Mrs Y Balakumar v Barts Health NHS Trust: 3202170/2024
EMPLOYMENT TRIBUNALS
Case No 3202170/2024
Between
Mrs Y BalakumarClaimantBarts Health NHS TrustRespondent
Before
Employment Judge J FeenyMr Michell (instructed by counsel) for claimantMs Twine (instructed by counsel) for respondentDate 4 June 2025
JUDGMENT
[1]The claim for unfair dismissal is not well-founded and is dismissed.[2]__________________________ Employment Judge J Feeny Dated: 4 June 2025[3]Notes Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision. If written reasons are provided they will be placed online.[4]All judgments (apart from judgments under Rule 51) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimants and respondents. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found here: www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice-directions/[5]Case Number: 3202170/2024 1 EMPLOYMENT TRIBUNALS Claimant: Mrs Y Balakumar Respondent: Barts Health NHS Trust Heard at: East London Hearing Centre (by CVP) On: 3 - 4 June 2025 Before:
REASONS
[1]This has been a final merits hearing of the claimant’s claim for unfair dismissal only, pursuant to Part X of the Employment Rights Act 1996 (“ERA”).[2]The hearing has taken place by CVP. There were few technical issues of note during the hearing and I am satisfied that all parties were able to participate fully and effectively.[3]I heard evidence from Dr Liat Sarner and Dr Andrew Wragg for the respondent and from the claimant herself.[4]Both parties were represented by counsel: Mr Michell for the claimant and Miss Twine for the respondent. Both counsel relied on written submissions and Mr Michell also made brief oral submissions. Findings of fact Case Number: 3202170/2024 2
Findings of fact
[5]The claimant was employed by the respondent Trust as a senior consultant in endocrinology and diabetes. Her employment with the respondent commenced on 1 March 2005.[6]In 2022 an investigation into the claimant under the respondent’s Maintaining Higher Professional Standards (“MHPS”) was commenced. This was in relation to an allegation that the claimant had inappropriately accessed patient records. The claimant initially disputed the charge, including in a meeting in May 2022, but, after a period of reflection, in a meeting with Dr Liat Sarner on 14 September 2022 accepted the allegation. The patient in question had been the claimant’s daughter and there were a number of mitigating factors relating to the claimant’s personal life. The claimant was given a first written warning as an agreed outcome. The warning was stated to be held on her record for 6 months.[7]In the meantime, a further investigation had been carried out under the MHPS policy. This was in relation to a number of criticisms of the claimant’s performance and conduct at work, stretching back (it was said) to 2016. There was a disciplinary hearing in front of a panel chaired by Dr Charlotte Hopkins. The outcome letter was in the bundle at page 74 but I had no other documents from this investigation.[8]It is not particularly clear from the outcome letter what the factual matters were that lay behind what are - on the face of it - generically worded allegations. It is apparent that some allegations, such as not acting with honesty and integrity, were not upheld. Of those that were upheld, some reference communication difficulties with colleagues. The letter concluded that the upheld allegations amounted to misconduct and a final written warning (“FWW”) would be issued as a sanction. There was no mention of the previous written warning, so it is unclear whether it was decided that the misconduct merited moving straight to a FWW or it was deemed the next stage of the escalation process through warnings. The warning was stated to be live for 12 months.[9]A number of action points were put in place, most of which are not material to this case. One of the action points was for the management to consider mediation between the claimant and her colleagues. Mediation was not however arranged or offered to the individuals involved.[10]The letter concluded: “Whilst the panel acknowledged you were sorry for your past conduct, you appeared defensive and quick to blame others rather than taking ownership of the issues. There was little reflection on how you have changed nor understanding of the impact of your behaviour has had on the wider team and colleagues.”[11]Although I have not seen the underlying documents, it is common ground that for the purposes of that investigation, statements had been taken from colleagues including Dr Philippa Hanson and Shelee Matin, who has been described as the claimant’s secretary. Some of the comments by both individuals are in the bundle. Those from Dr Hanson appear on the face of it to be quite offensive and insulting to the claimant. The comment from Case Number: 3202170/2024 3 Ms Matin was more factual although still critical of the claimant and it is not difficult to see why the claimant took offence to it.