Ms O Ba v North East London NHS Foundation Trust: 3206215/2021

EMPLOYMENT TRIBUNALS

Case No 3206215/2021

Between

Ms O BaClaimant

North East London NHS Foundation TrustRespondent

Before

Employment Judge H Travers

Members

Ms A. Berry

Ms S. Harwood

Date 4 August 2023

JUDGMENT

All claims are dismissed. For the avoidance of doubt, this includes the complaints of:-(a) Direct discrimination on the grounds of race;

(b) Harassment on the grounds of race;

(d) Victimisation. JUDGMENT having been sent to the parties on 08 August 2023 and reasons having been requested in accordance with Rule 62(3) of the Rules of Procedure 2013.

REASONS

[1]The record of a preliminary hearing dated 11 April 2022 set out the issues for determination at schedule A. On 4 August 2022 the claimant made an amendment application and consequent upon the outcome of that application the parties agreed an amended list of issues which was sent to the tribunal office at 10.16a.m. on the first day of this hearing. This judgment addressed the matters in the parties’ agreed list of issues.

[2]The claimant makes complaints of:(a) Direct discrimination on the grounds of race;

(b) Harassment related to race;

(d) Victimisation.

[3]The tribunal must also determine whether the various complaints have been made within the relevant statutory time limit and, if not, whether the time limit should be extended under the applicable test for extension of time.

[4]There is one issue which is in dispute as to whether it should even appear on the otherwise agreed list of issues. This issue appears at paragraph 15(J) of the document. This alleges that the claimant suffered a detriment by: ‘The suspension of the Claimant from 22 September 2021’.

[5]It is said on behalf of the respondent that this detriment cannot be considered by the tribunal, because it has already been struck out. On 11 April 2022, the suspension was one of a number of allegations of direct race discrimination which EJ Burgher stuck out as an abuse of process. By an application to amend dated 04 August 2022 seeks to reintroduce it, under a different legal label.

[6]In the circumstances, the respondent strongly argues that the underlying factual basis of an allegation which has been struck out as an abuse of process, cannot simply be revived by the claimant applying a different legal label to it. It is said by the respondent that because of the strike out the tribunal has no jurisdiction to consider the ongoing suspension.

[7]In this case the new labels under which the claimant invites the tribunal to consider the suspension are: detriment because of victimisation; detriment on the ground of protected disclosure; and, unwanted conduct related to race.

[8]By letter dated 25 July 2023, the parties made a late joint application to vacate this final hearing and to utilise the first day of the hearing into a preliminary hearing to deal with issues of case management. By a reasoned written decision dated 26 July 2023, the application for an adjournment was rejected by Acting Regional Employment Judge Burgher.

[9]At the outset of this hearing the timetabling of the evidence during the hearing was discussed with the parties’ representatives. The tribunal is grateful to both counsel for their focussed questioning which enabled all relevant issues to be explored within the time estimate. The litigation

[10]The early conciliation certificate in this case states that the date of receipt by ACAS of the Early Conciliation Certificate was 25 August 2021. The EC certificate was issued on 16 September 2021. This claim was received by the tribunal on 03 October 2021.

[11]At the preliminary hearing on 11 April 2022 the parties agreed that this history means that the relevant time limits in respect of this claim result in events pre-dating 26 May 2021 being prima facie out of time. The tribunal must consider whether to extend that time

[12]In respect of the allegations of race discrimination, harassment and victimisation the claimant counters the time point by arguing that alleged acts which pre-date 26 May 2021 constitute a course of conduct which extends over the relevant period such as to make them fall within the statutory time limits. In the event that the tribunal does not agree with this analysis the claimant invites the tribunal to find that it would be just and equitable to extend the time limits.

[13]It is not disputed that the whistleblowing claim was presented within the statutory time limit.

[14]After the presentation of her claim on 3 October 2021, the claimant presented further claims concerning her employment on 19 January 2022 and 28 February 2022. The second and third claims were in identical terms.

[15]Case progression was considered at the preliminary hearing on 11 April 2022. On that date the parties agreed that the claim presented on 19 January 2022 should be rejected because it had an incorrect Early Conciliation Certificate number. Consequently it was dismissed by consent. The claimant also withdrew the breach of contract claim which was raised in the claim presented on 03 October 2021 and it was dismissed on withdrawal.

[16]At the preliminary hearing the tribunal went on to carefully analyse the content of the final claim which had been presented on 28 February 2022. Employment Judge Burgher concluded that the claim should be struck out in its entirety and dismissed. The claim was struck out.

[17]On 4th August 2022 the claimant applied in writing to amend her claim.

[18]The proposed amendments are contained in the list of issues under paragraphs 15(i)- (q).

Findings of Fact

[19]The findings of fact set out below have been made following consideration of the pleadings, witness statements, oral evidence, and other documents to which the tribunal has been referred. The tribunal heard evidence from: For the claimant• The claimant For the respondent

• Dr Vincent Perry, Deputy Medical Director

• Dr Caroline Allum, Executive Medical Director

• Pavanjit Devsi, Director Procurement and Planning

• Wellington Makala, Executive Chief Nursing Officer

[20]The findings of fact have been made on the balance of probabilities.

