Dr K SidahmedClaimantGlenworth House LtdRespondent
Before
Employment Judge Britton
Members
Mr G AustinMs H AndrewsDate 13 February 2017
JUDGMENT
[1]The claim of automatically unfair dismissal by reason of whistleblowing is dismissed.[2]The claim of disability discrimination is dismissed. . For the avoidance of doubt this means that all claims are dismissed.
REASONS
Introduction and Issues and first focussing upon disability discrimination[1]In dealing with the issues the Tribunal has had a two volume agreed bundle. It has heard sworn evidence from first the Claimant (hereinafter referred to as Dr Sidahmed), and then for the Respondent from Joanna Harrison- Taylor (JHT) who dismissed the Claimant. The evidence in chief of each was by a witness statement.[2]The Claim (ET1) was presented to the Tribunal on 21st February 2014. Dr Sidahmed then had Solicitors, Ringrose Law. There has been a long procedural history in this case which suffice it to say does not need to be further explored other than we shall now deal with the issues as they were by the time the hearing commenced on 22nd August 2016. The claims that were brought by to the Tribunal centre upon first, whether he was discriminated against by way of the protected characteristic of disability. It is not disputed for the purposes of the case that Dr Sidahmed has two disabilities, first the residual effects of surgery for a brain tumour circa 2007; second he has a condition known as Polycythaemia Vera diagnosed in October 2010, which is a cancer of the red blood cells. The issue however, is as to whether the behaviour which led to his dismissal is as a consequence of either or both of those disabilities. In this respect Dr Sidahmed had an external appraisal dated 13 June 2013 undertaken in relation to him during his period of practice with the Respondent by a Doctor Meyers. In the context thereof, he had to make a health declaration (Bp 113). He did not declare that there was anything which stood in the way of his being fully competent to practice as a Consultant psychiatrist which was the role to which he had been appointed by the Respondent on 1 September 2012; we bear in mind that this was a full time position which was demanding, this being a failing institution.[3]In relation to the events that we shall explore, Dr Sidahmed brings claims in relation to those disabilities of direct discrimination pursuant to section 13 of the Equality Act 2010 (EqA), indirect discrimination contrary to section 19, unfavourable treatment related to disability consequent upon section 15, and failure to make reasonable adjustments contrary to section 20.[4]Dr Sidahmed also brings a claim of automatic unfair dismissal by reason of whistleblowing pursuant to section 103A of the Employment Rights Act 1996 (ERA). He does not have qualifying service to bring a claim of unfair dismissal per se, having only been employed in the role of Consultant Psychiatrist at the Meadow View Independent Hospital operated by the Respondents between 1st September 2012 and his summary dismissal for gross misconduct circa 22nd November 2013.[5]In exploring the issues before the Tribunal, the first fundamental issue relates to the interrelationship of the disability to the behaviour which was found to be gross misconduct and whether or not the behaviour can in whole or part be explained by the disabilities. If so, was there was a failure by the employer, if he had had sufficient notice of the same, to taken that into account before dismissing him, i.e. reasonable adjustments. Furthermore if there is this causative link, in dismissing him did the Respondent treat him less favourably (s13) or unfavourably (s15) because of the disability.[6]The key point to make in that respect in terms of the originating claim (ET1) is that which was pleaded in this respect between paragraphs 10 and 16 of the particulars of claim. Thus that in relation to the investigative and disciplinary process, including the appeal, his disabilities meant that he was unable to effectively engage in the process such as being allowed additional time to review his notes, take in what was being said and be able to explain himself. Also, ie paragraph 12, insofar as the allegations relating to his personality and relationship with others and which goes in part to the gross misconduct that, “…His disability and the medication he received in respect of the same obviously affects those relationships. The Respondents took no account of the Claimant’s status as a disabled person and did not consider the effect of any medication in respect of the disciplinary allegations against him.”[7]And at paragraph 13, in relation to the allegations relating to his not being at work sufficiently or being late to important meetings including mental health assessments that: “….The Claimant notes that most of his absences related to his disability whether by way of attendance of medical appointments or, alternatively, by the Claimant adjusting his hours of work to accommodate his medication and his disability. In the circumstances the Claimant considers that the termination of his employment was an act of direct discrimination, or, in the alternative, an act of disability related discrimination.”[8]Then at paragraph 16, in relation to the appeal against the dismissal heard on 7th February 2014: “…He also explained how through disability and medication affected his personal relationships and that he believed that account should be taken of the same when considering the allegations against him”.