[12]On 8 July 2023 Dr Hanson raised concerns with Dr Sarner about the claimant. She said the claimant had “verbally attacked” her at a job planning meeting on 26 June 2023, describing her as “dictatorial”. The claimant did not however explicitly mention those comments of Dr Hanson from the previous investigation that she had found so offensive.[13]I pause to note that no formal action was taken as a result of Dr Hanson’s complaint. There was an attempt to arrange a facilitated conversation but it appears that the claimant did not respond to the emails seeking to arrange this.[14]Dr Parker had a meeting with the claimant about Dr Hanson’s complaint on 20 September 2023. She also told the claimant that she had received a complaint from Ms Matin that the claimant had approached her, stated she was angry with Ms Matin because of a complaint Ms Matin had made about her, and had been waiting to have it out with Ms Matin. In response, the claimant accepted she had a conversation along these lines with Ms Matin, stating that she had been upset about Ms Matin’s statement and had acted out of emotion. She disputed some of the words used by Ms Matin.[15]Following the Pause and Reflect process set out in the respondent’s disciplinary policy, a decision was taken by Dr Sarner in late October 2023 to commence an investigation into the incident under the MHPS policy. This decision was based primarily on an email sent by Ms Matin to Dr Parker on 6 September 2023, which had formed the basis of the conversation between Dr Parker and the claimant on 20 September 2023. At this stage, Dr Sarner had not seen Ms Matin’s email that she had sent to her line manager Rachel O’Halloran on 20 June 2023. The emails are in largely the same terms, albeit there are some minor differences.[16]Louise Langmead was appointed case manager and Dr Sujatha Thamban was appointed investigator. Terms of reference (“TOR”) were agreed. The TOR were simply whether the claimant had confronted Ms Matin on 20 June and whether this made Ms Matin feel uncomfortable and attacked.[17]The claimant was informed of this in a meeting with Dr Sarner on 3 November 2023. In that meeting the claimant asked if there was CCTV footage of the incident. She was told the investigator would check this. The meeting was followed by a letter from Dr Langmead, undated but at pg 139 in bundle. The letter included the following: “You are expected to cooperate fully with the investigation and must not behave in any way that might be perceived as impeding or influencing the investigation in any way. This may include coaching or attempting to influence witnesses, altering or deleting evidence, or breaching the confidentiality of the case. This list is not exhaustive. This is a confidential process and you should maintain confidentiality by not discussing these matters with colleagues or others outside of the case investigation process. If there is any concern that you are Case Number: 3202170/2024 4 influencing the investigation negatively in any way, then a decision to exclude you from work may be necessary.”[18]I was told – and I accept – similar wording would have appeared in the letter sent to the claimant commencing the previous disciplinary investigation.[19]Ms O’Halloran and Ms Matin were interviewed on 12 December 2023. The claimant was interviewed on 15 December 2023. In her interview the claimant disputed the date given of 20 June 2023, suggesting it would have been later, probably 21 August or 11 September. (I interpose that unbeknown to the claimant at this time there was a contemporaneous email from Ms Matin which dated the incident to 20 June.) The claimant broadly accepted Ms Matin’s account but denied that she used the word angry, she said she referred to herself as upset instead. She expressed regret that the incident had happened and accepted she should not have brought up her concerns about Ms Matin’s statement in the way that she did.[20]The investigation report was completed on 23 February 2024. It identified that there were discrepancies between the accounts, albeit both parties agreed that the incident had taken place. By this stage it had been established that there was no CCTV footage, as it would have been deleted within 28 days of the original incident. It was also common ground between the claimant and Ms Matin that although another doctor had been walking near Ms Matin, he was no longer present when the exchange took place, so could not be a witness to what was said.[21]As a result of the report, the case manager Ms Langmead decided that the matter should go to a full panel. In her email confirming this she referred to the allegations as being “upheld”, although this of course could not happen until the panel had considered them at a disciplinary
hearing.