[21]Many of the specific factual allegations and alleged detriments contained within the agreed statement of issues have been included in the findings of fact as headings which are intended to assist reference within what are long reasons. Other issues of general relevance have also been included under headings which do not relate to the agreed statement of issues. No heading however should be regarded as a strait jacket. Inevitably, facts relevant to certain allegations/alleged detriments/issues may appear under more than one heading. The findings should be read across where appropriate.

The facts

[22]The respondent is a health trust with in excess of 6,000 employees. Dr Caroline Allum is the Executive Medical Director of the respondent. Dr Vincent Perry is employed by the respondent as the Deputy Medical Director.

[23]The claimant is an experienced human resources [‘HR’] professional. She is a member of the Chartered Institute of Personnel and Development and uses the postnominal title ‘MCIPD’ in her business correspondence. The claimant has worked for six different NHS trusts. The claimant describes herself as a black African, Frenchspeaking woman.

[24]In 2018/19 the respondent identified a need to establish a medical staffing department with a specialist HR function. It is a feature of the department that it is managed under the portfolio of the medical director and not general HR.

[25]On 02 March 2020 the claimant commenced employment with the respondent as Head of Medical HR. It is a band 8a position. The claimant remains employed by the respondent but has been suspended from work since 22 September 2022.

[26]Dr Allum describes the role of Head of Medical HR as comprising the operational management of the medical staffing team, general management, assisting with recruitment and working on medical staffing projects for the respondent.

[27]On appointment the claimant reported to the Deputy Medical Director Dr Perry, who in turn reported to the Executive Medical Director, Dr Allum. Interview leading to claimant’s appointment

[28]Dr Perry was a member of the interview panel which recommended the claimant for appointment.

[29]On 14 January 2021 during the course of an investigation interview into a collective grievance against the claimant and one other which had been submitted by three band 4 staff in the Medical HR team, Dr Perry was asked whether the claimant was the outstanding candidate on the day. He said this in reply: ‘I had a little bit of reservation but [my interviewing colleague] convinced me that medical staffing managers were hard to get. I did have some concerns about Oumouly’s communication but based on the answers she gave, it appeared that she had a good knowledge of medical staffing…Sometimes she talked too fast and had an accent that is sometimes difficult to hear, but I think as we got through the interview I got used to the way she spoke’. Dr Perry confirmed this account to the tribunal.

[30]The claimant alleges that she: ‘…was not the right candidate for Dr Vincent Perry because of my communication or accent during my interview but he had no choice but to appoint as both HR and BME representative were present’ [claimant’s witness statement para 35].

[31]The tribunal finds that Dr Perry interviewed the claimant on her merits as a candidate. He counterbalanced his expressed concern about the claimant’s communication with his focus on the specialist knowledge which she could bring to the Medical HR team. This is evidenced in his comment that: ‘…it appeared that she had a good knowledge of medical staffing’. He was setting up a new department and wanted the best qualified candidate.

[32]Dr Perry did not fixate on his initially poor impression of the claimant’s communication skills but was prepared to alter his position on the basis of what he heard during the entire interview. He commented: ‘…but I think as we got through the interview I got used to the way she spoke’.

[33]Dr Perry’s open appreciation of the claimant’s knowledge and his willingness to move from his initial poor impression of the claimant’s communication skills in response to the claimant’s performance in interview, do not support the suggestion that as an interviewer he discriminated on the grounds of the claimant’s race. On the contrary, this suggests an interviewer weighing carefully the merits of a candidate for an important post, a candidate whose appointment Dr Perry ultimately supported. Allegation 5(a)(xii) – July/August 2020 Dr Perry provided false and fabricated information regarding the Claimant’s relationship with other managers, recruitment practices and leadership style that he had never raised as a concern about as my line manager – para 19 PoC

[34]In support of this allegation counsel for the claimant in his closing submissions referred the tribunal to paragraph 38 of the claimant’s witness statement which states: ‘Dr Perry and Dr Allum provided false and fabricated information about me regarding my relationship with other managers, recruitment practices and leadership style that he had never raised as a concern with me when he was my line manager.’

[35]Paragraph 38 of the witness statement provides no detail as to what was the alleged: ‘false and fabricated information’ or to which entity or person it was conveyed. The information in paragraph 38 falls far short of what is required to provide a secure foundation for a finding of fact.

[36]Under cross-examination, the claimant was to suggest information was provided to Peter Carter of the Medical Education Team. The issue highlighted by the claimant was to do with the provision of a laptop. This was not mentioned in the claimant’s witness statement, she told the tribunal that she: ‘…did not feel that I had to put it in’. Similarly, it is not mentioned in the list of issues.

[37]The order directed the filing of witness statements included the following: ‘The witness statement should set out all of the evidence of the relevant facts which that witness intends to put before the Tribunal.’ Reference to the laptop should have been included in the claimant’s witness statement, if relevant.

[38]In all the circumstances, and in the light of the evidence and information available to the tribunal, the evidence the claimant provided under cross-examination is not sufficient to ground the finding sought.

[39]The claimant suggests that Dr Perry never raised a concern when he was her line manager about issues including her: ‘leadership style’. The tribunal finds that this is not true.

[40]Dr Perry’s notes of one-to-one meetings with the claimant are included within the bundle. The claimant does not accept the accuracy of the notes. The tribunal finds that the notes are far from verbatim. The tribunal accepts however that they do reflect the tenor of the discussion which the claimant had with Dr Perry.