[9]Thus in relation to the disability issues this case has seated itself on the following fundamentals.9.1 Was there evidence that Dr Sidahmed had behaved in an aggressive way towards colleagues in the multi-disciplinary team as to which see the appendixes in the bundles before us for the purposes of the disciplinary process? We shall further explore this matter in due course in relation to the unfair dismissal and whistle blowing allegations, but as to disabilities suffice it to say for the purpose of the discourse on the issue as to their interface as set out from the particulars of claim, that there is clear evidence that he was so behaving towards colleagues including being aggressive, raising his voice and being dismissive of them in relation to their work in the MDT ; and being insulting and disparaging about some of them and also a Clinical Pharmacist Manoj Kumar (MK) when the latter was legitimately seeking to draw attention to Dr Sidahmed his shortcomings in the vital notes kept on individual mental health patients in what is a secure unit. There was also evidence that in his duties as a medical member of the Mental Health Appeals tribunal, and which he had been a member of before he joined the Respondent and continued as such during his employment, that he had behaved inappropriately towards colleagues on the panel and which caused difficulties for the Respondent. Suffice it to say in relation to the GMC documentation which is also before us, that there was clear evidence that this behaviour caused great concern at the highest level of the TRIBUNALS JUDICIARY First Tier Tribunal (Health, Education and Social Care) Mental Health . There is then the issue of his failing to make appointments on time and in fact being very late for them at two prisons in relation to his undertaking mental health assessments of inmates in his role as the Consultant Psychiatrist for the Respondent. It is obviously dependent on income in terms of transfers of suitably assessed prisoner inmates to its secure establishment.9.2 Thus given this wealth of documented evidence the issue becomes is there medical evidence that establishes on a balance of probabilities, and with the burden of proof upon Dr Sidahmed, that these shortcomings are as a consequence of the disabilities? Summarisation of the legal principles engaged as to the disability claims and application to the scenario[10]Counsel for Dr Sidahmed has taken a sensible view before us. He hasn’t withdrawn any of the claims based upon other than s15, but he has made it plain in his closing written submissions that he sees the case as primarily seated on s15 of the EqA.[11]Cross referencing to the closing written submissions of Ms Omeri, she makes the valid point that at no time has Dr Sidahmed provided for the purposes of the section 13 direct discrimination claim, any evidence of an actual, or construction of a hypothetical, comparator. And, course, for the purposes of the section 13 claim, the core words are “less favourable” in terms of discriminatory treatment, and which requires the deployment of a more favourably treated comparator. Then there is the hurdle that Dr Sidahmed faces given the judgment of their Lordships in Major and Burgesses of the London Borough of Lewisham v Malcolm (2008) IRLR 700, HL, and which this presiding Judge touched upon at the start of the case. Thus would a non-disabled consultant psychiatrist in a similar senior position, behaving in the same way as Dr Sidahmed have been treated just the same? Obviously absent evidence to the contrary, this is more than likely to be the hypothetical case. If so, this cannot be a direct discrimination claim. Suffice it to say that there has been no argument deployed or evidence put to the contrary by Dr Sidahmed. Thus the s13 case collapses at the first fence.[12]Ms Omeri has also pointed out that if the claim of indirect discrimination pursuant to s19 of the EqA is being pursued then we have not been provided with even the identification and thence deploying of a provision criteria practice (PCP) by Dr Sidahmed. It is the first fundamental of such a case. Thus it to falls at the first fence. The same applies to the failure to make reasonable adjustment under s20 in terms of a PCP . Thus having eliminated those heads of claim and thus dismissed them, we are back to reliance by Dr Sidahmed on s15:- unfavourable treatment.[13]But crucial is the definition. Section 15 states:-(1) A person (A) discriminates against a disabled person (B) if- (a) A treats B unfavourably because of something arising in consequence of B’s disability , and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.(2) Subsection (1) does not apply if A shows that A did not know or could not have reasonably been expected to know, that B had the disability.[14]Thus we start with the obvious: Dr Sidahmed being dismissed means he has been treated unfavourably. But it is back to the fundamental, is that treatment of him “because of something arising in consequence of his disability”. As we have already pointed out it was pleaded fair and square in the ET1 that there were traits of Dr Sidahmed’s behaviour which were consequential upon his disabilities.[15]Dealing briefly with the reasonable adjustment issues in the sense that under s15 and in terms of the justification defence, the Respondent would have to show, if the disability was engaged, that it made allowance for it at such as the disciplinary hearing if the disciplinary process placed Dr Sidahmed at a disadvantage because, and this is an articulation so to speak of this part of the claim, he suffered from a cognitive impairment such as forgetfulness or an inability to concentrate which therefore disadvantaged him in the process, suffice it to say that at no stage at all during any part of the internal process did Dr Sidahmed ever raise that he was so disadvantaged. The process itself meets ACAS Code of Practice best practice. In other words, interviewed for the purpose of the investigative process; provided with a letter asking him to attend a disciplinary hearing and setting out fully as to why with copies of all the evidence being relied upon provided; making clear his right to be accompanied; finally setting out the potential consequence ie dismissal. Furthermore at the disciplinary which was conducted by Dr Jo Harrison Taylor (JHT), the Project Director for the Respondent, she specifically made it clear at the start, as she had done in the letter inviting him, that if he needed any time then he could have it. She also asked him if he was sure that he wished to proceed without having a colleague present and he made plain that he did. Thus taking all the evidence before us we can conclude that he was not disadvantaged in any way. Dr Sidahmed is and most importantly, was at the material time, very articulate, able to write comprehensively defending himself; indeed continued so to do in terms of the many documents that he sent into the Tribunal. Then shortly dealing with the appeal that was heard by Mr Frank Cummins (FC), the then Clinical Director and Appeals Manager for the Respondent Trust, the same applies.