[22]Dr Sarner prepared a management case in support of upholding the allegations. By this point, the phrase “victimisation” was being used to describe the claimant’s conduct towards Ms Matin. The report indicated that Ms Matin and Ms O’Halloran would be called as witnesses at the disciplinary hearing.[23]The disciplinary hearing took place on 17 April 2024. The panel was chaired by Dr Wragg. The claimant attended with a BMA rep. Dr Sarner attended to present the management case.[24]Contrary to the indication in the management case, it had been decided that Ms O’Halloran and Ms Matin would not be called as witnesses. The claimant and her representative expressed concern at this as they wanted to question them. The hearing initially concluded on the basis that all submissions had been ventilated and a decision would be made. On reflection after the hearing Dr Wragg took the view that it was unfair to do this without allowing the claimant to question Ms O’Halloran and Ms Matin and the hearing was reconvened for 6 June 2024.[25]Ms O’Halloran and Ms Matin attended the reconvened hearing. It was agreed that they would give evidence separately. It appears that prior to the Case Number: 3202170/2024 5 reconvened hearing Ms Langmead spoke to them about the issues they were to be questioned about. I have no evidence on what this discussion consisted of.[26]That said, the evidence given by Ms O’Halloran and Ms Matin in the hearing was largely consistent with their previous statements. Ms O’Halloran said that Ms Matin had described the interaction as confrontational and she had been very uncomfortable.[27]Ms Matin was asked about the delay in raising the complaint. She said that she had been asked to provide a detailed statement in late June but had been reluctant to do so as she knew it would trigger an investigation, such as the one which had led to the initial confrontation with the claimant. In terms of the incident itself, she confirmed that she had felt intimidated and attacked by the claimant.[28]It is of note that by the time of the reconvened hearing the claimant had finally been provided with Ms Matin’s contemporaneous email about the incident on 20 June. Notwithstanding this, however, the claimant continued to make representations that the date of the incident was incorrect, going so far as to allege that the email that had been disclosed had been fabricated.[29]After the hearing, the panel deliberated. The panel decided to dismiss the claimant on notice. The claimant was informed of this in an outcome meeting on 14 June 2024. She also received a letter the same day explaining the decision.[30]The panel upheld both allegations, namely that the claimant had confronted Ms Matin on 20 June and made her feel uncomfortable and attacked. The panel addressed the allegation that the date of the incident was incorrect and rejected it, given the contemporaneous email which had been verified as genuine. The panel found that the proven misconduct was gross misconduct in itself but that as it had taken place against a FWW it was also part of a repeated pattern of behaviour. Given the claimant’s lack of remorse the panel said it could not be assured there would not be similar behaviour in the future.[31]Although the allegation was said to be gross misconduct in its own right, the claimant was dismissed on notice.[32]The claimant appealed the decision to dismiss her, sending comprehensive submissions in support on 28 June 2024.[33]A panel chaired by Dr Magda Smith heard the appeal. Dr Wragg prepared a management case to support the decision to dismiss. Due to delays on the part of the respondent, the appeal hearing did not take place until 30 September 2024.[34]The claimant continued to assert the date of the incident was incorrect. The appeal panel rejected that submission. In particular, it did not consider that approaching the other witness (Dr Gadintshware) for his recollection would Case Number: 3202170/2024 6 undermine the contemporaneous email sent by Ms Matin. In short, the appeal panel did not accept that the disciplinary panel’s conclusions had been wrong, citing a lack of new evidence.[35]It should be noted that these findings of fact insofar as they apply to the conduct of the appeal have been made based primarily on the claimant’s evidence and the documentary evidence in the bundle. Unusually in my experience, the respondent chose not to call a witness to adduce evidence on its handling of the appeal.