[41]Dr Perry’s notes for 20 July 2020 record: ‘…Feels that working 24/7…Frustration seems to be directed at Nana. “Needs to be urgently discussed”. Tryied [sic] to explain to Oumouly to not talk down to others, at which she responded that she is not here for chit chat, also not here to do admin. Not here to be friendly in any way. Discussion needs to be made and that is it. “I do not have time”. “I am a high achiever”. Informed needs to bring peopel [sic] with her on the journey (collaborative) and not be authoritarian. “Thought her leadership style is transactional”. Discussion went round and round, not going into any direction. Asked to look at the way the document is written: we do this, you “will” be doing this….’

[42]It is clear that Dr Perry did raise with the claimant issues concerning her communication and leadership style when he was still her line manager.

[43]The evidence and information that the tribunal has read and heard falls far short of what is necessary to support the finding sought at allegation 5(a)(xii) in the list of issues. Allegation 5(a)(i) – On 20 August 2020, Dr Perry encouraged the collective grievance as a revenge for his broken line management with the HRD and for the claimant’s refusal to accept/take ownership of the Local Clinical Excellence Awards options to cover up for him – para 15 PoC.

[44]By August 2020 there were 5 members of staff working in the Medical HR department. The claimant was the most senior member of the department as a band 8a employee. Her colleagues comprised a Medical Resourcing Manager at band 7, and three Medical Resourcing officers at band 4. It was a small team.

[45]Anamika Dwivedi was the Medical Resourcing Manager. She had been recruited by the claimant after the claimant’s appointment. The medical resourcing officers were already in post at the date of the claimant’s appointment.

[46]By August 2020 relationships between the band 4 employees on the one hand, and the claimant and Ms Dwivedi on the other, had deteriorated to the point that a collective grievance was raised by the band 4’s about the conduct of both the claimant and Ms Dwivedi. The allegations raised included bullying and harassment, and the outcomes sought included that the claimant and Ms Dwivedi: ‘…be either redeployed or dismissed’.

[47]In a HR department consisting of 5 members of staff, a grievance raised by the 3 most junior employees about alleged bullying and harassment of them by the 2 most senior members of staff presented a profound crisis for management to deal with.

[48]The grievance was addressed to Dr Perry, with the subject line: ‘Re: Raising a Formal Allegation’. It followed an email sent by one of the medical resourcing officers a week earlier which was addressed to Dr Perry and Dr Allum. The author of the email explained that she had been off sick due to the stress of caring for her mother who had terminal brain cancer. The author detailed the physical and emotional impact of the stress which she was under. She complained about Ms Dwivedi’s actions in response to her illness and she commented: ‘I am going through the worst thing I have ever had to deal with. I am losing my mum, my only parent, at a very young age. I didn’t think I had to go into detail about my mum’s condition as I’m sure people know how devastating brain cancer is but with Anamika and Oumouly, I have felt like I’ve had to spell it out. In all honesty, they have made it clear how little they care about my situation.’

[49]The claimant was notified of the outcome of the collective complaint of bullying and harassment by a letter dated 27 May 2021. The four and a half page long letter details its reasons and mitigating factors in making the following findings:• Allegation 1: The management style of the claimant is bullying, rude and aggressive, and displays controlling and intimidating behaviour – Upheld;

• Allegation 2: The team are overloaded with work, unsupported and are set unrealistic targets and deadlines and are never recognised – Upheld;

• Allegation 3: The claimant devalues the team’s contributions; and dictates what will be happening without consulting the team and finding out if their assessment of facts are accurate – Upheld;

• Allegation 4: The behaviour of the claimant has caused fear within the team – Upheld;

• Allegation 5: The claimant abused her authority – Upheld;

• Allegation 6: The communication of the claimant is poor in that she gives conflicting instructions/lack of clarity – Partially upheld;

• Allegation 7: The claimant displays ineffective/incompetent management – Upheld;

• Allegation 8: Recruitment Practices not followed in line the Trust Recruitment & Selection policy with leading to progression of career being blocked and more harassing behaviour towards the team – Not Upheld.

[50]In her witness statement dated 27 July 2023, the claimant alleges that: ‘The collective grievance was fabricated because I was not covering up Caroline Allum and Vincent Perry malpractices, and I believe that on 20th August 2020 Dr Perry encouraged the collective grievances as a form of revenge/retaliation for his broken line management with the HRD and for our conflicting values and priorities. Particularly for the pay audits he sought [sic] he was above it, not accepting to take ownership of the Local Clinical Excellence Awards options to cover up for him.’

[51]There is no evidence that the collective grievance was fabricated. The evidence indicates that it was the outcome of concerns independently expressed by members of staff. The complaint was investigated, and the claimant’s conduct found to be seriously wanting in a number of respects.

[52]There is no evidence that Dr Perry encouraged the collective grievances, whether as a form of revenge, retaliation, or otherwise. One of the medical resourcing officers had discussed their concerns with Dr Perry and he had explained that the concerns could be dealt with formally or informally, but Dr Perry did not encourage either route.

[53]The tribunal notes that at para 38 of her witness statement, the claimant supplies a reason for Dr Perry’s alleged conduct in respect of the collective grievance which is entirely distinct from discrimination on the grounds of race. The claimant says that it was because she: ‘…was not covering up Caroline Allum and Vincent Perry malpractices’, and that: ‘…Dr Perry encouraged the collective grievances as a form of revenge/retaliation for his broken line management with the HRD and for our conflicting values and priorities’.