[16]What Dr Sidahmed did make reference to in his disciplinary hearing is that he had a problem with itching, particularly in the morning when having a shower, relating to one or other of his disabilities and that the Polycythaemia could affect his memory (Bp 201); that he did suffer from headaches and forgetfulness and referenced again to the itchiness. Given that the Respondent through Mr T Convery (TC), who had been the Hospital Director at the time of the appointment of Dr Sidahmed, knew of his disabilities, the question of course would then become as to whether JHT or FC should have, when Dr Sidahmed told them about these side effects so to speak, have stopped the process in order to undertake a medical exploration. But Dr Sidahmed never deployed this in order to submit that he was disadvantaged in the disciplinary process; and we have now made plain that the evidence is that he was not. And JHT makes the point before us that Dr Sidahmed never sought to argue that any part of his disabilities i.e. in particular the Polycythaemia and itching would explain his behaviour to his colleagues at work. In that respect he was robust in his explanations and scathingly critical of those he had worked with, and in particular those who complained about him. And we repeat that he has deployed no medical evidence to assert the link between the behaviour and the disability.[17]Thus the issue squares itself and can be put simply thus. Post Dr Sidahmed‘s dismissal, he was reported in the usual way, because it is obliged to, by the Respondent to the GMC. The latter made an interim order on 4th March which prohibited him from practicing as a Consultant and which was renewed on 13th August 2014. As part of the GMC investigative process it had been flagged up as to whether Dr Sidahmed might not be fit to practice and in particular whether there was cognitive impairment. Suffice it to say that the GMC obtained two most comprehensive psychiatric reports from obviously leaders in the psychiatric field, in that both are clearly from the recitation of their CVs to their reports, eminent Psychiatrists. Both were fully aware of Dr Sidahmed’s medical history in terms of the surgery on his brain tumour from which he made a remarkably good recovery and the diagnosis of Polycythaemia. Suffice it to say that they found no evidence whatsoever of adverse behavioural changes or impact upon cognitive function which of course would include such things as memory loss. What it means is that Dr Sidahmed has no medical evidence to gainsay those two eminent opinions. The reports are in Vol 2 of the bundle between Bp 474 and 497. Both were written in December 2014: So within a year of the dismissal of Dr Sidahmed. There is no evidence deployed by him that what they found could be explained by an improvement in his health. In fact his health has seriously deteriorated and he has suffered substantial weight loss.[18]Therefore we can now take this part of the case short. Going back to section 15, is there any evidence that Dr Sidahmed was treated unfavourably because of something arising in consequence of his disabilities? The answer is that there is no medical evidence at all before us that the behaviour which led to his dismissal arises in consequence of his disability. Thus the section 15 claim must fail. Insofar as there might be a subsidiary claim under section 20 of failing to make a reasonable adjustment, it could only therefore engage in relation to whether or not the dismissal and appeal process meant that an adjustment should have been made because of Dr Sidahmed’s inability to cope because of, for instance, loss of cognitive function. But, again, there is no such medical evidence.[19]We would finally thus observe this. Once it became apparent that there was this medical evidence in the bundle and nothing to gainsay it, the Tribunal did, without going any further than that, on more than one occasion query as to whether their was any merit in continuing the disability claim, Counsel for Dr Sidahmed made clear, as he is of course entitled to, that he had “his instructions”. Conclusion on the disability based claims.[20]For all the above reason the claims are dismissed. The Automatically Unfair Dismissal Claim[21]We said earlier that Dr Sidahmed does not have the necessary two years qualifying service to bring a claim of unfair dismissal pursuant to section 98 (4) of the ERA. However, he is bringing a claim on the basis that a reason for his dismissal was for whistle blowing. The qualifying service rule does not apply. Engaged is section 103A of the ERA, “An employee who is dismissed shall be regarded for the purposes of this part as unfairly dismissed if the reason (or if more than one the principal reason) for the dismissal is that the employee made a protected disclosure.”[22]For the purpose of the arguments before the Tribunal and the determination of whether or not Dr Sidahmed was automatically unfairly dismissed, the Respondent accepts he made what would constitute protected interest disclosures as per the definition commencing at section 43A of the ERA. The relevant order from the Employment Tribunal in terms of the preceding case management to this Hearing produced a schedule of the public interest disclosures that he relied upon. This is at volume 1 Bp 28 – 46. These disclosures which have to do first with the state of the Meadow View secure unit when he took up his appointment, start in August 2012; in other words at around the time Dr Sidahmed commenced the job. They relate to such things as the need to undertake ECGs of patients; shortcomings in the use of lithium; poor quality of food; patient leave being cancelled; the need for a seclusion room; the need for an external wall to be built; dining room tables not of an acceptable design; lack of fans and access to water for patients; shortage of staff and over reliance on bank and locum nurses to monitor the usage of strong prescribed medicines such a Olanzopine; security issues in terms of the risk of patients escaping. He repeated his concerns up the management chain including to Mr J Stewart, Board Member, circa May/June 2013; independent Hospital Managers in September 2013; and, he says (and we start with this one) to the CQC inspectors when they visited Meadow View at which visit he says he was present. In his evidence in chief he put the date as being September/October 2013.