Dr A Taneja v Barts Health NHS Trust: 3204209/2022

EMPLOYMENT TRIBUNALS

Case No 3204209/2022

Between

Dr Anil TanejaClaimant

Barts Health NHS TrustRespondent

Before

Employment Judge Crosfill

In person for claimant

Mr Orlando Holloway (instructed by Counsel instructed by Bevan Brittan) for respondent

Date 28 November 2023

JUDGMENT

[1]The Claimant’s allegations that he did a protected act for the purposes of Section 27 of the Equality Act 2010 on the following occasions: 1.1. By bringing a ‘Job Planning’ grievance in or around December 2017; and 1.2. Orally during grievance meetings that were held on 15 November 2018 and 20 February 2019; have no reasonable prospects of success and are struck out.

[2]For the avoidance of doubt no other aspects of the Claimant’s amended claims brought under Section 27 of the Equality Act 2010 are affected by this order.

[3]The Claimant’s claims of direct age discrimination brought under Section 13 of the Equality Act and relating to: 3.1. The failure to appoint the Claimant to the position of Cardiology Clinical Lead in August 2019; and 3.2. The failure to appoint the Claimant to the role of Cardiology Clinical Lead in November/December 2021; 1 of 16 have no reasonable prospects of success and are struck out.

REASONS

[1]The case was listed for a preliminary hearing in public by Employment Judge Feeny who decided that a preliminary hearing was necessary to determine the following issues:1.1 The Claimant’s application to amend his claim to rely on the new matters set out in his “Particularised List of the Claimant’s Claims” submitted on 21 March 2023;

1.2 Whether the victimisation complaint should be struck out on the ground that it has no reasonable prospect of success (pursuant to rule 37(1)(a));

1.3 Whether the Tribunal should order the claimant pay a deposit as a condition of continued advance of victimisation complaint (pursuant to rule 39);

1.4 Whether the tribunal has jurisdiction to consider the age discrimination complaint pursuant to section 123 of the Equality Act 2010.

[2]Employment Judge Feeny made directions in order that the parties could prepare for this hearing. The hearing was listed in public as the issues to be determined included matters which it is necessary were dealt with in public.

[3]The Claimant has issued a second claim under the Case Number 3200885/2023. No directions had been made in that claim and I was required to consider whether it should be consolidated with the Claimant’s first claim.

[4]This judgment and reasons deal only with the issues identified at paragraphs 1.1 and 1.4 above. Further decisions in respect of the other issues are set out in a case management order.

[5]The Respondent invites me to strike out the Claimant’s claims for victimisation. The basis for the application is that it is said that the two acts said by the Claimant to be ‘protected acts’ do not qualify for protection under sub-section 27(1) of the Equality Act 2010. In short it is said that there is no allegation made by the Claimant whether express or implied that the Respondent has breached the Equality Act.

[6]The Respondent further invites me to strike out the claims of age discrimination on the basis that they have been presented outside the primary statutory time limit and that the time limit should not be extended.

[7]The manner in which EJ Feeny expressed the issues to be determined in relation to the age discrimination complaints suggests that I was being invited to determine the issue of whether the claims were in time on a ‘once and for all basis’. The direction that the Claimant file a witness statement is consistent with that interpretation of the order. I discussed with the parties the basis of the 2 of 16 Respondent’s application. Mr Holloway made it clear that he has applied for and was seeking a hearing as to whether the claims should be struck out pursuant to rule 37 schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. I explained the differing approaches to the Claimant as explained in Caterham School Ltd v Rose (see below). I explained that if I acceded to Mr Holloway’s approach he would have the benefit of a slightly more lenient approach in that the Respondent would have to show that there was no reasonable prospect of him persuading the Tribunal that his claims were presented within the statutory time limits. Both parties agreed that I should deal with the application under rule 37 and that I should not determine the issue on a once and for all basis. Striking out claims – generally

[8]The power to strike out a claim under Rule 37(1)(a) on the ground that it has no reasonable prospect of success should only be exercised in rare circumstances Tayside Public Transport Co Ltd (t/a Travel Dundee) v Reilly

[2012] IRLR 755

, at para 30. In discrimination claims where findings of fact can depend upon whether or not it is appropriate to draw inferences of discrimination from primary facts particular care needs to be taken before striking out a claim Anyanwu v South Bank Students' Union

[2001] IRLR 305

, HL. The same cautious approach should be applied in a claim brought under S47B ERA 1996 North Glamorgan NHS Trust v Ezsias

[2007] IRLR 603

[9]It will generally not be appropriate to strike out a claim where the central facts necessary to prove the case are in dispute. It is not the function of a tribunal such an application to conduct a mini trial. The proper approach is to take the Claimant’s case at its highest as it appears from their ET1 unless there are exceptional circumstances North Glamorgan NHS Trust v Ezsias. Such exceptional circumstances could include the fact that the Claimant's case is contradicted by undisputed contemporaneous documents or some other means of demonstrating that 'it is instantly demonstrable that the central facts in the claim are untrue' Tayside.

[10]In Balls v Downham Market High School

[2011] IRLR 217

Lady Smith reminded tribunals that the test is not whether the claim is likely to fail but whether there are no reasonable prospects of success. That however is not the same thing as there being no prospects of success at all - see North Glamorgan NHS Trust v Ezsias at para 25 citing Ballamoody v Central Nursing Council

[2002] IRLR 288

. Another way of putting the test is that the prospects are real as opposed to fanciful see North Glamorgan NHS Trust v Ezsias para 26.

[11]QDOS Consulting Ltd and others v Swanson

UKEAT/0495/11/RN

provides authority the proposition that orders under rule 37 should be made only in the most obvious and plain cases and not in cases where there is a need for prolonged and extensive study of documents and witness statements. Those propositions may also be found in the authorities above. HHJ Serota QC prior to stating those propositions drew attention to the similar position under the Civil Procedure Rules. He said (at para 45): 3 of 16 [45] It may be instructive to compare the position of striking out under the Employment Tribunal Rules with striking out as provided for in the Civil Procedure Rules. I note that there is a close affinity between striking out under CPR 34.2(a) [sic –there is a typo in the report], which enables the court to strike out the whole or part of a statement of case that discloses no reasonable grounds for bringing or defending a claim overlaps with Pt 24, on summary Judgment. Rule 24(2) entitles a court to give summary Judgment against a Claimant or Defendant on a claim or issue where there is no real prospect of succeeding on the claim or issue, or successfully defending the issue. The notes to CPR 24 in the White Book make this clear: “In order to defeat the application for summary Judgment, it is sufficient for the Respondent to show some prospect; ie some chance of success. That prospect must be real; ie the court will disregard prospects that are false, fanciful or imaginary. The inclusion of the word 'real' means the Respondent has to have a case which is better than merely arguable. The Respondent is not required to show their case will probably succeed at trial; a case may be held to have a real prospect of success even if it is improbable. However, in such a case the court is likely to make a conditional order.”

[12]Care needs to be taken when assessing whether a case has no reasonable prospects of success to avoid focussing only on individual factual disputes. A case may have some reasonable prospects when regard is had to the overall picture and all allegations taken together see Qureshi v Victoria University of Manchester

[2001] ICR 863

[13]The statements of principle derived from the cases referred to above do not in any way fetter the discretion of a tribunal to strike out a case where it is appropriate to do so Jaffrey v Department of the Environment, Transport and the Regions

[2002] IRLR 688

at para 41.

[14]In Chandhok & Anor v Tirkey

UKEAT/0190/14/KN

Mr Justice Langstaff made the following comments (with emphasis added): “20. This stops short of a blanket ban on strike-out applications succeeding in discrimination claims. There may still be occasions when a claim can properly be struck out – where, for instance, there is a time bar to jurisdiction, and no evidence is advanced that it would be just and equitable to extend time; or where, on the case as pleaded, there is really no more than an assertion of a difference of treatment and a difference of protected characteristic which (per Mummery LJ at paragraph 56 of his judgment in Madarassy v Nomura

[2007] ICR 867

): "…only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal "could conclude" that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination." Or claims may have been brought so repetitively concerning the same essential circumstances that a further claim (or response) is an abuse. There may well be other examples, too: but the general approach remains that the exercise of a discretion to strike-out a claim should be sparing and cautious. Nor is this general 4 of 16 position affected by hearing some evidence, as is often the case when deciding a preliminary issue, unless a Tribunal can be confident that no further evidence advanced at a later hearing, which is within the scope of the issues raised by the pleadings, would affect the decision.”

[15]ED & F Man Liquid Products Ltd v Patel and another

[2003] EWCA Civ 472

concerned an application to set aside a default judgment. The Defendant contended that the test was the same as that for summary judgment made under Part 24 of the Civil Procedure Rules. The test to be applied under that rule is whether a claim or defence has “no real prospect of succeeding”. There is no material distinction between this test and the test under Rule 37 of the ET procedure rules. The Court of Appeal explain what is meant by the requirement to take a case at its highest. Potter LJ giving the judgment of the Court said, at para 10 (with emphasis added): “…..where there are significant differences between the parties so far as factual issues are concerned, the court is in no position to conduct a mini-trial: see per Lord Woolf MR in Swain v Hillman

[2001] 1 All ER 91

at 95 in relation to CPR

[24]However, that does not mean that the court has to accept without analysis everything said by a party in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporary documents. If so, issues which are dependent upon those factual assertions may be susceptible of disposal at an early stage so as to save the cost and delay of trying an issue the outcome of which is inevitable..” The claims of victimisation Section 27 of the Equality Act 2010. 16. In order that Section 27 is engaged the Claimant needs to show that he did a protected act falling within Section 27(2). That subsection reads as follows: (2) Each of the following is a protected act—(a) bringing proceedings under this Act;

(b) giving evidence or information in connection with proceedings under this Act;

(d) making an allegation (whether or not express) that A or another person has contravened this Act. 17. The Claimant has put his case on the basis that he made complaints which amounted to allegations that there had been contraventions of the Equality Act 2010. There is no suggestion that the Claimant had done any act falling within sub-sections 27(2)(a) or (b). Whilst sub-section 27(2)(c) can be construed very broadly making a complaint about treatment at work would not qualify under that section unless the complaint expressly or implicitly alleged a breach of the Equality Act 2010. 5 of 16 18. The first of the alleged protected acts is said to be the content of a grievance brought by the Claimant about work planning. That grievance was included in a bundle of documents prepared by the Claimant it is 8 pages long. 19. In the Claimant’s grievance he sets out his complaints. These concern his job plan and his contention that he is doing a large number of ‘COW’ (Consultant of the Week) tasks. He also raised the fact that he does more ‘PA’s (Planned Activities) than he was being paid for. 20. The Claimant makes no reference either to his race or to where he trained. He does not refer to any other protected characteristic either of himself or of his colleagues. There is absolutely nothing within the document that could conceivably be an express or implicit allegation that there had been an infringement of the Equality Act 2010. 21. The Claimant accepts in his witness statement that the grievance itself does not refer to any protected characteristic nor does it mention discrimination (in the legal sense). It is the Claimant’s case that his grievance needs to be seen in the context of an e-mail he sent on 25 January 2017 where he raises the issue of Job planning. In that e-mail he refers to the number of COW tasks he does, and the number done by ‘all others’ and says, ‘then that may be discriminatory’. 22. I have granted the Claimant permission to amend his claim to rely on his e-mail of 25 January 2017 as a protected act in its own right. That leaves me to deal with the Claimant’s argument that his job planning grievance sent 10 months later needs to be read together with that e-mail. 23. There is no reference in the grievance to the Claimant’s earlier e-mail. It is not incorporated either expressly or implicitly. The grievance refers to a wider number of concerns than the brief e-mail of 25 January 2017. 24. In Waters v Commissioner of Police for the Metropolis

[1997] ICR 1073

the Court of Appeal placed importance on the need for the recipient of any alleged protected act to be able to recognise that what was being alleged was a breach of the Equality Act.

[25]I do not believe that it is remotely arguable that as the Claimant has previously suggested that his allocation of COW tasks may be discriminatory his grievance submitted 10 months later which did not repeat the allegation in any way should be taken as alleging a breach of the Equality Act 2010.

[26]I take into account the warnings I have set out above about striking out claims under the Equality Act 2010. I have allowed the Claimant to rely on his e-mail of 25 January 2017 as a protected act in its own right. I do not consider that he has any reasonable prospects of showing that the subsequent correspondence in the form of his grievance amounts to a protected act. I therefore strike out that allegation.

[27]The next two protected acts rely upon what the Claimant is alleged to have said in meetings on 15 November 2018 and 20 February 2019. 6 of 16

[28]The Claimant had provided me with minutes of the meeting that took place on 15 November 2018. I have read then carefully. The meeting concerned the Claimant’s complaints relating to the process and outcome of his appeal against the job planning process. There is no reference at all to race or any other protected characteristic. The Claimant does say that his workload is higher than all colleagues but does not tender any reason why that might be the case.

[29]I cannot assume that the minutes of the meeting are complete. However, there are two matters I need to consider when assessing whether the Claimant has any reasonable prospects of showing that he made some express or implied allegation that there had been a breach of the Equality Act 2010. The first is the fact that the Claimant was invited to put in a witness statement in support of his position. He does not suggest in that witness statement that he made any suggestion that a difference in treatment between himself and his colleagues was because of any protected characteristic. In his submissions the Claimant accepted that this was the case and explained this by suggesting that he did not wish to stray into areas of controversy.

[30]The second matter which I have regard to is a record in the Case Management Order of EJ Feeney where it is recorded that Mr Dunn of Counsel accepted on the Claimant’s behalf that the Claimant could not recall raising any allegation of discrimination during either meeting.

[31]I was provided with and have carefully read the meeting notes of the meeting of 20 February 2019. The meeting concerns an outcome following earlier processes. There is no reference whatsoever to any protected characteristic or to discrimination in the technical sense.

[32]The Claimant relies upon the same argument as he did previously. He says that as the meetings concerned the issue of Job Planning referred to in his e-mail of 25 January 2017 where he had mentioned discrimination then what he said at all subsequent meetings should be taken as repeating that allegation.

[33]I do not accept the Claimant’s arguments for the same reason as I have given above. There was nothing in what the Claimant did say at either meeting that referred to the e-mail, or incorporated the complaint made in the e-mail. To amount to a protected act it is essential that the recipient could recognise that the Claimant was alleging a breach of the Equality Act. I find that the Claimant has no reasonable prospects of establishing that he said or did anything during the two meetings that could amount to a protected act.

[34]I shall therefore strike out those two additional protected acts. Age discrimination Striking out claims – time limits

[35]In Caterham School Ltd v Rose (Sex Discrimination – Continuing act)

[2019] UKEAT 0149/19

HHJ Aurbach explained the difference in approach of a tribunal dealing with an application to strike out a claim by reference to time limits and a tribunal determining whether a claim was presented in time. He said 7 of 1658. First, it is always important for there to be clarity, when a Preliminary Hearing is directed, at such a Hearing, and in the Tribunal’s decision arising from it, as to whether the Tribunal is considering (or directing to be considered), in respect of a particular complaint, allegation or argument, whether it should be struck out (and/or made the subject of a deposit order), or a substantive determination of the point.

59. The differences, in particular, between consideration of a substantive issue, and consideration of a strike out application, at a Preliminary Hearing, are generally well understood, but still worth restating. A strike out application in respect of some part of a claim can (and should) be approached assuming, for that purpose, the facts to be as pleaded by the Claimant. That does not require evidence or actual findings of fact. If a strike out application succeeds, on the basis that, even if all the facts were as pleaded, the complaint would have no reasonable prospect of success (whether because of a time point, or on the merits), that will bring that complaint to an end. But if a strike out application fails, the point is not decided in the Claimant’s favour. The Respondent, as well as the Claimant, lives to fight another day, at the Full Hearing, on the time point and/or whatever point it may be.

60. By contrast, definitive determination of an issue which is factually disputed requires preparation and presentation of evidence, to be considered at the Preliminary Hearing, findings of fact, and, as necessary, the application of the law to those facts, so as to reach a definitive outcome on the point, which cannot then be revisited at the Full Merits Hearing of the case.

61. All of that applies equally where the issue is whether there has been conduct extending over a period for the purposes of the section 123 time limit. If the Tribunal considers (properly) at a Preliminary Hearing that there is no reasonable prospect of establishing at trial that a particular incident, complaint about which would, by itself, be out of time, formed part of such conduct together with other incidents, such as to make it in time, that complaint may be struck out. But if it is not struck out on that basis, that time point remains live. If, however, the Tribunal decides at a Preliminary Hearing, that the claim does relate to something that is part of continuing conduct, and so is in time, then the issue has been decided and cannot be revisited.

[36]In Aziz v First Division Association (FDA)

[2010] EWCA Civ 304

The Court of Appeal set out the proper approach when a tribunal is asked to consider striking out a claim on the basis that there is no jurisdiction and where that is resisted by the claimant by suggesting that the event complained of forms part of conduct extending over a period. The Court said: ‘34. One issue of considerable practical importance is the extent to which it is appropriate to resolve issues of time bar before a main hearing. Obviously there will be a saving of costs if matters outside the jurisdiction of the ET are disposed of at an early stage. On the other hand a claimant must not be barred from presenting his or her claim on any issue where there is an arguable case. 8 of 16 35. The Court of Appeal considered the correct approach to this matter in Lyfar v Brighton and Sussex University Hospitals Trust

[2006] EWCA Civ 1548

. In that case the claimant complained of 17 incidents of racial discrimination over a period of many months. The question of time bar was dealt with at a pre-hearing review. The claimant gave oral evidence on that occasion. Having heard the claimant's evidence, the ET allowed five of the claimant's complaints to proceed but dismissed the other 12 complaints as being out of time. The EAT and the Court of Appeal both upheld that decision. Hooper LJ gave the leading judgment, with which Hughes LJ and Thorpe LJ agreed. Hooper LJ stated that the test to be applied at the pre-hearing review was to consider whether the claimant had established a prima facie case. Hooper LJ accepted counsel's submission that the ET must ask itself whether the complaints were capable of being part of an act extending over a period. 36. Another way of formulating the test to be applied at the pre-hearing review is this: the claimant must have a reasonably arguable basis for the contention that the various complaints are so linked as to be continuing acts or to constitute an ongoing state of affairs: see Ma v Merck Sharpe and Dohme Ltd

[2008] EWCA Civ 1426

at paragraph 17.’ Time Limits – Equality Act

[37]Section 123 of the Equality Act 2010 imposes a time limit for the presentation of claims to an employment tribunal. The material parts say: ‘123 Time limits(1) Subject to sections 140A and 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable.

(2) Proceedings may not be brought in reliance on section 121(1) after the end of— (a) the period of 6 months starting with the date of the act to which the proceedings relate, 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. 9 of 16

(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.

[38]The leading case on the meaning of the expression ‘act extending over a period’ used in sub section 123(3) of the Equality Act 2010 is Commissioner of Police of the Metropolis v Hendricks

2003 ICR 530

, CA as confirmed in Lyfar v Brighton and Sussex University Hospitals Trust

2006 EWCA Civ 1548

, CA. The test is not whether the employer operated a policy practice or regime but to focus on the substance of the complaint and ask whether there was an ongoing situation or continuing state of affairs amounting to an ‘act extending over a period as distinct from a succession of isolated or specific acts. Even where there is an act extending over a period it is necessary to show that that continued to a point where a complaint relying upon a single act would have been in time.

[39]If any claim has been presented after the ordinary time limit imposed by subsection 123(1)(a) of the Equality Act 2010 (a period within 3 months extended by the provisions governing extensions of time for early conciliation) then the tribunal cannot entertain the complaint unless it is just and equitable to do so. The following propositions have emerged from the case law:39.1 The discretion to be exercised¶ under subsection 123(2)(b) is broad – see Chief Constable of Lincolnshire Police v. Caston

[2010] IRLR 327

where Sedley LJ commented: ‘There is no principle of law which dictates how generously or sparingly the power to enlarge time is to be exercised. In certain fields (the lodging of notices of appeal at the EAT is a well-known example), policy has led to a consistently sparing use of the power. That has not happened, and ought not to happen, in relation to the power to enlarge the time for bringing employment tribunal proceedings, and Auld LJ is not to be read as having said in Robertson that it either had or should. He was drawing attention to the fact that limitation is not at large: there are statutory time limits which will shut out an otherwise valid claim unless the claimant can displace them. Whether a claimant has succeeded in doing so in any one case is not a question of either policy or law: it is a question of fact and judgment, to be answered case by case by the tribunal of first instance which is empowered to answer’

39.2 Robertson v Bexley Community Centre t/a Leisure Link

[2003] IRLR 434

, CA reminds a tribunal that whilst the discretion to extend time is wide the burden is on the Claimant to show why time should be extended and as such an extension is the exception and not the rule.

39.3 In deciding whether or not to extend time a tribunal might have regard to the statutory factors set out in the Section 33 of the Limitation Act 1980 see British Coal Corporation v Keeble and ors

[1997] IRLR 336

, EAT although caution needs to be applied to avoid those factors being 10 of 16 approached in a mechanistic manner or treating them as exhaustive Adedeji v University Hospitals Birmingham NHS Foundation

[2021] EWCA Civ 23

per Underhill LJ at paragraph 37.

39.4 Whether there is a good reason for the delay or indeed any reason is not determinative but is a material factor Abertawe Bro Morgannwg University Local Health Board v Morgan

2018 ICR 1194

, CA.

39.5 It will be an error of law for the Tribunal not to consider the relative prejudice to each party Pathan v South London Islamic Centre EAT 0312/13

39.6 In Miller v Ministry of Justice

[2016] UKEAT 0004/15

Mrs Justice Laing identified that: ‘There are two types of prejudice which a Respondent may suffer if the limitation period is extended. They are the obvious prejudice of having to meet a claim which would otherwise have been defeated by a limitation defence, and the forensic prejudice which a Respondent may suffer if the limitation period is extended by many months or years, which is caused by such things as fading memories, loss of documents, and losing touch with witnesses.’

39.7 If the question of whether to exercise the statutory discretion is being considered at a preliminary hearing rather than a final hearing then the apparent merits of the claim may be taken into account in assessing whether to exercise the discretion. In Kumari v Greater Manchester Mental Health NHS Foundation Trust

[2022] EAT 132

, emphasising the caution that would be needed in order to take this into account it was said; ‘The tribunal is therefore not necessarily always obliged, when considering just and equitable extension of time, to abjure any consideration of the merits at all, and effectively to place the onus on the respondent, if time is extended, thereafter to apply for strike-out or deposit orders if it so wishes. It is permissible, in an appropriate case, to take account of its assessment of the merits at large, provided that it does so with appropriate care, and that it identifies sound particular reasons or features that properly support its assessment, based on the information and material that is before it. It must always keep in mind that it does not have all the evidence, particularly where the claim is of discrimination. The points relied upon by the tribunal should also be reasonably identifiable and apparent from the available material, as it cannot carry out a mini-trial, or become drawn in to a complex analysis which it is not equipped to perform.’

Discussion and Conclusions

[40]The Claimant contacted ACAS for the purposes of early conciliation on 15 May 2022, received an early conciliation certificate on 25 June 2022, and presented his claim to the employment Tribunal on 18 July 2022. It follows from that the Tribunal would have no jurisdiction to hear any complaint about an event prior to 16 February 2022 unless the Claimant was able to show that the act or omission formed part of an act extending over a period and is taken as ending after that date OR that it was just and equitable for there to be an extension of time. 11 of 16

[41]In the present claim the Claimant has set out two acts/omissions which he says amount to direct discrimination because of age. These are:41.1 The failure to appoint the Claimant to the position of Cardiology Clinical Lead in August 2019; and

41.2 The failure to appoint the Claimant to the role of Cardiology Clinical Lead in November/December 2021

[42]In support of his claims of age discrimination the Claimant suggests that he was told that the post of Clinical Lead was reserved for a younger consultant looking to build up managerial experience. In his response to a request for further information the Claimant says that it was Dr Ceri Davis that told him this. It appears to have predated the 2019 appointment. Assuming that the Claimant is correct that would not necessarily be unlawful – age discrimination being the only type of direct discrimination that might be justified. Here I must take the Claimant’s case at the highest and assume that his account of what he was told is correct. I must also disregard the possibility that the Respondent will establish any justification defence.

[43]The Claimant needs to show that he has at least some prospects of success either that these acts for part of conduct extending over a period (together with some act that is within time) or that it would be just and equitable to extend time. I shall deal with each of those points in turn.

[44]The Claimant has brought some discrimination claims within the present proceedings which are, if established, in time. Those are claims of direct and indirect discrimination and harassment. All those claims rely on race as the relevant protected characteristic. One claim of victimisation is also brought within time.

[45]The first matter I should address is whether claims of differing types of discrimination can amount to conduct extending over a period. The question of whether a continuing act can comprise acts which fall under different “headings” of discrimination was considered in Robinson v Royal Surrey County Hospital NHS Foundation Trust

UKEAT/0311/14/MC

where at paragraph 65 HHJ Eady (as she was) said (with my emphasis added): ‘When considering whether a Claimant has made out a prima facie case that that of which she complains amounts to conduct extending over a period, however, I can allow that it might be appropriate to consider that conduct as comprised of acts that, taken individually, fall under different headings. Such an assessment will inevitably be fact- and case-specific, but if the Claimant was, for example, complaining that putting her on particular shifts was a continuing act of direct discrimination and then, as the other side of that particular coin, that failing to put her on different shifts was a failure to make reasonable adjustments, I cannot see why she would not be entitled to say that those matters should be considered together as constituting conduct extending over a period.’

[46]I consider that where, as in Robinson, the protected characteristic is common to the various complaints that would make it easier to establish that two different 12 of 16 claims formed part of conduct extending over a period, but it would not be determinative. In contrast, complaints relying on different protected characteristics might be harder to link together. Harder perhaps, but I do not say impossible. Conduct by a person with antipathy to a man with a disability informed by a view of ‘manliness’ might be unlawful because of one or the other protected characteristic or both. However the claim might be put it would be possible to show a reasonably arguable case that there is a sufficient link between any acts complained of.

[47]It would not be possible to link acts complained of under the Equality Act 2010 with other acts under other legislation even if they were unlawful. The conduct extending over a period must comprise conduct that is unlawful discrimination not merely unlawful or indeed merely immoral or unfair.

[48]What I take from Robinson is the importance of the quote that I have emphasised above ‘Such an assessment will inevitably be fact- and case-specific’. The fact that there are differing causes of action may be a factor, but it will not be determinative. The issue remains the question of whether the Claimant can show ‘a reasonably arguable basis for the contention that the various complaints are so linked as to be continuing acts or to constitute an ongoing state of affairs’.