The Law
[36]The right not to be unfairly dismissed is contained in section 94 ERA and the test the Tribunal must apply is in section 98 ERA. It is for the respondent to prove that it had a fair reason for the dismissal; conduct is a potentially fair reason (s 98(2)(a) ERA).[37]As this is a conduct dismissal the well established principles of British Home Stores Limited v Burchell [1978] IRLR 379 apply. They are:a. Did the respondent genuinely believe that the claimant was guilty of misconduct?b. Did it have reasonable grounds for this belief?c. At the time that it formed the belief had it carried out as much investigation as was reasonable in the circumstances?d. Was dismissal within the range of reasonable responses?e. Was the procedure carried out fair?[38]The Tribunal must not substitute its view for that of the employer: the test is whether the respondent’s conduct in dismissing the claimant was within the range of reasonable responses open to it (Iceland Frozen Foods v Jones [1982] IRLR 439, London Ambulance Services NHS Trust v Small [2009] IRLR 563).[39]However, the range of reasonable responses test is not infinitely wide and the Tribunal’s consideration of the claim should not be reduced to procedural box-ticking (Newbound v Thames Water Utilities Limited [2015] IRLR 734). I must assess the substance of the decision.[40]Where dismissal comes against the background of previous disciplinary warnings, the Tribunal’s ability to review the circumstances leading to those warnings is limited, it is generally only permissible if the warning was given in bad faith or was “manifestly inappropriate”: Davies v Sandwell Metropolitan Borough Council [2013] IRLR 374, CA. Generally speaking, the employer’s actions in the face of previous warnings falls to be considered under the general provision of reasonableness in s 98(4). Case Number: 3202170/2024 7
Conclusion
[41]The starting point in any claim for unfair dismissal is the reason for dismissal. I am satisfied that the respondent has established that conduct was the reason and that it had a genuine belief in the claimant’s misconduct.[42]Given that the claimant has never disputed that she was wrong to have spoken to Ms Matin in the way that she did, it follows that it cannot really be in dispute that the respondent had reasonable grounds to believe she was guilty of misconduct, applying the Burchell test. The central question is whether dismissal was within the range of reasonable responses to claimant’s conduct.[43]It is important to note that much of the interaction between the claimant and Ms Matin is not disputed. As the claimant admitted in evidence, the repercussions from the interaction relate to Ms Matin’s perception of it. The main dispute is whether the claimant used the word “angry” – she says she only said she was upset. However, “angry” was the word used by Ms Matin in her contemporaneous email and she was consistent on this point thereafter. It is certainly not unreasonable for the respondent to prefer Ms Matin’s evidence to the claimant’s on this point.[44]On the other hand, I accept that Ms Matin did not refer to feeling frightened or threatened. The words used were “confrontational” and “uncomfortable”. There is reference to feeling “attacked” in Ms Matin’s email of 6 September 2023 but that wasn’t a word she initially used in the June email, instead saying that the claimant had not been aggressive.[45]I am not therefore able to agree with the respondent that the claimant’s interaction with Ms Matin met the definition in the disciplinary policy of threatening behaviour or harassment.[46]I also consider that the use of the term “victimisation” was unhelpful. It appears from the email correspondence that it was brought into the decision-making process by HR by reference to the Equality Act definition of victimisation. It is not clear from the disciplinary policy whether the same term of art was intended when it was included under the definition of gross misconduct offences. Questions of whether Ms Matin did a protected act are not helpful to understanding the misconduct in question.[47]The point however can be put more broadly. A senior consultant telling her secretary that she was angry or - even on the claimant’s case - upset by what the secretary had said about in her in an independent investigation has the ability to seriously undermine that person’s faith in reporting or supporting others’ reports of wrongdoing in the future. This point is made good, at least indirectly, by Ms Matin’s comment in the disciplinary hearing that she had delayed making a formal complaint because of the claimant’s reaction to her. Case Number: 3202170/2024 8[48]The claimant was aware from her previous investigation that the matters discussed should be kept confidential. I do not accept that she needed an explicit warning in the outcome letter to know that she shouldn’t discuss it with Ms Matin. As the claimant said when first questioned about the incident, when Ms Matin attempted to make conversation with her, emotion overcame her.[49]In summary, given that:(a) it was clear to the claimant, and she knew, that it was not appropriate to talk to Ms Matin about how upset she had been with her comments during the investigation and(b) there was a significant imbalance of power between the claimant as senior consultant and Ms Matin as secretary, it was at least serious misconduct for the claimant to interact with Ms Matin in the way that she did.