[23]So what he is saying is, that as a result of him being a persistent raiser of legitimate concerns covered by the definition of whistle blowing , and particularly being so entitled to do as the Consultant Psychiatrist for Meadow View, that the Respondent seized upon the complaints made against him by colleagues in the MDT and what came to light in terms of the ensuing investigation, in order to dismiss him when those “charges against the Claimant were for the most part trivial” as to which see in particular paragraph 24 of the closing submissions for Dr Sidahmed. The significance of his contention in the schedule of issues, and thus causation in relation to CQC and its highly critical report, was that the inspection was thus before he was called to the investigatory meeting on the 25 October 2013 and his suspension on the 8th November. Thus it is obvious from the original claim and indeed the further and better particulars, that Dr Sidahmed was seeing this as more than coincidental. In other words he was the person in the most senior medical role at Meadow View who told the CQC inspectors when they came of all the complaints he had previously made and that most of them had not been carried through. This in turn, at least in part, led to the adverse report; thus it is easy to draw the inference that the decision to suspend him and go down the disciplinary route was not just coincidental.[24]There is however, one huge flaw in this contention and it does go to credibility. This is because, in fact, the inspection in the year 2013 was on 13th and 14th November (see Bp 144a). Dr Sidahmed could not possibly have taken part as he was under suspension and forbidden to attend Meadow View. The previous CQC inspection, which had again led to an adverse report, was 5th December 2012 (Bp 77a). Dr Sidahmed continued to allege the link to the second inspection. Indeed it is repeated in the main witness statement he put before the Tribunal at paragraphs 75 – 77, and in particular encapsulated in that last paragraph: “The Respondent suggests and would have the Tribunal believe that the reason for my dismissal was misconduct. That is not the case. It was only after my disclosures were made to the CQC that any action was taken. The timing of that action, a matter of weeks after the disclosure was made cannot be discounted or ignored. It is not a coincidence…” .[25]Thus when this issue began to be explored under cross examination, and as to whether Dr Sidahmed was being truthful on this issue, he reiterated that he had spoken to the CQC inspectors during the inspection. It having been put that this was wrong, the Tribunal required that we have before us the report. This then occurred. Thus we became aware that the relevant CQC inspection and the publication of the ensuing report took place after the suspension and not before. The relevant CQC report is now at Bp 144a. The inspection was on the 13-14 November 2013. There is no record of the inspectors speaking to Dr Sidahmed. Reference is made to inter alia speaking to the “hospital director”. That was Tom Convery (TC). He has yet to resign, which he did on the 29 December (Bp591). The report of the CQC was published in the December. The exact date is not given. But it follows that its publication was after the decision to dismiss Dr Sidahmed was made by JHT on the 20 November (see letter to him at Bp 162-5), the dismissal being effective from the 21st.[26]As to his assertion about being present at the CQC inspection and the causative link, he was asked, given CQC reports are published free of charge on the internet, as to why he had not checked before committing himself. This elicited the curious answer: “I had no interest.” Furthermore, of course, there was the problem that he could not have spoken to them even if he had been let in on 14th November because he was at his disciplinary hearing in Market Rasen and therefore not at the premises in Gainsborough. After further questions from the panel Dr Sidahmed conceded that he must have got it wrong and that when he was referring to raising concerns with the CQC inspectors it must have been at the previous year’s inspection 5th December 2012.[27]But as a causative link, that does not hold water. First as to hostility to his demands from the management hierarchy that there be major improvements at Meadow View and thus there was an agenda underway to look for a reason to dismiss him, following the first CQC inspection on 5th December 2012, on 10th January 2013 Dr Sidahmed wrote a detailed guidance for the members of the MDT team on the role of MAPPA (Multi-agency Public Protection Arrangements). This is an overarching body outside the Respondent which would bring together the various professional agencies such as Police, Social Services, mental health etc. when dealing with, for instance, a potential resident of a secure unit or discussing discharge arrangements for an inmate from a prison on the basis that they might be then placed in a unit such as Meadow View. If this document was a PID it can be seen to be supportive and explanatory and not aggressive; and there is no evidence that there was an adverse reaction to it at all.[28]On 17th May 2013 Dr Sidahmed’s line manager, TC, received an anonymous complaint from members of the MDT working with Dr Sidahmed (Bp 84-5). It raised concerns which then resurrect themselves in terms of the open (non-anonymous complaints) from the team which come circa 25th October 2013 and which led to the requirement that Dr Sidahmed attend a disciplinary investigation and also his suspension.[29]The 25th October allegations (Bp 134) are of a similar nature to those made on 17th May. They also point to his behaviour worsening. There is therein reference inter alia to that on 22nd October he had made: “…a sustained and aggressive verbal attack on the competence and behaviour of Jenefer Hudson, Trainee Forensic Psychologist. This caused Jenefer to leave the ward round tearful and visibly upset.”