[49]I find that the Claimant has failed to show a ‘reasonably arguable basis for the contention that the various complaints are so linked as to be continuing acts or to constitute an ongoing state of affairs’ between the acts of discrimination that rely on age and those that rely on race. This is particularly so where the Claimant does not suggest that race in a direct sense was a cause of poor treatment but says that his colleagues treat him poorly because of where he trained. I do not see any argument based upon concepts of intersectionality that might benefit the Claimant.

[50]In his witness statement the Claimant refers to the fact that he has brought a further claim. The Claimant made a further application for the role of Cardiology Clinical Lead in February 2023. He was interviewed but did not get the job. He was informed of that on 6 February 2023. The person who wrote to the Claimant and who interviewed him was Andrew Archibold.

[51]The Claimant relied on this additional failure to appoint him as being evidence of conduct extending over a period that post dated his claim. I need to deal with this alternative means of bringing the earlier claims into time.

[52]It emerges from the documents I was provided with that the Claimant says that the August 2019 appointment was made without interviewing the successful candidate. The 2021 appointment arose when the first appointee took maternity leave. The 2023 appointment was advertised, and the Claimant was interviewed. The person appointed in 2023 was the same person who had covered the original appointee’s maternity leave.

[53]The Claimant has not suggested that the decision maker in 2023 was the same person who took the earlier decisions. He makes a bold assertion that the Respondent does not appoint people of his age to the role of Clinical Lead. In his later claim he says that the decision not to appoint him was also an act of race discrimination. 13 of 16

[54]I have reached the conclusion that the Claimant has not presented any reasonably arguable basis for the contention that the various complaints are so linked as to be continuing acts or to constitute an ongoing state of affairs between the 2021 recruitment exercise and that which took place in 2023. The Claimant has not established an arguable case that the decision makers were the same. There is a gap of 15 months between the last two acts. The nature of the final recruitment exercise appears to have been very different to the earlier exercises (on the Claimant’s account).

[55]The Claimant simply asserts that there is a policy of not appointing persons over 50 to these roles. He has not pleaded a factual basis for that. The fact that he was not appointed on three occasions is insufficient to establish even an arguable basis for suggesting that there was such a policy. I am of the view that the failure to appoint the Claimant to a role on three specific occasions is an allegation of three specific acts of discrimination and not an allegation of an act extending over a period – see Owusu v London Fire and Civil Defence Authority

[1995] IRLR 574

, EAT

[56]It follows that I am satisfied that, even if I were to take account of the most recent failure to appoint the Claimant I am not satisfied that there is any arguable basis for saying that that demonstrates conduct extending over a period sufficient to bring the earlier claims within the statutory time limits.

[57]It follows that I need to consider whether the Claimant has any reasonable prospects of persuading the Tribunal that it would be just and equitable to extend time. The Claimant deals with this in his witness statement. He says that he relied on his BMA representative who told him that he could not bring a claim until he had exhausted internal grievance procedures. For the present purposes I need to assume that the Claimant was told that. The pursuit of an internal process will not automatically mean that an extension of time should be given. It is a factor that I need to take into account see Wells Cathedral School Ltd v Souter EA-2020- 000801

[58]In assessing whether it is appropriate to grant an extension of time the Claimant is to be judged not on what he knew but on what he ought to have known. The Claimant has instructed Counsel to represent him in the past and there is no reason that he could not have sought advice from a lawyer at an early stage. Even if I am wrong about that there is sufficient information on the internet to tell the Claimant that the existence of internal procedures does not suspend the ordinary time limits. The Claimant is intelligent and not without resources. Whilst it is not determinative I conclude that the Claimant ought to have known that pursuing an internal process would not suspend the time limit for bringing a claim..

[59]The Claimant goes on in his witness statement to refer to the prejudice to him of not extending the time limit. He says that he has confidence in his case and will have no right to a remedy unless time was extended. I accept that this is a matter that a tribunal is bound to have regard. The Claimant cannot assume that the fact that he has brought a further claim will be another route to a remedy. In any event it seems that the Claimant requires an extension of time for that claim as well. 14 of 16

[60]I am entitled to have regard to the merits of the proposed claims. They are neither obviously strong nor obviously weak. I regard them as a neutral factor.

[61]I need to have regard to the prejudice to the Respondent. The delay is in the order of 3 months from the second act complained of. I would not place much weight on the suggestion that there is much forensic prejudice in recalling the reasons for that later appointment. What is of more concern is that granting an extension of time even for just that later act means that the decision process surrounding the earlier appointment will be relevant evidence. The Tribunal will be invited by the Claimant to infer that what he was told in 2019 holds good for the appointment in 2021. That is analogous to the prejudice identified in Secretary of State for Justice v Johnson

2022 EAT 1

[62]I have identified that the test I am applying is whether the Claimant has no reasonable prospects of persuading a tribunal to extend time. The position before any future tribunal would be the same as it is before me. If I were to decide that on the material before me it is not just and equitable to extend time then there is no reason to believe that a future tribunal would decide differently.

[63]I deal with the two allegations separately. In respect of the 2019 appointment unless that formed part of conduct extending over a period with the 2021 appointment the Claimant would be seeking an extension of time of approximately 3 years. For the same reasons as I have expressed above I am not satisfied that the Claimant has established an arguable basis for linking the 2019 and 2021 appointments as conduct extending over a period. Considering that claim in isolation I am satisfied that the Claimant has no reasonable prospects of persuading a tribunal to extend time. There is no good reason for the delay. The delay is lengthy and where the Respondent is required to answer to discrimination claims arising out of decisions in 2019 there is a real risk of forensic prejudice. The difficulty in discrimination claims is that the putative discriminator need not only recall what they have done but why they have acted as they did.

[64]Taking the 2019 claim in isolation, whilst I am alive to the prejudice to the Claimant, I am satisfied that the Claimant has no reasonable prospects of persuading a tribunal that it is just and equitable to extend time.

[65]Taking a different approach and assuming that the Claimant might show a link between the 2019 and 2021 appointment processes I need to consider whether he might be given an extension of time to bring the last of those two processes into time. I have regard to the fact that the length of the delay is shorter. The risk of forensic prejudice in relation to the events of 2021 is less. However, as I have indicated, opening the door to the 2021 allegation will require the Respondent to adduce evidence of the decisions in 2019 even if only for evidential purposes. There is a real risk of prejudice which is a significant factor to be taken into account along with the other matters mentioned above.

[66]I have concluded that the Claimant has no reasonable prospects of success in persuading the tribunal to grant an extension of time either only for the 2021 appointment of treating that event as part of conduct over a period with the earlier 2019 appointment. 15 of 16

[67]It follows that the complaints of direct discrimination relying upon age as a protected characteristic should be struck out.

[70]- A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again. Application 71 - Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision is necessary. 1 of 5 Process 72.—(1) An Employment Judge shall consider any application made under rule

[71]If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge’s provisional views on the application. (2) If the application has not been refused under paragraph (1), the original decision shall be reconsidered at a hearing unless the Employment Judge considers, having regard to any response to the notice provided under paragraph (1), that a hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further written representations. (3) Where practicable, the consideration under paragraph (1) shall be by the Employment Judge who made the original decision or, as the case may be, chaired the full tribunal which made it; and any reconsideration under paragraph (2) shall be made by the Judge or, as the case may be, the full tribunal which made the original decision. Where that is not practicable, the President, Vice President or a Regional Employment Judge shall appoint another Employment Judge to deal with the application or, in the case of a decision of a full tribunal, shall either direct that the reconsideration be by such members of the original Tribunal as remain available or reconstitute the Tribunal in whole or in part. 2. The expression ‘necessary in the interests of justice’ does not give rise to an unfettered discretion to reopen matters. The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v Burton and Anor

[2016] EWCA Civ 714

in July 2016 where Elias LJ said that: “the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board

[1975] ICR 395

) which militates against the discretion being exercised too readily; and in Lindsay v Ironsides Ray and Vials

[1994] ICR 384

Mummery J held that the failure of a party's representative to draw attention to a particular argument will not generally justify granting a review.” 3. In Liddington v 2Gether NHS Foundation Trust

EAT/0002/16

the EAT chaired by Simler P said in paragraph 34 that: “a request for reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a different way or by adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to 2 of 5 provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.” 4. Any preliminary consideration under rule 72(1) must be conducted in accordance with the overriding objective which appears in rule 2, namely to deal with cases fairly and justly. This includes dealing with cases in ways which are proportionate to the complexity and importance of the issues and avoiding delay. 5. In accordance with the Employment Tribunal Rules of Procedure I must reconsider any judgment where it is in the interests of justice to do so. Further, if I considered that there is no reasonable prospect of the original decision being varied or revoked I must refuse the application for reconsideration. Discussion and Conclusions 6. By a letter dated 12 December 2023 the Claimant asks me to reconsider my judgment striking out two allegations that he did a protected act (but not striking out any claims having allowed an amendment to introduce a further protected act) and striking out two claims of direct age discrimination. 7. The basis of each decision was as follows: 7.1. I held that the Claimant had no reasonable prospects of success in showing that what he said on two occasions amounted to an allegation that there had been a breach of the equality act (or was a protected act on any other basis) and 7.2. I struck out the two claims of age discrimination on the basis that the Claimant had no reasonable prospects of establishing that those acts formed conduct extending over a period (extant at a date which would mean the claim was in time) or that it would be just and equitable to extend time. 8. In his application for a reconsideration the claimant suggests that his application is based on ‘additional and clarity of information’. As I have set out above the test of the interests of justice is not to be understood as being met because a party wants to make additional submissions or present information that could and should have been deployed at the first hearing. 9. I have considered whether the Claimant has said anything new that would require me to reconsider my decision that he did not do any protected acts in bringing a ‘Job Planning’ grievance in or around December 2017; and orally during grievance meetings that were held on 15 November 2018 and 20 February 2019. 10. As far as I can see in the Claimant’s application he says nothing at all about what he said on those occasions. At paragraph 9 he refers to his e-mail of January 2017 which I have accepted is arguably a protected act. The Claimant goes on to complain that his allocation of duties was discriminatory. That might be right but to convert that state of affairs into a protected act he would have to draw attention to that using language capable of being understood as an allegation that there was a breach of the equality act rather than some general unfairness. I have 3 of 5 held that the Claimant has no reasonable prospects of success in showing that on the two occasions he has identified he did this. 11. I turn to the allegations of age discrimination. The Claimant rehearses the same points that he made before me. These were(1) that he thought he needed to exhaust internal processes before submitting a claim and

(2) that the conduct complained of extended over a period up to and including the time he submitted his claim. 12. I have dealt with both of these points in my judgment. It is not in the interests of justice to permit the Claimant a further opportunity to say what has already said or indeed to allow him to expand upon the points when he could and should have made the entirety of his arguments earlier. 13. It follows that I do not consider that the Claimant’s application for a reconsideration has any reasonable prospects of success. 14. The Claimant’s application touches on the decisions I took to order him to pay deposits as a condition of pursuing certain claims. Such matters cannot be the subject of an application for a reconsideration but may be revisited where, under rule 29, it is in the interests of justice to do so. 15. Like judgments there is a strong public interest in the finality of litigation. It is not a proper use of the resources of the Tribunal to attend a hearing, make submissions and then to revisit those submissions and arguments in an application seeking to vary or set aside an order see Serco-v-Ltd v Wells

[2016] ICR 768

. 16. The Claimant simply repeats information that he had already given or at the least had the opportunity to give. He provides no proper basis which would cause me to revoke or vary orders I made following a 1-day hearing. 17. At paragraph 13 of his application the Claimant suggests that the deposits I have ordered him to pay are ‘heavy’ financial obligations. He tells me that he pays tax and national insurance on his income. That is something that he said in the hearing. 18. The Claimant is a consultant in the NHS doing a large number of sessions. He told me that he also works in the private sector. He told me that he did not know how much he earned from his private work. I found that to be a very unusual assertion. The Claimant has provided no evidence of his income, assets and outgoings. He rests on a mere assertion that the deposits are unaffordable and complains that he has to pay tax and national insurance like everybody else. 19. The deposits that I have ordered are a fraction of the legal costs that the Respondent will incur defending the claims subject to the deposit orders. The size of the deposits was intended to be sufficiently onerous as to make the Claimant think about the wisdom of pursuing claims that an employment judge has determined have little reasonable prospects of success. 4 of 5 20. I see no proper basis for revisiting my decisions in respect of the deposit orders. JUDGMENT having been sent to the parties on 03 February 2025 and reasons having been requested in accordance with Rule 60(4) of The Employment Tribunal Procedure Rules 2024.

Findings of Fact

[72]There were a number of correspondences to which we were referred with the claimant in relation to the appeal hearing between May and August 2017 (see pages 317 – 335 of the Hearing Bundle).

[73]The claimant submitted his appeal statement with evidence attached on 16 August 2017 (see pages 336-366 of the Hearing Bundle). The claimant states in that statement that he wishes to be allowed opportunities to have a fair and balanced job plan.

[74]The claimant sent his responses to the management submission on 11 September 2017 (see pages 368 to 374). In his concluding comments he stated: “As well as I am already attending [though only 1-2 times in a monthwould like more] of cardiac CT and Nuclear Cardiology sessions in my own time, as I do not wish to lose my skills. In the end I like to add that other colleagues at WXH doing 1 in 8 COW acute rota versus mine of 1 in 4 have been granted 12 PAs JP with back pay. My request is for COW weeks not more than 13 like others and change of those weeks to speciality weeks. More importantly grant of correct PAs and SpAs. In the end I hope not to have any imposing of job plan and have the one which is mutually agreed please.”

[75]The Job Planning meeting took place on 13 September 2017. Dr Harrod concluded that: “The panel thought that the management offer was fair and fitted in with the job plan policy of the Trust, however it was concerned that it was currently less than 10 Pas. If the planned echo sessions were added the job plan it would become 10.5 PAs. This should therefore be the final agreed job plan. The panel agreed that the on call allowance had to be same for all consultants on the rota so that needed to be confirmed to Dr Taneja. - 23 - The Panel also agreed that the SpA allowance across the department should be shared across the department so that discussions were transparent.” Dr Mohamed’s position

[76]The claimant referred to Dr Mohamed during cross examination a number of times. Dr Mohamed was initially employed as an acute medicine consultant with a specialty interest in respiratory. Dr Simon Green informed the General Manager at the relevant time that Dr Mohamed was the only lung cancer specialist at Whipps Cross Hospital and that there were considerable problems with the lung cancer waiting lists and care involving respiratory patients. They were keen to get Dr Mohamed onboard full-time. He further informed the General Manager that they had to replace Dr Mohamed’s duties within acute medicine by hiring a full-time equivalent consultant, and consequently the funding was provided to enable recruitment to take place, and Dr Mohamed was relieved from his acute medicine duties. The reason for this was that the respondent found it impractical to recruit a full-time consultant in acute medicine. Conversely, at that point there was no clinical narrative or justification to recruit the claimant as a full-time or to change the claimant’s role to (100%) consultant cardiologist (cardiology unlike any other specialty at Whipps Cross Hospital operated within the wider Barts framework and there was more capacity in terms of cardiology, whereas respiratory was stand alone at Whipps Cross Hospital). There was a critical need for adequate cover for acute medicine duties, which was an important component of the claimant’s contractual responsibilities and the overall service provided by the hospital.

[77]The claimant raised his concerns with the Job Plan appeal outcome by email dated 13 October 2017 (see pages 394-395 of the Hearing Bundle). Claimant’s first grievance

[78]By letter dated 14 December 2017 the claimant raised a grievance relating to his Job Plan and the outstanding PAs still due and not paid between 2012 until May 2017. He requested as a resolution back payment for excess PAs that he undertook and a balanced Job Plan with sessions that allowed his growth and had benefits for patients and allowed him to maintain his overall cardiology skills.

[79]A grievance investigation meeting took place on 12 April 2018 which was chaired by the investigation officer, Dr Andrew Kelso, Clinical DirectorMedicine. The claimant attended that meeting accompanied by Vicki Laws, BMA representative and Akwasi Frimpong, Medical HR Manager was also in attendance. A copy of the record of that meeting which we accept was an accurate record is at pages 406 to 409 of the Hearing Bundle.

[80]By an email dated 13 April 2018 the claimant sent Dr Kelso copied to Shaista Shaikh, Akwasi Frimpong and Vicki Laws further relevant evidence which he stated had been requested. He added that PAs he had done from 2012 to 2015-17 were indicated quite clearly as follows and calculated 10.5 - 24 - have the following missing (thereafter setting out the calculations of missing PAs). The claimant stated that the total came to 14.95. The claimant had previously provided evidence as stated in his email dated 27 March 2018 (in which he stated that he would be providing further evidence).

[81]Dr Kelso had prepared an investigation report dated 19 July 2018 a copy of which can be found at pages 423-440 of the Hearing Bundle. Material taken account was attached in ten separate appendices which included details of a number of interviews with different members of staff. There were summaries of those provided within the report.

[82]In relation to terms of reference one he found: “Thus, I have found the following: The panel that heard the appeal was composed correctly, although this required the intervention of AT’s trade union representative The appeal was conducted properly, heard all of the relevant evidence, and formed its own independent conclusions, in line with Job Planning Guidelines for Consultants and SAS Doctors COR/GUI/208/2016-001 A pre-meet was held between the chair and some representatives of management. Whilst this could be inferred as introducing potential for bias on behalf of the chair, in this case I do not think that this improperly influenced the outcome of the meeting. The appeal findings were communicated to the appellant in an appropriate way, with direct oversight of the trust board, although was not sent directly by a board member. In this respect only does the appeal process deviate from Job Planning Guidelines for Consultants and SAS Doctors COR/GUI/208/2016-001.”

[83]Thereafter he also found the following in relation to terms of reference two: “Thus, in summary, the trust has made significant efforts to reduce the amount of time that AT was working between 2012 and 2016, which AT has been resistant to. AT has not fully understood the process of job planning and as a result has been unable to reach agreement on both the amount and the components of his job. Whilst there is room for the trust to improve their job planning processes, it has been consistent in its attempts to meet the requirements of the job planning policy. I think that the failure to reach agreement on a job plan between 2012 and 2016 is largely as a result of the actions of AT. As no job plan was agreed between 2012 and 2016, and because in my view the failure to reach agreement was largely due to the actions of AT, I do not think that he is entitled to any back pay with respect to work performed between these dates.”

[84]His findings in relation to terms of reference three were: “Thus, all of AT’s concerns were addressed by the appeal panel.” - 25 -

[85]In relation to terms of reference four he stated that points one to eight had already been discussed within the report. In relation to point 9 it was stated as follows: “AT has confirmed that he is in receipt of one clinical excellence award. CEAs are awarded competitively and awards are subject to both the competing applications from other consultants, and the quality of the application. As the application process is confidential, it has not been possible for me to investigate this further.”

[86]In summary he found the following: “ The panel that heard the appeal was composed correctly, although this required the intervention of AT’s trade union representative The appeal was conducted properly, heard all of the relevant evidence, and formed its own independent conclusions, in line with Job Planning Guidelines for Consultants and SAS Doctors COR/GUI/208/2016-001 A pre-meet was held between the chair and some representatives of management. Although ill-advised, a pre-meet is not prevented by Job Planning Guidelines for Consultants and SAS Doctors COR/GUI/208/2016-001, and I do not think that this improperly influenced the outcome of the meeting. The appeal findings were not sent directly to the appellant by a board member. In this respect only does the appeal process deviate from Job Planning Guidelines for Consultants and SAS Doctors COR/GUI/208/2016-001. The trust has made significant efforts to reduce the amount of time that AT was working between 2012 and 2016, which AT has been resistant to. AT has not fully understood the process of job planning and as a result has been unable to reach agreement on both the amount and the components of his job I think that the failure to reach agreement on a job plan between 2012 and 2016 is largely as a result of the actions of AT. I do not think that AT is entitled to any back pay with respect to work performed between these dates. All of AT’s concerns were addressed by the appeal panel.” - 26 -

[87]On 15 November 2018 the claimant attended a grievance hearing which was chaired by Dr Sara Lightowlers, Medical Director Newham University Hospital. Dr Kelso was present along with Sonie Nandra, HR Manager and Esther Sodunke, Interim HR Advisor (note taker). The claimant attended the hearing, along with Vicki Laws who accompanied him. The record of that hearing is at pages 475 to 481 of the Hearing Bundle which we accepted was an accurate record of the hearing.

[88]A further grievance hearing took place on 20 February 2019 which was chaired by Dr Sara Lightowlers. Sonie Nandra, HR Manager and Anamika Dwivedi, Medical HR Manager (note taker) also attended. The claimant attended the hearing, along with Natalie Mathison (BMA Representative) who accompanied him. The record of that hearing is at pages 528 to 534 of the Hearing Bundle which we accepted was an accurate record of the hearing.

[89]At the end of the hearing Dr Lightowlers stated: “SL: In term of sorting out you new job plan going forward that should be achievable by end of April 2019. To working out the back pay etc my opinion is it might take longer just because of the amount of task need to be done. So I would have though end of April 2019 for your new job plan and the probably end of June 2019 sorting out the back payment.”

[90]The claimant was sent a grievance outcome letter dated 24 April 2019 a copy of which can be found at pages 545 to 551 of the Hearing Bundle. Although detailed findings and reasons were provided within that letter the overall summary at the end of the letter stated as follows: “1. The job planning appeal hearing process was not conducted in line with Trust policy. 2. Dr Taneja is owed back pay as he appears to have undertaken the activities in the job plan that was signed off by his clinical lead and clinical director in 2014. 3. It is not clear that the appeal has addressed the acute medicine aspects of the job plan or has compared activities with the cardiology consultants at WXUH, so the job plan needs to be reviewed in this context. If you remain unhappy with the decision that has been taken in relation to your grievance, you have the right to make an appeal in writing to Alistair Chesser, Trust Chief Medical Officer within fourteen calendar days of the date of this letter. Please ensure that you clearly state your grounds for appeal, with an indication of your preferred outcome. If you wish to clarify any points within this letter please do not hesitate to contact me on the above number.” - 27 -

[91]The claimant did not present an appeal in relation to Dr Lightowler’s decision. Emails between the claimant and Emma Cheasty

[92]On 31 May 2024 the claimant advised Dr Emma Cheasty, Consultant Cardiothoracic Radiologist Clinical Lead for Cardiovascular CT Governance and Excellence Lead for Radiology, of a number of dates when he could attend, and he said that he would offer more Wednesdays when his Job Plan (which was in process) was approved. He stated in that email “I will be grateful for how much I could be accommodated for as many reporting sessions. “

[93]On 03 June 20219 Dr Emma Chesty replied to his email advising: “I have just been made aware of 4 Radiology registrars who are starting their cardiothoracic block this coming Wednesday who need to be accommodated for the next 4 months. This is more than usual but I have to give them priority. It is part of their core training and cardiac accreditation has now been acknowledged by the RCR as part of their basic training. Therefore I cannot offer any availability for my lists over the next 4 months…”

[94]During her investigation interview on 06 October 2021 Dr Emma Cheasty was asked: “Part of the investigation that I am conducting is around the following statement:- “Another incident is in regards my cardiac CT reporting sessions. I was going to Barts to do this as is not available at WXH. I was offering this service in my own time to keep up my skills and as required for reaccreditation by BSCI. However, on return from her first maternity leave and appointment as interim lead, Dr SV took my place on Wed and I was told that there are limited reporting stations so I no more can join the reporting sessions. Being the lead, she took this decision in her favour. I had to in my own time do this in another trust as an honorary.” Do you have any comments on this statement?”

[95]Dr Emma Cheasty replied: “It is factually incorrect on many levels. SV has never carried out any CT reporting sessions on a Wednesday afternoon. Before SV’s maternity leave she did them on a Monday. On her return, she resumed the normal sessions as you do with all duties. - 28 - Regarding AT’s sessions, he intermittently asked us to do Cardiology CT. For the BSCI accreditation you have to have done 150 over 3 years. It was us providing him with an opportunity to continue his education. He did this when the service was smaller trainee wise. We now have 20 Cardiology Trainee Fellows, we are legally obliged to train them. My sessions are always over-subscribed, our obligation is not to help maintain accreditations, the trainees take priority. AT had asked to come back, I explained that it was not possible because of the trainees and also because of the volume of work to train more than two at one time. I had an email discussion with him in the last two years and I said that if I had a space he would be welcome.”

[96]Dr Emma Cheasty further stated in that interview: “…He never reported and therefore it is incorrect that he was offering a service, he would only observe, we were providing a service to him. SV is a dedicated Doctor. She is conscientious and cares about the patients. She trains others on a Monday. “

[97]Dr Emma Cheasty also sent an email providing further information to Sarah Cooper-James on 06 October 2021 a copy of which is at page 1616 of the Hearing Bundle. 2018 Nuclear scan reporting

[98]From May 2014 onwards Dr Sin was employed as a Specialty Doctor in Cardiology. Part of his job description stated, “There is an expectation that the post holder will progress to reporting Nuclear Scans independently.” Dr Sin undertook independent nuclear scanning, which was required of him by the department, and it was recorded as DCC on his job plan. The respondent appeared to have identified the nuclear scanning to be undertaken at Specialty grade rather than consultant level.

[99]The relevant service was in a poor state at that time as the equipment was too old and replacing the equipment required major structural work. In fact, the service at Whipps Cross hospital was wound down because of those problems and the department had since been moved to St Barts.

[100]The claimant undertook nuclear scan reporting work at Whipps Cross hospital from 2015 to 2018 (which he undertook to further his professional development and to help keep opportunities open) and Harefield hospital. However, without an honorary contract, he would not have been able to independently sign off scans and so would not have been maintaining his accreditation. - 29 - Further job plan meetings

[101]In June 2019 a job plan meeting took place between the claimant and Dr Ceri Davies, Clinical Director Specialised and Networked Cardiology Services.

[102]A number of emails were exchanged with the claimant following that meeting up to 20 July 2019 (see pages 619 to 615 of the Hearing Bundle).

[103]Thereafter and on 20 July 2019 the claimant sent an email to Dr Ceri Davies copied to a number of other individuals and a further email on that day to Alwen Williams (Chief Executive) and Dr Alistair Chesser (Group Chief Medical Officer) forwarding that email and stating that although the grievance submitted by him had finally resulted in fair recommendations in March 2019, the claimant did not see them being implemented.

