there must be no material difference between the circumstances relating to each case. 36.8.The second element is the treatment must be because of the protected characteristic. 36.9.It is not sufficient for the claimant to show he had been treated less favourably than his chosen comparator. It is only if the protected characteristic was a substantial or operative reason, though not necessarily the sole or intended reason, for the less favourable treatment that liability was established. 36.10.The tribunal examined each of the factual allegations in turn.[37]A failure by the respondent to notify or discuss with the claimant Mr Kassem’s grievance of 14 June 2017 37.1.It is unchallenged that no such discussion took place between the claimant and the respondent. 37.2.The claimant has not established evidence from which the tribunal could conclude that the claimant’s race had anything whatsoever to do with his failure to interview him. 37.3.It cannot be that Mr Tulloch discriminated in his investigation against Indian doctors/ doctors of colour, given that he interviewed Mr Agarwal, who self-identified as of Indian heritage. There was nothing from which the tribunal could conclude that Mr Tulloch did not speak to the claimant because of or for reasons related to his race or would have acted any differently with a white consultant. 37.4.The behaviour of Mr Tulloch was equally explicable on the basis that he did not consider he needed to interview the claimant, who was not central to the grievance, or that he proceeded in error. The fact that the Tulloch report was subsequently found to be flawed cannot in itself, without more, permit the drawing of an adverse inference. 37.5.The tribunal is satisfied that hypothetical white male consultant in similar circumstances to the claimant would have been treated in exactly the same way by Mr Tulloch. He would not have been interviewed. 37.6.It follows therefore that as a prima facie case has not been established the allegation must be dismissed. If the tribunal was wrong at that point the respondent has put forward a credible, cogent none discriminatory explanation as to why the claimant was not involved in the grievance.[38]A failure by the respondent notify or discuss with the claimant Mr Kassem’s reliance upon him as a comparator in the subsequent employment tribunal claim. 38.1.The claimant has not established evidence from which the tribunal could notify or discuss the claim with him. 38.2.On the evidence, save for Mr Agarwal, none of the comparators were called to give evidence. There was good reason why Mr Agarwal was called, namely that he was a key decision maker. 38.3.There is no evidence that a white consultant named as a comparator would not have been treated in an identical manner to that of the claimant. 38.4.In any event the respondent has advanced a credible, cogent none discriminatory explanation. 38.5.It decided that it was only going to call key decision makers. It took into account the issue of proportionality, namely ensuring patients were treated promptly whilst at the same time defending itself. The respondent called a total of 11 witnesses, five who were Indian. That pointed against there been any conscious or subconscious motivation by the respondent not to call Indian/ none white consultants. A white consultant would have been treated in an identical manner. 38.6.The respondent also relied upon legal advice in determining which witnesses should or should not be called. As the tribunal of already noted neither Mrs Johnson nor the respondents legal team considered that such prominence would be given in the Morris judgement to the comparison with the claimant. 38.7.It was not in the respondent’s interests, when defending the claim brought by Mr Kassem to ignore evidence that was potentially helpful to it. The difficulty it had arose from the inadequacy of the Tulloch report, which were not appreciated at the time. 38.8.The respondent had to make a judgement call on what evidence it placed before the tribunal. 38.9.The tribunal concluded that the decision in hindsight not to call the comparators may have been a mistake, having regard to the Morris judgement. However that is applying hindsight and many other employers may have taken the same decision as the respondent, and applied the same none discriminatory reasoning to its tactics. 38.10.This was a genuine error and the claimant’s race had nothing whatsoever to do with the omission, sympathetic as the tribunal is it to the claimant finding out, for the first time, from GMC that he’d been referred, albeit as Mr Q in the Morris judgement. 38.11.In any event the respondent can rely upon the concept of JPI. This provides immunity from suit for anything said or done by anyone in the course of judicial proceedings. 38.12.It is absolute and not confined to actions in defamation. It is necessary to protect the integrity of the legal process and therefore the public interest and that underlying public policy is not outweighed by countervailing public interest considerations of preventing unlawful discrimination in the workplace. 38.13.It can extend to the selection of comparators, see the judgement in Darker -v- Chief Constable of the East Midlands Police [2001] 1 AC 435 at 441 where the Supreme Court held that the “protected activities are not limited to words written or spoken but embrace any conduct that fairly falls within the investigatory or preparatory process”. Deciding who to interview and call as witnesses falls squarely within that ambit.[39]Did the respondent failed to notify or discuss with the claimant the evidence it intended to present to the tribunal in respect of Kassam’s claim which relate to him in circumstances where the respondent knew or ought to have known that the claimant’s fitness to practice with the GMC, behaviour and integrity were likely to be an issue, and also subject him to the possibility of adverse findings by the employment tribunal in respect of his behaviour and integrity? 39.1.The claimant has not established evidence from which the tribunal could notify or discuss the claim with him. 39.2.The respondent had conducted its defence of the Kassem claim on the basis of two key considerations, firstly calling investigators/ decision-makers and secondly taking a proportionate response. 39.3.On that basis there was no need for the respondent discuss any of the evidence with the claimant. A white consultant would have been treated in the same manner because the two key considerations had nothing whatsoever to do with race or, colour. 39.4.The first the respondent was aware of any GMC involvement was when six doctors, one of whom was the claimant and one of whom was Mr Dwarakanath, the respondent’s medical director, received correspondence from the GMC in November 2021 indicating they were commencing a fitness to practice investigation. 