[30]There are other instances of such behaviour ie towards the seven month pregnant social worker Kim Morton (see the summary of the complaints at Bp 134-5 and the TC investigation report commencing at Bp137). A final example, sufficient for our purposes to illustrate the seriousness of the complaints, is rudeness and arrogance displayed to a Clinical Pharmacist, Manoj Kumar (MK), on 15th October. The evidence in the appendixes emerging out of the investigation completed by TC shows that MK was attempting to professionally and correctly draw to the attention of Dr Sidahmed that he had failed to accurately complete the all important care forms in relation to patients known as T2s.[31]Reverting to the complaints raised on 17th May 2013, Dr Sidahmed replied thereto, at length on 10th June 2013, (Bp86 – 96). This is a strident defence. TC then appears to have done nothing about these issues, despite that these were concerns being raised by more than one member of the MDT. It would have been reasonable in terms of both sides to have explored matters further if for no other reason than to seek to restore what were clearly deteriorating working relationships. But, of course it is clear that Dr Sidahmed had, certainly at that time, a dominant and forceful personality. May be at that stage as the complaints were anonymous, TC simply backed off, albeit he was to discuss the widening concerns with Sarah Carpenter and David Bateman on the 21st August and to which we will return.[32]But going back to our observation about “holed in the water”, if TC was looking for an excuse to punish, indeed get rid of Dr Sidahmed, for whistle blowing including at the first CQC inspection, then surely this would have been a golden opportunity? But it was not taken. But more important, perhaps, is that from Dr Sidahmed’s disclosures that he does rely upon in this period, which are set out by him in terms of what appear to have been emails transcribed by him between himself and TC between April 13 and June 2013 (Bp 127 – 133) the following can be observed. He was raising his various concerns about the shortcomings in terms of care at the unit. Cross reference to the completion of his part of the appraisal with the external appraiser, Dr Meyer, dated 14th June 2013, (in particular see Bp 108), and it is clear that some progress was being made in relation to what Dr Sidahmed wanted to see : there was already a change for the better at Meadow View. The provision of such as ECG equipment; improvement in the furniture; better food and patient care practices, were already under way. And in terms of his perseverance as to the improvements he considered were needed in the unit, far from TC being off-putting, indifferent or in particular hostile, the opposite can be gleaned. For instance, at the top of Bp 131 in relation to a lengthy critique of where the unit was now at and where it needed to go in terms of improvement and written by Dr Sidahmed circa June 2013, TC signs off: “I would also take this opportunity for thanking you for the personal support you have shown to me, kind regards Tom.”[33]Of course, none of that is indicative of hostility to Dr Sidahmed wishing to see improvements at the unit. Finally, in terms of the appraisal being completed with the external appraiser Dr Meyers, Dr Sidahmed was setting out, commencing at Bp 107, how he was being enabled to effect improvements and how such as additional staff were being recruited. His only reference to any problems was (Bp 120): “One non-clinical complaint was discussed. This was considered to be a vexatious complaint from a co-worker. We understand that the manager who received this complaint will be taking no further action over it. “[34]That of course is a reference to the anonymous complaint. So what it means is that there is absolutely no evidence that during the period prior to the issues in October that lead to suspension, that there was any hostility by management, TC upwards, in relation to Dr Sidahmed’s demands in relation to Meadow View. Incidents leading to the Disciplinary process and the dismissal[35]On the 21st August TC saw Sarah Carpenter and David Bateman “in relation to the concerns of the MDT about the working practices of Dr Sidahmed . Put in summary what that record shows is that these two senior medical professionals, Sarah Carpenter was the Lead Clinical Psychologist, were voicing the concerns of the MDT about the Claimant. Of course we are aware that the MDT is of a significant status in mental health practice because the medical, nursing, and social worker practitioners work on a collegiate basis. Of course the Consultant Psychiatrist leads but in consultation with his colleagues: a process which is also recognised by GMC as best practice, hence it is referred to in the subsequent GMC proceedings relating to Dr Sidahmed following his dismissal by the Respondent. Gone are the days when the Consultant’s word was law, so to speak, and others in the team were expected to defer and remain silent on such as clinical issues and best practice. This is not how MDTs work.[36]So what the evidence shows, put simply, is that although he could on occasion be a perfectly reasonable colleague, on the other hand he could be rude, arrogant and over bearing in his approach. Furthermore this behaviour had noticeably worsened over the preceding six months and significantly deteriorated in the last three. Of course that may coincide with his receiving the anonymous complaint. Also there were concerns as to his competency Bp183): “SC: ….prone to taking unwarranted risks with some patients”. Considerable detail was given.[37]And: “SC: We are all aware of the physical health problems that the RC has faced and we have been happy to provide support to him…. . However we do not feel that he reciprocates the support…he is inconsistent in his conversations with the MDT and is too willing to denigrate the role of others. Above all he will make unilateral decisions about things such as leave in the absence of any information about the risks posed by the patient, environmental risks at the venue or the family dynamics if a home is decided. It is particularly worrying that he refuses to alter his thinking even when such risks are pointed out to him”[38]This is but a summary of serious detailed concerns.