[54]The claimant’s unnuanced assertion that the grievance was fabricated, suggests a lack of insight on the claimant’s part into the potential impact of her behaviour on others.

[55]If the claimant is correct that: ‘The collective grievance was fabricated because I was not covering up Caroline Allum and Vincent Perry malpractices…’, it would have required an inherently improbable level of collusion between Caroline Allum, Vincent Perry and the three band 4 employees who raised the grievance. The tribunal heard no evidence which could lead it to this conclusion.

[56]The claimant appealed the collective grievance outcome. She raised seven grounds of appeal. The claimant was notified of the outcome of her appeal on 29 December 2021. Three of the grounds were partially upheld, and four were not upheld. The panel however upheld each of the findings on the individual allegations set out in the collective grievance outcome letter. The panel noted that the claimant is: ‘…an experienced senior manager who should have been aware of the impact of your actions and behaviours on your colleagues’.

[57]The panel took into account several mitigating factors and overturned the decision stated in the original outcome letter, that the matter should proceed to a formal disciplinary hearing. Nonetheless the panel expressed concerns about the claimant’s management style and professional behaviour and made recommendations for a plan to be put in place to ensure that similar issues should not arise again. A number of recommendations were made including that the claimant should attend the respondent’s people management training, the respondent’s bullying and harassment training, and the respondent’s compassionate leadership training. Allegation 5(a)(xiii) – In July/August 2020, despite expressly asking the claimant to invite a colleague (NO) [Nana Owusu] to a meeting, Dr Perry blamed the claimant for excluding that person and used that as an evidence of abuse of power for the collective grievance – para 18 PoC

[58]In July 2020 Nana Owusu was the respondent’s Head of Medical Education and Peter Carter was the Director of Medical Education. At that time the Medical Staffing team was preparing for the induction of junior doctors who were due to start work in August 2020.

[59]Preparation for their induction required liaison between the Medical Staffing team and the Medical Education team. To this end, on 14 July 2020 Animika Dwivedi from the Medical Staffing team sent an email to Nana Owusu, Peter Carter, and the claimant asking them to confirm their availability for a meeting the next day to discuss the junior doctors’ roles and responsibilities. The email was cc’d to Dr Perry.

[60]Nana Owusu replied promptly to say that the suggested times did not work for her. The claimant then emailed all the recipients of the email to ask them to: ‘…advise on your availabilities, Anamika and I will flex’.

[61]On 14 July 2020 Dr Perry’s notes record that he received a telephone call from the claimant in the early evening of 14 July 2020. He records: ‘Oumouly raised concerns about Medical Education’s input in the August induction. They appear very relaxed and not appreciating all the stress that Medical Staffing is currently under. Adviced [sic] Oumouly to call an emergency meeting between Medical Staffing and Medical Education to be clear who is doing what for the induction as we cannot afford for this to be done inappropriately. Medical Staffing under immense pressure at the moment to get the starter lists ready.’

[62]When this note was put to the claimant in cross-examination, she said that she couldn’t recall whether Dr Perry told her to call an emergency meeting between the two teams. The claimant said that she couldn’t remember, but that she was not saying that it didn’t happen.

[63]In the circumstances the tribunal is satisfied that the note presented by Dr Perry accurately reflects advice that he gave the claimant on 14 July 2020, namely that she should call an emergency meeting between Medical Staffing and Medical Education.

[64]On 17 July 2020 the claimant emailed Dr Carter and Dr Perry with a document for discussion at the meeting. Dr Carter immediately responded to the claimant to point out that she had missed Nana Owusu from the email circulation list. The claimant responded to Dr Carter on 18 July 2020 and stated that: ‘The initial discussion is just with us and perhaps we could include Bernard Scully. A further discussion will take place with Nana and Anamika’.

[65]Dr Carter spoke with Dr Perry on 20 July 2020 and told him that in his view it was important that Nana Owusu should be involved in any discussion about improving working relationships.

[66]At 11.31 on 20 July 2020, Dr Perry sent out an invitation to a Webex meeting on 24 July 2020 to the claimant, Nana Owusu, and Dr Carter.

[67]Dr Perry’s notes record, and the tribunal accepts, that when he subsequently spoke with the claimant on 20 July 2020 and explained that Dr Carter thought that Nana Owusu should be involved in the meeting, the claimant told Dr Perry that he needed to inform Dr Carter that: ‘…this was for a discussion between us first’.

[68]During the conversation with Dr Perry on 20 July 2020, the claimant expressed the view that Dr Perry should have restricted the meeting between the Medical Education team and the Medical Staffing Team to managers only in the first instance. In practical terms this would have meant that Nana Owusu and Animika Dwivedi would not be at the meeting.

[69]It was in the course of this conversation between the claimant and Dr Perry on 20 July 2020, that the claimant made the comments about her leadership style which are recorded earlier in these reasons.

[70]During cross-examination the claimant initially insisted that there was an email from Dr Perry to her telling her not to invite Nana Owusu to the meeting. When counsel for the respondent asserted that there was no such email, the claimant ultimately stated that she was not aware of an email from Dr Perry telling her not to invite Nana Owusu. Instead, the claimant said that Dr Perry told her over the phone.