39.5.One of the consultants who are subject to a GMC investigation was a white consultant. 39.6.None of the consultants contacted were warned by the respondent of possible GMC involvement. The claimant was treated no differently to any other consultant. 39.7.Further the tribunal found that the respondent was immune from action in relation to the preparation of the Kaseem tribunal due to the concept of JPI.[40]Did the respondent failed to notify the claimant of the adverse findings made by the tribunal about the claimant’s conduct after the Kassem judgement was promulgated in January 2021 40.1.The claimant has not established evidence from which the tribunal could notify or discuss the Kassem judgement with him. 40.2.There is simply no evidence that a white consultant in a similar position to the claimant would not have been treated in an identical manner. 40.3.In any event the respondent has advanced a credible, cogent none discriminatory explanation. The name of the claimant was anonymised in the Morris judgement. The respondent was not aware that Mr Kassem would release the claimant’s identity to the GMC or pursue matters via the GMC. In those circumstances there was no reason for the respondent to discuss the Morris judgement with the claimant or indeed any of the comparators. 41.Mr Kassam referring the claimant to the GMC in 2021. 41.1.The tribunal is not satisfied there is prima facie evidence of direct race discrimination. 41.2.There is no evidence the claimant was specifically targeted. Mr Kaseem referred the GMC to the Morris judgement. It was the GMC who then decided who to investigate. Six doctors were investigated one of whom was a white consultant. 41.3.In any event the respondent has advanced a credible, cogent none discriminatory explanation. Mr Kassem believed that the Morris judgement provided further information and he had concerns as regards patient safety and the public interest . 41.4.The respondent also has the protection of JPI. 41.5.The tribunal is satisfied that the GMC is a body which is protected by means ofJPI, see Vaidya -v- GMC (2010) EWHC 984. A statement to the GMC expressing concerns about a doctor is subject to immunity and/or absolute privilege, White -v- Southampton University Hospitals NHS trust(1) Prof Roach(2) EWHC 825 QB 41.6.The protection is such that it would include even a malicious or false informant, see White supra.[42]On 13 February 2023 the Chief Executive wrote to the claimant stating that could not be legitimately said that had the respondent interviewed the claimant in 2017 the processes or events that followed would not have occurred. 42.1`.The claimant said the following in the Chief Executive letters was an act of discrimination and/or harassment namely the words “in addition, it is advised that we cannot legitimately say with any confidence that this process or events would not have occurred even if the grievance process had afforded you the opportunity to provide a statement and be interviewed at the time of initial investigation.” 42.2.There is nothing whatsoever in the wording that even hints at any form of race discrimination. 42.3.The tribunal is satisfied that a white consultant in the same position as the claimant would have received a letter in identical terms. 42.4.As tribunal have already noted in its findings of fact it had no doubt, having heard him give evidence, that Mr Kassem would have pursued matters and the respondents knowing of his personality well knew that. 42.5.The respondent could not stop Mr Kaseem choosing who might be a comparator. Even if the claimant had given evidence there is no absolute guarantee that his evidence would have been preferred to that of Mr Kaseem, as all litigation involves an element of risk.[43]Harassment 43.1.Section 26 of the EQA 2010 defines harassment as follows:(1) A person (A) harasses another (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 an offensive environment for B…(2) 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. 43.2.In Richmond Pharmacology Limited v Dhaliwal 2009 IRLR 366 Underhill P set out three essential elements of a harassment claim namely:• Did the respondent engage in unwanted conduct?• Did the conduct have either (a) the purpose or (b) the effect of either (i) violating the claimant’s dignity or (ii) creating an offensive environment?• Was the conduct related to a relevant protected characteristic? 43.3.This test was clarified and extended in the case of Pemberton v Inwood 2008 EWCA Civ 564 where the court added that when considering where the conduct had the prescribed effect the tribunal must take into account the following factors: " In order to decide whether any conduct falling within sub-paragraph (1)(a) has either of the prescribed effects under sub paragraph (1)(b), a Tribunal must consider both…..whether the putative victim perceives themselves to have suffered the effect in question ( the subjective question) and ….whether it is reasonable for the conduct to be regarded as having that effect ( the objective question). It must also…take into account all the other circumstances-subsection (4)(b). The relevance of the subjective question is that if the Claimant does not perceive their dignity to have been violated, or an adverse environment created, then the conduct should not be found to have had that effect. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the Claimant's dignity or creating an adverse environment for him or her, then it should not be found to have done so." 43.4.Whilst the tribunal has reminded itself that no comparator is required in a complaint of harassment and the conduct complained of only has to be related to a relevant characteristic the tribunal cannot support any of the contentions of harassment pleaded in the alternative for the simple reason that the treatment received was in no way related to his protected characteristic of race and/or colour. The tribunal has repeated its previous findings in this regard.
REASONS
[1]Should the claimant pay costs, limited to £20,000, on the basis that the claimant had acted unreasonably in either the bringing of the proceedings, or part of it or the way that the proceedings, or part of it had been conducted and/or the claimant had no reasonable prospect of success?
Evidence
[2]The tribunal had before it a costs bundle consisting of 180 pages. A reference in this judgement to a page number is a reference to that bundle, and not any other bundle, unless the contrary is indicated.[3]The tribunal had the benefit of written submissions from Ms Callan of counsel for the claimant and Ms Levene of counsel for the respondent.[4]The tribunal heard affirmed evidence from the claimant and he expressly waived his right to solicitor /client privilege.