[39]Of course, those complaints have got nothing to do with whisteblowing. None of these members of staff had been the recipient of any public interest disclosures from Dr Sidahmed. They don’t feature on the list of disclosures put before us on behalf of him.[40]Whilst TC was in effect mulling over what to do, the situation escalated. In particular first over patient LP and second the proposed home leave for patient DS. This is taken up in the interviews that TC conducted with Jennifer Hudson, post events coming to light and on 29th October 2013 (appendix 4 Bp 205 – 7); Kris Morton, Medical Social Worker (Bp 208); SC (Bp 215 -217); and MK, as to which see his complaint at Bp 218. The thrust of the first three witnesses’ evidence as to clinical concerns as well as Dr Sidahmed’s behaviour has to do with how matters developed over leave arrangements over these two patients. The first was in relation to patient LP. Dr Sidahmed had decided circa 14th October that he should have home leave. But on the face of it from, for instance Jennifer Hudson’s report at Bp 209, LP was in an agitated state and, to cut a long story short, the MDT team had been against him having home leave. Their concerns were that he could take alcohol, possibly also illegal substances and, given his propensity in relation to the same and the impact that it had on his behaviour, that he could in those circumstances self harm and also be a risk to the public. They were over ruled by Dr Sidahmed and then there worst fears were concerned when LP behaved as they had predicted thus leading to an incident requiring police intervention. Their additional concern was that Dr Sidahmed had entered on the notes that they had agreed to the overnight leave night leave when they hadn’t. When challenged he became hostile, in particular at first to Kris Morton, the Social Worker, and then to SC. And it spilled over into a discussion about similar concerns about allowing another patient, DS, home leave. Kris Morton was at the time, eight months pregnant and although she sees herself as “pretty resilient”, however: “his tone and manner and how he speaks with me on a regular basis, is causing unnecessary distress”.[41]Finally and in terms of the conclusion of Jo Harrison Taylor (JHT) at the disciplinary hearing held on 14th November 2013 (Bp145-161), that this behaviour was consistent with and thus corroborated the complaint of MK, the evidence was a follows: Normally Dr Sidahmed would work with another Clinical Pharmacist, Matthew. But on the 15 October MK was the clinical pharmacist on duty. As part of his job he pointed out to Dr Sidahmed that some of the T2/T3s were not correct. They are otherwise known as Form C Audit Medicines Management, they constitute an individual record of all medicines given to a particular patient; inter alia when and by whom. As can be seen, by way of example Bp 223, they will invariably be completed by the Consultant Psychiatrist. This example has been completed in his handwriting by Dr Sidahmed. So it would clearly be part of the Clinical Pharmacist’s role to point out if the Consultant was not completing such a T2 accurately or fully: “…but he did not listen to me but simply talked over me and stormed out , before he left he said he never got this problem with Mathew pointing at the notes Dave was making and I in future was to leave my comments on the ward and he will deal with them and that he did not want to see me. ... The doctor’s nature towards to me was I felt a bit aggressive, especially when he started to raise his voice. He made me feel small and showed me no respect as a fellow professional. ..After the meeting I was a bit shaken up. I had to go out and compose myself. …”[42]It is on the basis of all the above evidence which he obtained, that TC decided that there ought to be a disciplinary process. He summarised the evidence that he had obtained which is in his investigation report. The final investigation report was completed after he had met with Dr Sidahmed to give him a full opportunity to answer the allegations. This was on the 29th October (Bp 190-204). Counsel for the Claimant makes the point that he had prejudged the issue in that his initial conclusions that there was a case to answer predate the interview with the Claimant. He concluded on 13th October 2013: “I am of the firm belief that to continue with Dr Sidahmed as RC at MVH, would place everyone at MVH, patients and staff at an unacceptable and unnecessary risk both physically and clinically. This is becoming more visible to external organisations, our commissioners and most importantly our patients. Our clinical reputation is put in jeopardy every time we have a CPA, Hospital Managers Meeting or a MRHT. His erratic and unpredictable behaviour will cause significant damage to our clinical reputation. My recommendation is that these matters are considered in accordance with the Caring Homes Disciplinary Procedures”.[43]Of course, by then, he did not just have these internal concerns which had been raised, by now, at least twice, but he had external issues which had also been raised and relate to Dr Sidahmed’s conduct when attending for such as mental health appeal tribunals or the assessments to which we have referred at prisons. He had been late to the same or abrasively unprofessional.[44]But is TC prejudging issues? He wasn’t of course the disciplining officer: that was JHT. The fact of the matter is that TC did not submit his final investigation report until he had interviewed Dr Sidahmed. The latter had a full opportunity to explain himself in respect of which we have touched upon in terms of the disability issue; and he was able to give a full account of himself (see appendix 3 p190 – 204). The Claimant was on the offensive, so to speak. He denied any shortcoming in his treatment of the patient LP and said that in fact it was “Jen and Sarah who were pushing me to sign the form”. That is the S17 leave form.[45]Leaving aside that this was directly contrary to what was alleged by “Jen” and SC and that of course Dr Sidahmed was the consultant in charge and with a strong personality, there is then the following passage: “TC explained that the team (Psychology Nursing and Social Working Team) believes that the patient should not have gone out on leave”. The answer from the Claimant was: “They are wrong. They do not have the right to cancel leave. KS said that both Jen and Sarah were lying as they both asked KS to sign the section 17 leave form. .”