[104]Dr Alistair Chesser forwarded that email to Dr Rowland and Dr Ceri Davies on 23 July 2019 asking if they could help with this matter and stating that he knew about the history and the challenges. He stated that he would send the claimant a holding reply.

[105]Thereafter, on 25 July 2019, Dr Edward Rowland, Consultant Cardiologist sent an email to Simon Woldman and Dr Ceri Davies on 25 July 2019 advising “Ceri Davies met AT 1 month ago. Agreement to reduce acute med on call (equivalent to 2 PAs) but in order for this to be implemented needed to find cover to fill vacated slots. Ceri/Esther requested Simon Green and team to find ways of filling (explained to AT that it would take a little time to find a way to fill - my understanding from talking to Ceri is that it is not true that when others are not available for on-call there is a locum employed - there is cross cover).”

[106]A further meeting regarding the claimant’s job plan took place between Dr Ceri Davies and the claimant on 25 July 2019. On the same date and after having received Dr Rowland’s email referred to above, Dr Davies sent an email stating: “Happy with what's been written I met Anil this pm and spoke to Ananda last night They both appear to feel that there is a solution in acute medicine (with apparent support from Tristan at WXH and fresh appointments) to reduce the AM contribution to 1:4 Simon Green is back n/w and will need to confirm..... Anil has said that once this has happened, he will transfer to the 10.5PA JP we discussed previously” Claimant’s backdated pay

[107]On 18 November 2019 a Settlement Agreement was signed requiring the claimant to be paid backdated pay of £69,411.94, to which we were - 30 - referred. The claimant’s BMA Adviser Nathalie Mathison signed and completed the Independent Adviser’s Certificate. Registrar cover

[108]In April 2019 the claimant raised issues about Registrar cover during the week commencing 29 April 2019.

[109]Esther Rainbow was managing rotas at that time. Dr Amersey sent an email to Esther Rainbow on 24 April 2019 advising as follows: “We are going to have a problem on the ward next week without Luisa. Stef is on leave and Selda is on nights for half the week and then echo and clinic. We solved the problem Oct to Dec last year by asking for a reg from barts one week at a me... Let me know what you think.”

[110]Esther Rainbow replied on 24 April 2019 stating “I have highlighted to Simon and he is aware and supportive too – let me know if you don’t hear back from Mark or Ed. Is Georgina a Reg or an SHO?”

[111]The claimant sent email correspondence to Esther Rainbow on 01 May 2019 raising issues in relation to Registrar cover. He stated that it would be helpful to avoid such situations and that in his case it happened twice in six months.

[112]Dr Gupta sent an email in response stating: “yepnhas happened to us all...over the years we should always be proactive/preventative with Middle Grade cover not trying to resolve mid week....and clearly a tough COW week having said that, such scenarios are rare now...with SPRs taking initiatives, sending Rotas and early detection of 'hot-spots”

[113]On 02 May 2019 Dr Amersey stated in his email: “Thank you both for your helpful comments and thoughts. Going forward I would like you both to resolve the registrar/clinical fellow rotas and clinical commitments. This will include their duties, reappointments and covering sickness. It does appear you are both experienced in policies and could eﬀec vely pro ac vely resolve issues. I have found Ed Rowland and Mark Westwood (and the ST r group as a whole) incredibly supportive of the Wx site over the years so I am copying them into this mail to let them know you will be resolving issues going forward.”

[114]On 03 May 2019 the claimant complained to Esther Rainbow by email that: “Rather confusing that we have at least one registrar available next week and we are getting a locum registrar as well. - 31 - My week without reg, we could not get any locum registrar.”

[115]Esther Rainbow replied as follows later that day stating: “The locum is starting on 14/5 - the week without SBH support. We had hoped they could start next week to give them some training time but they are unavailable. Unfortunately SBH did not have staff available this week to support and nor did the agency.”

[116]She advised Dr Amersey by email dated 07 May 2019 “I feel it is extremely detrimental to the Whipps Cross medical team for Anil to be emailing the Medical Director stating that we do not need these Registrars when clearly we have worked very hard to ensure we do have this for the reasons stated above.” Dr Amersey replied on the same day setting out the position and advising that her involvement in the issues raised by the claimant is not required any further.

[117]Esther Rainbow enquired by email dated 13 May 2019 whether Dr Selda Ahmet, who was at that time an ST3 Cardiology Training Registrar at Whipps Cross Hospital, was undertaking the Registrar rota. Dr Ahmet replied: “Dr Taneja has raised concerns that I'm not doing a good job of the rota as he feels he has no SpR cover when it is just him and Luisa on the wards. He mentioned this again to me earlier in the week whilst I was on AAU. He is aware that she is employed at SpR level and I have had many discussions with him regarding this. I feel it would be best if you could kindly take over the rota as I do not want to upset him further.”

[118]On 27 May 2019 Dr Rowland sent an email to Dr Amersey summarising a meeting that took place on the Friday prior, in which among other matters, he acknowledges that Dr Amersey was clear that he had served his two terms as Clinical Lead for Cardiology at Whipps Cross Hospital, and it was now time for someone else to take on that role.

[119]A formal letter of complaint was sent to Dr Davies dated 13 July 2019 on behalf of Tamara Roach (Cardiac Physiologist and Trainee Cardiac Sonographer) and Jonathan Mok (Deputy Principal Cardiac Physiologist) in relation to the claimant’s conduct. There were also concerns raised in relation to the claimant’s position as Clinical Governance Lead and that he did not attend monthly governance meetings. A copy of the complaint is at pages 630 to 631 of the Hearing Bundle. - 32 - Dr Amersey’s and Esther Rainbow’s roles relating to COW rota

[120]Although initially Dr Amersey had taken over cardiology COW rota duties from 2012 and had rostered the claimant to work 13 COW weeks within cardiology, thereafter, Esther Rainbow had taken over responsibility for putting together the COW rota from around January 2017. Esther Rainbow took charge of the COW cardiology rota because there had been a long running concern by the claimant that Dr Amersey was penalising him when drafting the COW rota. To accommodate the claimant’s acute medicine COW rota as well as his cardiology COW rota, they designed the cardiology rota around the claimant’s on-call commitments for acute general medicine. Neither Esther Rainbow nor Dr Amersey (nor indeed any other clinical lead from cardiology) were involved in the preparation of the acute general medicine COW rota. Claimant’s annual leave

[121]The claimant’s leave was requested with Esther Rainbow and signed off by Dr Amersey, and if he was due to be on COW weeks he would need to swap with another member of the team if he wished to take annual leave. There was no indication within the evidence before us that the claimant had applied for leave and that this had been refused at any particular time. Dr Velmurugan’s role

[122]Dr Velmurugan appeared to have no role in preparing the COW cardiology rotas and was only briefly working when she was appointed as interim clinical lead in September 2019 prior to a period of strict bed rest in January 2020 due to medical complications. On 30 August 2019 Dr Davies had sent an email to her advising her that he was about to send an email to the Whipps Cross Hospital team saying that he had asked her to be interim Clinical Lead but that there would be a formal process once the summer was over. Dr Velmurugan replied by email on the same date advising “Thanks. Let’s go ahead. Start this adventure and see how it goes!!”

[123]On 20 September 2019 Dr Velmurugan was approached by a junior doctor about issues that he had experienced with the claimant when he was consultant of the week. The incident was reported in the following terms (per pages 728-9 of the Hearing Bundle): “On Friday 20th September one of the registrars found me in clinic and asked to speak with me in my capacity as the consultant who appointed him at recent interview. The registrar was upset and described a very difficult week working with Dr Taneja as consultant of the week. He told me that on the monday Dr Taneja was rude to the juniors in particular the Asian males in front of nursing staff and patients. This registrar went on to tell me that on the tuesday Dr Taneja didn’t wish to discuss patients with this registrar when a consultant consultant opinion was sought by him. Dr Taneja also told this registrar that “he was a registrar now” and needed to be competent in front of other doctors on the acute assessment unit, making the registrar feel inadequate. This registrar - 33 - also discussed the incident on the Wednesday morning in which one of the foundation year doctors was criticised by Dr Taneja in the mid morning board meeting on Elizabeth ward.”

[124]On 23 September 2019 Esther Rainbow sent an email to Dr Amersey and others in relation to a meeting with Dr Velmurugan and Stefania Rosmini and the junior doctors who escalated their concerns about their finish times and who had submitted exception reports due to this. On 24 September 2019 the claimant sent an email to Esther Rainbow and others making a number of suggestions and proposing alternative solutions. Dr Ashanti Velmurugan sent an email on the same date to the claimant copied to others within the team stating: “Great suggestions. On a separate note, I have been informed of cases of undermine of our junior staff by a member of our consultant body. I am sure we all agree this is unacceptable and should stop immediately.”

[125]Dr Gupta stated by email of the same date: “sad to hear Shanti...but totally agree they all work so hard for us...and our patients....in a Hospital super-saturated with Cardiology demands.. the last thing any individual needs is to start a working day worried about being undermined”

[126]Dr Davies sent an email on the same date to Dr Velmurugan copied to Dr Rowland stating: “As we discussed earlier, written evidence of this behaviour would be useful.”

[127]The claimant sent an email on 29 September 2019 stating “I as well agree that juniors need to be supported at all times along with feedback to ensure patient safety and clinical excellence, which surely all of us are doing. We also have to address their training as well.” The claimant made numerous further observations and suggestions.

[128]Dr Velmurugan did not return to the role of interim Clinical Lead when she returned from maternity leave in 2021, and she had in fact decided to give up the role.

[129]On 25 September 2019 Dr Velmurugan sent an email to Dr Davies saying that two registrars were prepared to make anonymised statements and that she thought that they would be forwarded to them next week.

[130]A statement was provided to Dr Velmurugan by email dated 01 November 2019 (see pages 725-726 of the Hearing Bundle). Dr Velmurugan sent Dr Davies a copy of a statement from a ‘Registrar level doctor’ raising concerns regarding the claimant’s behaviour. - 34 -

[131]An email was sent to the individual who provided the statement from Dr Velmurugan on 04 November 2019 confirming that the statement had been forwarded to Dr Davies (as they discussed this was provided on an anonymous basis but stating that it had been sent from a registrar level doctor).

[132]On 05 September 2019 Dr Velmurugan sent by email to Dr Davies a statement of concern with respect to treatment of junior doctor colleagues (see pages 728-729 of the Hearing Bundle). Dr Selda Ahmet’s concerns

[133]On 25 September 2019 Dr Amersey sent an email to Dr Selda Ahmet stating that this was to follow up on the conversation that they had had a couple of weeks ago around the ARCP and as they discussed at the time if she had any concerns about consultant behaviour within cardiology or medicine she should raise these in writing with himself or Dr Velmurugan. Dr Ahmet replied on the same date stating, “I still have concerns and will be raising these formally in a letter.”

[134]Dr Selda Ahmet sent a written complaint about the claimant’s behaviour by way of a 5-page letter sent to Dr Amersey dated 30 September 2019, a copy of which is at pages 695-699 of the Hearing Bundle. In her complaint Dr Ahmet raised her own issues in relation to the claimant. In addition, Dr Ahmet referred to complaints in relation to other doctors concerning the claimant.

[135]On 28 October 2019 Dr Amersey sent an email to Dr Ahmet in the following terms: “Thank you for your recent letter communication about some difﬁculties with a particular colleague. We had discused this previously around your ARCP in my capacity as Educational supervisor and at the time lead. I had discussed this informally with Dr Rowland medical director. I have spoken to Shanti and she has a copy of your communication. With your permission and I will discuss your concerns and letter with Dr Rowland in person as your previous educational supervisor.”

[136]Dr Ahmet replied on the same date to confirm that she agreed that her complaint could be discussed further with Dr Rowland. Thereafter on the same date, Dr Velmurugan sent an email to Dr Ahmet confirming that she had passed her letter of concern onto Dr Davies who worked closely with Dr Rowland.

[137]On 31 October 20219 Dr Davies sent an email to Dr Velmurugan and Dr Amersey thanking them for sending Dr Ahmet’s letter, advising that this was currently in the hands of HR and Dr Rowland and asking them both to provide statements confirming Dr Ahmet’s statement and commenting on their own observations. - 35 -

[138]On 15 November 2019 James Galer, Medical HR Manager sent a copy of Dr Ahmet’s complaint to Nicole Porter-Garthford, Assistant Director of People. Ms Porter-Garthford sent an email to Dr Simon Sporton on 17 November 2019 stating that she and Dr Rowland had agreed that the complaint should be looked at under Maintaining High Professional Standards (“MHPS”) and he had suggested that Dr Sporton could act as case manager. MHPS

[139]On 21 November 2019, Dr Rowland contacted Dr Harrod to request a suitable individual to conduct an MHPS investigation. Dr Helen Drewery agreed to take on the role of investigator.

[140]On 13 December 2019, Dr Sporton informed the claimant via telephone that allegations had been made regarding his conduct. He explained that an MHPS investigation had been commissioned by Dr Rowland, with Dr Sporton acting as case manager and Helen Drewery appointed as the investigator. Dr Sporton sent an email on the same date to Mr Galer confirming the content of that conversation.

[141]On 16 December 2019, Dr Sporton formally wrote to the claimant confirming the initiation of the MHPS investigation. On the same day, he also provided Dr Drewery with the frame of reference for the investigation.

[142]The investigation commenced on 8 January 2020, when Dr Drewery interviewed Dr Mark Westwood. Between 20 and 28 January 2020, the claimant submitted various pieces of evidence to Dr Drewery in support of his case (see pages 821 – 1287 of the Hearing Bundle).

[143]On 22 January 2020, Dr Drewery interviewed Dr Ahmet, who subsequently emailed her further information on 23 January 2020.

[144]Dr Drewery then interviewed the claimant on 28 January 2020. The claimant was accompanied at that meeting by Ms Rebecca Banks, BMA Employment Adviser. Mr Galer took notes at that meeting, a copy of which are at pages 859-872 of the Hearing Bundle. During this interview, the claimant suggested additional witnesses suggesting “CCU Sister – Zurka Iqbal, AAU Matron – Karen Bryan, Cardiology Matron – Ushina. Couple of consultant Colleagues and junior doctors There are quite a few witnesses, but I will try to send all that are more relevant.”

[145]The claimant sent an email on 28 January 2020 to Dr Drewery with witness suggestions, including in the first email a list of ten potential witnesses included in separate numbered points with their contact details. The claimant sent a further email to Dr Drewery on 30 January 2020 suggesting three further witnesses in addition to the 10 witnesses sent previously.

[146]Throughout February 2020, Dr Drewery continued gathering evidence from a range of individuals, including Mr Ferreira, Ms Shismy Francis, Dr Ardley, - 36 - Ms Z Iqbal, Ms S Akter, Dr Amersey, Ma U Sydameh, Dr Davies, Professor Flood, Ms K Bryan, and Ms S Khanon (the relevant records of those are at pages 917 – 2031 of the Hearing Bundle). On 4 February 2020, Dr Velmurugan informed Dr Drewery that she was unwell and unable to provide any new statements.

[147]On 10 February 2020, Rebecca Banks raised further concerns with Dr Sporton via email. A response was provided on 19 February 2020 by email.

[148]Dr Drewery conducted a second interview with the claimant on 25 February 2020 (a copy of the record of that interview is at pages 1028-1035 of the Hearing Bundle), followed by an interview with Dr Noble on 10 March 2020.

[149]As the investigation progressed, the COVID-19 pandemic began to impact clinical operations. On 25 March 2020, Dr Ardley circulated a new “pandemic rota for consultants,” which included the claimant. In subsequent correspondence, Dr Green indicated his understanding that the claimant would be released from cardiology duties for the duration to focus on general medicine duties.

[150]On 17 April 2020, Dr Sporton wrote to the claimant to inform him that the outcome of the investigation would be delayed due to the pandemic.

[151]Dr Drewery completed her report on 4 May 2020, concluding that the allegations were not upheld. A copy of the report is at pages 1073-1087 of the Hearing Bundle.

[152]Details findings were made in respect of each of the points within the terms of reference.

[153]Although the MHPS investigation did not find against the claimant in its conclusion, it did not state or imply that Dr Ahmet had fabricated or lied about her account. The investigation was limited in scope, as it focused on interviewing individuals suggested by the claimant, but did not include those whom Dr Ahmet might have wished to be interviewed—she was not asked to provide such suggestions (albeit two junior doctors referenced in her letter had failed to respond). Specifically, under TOR 1, the report stated: “The majority of staff have not witnessed AT behaving in a sexist way towards females, including female trainees. On the contrary most staff, including females regard him as courteous and professional. It appears to be that SA was the only female trainee who experienced this which was partly corroborated by JM, but without being able to provide specific examples. It is likely that advice given to SA by AT, whilst appearing to be sexist, may represent generational differences. It should be noted that two junior doctors mentioned in SA’s letter and approached for statements, failed to respond. AT denies sexist behaviour.” - 37 -

[154]Following detailed analysis within the report and the conclusions (at pages 1086 to 1087 of the Hearing Bundle), the following recommendations were made: “1. The line-management structures of the Cardiology Consultants at WXH, especially those with other subspecialty workload such as AT, be immediately reviewed to enable site based consistency in approach to the individual. The role of the Medical Director, Clinical Director and Network Director at Whipps Cross towards AT appears fragmented and should be clarified. 2. There should be more than one Cardiology Subspecialty Trainee at WXH, matched to workload and training opportunities, to allow better peer support and more senior ward cover, with less reliance on FY doctors. 3. There should be an immediate review of the Cardiology Department at WXH in terms improving the working relationships of the Consultants, lack of meetings and trainee rota allocation.”

[155]On 24 June 2020, the claimant received the outcome letter and the full MHPS report. Issues raised following death of a patient

[156]In December 2019, issues were raised following the death of a patient. One of the concerns related to the claimant’s attempt to change the name of the treating consultant on the hospital’s Clinical Records System (“CRS”), from himself to Dr Amersey.

[157]The patient died on 13 December 2019. Following the patient’s death, Matron Zurka Iqbal, who was on the ward at the time, reported to the hospital’s Medical Director that the claimant had changed the name of the responsible consultant on the system after the patient had died. This was later reported by Dr Noble.

[158]The same allegation—that the claimant had instructed the change of the treating consultant’s name from himself (as that week’s Consultant of the Week) to Dr Amersey—was reported to Dr Amersey by both Dr Gupta and Dr Davies on the day of the patient’s death.

[159]If substantiated, the allegation was potentially serious. There was concern in terms that the change would have affected the attribution of the death in consultant-level death statistics and could be interpreted as tampering with patient records (and also involved instructing a junior doctor to make the change).

[160]Dr Amersey expressed his concerns in an email to Dr Davies, stating: “There is some concern that a consultant changing patient data on crs after a death may be reportable to the GMC and the question of probity - 38 - has been raised.” He further requested to Dr Davies as follows “I would be grateful if you would consider investigating, taking formal statements and escalating to the GMC if appropriate. I would be grateful if you would let me know about the specific patient in question, the result of your investigation and future recommendations.” Further correspondences about the claimant’s Job Plan

[161]On 19 February 2020, there were email exchanges between the claimant and Dr Davies concerning the claimant’s job plan. These communications are recorded at pages 1008–1010 of the Hearing Bundle. On 19 February 2020 Dr Davies stated to the claimant: “Anil - you will have seen the edited JP timetable I've returned to you. I think it's reasonable with 8DCCs, 2SPAs and 1PA for your research. As we've discussed in the past, you do need to prioritise your non-DCC activity. Happy to discuss further, but would be grateful if you could consider signing off”

[162]The claimant replied by email on 20 February 2020 apologising and advising he was busy and saw it came for signatures this week. He advised that he went through it completely yesterday and he agreed with 2 SpAs and 1 Research PA. He explained that there was some confusion as the SpA total was showing as 2.6 and it would be nice if he were considered for a clinical management role (for which he believed present total PAs may have to be reduced). His first interest was to be considered for Lead Cardiology and if that was not available to apply for CD specialty at Whipps Cross Hospital.

[163]Dr Davies replied by email on 21 February 2020 stating: “Happy for you to edit the JP to 8/2 + 1 for research I want to use the CL role to develop leadership in the younger Consultants. I’m assuming CD role is to replace Simon Green - in which case is a role for a more senior Consultant and you can apply - clearly you should speak to Simon about the role. I’m surprised it’s a 2PA job - I only get 1 for mine” COVID-19 rota

[164]On 25 March 2020 Dr Simon Green sent an email at 6.42pm to Ceri Davies and others stating: - 39 - “My understanding from Neil Ashman was that Anil was to be released from Cardio for the duration to focus on Gen Med duties. Ceri – if this is problematic I would be very grateful if you could liaise directly with Neil. Anil - this will mean that you will be on exactly the same rotas as the other Whipps Consultants.”

[165]The claimant replied on the same day at 7.09pm stating: “Hi Simon So I am on acute medicine [speciality on its own] rota like other acute medicine physicians. As for COW cardiology I have been doing 1 in 8 [with 6 colleagues] being with 75% cardiology. So acute med consultants are not doing another speciality COW.”

[166]Dr Simon Green replied by email on the same day sent at 7.13pm advising: “Hold on Anil. I am emailing the Medical Consultants in a few minutes. This will show you are on rota, same as every WX Medical Consultant. I repeat, that my understanding from Neil was that you were off the Cardiology COW for the duration. “

[167]We find that Dr Green had asked for the claimant’s release in this regard (for the avoidance of doubt we find that this was not proposed by Dr Das). The claimant was considered a key member of the acute medicine team at the relevant time. The claimant’s position on the COVID rotas had been actioned by the site team. Dr Das’s only role in this matter was to agree to Dr Green’s request and to remove claimant’s cardiology commitments to allow him to do the additional acute medicine work. There was still ongoing cardiology work (albeit a reduced amount) and in any event those performing a 100% cardiology consultant role assisted with COVID related issues in a range of other ways. Dr Davies himself, for example, had provided some cover within a respiratory ward. Claimant’s second grievance

[168]On 9 November 2020, the claimant submitted an email grievance regarding the complaint made against him and the conduct of Dr Amersey and Dr Velmurugan (see pages 1112 – 1122 of the Hearing Bundle).

[169]On 7 January 2021, Dr Chapagain circulated the COVID rota by way of email.

[170]On 22 January 2021, Nicole Coutts notified the claimant of the intent to pause the investigation pending a decrease in the COVID assessment level from level 4.

[171]On 26 March 2021, the claimant was invited to a grievance meeting scheduled for 9 April 2021.

[172]On 5 and 6 April 2021, the claimant emailed various pieces of evidence to Nicole Coutts. - 40 -

[173]On 8 April 2021, the claimant emailed his CV to Nicole Coutts, copying Rebecca Banks and Dr Connibear, stating: “Also attached is a copy of my CV to know my background and passion for my profession.”

[174]On 9 April 2021, the claimant attended a grievance meeting chaired by Dr Connibear, a record of which is at pages 1289 – 1308 of the Hearing Bundle. In attendance at the grievance meeting was the claimant and his trade union representative Rebecca Banks, BMA, Goncalo Fier who had been appointed as the Inclusion Ambassador for the grievance meeting, Jake Dormer as note taker, Nicole Coutts HR Business Partner in capacity as HR support and Dr Conibear.

[175]At the Grievance meeting the claimant stated that he felt his cardiology colleagues at the Trust’s Whipps Cross Hospital had influenced the complaint raised by the trainee Dr Selda Ahmet’s, which had led to the MHPS Policy investigation (per Hearing Bundle pages 2058-2080). The claimant also mentioned that he had been unfairly overlooked in relation to undertaking scan reporting and he considered his colleagues had bullied him.

[176]The grievance meeting on 9 April 2021 was paused to allow further information to be obtained.

[177]On 13 April 2021, there were emails between Nicole Coutts and the claimant regarding the grievance (see pages 1310-1312 of the Hearing Bundle). In addition, by email on 13 April 201 Nicole asked Dr Ceri Davies (‘Ceri’) to meet with Nicole Coutts and Dr Connibear, so that they could discuss with him the process from receiving Dr Ahmet’s complaint and leading up to the MHPS investigation that was carried out by Dr Helen Drewery (See Hearing Bundle pages 1073-1087, 1309).

[178]Nicole Coutts also emailed Dr Drewery on 15 April 2021 and explained that they wished to obtain further information from her around the claimant’s view that Dr Ahmet’s complaint had been malicious and false in nature. Dr Connibear spoke with Dr Rowland, on or around 26 April 2021, about the circumstances surrounding the decision to instigate the MHPS process and the MHPS investigation. Dr Rowland confirmed to him in an email on 2 November 2021 that he had commissioned an MHPS investigation because he had considered the allegations raised to have been serious enough to warrant that action and he had also stated in that email that he would usually contact PPA in respect of proceeding with a formal investigation, but he could not find any notes of his conversation with them.

[179]On 28 April 2021, the claimant attended a reconvened grievance meeting, the record of which appears at pages 1326 and 1335 of the Hearing Bundle.

[180]The claimant was provided with a copy of the notes of both grievance meetings and commented on the notes thereafter (see pages 1289-1308, 1350, 1358 and 1436). - 41 -

[181]On 11 May 2021, emails were exchanged between Nicole Coutts and Sarah Cooper-James regarding a possible investigation and its costs.

[182]On 12 May 2021, Dr Woldman authorized an external investigation.

[183]On 14 May 2021, Dr Connibear wrote to the claimant regarding the grievance. In his letter he noted that Goncalo Fier had stepped aside following the claimant’s concern that Goncalo Fier was not impartial. He also confirmed that he had closed the initial grievance meeting with the view to further information being obtained and to understand in more detail why the MHPS process and investigation had been instigated. He stated that Nicole Coutts and himself had spoken with Dr Davies, Dr Rowland, Nicole PorterGarthford and Dr Drewery to obtain that further information.

[184]He also explained within the letter to the claimant on 14 May 2021 that a formal grievance investigation would be carried out to consider his allegation that Dr Amersey and Dr Velmurugan had bullied him. He considered it was fair for the grievance investigation to be undertaken so that further evidence could be obtained before a final outcome to his grievance was provided. In that letter he also notified the claimant that there was a right of appeal.

[185]Between 20 May 2021 and 8 June 2021, there were emails between the claimant, Rebecca Banks, and Nicole Coutts on various subjects, including the minutes of previous meetings and the terms of reference for the further investigation.

[186]On 30 June 2021, Sarah Cooper-James interviewed the claimant. A copy of the record of that meeting can be found at pages 1655-1673 of the Hearing Bundle.