Background
[5]The factual background to the dispute between the claimant and the respondent is set out extensively in the tribunal’s liability judgement found at pages 104 to 156 in the costs bundle.[6]To the extent it is necessary, those findings are incorporated into this judgement but have not been repeated, for the reason of brevity. The abbreviations /descriptors referred to in the liability judgement have also been repeated in this judgement.[7]Put simply, the claimant made the following complaints: –• direct race discrimination.• harassment related to race( in the alternative to direct discrimination as the same grounds were relied upon)• victimisation.• being subject to a detriment for making protected disclosures.[8]The respondent calculated that its costs from the commencement of proceedings totalled £58,922.40 p. (The tribunal was told the figure at page 172 was incorrect).[9]The respondent’s costs from the cost warning letter to judgement totalled £34,085.80 (the tribunal was told the figure at page 175 was incorrect).[10]The tribunal was not invited to look at any other period for an order for costs.[11]Ms. Levene made an express concession that VAT was not payable on any costs order made. Additional relevant findings of fact for the purposes of costs. The claimant’s means[12]The claimant provided, in accordance with the tribunal’s previous order, a statement of means (180).[13]The claimant had a net monthly income of £7,623. His monthly expenditure was in the region of £4,714.[14]He has two properties. The first is his family home owned jointly with his wife and valued at about £600,000 with an outstanding mortgage of £25,000.The second is a flat in London valued at £450,000 with an outstanding mortgage of £376,000. The London property is rented out, and after paying all expenses, produced a net income of £200 per month.[15]He had savings of £225,000.[16]The claimant planned to retire on 31 March 2025.[17]The tribunal concluded that if it was to make an order, the claimant had sufficient funds available from capital to discharge the sum sought. The claimant’s knowledge of tribunal proceedings and his conduct[18]This was the first time the claimant ever represented himself before an employment tribunal.[19]He has no legal qualifications.[20]Save for brief advice, which the tribunal will return to, the claimant relied upon his own research to conduct these proceedings.[21]He was an inexperienced litigant in person.[22]He was faced by a legal team from a very reputable firm having particular expertise in employment law within the NHS and senior, junior counsel.[23]The tribunal should record that throughout the proceedings the claimant was courteous, respectful, and polite, both in oral and written communication and sought to comply promptly and fully with the tribunal orders. In this regard he was a model litigant and, very properly, no criticism was made of him by the respondent in this regard.[24]Two case management hearings took place before the claimant’s claim reached trial. At no stage was it recorded that the judge dealing with those hearings, expressed any tentative or provisional view as to any fundamental weakness or flaw in any of the claimant’s pleaded claims. Advice[25]The claimant was a member of the BMA. He was concerned that he faced a fitness to practice investigation by the GMC following the Morris judgement and considered the respondent had treated him badly in not notifying him of the claim or that he was a comparator ,to rebut what were extremely serious allegations made against him.[26]He received advice by telephone on two separate occasions from the BMA. He instigated both calls.[27]The advice he was given was that he should attempt to resolve matters by the respondent’s internal grievance procedure.[28]He followed that advice. He submitted a grievance on 07 April 2022. His BMA representative assisted him in the drafting of the grievance and attended some of the Blount investigation interviews.[29]The grievance was lodged on 07 April 2022. It was concluded on 27 September 2022, although the envisaged meeting with the respondent’ Chief Executive did not take place until 21 December 2022 and no written apology was forthcoming until 13 February 2023 , some 10 months after inception.[30]He did not ask the BMA for advice, on, and no advice was tended to him, as regards employment tribunal proceedings.[31]The above was the extent of the claimant’s involvement with the BMA.[32]He also took advice from solicitors.[33]He first spoke to Mr Davison, the respondent’s solicitor, on 13 December 2022 (in the context of an internal meeting at the respondent premises) to express concerns that the tribunal anonymisation order had been breached by Mr Kassem and untrue assertions made against him which had appeared in the Morris judgement .(In fairness to the Morris tribunal it could only make a determination on the evidence placed before it).[34]The thrust of his concern was that the Blount investigation had cleared him and his grievances were upheld and he wanted to know what could be done about the false evidence given against him by Mr Kassem.[35]Quite properly Mr Davison indicated that he was advising the respondent and the claimant should seek independent legal advice.[36]The claimant did not bury his head in the sand but did so.[37]Ms Levene attacked the claimant’s credibility because the dates he gave for when he took legal advice differed from that which he told the tribunal at the liability hearing.[38]The tribunal was satisfied that he first took advice on 27 January 2023. Whilst this differs from the date in the tribunal’s liability judgement it considered the date given at the costs hearing was more likely to be accurate, because he had had the opportunity to check his records. When he had given information at the liability hearing he was relying upon his memory. It also was chronologically more likely to be accurate given the timing of the claimant’s meeting with Mr Davison.[39]The tribunal was also satisfied that the evidence the claimant gave as to the meetings and discussions he had with his legal adviser were truthful in that he told the tribunal what he honestly understood to be the advice given.[40]In total he had two meetings, each lasting approximately an hour.[41]The tribunal found the following matters were discussed at the meetings.[42]At the first meeting the claimant wanted advice on Mr Kassem’s breach of a tribunal anonymity order. He was told that as Mr Kassem was an employee of the respondent they were vicariously liable for his actions and omissions and his behaviour could amount to racial harassment if race played a part in his actions.[43]At the second meeting, about two months later, the tribunal was satisfied that the claimant raised the prospect of tribunal proceedings and asked about time limits. The advice he received was that he had three months from the last discriminatory act unless there was a number of acts which taken together amounted to a continuing act, whereupon time ran from the last act but covered all the acts.