[71]Dr Perry denies that he told the claimant not to invite Nana Owusu to the meeting. Dr Perry says in his witness statement at paragraph 56 that: ‘It is possible that I have initially been persuaded by the claimant that NO’s attendance was not necessary and this may be why NO was not invited by the Claimant’. At no point has Dr Perry accepted that he told the claimant not to invite Nana Owusu to the meeting.

[72]There are two documents composed by the claimant which bear consideration in this context.

[73]The first document comprises notes which the claimant says that she made of a oneto-one meeting which she had with Dr Perry between 8.30 – 9.30 on the morning of 20 July 2020. The notes include the following: ‘Roles and responsibilities with MED ED? Petr [sic.] is not happy that Nana was not CCd. I would welcome an email from you to Peter confirming that you are the one who requested for Nana and Anamika not to be copied’.

[74]In reading the entirety of this document, it is difficult to identify clearly what parts constitute a record of Dr Perry’s alleged contributions. While it is noted that the claimant would: ‘…welcome an email from you to Peter confirming that you are the one who requested for Nana and Anamika not to be copied’, no reply at all from Dr Perry is recorded in response to this request.

[75]Informal notes of a meeting inevitably are not a transcript and should not be judged by those standards. In most cases the notes are likely to be an incomplete and imperfect record. Nonetheless, the notes adduced by the claimant are curious in that they record the gist of what the claimant suggests that she said, but do not record any part of Dr Perry’s response. On the claimant’s account she made a specific request of Dr Perry that he should email Peter. It is odd that, having deemed the request to be noteworthy, that the claimant does not record, even in summary, Dr Perry’s response to the request.

[76]In all the circumstances, the tribunal does not regard the claimant’s note of a request that Dr Perry should email Peter: ‘…confirming that you are the one who requested for Nana and Anamika not to be copied’, as evidence that Dr Perry did in fact request that Nana not be copied.

[77]The second document is an email sent by the claimant to Dr Perry on 23 July 2020 in response to an email sent by him earlier that day to both herself and Ms Dwivedi. In his email Dr Perry asked: ‘Are you happy for me to share this document with Peter and Nana ahead of tomorrow’s meeting?’. The claimant responded: ‘I initially sent the document to you and Peter and did not copy Nana as per your advice’.

[78]The claimant’s witness statement at paragraph 36 is also of interest. Set out below is the entirety of what the claimant had to say in her witness statement about the Nana Owusu issue: ‘In July/August 2020 despite expressly asking me not to invite a colleague, Nana Owusu to a meeting, Dr Perry blamed me for excluding that person, and used that as evidence of abuse of power for the collective grievance. Page 321’.

[79]Page 321 is a reference to the page in the hearing bundle where the claimant’s email to Dr Perry dated 23 July 2020 is reproduced. This is the email which makes the assertion that the claimant: ‘…did not copy Nana as per your advice’.

[80]Dr Perry’s ‘advice’ is not set out. The claimant also does not explain Dr Perry’s apparent rationale for the advice. The claimant has provided no account of any discussion between the claimant and Dr Perry, or query from the claimant, as to why Nana Owusu should be excluded from the meeting.

[81]It is significant that at no point has the claimant identified with precision when it was that Dr Perry is said to have issued the instruction that Nana Owusu was not to be invited to the meeting. The claimant’s witness statement simply refers to Dr Perry: ‘…expressly asking me not to invite a colleague, Nana Owusu to a meeting…’.

[82]The claimant’s oral evidence about the means of communication of Dr Perry’s alleged instruction was inconsistent. At first the claimant said that the message was delivered by email, later the claimant said that Dr Perry told her over the phone.

[83]Under cross-examination, Dr Perry maintained that he didn’t tell the claimant not to invite Nana Owusu. Paragraph 56 of Dr Perry’s witness statement leaves open the possibility that he may: ‘…have initially been persuaded by the claimant that NO’s attendance was not necessary and this may be why NO was not invited by the Claimant’. If this happened, the position advanced by Dr Perry at paragraph 56 of his statement is that it was the claimant who acted as a persuader in the decision not to invite Nana Owusu.

[84]There is no adequate evidence to support the claimant’s assertion at paragraph 36 of her witness statement that: ‘…Dr Perry blamed me for excluding [Nana Owusu], and used that as evidence of abuse of power for the collective grievance’. Dr Perry was not party to the collective grievance and the claimant did not identify where the Nanu Owusu episode formed part of the collective grievance.

[85]Under cross-examination Dr Perry said that there was no blame placed on anyone for excluding anyone from the meeting, and he went to state forcefully that it is: ‘…completely incorrect…’ that he had blamed the claimant for Nana Owusu’s exclusion from the meeting.

[86]The context of the claimant’s use of the word ‘blame’ implies that Dr Perry made something akin to a declaration of fault on the part of the claimant. The email correspondence does not support this. Dr Carter’s email of 17 July 2020 was short and to the point: ‘you’ve missed Nana from the cc list’. Subsequently Dr Perry simply sent out an invitation to a meeting on 24 July 2020 which included Nana Owusu. This was simply Dr Perry addressing a practical problem which had arisen. In doing so he was not casting blame at the claimant.

[87]It is notable that in both the claimant’s email to Dr Perry dated 23 July 2020 and in her own notes of what she says was the conversation between herself and Dr Perry on 20 July 2020, the claimant does not allude at any point to Dr Perry blaming her for Nana Owusu’s exclusion. The focus appears to be an anxiety on the claimant’s part that Dr Carter should know that she was not responsible for the failure to invite Nana Owusu to the meeting.