[187]On 1 July 2021, Sarah Cooper-James interviewed Dr Amersey. A copy of the record of that meeting can be found at pages 1696-1700 of the Hearing Bundle.

[188]Between 2 and 4 July 2021, the claimant sent further evidence to Sarah Cooper-James.

[189]On 2 July 2021, Sarah Cooper-James interviewed Dr Velmurugan (see pages 1701-1706 of the Hearing Bundle) and on 12 July 2021, Sarah Cooper-James interviewed Dr Davies (see pages 1707-1709 of the Hearing Bundle).

[190]On 8 August 2021, the claimant sent further evidence to Sarah CooperJames.

[191]Between 12 and 13 August 2021, there were emails exchanged between the claimant, Rebecca Banks, and Nicole Coutts regarding the first part of the grievance. - 42 -

[192]Between 11 and 31 August 2021, there were further emails between the claimant, Rebecca Banks, and Sarah Cooper-James regarding witness evidence, cancelling a meeting on 12 August 2021, and arranging the next meeting.

[193]On 7 September 2021, Sarah Cooper-James interviewed the claimant for the second time. A copy of the record of that meeting can be found at pages 1674-1695 of the Hearing Bundle.

[194]On 9 September 2021, the claimant sent further evidence to Sarah CooperJames.

[195]On 10 September 2021, Sarah Cooper-James interviewed Pooja Pathak and on 16 September 2021, Sarah Cooper-James interviewed Lourdes D’Cruz-Waugh.

[196]On 17 September 2021, the claimant emailed Sarah Cooper-James regarding witnesses.

[197]On 21 September 2021, Sarah Cooper-James interviewed Ushina Sydamah.

[198]On 23 September 2021, the claimant emailed Sarah Cooper-James regarding witnesses.

[199]Between 27 July 2021 and 24 September 2021, there were emails between Sarah Cooper-James and Nicole Coutts regarding progress and witnesses.

[200]On 26 September 2021, the claimant sent by email further evidence to Sarah Cooper-James.

[201]On 28 September 2021, there were further emails exchanged between Sarah Cooper-James and the claimant. Sarah Cooper-James had asked the claimant to identify weeks where he considered he had been provided with less support than others.

[202]On the same date, the claimant emailed various potential witnesses, copying Sarah Cooper-James.

[203]On 29 September 2021, Sarah Cooper-James interviewed Karen Bryan.

[204]On 30 September 2021, the claimant emailed Sarah Cooper-James with rotas and further evidence.

[205]On 1 October 2021, Dr Connibear wrote to the claimant, extending the investigation deadline to the 08 October 2021 for witness interviews/statements to be undertaken/collected and for any further evidence to be submitted. He stated in his email: “I am writing to provide an update of the on-going investigation due to parties requesting an extension to provide further witnesses and due to annual leave.” He indicated that the - 43 - investigating officer had been asked to provide their finalized report to him by 13 October 2021 after which a meeting would be held with the claimant to discuss the outcome and next steps.

[206]On that date, Dr Velmurugan proposed witnesses to Sarah Cooper-James.

[207]On the same date, Dr Connibear updated Dr Velmurugan on timings and asked if she felt any further individuals should be interviewed. Dr Velmurugan responded by asking for a broad cross-section of people to be spoken to and provided a selection of names.

[208]On 1 October 2021, Dr Connibear updated Dr Amersey on timings and asked if he felt any further individuals should be interviewed. Dr Amersey responded by suggesting some witnesses.

[209]Between 1 and 6 October 2021, Sarah Cooper-James conducted a series of interviews with various individuals. On 1 October 2021, she interviewed Nneka Dike, Raquel Nunes, and Dr Gupta. On 4 October 2021, she spoke with Aidan Taylor, Dr Rowland, Dr Ahmet, and Dr Woldman. The following day, 5 October 2021, she interviewed Esther Rainbow, Maureen Kuteyi, and Sharon Cameron. On 6 October 2021, she interviewed Dr Cheasty and Shahana Akhter and also received an email from Dr Cheasty on the same day. Also on that day, it was confirmed that Professor Chesser was on leave until after the date for the completion of the investigation.

[210]Further, on 6 October 2021, Dr Davies emailed Sarah Cooper-James, responding to queries.

[211]On 7 October 2021, Dr Amersey sent by email an account and complaint regarding the claimant.

[212]On 7 October 2021, Sarah Cooper-James interviewed Sunjeda Khanom and she also conducted an interview with Zurka Iqbal.

[213]On 8 October 2021, Emma Cheasty sent Sarah Cooper-James evidence regarding the 2019 cardiac incident.

[214]On 8 October 2021, Dr Amersey emailed Sarah Cooper-James regarding a sense of injustice.

[215]On 8 October 2021, Sarah Cooper-James interviewed Jibi Cheriyan and on the same day she interviewed Rhona Shwartz. Also on the same day, a statement was received from Pooja Pathak.

[216]On 11 October 2021, Dr Ioannides replied to Sarah Cooper-James after the investigation stage concluded. - 44 -

[217]On 12 October 2021, the investigation report by Sarah Cooper-James was completed (a copy of which is at pages 1631-1652 of the Hearing Bundle). In summary the report found as follows:(i) “The Investigator considers that there is no evidence to support the allegation that Rajiv Amersey and Shanti Velmurugan have influenced the complaint submitted by Selda Ahmet.”

(ii) “On the basis of this, the Investigator considers that there is no evidence to support the allegation that Dr Rajiv Amersey has attempted to frame Anil Taneja by contacting Heather Noble in relation to this incident.”

(iii) “Job Plan: Anil Taneja had unresolved issues from 2013. This culminated in a grievance being submitted in 2019. The results of this grievance found in Anil Taneja’s favour and back pay was awarded.”

(iv) From the evidence supplied, whilst the situation was unfortunate, there is no evidence that this occurred because of bullying on behalf of Rajiv Amersey.

(v) “Anil Taneja did not raise any issue of bullying in his 2019 grievance which would have been the appropriate time to do so. On the basis of this information the Investigator considers that there is no evidence to support the allegation that Dr Rajiv Amersey has bullied and harassed Anil Taneja around the issues of his Job Plan.”

(vi) Weekend clinics: There is no evidence to suggest this is true. The clinics were offered to several consultants including Anil Taneja.

(vii) Rajiv Amersey and Shanti Velmurugan communication with nursing and secretarial/admin staff: Despite the majority of witnesses not finding any issues with Rajiv Amersey and Shanti Velmurugan, the fact that some witnesses have come forward with issues, the Investigator

(viii) finds that there is partial evidence to support this allegation.

(ix) Rajiv Amersey and Shanti Velmurugan using inappropriate Language: “Of the sixteen witnesses questioned (some at the request of Anil Taneja), no one stated that they had witnessed either Rajiv Amersey and Shanti Velmurugan use in appropriate language. On the basis of this the Investigator has found no evidence to support this allegation.”

(x) Rajiv Amersey and Shanti Velmurugan specifically inquired from staff of any issues they have observed during Anil Taneja’s COW - 45 - week or whether they wanted to raise any issues: On the basis of this the Investigator has found no evidence to support this allegation. “CT Sessions: Shanti Velmurugan has never carried out CT reporting sessions on a Wednesday. Additionally, in response to Anil Taneja’s allegation that “Being the lead, she took this decision in her favour.” Shanti Velmurugan has no control over these sessions. It is unclear how Anil Taneja has the impression that Shanti Velmurugan was doing these on a Wednesday and that she had any influence in him not being able to take part in these. The email from Emma Cheasty is clear on this matter. On the basis of the above information, the Investigating Officer has found no evidence to support this allegation.”

(xi) “COW Resources: The lack of resources of junior Doctors for COW is a recognised issue. Evidence has been supplied by Rajiv Amersey demonstrating that this was an issue while he was Clinical Lead and the efforts he made to resolve this. However, he admits that it has remained an issue. Two independent witnesses have stated that there is an issue and that all COW are affected. Anil Taneja has not been affected more than any other Consultant. On the basis of the above information, the Investigating Officer has found no evidence to support this allegation.”

(xii) AT alleges that Dr Rajiv Amersey does not hold the MD educational qualification that is showing on his private practice biographies: However, as the qualification was listed and Rajiv Amersey did not have this qualification the Investigating Officer has found evidence to support this allegation.

(xiii) That recruitment practices specifically to the clinical lead roles within the department have not been transparent or followed due process: On the basis of the evidence gathered it is the opinion of the Investigator that evidence has been found to support this allegation.

[218]The Conclusions and Recommendations of the report are at pages 1651 to 1652 of the Hearing Bundle. It was noted that the investigation in relation to the allegations made by the claimant involved interviews with twenty-four individuals from a variety of roles. Following a summary of the findings and matters to be considered by the commissioning manager, the final sentence of the report stated, “The Commissioning Manager should consider if any - 46 - further action in relation to all parties, is taken in relation to the findings of this report.”

[219]The report also stated, “All three [we note this was referring to the claimant, Dr Amersey and Dr Velmurugan] state that the others actions / statements have been made in revenge. There is clearly hurt feelings in all three. Whether mediation would be beneficial is something that should be explored as currently it is the view of the investigator that relationships have broken down irretrievably and intervention of some sort is required. In the interest of fairness, it should be noted that Rajiv Amersey and Shanti Velmurugan are of the view that Anil Taneja has raised this grievance in a vexatious manner.”

[220]On 2 November 2021, Dr Rowland emailed Dr Connibear explaining why a formal investigation had taken place into allegations by Dr Ahmet.

[221]On 10 November 2021, the claimant was invited to attend a meeting and sent a summary report.

[222]On 15 November 2021, Dr Velmurugan sent a statement ahead of the outcome meeting.

[223]On the same date, Dr Amersey responded to the outcome. Dr Velmurugan’s letter dated 15 November 2021 stated: “May I kindly ask why was I even investigated for inappropriate language when it wasn’t alleged above on my part? I’m guessing by grouping me so closely with Rajiv Amersey it has caused confusion and this really cannot be excused on Anil Taneja’s part in my opinion. He has made every attempt to discredit me and undermine me - as if I am Dr Amersey’s sidekick with no mind of my own. It’s shocking and makes me very sad. I noted this also: ‘RA was the Education Supervisor of SV - page 5 - I presume that’s a typo and he meant SA not SV.’”

[224]On 17 November 2021, Rebecca Banks sent an email asking for the appendices. Nicole Coutts explained that providing appendices needed to be balanced with the right to privacy.

[225]On 18 November 2021, Dr Connibear met with the claimant to provide the grievance outcome.

[226]On 21 November 2021, Dr Woldman wrote to the claimant regarding temporary restrictions on attendance for all three individuals concerned during on call weeks. He stated that, “This is for the benefit of the team and ensuring that all are able to focus on patient care without other concern.”

[227]On 26 November 2021, the grievance outcome letter was sent to the claimant (please see pages 1847-1852 of the Hearing Bundle). The outcome letter included the following conclusions: “After carefully considering all the evidence presented I have decided that aspects of the grievance have been upheld. - 47 - In regards to allegation 1, it is clear that there has been evidence found that Dr Rajiv Amersey and/or Dr Shanti Velmurugan’s communication with the wider MDT had fallen below standards expected of them, however the evidence found does not support the allegation that this impacted on their interactions with yourself, and there is no evidence, I feel, that demonstrates you had been subjected to bullying and harassment due to this. The elements raised within the investigation will be discussed and taken forward directly with Dr Rajiv Amersey and Dr Shanti Velmurugan. In regards to allegation 2, no aspect of this allegation is being upheld. Dr Selda Ahmet was interviewed as part of the investigation and is adamant that she was not influenced or coerced and viewed it as her duty to report matters of concern to the trust. No evidence was found to support this allegation. In regards to allegation 3, evidence has been found to uphold this aspect of the grievance. This will be taken forward and referred to the Medical Director. In regards to allegation 4, evidence has been found to uphold this aspect of the grievance. It is acknowledged that there is a site wide lack of clarity and consistent process in the appointment of clinical leads although it is not felt that you were disadvantaged by this as you were given the opportunity to apply for this role but there is no evidence that you decided to do so, A review of the process for recruiting clinical leads will now be taken forward by the HR team and senior management within the site.”

[228]The letter advised that the claimant’s concerns that the claimant had raised were noted. The letter further advised: “I stated that I felt the investigation had been diligently undertaken and was proportionate and fair. The process has now been completed and as part of the investigation, I had hoped that information and evidence was shared in a timely manner and I was concerned by your statements that you had further evidence that had not been shared.” “You felt that the probity of Dr Rajiv Amersey remains an issue and this should cast doubt on everything he has said as part of the investigation. You stated that you felt it meant he could not be trusted.”

[229]It was acknowledged that the claimant did not believe that the outcome was satisfactory, that they had not been able to discuss an appropriate way to move forward, and furthermore, the claimant was advised about the details of how to present an appeal.

[230]On 26 November 2021, a copy of the grievance outcome was sent to Dr Velmurugan. - 48 -

[231]Between 26 November and 10 December 2021, there were emails regarding the timing of the claimant lodging an appeal regarding the grievance outcome.

[232]On 2 December 2021, Dr Woldman emailed the claimant to discuss ways of improving the working environment, mediation, and temporary redeployment.

[233]On 6 December 2021, the claimant presented an appeal against the grievance outcome (see pages 1860-1876 of the Hearing Bundle).

[234]On the same date, Dr Amersey emailed Dr Connibear to raise concerns regarding the findings.

[235]On 9 December 2021, the claimant presented an amended appeal (see pages 1891-1912 of the Hearing Bundle).

[236]On 12 December 2021, the claimant sent by email the claimant’s grievance appeal submissions, and he noted that there were several supporting documents that would need to be considered also. An email was sent from Antonia Shepherd on 13 December 2021 confirming receipt of the grievance appeal letter and an appendices zip file along with other attachments. On the same date the claimant provided further documents by email.

[237]On 17 December 2021, Dr Conibear and Nicole Coutts sent a response to the appeal (dated 14 December 2021), see pages 1955-1977 of the Hearing Bundle.

[238]On 17 December 2021, the claimant’s appeal was adjourned due to an increase in the COVID-19 alert level to 4.

[239]Between 9 and 24 December 2021, there were a number of email exchanges between the claimant and Dr Baca. Dr Baca stated on 22 December 2021:“It's been a long time now since my employment at Whipps and I need to honestly say that at this point in time after endless ITU shifts during COVID and despite vaccinations just having myself covid now for the second time, a lot of things are blurry and I can't remember details of the conversations that might have taken place around this topic. I believe that when I spoke with you in January all I said I was that a senior colleague, but I don't think it was a female colleague, asked me if there is something I would like to give feedback in regards to any work-related interactions I had with you. I don't think anyone asked me to give a negative statement. Maybe there's been a misunderstanding. My personal experience working with you, you've always been professional and reliable.”

[240]On 2 March 2022, an appeal hearing was held with Dr Magda Smith, Chief Medical Officer. - 49 -

[241]On 22 March 2022, the appeal outcome was issued to the claimant, and the appeal was not upheld.

[242]Dr Magda Smith provided the outcome to the claimant’s appeal against the grievance outcome and within the same, she stated that the Appeal Panel were satisfied that the grievance panel had taken appropriate information into account and considered the evidence presented to it (see Hearing Bundle pages 2007-2011). Dr Smith stated: “In summary the Appeal Panel was satisfied that the Grievance panel had taken appropriate information into account and considered the evidence presented to it to come the conclusions that it did with the exception of the process of proceeding to a formal MHPS disciplinary investigation. The panel would like to recognise the impact of the time it took to investigate the MHPS investigation and to apologise for any distress this has caused.”

[243]In addition, the following recommendations were made within the appeal outcome: “1. Mediation – a formal mediated process for some identified members of the cardiology department to allow concerns to be raised within a safe environment with an approach which is in line with restorative practice. Owner: Site HR team 2. A review of the Clinical Lead and Clinical Director appointment process. Commenced 3. A review of the MHPS policy which it is understood is currently underway; namely that a pause and reflect element is introduced 4. Training for senior leaders in the application of the Trust’s disciplinary and MHPS process. In progress 5. Assurance that the recommendations of the MHPS investigation are caried out. Owner – site Medical Director” Events after the second grievance

[244]During routine activities, Dr Amersey bumped into witnesses during and after the grievance process, and as he explained in his evidence (which we accepted), this was unavoidable around the hospital. Some of those witnesses had asked him what had happened with the grievance. Dr Amersey had asked if staff were involved. He also contacted witnesses thereafter to apologise for being contacted by the investigator Sarah - 50 - Cooper-James after her investigation was completed (as he was not allowed to discuss the investigation whilst it was ongoing). Dr Amersey genuinely believed that he had complied with the rules of the investigation.

[245]We noted that on 28 September 2021 the claimant had contacted Dr Kyriacos Ioannides, Registrar to request him to contact Ms Cooper-James urgently in regard to some important information required. There were further emails between him and the claimant on 28, 29 and 30 September 2021.

[246]At the end of September 2021, Dr Kyriacos Ioannides came to see Dr Amersey in clinic and informed Dr Amersey that he had been asked to give a statement to Ms Cooper-James and that Dr Taneja had indicated to him that he would be contacted by someone. Dr Amersey informed Dr Ioannides that he should consider giving a statement if this was part of a formal process. The details of this conversation were recorded by Dr Amersey in an email sent to Dr Davies on 30 September 2021 (see page 1566 of the Hearing Bundle).

[247]Dr Amersey sent an email to Ms Cooper-James on 30 September 2021 stating: “Sorry for the random mail and I hope you have been ok. I wonder if I may speak to you. I feel that i am being victimised in this grievance (not by you) and it now appears that Dr Taneja is speaking to junior doctors about giving statements. I was told that this formal complaint was not to be discussed with other colleagues. I have escalated this to my line manager.” Meeting and correspondence between the claimant and Dr Smith

[248]On 26 April 2022 a meeting took place between the claimant and Dr Smith to discuss the outcome of the grievance appeal.

[249]During that meeting Dr Smith wanted to reiterate the offer she made to take account of the recommendations of the MHPS investigation conducted by Dr Helen Drewery and the recommendations following the appeal hearing which she had chaired. Dr Smith also confirmed her commitment to follow up on the recommendations made in both the MHPS investigation and in the grievance appeal meeting (made by her in her capacity as Chair).

[250]Following that meeting, Dr Smith sent a letter to the claimant dated 25 May 2022 (see pages 2019-2020 of the Hearing Bundle). In that letter she confirmed the discussions had at the meeting on 26 April 2022. She also reminded the claimant of the terms of the recommendations.

[251]Dr Smith stated in her letter that at the end of the meeting, they had agreed to reconvene within two months to consider the updates on the recommendations and to feed this back to the claimant. - 51 - Claimant’s Employment Tribunal claim

[252]The claimant contacted ACAS for Early Conciliation purposes on 15 May 2022, and the ACAS Early Conciliation Certificate was issued on 25 June 2022.

[253]The claimant presented the ET1 Form to the Tribunal on 08 July 2022. Observations and analysis

[254]The Tribunal made the following essential observations and analysis having considered the evidence before them:

[255]We made our findings of fact on the balance of probabilities.

[256]We considered that the documentary evidence before us were able to provide a substantial number of the essential facts that we were required to investigate and determine.

[257]There was a requirement to consider witness evidence and witness recollections in respect of some of the factual issues which were based on oral conversations. As some of the events are rather dated, the Tribunal were cognisant of the fact that there may be difficulties in terms witness’ recollections.

[258]We took account of the guidance provided in case law such as Gestmin SGPS S.A. v Credit Suisse

[2013] EWCA 3560

(Comm). We also had regard to the Employment Appeal Tribunal’s consideration of the Gestmin principles including in the context of a discrimination case in the decision of Mr J Marlow v AIG Asset Management (Europe) Ltd

UKEAT/0267/17/BA

(a case before then then President of the Employment Appeal Tribunal, Mr Justice Choudhury [sitting as a full panel]).

[259]Where there was a dispute of fact, on the whole, we preferred the respondent’s witness evidence which was overall supported by (and consistent with) the documentary evidence before the Tribunal. We noted that the respondent’s witnesses admitted a number of times where they did not recollect details of conversations that occurred some time ago. Generally, they also made appropriate concessions. By way of example, there were candid explanations provided in relation to any delays in terms of dealing with the grievance process.

[260]Dr Simon Green acknowledged that maybe he could have considered requesting other cardiologist consultants to assist acute medicine during the COVID-19 pandemic. We noted that this was a hugely difficult time, the Tribunal further noted that Simon Green was visibly emotional while he gave that evidence in relation to this matter, and we accepted that he did the best that he could at the relevant time in difficult circumstances. It was in any event a rational and reasonable decision to request the claimant to assist in acute medicine during the pandemic as none of the other consultants in cardiology, on the evidence before us, had contemporaneous experience in - 52 - terms of acute medicine at Whipps Cross Hospital. We accepted the respondent’s evidence, in particular Dr Simon Green’s evidence in this regard which we found to be credible and consistent.

[261]We noted that during the Job Planning process there was no reference to discriminatory behaviour displayed by Dr Amersey or any other individuals on grounds of any protected characteristic (on grounds of race or any other protected characteristics specified in section 4 of the Equality Act 2010). On 25 January 2017 there was an email from the claimant (at page 301 of the Hearing Bundle, which we referred to above) in which the claimant uses the term “may be discriminatory” within the sentence “If all others are doing 1 in 3.2 COW weeks and I am accepting to continue with 1 in 2 (previously 1 in 1.6) then that may be Discriminatory”. The claimant does not say or suggest in that email or any subsequent correspondence related to that email that his treatment was because of or related to race (or any other protected characteristic). When this was put to the claimant in cross examination, the claimant said he did not state this because it would have been obvious that he was complaining about race discrimination. He also cited his lack of legal knowledge and his dependence on the BMA’s advice. We did not find the claimant’s answers provided in the cross-exam examination in relation to this matter to be satisfactory.

[262]In relation to the claimant’s second grievance, the claimant suggested in evidence that the respondent should have known that he was complaining about race discrimination as Dr Amersey knew about the comments he made to the claimant in 2012. The respondent’s counsel pointed out that the claimant had claimed race and age discrimination on his ET1 Form (he did not say what type of discrimination he was claiming in respect of any alleged such comment). In any event the Tribunal were not satisfied that the claimant’s reference to “may be discriminatory” in the relevant email referred to above could reasonably be construed as a reference to race discrimination (or any other form of unlawful discrimination) considering all the circumstances. It could not be said that on the evidence before us that it would have been obvious or apparent that the claimant was complaining about race discrimination (the reference to discrimination appeared to the respondent to be a reference to unfair treatment generally, and we found this was a reasonable view having construed the relevant email and all the relevant circumstances).

[263]The claimant made a number of assertions about events that took place a considerable time ago which were not documented at the relevant time, nor witnessed and they were not referenced anywhere in any of the internal processes (and related documents) that took place to which the Tribunal were referred. The allegation at paragraph 9 of the claimant’s witness statement did not appear in the Agreed List of Issues or in the claimant’s grievance or grievance appeal. Whilst there was an allegation about the use of inappropriate language in the claimant’s grievance, there was no reference to the allegation that Dr Amersey told the claimant to “fuck off” or “get lost” in the claimant’s second grievance (or indeed the first grievance which related to an entirely different subject matter) and none of the - 53 - witnesses interviewed stated that they had witnessed Dr Amersey using bad language towards the claimant. The claimant did not detail this allegation or the allegation at paragraph 9 of his witness statement during the detailed investigation interviews in which he was asked for details about bullying and harassment by Sarah Cooper-James on 30 June 2021 and 07 September 2021.

[264]The claimant stated that his Job Plan was not progressed. He was questioned about this in cross examination. His answers provided in relation to this matter were not clear, and they were rather evasive. He had to be asked certain questions a number of times. In fact, the email correspondence showed that Dr Amersey had followed up the matter with the acute medical team a number of times.

[265]The claimant appears to ascribe underlying motives to emails that Dr Amersey has written which are not borne out on the evidence before us. One example of this is when he reads and construes the email where it was suggested to Dr Ahmet by Dr Amersey that she puts her concerns in writing. The claimant says that this is clear evidence that Dr Amersey is encouraging or influencing her to lodge a complaint. This was a wholly unreasonable interpretation of that email looking at that email and the overall context. In fact, it is good practice to advise individuals (particularly when that person is a more junior staff member and the complaint is about a consultant) to put any concerns in writing so they can be properly addressed. A further example was an email we referred to above where Dr Amersey stated that the concern highlighted may need to be investigated and reported to the GMC. The claimant places a particular slant on that email to Sarah CooperJames and ascribes motives that are simply not borne out. On a proper construal of that email, Dr Amersey was setting out his concerns and a possibility that the matter may need to be escalated to the GMC, which is a perfectly responsible position to take in the circumstances. Dr Amersey in the email dated 16 December 2019 conveys his concern at the end of the email as follows “Clearly a death attributed to my care is reported externally and is attributed my personal statistics which are reported nationally” which on the face of it is a reasonable concern (we note that no further action was taken in respect of this matter). The claimant did not seem to show (during his witness evidence or the internal documents to which we were referred) any aforethought or acknowledgment that complaints or issues of a certain nature require investigation (or at least to some level), particularly in a regulated environment (this reflected the consistent position that the claimant maintained in cross examination also).

[266]The claimant provided a number of answers in cross examination that the Tribunal considered were evasive. By way of example, he was asked on four or five occasions whether he had informed his BMA representative about his race discrimination allegations, as the claimant was not addressing the question that he was asked about the same matter previously. His eventual response was not clear and despite eventually stating that he had discussed his allegations with the BMA representative (who he said told the claimant to focus on the Job Planning issue and - 54 - exhausting internal processes before making his Tribunal claim), he was unable to provide specification including details of what allegations he had told the BMA representative and when (he had also not specified this information in his witness statement). We find that if the claimant had mentioned any race discrimination allegations to the BMA then it is likely that they would have referred to these in their correspondences sent to the respondent and/or advised the claimant to raise a grievance in relation to these matters. We did not accept the claimant’s assertion to the effect that the BMA told the claimant not to pursue his discrimination allegations at the relevant time.

[267]Except for Dr Amersey who accepted that he knew that the claimant undertook his primary medical qualification in India, we had no evidence before us that any other individuals had knowledge or in any event had paid any attention to the fact that the claimant had attended medical school in India.

[268]It was put to Nicole Coutts in cross examination that Dr Amersey favoured British Indian doctors who were trained in the UK, as opposed to non-EU/UK graduates, with which Ms Coutts disagreed. Other than the claimant’s stated assertion or belief, there was no evidence before the Tribunal to substantiate the claimant’s complaints relating to this matter.