[44]He was advised there was a possibility of bringing proceedings both for race discrimination and for detrimental treatment for making protected disclosures. He asked about the public interest element of a protected disclosure claim and was told that public interest did not mean every member of the public. It would be sufficient if other members of the respondent could reasonably have an interest in the concern.[45]The claimant raised with his solicitor that Mr Tulloch had produced a report which made serious findings which lacked evidence and without interviewing him. His belief was that Mr Tulloch would not have done the same if he had been a white consultant. He was told that might amount to race discrimination.[46]He was told for direct discrimination he would need to prove facts and why race may have played a part and then the burden would fall upon the respondent to show there was no discrimination. Submissions.[47]As the tribunal have already noted both Ms Levene and Ms. Callan provided skeleton arguments and amplified upon those arguments orally.[48]The tribunal should record its gratitude for the help and assistance both counsel gave to the tribunal.[49]There is one general observation the tribunal should make at this stage on Ms Levene’s submissions, which concentrated heavily on analysing the claimant’s conduct by reference to the tribunal’s liability judgement. The task of the tribunal was to determine what the claimant knew or ought to have known at each stage of the proceedings and not to judge him with the benefit of hindsight, although it accepted that what the tribunal now knew may cast light back on that question.[50]The tribunal does not propose to repeat each and every submission contained therein. The mere fact that a particular submission has not been rehearsed in this judgement does not mean that it is not been considered and given due weight by the tribunal in reaching its conclusion. Our decision[51]The tribunal concluded that the respondent had not demonstrated that the threshold test ( see below) had been surmounted in respect of all or part of the claim.[52]However if the tribunal was wrong on that point it went onto the discretion stage, and determined it would not have made an award either in the sum sought, or at all.[53]The tribunal has set out below the law it applied in reaching these conclusions and its reasoning, on the facts for the above conclusions.
The statutory framework
[54]Rule 74 (2) of the Employment Tribunal procedure Rules 2024 reads as follows: – “(2) the Tribunal must consider making a costs order… where it considers that… … (a) a party …. has acted ….unreasonably in either the bringing of the proceedings or part of it, or the way that the proceedings, or part of it have been conducted, (b)any claim…. had no reasonable prospect of success…."[55]Under Rule 76 the tribunal’s jurisdiction to make an order for costs is limited as follows:- (1)A costs order may order the paying party to pay- (a)the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party; (b) the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be paid being determined (I) in England and Wales, by way of detailed assessment carried out either by a county court in accordance with the Civil Procedure Rules 1998, or by an Employment Judge applying the same principles; …[56]Finally Rule 82 states: – “In deciding whether to make a cost order…. And if so the amount of any such order, the Tribunal may have regard to the paying party’s ….ability to pay.”[57]The tribunal determined the proper approach to this application was firstly to decide whether the circumstances set out in rule 74 (2) were engaged, (the threshold stage) and secondly, if so, then to decide whether to exercise its discretion to make an award (the discretion stage) and thirdly, if so, then decide what amount or proportion of the costs should be ordered (the award stage). The relevant legal principles derived from case law[58]The fundamental principle is that costs are the exception rather than the rule and that costs do not necessarily follow the event – Gee –v- Shell (UK) Limited [2003] IRLR 82 at paragraph 22. 59.However just because costs are the exception rather than the rule does not mean that the case itself had to be exceptional in order for a tribunal to make an order – Power –v- Panasonic (UK) Limited EAT 0431/04. The threshold stage. 60.The word “unreasonably” is not defined although it requires a high threshold to be passed when making a costs order, see paragraph 19 of the judgement of His Honour Judge Mullen QC in Osonnaya -v- Queen Mary [2011] UKEAT/0225/11. 61.The authorities make it clear the tribunal must not substitute its view for that of the claimant but must review the decision or decisions taken by the claimant. The test has been described as “wide and objective” and one which may include having regard to the party against whom the order is sought having an “unreasonably distorted perception of matters” Brooks -v- Nottingham University Hospitals NHS Trust UKEAT /0246/18. 62.Allied to this, the tribunal reminded itself that what may be very clear now following the liability judgement may not have been either wholly or partly clear to the claimant when engaged in adversarial litigation. The tribunal was required to determine what the claimant knew or ought to have known at the start of the proceedings and what he knew or ought to have known as the proceedings progressed, having regard to the information that was then available to him. 63.It was not sufficient for the claimant to think he had a claim; the question was whether he had reasonable grounds for so doing and whether there was there a rational basis for that belief. 64.What advice and the nature of that advice was potentially relevant consideration, see Abrahams –v- Royal National Throat, Nose and Ear Hospital EAT1983/82. When looking at the question of advice in Cartiers Superfoods Limited 65.–v- Laws [1978] IRLR315, Mr Justice Philips said, at paragraph 18, that what the tribunal had to do was:- " to look and see what [the claimant] knew or ought to have known if he had gone about the matter sensibly". 66.The fact that the claimant was a litigant in person did not mean that he was excused from liability but it was a relevant consideration. His Honour Judge Richardson said in AQ Limited –v- Holden 2012 IRLR648 ( the emphasis in bold is the tribunal’s) "the threshold test in Rule 40 (3) [now Rule 74] are the same whether a litigant is or is not professionally represented. The application of those tests should, however, take into account whether a litigant is professionally represented. A Tribunal cannot and should not judge a litigant in person by the standards of a professional representative……justice requires that Tribunals do not apply professional standards to lay people, who may be involved in legal proceedings for the only time in their life. As Mr Davis submitted, lay people are likely to lack the objectivity and knowledge of law and practice brought by a professional legal advisor. Tribunals must bear this in mind when assessing the threshold tests…..further, even if the threshold tests were...