[46]As to Kris Morton he was dismissive of her and her opinion stating that she was one of the “rudest people he has come across, that she ignores him and keeps talking”. As to raising his voice he stated that not only did he not do that, but: “further stated that this is what English people do, they say they raise your voice. He stated it didn’t matter to him whether it was a woman, child or pregnant person, he would always say what he needed to say. As to whether he made, as alleged, “a sustained and aggressive verbal attack on the competence and behaviour of Jenny, Trainee Forensic Psychologist, and caused Jenny to leave the ward tearful and visibly upset”, he referred to Jennifer, “as the wicked girl” (bp 194). He denied that he had previously treated them in an aggressive or bullying fashion and in summary, “they were lying” (Bp 196)[47]As to the issue of MK and the T2s, and that MK had shown five of them to Dr Sidahmed on which there were mistakes made by the latter (Bp 198), TC showed Dr Sidahmed the originals. We have copies in the bundle. It was put to him that these were “fundamental basic errors”. The Claimant’s position was that this was “correctable and this is in the code of practice”.[48]Leaving that to one side, the question posed by TC to him was whether MK was correct in saying that the reaction to his raising perfectly legitimate professional concerns was that Dr Sidahmed was aggressive, rude and dismissive. Dr Sidahmed did not admit that he shouted as such. What he did say is that he: “did not like the Pharmacist’s face and that he did not need to have a meeting face to face. He found Manoj rude”.[49]It is indicative of Dr Sidahmed’s arrogance which is a conclusion we are drawn to that he then said: “Manoj is more than welcome to attend in hospital but he does not wish to see him face to face as nothing would be lost as the hospital would be running fine”.[50]Suffice it to say that all of this prima facie would, despite the valiant efforts of Counsel for Dr Sidahmed, warrant suspension and the holding of a disciplinary hearing with a potential outcome being dismissal for gross misconduct. There was sufficient evidence of bullying and harassment available coupled with a contemptuous attitude to other members of the MDT team; and although he wasn’t disciplined for it, considerable cause for concern about the allowing out on leave of LP and the other professional shortcomings. It is something that the GMC was very concerned about as is clear from its findings. Summary so far[51]It follows that there was sufficient evidence to warrant the matter going to a disciplinary hearing. Despite the valiant efforts of Counsel for Dr Sidahmed the evidence was corroborated and not trivial. For the reasons we have rehearsed there was no link in terms of the complaints to whistle blowing. And the documentary evidence clearly shows the same in relation to TC. We note that Dr Sidahmed did not raise any link to whistle blowing or thus mal fides by TC at any stage of the investigatory or dismissal process prior to TC resigning on 29 December 2013 (Bp 591). He only first raised it at the appeal hearing the following year. But TC resigned allegedly dissatisfied with the lack of progress and support from higher management following the CQC inspection in relation to the capital expenditure needed to fund the improvements programme still needed for Meadow View. Of course, that doesn’t fit with a man who had been engaged in a witch hunt to get rid of Dr Sidahmed because he has been raising concerns. Role of JHT[52]That brings us to the evidence of Jo Harrison Taylor (JHT). She is a health professional with the most extensive CV. She has many qualifications including as a Forensic Social Worker. She has worked as an approved mental health practitioner; has three diplomas in psychology; has then worked in the prison and secure services; following that seventeen years continuous employment in the NHS; she has a Management degree and also inter alia a Post Graduate Diploma in Management in Health and Social Care; finally an MSc. She now works in the private sector and was brought in to try and turn around the Respondent group when it was in difficulties. The then Operations Director, Allen Whittle, went off sick in April 2013 never to return and that is how she came to be recruited.[53]Her first priority was not Meadow View. It was in the capable hands of TC. Instead she was heavily involved in decommissioning another facility in Berkshire – Harts Leap. She spent little time during this period at Meadow View. Therefore she has told us that prior to the disciplinary hearing on 14th November 2013 and in that context reading the investigation report and appendices, she had no knowledge of what had been going on at Meadow View in relation to Dr Sidahmed or of any whistle blowing, if indeed there had been any. Unlike the Claimant, we found her to be a consistent and credible witness. And she told us that even though it did not occur, she would not have bowed down to say the most senior directors and shareholders management to for example suppress genuine whistle blowers and issues they might raise and because the patient must come first. Indeed, she got the Board to agree to a moratorium on any further recruitment of inmates to Meadow View, even though it needed the income and therefore it might have impact on the profit and loss, until it was improved and met the standards which, of course, by now had again been flagged up as needing to be met by the CQC. There is no evidence to contradict her. We repeat we have not heard from TC.[54]Thus the only inference Dr Sidahmed can seek to raise is that her decision to find him guilty of misconduct was without foundation, thus in effect perverse or so trivial as to not have warranted dismissal. Thus her decision must have been motivated because he was a whistleblower. We remind the parties that issues of the fairness or otherwise and the band of reasonable responses test will not apply if the dismissal was by reason of whistle blowing. But for reasons now obvious, there was a strong prima facie case to answer. JHT had to assess the weight of that evidence and the counter accusations at the disciplinary hearing. The decision she reached is objectively one which she could reasonably come to. Looking at the record of the hearing and then her carefully reasoned and thorough dismissal letter, she was not blinkered and did not shut out obvious lines of enquiry. It does not support an inference. Finally and fatally for Dr Sidahmed there is no other evidence at all that JHT was influenced because he was a whistle blower.