[269]The claimant says that there was an agreement to carry out one specialty COW rota with a maximum of 13 weekends and that he was given assurances that he would be removed from the acute medicine COW rota. Whilst we did not have a copy of the claimant’s Job Plan from 2012, we had before us a copy of an email dated 19 September 2012, in which the claimant referred to incorporating 1 in 4 of COWs for cardiology, and we noted that there was no reference therein to removing acute medicine COWs or reducing his other duties. This was not reflected in any of the communications we were taken to at the material time (within 2012, or indeed, 2013). We did not accept based on the evidence before us that there was an agreement to reduce the claimant’s acute medicine COW duties or to reduce his acute medicine duties otherwise at the relevant time (including during 2012 or 2013).

[270]We noted that the alleged comment from 2012 at paragraph 9 of the claimant’s witness statement was not specified within the Agreed List of Issues. We considered this comment in the context of the allegations within the Agreed List of Issues and we gave consideration to whether the comment was made. We also noted that the alleged comment is not mentioned in the ET1 nor in the claimant’s Further Particulars, and there was no satisfactory explanation provided for the omission of the same.

[271]The respondent’s representative put to the claimant in cross examination that the first time this allegation was made was in the claimant’s witness statement. The claimant indicated in his response that he is not legally qualified and that he was not aware of the requirements. We did not find the claimant’s explanation given in cross examination to be satisfactory, and - 55 - having considered the evidence before us, we did not accept that the allegation described at paragraph 9 of the claimant’s witness statement took place.

[272]The claimant maintained that he was discriminated against because of race and because of the fact that he obtained his medical degree in India. The respondent’s representative says that this alleged comment is the only specific allegation of race discrimination and that at the time it had allegedly been made it had been over 15 years since the claimant had completed his medical degree. We noted that the claimant did not reference race discrimination within any correspondences we were taken to from 2010 onwards and during the dates in which he raised his grievances despite there being numerous discussions between the claimant and the respondent between those dates.

[273]In addition, he did not mention or reference race discrimination or any other type of unlawful discrimination in any of the email correspondences between the claimant and the BMA to which we were referred, for example, the email correspondences within 2016. Furthermore, we do not accept that the claimant mentioned any allegation of race discrimination to the BMA during any conversations with the BMA at the relevant time.

[274]We noted that with reference to the claimant’s appeal, there was no reference to race discrimination in the claimant’s appeal statement. The claimant said in the cross examination that it was not appropriate to refer to this in the Job Plan appeal process. He said he had used the word discrimination previously (in his 25 January 2017 email referred to above). We did not accept that there was a satisfactory reason in terms of why he did not refer to his allegations of race discrimination in the appeal statement. We find that that the appeal statement was an opportunity for the claimant to raise the claimant’s allegations about race discrimination and to expand on what he meant by this further (and to specify his allegations).

[275]The Job Planning meeting took place on 13 September 2017. The claimant’s allegation was that the respondent should have removed acute medicine. The claimant now says that the respondent should have done more relating to this. The respondent’s representative points out that this complaint is not in the Agreed List of Issues. If it was in the Agreed List of Issues, then the respondent’s representative says that the respondent would have called further witness evidence including other witnesses to address the matter. Even if that was an allegation contained in the Agreed List of Issues, the evidence before us did not suggest that the respondent did not take sufficient steps in terms of investigating the position relating to the claimant’s acute medicine work requirements.

[276]We highlighted in our findings of fact above the details relating to Dr Mohamed, respiratory consultant, and we noted that there were very substantial differences between his position and the claimant’s position, albeit the claimant seemed to have no or insufficient regard to those differences. - 56 -

[277]By letter dated 14 December 2017 the claimant raised a grievance relating to his Job Plan and the outstanding PAs still due and not paid from 2012 until May 2017. He requested as a resolution back payment for excess PAs that he undertook and a balanced Job Plan with sessions that allowed his growth and had benefits for patients and allowed him to maintain his overall cardiology skills. We noted that there were a lot of opportunities to resolve the issues presented by the claimant. The respondent’s representative invited us to consider whether the claimant’s contention was plausible in terms that the respondent was an employer that had discriminated against him, given the respondent’s conduct and the detailed steps taken to address the complaints raised by the claimant.

[278]The claimant suggested in his grievance that he was offered a 100% cardiology job by the respondent back in 2012. However we noted that this is not consistent with the documents before us. The evidence before us showed that he was working 25% of his role in acute medicine which was the contractual arrangement from the outset of his employment.

[279]We found that the claimant worked from the date identified above in the role of a Consultant in Acute Medicine with a Specialty Interest. We took account of all the written evidence and the witness evidence before us in making this finding. We considered the claimant’s CV in which he described himself as Consultant Cardiology [75%] and Acute Medicine [25%] & on call in Gen Int Medicine (The claimant stated “In my role as a Consultant I started and the job plan included main Cardiology [75%], Acute Medicine [25%] and General (Internal) Medicine and I am predominantly based at Whipps Cross Hospital (Whipps Cross).” We noted that the claimant’s contract states that he was employed as a Consultant in Acute Medicine with Specialty Interest.

[280]The job advert relating to the claimant’s post had described the job title for the claimant’s role as Consultant in Acute Medicine with a Specialty Interest. This stated “Looking for innovative, enthusiastic physicians who see themselves as both acute physicians as well as specialists. Successful applicants will join an existing team of 6 WTE acute medicine/rheumatology consultants and a multidisciplinary service to provide general medicine services to the population of Waltham Forest, parts of Redbridge and West Essex. The post holder will spend 1 week a month working daytime hours on the emergency medicine unit with 0.75 time off the acute medical unit linking in with their specialty dept within the hospital. They will contribute to the 1 in 18 consultant oncall rota.” We considered that the claimant had applied for the post stated on the job advert and that is the post into which the claimant was successfully recruited to work within by the respondent.

[281]In relation to Dr Amersey’s email dated 10 August 2016 we considered that this was an example of Dr Amersey supporting the claimant and not undermining the claimant as was suggested in the claimant’s representative’s cross examination. We noted that in the said email Dr Amersey was reflecting in terms that he would like to keep the strong team together at Whipps Cross Hospital. - 57 -

[282]During her investigation interview on 06 October 2021 Emma Cheasty stated that Dr Velmurugan had never carried out any CT reporting sessions on a Wednesday afternoon. Before Dr Velmurugan’s maternity leave she had carried these out on a Monday. On her return, she resumed the normal sessions. She also stated: “He never reported and therefore it is incorrect that he was offering a service, he would only observe, we were providing a service to him. SV is a dedicated Doctor. She is conscientious and cares about the patients. She trains others on a Monday. “ “Regarding AT’s Sessions , he intermittently used to come to help maintain his BSCI accreditation, which you have to report 150 studies over a 3 year period to keep accredited. It was Bart’s providing AT with the opportunity to continue his education/ skills.”

[283]There was no evidence before us to support the claimant’s suggestion that Dr Velmurugan had any connection whatsoever with the change in the claimant’s cardiac CT sessions. In fact, the evidence we had before us, suggested that this was not the case.

[284]In relation to the allegation concerning 2018 Nuclear scan reporting, we noted that from May 2014 onwards that Dr Sin was employed as a Specialty Doctor in Cardiology. Part of his Job Description stated, “There is an expectation that the post holder will progress to reporting Nuclear Scans independently.” Dr Sin undertook independent nuclear scanning, which was required of him by the department, and it was recorded as DCC on his job plan. The Trust appeared to have identified that the nuclear scanning was to be undertaken at Specialty grade rather than at consultant level. We accepted Dr Davies’ evidence in this regard which was set out at paragraphs 20 to 22 of his witness statement, which we found to be credible and consistent.

[285]We noted that the claimant stated in his witness statement, “From 2015 to 2018 I undertook nuclear cardiology reporting at Whipps Cross and again this was unpaid. Again, I was unsupported in this, when I should have been supported. However, I undertook these to further my personal development and to keep opportunities open.” In contrast, the claimant did not have a Job Description referring to nuclear scanning, he was not required to perform these by the cardiology department, it never formed part of a DCC commitment on his Job Plan, and he was already undertaking excessive PAs.

[286]In relation to registrar support and the claimant’s allegations relating to this matter, Dr Amersey and other members of the team had mentioned that they often worked weeks without registrars. We saw no evidence of systemic and deliberate (or otherwise) scheduling of junior doctors and registrars to disadvantage the claimant. We were taken to a schedule where Dr Selda Ahmet was scheduled within echo sessions and the claimant - 58 - complained that the fact she did echo sessions meant that he had no support during that particular week.

[287]In relation to lack of secretarial support, the claimant’s representative referred the respondent’s witnesses to several pages of email correspondences and rotas relating to this issue. We considered the claimant’s concerns as set out in his evidence. We found that the evidence showed that there were significant issues with registrars and secretarial issues across the board. On the whole it was difficult to recruit and keep secretaries and the respondent had to rely on temporary cover. The claimant perceived that he had less secretaries available to support him. There was little evidence that the claimant was placed at a particular disadvantage when compared with other staff members (although there were additional challenges as certain administrative staff could not be placed with the claimant because some of the secretaries had found the claimant difficult to work with - as explained in Esther Rainbow’s witness evidence which we accepted).

[288]We noted that following the MHPS process, there were no findings made against the claimant within the conclusions in the report. We noted that the conclusions did not say or suggest that Dr Ahmet had lied or fabricated any allegations or evidence. The investigation was limited as the investigation looked at the people that the claimant wished to be interviewed, and Dr Ahmet was not asked to provide any further names of potential witnesses. We considered whether she fabricated any allegations at the urging of Dr Amersey and Dr Velmurugan as alleged by the claimant. Neither Dr Amersey nor Dr Velmurugan had suggested a desire at the time for the claimant to be dismissed or to be subjected to disciplinary action. We noted that Dr Ahmet had left her role with the respondent and there was no evidence that she had anything to gain by conjuring up allegations against the claimant (there was nothing to show that Dr Ahmet received the promise of any favours in return for making allegations). We considered the motivation of Dr Ahmet which was the fact that she wanted to lodge a complaint as she was leaving in order to protect other people (which we accepted was her genuine motivation). Moreover, we considered that the respondent could not ascertain whether the allegations made were well founded, without investigating them. The claimant’s expectation or suggestion that the allegations should not have been investigated was not appropriate in the circumstances.

[289]In terms of the COVID-19 rota, the claimant claimed that cardiologists had no work to do during his evidence and that certain cardiologists had CCTs and should have been put forward. In fact, there was no evidence before the Tribunal to support the claimant’s contention that cardiologist consultants had no work to do. We accepted the consistent evidence of the respondent’s witnesses that cardiologists were employed as cardiologist consultants only and that they did not have recent experience in acute medicine (which the claimant had). Moreover, we accepted the respondent’s witness evidence in terms that many of them assisted in other aspects during the COVID-19 pandemic. - 59 -

[290]The claimant says in his evidence “Finally in March and April 2022 Dr RA spoke with the witnesses who gave evidence relating to my grievance and asked them inappropriate questions about their interviews. Five of those witnesses felt intimated by him.” We find Dr Amersey’s explanation in terms that he bumped into other individuals in the process, and he had a discussion with them to be credible. Whilst Dr Amersey may have talked about the grievance investigation, we find that any conversations took place in the way that Dr Amersey said they did in his witness evidence. Even on the claimant’s case the alleged conversations happened after the claimant’s grievance and grievance appeal, and it could have had no possible effect on the grievance investigation. We note that the claimant does not detail what any alleged inappropriate questions were or who they were asked to.

[291]Dr Amersey’s evidence was more reliable, credible and consistent on the whole. The Tribunal found that there was no apparent purpose for Dr Amersey to intimidate witnesses particularly in the content of a concluded investigation process. We note that the claimant’s witness statement does not state that this matter has taken place because of the claimant’s race, and it is very vague.

[292]In terms of the allegations in the claimant’s Further and Better Particulars from October 2018 and August 2021, the claimant does not describe what had allegedly happened in 2018 with the same or similar level of detail in the Agreed List of Issues or in his Witness Statement. Furthermore, this is not contextualized. We noted that the August 2021 allegation did not feature in the Agreed List of Issues at all. In the Agreed List of Issues and the claimant’s witness evidence the comment allegedly made by Dr Amersey in October 2018 was that he told the claimant to “fuck off”. This allegedly occurred whilst the claimant’s Job Plan grievance was outstanding and yet the claimant did not complain about this contemporaneously. The first time this comment appears is within the List of Issues contained in Employment Judge Feeny’s Case Management Orders. Dr Amersey is clear in his evidence that he had never said this. Ms Cooper-James stated in her findings that: “Of the sixteen witnesses questioned (some at the request of Anil Taneja), no one stated that they had witnessed either Rajiv Amersey and Shanti Velmurugan use in appropriate language. On the basis of this the Investigator has found no evidence to support this allegation.”

[293]Therefore we noted the alleged improper conduct in the claimant’s Further Particulars in relation to Dr Amersey which the claimant says took place in August 2021 (although the Further Particulars indicates this could have been in or around August 2021 and October 2018), but we did not accept that that allegation is made out on the evidence before us.

The Law

[294]To those facts, the Tribunal applied the law: Direct race discrimination - 60 -

[295]The claimant makes claims alleging discrimination on the grounds of a protected characteristic under the provisions of the Equality Act 2010 (“EqA”). The claimant complains that the respondent has contravened provisions of part 5 (work) of the EqA. The claimant alleges direct discrimination.

[296]The protected characteristic relied upon is race as set out at section 9 of the EqA.

[297]By section 13 of the EqA a person discriminates against another if because of a protected characteristic, in this case race, he or she treats the employee less favourably than he or she would treat others.

[298]The concept of treatment being less favourable inherently suggests some form of comparison and in such cases section 23(1) applies: “On a comparison of cases for the purposes of section 13, 14, 19 or 19A there must be no material difference between the circumstances relating to each case.”

[299]The effect of section 23 of the EqA as a whole is to ensure that any comparison made must be between situations which are genuinely comparable. The case law, however, makes it clear that it is not necessary for a claimant to have an actual comparator to succeed. The comparison can be with a hypothetical person.

[300]The basic question in a direct discrimination case is: what are the grounds or reasons for treatment complained of? In Amnesty International v Ahmed

[2009] IRLR 884

the EAT recognised two different approaches from two House of Lords authorities -(i) in James v Eastleigh Borough Council

[1990] IRLR 288

and

(ii) in Nagarajan v London Regional Transport

[1999] IRLR 572

. In some cases, such as James, the grounds or reason for the treatment complained of is inherent in the act itself. In other cases, such as Nagarajan, the act complained of is not inherently discriminatory but is rendered so by discriminatory motivation, being the mental processes (whether conscious or unconscious) which led the alleged discriminator to act in the way that he or she did. The intention is irrelevant once unlawful discrimination is made out. That approach was endorsed in R (on the application of E) v Governing Body of the Jewish Free School and another

[2009] UKSC 15

[301]It is unusual to have direct evidence as to the reason for the treatment (discrimination may not be intentional and may be the product of unconscious bias or discriminatory assumptions) (Nagarajan). The Tribunal should draw appropriate inferences as to the reason for the treatment from the primary facts with the assistance, where necessary, of the burden of proof provisions, as explained in the Court of Appeal case of Anya v University of Oxford

[2001] IRLR 377

. “Most cases turn on the accumulation of multiple findings of primary fact, from which the court or Tribunal is invited to draw an inference of a discriminatory explanation of those facts” (Madarassy v Nomura International Plc

[2007] IRLR 246

). - 61 -

[302]In Glasgow City Council v Zafar

[1998] IRLR 36

, a (then) House of Lords case, it was held that it is not enough for the claimant to point to unreasonable behaviour. He must show less favourable treatment, one of whose effective causes was the protected characteristic relied on.

[303]Thus the reason for the treatment need not be the main or sole reason but must have at least a significant (or more than trivial) influence on the treatment to amount to an effective cause of it. In “reason why” cases the matter is dispositive upon determination of the alleged discriminator’s state of mind. In “criterion cases” there is no need to consider the alleged discriminator’s state of mind when the treatment complained of is caused by the application of a criterion which is inherently or indissociably discriminatory (R (E) v Governing Body of Jewish Free School

[2010] 2 AC 728

, SC).

[304]In Shamoon v Chief Constable of the RUC

[2003] IRLR 285

, a (then) House of Lords authority, Lord Nichols said that a Tribunal may sometimes be able to avoid arid and confusing debate about the identification of the appropriate comparator by concentrating primarily on why the complainant was treated as he or she was and leave the less favourable treatment issue until after they have decided what treatment was afforded. Was it on the prescribed ground or was it for some other reason? If the former, there would usually be no difficulty in deciding whether the treatment afforded the claimant on the prescribed ground was less favourable than afforded to another.

[305]Direct discrimination may be intentional or it may be subconscious (based upon stereotypical assumptions). The Tribunal must consider the conscious or subconscious mental processes which caused the employer to act. This is not necessarily a question of motive or purpose and is not restricted to considering ‘but for’ the protected characteristic would the treatment have occurred (see Shamoon).

[306]The EHRC: Code of Practice on Employment (2011) states, at paragraph 3.5 that “The worker does not have to experience actual disadvantage (economic or otherwise) for the treatment to be less favourable. It is enough that the worker can reasonably say that they would have preferred not to have been treated differently from the way the employer treated – or would have treated – another person.”

[307]For direct discrimination to occur, “The characteristic needs to be a cause of the less favourable treatment, but does not need to be the only or even the main cause” (paragraph 3.11, EHRC: Code of Practice on Employment (2011)). The protected characteristic does however require having a “significant influence on the outcome” (Nagarajan). Indirect race discrimination

[308]Section 19 of the EqA states: - 62 - “1)A person(a) (A) discriminates against another

(b) (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's. (2)For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if— (a)A applies, or would apply, it to persons with whom B does not share the characteristic, (b)it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c)it puts, or would put, B at that disadvantage, and (d)A cannot show it to be a proportionate means of achieving a legitimate aim.”

[309]The list of relevant protected characteristics per section 19(3) of the EqA include race.

[310]As indicated above, s23 of the EqA states: “On a comparison of cases for the purposes of section…19 there must be no material difference between the circumstances relating to each case.”

[311]Lady Hale in the Supreme Court gave the following guidance in R (On the application of E) v Governing Body of Jewish Free School

[2010] IRLR 136

: “Indirect discrimination looks beyond formal equality towards a more substantive equality of results: criteria which appear neutral on their face may have a disproportionately adverse impact upon people of a particular colour, race, nationality or ethnic or national origins.”

[312]In the more recent case of Essop v Home Office; Naeem v Secretary of State for Justice

[2017] IRLR 558

SC, at [25] Lady Hale stated: “‘Indirect discrimination assumes equality of treatment – the PCP is applied indiscriminately to all – but aims to achieve a level playing field, where people sharing a particular protected characteristic are not subjected to requirements which many of them cannot meet but which cannot be shown to be justified. The prohibition of indirect discrimination thus aims to achieve equality of results in the absence of such justification. It is dealing with hidden barriers which are not easy to anticipate or to spot.”

[313]The Equality and Human Rights Commission Code of Practice on Employment (the EHRC Code) at paragraph 4. 5 states as follows: “The first stage in establishing indirect discrimination is to identify the relevant provision, criterion or practice. The phrase 'provision, criterion or practice' is not defined by the Act but it should be construed widely so as to include, for example, any formal or informal policies, rules, practices, - 63 - arrangements, criteria, conditions, prerequisites, qualifications or provisions. A provision, criterion or practice may also include decisions to do something in the future - such as a policy or criterion that has not yet been applied - as well as a 'one off' or discretionary decision.”

[314]The PCP must have been applied or would have been applied to the worker and others. Indirect discrimination may therefore arise where a PCP has not yet been applied.

[315]It is for the claimant to identify the PCP relied upon in making the complaint. The words “provision, criterion or practice” are cumulative and do not require an absolute bar (British Airways plc v Starmer

[2005] IRLR 862

, EAT) but do not include every act that results in inequality (Ishola v Transport for London

[2020] EWCA Civ 112

[316]A one-off decision may amount to a practice if that decision would be applied in similar situations in the future (Ishola).

[317]Group disadvantage arises where the application of the PCP did or would put persons who share the claimant’s protected characteristic to a particular disadvantage in comparison with persons who do not share it. The disadvantage does not require to be serious, obvious or significant and includes any type of disadvantage.

[318]Paragraph 4.17 and 4.18 of the EHRC Code state: “4.17 The people used in the comparative exercise are usually referred to as the ‘pool for comparison’. 4.18 In general, the pool should consist of the group which the provision, criterion or practice affects (or would affect) either positively or negatively, while excluding workers who are not affected by it, either positively or negatively. In most situations, there is likely to be only one appropriate pool, but there may be circumstances where there is more than one. If this is the case, the Employment Tribunal will decide which of the pools to consider.”

[319]The comparison is with persons whose relevant circumstances are the same, or not materially different from the claimant, apart from the protected characteristic (Section 23(1) EA 2010). However the pool must not be artificially restricted by reference to the characteristic itself (because “such an approach would drive a coach and horses through the indirect discrimination provisions”) (Spicer v Government of Spain

[2004] EWCA Civ 1046

, Court of Appeal). The pool must suitably test the discrimination complained of and “the pool should not be so drawn as to incorporate the disputed condition” (Naeem v Secretary of State for Justice

[2017] UKSC 27

). Once the PCP has been identified “there is likely to be only one pool which serves to test its effect” as a matter of logic (Allonby v Accrington and Rossendale College and others

[2001] ICR 1189

). - 64 -

[320]All the workers to whom the PCP is applied should be included within the pool. In general the pool for comparison should consist of the group which the PCP affects (or would affect) either positively or negatively, while excluding workers who are not affected by it, either positively or negatively (4.18 EHRC Code) (Essop). The pool is all persons who would satisfy the relevant criteria apart from the PCP in question (University of Manchester v Jones

1993 ICR 474

, CA). The pool may be external where the PCP affects potential applicants for work, or it may be internal where the PCP only affects a section of an existing workforce, provided it is properly representative.

[321]The EHRC Code states “Looking at the pool, a comparison must be made between the impact of the provision, criterion or practice on people without the relevant protected characteristic, and its impact on people with the protected characteristic” (paragraph 4.19 EHRC Code).

[322]“Particular disadvantage” essentially means something more than minor or trivial. That was determined in R. (on the application of Taylor) v Secretary of State for Justice

[2015] EWHC 3245 (Admin)

where the following comments were made: “‘The term ‘substantial’ is defined in section 212(1) to mean ‘more than minor or trivial’. I do not perceive any significant difference between the phrase ‘substantial disadvantage’ and the phrase ‘particular disadvantage’ used in section 19 of the Act.”

[323]Particular disadvantage may be established by quantitative and/or qualitative means e.g. by statistical evidence, personal testimony or expert evidence (Homer v Chief Constable of West Yorkshire Police

[2012] UKSC 15

). However, “Sometimes, a provision, criterion or practice is intrinsically liable to disadvantage a group with a particular protected characteristic” (paragraph 4.10 EHRC Code).

[324]The application of the PCP must put the claimant to the same disadvantage as the group. There must be a causal link between the PCP and the disadvantage suffered by the individual (Essop)

[325]In terms of the recent decision of the (then) President of the EAT, Mrs Justice Eady DBE, in British Airways v Rollett

[2024] EAT 131

the headnote states “The Employment Tribunal made no error of law in concluding that it had jurisdiction to consider indirect discrimination claims under section 19 EqA where there is a PCP applied by an employer that puts people with a particular protected characteristic at a disadvantage, where the claimant in such a case must also suffer that disadvantage, but where that claimant need not have the same protected characteristic as the disadvantaged group”.

[326]A particular disadvantage may be objectively justified it is a proportionate means of achieving a legitimate aim. - 65 -

[327]The onus is upon the respondent to establish justification. The test is objective and is therefore not limited to what the respondent considered at the time of its application. Although judged at the time of application the justification does not have to have been consciously and contemporaneously considered by the respondent. Justification may be established by reasoned and rational judgement (Chief Constable of West Yorkshire Police and anor v Homer

2009 ICR 223

, EAT).

[328]The EHRC Code states, “The aim of the provision, criterion or practice should be legal, should not be discriminatory in itself, and must represent a real, objective consideration. The health, welfare and safety of individuals may qualify as legitimate aims provided that risks are clearly specified and supported by evidence.” (paragraph 4.28 EHRC Code). In addition the EHRC Code states “Although reasonable business needs and economic efficiency may be legitimate aims, an employer solely aiming to reduce costs cannot expect to satisfy the test. For example, the employer cannot simply argue that to discriminate is cheaper than avoiding discrimination.” (paragraph 4.29 EHRC Code).

[329]In deciding whether the means adopted to achieve the legitimate aim are proportionate the Tribunal must apply an objective test based upon a fair and detailed analysis of the working practices, business considerations and needs of the employer and the discriminatory effect of the means adopted (Hardy and Hansons plc v Lax

2005 ICR 1565

, Court of Appeal).

[330]The Tribunal must conduct a balancing exercise between the discriminatory effects of PCP against the employer’s legitimate aim taking into account all relevant facts (paragraph 4.30 EHRC Code). An objective balance must be struck between the discriminatory effect and reasonable need (Hampson v Department of Education and Science

1989 ICR 179

, Court of Appeal) The PCP must be justified having regard to the quantitative and qualitative effective on the disadvantaged group (including the claimant) rather than just the individual claimant (University of Manchester v Jones

1993 ICR 474

, Court of Appeal).

[331]As the EHRC Code explains, EU law views treatment as proportionate if it is an appropriate and necessary means of achieving a legitimate aim (paragraph 4.31 EHRC Code). “Necessary” means reasonably necessary – the employer does not have to demonstrate that no other means are possible (Chief Constable of West Yorkshire Police v Homer

[2012] UKSC 15

[2012] IRLR 590

) but there must not be a less discriminatory measure which would have achieved the legitimate aim. An exception may be made to accommodate a protected group but not if doing so would undermine the aim (Blackburn and anor v Chief Constable of West Midlands Police

2009 IRLR 135

, Court of Appeal).

[332]Cost can only be taken into account as part of the employer’s justification if there are other good reasons for adopting the PCP (paragraph 4.32 EHRC Code). It is an objective test. Unlike the test for unfairness of dismissal, there is no range of reasonable responses (Hardy). The Tribunal must make its - 66 - own fair and detailed analysis of the working practices and business considerations in order to determine whether the PCP was reasonably necessary. As such a discriminatory dismissal may nevertheless be fair and a non-discriminatory dismissal may nevertheless be unfair.