…. met, the Tribunal has discretion whether to make an Order. This discretion will be exercised having regard to all the circumstances. It is not irrelevant that a lay person may have brought proceedings with little or no access to specialist help and advice…this is not to say that lay people are immune from order to the costs: far from it, as the cases make clear. Some litigants in person are found to have behaved vexatiously or unreasonably, even when proper allowance is made for their inexperience and lack of objectivity…." The discretion stage. 67.The approach required to be taken by a tribunal was well summarised by Mummary LJ in Yerrakalva –v- Barnsley MBC [2011] EWCA Civ 1255 as follows:- "The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting it, and in doing so, to identify the conduct, what was unreasonable about it and what effects it had." 68.Any costs awarded need not be precisely calculated to reflect the additional cost to the respondent caused by the claimant’s unreasonable conduct but should broadly reflect what has been caused by the claimant. There was no need for a precise causal relationship. 69.As the tribunal noted simply because a party had a genuine belief which had no basis in reality did not mean the threshold was not surmounted but it was potentially a relevant factor at the discretion stage see Topic -v- Hollyland Pitta Bakery [2012]All ER (D) 250 ( Nov) The award stage 70.At the awards stage the tribunal may have regard to a parties ability to pay, see Jilly -v Birmingham and Solihull Mental Health Trust EAT 584/06. Discussion Specific considerations. 71.Before looking at each individual claim brought by the claimant there are a number of overarching issues of general application, raised by both counsel, which the tribunal should address. The cost warning 72.The principle in Calderbank does not apply in the tribunals, see Kopel –vSafeway Stores PLC 2003 IRLR753. 73.However, Kopel does not say that Calderbank letters are irrelevant. In Kopel, Mr Justice Mitting stated that the tribunal "must first conclude that the conduct of an appellant in rejecting the offer was unreasonable before the rejection becomes a relevant factor in exercising its discretion…." 74.A cost warning letter (95) was sent to the claimant at 6.13 on the evening on Thursday, 12 June 2024 with the trial due to start on the following Tuesday . 75.The letter itself was short. It was headed “cost warning, without prejudice save as to costs”. 76.Having recited the relevant provision of the tribunal rules it went on to say “the respondent believes that many of your claims have little or no reasonable prospect of success for the following reasons” 77.Pausing at this juncture the reference to the word “many” could reasonably have suggested that there were some claims that the respondent did think had some prospect of success. 78.The short letter was in general terms, for example “even taken at their highest, your allegations are not capable of establishing a prima facie case of discrimination, victimisation or whistleblowing detriment” 79.There was no reference to what Ms Levene now submitted was a fundamental flaw in the claimant’s claim namely that of time. 90.There was no reference to the judicial immunity defence (and the respondent did not disclose to the claimant its skeleton argument on the judicial proceedings immunity defence until 14 June 2024.) The tribunal accepted the skeleton was clear on the principles on this relatively obscure but interesting area of law even to a litigant in person. It is proper to say, so no incorrect impression is given, that the principle of judicial immunity had been raised previously, probably around April 2024. 81.The letter went on to say “to connect your allegations to race and/or victimisation/detriment is a high hurdle in the employment tribunal, and you have not provided any evidence that support your assertions in this regard”. 82.There was no considered commentary on each of the elements of the claimant’s claim and why it was said they had no reasonable prospect of success. The letter was cloaked in generalisations. 83.Nothing even starting to approach the criticisms Ms. Levene made in her skeleton argument and oral argument appeared in the costs warning letter. 84.The letter made no reference to the claimant taking legal advice as the tribunal would have expected with a litigant in person. Even if it had, the tribunal concluded that the prospect of the claimant, with 2 working days’ notice before a trial, being able to locate an experienced employment solicitor who would then read and digest over 600 pages of documents plus seven statements ( all of which took the tribunal a day to read) and then hold a conference with the claimant and give a considered opinion was remote in the extreme. 85.In any event, without very extensive photocopying, (which would probably have taken half a day), the claimant would have been deprived of the papers that he needed to finalise his preparation for the 10-day trial, just before it was about to start. 86.No explanation was placed before this tribunal as to why the letter only arrived so late in the day. 87.The letter did not say in clear terms that if the claimant withdrew the respondent would not pursue the claimant for costs. It simply said if the claimant continued to pursue his claim the respondent reserved the right to refer the correspondence to the tribunal. Thus the claimant had no reassurance that if he did withdraw at the last minute he might not face an application for costs. 88.Whilst the tribunal accepted the proposition that a cost warning letter can be very relevant as to whether the threshold test had been met, in this particular case, the tribunal determined it carried no weight. The rejection was not unreasonable. Strikeout/deposit applications 89.Ms Callan stressed that at no stage in the proceedings did the respondent make any application that all or part of the claimant’s claim should be struck out as it had no reasonable prospect of success. 90.Similarly at no stage did the respondent make an application to the tribunal that all or part of the claimant’s claim should be subject to a deposit order because it had little reasonable prospects of success. However the tribunal determined that there is no rule of law that the lack of a previous strike out or deposit order application was fatal to a successful claim for costs, see Millen v Capsticks Solicitors LLP 2014 all ER (D) 12. 