[88]What the claimant is saying to Dr Perry in effect is: ‘you were responsible for not inviting Nana Owusu and I would like Dr Carter to know that’. This is entirely different from what is now alleged by the claimant, namely that Dr Perry ‘blamed’ her for failing to invite Nana Owusu to the meeting.

[89]There is a stark difference between the claimant and Dr Perry as to whether or not he instructed her not to invite Nana Owusu to the meeting. The claimant is adamant that Dr Perry did issue such an instruction, while the furthest that Dr Perry will go is to state that he may: ‘…have initially been persuaded by the claimant that NO’s attendance was not necessary and this may be why NO was not invited by the Claimant’.

[90]Taking Dr Perry’s scenario at its highest, if this occurred the decision not to extend an invitation to Nana Owusu was initiated, driven, and implemented by the claimant. It was not a matter of Dr Perry instructing the claimant, but of the claimant persuading Dr Perry to acquiesce in the claimant’s decision that Nana Owusu should not be invited to the meeting. In the tribunal’s view, this scenario could not properly be described as Dr Perry ‘expressly instructing’ the claimant not to extend an invitation to Nana Owusu. Such a description would be incomplete and misleading.

[91]On the evidence, the tribunal is not persuaded on the balance of probabilities that Dr Perry either:(a) expressly instructed the claimant not to invite Nana Owusu to a meeting; and/or

(b) blamed the claimant for excluding Nana Owusu from the meeting; and/or

• The claimant has been inconsistent as to the means by which the alleged instruction was communicated, whether it was by email or over the phone.

• The claimant has failed to identify when it was that the alleged instruction was given by Dr Perry and/or the context of that conversation.

• There is insufficient evidence to ground a finding that Dr Perry blamed the claimant for failing to invite Nana Owusu as opposed to informing her of Dr Carter’s concern that Nana Owusu had not been invited.

• Dr Perry was not a party to the collective grievance and the claimant did not identify where the Nana Owusu episode was utilised in the collective grievance as evidence of the abuse of power.

[92]It is unclear why Dr Perry would have wished to exclude Nana Owusu from the meeting. It was Dr Perry who asked the claimant to arrange an emergency meeting between the Medical Education team and Medical in response to the claimant’s: ‘concerns about Medical Education’s input in the August induction. They appear very relaxed and not appreciating all the stress that Medical Staffing is currently under.’.

[93]The tribunal finds that it is unlikely that Dr Perry would himself wish to exclude the Head of Medical Education from an emergency meeting which he thought should be called in response to concerns expressed to him by the claimant in July 2020 about Medical Education’s input into an induction process which was due to take place in August 2020. On the other hand, it is clear from the notes of Dr Perry’s conversation with the claimant on 20 July 2020 that the claimant’s: ‘Frustration seems to be directed at Nana’.

[94]The tribunal finds that Dr Perry wanted there to be productive engagement between Medical Education and Medical Staffing concerning the August 2020 induction. When Dr Carter raised concern about Nana Owusu not being invited to the meeting, D Perry readily invited her. Dr Perry did not engage in blaming of the claimant for the non-invitation, he simply implemented a practical resolution to an issue which had arisen between professional colleagues. In so doing his focus was on achieving the best outcome for the organisation to which both the Medical Staffing and Medical Education teams belonged. Allegation 5(a)(ii) – In October 2020 not being allowed by Dr Caroline Allum to meet with the MTIs as part of their induction with management

[95]The Medical Training Initiative [‘MTI’] is described by Dr Allum as a scheme that provides an entry route for overseas doctors wishing to train and develop their skills in the NHS before returning to their own country. The medical staffing team are involved in the recruitment and induction of the doctors.

[96]On 16 October 2020 a welcome meeting was held for a new cohort of employees who had been recruited under the MTI. The purpose of the meeting was described by Dr Allum in her witness statement at paragraph 9: ‘…a welcome meeting is held with myself and the Chief Executive of the Respondent so that the new recruits to the Trust can meet the senior leaders. This meeting is an important part of the induction process as it shows the recruits, who are new to the UK and new to the NHS, that the leadership is visible’.

[97]It appears from email correspondence between the claimant and Francesca Hayward (p.a. to Dr Allum) prior to the 16 October meeting that there was an initial misunderstanding between the claimant and Ms Hayward as to whether or not the claimant was invited to the meeting.

[98]In the course of communications between Ms Hayward and the claimant about the arrangements for the meeting between the senior leadership team and the MTI recruits, in an email dated 12 October 2020 the claimant informed Ms Hayward that: ‘…I have forwarded the invite to the MTIs, Anamika [Dwivedi] and I will attend’ [sup 182].

[99]This was corrected by Ms Hayward on 13 October 2020. On that date she subsequently emailed the claimant: ‘…Apologies for any confusion caused. Just to be clear, and as discussed, I had contacted you and Anamika with Oliver, Caroline and Vincent’s availability to identified [sic] when would be best for them to say hello to the MTIs. I chased this with Anamika and subsequently had a conversation with you, where you asked for the invitation to be sent to you for forwarding to MTIs, which I did. Anamika then asked for the invite to be forwarded to her as well yesterday (which I did) – I thought this was for the purpose of forwarding to MTIs… Hi Anamika – happy to discuss this with you – apologies for any confusion caused…’.