[333]Thus, the burden of proof is on the claimant to prove the PCP, group and individual disadvantage. If established, the burden of proof is on the respondent to prove objective justification.

[334]Harassment is defined in s26 of the EqA:- “(1)A person(a) (A) harasses another

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

(c) whether it is reasonable for the conduct to have that effect. (5) The relevant protected characteristics are— ….. Race”

[335]There are accordingly three essential elements of a harassment claim under section 26(1) of the EqA, namely(i) unwanted conduct,

(ii) that has the proscribed purpose or effect and

(iii) which relates to a relevant protected characteristic.

[336]In Hartley v Foreign and Commonwealth Office

UKEAT/0033/15

(27 May 2016, unreported) it was held that the question whether there is harassment must be considered in the light of all the circumstances of the case. Where the claim is based on things said it is not enough only to look at what the speaker may or may not have meant by the wording.

[337]However, even where certain elements of the test for harassment are met (for example, unwanted conduct and the violation of the claimant’s dignity), the Tribunal must still consider the “related to” question and make clear findings as to why any conduct is related to a protected characteristic - 67 - (UNITE the Union v Nailard

[2018] IRLR 730

; Tees, Esk and Wear Valleys NHS Foundation Trust v Aslam

[2020] IRLR 495

, EAT).

[338]At paragraph 22 of Richmond Pharmacology Ltd v. Dhaliwal

[2009] IRLR 336

, the EAT stated: “We accept that not every racially slanted adverse comment or conduct may constitute the violation of a person's dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.”

[339]The EHRC Code states at paragraphs 7.7 and 7.8 “7.7 Unwanted conduct covers a wide range of behaviour, including spoken or written words or abuse, imagery, graffiti, physical gestures, facial expressions, mimicry, jokes, pranks, acts affecting a person’s surroundings or other physical behaviour. 7.8 The word ‘unwanted’ means essentially the same as 'unwelcome' or 'uninvited'. ‘Unwanted’ does not mean that express objection must be made to the conduct before it is deemed to be unwanted. A serious one- off incident can also amount to harassment.”

[340]In Pemberton v. Inwood

[2018] EWCA Civ 564

, Underhill LJ gave the following guidance in relation to section 26: “In order to decide whether any conduct falling within sub-paragraph (1)(a) of section 26 EqA has either of the proscribed effects under sub-paragraph (1)(b), a tribunal must consider both (by reason of sub-section 4(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of sub-section 4(c)) whether it was 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)).'' Victimisation

[341]Victimisation in this context has a specific legal meaning defined by section 27: “27 Victimisation (1)A person(a) (A) victimises another person

(b) (B) if A subjects B to a detriment because— (a)B does a protected act, or (b)A believes that B has done, or may do, a protected act. (2)Each of the following is a protected act— - 68 - (a)bringing proceedings under this Act; (b)giving evidence or information in connection with proceedings under this Act; (c)doing any other thing for the purposes of or in connection with this Act; (d)making an allegation (whether or not express) that A or another person has contravened this Act. (3)Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith. (4)This section applies only where the person subjected to a detriment is an individual. (5)The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.”

[342]We considered the terms of section 27(2)(d) of the EqA, namely the making of an allegation (whether or not express) that A or someone else has contravened the EqA. In Waters v Commissioner of Police of the Metropolis

[1997] ICR 1073

a female police officer accused a male colleague of sexually assaulting her. Following this accusation, she was subjected to various forms of harassment and other unfair treatment at work. The Court of Appeal held that, on the officer’s own version of events, her colleague had not committed the assault “in the course of his employment” and so the Commissioner of Police could not be held liable. It followed that she was not entitled to rely on her allegation of assault for the purpose of a victimisation claim as she had not alleged that her employer had committed an act which would amount to a contravention of the Act. Waite LJ said: “All that is required is that the allegation relied on should have asserted facts capable of amounting in law to an act of discrimination by an employer within the terms of section 6(2)(b). The facts alleged by the complaint in this case were incapable in law of amounting to an act of discrimination by the Commissioner because they were not done by him, and they cannot (because the alleged perpetrator was not acting in the course of his employment) be treated as done by him for the purposes of section 41 of the Act.”

[343]Something amounts to a detriment if the treatment is of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his or her detriment – see paragraphs 31-37 of the speech of Lord Hope in Shamoon v Chief Constable of the RUC

[2013] ICR 337

. It is an objective test focussed on the perception of the reasonable worker in all the circumstances of the case. Detriment is, accordingly, treatment which a reasonable worker would or might regard as being to their disadvantage. It is not necessary for the claimant to demonstrate some physical or economic consequence. - 69 -

[344]The (then) House of Lords confirmed the position in Derbyshire v St Helens Metropolitan Borough Council

[2007] ICR 841

. Lord Neuberger opined that the test is not satisfied merely by the claimant showing that he or she has suffered mental distress: it would have to be objectively reasonable in all the circumstances. In assessing whether there is a detriment therefore consideration needs to be given to both subjective and objective elements, looking at matters from the claimant’s point of view but his or her perception must be ‘reasonable’ in the circumstances.

[345]This provision does not require any form of comparison. If it is shown that a protected act has taken place and the claimant has been subjected to a detriment, it is essentially a question of the “reason why”. In other words, the protected act must be an effective and substantial cause of the treatment, it does not need to be the principal cause. The Tribunal is concerned with establishing what the real reason (conscious or subconscious motivation) or reasons for the treatment is. There can be more than one reason and the context is important and should be fully considered.

[346]In determining whether a detriment was because of a protected act, it is important that the protected act is identified with precision and that the relationship between the detriment and that act specifically is examined. In JJ Food Service Ltd v Mohamud EAT 0310/15 the claimant went to work in jeans in breach of his employer’s dress code. When challenged about this he alleged that the dress code was discriminatory as it was applied differently in relation to women. He was dismissed, ostensibly for breaching the dress code and disobeying management instructions, but he brought proceedings alleging that he had been victimised. A Tribunal upheld his claim on the basis that the fact that he had questioned the application of the dress code policy was a significant contributory factor in the decision to dismiss him. However, the Employment Appeal Tribunal allowed the employer’s appeal on the basis that the Tribunal should have asked itself whether the allegations of sex discrimination amounted to such a factor. While in some cases the Tribunal’s language might have been acceptable shorthand, in this case it was significant that the Tribunal did not ask itself the right question because there were other grounds on which the claimant was challenging the application of the dress code. In addition, this was a case where it might have been open to the Tribunal to conclude that it was, for example, the manner or persistence of his complaints rather than the content of them which had led to his dismissal.

[347]The Tribunal has to consider not just whether or not the protected acts themselves were the reason but whether or not there are any other factors relating to the protected acts which were in the respondent’s mind when taking decisions. For example, employees may lose the protection of the anti-victimisation provisions because the detriment is inflicted not because they have carried out a protected act but because of the manner in which they have carried it out. - 70 -

[348]An approach that distinguishes between a protected act and the manner of doing that act was endorsed by Mr Justice Underhill, in Martin v Devonshires Solicitors

[2011] ICR 352

. In his view, there were cases where the reason for the dismissal (or any other detriment) was not the protected act as such but some feature of it which could properly be treated as separable — such as the manner in which the protected act was carried out. Burden of proof

[349]The burden of proof provisions in relation to discrimination claims are found in Section 136 of the EqA. Section 136(2) of the EqA provides that “(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.”

[350]However, Section 136(3) of the EqA goes on to provide that: “But subsection (2) does not apply if A shows that A did not contravene the provision.

[351]Finally, in terms of Section 136(6), a reference to “the court” includes a reference to an Employment Tribunal.

[352]The burden of proof is considered in two stages. Giving the judgment of the Court of Appeal in Igen Limited v Wong

[2005] ICR 931

(CA), Peter Gibson LJ said in paragraph 17: “The statutory amendments clearly require the employment tribunal to go through a two-stage process if the complaint of the complainant is to be upheld. The first stage requires the complainant to prove facts from which the tribunal could, apart from the section, conclude in the absence of an adequate explanation that the respondent has committed, or is to be treated as having committed, the unlawful act of discrimination against the complainant. The second stage, which only comes into effect if the complainant has proved those facts, requires the respondent to prove that he did not commit or is not to be treated as having committed the unlawful act, if the complaint is not to be upheld.”

[353]The Court of Appeal, in Igen Limited v Wong, set out the position with regard to the drawing of inferences in discrimination cases.

[354]It is unusual to have direct evidence as to the reason for the treatment (discrimination may not be intentional and may be the product of unconscious bias or discriminatory assumptions) (Nagarajan v London Regional Transport

[1999] 4 All ER 65

). Evidence of the reason for the treatment will ordinarily be by reasonable inference from primary facts. At Stage 1 proof is of a prima facie case and requires relevant facts from which the Tribunal could infer the reason. Relevant facts in appropriate cases may include evasive or equivocal replies to questions or requests for information; failure to comply with a relevant code of practice; the context in which the treatment has occurred including statistical data; the reason for the treatment (See Madarassy v Nomura International Plc

[2007] ICR 867

(CA)). “In so far as this [information] was in the hands of the employer, the claimant could have identified the information required and requested that - 71 - it be provided voluntarily or, if that was refused, by obtaining an order from the Tribunal” (Efobi v Royal Mail Group

[2019] EWCA Civ 19

[355]Assessment of Stage 1 is based upon all the evidence adduced by both the claimant and the respondent but excluding the absence of an adequate (i.e. non-discriminatory) explanation for the treatment (which is relevant only to Stage 2) (See Madarassy). All relevant facts should be considered but not the respondent’s explanation, or the absence of any such explanation (Laing v Manchester City Council

[2006] ICR 1519

, EAT and Efobi). The respondent’s explanation for its conduct provides the reason why he has done what could be considered a discriminatory act. “Most cases turn on the accumulation of multiple findings of primary fact, from which the court or tribunal is invited to draw an inference of a discriminatory explanation of those facts” (See Madarassy). “In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts” (See Igen v Wong

[2005] ICR 935

[356]The employer must seek to rebut the inference of discrimination by explaining why he has acted as he has (See Laing). The treatment must be “in no sense whatsoever” because of the protected characteristic (Barton v Investec [2003] IRC 1205 EAT). The explanation must be sufficiently adequate and cogent to discharge the burden and this will depend on the strength of the Stage 1 prima facie case (Network Rail Infrastructure Limited v Griffiths Henry

[2006] IRLR 865

). The Tribunal may elect to bypass Stage 1 and proceed straight to Stage 2, if they are satisfied that the reason for the less favourable treatment is fully adequate and cogent (See Laing).

[357]In Madarassy, the Court of Appeal found that the words “could conclude” must mean “a reasonable Tribunal could properly conclude” from all the evidence before it, meaning that the claimant had to “set up a prima facie case”. That done, the burden of proof shifted to the respondent (employer) who had to show that they did not commit (or is not to be treated as having committed) the unlawful act. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal could conclude that, on balance of probabilities, the respondent had committed an unlawful act of discrimination.

[358]The Supreme Court, in Hewage v Grampian Health Board

[2012] ICR 1054

(SC), held that Tribunals should be careful not to approach the Igen guidelines in too mechanistic a fashion, and the Court of Appeal has confirmed that approach under the EqA in its Judgment in Ayodele v Citylink

[2018] IRLR 114

(CA). The Supreme Court stated at paragraph 32 of their decision: “The points made by the Court of Appeal about the effect of the statute in these two cases could not be more clearly expressed, and I see no need for any further guidance. Furthermore, as Underhill J pointed out in Martin v Devonshires Solicitors

[2011] ICR 352

, para 39, it is important not to make too much of the role of the burden of proof provisions. They will require careful attention where there is room for doubt as to the facts - 72 - necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other.” Time limits

[359]Section 123 of the EqA deals with time limits. Section 123(1) provides that proceedings on a complaint under Section 120 may not be brought after the end of(a) the period of 3 months starting with the date of the act to which the complaint relates, or

(b) such other period as the Employment Tribunal thinks just and equitable.

[360]Section 123(3) provides that(a) conduct extending over a period is to be treated as done at the end of the period, and

(b) failure to do something is to be treated as occurring when the person in question decided on it.

[361]The time limit in Section 123 is, however, subject to Section 140B, which provides for an extension of the time limit to facilitate conciliation before institution of Tribunal proceedings.

[362]Day A is the day on which the worker concerned complies with the requirement of Section 18A of the Employment Tribunals Act 1996 to contact ACAS in relation to the matter in respect of which the proceedings are brought, and Day B is the day on which the worker receives or is treated as receiving the ACAS certificate issued under Section 18A.

[363]In working out when the time limit expires, the period beginning with the day after Day A and ending with Day B is not to be counted. If the time limit set would, if not extended, expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period.

[364]As to conduct which 'extends over a period' the Court of Appeal in Hendricks v Metropolitan Police Commissioner

[2003] IRLR 96

, sets out that the burden is on the claimant to prove, either by direct evidence or inference, that the numerous alleged incidents of discrimination were linked to one another and were evidence of a continuing discriminatory state of affairs covered by the concept of 'an act extending over a period'.

[365]In South Western Ambulance Service NHS Foundation Trust (appellant) v King (respondent) -

[2020] IRLR 168

Choudhury the (then) President of the EAT stated in the context of a continuing act at [36-38] “It will be necessary, in my judgment, for at least the last of the constituent acts relied upon to be in time and proven to be an act of discrimination in order for time to be enlarged.”

[366]Whether there is conduct extending over a period was considered to include where an employer maintains and keeps in force a discriminatory regime, rule, practice, or principle which has had a clear and adverse effect on the complainant - Barclays Bank plc v Kapur

[1989] IRLR 387

. The Court of Appeal has cautioned Tribunals against applying the concepts of 'policy, - 73 - rule, practice, scheme or regime' too literally, particularly in the context of an alleged continuing act consisting of numerous incidents occurring over a lengthy period (Hendricks v Metropolitan Police Commissioner,

[2003] IRLR 96

[367]Where a claim is submitted out of time, the burden of proof in showing that it is just and equitable in terms of section 123(1)(b) of the EqA is on the claimant (Robertson v Bexley Community Centre

[2003] IRLR 434

[368]The EAT stated in Dr Nicholas Jones v The Secretary of State For Health and Social Care

[2024] EAT 2

that: “It remains a common practice for those who assert that the primary time limit should not be extended to rely on the comments of Auld LJ at paragraph 25 of Bexley Community Centre (t/a Leisure Link) v Robertson

[2003] EWCA Civ 576

[2003] IRLR 434

, that time limits in the Employment Tribunal are “exercised strictly” in employment cases and that a decision to extend time is the “exception rather than the rule” as if they were principles of law. Where these comments are referred to out of context, this practice should cease. Paragraph 25 must be seen in the context of paragraphs 23 and 24”. The EAT stated that the propositions of law for which Robertson is authority are that the Employment Tribunal has a wide discretion to extend time on just and equitable grounds and that appellate courts should be slow to interfere.

[369]Exceptional circumstances are not required for the Tribunal to exercise its discretion and the test remains what the Tribunal considers to be just and equitable (Pathan v South London Islamic Centre

UKEAT/0312/13

[370]Even if the Tribunal disbelieves the reason put forward by the claimant it should still go on to consider any other potentially relevant factors such as the balance of convenience and the chance of success: Rathakrishnan v Pizza Express (Restaurants) Ltd

[2016] IRLR 278

, following Pathan v South London Islamic Centre

UKEAT/0312/13

and Szmidt v AC Produce Imports Ltd

UKEAT/0291/14

. We also considered the EAT’s decision in Habinteg Housing Association Ltd v Holleran

UKEAT/0274/14

holding that where there was no explanation for the delay tendered that was fatal to the application of the extension, which was followed. In Edomobi v La Retraite RC Girls School

UKEAT/0180/16

in which the Judge added that she did not “understand the supposed distinction in principle between a case in which the claimant does not explain the delay and a case where he or she does so but is disbelieved. In neither case, in my judgment, is there material on which the Tribunal can exercise its discretion to extend time. If there is no explanation for the delay, it is hard to see how the supposedly strong merits of a claim can rescue a claimant from the consequences of any delay.”

[371]Per Langstaff J in Abertawe Bro Morgannwg University Local Health Board v Morgan

UKEAT/0305/13

(18 February 2014, unreported), a litigant can hardly hope to satisfy that burden unless he or she provides an answer to two questions (paragraph 52): ''The first question in deciding whether to extend time is why it is that the primary time limit has not been met; and - 74 - insofar as it is distinct the second is [the] reason why after the expiry of the primary time limit the claim was not brought sooner than it was.''

[372]In Wells Cathedral School Ltd (2) Mr M Stringer v(1) Mr M Souter

(2) Ms K Leishman: EA-2020-000801 the EAT did not directly address those authorities but stated that, in relation to the issue of delay, “it is not always essential that the tribunal be satisfied that there is a particular reason that it would regard as a good reason”.

[373]In Rathakrishnan there was a review of authority on the issue of the just and equitable extension, as it is often called, including the Court of Appeal case of London Borough of Southwark v Afolabi

[2003] IRLR 220

, in which it was held that a Tribunal is not required to go through the matters listed in s.33(3) of the Limitation Act, in the context of a personal injury claim, provided that no significant factor is omitted. There was also reference to Dale v British Coal Corporation

[1992] 1 WLR 964

, a personal injury claim, where it was held to be appropriate to consider the plaintiff's (claimant's) prospect of success in the action and evidence necessary to establish or defend the claim in considering the balance of hardship. The EAT concluded “What has emerged from the cases thus far reviewed, it seems to me, is that the exercise of this wide discretion (see Hutchison v Westward Television Ltd

[1977] IRLR 69

) involves a multi-factoral approach. No single factor is determinative.”

[374]That said, the Tribunal noted that the Limitation Act checklist as modified in the case of British Coal Corporation v Keeble includes as possible relevant factors: i) the relative prejudice to each of the parties; ii) all of the circumstances of the case which includes: iii) The length and reason for delay; iv) The extent that cogency of evidence is likely to be affected; v) The cooperation of the respondent in the provision of information requested, if relevant; vi) The promptness with which the claimant had acted once he or she knew of facts giving rise to the cause of action, and vii) Steps taken by the claimant to obtain advice once he or she knew of the possibility of taking action.

[375]In Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] ICR 1194

the Court of Appeal held: “First, it is plain from the language used ("such other period as the employment tribunal thinks just and equitable") that Parliament has chosen to give the employment tribunal the widest possible discretion.”

[376]That was emphasised more recently in Adedeji v University Hospitals Birmingham NHS Foundation

[2021] EWCA Civ 23

, which discouraged use of what has become known as the Keeble factors, in relation to the Limitation Act referred to, as a form of template for the exercise of discretion. Submissions

[377]Both parties’ representatives provided written submissions. In addition, we heard oral submissions from both parties’ representatives. The Tribunal - 75 - found parties’ representative’s submissions to be informative. They are referred to where relevant.

[378]We also referred to the authorities cited in parties’ submissions, which the Tribunal took into account prior to making their decision. Whilst the Tribunal has not referred to all those authorities within this Judgment, we have fully taken them into account and the Tribunal noted that there were no material disputes between parties’ representatives in terms of the relevant law. Discussion and decision

[379]On the findings of fact made, and having applied the relevant law to those facts, the Tribunal disposes of the issues set out in the Agreed List of Issues identified above as follows: Direct race discrimination and Harassment related to race (in time complaints)

[380]The Tribunal considered the complaint of direct race discrimination set out at allegation 2.2.19, which the respondent conceded (and the Tribunal accepted) was made within the time limit set out at section 123(1)(a) of the EqA. This allegation was contained in the claimant’s Further Particulars (see page 96 of the Hearing Bundle).

[381]We found that Dr Amersey spoke to witnesses after the grievance process had concluded in relation to the claimant’s second grievance. Dr Amersey accepted that he had done so during his evidence. The second grievance process concluded on 22 March 2022 on which date the claimant was sent a copy of the grievance appeal outcome (there was no dispute relating to the date this was sent or received).

[382]The claimant states in his witness evidence at paragraph 28e. that: “Finally in March and April 2022 Dr RA spoke with the witnesses who gave evidence relating to my grievance and asked them inappropriate questions about their interviews. Five of those witnesses felt intimated by him.”

[383]He further states at paragraph 28 f. of his witness evidence, “It is my belief that the failures in respect of my grievance, the manner in which my interview notes were recorded and Dr RA’s actions in March and April were all done because I am of Indian ethic origin and was trained in India.” The claimant also states that he relies on a hypothetical comparator.

[384]The information contained in the claimant’s statement is limited and the claimant does not specify the names of the five individuals or what was allegedly asked or said to them. He states that they were asked inappropriate questions, but he does not explain what the questions were or how or why the questions asked to any individuals by Dr Amersey were inappropriate.

[385]Although the claimant does not provide specific dates, the allegation as recorded in the Agreed List of Issues states that this took place “In - 76 - March/April 2022…” and the Further Particulars at page 96 of the Hearing Bundle indicates that, “This probably was to suppress then from giving further witnesses if called for by intimidating them as this was after the Grievance Nov 2020 outcome in Nov 2021 but awaiting appeal on Grievance outcome submitted in Dec 2021.” On the evidence before us there were no investigation interviews being conducted at the time in question. Furthermore, there was no suggestion that the claimant had informed the grievance appeal chair about this matter at the relevant time.

[386]In cross examination, the claimant initially said that witnesses came to him and told him that Dr Amersey had come to them, and that thereafter around 4 or 5 individuals had approached the claimant. The claimant said that they were being challenged in terms of why they were witnesses, they said they were asked by Sarah Cooper James, and he also suggested that maybe Dr Amersey had challenged them, and he suggested that this was so that they did not come forward as witnesses in future. Given there were no further investigation interviews taking place in terms of the claimant’s grievance at the relevant time, it is unclear on what basis the claimant felt that Dr Amersey was attempting to discourage witnesses from giving evidence in future.

[387]It was then put to the claimant that Dr Amersey did not say anything to intimidate witnesses and that even if he did there was no reason for the claimant’s belief that this was to prevent them giving evidence in future, to which the claimant responded that the individuals who were approached found this intimidating, that there were 5 or 6 people and that one of those was a matron. This differed somewhat from the claimant’s earlier evidence that there were 4 or 5 people, and furthermore the claimant did not provide any names of the individuals concerned (except in relation to identifying one of them as the matron) and he did not give specific details about the nature of any alleged conversations (the claimant did not proffer any or any satisfactory reason for not disclosing the same)

[388]We did not accept having considered the evidence before us that the claimant was told that Dr Amersey spoke to witnesses who informed him that they were asked improper questions by Dr Amersey about their interviews or that any individuals concerned had in fact been asked improper questions about their interviews by Dr Amersey.

[389]We accepted Dr Amersey’s evidence in relation to this allegation. Dr Amersey denies that he asked any witnesses involved in the grievance investigation any improper questions.

[390]Dr Amersey explained in his evidence that he had bumped into witnesses during routine activities (which was unavoidable) and some of those individuals asked him what happened with the grievance. He stated that he had asked if staff were involved, and he had contacted witnesses to apologise for being contacted by Sarah Cooper James after the investigation was completed (as he was not allowed to discuss the investigation while it was ongoing). - 77 -

[391]In cross examination the following evidence was provided by Dr Amersey: Question Reply Having become No aware of these I bumped into colleagues complaints and I don’t think anything was said upset, you then I also apologised to people who were cold called sought out They were basically rung by the investigating individuals who had officer given evidence in an There were some secretaries I spoke to as to intimidatory way whether they were involved and that was influenced by thoughts about claimant based on race Did you seek out those individuals? Whether they were Whether they were asked to give evidence involved? Why asked? Because it created a lot of unhappiness in the department It still has People are worried, under a lot of stress and are very uncomfortable with the current situation Do you accept some No I don’t agree people might have felt intimidated by your actions? Did you do that No I am not racist at all because of Creed, colour or origin makes no difference to the Claimant’s race way I act

[392]Dr Amersey’s evidence in relation to these matters was clear and consistent.

[393]As we set out earlier, we did not find that Dr Amersey had asked any individuals improper questions in relation to their involvement in the claimant’s grievance investigation.

[394]Even if we had found that any questions that were asked were improper as suggested by the claimant, we did not accept that any such questions were asked to any individuals because of race on the evidence before us. The claimant did not produce or refer the Tribunal to any or any sufficient evidence to show a prima facie case that the alleged conduct took place because of race. We considered the totality of the claimant’s evidence and the respondent’s evidence (excluding the issue of whether or not there was an adequate [i.e. non-discriminatory] explanation for the treatment [which is - 78 - relevant only to Stage 2]) in reaching our conclusion in relation to paragraph 2.2.19 of the Agreed List of Issues.

[395]We did not accept that the alleged incident at paragraph 9 of the claimant’s witness statement took place. The Tribunal set out its analysis of this matter earlier in this Judgment (see Observations and Analysis above). The claimant did not complain about race discrimination in respect of this matter during the grievance appeal process or in a separate grievance.

[396]Alternatively, in the event that we are wrong to so find, we proceeded to consider the respondent’s explanation for the conduct alleged by the claimant. We considered all the evidence and circumstances in reaching our conclusion including the respondent’s witness evidence and the documents before us. We accepted Dr Amersey’s account of events and the reasons he gave for any conversations that took place. The Tribunal were satisfied that Dr Amersey’s conduct in relation to the allegation at paragraph 2.2.19 of the Agreed List of Issues was “in no sense whatsoever” because of the protected characteristic of race.

[397]Therefore, had we accepted that the allegation at paragraph 2.2.19 had taken place as alleged by the claimant (which we did not accept), we would have concluded that the claimant’s race (including but not limited to his Indian origin, his schooling or being an international graduate) had no connection whatsoever with any improper questions that were allegedly asked to witnesses, and accordingly, we would not have found that the alleged conduct on the part of Dr Amersey took place because of race.

[398]We further noted that any inappropriate questions were purportedly asked by Dr Amersey in March/April 2022, and that there were no investigation interviews ongoing at that time on the basis of the evidence before us. The issue as expressed at paragraph 2.2.19 clearly acknowledges that the alleged conduct took place “…after the grievance process had concluded…” We did not accept the claimant’s suggestion that the alleged conduct was to deter witnesses from participating in future investigations based on the evidence before us.