91.Strike out orders are rarely appropriate in discrimination cases save in the most obvious case where a fundamental element or elements of the claim can be demolished either by reference to the pleadings or on uncontradicted document because such claims (and protected disclosure claims are not dissimilar) are fact sensitive and often rely on inferences. The tribunal concluded therefore the lack of strikeout application, in this case, was not a factor that favoured the claimant or told against the respondent at the threshold stage. 92.The position in respect of a deposit order or orders, where the threshold is lower, was less clear-cut. Whilst the tribunal factored in to its decision-making that with a deposit order the claimant’s case must be looked at its highest, the fact remained that no application was made. If the claim was so obviously intrinsically weak, as Ms Levene now suggested it was, it was surprising such an application was not made. 93.Whilst Ms Levene submitted, that the claim was flawed from inception and illustrated that by reference to the tribunal’s judgement that was with hindsight. The respondent clearly did not think that there were elements of the case or the whole case that had little reasonable prospect of success during its currency, hence why no application was made. 94.The tribunal considered that how the respondent perceived the case at the time provided some insight into the reasonableness or otherwise of the claimant’s perception. It was a factor that favoured the claimant when considering both the threshold stage and the discretion stage. The specifics of the claimant’s claim. 95.Before the tribunal begins by examining each element of the claimant’s claim it should explain why it was not attracted to the argument of Ms Levene that costs should run from the commencement of the proceedings because, it was submitted, the claimant knew or should have known his claim had no merit or it had no reasonable prospect of success. 96.At that stage the claimant had relatively limited documentation. He knew that very serious allegations were in the public domain and had been raised with his regulator but he had very good grounds to believe they were false. 97.He knew his assertions as to poor treatment by both by Mr Kassem and the respondent were justified. 98.The respondent itself had accepted the Tulloch investigation was flawed and damaging to him. 99.He knew that after he made a disclosure he found someone at the respondent had spoken to the private hospital where he undertook some work which resulted in him being stopped, initially, until remedied by the respondent, from performing LC operations. 100.Even after the Blount report the poor treatment continued 101.By way of illustration only, no explanation was ever given as to why it took from 27 September 2002, the outcome of the Blount report for a meeting to be arranged with the Chief Executive of 21 December and then for a further delay of some two months for him to receive a written apology on 13 February 2023. The claimant did not know why his reasonable request to launch an investigation into the false allegations made against him by Mr Kareem were ignored? 102.The claimant thought race and his disclosures played a part in the way he had been treated. It could properly be said that that involves an element of speculation but all cases involve such an element particularly at inception. With discrimination claims litigants in person encounter even greater difficulties because they lack the skills of an experienced litigator to balance what may be a realistic and an unrealistic speculation and the evidence likely to be needed to raise inferences. Sight must not be lost that by the very nature of discrimination it is rarely admitted. Cases often turn upon not only the conscious but also the sub conscious motivation of the employer and its officers . This in turn requires careful examination of documents and the evidence. 103.The tribunal did not find Ms Levene submission that effectively the claimant should have accepted the respondent’s explanations and not litigated. Given the way he had been treated he had genuine grounds to be entitled to treat such reassurances with an intelligent degree of scepticism. He knew the respondent had denied discrimination in the case of Mr Kassem but the Morris tribunal had taken a different view on most of his claims. 104.Ms Levene submitted that the whole proceedings were predicated on an improper motive namely the claimant just wanted to clear his name. 105.The tribunal rejected that submission A claimant may reasonably have more than one motivation for bringing proceedings. 106.The mere fact that a person wishes to clear their name does not automatically mean that the threshold is met. 107.By way of illustration the employee who is dismissed and accused of theft and then offered by the respondent the maximum compensatory award but still proceeds to tribunal and succeeds is unlikely to meet the threshold because there is value in a public pronouncement of finding of unfair dismissal. Similarly the pregnant woman who is dismissed for alleged incompetence may properly bring a claim to seek to establish she was not incompetent and in reality she was discriminated against. 108.The tribunal while satisfied there was an element of the claimant seeking to validate his conduct he also genuinely believed he had been subjected to treatment which was discriminatory, that similar conduct could happen to others ( he knew another Indian doctor also believed they had been discriminated against and that doctor subsequently was to bring tribunal proceedings against the respondent, although after the claimant had commenced his claim), and he been subjected to detriments on the ground he made one or more protected disclosures. This was not a case where spite or a desire to harass the respondent played any part in the claimant’s decision to bring proceedings. 109.He was entitled to issue proceedings. He had genuine and well-founded concerns and it cannot be said that as the claimant put his case that it was flawed from inception. With professional help it may have been drafted differently and have been stronger but that was not the point. 110.At inception the tribunal was not satisfied that the respondent had demonstrated the claimant knew or ought to have known that all or parts of his claim had no reasonable prospect of success or he had acted unreasonably in bringing his claim. 111.The tribunal then proceeded to look at the various elements of the claimants claim to determine whether the threshold was met. 112.It started with time. It was not an individual claim but was in Ms Levene submission a fundamental weakness known to the claimant which infected the whole claim. Time 113.Ms Levene submitted that it was patently clear that the claimant’s claims were all out of time and the claimant knew that from inception. 