[100]The purpose of the MTI meeting was for the new employees to meet the senior leadership at Medical Director and Chief Executive level. There was no reason for the claimant to attend this meeting and that is why she was not invited. There was no ulterior motive on the part of Dr Allum. Claimant’s relationship with Dr Perry and line management

[101]It was initially intended that Dr Perry would be the line manager for the claimant. He fully discharged that role from March 2020 when the claimant was appointed, until September 2020 when he relinquished the first instance line management responsibility to Bernard Scully who had been appointed the respondent’s Interim Director of Workforce and Organisational Development.

[102]The claimant’s arrival at the respondent coincided with the onset of the Covid 19 crisis in the UK. The outworking of the pandemic placed unprecedented pressures on the NHS and those working within it. Many staffing resources were directed to front line activities.

[103]Difficulties arose from early on in the working relationship between the claimant and Dr Perry. The strain is evident from the complaints which Dr Perry makes about some of the claimant’s working practices:• The claimant was confrontational and struggled to take constructive criticism on board;

• She did not take direction from Dr Perry as her line manager;

• The claimant seldom took accountability for anything;

• When Dr Perry requested factual information from the claimant, she saw it as an interrogation when he was asking for a level of detail of matters that the Medical HR would be working on;

• When Dr Perry set up supervision meetings with the claimant, she saw it as performance management and asked that the title of the meeting be changed;

• When Dr Perry tried to raise her communication and leadership style with her, the claimant became angry and defensive.

[104]Dr Perry found that the frequency of the telephone calls from the claimant were impacting on his ability to attend to other important aspects of his role as Deputy Medical Director. It may be that this revealed a flaw in the new structure which placed the medical staffing department under the portfolio of the medical director and not general HR. Nonetheless, for Dr Perry the insistent frequency of the claimant’s communication with him became a problem. In a one-to-one meeting with the claimant on 20 July 2022, Dr Perry expressed concern about receiving: ‘…phone calls at all hours of the day…distracting me from dealing with the other issues’.

[105]Ultimately, the different working styles and expectations of the claimant and Dr Perry were to cause a breakdown of their working relationship, at least so far as Dr Perry was concerned.

[106]On 17 September 2020 Dr Perry wrote to Bernard Scully to complain that he had: ‘…ongoing issues with the way Oumouly communicates with me.’ He wrote: ‘Oumouly sent me an email on Tuesday at 16.51 to ask me about on call allowances for CAMHS consultants and access to Allocate (licence expired, currently been [sic] dealt with by Yvonne and Pav), which I have discussed with her before. I was busy with several other issues Tuesday afternoon and did not have time to respond to this. I however received another e-mail at 18.50 asking me about access to Allocate. Yesterday (Wednesday) I had a missed call from Oumouly at 08.54. This was followed by a text message at 08.56 asking me to ring her to discuss the above issues as she sent me an e-mail the day before. Whilst I have been spending time yesterday morning answering the original e-mail I had another missed call from Oumouly at 09.29. I find this behaviour harassing in nature, and not been given sufficient time to respond to queries. It seems that Oumouly’s expectation is that I need to instantly be available and respond to her e-mails (at all hours of the day), and if not then I get flooded by phone calls. The whole issue about access to Allocate is not under my management, however I am trying to support resolving this. Attached e-mails and responses. Can you advice [sic] how to address this?’

[107]Bernard Scully emailed Dr Perry on 22 September 2020: ‘I have emailed Oumouly to ask her to cease to be involved in issues which are not core to the day to day recruitment and junior doctor rotas and to discuss with me in the first instance [sic] of any areas which are giving her concern. I have in mind for example her excessive involvement in the Dr Rana case, the mediation relating to Dr Y, the procurement issues relating to Ingage and Allocate etc. I have a regular call with her tomorrow and I will reiterate this and discuss with her how I can support her to focus on and deal with the immediate operational priorities. This should bring an end to the types of emails you have referred to. If it does not please let me know and I will address further. I am also considering further what temporary management oversight may be necessary to bring stability to the medical staffing work [emphasis added]. I will discuss with you and Caroline before committing to any specific arrangement.’

[108]This contemporaneous exchange of emails is consistent with the sort of difficulties that Dr Perry says he was experiencing with the claimant.

[109]The tribunal is satisfied that Dr Perry’s complaints about the claimant’s communication style were the product of genuinely held feelings on his part.

[110]Dr Perry was experiencing his own difficulties which were to lead to him being on sick leave for a period of two months from 09 November 2020 to 11 January 2020 due to anxiety and depression caused by work related stress. No medical evidence was adduced to address the origin of Dr Perry’s anxiety and depression. The tribunal understands that the cause of such conditions can be multi-factorial and not necessarily restricted to events at work. Dr Perry expresses his personal perception of the cause of his illness in the following way: ‘I believe that a significant part of that cause was my involvement with the Claimant and the work I was drawn into in the Medical Staffing team. In addition [to] managing the Claimant and the level of contact that involved, I also had to take over line management of the band 4 staff who by that time wanted no contact with the claimant [emphasis added] and Ms Dwivedi due to their collective grievance. This was an extremely stressful period of time for me. I still remain on treatment at the time of submitting this statement [26 July 2023]’.

[111]The experience of being on sick leave was unusual and personally significant for Dr Perry. He had not had any time off sick in the 10 years prior to this period of absence.