[399]The claimant’s complaint of direct race discrimination relating to paragraph 2.1.19 of the Agreed List of Issues is therefore dismissed.

[400]We then considered the same allegation at paragraph 2.1.19 of the Agreed List of Issues in the context of the claimant’s complaint of harassment related to race per paragraph 5 of the Agreed List of Issues.

[401]We repeat the finding above that we did not accept in terms of our findings of fact that Dr Amersey had asked witnesses any improper questions about their interviews (when he spoke with witnesses in March/April 2022 after the grievance process had concluded). - 79 -

[402]Even if we had accepted that this allegation took place, and further that it amounted to unwanted conduct, we did not find that the claimant had made out a prima facie in terms that the alleged conduct was related to race.

[403]The claimant did not produce or refer the Tribunal to any or any sufficient evidence to show a prima facie case that the alleged conduct was related to race. We considered the totality of the claimant’s evidence and the respondent’s evidence (excluding the issue of whether or not there was an adequate [i.e. non-discriminatory] explanation for the treatment [which is relevant only to Stage 2]) in reaching our conclusion in relation to paragraph 2.2.19 of the Agreed List of Issues (in the context of the harassment related to race complaint).

[404]However, even if we had been satisfied that the claimant had made out a prima facie case in respect of the same, we would have found that the alleged conduct had no connection whatsoever with the protected characteristic of race. We accepted Dr Amersey’s evidence including that the claimant’s allegations caused unhappiness within the department and that Dr Amersey’s reason for speaking to any individuals was in order to address this. This was in the context of managing ongoing working relationships, and it was important in terms of maintaining professional working relationships. Accordingly, even if we had found allegation 2.1.19 to have been established in terms of our findings of fact (which we did not), and further, that this amounted to unwanted conduct, we would not have accepted that the alleged conduct was related to race. Dr Amersey’s evidence provided clear and cogent reasoning and non-discriminatory reasoning (that we were satisfied had no connection whatsoever with race).

[405]Further or alternatively, we would not have found that the alleged conduct had the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant or that it had that effect, in all the circumstances and based on the evidence before us. Even if the claimant considered that the alleged conduct created an adverse environment for the claimant, any such perception would not have been reasonable in light of our evidential findings (and considering all the circumstances).

[406]The claimant’s complaint of harassment related to race relating to paragraph 2.1.19 of the Agreed List of Issues is therefore dismissed. Direct race discrimination, Harassment related to race and Victimisation (time limits issues)

[407]The time limit for bringing a complaint under the EqA is set out at section 123(1)(a) in the following terms: “123(1) Subject to section140B proceedings on a complaint within section 120 may not be brought after the end of (a) the period of 3 months starting with the date of the act to which the complaint relates.” - 80 -

[408]Paragraph 1.1 of the Agreed List of Issues sets out the parties’ agreed position, “Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 16 February 2022 may not have been brought in time.”

[409]Except in relation to the claimant’s complaints of direct race discrimination and harassment related to race (insofar as they relate to paragraph 2.1.19 of the Agreed List of Issues), we find that the claimant’s remaining complaints have been presented outside the time limit set out at section 123(1)(a) of the EqA.

[410]As there are no parts of that the claimant’s complaints that we found are both in time and actionable, we do not find that there was any “conduct extending over a period…” in terms of section 123(3)(a) of the EqA. We are therefore unable to accept the claimant’s primary position (per paragraph 168 of claimant’s representative’s written representations).

[411]We then considered whether the claimant’s remaining complainants were brought within “such other period as the employment tribunal thinks just and equitable.” At paragraph 170 of the claimant’s representative’s written representations it is argued that it would be just and equitable to extend time.

[412]It is submitted on the claimant’s behalf that the claimant was very poorly treated over an extremely long time. We did not accept this contention made on the claimant’s behalf. Whilst we can understand the claimant’s dissatisfaction with some of the delays that he complains about, we recognise that a number of steps were taken by the cardiology team to assist with the claimant’s Job Plan process, the claimant’s first grievance relating to his Job Plan which concluded in the claimant’s favour (and a settlement agreement pursuant to which the claimant was paid almost £70,000 in terms of back pay), and further, that the delays in the MHPS and grievance investigation were caused in part by issues relating to COVID-19 and the claimant’s conduct in the process (including the claimant introducing new matters that the respondent were required to consider as part of the claimant’s grievance). We considered that the steps taken by the respondent to investigate the claimant’s concerns raised were both fair and reasonable in the circumstances and further that any concerns raised were extensively investigated. Overall, we did not accept that the claimant had provided a satisfactory or good reason for any delay in presenting his complaints to the Tribunal. We proceeded to consider the balance of injustice or hardship on the claimant and the respondent respectively.

[413]We took into account the effect on the claimant if we refused to extend time on a just and equitable basis. The claimant’s representative submits that “If the Claimant is unable to achieve justice in relation to these matters it is likely to have an extremely profound effect upon him.” If time were not extended, the claimant would be deprived of an opportunity to have a number of his complaints considered on their merits. - 81 -

[414]We must balance this against any injustice or hardship to the respondent as a result of the late presentation of the claimant’s remaining complaints (if time were extended on a just and equitable basis). The claimant’s allegations date as far back as 2012 (see paragraphs 2.2.2 and 2.2.3 of the Agreed List of Issues and paragraph 9 of the claimant’s witness statement which contains an allegation which is not part of the Agreed List of Issues, but nevertheless the claimant emphasised that this is an important part of his case). The Tribunal are concerned that any rather dated allegations made by the claimant can be difficult to investigate due to potential issues with documents and witness recollections.

[415]In fact, in terms of the evidence before us, there were some documents that could not be located. By way of example, we did not have before us a copy of the claimant’s Job Plan from 2012.

[416]In addition, in answer to some questions during cross examination, some of the respondent’s witnesses stated that they were unable to recall certain events. It is understandable that witnesses working in busy clinical environments are unable to recall some events (given that particular working environment) and particularly taking account of the passage of time.

[417]Those matters must be factored into the Tribunal’s consideration in respect of relative prejudice and hardship to each party.

[418]It is also contended on behalf of the claimant that he acted in good faith and that he sought to follow the advice that he was given by the BMA namely to exhaust all procedures before starting a Tribunal claim, that the respondent delayed the various processes and failed to resolve the issues raised by the claimant within a reasonable timeframe at every turn. We did not accept in terms of our findings of fact that the claimant was advised by the BMA to exhaust all processes internally prior to making a Tribunal claim or that the respondent unreasonably delayed any of the two grievance processes. In any event, being provided with incorrect advice would not, in our judgment, form a satisfactory basis to extend time on a just and equitable basis.

[419]We also noted the respondent’s representative’s submissions relating to the advice the claimant says was provided by the BMA: “C’s explanation for submitting his claim out of time was that he was told that by at least two BMA employment law advisers that he had to wait until internal proceedings had been concluded. It is submitted that, on the balance of probabilities, he was not given that advice. In particular: a) C was very vague, if not evasive, on the subject of what he was telling the BMA at what time; b) C’s grievance did not raise an allegation of race discrimination; c) that, even if it had, this would not be a good reason for failing to issue proceedings. It is more likely that C was not raising an issue of race discrimination with the BMA and they were therefore not advising him upon it.” - 82 -

[420]We noted that on the whole the subject matter of the claimant’s grievances did not mirror the complaints of race discrimination made within the claimant’s ET1 Form or in the Agreed List of Issues.

[421]In light of our considerations above, and on the evidence before us, we do not extend time on a just and equitable basis in terms of section 123(1)(b) of the EqA in relation to the claimant’s remaining complaints of direct race discrimination, indirect race discrimination, harassment relating to race and victimization. Prior to reaching this decision, we carefully considered the claimant’s explanations provided and his evidence in this regard and we weighed the balance of prejudice and hardship on both parties. We concluded that the balance of prejudice and hardship lies in favour of refusing to extend time on a just and equitable basis.

[422]Therefore, the claimant’s remaining complaints of direct race discrimination, indirect race discrimination, harassment relating to race and victimization are dismissed on grounds that they were not presented to the Tribunal within the time limit set out at section 123(1)(a) of the EqA.

[423]In the event that we are wrong to so find, we have determined the remaining complaints on their merits below (in the alternative). Direct race discrimination

[424]The allegation set out at paragraph 2.2.1 was deleted from the Agreed List of Issues. We were therefore not required to determine this.

[425]The respondent’s representative points out that the claimant’s claim to the Tribunal is against four members of cardiology management. The less favourable treatment complained of was that he was ‘placed … on the consultant of the week rota for both Cardiology and Acute Medicine…’. The claimant relies on the following actual comparators in respect of this allegation (at paragraph 2.3 in Agreed List of Issues): Dr Gupta, Dr O’Mahony, Dr Amersey, and Dr Velmurugan. To amount to a good comparator, there must be “…no material difference between the circumstances relating to each case.” This means that “‘the comparator […] must be in the same position in all material respects as the victim save only that he, or she, is not a member of the protected class.” (Shamoon v Chief Constable of the Royal Ulster Constabulary

2003 ICR 337

,HL).

[426]We noted that the cardiology department did not place the claimant on the COW rota for acute medicine. The cardiology department did place the claimant on the COW rota for cardiology, but this was something that the claimant had expressed that he wanted to do.

[427]In any event, notwithstanding our findings in this regard, we are not satisfied that there is sufficient evidence to show a prima facie case that the alleged treatment took place because of race. - 83 -

[428]In the alternative, and if we are wrong to so find, we are satisfied having taken account of all the evidence and circumstances and the explanations of the respondent’s witnesses (which we accepted) that the alleged treatment by the claimant at paragraph 2.2.2 of the Agreed List of Issues was in no sense whatsoever connected to race.

[429]On the findings we made, the reasons for the claimant undertaking more COWs than his comparators are that the claimant had been undertaking 13 COWs in acute medicine and he was asked, and agreed, to take on 13 cardiology COWs in addition to these.

[430]There were no comparators or other individuals in the same position as the claimant on the evidence before us. Moreover, the claimant’s comparators undertook 100% cardiology work and therefore they were only rostered to work on the cardiology COWs. They were not employed in any other department. We are not satisfied that there was “no material difference between the circumstances relating to each case” in respect of the claimant and the claimant’s comparators, and in fact there were material differences in terms of the circumstances of the comparators. Given the nature and extent of the material differences, this affected our ability to analyse their positions as evidential comparators also (and the weight we could place on their respective positions in this respect).

[431]Any difference in the number of COWs being undertaken was because of how claimant had come to be assigned that work. The allocation of work to the claimant in this regard had no connection whatsoever with race.

[432]We did not accept that (on the evidence before us) other consultants with two specialisms would not have been allocated two 13-week COW rotas.

[433]Even if we had concluded that Dr Amersey, Dr Mathur, and Dr Woldman could have taken further steps to impose a reduction in terms of the claimant’s acute medicine (on the hospital’s acute medicine team) work (which we did not conclude), this was not the claimant’s pleaded case. In any event, in all the circumstances, we were not satisfied that the alleged treatment of the claimant had any connection whatsoever with race.

[434]Details of Registrar cover was set out in the respondent’s Registrar’s rota. This was generally prepared by Registrars. We note that when the claimant had an issue with the rota on 11 January 2019 the claimant had sent an email to Dr Ahmet, who was one of the Registrars at the time. On 15 January 2019 Dr Amersey replied to that email referring to Dr Ahmet doing an excellent job despite unexpected sickness and difficulties for junior staff returning from leave. It was further stated, “There is a cardiology registrar rota that Esther and then Wade took over overseeing. I have previously had sight of this. I will ask Kathy if she can circulate it going forward now we have permanent registrars/clinical fellows in post from this week.” - 84 -

[435]On 01 May 2019 the claimant sent an email to Esther Rainbow copying in doctors within the team, pointing out that as per RCP Policy a consultant was seeing more than 30 patients in a day which could increase clinical risk and that they saw more than 45 patients in the absence of a Specialist Registrar. Dr Gupta’s email reply of the same day acknowledged that this had happened to all members of the team over the years and that they should try to be proactive/preventative with Middle Grade cover. It was stated that such scenarios were now rare with SPRs taking initiatives, sending Rotas and early detection of “hot spots”. Dr Amersey followed up with an email sent on 02 May 2019 with a proposed resolution.

[436]Other than the claimant’s assertions made within the claimant’s witness evidence, we were not referred to any evidence to suggest that the claimant was provided with less support by junior doctors on any specific dates.

[437]There is no comparable evidence before us to show that the claimant was treated less favourably than any other members of his team. We are not satisfied that he was treated less favourably than a hypothetical comparator (who is a consultant with the claimant’s specialism but who is not of Indian ethnic origin).

[438]In terms of secretarial support, the claimant’s witness statement says that he was provided with temporary and inexperienced secretaries and further that, his secretary changed many times between 2014-2018 (see paragraph 13a of the claimant’s witness statement).

[439]The claimant’s witness statement does not address or provide any details relating to the secretarial support provided to other members of the claimant’s team.

[440]We noted that Dr Amersey also suffered from insufficient secretarial support at times. We accepted the respondent’s evidence in terms of the fact that it was not easy for the respondent to recruit secretarial support.

[441]Esther Rainbow spoke to the difficulties in terms of secretarial support in her evidence. Secretarial support was a matter for operational managers (including Esther Rainbow) rather than clinical managers. She also told us in her witness evidence (which we accepted) that there were some challenges in providing secretarial support to the claimant because some of the secretaries had found the claimant difficult to work with.

[442]The claimant’s representative sets out the claimant’s case that Dr Amersey and Dr Velmurugan utilized their influence as cardiology leads at Whipps Cross Hospital to influence the availability of Registrars, junior doctors, and secretaries. We did not accept that this took place on the basis of the evidence we read and heard, and to which we were referred.

[443]In any event, we are not satisfied that there is a prima facie case showing that the alleged conduct took place because of race. - 85 -

[444]In the alternative, we are satisfied having taken account of all the evidence and circumstances including the explanations of the respondent’s witnesses (which we accepted) that the alleged treatment of the claimant at paragraph 2.2.3 of the Agreed List of Issues was in no sense whatsoever connected to race.

[445]In response to Tribunal Member Mrs Saund’s question, Esther Rainbow confirmed in oral evidence that she had no knowledge of where the claimant had completed his medical degree (until she found out about the Employment Tribunal case). We did not find that either Esther Rainbow or any other individuals who were involved in terms of allocation of Registrars or secretarial support to the claimant from 2012 to 2022 had subjected the claimant to the alleged treatment because of race.

[446]Even if there had been any or any sufficient evidence relating to the claimant’s allegations concerning the inequitable allocation of Registrars and Secretarial support to the claimant, we do not find on the evidence before us that any alleged act or omission by the respondent was because of the claimant’s race, where the claimant was raised, or where the claimant had undertaken his medical degree many years previously.

[447]The allegation set out at paragraph 2.2.4 was deleted from the Agreed List of Issues. We were therefore not required to determine this.

[448]We did not accept on the balance of probabilities that Dr Amersey had in October 2018 used abusive language towards the claimant or that he had told the claimant to “fuck off” from the office.

[449]Even if Dr Amersey had said this (which we did not find), we did not find on the evidence that Dr Amersey allegedly losing his temper and using bad language was because of the claimant’s race, where he was raised, or where he did his medical degree many years previously. We are not satisfied that there is a prima facie case showing that the alleged conduct took place because of race.

[450]We did not accept that on the evidence before us that Dr Velmurugan’s sessions were substituted for the claimant’s sessions as alleged by the claimant. The claimant had been attending a maximum of 10-12 sessions a year with Dr Cheasty on Wednesdays. The claimant’s sessions with Dr Cheasty were stopped by Dr Cheasty because she was given responsibility for an additional 20 cardiac imaging trainees whom the respondent had an obligation to train. This was unrelated to Dr Velmurugan who was undertaking scanning on Mondays and Tuesdays both before and after the claimant stopped attending his Wednesday sessions. - 86 -

[451]In June 2019 the claimant was attending CT sessions voluntarily to maintain his own accreditation. The cardiology department were not placing any clinical requirement on him to attend CT scanning sessions. The positions between the claimant and Dr Velmurugan are not comparable, Dr Velmurugan was attending CT sessions in accordance with her formal Job Plan as part of her work within the cardiology department (she was employed as a consultant cardiologist with an interest in heart failure and imaging or devices).

[452]The claimant’s allegation is not made out on the evidence that was before race. In any event we were satisfied in terms of the respondent’s evidence

[453]Therefore, even if this allegation were made out (which we did not accept), were not satisfied on the evidence before us that the claimant’s sessions being allegedly replaced or substituted for Dr Velmurugan’s sessions was because of the claimant’s race, where he was raised, or where he undertook his medical degree many years previously.

[454]Dr Davies’ evidence was that nuclear scanning had stopped being carried out at Whipps Cross Hospital in 2015 or 2016.

[455]In his witness statement at paragraphs 18 b and c the claimant compares himself to Dr Barron Sin who he says was allowed to continue with nuclear cardiology. The claimant says he was a local graduate and of UK origin and that he was helped by Dr Amersey who was lead at the time and supported to continue by Dr Velmurugan/Dr Das and the clinical director.

[456]We did not find on the facts before us that Dr Sin’s circumstances were comparable with the claimant’s circumstances. Their circumstances were materially different. Dr Sin was employed from 2014 as a Specialty Doctor in Cardiology and his Job Description recognized that he would progress to independent nuclear scanning. Dr Sin’s progression to nuclear scanning was recorded on his Job Plan.

[457]The claimant’s allegation is not made out on the evidence that was before race. In any event we were satisfied in terms of the respondent’s evidence

[458]Even if we had found that the claimant’s allegations concerning the allocation of nuclear scan reporting to the claimant had been established on the facts (which we did not), we do not find on the evidence before us that any alleged act or omission by the respondent was because of the - 87 - claimant’s race, where he was raised, or where he did his medical degree many years previously.

[459]The allegation set out at paragraph 2.2.8 was deleted from the List of Issues. We were therefore not required to determine this.

[460]The claimant’s allegation is that “The accusations were escalated by the Clinical Lead, Dr RA, and successor as Clinical Lead, Dr SV, without any prior enquiry or local investigations between October and December 2019 and C was not made aware of the allegation (§4 LPC).”

[461]Dr Ahmet raised complaints orally to Dr Amersey during the summer of 2019. It was expected under the circumstances that Dr Ahmet would be asked to set out her concerns in writing, which she did, and further, that she would be supported to make any complaint. Dr Ahmet then raised these concerns in writing to Dr Amersey and Dr Velmurugan.

[462]We are not satisfied that there is a prima facie case showing that the alleged conduct took place because of race. In any event we were satisfied in terms of the respondent’s evidence and explanations that the claimant’s treatment had no connection whatsoever with race.

[463]It was also entirely expected that Dr Velmurugan would contact more senior management to seek guidance, rather than carrying out an informal investigation of their own volition, in the circumstances. Dr Velmurugan contacted Dr Davies and sought guidance. Following his request, Dr Velmurugan gathered some evidence regarding the complaint. Dr Amersey discussed the issue with Dr Rowland. It was a matter for more senior management to deal with the complaint.

[464]The respondent’s response was in accordance with what they thought was appropriate in light of a substantial complaint and in accordance with the relevant policy. The respondent’s response had no connection whatsoever with the claimant’s race, where the claimant was raised, or where he

[465]The claimant alleges that Deputy Medical Director, Dr Simon Sporton, decided to start a formal MHPS investigation in December 2019. However, Dr Rowland stated in his evidence that having consulted with the Associate of the description of events relating to this matter. - 88 -

[466]The claimant’s allegation is not made out on the evidence that was before race.

[467]In any event the respondent’s conduct towards the claimant had no connection whatsoever with the claimant’s race, where he was raised, or

[468]On 20 September 2019 Dr Velmurugan was approached by a junior doctor about issues that he had experienced with the claimant when he was consultant of the week. Dr Velmurugan sent a general email relating to this dated 24 September 2019 in which she said “I have been informed of cases of undermin of our junior staff by a member of the consultant body. I am sure we all agree this is unacceptable and should stop immediately.”

[469]The claimant’s representative sets out that the email was unnecessary and unprofessional and in particular he criticizes the choice to copy an email reprimanding a consultant (even if not by name) when there were also junior doctors included.

[470]We accept that an email was sent as described above. We are not satisfied that there is a prima facie case showing that the alleged conduct took place because of race.

[471]We did not find that sending an email of this nature was unnecessary and unprofessional in the circumstances. This was an acceptable method of highlighting the concerns raised. We did not accept that the sending of this email had any connection with the claimant’s race, where he was raised, or

[472]A patient had died on 13 December 2019. After the patient’s death Zurka Iqbal (Matron on the ward) reported to the Medical Director of the hospital that the claimant had changed the name of the responsible consultant on the respondent’s system after the patient had died.

[473]This same allegation was reported back to Dr Amersey by Dr Gupta and Dr Davies (on the day that the patient had died – Friday 13 December 2019).

[474]If this were correct, this was potentially a significant issue.

[475]Dr Velmurugan’s email dated 17 December 2017 stated “Then the FY1 who did the death certificate was told to put the consultant as Dr Amersey as Dr Taneja said he did not start the end of life process. The FY1 was not comfortable doing this without Dr Amersey’s permission and suggested that Dr Amersey should be called to which Dr Taneja disagreed and said it would - 89 - just cause an argument and started to mention Medico-legal terms.” This was forwarded to Dr Davies on 24 December 2019.

[476]Esther Rainbow sent a description of events by email dated 27 December 2019 to Nicole Porter-Garthford, who in turn thanked Esther Rainbow for raising the issue which would enable her to ensure this was being picked up appropriately.

[477]The claimant’s allegation is not made out on the evidence that was before race.

[478]We reviewed the email of Dr Amersey dated 16 December 2019. We noted that he states that he was not certain exactly what happened and he makes clear he is prepared to take responsibility for his patients and decisions. He explains that there was some concern that a consultant changing patient data on CRS after a death may be a GMC reportable offence and the question of probity has been raised. However he also states that he would be grateful if consideration could be given to investigating this, taking formal statements and escalating to the GMC if appropriate.

[479]He was clearly concerned about the facts that had been reported to him. There was nothing wrong or inappropriate about Dr Amersey raising the concerns and including or copying in Dr Rowland or Dr Noble.

[480]Therefore, and in any event, we were satisfied in terms of the respondent’s evidence and explanations that the claimant’s treatment had no connection

[481]We did not accept that the sending of the email in question had any connection with the claimant’s race, where he was raised, or where he

[482]The decision in terms of whether to progress to an MHPS investigation was not made until around 17 November 2019. The claimant seeks to lay the blame at Dr Drewery’s door although the Agreed List of Issues indicates that the claimant is not sure who bears responsibility (but he believes that it may have been Dr Drewery).

[483]The claimant states in his witness statement at paragraph 21(i), “I consider that Dr HD the chairperson for the MHPS investigations carried out the investigation thoroughly and with fairness There was a delay in it but appeared to be more due to delay caused by medical staffing and cardiology department rather than by Dr HD.”

[484]The claimant does not set out any specific period of delay in relation to which he is critical, and he does not assert that any other person was involved in terms of causing any delay. - 90 -

[485]The claimant’s representative’s representations at paragraph 63 state that the claimant now avers that this decision was taken by Dr Edward Rowland, and that this was an unreasonable step for him to take. The complaint was received on 30 September 2019. No action was then taken to move the matter forward in real terms until 28 October 2019. The matter then seemed to stall until mid-November 2019.

[486]The claimant’s representative states, “This decision coincided with the culmination of the Claimant’s JP grievance which led to the Claimant receiving a payment of almost £70,000 (minus deductions for tax) as a result of significant underpayments. Dr Rowland alleged to be unaware of that fact, but the Claimant asserts that seems highly unlikely as there was a significant amount of money involved and the HR advisor dealing with both matters and working closely with Dr Rowland was the same person. This will have acted to further antagonise Dr Rowland and anyone else motivated by the Claimant’s race and the decision was still therefore clearly linked to race.”

[487]Whilst we accept that the investigation took a number of months to conclude, we are not satisfied that there is a prima facie case showing that the alleged conduct took place because of race.

[488]In any event we were satisfied in terms of the respondent’s evidence and

[489]Furthermore, on the evidence before us we did not accept that any delay complained of by the claimant was unreasonable or that any alleged delay caused prejudice to the claimant’s position in terms of the investigation.

[490]In any event, this did not, on the evidence before us, have any connection whatsoever with the claimant’s race, where he was raised, or where he

[491]We do not accept that the events relating to this allegation took place as described by the claimant. There is no dispute that the claimant was deployed to the COVID-19 wards in Spring 2020 and again in earlier 2021 for a few weeks during the COVID-19 pandemic. The claimant was already a member of the acute medicine team (as he had been for some 10 years).

[492]We are not satisfied that there is a prima facie case showing that the alleged conduct took place because of race.

[493]The respondent’s representative points out that there is no suggestion that any consultant in the acute medicine team was not redeployed to COVID19 wards (and that those doctors would be appropriate comparators rather than 100% cardiologists). - 91 -

[494]By an email dated 25 March 2020 Dr Green stated to the claimant, “Hold on Anil. I am emailing the Medical Consultants in a few minutes. This will show you are on 1 rota, same as every WX Medical Consultant.”

[495]There was no material before us to suggest that the claimant was being asked or pressured to work by cardiology on the COVID-19 wards.

[496]Dr Green had asked for the claimant’s release. Dr Das’s role appeared to be limited to agreeing to Dr Green’s request. It may have been difficult for Dr Das not to agree in the circumstances of the COVID-19 pandemic.

[497]There was still cardiology work to be performed but it was less, and they could manage without the claimant in the context of the pandemic. Consultants who were performing solely cardiology work were expected to assist with the pandemic wherever possible.

[498]In any event we were satisfied in terms of the respondent’s evidence and

[499]On the evidence before us, the respondent’s acts in respect of this allegation had no connection whatsoever with the claimant’s race, where he was raised, or where he undertook his medical degree many years previously. Allegations 2.2.15 – 2.2.18

[500]The allegations set out at paragraph 2.2.15-18 were deleted from the Agreed List of Issues. We were therefore not required to determine these.

[501]We explained why we found that this allegation was not well founded earlier in this Judgment.