114.In the claimant’s claim form he said “according to the principle, conduct over a period should be treated as occurring at the end of that period. In my case, the final act took place during the meeting with Susie Cook, the chief people officer on March [illegible] 2023. I kindly ask the tribunal to consider this equitable approach, as it was done in MK’s case against the Trust” 115.MK was a reference to Mr Kassem. The claimant had looked at the Morris judgement and noted that Mr Kaseem had been allowed to rely upon a number of alleged acts or omissions going back a number of years. 116.Thus the claimant had applied his mind to the issue of time and, as the tribunal has already noted taken legal advice, the contents of that advice which were consistent with his above understanding of the law. 117.He had pleaded an incident which was in time. It appeared he assumed that because the actions were taken by the respondent that amounted to a continuing state of affairs. That of course is wrong. However whether or not there was a continuing act or a one-off act with continuing consequences is not easy for lawyers, let alone lay persons to grasp. It was true the respondent pleaded the issue of time at the outset. This tribunal, applying its industrial knowledge struggled to remember a claim where a professionally represented party facing a number of discrimination allegations did not plead the issue of time. 118.Because whether there has or hasn’t been a continuing act is so fact sensitive it is not normally dealt with at a preliminary hearing because the evidence would overlap with the final hearing. It is that very reason that such matters are usually left to the tribunal that deals with the trial and that is supported by guidance from the EAT, for example in E -v X, L and Z UKEAT/0079/20. 119.He also knew that even if he was out of time the tribunal had a discretion to extend time hence the wording in his claim form “I kindly ask the tribunal to consider this equitable approach. 120.The claimant did not lead evidence at trial why it would have been just and equitable to extend time. There were matters he might have called in aid such as seeking to resolve matters via the grievance procedure but he did not, hence, at least in part the tribunal had to reject the claimant’s claims on the basis it lacked jurisdiction on the time point. The fact remained he had the information which, if argued differently might have led to some of his claim being in time if the tribunal exercised its discretion. He lacked the skill to marshal the facts to his best advantage, but that is not the same as saying he was acting unreasonably. 121.Having carefully weighed up all the above considerations the tribunal concluded 122.He did not act unreasonably and nor did he have no reasonable prospects of success. 123.If the tribunal were wrong on that point for the above reasons at the discretion Victimisation. 124.It is trite law but a claim of victimisation requires a protected act (or a belief that an employee has done or may do a protected act), detriment and then evidence that the detriment was because of the protected act. 125.As the tribunal noted in its liability judgement at paragraphs 35.3 and 35.4 it was necessary to look at the reason for the claimant’s treatment and what consciously or subconsciously consciously motivated the respondent. The protected act did not need to be the sole reason for the treatment, it merely had to have played a significant influence. 126.A concession had been made by the respondent that there had been a protected act. The tribunal had little hesitation in finding the claimant was subjected to a detriment. Where the claimant failed was in terms of leading sufficient evidence to show what consciously or subconsciously had motivated the information given to Ramsay healthcare. The claimant was hindered significantly in that task because he simply did not know who did it. A skilled practitioner might have probed this area earlier by means of a request for further information. As the tribunal found, it had to be one of three people at the respondent but the claimant could not say with certainty who it was. 127.Ms Levene placed weight on the tribunal’s findings found at 24.30 that the claimant accepted in cross examination that Mr Dwarakanath had no particular axe to grind with him because he had bought a grievance. What might have been explored in cross examination if the claimant had been an experienced advocate was Mr Dwarakanath position as a member of the respondent’s senior management team and how the respondent viewed the claimant’s grievance. 128.She did not in cross examination identify the other two possible suspects and what they knew of the claimant’s grievance. 129.The tribunal has to look at what the claimant knew or ought to have known at the time. He had made a protected act. There was a discussion as regards his LC practice. He agreed with Mr Dwarakanath to wind down his private LC practice. Someone from the respondent gave the impression to Ramsay healthcare that the claimant should not be undertaking LC operations forthwith .That was clearly wrong hence why what is best described as a comfort letter was sent by the respondent to Ramsay healthcare on 31 August 2022. 130.The tribunal is acutely aware it is difficult for a claimant to show what was the conscious or subconscious thought processes of a decision-maker when no one at the respondent appeared to know who had spoken to Ramsay healthcare and no records had been kept (or certainly no records that had been disclosed). 131.On the factual matrix the claimant had genuine and well-founded concerns. 132.He had two of have the essential elements of the claim. For the third element there were very suspicious circumstances. Some communication are taken place between the respondent and Ramsay healthcare. The respondent didn’t know or wouldn’t say who it was. No records were ever kept. 133.This was not a case of speculative assertion with nothing to support it. The claimant failed because he was unable to show the link between his detriment and his protected disclosure. 134.Having carefully weighed up all the above considerations the tribunal concluded 135.He did not act unreasonably and nor did he have no reasonable prospects of success. 136.If the tribunal were wrong on that point for the above reasons at the discretion did not realise at the time this element of his claim was flawed and the tribunal considered it harsh that the failure of the respondent to keep records on such an important matter should now be deployed against him. Protected disclosures 137.Ms Levene submitted this element of the claimant’s claim was fundamentally flawed for three principal reasons. 137.1.Firstly the lack of public interest. 137.2.Secondly that three of the detriments preceded the only viable disclosure . 137.3.Thirdly the lack of identification of what was the legal obligation referred to in section 43B (1) (b) ERA 96. 