[50]Whilst I have doubts about whether such a spur of the moment lapse of judgment would in itself constitute gross misconduct, the fact is that it came within the currency of a FWW. Although the conduct was not identical, I accept there was overlap, in particular the way in which the claimant was communicating with her colleagues.[51]As per Davies v Sandwell, the ultimate question is whether it was reasonable to dismiss the claimant in these particular circumstances, of which a live FWW was one. Dr Wragg in evidence confirmed that the panel felt that it had a discretion to impose some other sanction but chose not to do so in light of a number of factors including the claimant’s lack of remorse and reflection.[52]Mr Michell in submissions made a number of suggestions as to steps that could have been taken instead of dismissal, primarily to repair the relationship between the claimant and Ms Matin, such as mediation or a facilitated conversation. However, this was not a dismissal for “some other substantial reason” arising out of a breakdown in working relations; this was solely about the claimant’s conduct. Given this, it did not particularly matter whether Ms Matin was still willing to work with the claimant – as indeed she had been doing during the disciplinary process – the key question was whether the claimant could be trusted not to conduct herself in a similar way towards others. I cannot say that it was unreasonable for the panel to form the view that it did not have that trust in her.[53]I turn to the procedural failings. Firstly, there is the issue of delay. There is no dispute that the overall process took longer than the 90 day target set out in the disciplinary policy.[54]However, the most important delay was from 20 June until early September, as that is when the CCTV footage was lost. That delay was due to Ms Matin considering whether she wanted to bring a formal complaint. There is no culpability on the respondent for this.[55]The investigation itself was just about within the relevant timescales. There was a delay to receiving an outcome because of the confusion over whether the witnesses would attend the hearing and also finding time in people’s diaries. Whilst the overall period was very long – as the claimant pointed Case Number: 3202170/2024 9 out in evidence, 12 months from incident to dismissal – I do not find that the respondent’s culpability for this delay was egregious. It does not render the dismissal unfair.[56]The delay convening the appeal hearing was more egregious. The appeal was submitted by the claimant promptly, in late June, but the hearing did not take place for some three months. As already noted, I have heard no evidence on this issue. However, given that the dismissal had already been effected, I cannot see how delay resolving the appeal would retrospectively render that prior dismissal unfair.[57]Looking at the appeal more generally, despite the absence of evidence from the respondent, there is no particular feature of it which I consider would impact on the fairness of the decision to dismiss which had already been made. This is not a case, for instance, where important new evidence was brought into account at the appeal stage.[58]As for the evidence before the disciplinary panel, I accept that Dr Gadintshware was a red herring in that all he could have attested to was the date of the incident, and – as the appeal panel said – even if he had expressed doubt about the June date it is unlikely this would undermine the contemporaneous email that Ms Matin sent.[59]It is unfortunate that CCTV was not available but this was not the fault of the respondent’s managers or those involved in the disciplinary process. Again, all this would have established was the date of the incident and whether the claimant’s body language was aggressive. However, even if it did not show aggressive body language it would still be consistent with Ms Matin’s account and so wouldn’t have taken matters further. In other words, it is likely that CCTV footage would only have incriminated the claimant, it would not have cleared her.[60]Importantly, on the issue of evidence, the claimant was given the opportunity to question Ms Matin and Ms O’Halloran on their statements in the hearing and she did so. Having questioned them both, there were no significant changes to their accounts. There was no evidence of collusion or manufactured evidence – it really comes down to differences of perception.[61]Taking a step back, whilst the process followed by the respondent was far from perfect, I cannot say that it fell outside the range of reasonable responses open to the respondent, particularly given there was actually only a relatively minor factual dispute about what happened. In short, I am satisfied that the claimant had a fair hearing.[62]As already noted, whilst I have doubts about the respondent’s view that the interaction with Ms Matin was itself so grave as to amount to gross misconduct, it was certainly within the range of reasonable responses to decide to dismiss the claimant in light of the existing, valid FWW. Case Number: 3202170/2024 10[63]The claim for unfair dismissal therefore fails.