[502]Accordingly, in the alternative, we would have dismissed the claimant’s direct race discrimination complaints for the above reasons. Indirect race discrimination

[503]We did not find in terms of our findings of fact that the respondent applied any of the alleged PCPs. We have considered below each of the PCPs relied on by the claimant in turn: Issue 4.1.1

[504]Paragraph4.1.1 of the Agreed List of Issues was deleted. We were - 92 - Issue

4.1.2

[505]We did not find that the respondent applied a practice of allocating more PAs and/or more COW allocations to cardiologists who were trained outside of Europe. We note that the claimant did not state in his evidence that this purported practice was allegedly applied to any other individual apart from himself. The respondent accepts that the claimant had higher than normal PAs and COWs but the explanation for this is that this was because of the specific circumstances in which he was undertaking COWs for both cardiology and acute medicine (26 weeks in total) and other duties. We find that the fact the claimant had his training or undertook his primary medical qualification in India had no connection whatsoever with this matter. We did not accept that this PCP placed the claimant at a particular disadvantage on the basis that he was more likely to be trained and/or qualified outside of Europe given his Indian ethnic origin. Allegation 4.1.3

[506]In terms of our findings of fact, we did not find that the respondent applied a practice of allocating insufficient resources, registrars and junior doctors to cardiologists who were trained and/or qualified outside of Europe. We did not find any or any sufficient evidence in support of the claimant’s position that any such alleged practice placed the claimant at a particular disadvantage, on the basis that he was more likely to be trained and / or qualified outside of Europe given his Indian ethnic origin. Allegation 4.1.4

[507]Paragraph 4.1.4 of the Agreed List of Issues was deleted. We were Allegation 4.1.5

[508]We did not find in terms of our findings of fact that the respondent (particularly Dr Amersey and Dr Velmurugan) applied a practice of isolating and/or targeting consultants who qualified and/or trained outside of Europe and we further found that the events relating to the alleged disadvantage that claimant relies upon namely allegations 2.2.5 and 2.2.19 within the Agreed List of Issues were not established as a matter of fact and had no connection whatsoever with the claimant’s race. We did not accept that the purported practice relied upon by the claimant placed the claimant at a particular disadvantage on the basis that he was more likely to be trained and/or qualified outside of Europe given his Indian ethnic origin. Allegation 4.1.6

[509]We did not find that the respondent applied a criterion or practice of allocating more opportunities to undertake Cardiology Reporting to those who were trained within the Trust, to cardiologists who were trained and/or qualified within Europe in terms of our findings of fact. This appears to relate to the allegations at paragraphs 2.2.6 and 2.2.7 of the Agreed List of Issues and we found that the alleged conduct in respect thereof had no connection whatsoever with the claimant’s race. We did not accept that any alleged conduct put the claimant at a particular disadvantage, on the basis that he - 93 - was more likely to be trained and/or qualified outside of Europe given his Indian ethnic origin. Allegation 4.1.7 (4.1.7.1 only)

[510]We were not satisfied on the evidence before us that the respondent had applied a criterion and/or practice of failing to adequately follow their policies for handling complaints and/or grievances for complaints that were made against doctors or consultants who were trained and/or qualified outside of Europe. It is unclear what specific parts of the evidence the claimant is relying upon in respect of this allegation. This appears to the Tribunal to be related solely to the particular circumstances of the claimant’s case. We were not satisfied that any delays or any other alleged breaches of the respondent’s policies related to the fact that claimant had trained and/or qualified outside of Europe. We did not find on the facts before the Tribunal that the claimant was placed at particular disadvantage on the basis that he was more likely to be trained and/or qualified outside of Europe given his Indian ethnic origin.

[511]Paragraph 4.1.7.2 of the Agreed List of Issues was deleted. We were Allegation 4.1.8

[512]There was no evidence to support the allegation that the respondent applied a criterion and/or practice of re-deploying cardiologists to COVID-19 wards who were trained and/or qualified outside of Europe during the COVID-19 pandemic (except in relation to the claimant who was re-deployed because he was an active member of the acute medicine team at Whipps Cross Hospital with contemporaneous experience in acute medicine and he was requested to work in the COVID-19 wards as a result of his acute medicine experience by Dr Simon Green). Dr Green’s request for the claimant to be re-deployed (or his lack of request for any other cardiologists to be redeployed) had no connection whatsoever with the claimant’s race or that the claimant had qualified and/or trained outside of Europe. We did not accept that this matter put the claimant at a particular disadvantage on the basis that he was more likely to be trained and/or qualified outside of Europe given his Indian ethnic origin (as alleged by the claimant).

[513]If we are wrong to so find and the PCPs were made out, and further, that the respondent applied the alleged PCPs to the claimant, we would not have found that the respondent applied the alleged PCPs to persons with whom the claimant does not share the characteristic (nor that they would have done so). Even if that finding were wrong (which we do not accept), we would have found that the alleged PCPs did not put persons with whom the claimant shares the characteristic at a particular disadvantage when compared with persons with whom the claimant does not share the characteristic in terms of the matters set out at paragraph 4.4 of the Agreed List of Issues. We refer to our earlier findings in respect of paragraphs 2.2.2, 2.2.3, 2.2.5. 2.2.6, 2.2.7, 2.2.8, 2.2.10-.2.2.14, 2.2.18, and 2.2.19 of the Agreed List of Issues (the issues relating to paragraph 4.4.7 of the Agreed - 94 - List of Issues insofar as they related to paragraphs 2.2.15 and 2.2.16 were withdrawn by the claimant’s representative on 24 September 2024).

[514]Further or alternatively, we did not find on the evidence before us that the alleged PCPs placed the claimant at that disadvantage (as alleged by the claimant).

[515]We further note that the claimant’s representative indicated to the Tribunal that the claimant’s indirect discrimination claim was put in the alternative in the event that the direct discrimination claim failed. The respondent’s representative submits as follows “It is submitted that C’s indirect discrimination claim is misconceived. All that C is really saying is that where he trained is a proxy for his protected characteristic. This is a claim for direct discrimination (as per EJ Crossfill at para 24 [158]).”

[516]We therefore would have concluded in the alternative that the claimant’s indirect race discrimination complaints are not well founded, and we would have dismissed those complaints for the reasons stated above.

[517]The Agreed List of Issues records that the claimant relies on the same matters as set out in respect of paragraphs 2.2.1 to 2.2.19 of the Agreed List of Issues above in respect of direct race discrimination (except 2.2.8, 2.2.15 and 2.2.16 which were withdrawn on 24 September 2024 and any which were deleted previously as indicated above).

[518]The claimant’s representative contends that the complaints of harassment related to race are also an alternative claim, and it is trite law that if an allegation is found to amount to harassment, it cannot also be direct (or indirect) discrimination or vice-versa. It is further submitted that the complaints and arguments in relation to harassment related to race are essentially identical and the Tribunal is referred to the claimant’s representative’s submissions under direct discrimination, save that this is not a case that relies on a single incident, but rather, an ongoing course of affairs that are said to have been a constant part of the claimant’s daily life since 2012, which had only escalated with every effort the claimant made to resolve the underlying dispute. It is contended on behalf of the claimant that the fact that the requisite environment was created can therefore be in little doubt.

[519]The respondent’s representative submits that these events did not occur, or were not related in any way to the claimant’s race. Furthermore it is submitted that for the sake of completeness, even if it happened and was related to race, the only one of the allegations that could come close to the definition of harassment is allegation 2.2.5. Even if this happened and was, somehow, related to race, it is submitted that the claimant’s lack of any objection at the time or for years afterwards indicates that it did not have the necessary purpose or effect. - 95 -

[520]We considered each allegation in turn (in the alternative), save in respect of any points relating to paragraphs 2.2.8, 2.2.15 and 2.2.16 which were withdrawn on 24 September 2024 and 2.2.1, 2.2.4, 2.2.17 and 2.2.18 which were deleted from the Agreed List of Issues previously.

[521]We refer to our factual findings above in respect of allegation 2.2.2.

[522]As we noted earlier, the cardiology department did not place the claimant on the COW rota for acute medicine. The cardiology department did place the claimant on the COW rota for cardiology, but this was something that the claimant had expressed that he wanted to do.

[523]On the findings we made, the reason for the claimant undertaking more COWs than his comparators is that the claimant had been undertaking 13 COWs of the week in acute medicine and he was asked, and agreed, to take on 13 cardiology COWs. There were no other individuals in the same position on the evidence before us. The difference in the number of COWs being undertaken was because of how claimant had come to be assigned that work. We do not consider that the respondent subjected the claimant to unwanted conduct in this regard.

[524]In any event, we are not satisfied that there is a prima facie case showing that the alleged conduct was related to race.

[525]In the alternative, we were satisfied in terms of the respondent’s evidence

[526]We are satisfied that the claimant’s alleged treatment by the respondent at paragraph 2.2.2 was in no sense whatsoever connected to race. Therefore we find that the alleged conduct was not related to race.

[527]Furthermore, we do not find that the alleged conduct had the purpose of

[528]Essentially we did not accept the claimant’s allegation against Dr Amersey and Dr Velmurugan in respect of allocating the claimant with fewer Registrars and Junior Doctors as set out in the Agreed List of Issues or that the alleged treatment was related to race. We have set out above our factual findings in respect of allegation 2.2.3 and we refer to the same.

[529]However, the claimant had complained by email about the shortage of Registrars previously (which we referred to above), and those complaints could amount to evidence of unwanted conduct. We also set out our findings in respect of the provision of secretarial support for the claimant above and - 96 - once again the claimant’s complaints in respect of the same may amount to unwanted conduct.

[530]However, we do not accept that either of those matters were related to race. As we set out above, in relation to the claimant’s allegations concerning the allocation of Registrars and Secretarial support to the claimant, we do not find on the evidence before us that any alleged act or omission by the respondent was related to the claimant’s race, where he was raised, or

[531]We are not satisfied that there is a prima facie case showing that the alleged conduct was related to race.

[532]In the alternative, we were satisfied in terms of the respondent’s evidence

[533]Furthermore, we do not find that the alleged conduct had the purpose of

[534]We did not accept on the balance of probabilities that Dr Amersey said this to the claimant.

[535]Even if he had said this, although this would have amounted to unwanted conduct, we did not find on the evidence that Dr Amersey allegedly losing his temper and using bad language was related to the claimant’s race, where the claimant was raised, or where the claimant undertook his medical degree many years previously. We are not satisfied that there is a prima facie case showing that the alleged conduct was related to race.

[536]We did not accept that on the evidence before us that Dr Velmurugan’s Cardiac CT sessions were substituted for the claimant’s sessions. We set out our reasoning for this in relation to allegation 2.2.6 above, to which we refer.

[537]Even if this allegation were made out (which we did not accept), although this is likely to have amounted to unwanted conduct, we are not satisfied that the claimant’s sessions being allegedly replaced or substituted for Dr Velmurugan’s sessions was related to the claimant’s race, where he was raised, or where he did his medical degree many years previously.

[538]We are not satisfied that there is a prima facie case showing that the alleged - 97 -

[539]Alternatively, we were satisfied in terms of the respondent’s evidence and

[540]Furthermore, we do not find that the alleged conduct had the purpose of

[541]We did not accept the claimant’s allegation set out at 2.2.7 of the Agreed List of Issues was established as a matter of fact. We refer to our findings above in respect of this allegation. The claimant compares himself to Dr Barron Sin who he says was allowed to continue with nuclear cardiology. However, Dr Sin was employed from 2014 as a Specialty Doctor in Cardiology and his Job Description recognized that he would progress to independent nuclear scanning. His progression to nuclear scanning was recorded on his Job Plan.

[542]Even if we had found that the claimant’s allegations concerning the allocation of nuclear scan reporting to the claimant had been established on the facts, and that such conduct was unwanted, we would not have found on the evidence before us that any alleged act or omission by the respondent was related to the claimant’s race, where he was raised, or

[543]We are not satisfied that there is a prima facie case showing that the alleged

[544]Alternatively, we were satisfied in terms of the respondent’s evidence and

[545]Furthermore, we do not find that the alleged conduct had the purpose of

[546]We refer to the findings set out above in respect of allegation 2.2.9. It was also entirely expected that Dr Velmurugan would contact more senior management to seek guidance, rather than carrying out an informal investigation of their own volition, in the circumstances. Dr Velmurugan contacted Dr Davies and sought guidance. Following his request, Dr Velmurugan gathered some evidence regarding the complaint. Dr Amersey discussed the issue with Dr Rowland. It was a matter for more senior management to deal with the complaint.

[547]We are not satisfied that there is a prima facie case showing that the alleged - 98 -

[548]Alternatively, we were satisfied in terms of the respondent’s evidence and

[549]The respondent’s response was in accordance with what they thought was appropriate in light of a substantial complaint and in accordance with the relevant policy. The respondent’s response had no connection whatsoever with the claimant’s race, where he was raised, or where he undertook his medical degree many years previously. Although the claimant may have considered the respondent’s conduct to be unwanted, we do not find that the respondent’s conduct was related to race.

[550]Furthermore, we do not find that the alleged conduct had the purpose of

[551]Dr Rowland stated in his evidence that having consulted with the Associate of the description of events relating to this matter. Although the claimant may have considered the respondent’s conduct to be unwanted, we do not find that the respondent’s conduct was related to race.

[552]We are not satisfied that there is a prima facie case showing that the alleged

[553]Alternatively, we were satisfied in terms of the respondent’s evidence and

[554]The respondent’s response had no connection whatsoever with the claimant’s race, where he was raised, or where he undertook his medical degree many years previously.

[555]Furthermore, we do not find that the alleged conduct had the purpose of

[556]We refer to our earlier findings in respect of this allegation. We did not find that sending an email of this nature was unnecessary and unprofessional in the circumstances. This was an acceptable method of highlighting the - 99 - concerns raised. We did not consider that given the nature or the context of the email in question, that this could amount of unwanted conduct.

[557]We are not satisfied that there is a prima facie case showing that the alleged

[558]Alternatively, we were satisfied in terms of the respondent’s evidence and

[559]We find that the alleged treatment by the respondent was not related to race. We did not accept that the sending of this email had any connection with the claimant’s race, where he was raised, or where he undertook his medical degree many years previously.

[560]Furthermore, we do not find that the alleged conduct had the purpose of

[561]We reviewed the email of Dr Amersey dated 16 December 2019. We noted that he states that he was not certain exactly what happened and he makes clear he is prepared to take responsibility for his patients and decisions. He explains that there was some concern that a consultant changing patient data on CRS after a death may be a GMC reportable offence and the question of probity has been raised. However he also states that he would be grateful if consideration could be given to investigating this, taking formal statements and escalating to the GMC if appropriate.

[562]He was clearly concerned about the reported facts to him. There is nothing wrong or inappropriate about Dr Amersey raising the concerns and including or copying in Dr Rowland or Dr Noble.

[563]We are not satisfied that there is a prima facie case showing that the alleged

[564]Alternatively, we were satisfied in terms of the respondent’s evidence and

[565]Although the claimant may have considered the respondent’s conduct to be unwanted, we do not find that the respondent’s conduct was related to race.

[566]We did not accept that the sending of the email in question had any connection with the claimant’s race, where he was raised, or where he did his medical degree many years previously.

[567]Furthermore, we do not find that the alleged conduct had the purpose or effect of violating the claimant’s dignity or creating an intimidating, hostile, - 100 -

[568]We refer to our findings in respect of allegation 2.2.13 above.

[569]We do not accept that on the evidence any delay complained of by the claimant was unreasonable or that any alleged delay caused prejudice to the claimant in terms of the investigation. We did not find that this was unwanted conduct in the circumstances, nor did we conclude that the alleged conduct was related to race.

[570]We are not satisfied that there is a prima facie case showing that any delays in terms of the MHPS investigation were related to race.

[571]Alternatively, we were satisfied in terms of the respondent’s evidence and

[572]Any allegations relating to delay did not, on the evidence before us, have any connection with the claimant’s race, where he was raised, or where he

[573]Furthermore, we do not find that the alleged conduct had the purpose of

[574]We refer to our findings above in respect of the allegation 2.2.14.

[575]Dr Green had asked for the claimant’s release. Dr Das’s role appeared to be limited to agreeing to Dr Green’s request. It may have been difficult for Dr Das not to agree in the circumstances of the COVID-19 pandemic.

[576]There was still cardiology work to be performed but it was less, and they could manage without the claimant in the context of the pandemic. Consultants who were performing solely cardiology work were expected to assist with the pandemic wherever possible.

[577]Although we had regard to the email correspondence between the claimant and the respondent at the relevant time, we did not find that the alleged treatment by the respondent amounted to unwanted conduct in the circumstances.

[578]We are not satisfied that there is a prima facie case showing that the alleged - 101 -

[579]Alternatively, we were satisfied in terms of the respondent’s evidence and

[580]Accordingly, we did not find that the alleged treatment was related to race. We found that the claimant’s treatment did not, on the evidence before us, have any connection with the claimant’s race, where he was raised, or

[581]Furthermore, we do not find that the alleged conduct had the purpose of

[582]We refer to our findings in respect of this allegation earlier in this Judgment.

[583]Accordingly, and in the alternative, the claimant’s complaints of harassment related to race would have been dismissed for the reasons set out above. Victimisation

[584]We note that two of the protected acts relied on at paragraphs6.1.1 and

6.1.2 were deleted from the Agreed List of Issues prior to this Hearing. The claimant therefore relies on the one remaining alleged protected act which is set out at paragraph

6.1.3 of the Agreed List of Issues in the following terms: “Saying, in an email of 25 January 2017, ‘Sorry Simon but the JP has to be fair and mutually agreeable instead of appearing to be imposed[.] If all others are doing 1 in 3.2 COW weeks and I am accepting to continue with 1 in 2 (previously 1 in 1.6) then that may be discriminatory…’.”

[585]We did not find that the alleged protected act set out at paragraph 6.1.3 of the Agreed List of Issues was a protected act in terms of section 27 of the EqA. The simple fact that the claimant used the term “may be discriminatory” in his email does not mean that the act is a protected act in terms of section 27 of the EqA.

[586]The claimant’s representative submits that in order to sustain a prima facie case of victimisation it is for the claimant to establish knowledge of the protected act and reference is made to the Judgment of Simler P (as she then was) at [28] in Chief Constable of Kent Police v Bowler

UKEAT/0214/16/RN

[587]The claimant’s representative also points out that a claimant must establish that it is the protected element which has to have a material influence on the decisions of the respondent i.e. the allegations of an EqA contravention: Slade LJ at 546-8 in Aziz v Trinity Street Taxis Ltd

[1988] ICR 534

endorsed by Underhill LJ at [70] in Onu v Akwiwu

[2014] ICR 571

. - 102 -

[588]We are reminded that at paragraph 27 of Durrani v London Borough of Ealing

UKEAT/0454/2013

, Mr Justice Langstaff stated: “27. This case should not be taken as any general endorsement for the view that where an employee complains of “discrimination” he has not yet said enough to bring himself within the scope of Section 27 of the Equality Act. All is likely to depend on the circumstances, which may make it plain that although he does not use the word “race” or identify any other relevant protected characteristic, he has not made a complaint in respect of which he can be victimised. It may, and perhaps usually will, be a complaint made on such a ground. However, here, the Tribunal was entitled to reach the decision it did, since the Claimant on unchallenged evidence had been invited to say that he was alleging discrimination on the ground of race. Instead of accepting that invitation he had stated, in effect, that his complaint was rather of unfair treatment generally.”

[589]In addition, the case of Fullah v Medical Research Council and others

UKEAT/0586/12/RN

is referred to by the claimant’s representative who summarises the key findings of the EAT as follows. “…the Tribunal had found that where Mr Fullah had raised complaints saying that his managers had bullied and harassed him had not done a protected act for the purposes of S.27. There was no reference to a protected characteristic anywhere in the Claimant’s written complaints. In the EAT HHJ McMullen QC stated that in the field of employment law context is everything. The EAT held that the Tribunal was entitled to come to the conclusion that there was no protected act.”

[590]We considered the entirety of the relevant email relied upon by the claimant and the surrounding context including the protracted discussions relating to the claimant’s job planning and the remainder of the emails in that chain (and all the relevant documents and witness evidence before us relating to the same). There was no indication that the claimant was raising or intending to make a claim (or raise any complaint or make any allegation) under the EqA. On the evidence before us, this email did not prompt the respondent to believe that any such claim or complaint was being made or intended. The respondent’s Human Resources team were advising management in relation to that email and none of the individuals involved in the job planning process believed from that email that the claimant was intimating any claim or doing anything under or by reference to the EqA. The email was sent in response to a chain of emails in which acute medicine indicated that they would not be in a position to reduce the claimant’s COWs (they had resourcing/funding issues).

[591]We conclude that the claimant’s reference to “may be discriminatory” is properly to be construed (viewed in the proper context) as the claimant simply complaining about the general unfairness in terms the allocation of his duties. - 103 -

[592]We also noted that the claimant made no reference to race discrimination in the relevant email (or in terms of any relevant correspondences relating to the same or in any meetings or conversations at the material time). The claimant indicated in cross examination that the fact he was alleging race discrimination would have been obvious from his previous interaction with Dr Amersey (as explained above we did not accept the claimant’s evidence in this regard). We noted that the claimant’s ET1 Form indicated that he was making complaints of both race discrimination and age discrimination. It is unclear why, if the claimant genuinely was seeking to allege in that email that the respondent was unlawfully discriminating against him, he did not (at least) specify the type of discrimination he was purportedly alleging. The claimant was in receipt of advice from the BMA at around that time and he could have sought advice in respect of the content of any emails in relation to such an important issue.

[593]In the event that we are wrong to so find, we have proceeded to determine the remaining issues.

[594]We did not find that shortly before 29 September 2019 Dr Amersey encouraged false accusations to be made by Dr Ahmet, who was at that time, a cardiology registrar. The claimant’s allegation is therefore not made out on the evidence before the Tribunal. In any event, we considered that Dr Amersey’s email to Dr Ahmet suggesting that the allegations to be put in writing were good practice, and this had no connection whatsoever with the claimant’s alleged protected act. We have taken account of Dr Ahmet’s evidence and Dr Amersey’s evidence in this regard, which we accepted.

[595]The claimant relies on the fact that the allegations made against him were escalated by Dr Amersey and Dr Velmurugan, without any prior inquiry or local investigations between October and December 2019 and that the claimant was not made aware of the allegations until 13 December 2019. In terms of our findings, we conclude that the reason why they were escalated was because of the nature and seriousness of the complaints that were made, and that their escalation had no connection whatsoever with the claimant’s email of 25 January 2017.

[596]Dr Amersey and Dr Velmurugan had not seen the email relied on by the claimant on the evidence before us.

[597]Although Dr Velmurugan did not give evidence, she had satisfactory reasons for not doing so as explained in Ms. Coutts’s witness statement and there were contemporaneous emails to which we were referred (which we took into account where relevant).

[598]We noted that the alleged protected act took place over two years prior to the events relating to this allegation, and therefore some considerable time after the complaint was made by Dr Ahmet. - 104 -

[599]Dr Rowland stated in his evidence that having consulted with the Associate of the description of events relating to this matter. However, in any event, Dr Simon Sporton was not copied into the email dated 25 January 2017 and there was no evidence before us that this was forwarded to him or that he was made aware of the content of the claimant’s email otherwise.

[600]In any event it was well within Dr Rowland’s judgment and purview to decide on a formal MHPS in the circumstances (and to appoint Dr Sporton as Case Manager).

[601]We find that the decision to start a formal MHPS investigation had no connection whatsoever with the claimant’s email dated 25 January 2017, which was sent over two years before the start of the MHPS investigation.

[602]The allegation at paragraph 6.2.4 of the Agreed List of Issues was deleted. We were therefore not required to determine this matter.

[603]We accepted that the MHPS investigation outcome was provided only in July 2020. The Agreed List of Issues states that Dr Helen Drewery may be responsible for the delay. However, the claimant is not sure who was responsible for any delay and in any event, she was not copied into the email dated 25 January 2017 (and there was no evidence before us that this email was forwarded to her or that she was made aware of it otherwise).

[604]We were satisfied that any delay on the part of Dr Helen Drewery (or any other individuals although the claimant does not assert that anyone else had caused the delay) had no connection whatsoever with the claimant’s email dated 25 January 2017, which was sent over three years prior to the investigation outcome.

[605]The reasons for the delay were apparent from the investigation material which included the significant number of witnesses and issues surrounding the COVID-19 pandemic which was significantly impacting upon normal duties within the hospital at that time.

[606]Dr Simon Sportan confirmed to Dr Rowland by letter on 15 June 2020 that the MHPS investigation had concluded and that there was insufficient evidence to support the allegations made against the claimant (Hearing Bundle pages 1098, 1101-1102). Dr Helen Drewery’s MHPS investigation report was dated 04 May 2020 (Hearing Bundle pages 1073-1087, 1099). - 105 - We are satisfied that any delays in the process had no connection whatsoever with the claimant’s email dated 25 January 2017.

[607]The allegation at paragraph 6.2.6 of the Agreed List of Issues was deleted. We were therefore not required to determine this matter.

[608]For the above reasons, in the alternative, we would have concluded that the claimant’s victimisation complaints are not well founded, and accordingly, we would have dismissed those complaints.

Conclusion

[609]The claimant’s complaints of(i) direct race discrimination as set out at paragraphs 2.2.8, 2.2.15 and 2.2.16 of the Agreed List of Issues,

(ii) indirect race discrimination as set out at paragraphs 4.1.7.2 and 4.4.7 (insofar this relates to paragraphs 2.2.15 and 2.2.16 of the Agreed List of Issues) of the Agreed List of Issues, and

(iii) harassment related to race as set out at paragraph 5.1 (insofar as this relates to paragraphs 2.2.8, 2.2.15 and 2.2.16) of the Agreed List of Issues having been withdrawn by the claimant, are dismissed under Rule 51 of the Rules contained in The Employment Tribunal Procedure Rules 2024.

[610]The claimant’s complaints of direct race discrimination in relation to paragraph 2.1.19 of the Agreed List of Issues and harassment related to race relating to paragraph 5.1 (insofar as this relates to paragraph 2.1.19 of the Agreed List of Issues) of the Agreed List of Issues are not well founded and they are hereby dismissed.

[611]The remainder of the claimant’s complaints are dismissed on grounds of time bar. They were not presented to the Tribunal within the relevant time limit set out at section 123(1)(a) of the EqA, there are no acts or omissions we have found that are both in time and actionable so as to form conduct extending over a period in terms of section 123(3)(a) of the EqA, and in any event, it is not just and equitable to extend time (section 123(1)(b) of the EqA. If we were wrong to so find, and therefore in the alternative, we would have found that the claimant’s remaining complaints are not well founded, and we would have dismissed them for the reasons set out above.