138.It was common ground at the liability hearing that two of the four disclosures made by the claimant were disclosures of information. It is relevant to point out that the respondent had not conceded that point in either its response or amended response and the concession was only obtained at trial by the tribunal. 139.Whilst the claimant conceded in cross examination that initially he considered the treatment unfair to himself he made clear he felt there was a public interest when he received the Blount report. This was not the case where the claimant had run his case solely on what he believed to be his own interests with not directing his mind at all to the requirement of public interest ( see paragraph 32.9 of the liability judgement.) 140.Simply because the tribunal found that the claimant had not established a public interest did not mean the threshold test had been met. The case law shows that the tribunals have adopted a broad and generous approach to what amounts to a public interest see Morgan -v- Royal Mencap Society [2016] IRR 428 and Underwood - v- Wincanton [2015]’s All ER (d) 129. In addition here, the claimant had taken advice and believed that if his concerns were of interest to members of the respondent that would amount to a public interest. There was a possibility that if the claimant had been professionally represented and put his case somewhat differently he might have established a public interest because in his own grievance he said the respondent not adhered to its own internal investigative processes (21.2.2) and that the respondent’s failures had raised significant concerns regarding transparency and fairness and its responsibility to provide accurate information to a regulatory body (21.2.5). 141.Ms Levene is correct that the claimant could not point to a specific legal obligation and she was right of the need for precision, see Blackbay Ventures Ltd - v- Gahir [2014] IRLR 416. The respondent could have applied for further information although the tribunal understood why tactically it may have chosen not to do so. The tribunal itself, with a litigant in person, may on reflection, have considered asking for specific information from the claimant. 142.In the tribunal’s judgement Ms Levene’s best point was that three of the protected disclosures could not succeed because the detriments relied upon postdated them. It was a point she raised and exploited skilfully in cross examination of the claimant at the liability hearing. 143.The difficulty the respondent faced is what was said to be so obvious now wasn’t patently obvious to either party at the time. 144.In the respondent’s amended Grounds of resistance (84 to 91) it did not expressly plead any of the disclosures were not disclosures of information, did not plead that the claimant had no reasonable belief that any disclosure failed the public interest, test, did not plead that section 43B (1) (b) and (c) were not engaged but more significantly of all ,the crucial matter that three of the claims could not have any chance of success because they postdated the detriments. 145.On the face of it the respondent had not appreciated the point at the time. If the respondent had appreciated the omission the claimant was not on notice from the amened response as to this difficulty. 146.Having carefully weighed up all the above considerations the tribunal concluded 147.The claimant did not act unreasonably and nor did he have no reasonable prospects of success. On what he knew he considered reasonably, as a litigant in person, he had a claim. 148.If the tribunal were wrong to reject the respondent’s argument at the threshold Direct discrimination/harassment 149.The tribunal dealt with these matters together given they were based on the same facts, and pleaded in the alternative. 150.Ms Levene submitted that on careful examination of the respondents amended response not only had it denied direct race discrimination but it also set out in clear language why it had acted as it did. In those explanations it explained its behaviour and thus the “something more” that was required in a direct discrimination complaint could not have been made out. 151.It is proper to record the respondent only conceded that some of the matters relied upon by the claimant were detriments when pressed at the liability hearing by the tribunal. 152.As the tribunal has already noted, given that discrimination in all its forms is very rarely admitted ,claimants frequently have to rely upon establishing primary facts and then inviting the tribunal to draw inferences , often from information obtained as a result of cross examination. It is difficult, hence why the success rate for claimants in discrimination claims is relatively low. 153.Ms Callan was right that discrimination claims involved careful analysis of what will often complex legal principles. The tribunal accepted that submission but did not find, simply in itself, that was a reason why the threshold should not be met. It was merely a factor to be taken into account. 154.Ms Levene took the tribunal to the respondents amended response particularly at paragraphs 22.1 to 22.6. (87 to 89). 155.The pleading is peppered with phrases such as “the respondent was under no legal obligation to…” That is not a complete answer to a discrimination complaint. 156.It is also proper to record the one matter that Ms Levene relied upon trial, judicial procedure immunity did not form part of either the respondent’s response or amended response, although as the tribunal had noted the claimant was aware the defence would be raised, at the latest, about 6 to 8 weeks before trial 157.Ms Levene is right that the respondent did provide some explanation as to why it did what it did and that did not appear to be related to race. Again as the tribunal have already mentioned context is everything, and the previous history of treatment of the claimant by the respondent he was entitled to have a sceptical view of what was being told to him. 158.The tribunal is conscious that simply because the claimant pressed on and was unsuccessful, it did not follow a costs order should be made. Nor should the fact that the claimant had an optimistic view of his chance of success, when others may have taken a more pessimistic view be held against it. The tribunal was mindful that there might be more than one reasonable conclusion to reach as the prospects or otherwise, of a claim’s success. It was relevant that the claimant was completely inexperienced and it is wrong to judge him against the standards of the legal professional. 159.Having carefully reflected upon the submissions and having considered that this aspect of the claim was Ms Levene’s stronger point it still was not satisfied t the threshold criteria was not met. 160.The claimant did not act unreasonably and nor did he have no reasonable prospects of success. 161. If the tribunal were wrong to reject the respondent’s argument at the threshold