[55]That brings us to a final observation in that respect. Before us Mr Robinson- Young, in his submission, appeared to be arguing that the burden of proof was with the Respondent to show on a balance of probabilities that no part of the reason for dismissal was by reason of protected disclosure. Ms Omeri in her submissions argued that he was wrong and because the Claimant had not got qualifying service. She relied on the judgment of their Lordship’s in Smith v Hayle Town Council [1978] IRLR 413 CA. Summarised thus: “Where an employee does not have the requisite period of continuous employment for making a complaint of unfair dismissal, he has the burden of proving that the reason for his dismissal was an inadmissible reason with in the meaning of…[56]In that case it was s152 TULRCA and dismissal for trade union activities. But that the dicta holds good for such as dismissal by reason of whistle blowing is implicit from Maund v Penwith District Council (1984) IRLR 24 CA and Kuzel v Roche Projects Ltd [2008] ICR 799 per Mummery LJ.[57]But it is explicit following Ross v Eddie Stobart Ltd UKEAT/ 0068/13/RN per His Honour Judge Peter Clark sitting with members.[58]And in this case, and we having rehearsed the material evidence, Dr Sidahmed has failed to show that the Respondent dismissed him for a prohibited reason. There is no inference that survives thus switching the burden of proof. The Appeal[59]Frank Cummins (FC) heard the appeal (Bp252-63). He was then clinical director for the Respondent. We have not heard from him as he has long since left the employment. But from looking at the evidence he had before him and the further investigations which he undertook, and which really went to issues the Claimant raised about any link to whistleblowing, the evidence is that he conducted himself conscientiously. Indeed on 19 February 2014 Dr Sidahmed wrote (Bp296) to Anja Carter-Schwartz who was the HR person at the Appeal: “Thank you for your help and support and please extend my thanks to Frank who I felt conducted the Appeal hearing together with yourself in a sensitive as well as a professional manner…”[60]There is no evidence that until he heard the appeal he had any involvement. He made his decision published on 25 February 2014 (Bp349-351). In one respect it was beneficial to Dr Sidahmed. He was not satisfied that he had added the note “no alcohol” to LPs notes after the debacle of the home visit. Thus he overturned that finding by JHT. If he had upheld that decision it would have been probably career ending for Dr Sidahmed.[61]He did conclude that the evidence of bullying and harassing behaviour and unprofessionalism to colleagues, such as to constitute gross misconduct was made out. In terms of the appeal hearing, we again observe just how strident Dr Sidahmed was in denial. He was combatitive: there was nothing wrong with him, any faults there were were with the rest of the team. From an employer’s point of view, how do you proceed forward in a situation like that where you have substantial evidence of a breakdown of working relationships and the overwhelming weight of evidence that one particular individual is primarily at fault, and who is in a lead position, if that person is not prepared to acknowledge shortcomings and be willing to move forward?[62]Dr Sidahmed had by now for the first time raised a connection to whistleblowing, “It is clear to me that the decision to dismiss me was made from the minute I kept blowing the whistle and questioned the poor quality of service . . .”[63]FC asked Dr Sidahmed to elaborate. Essentially this was about the issues he had raised with TC which we have already explored. Then it is back to his criticisms of charges made against him and the accusers being liars. Then there is his reference to itching and which we have dealt with. Mr Curtis pointed out that some of the improvements Dr Sidahmed had wanted had already been made (Bp 261). He accepted that so again it is back to Dr Sidahmed believing that because he thinks there is nothing really in the complaints against him, it cannot be but motivated by a desire to get rid of him by reason of whistleblowing, led in effect by Tom Convery because he makes a reference to being unable to work with TC at the end when he is asked what his desired outcome was. Of course, we know that TC had been supporting him on the evidence that we have got and that TC left because he was unimpressed with the progress and general way in which the place was being run. Then we reiterate than in his list of public interest disclosures Dr Sidahmed never alleged that he had made any disclosure to JHT or FC, and he accepted in cross examination that he had no evidence that either of them would have been part of a conspiracy. This fits with praising FC for the fair way in which he had conducted the appeal hearing.[64]It follows that the decision of TC to uphold the finding of JHT other than on the annotation of the note, and thus the decision to dismiss the Claimant for gross misconduct, is objectively not such as to support any inference of a link between the dismissal and any whistle blowing. Thus Dr Sidahmed has not proved the connection.
Conclusion
[65]Given the findings of fact that we have made and our reasoning and applying the law,the Tribunal concludes that this dismissal was not by reason of the Claimant having made protected disclosures. It was because the dismissing officer genuinely and reasonably believed that Dr Sidahmed had committed an act of gross misconduct, a conclusion which was endorsed by FC albeit he stripped out of the conclusion the issue of the belated alteration of the leave sheet for LT. It still left all the proven behaviour in terms of JHT’s conclusions in relation to the other issues. Thus the claim fails.