[112]The claimant herself was on leave for nearly 6 weeks between October and December 2020.

[113]During that period Bernard Scully left the respondent’s employment and Deborah Evans was recruited as an interim Medical Staffing Associate at Band 8b. She was in post in December 2020 when the claimant returned from leave.

[114]During the course of communications between the claimant and Ms Evans questions concerning the claimant’s role and responsibilities arose.

[115]Ms Evans emailed the claimant on 21 December 2020: ‘Last week I had a 1:1 meeting with Caroline Allum Medical Director and we discussed the line management of the team. As the bullying and harassment case has…yet to be concluded by the trust, it was felt that as an interim measure I would manage the team operationally. At our 1:1 tomorrow please can you let me know what projects you have outstanding, so we can agree timescales/deadlines for completion. As you will not have day to day operational management of the team you will be able to focus on project management. You will of course be welcome to attend our weekly team meetings in your capacity as a project lead and to update us on your progress.’ [p375, all emphasis added]

[116]The claimant emailed Ms Evans on 23 December 2020: ‘…In regards to your request to restrict my roles and responsibilities. Could you please clarify the scope and rationales. As to the 1 to 1 meeting you referred in your email below. As I mentioned we have not had a 1 to 1 meeting…to date. If you want to arrange it please send me an invite and agenda’.

[117]Ms Evans emailed the claimant on 24 December 2020: ‘Further to our discussion yesterday, I feel we both need clarity regarding the reporting of management lines…’.

[118]On 29 December 2020, Dr Caroline Allum, the Executive Medical Director wrote to the claimant: ‘…I and other executive directors have been asked to lead on a large project across London at very short notice. As you know, Vincent, to whom you usually report, is off at present. Given the immediate demands on my time and the need to ensure business continuity and senior oversight of medical staffing you will need to report to Deborah as of today and until further notice’. [emphasis added].

[119]The claimant replied to Dr Allum the same day and thanked her for the email and wished her well with her projects. The claimant went on to ask Deborah Evans whether they could meet: ‘…to discuss/clarify roles and responsibilities in the short term until Vincent returns to work.’.

[120]On 30 December 2020, Ms Evans emailed the claimant: ‘Following the emails from Caroline and Simon confirming that your post will report to me as an interim management arrangement…’.

[121]If there was any doubt in the claimant’s mind that Dr Allum’s direction that the claimant was to report to Ms Evans ‘until further notice’, was intended to apply regardless of Dr Perry returning from sick leave, that doubt should have been dispelled by an email sent to her by Dr Perry on 24 March 2021. Dr Perry’s email included the following: ‘I refer to Caroline’s [Dr Allum] email to you on 29.12.2020 (attached) whereby you have been informed that you will be reporting to Deborah Evans until further notice. This is still the case…’.

[122]Both the Executive Medical Director (Dr Allum) and the Deputy Medical Director (Dr Perry) gave a clear direction in writing that the claimant was to be line managed by Deborah Evans and Ms Evans in fact took on line management responsibility for the claimant. Consequently, the claimant’s insistence under cross-examination that Deborah Evans was co-line managing her with Dr Perry fails to accord with the reality which was known to her. As does the claimant’s refusal to accept that Dr Perry was not line managing her.

[123]The claimant complains that since December 2020 she did not have one-to-one meetings, targets set, objectives, guidance or directions from Dr Perry [see Allegation 5(a)(iv)]. As the claimant is, and was well aware, since December Dr Perry has not been the claimant’s line manager. Consequently, there has been no default in his obligations in this regard.

[124]Despite clear communication with the claimant about the identity of her line manager, the claimant at times ignored this. On 20 April 2021 the claimant emailed Dr Perry and asked him to have a meeting: ‘…to discuss priorities, roles and responsibilities in MHR to remove any ambiguities on our overlapping roles…’. In his response of the same date, Dr Perry referred the claimant to Ms Evans - who was at that time the claimant’s line manager - and advised: ‘…I am not planning to set up a meeting to discuss this. I will join if Debbie needs me to join’.

[125]Dr Perry did not refuse to meet the claimant in April 2021 but indicated that if the claimant’s line manager deemed it appropriate, he would join a meeting between the claimant and her line manager. In view of the fact that Dr Perry was himself no longer the claimant’s line manager, there was nothing improper about this response [see allegation 5(a)(vi)].

[126]On 04 May 2021, Ms Evans emailed the claimant: ‘Further to our discussion today, following my meeting with Vincent Perry, Simon Hart and Caroline please can you pick up the following items as a priority. We need you to focus full-time when Anamika returns from sick leave on the CAMHS/Kent Consultant recruitment which has become critical for the organisation. 1. CAMHS/Kent Consultant Recruitment Put together a paper to go to EMT at the beginning of July 2021. To consider, new ways or [sic] working/support for job roles/ job plans/ Data and Evaluation Secondly: 2. SAS new contract Paper to go to EMT in August 2021. Implementation/Time line/Benefits for the organisation Thank you for your support delivering the above projects’.

[127]The email dated 04 May 2021 where Ms Evans transmitted to the claimant work priorities which had been determined at a meeting which included Dr Perry and Dr Allum, is further evidence that Dr Perry was not line managing the claimant and that the claimant will have known that.

[128]Ms Evans gave Dr Perry notice in April 2021 that she was resigning her interim role as medical staffing associate with effect from the end of May 2021. On 01 June 2021 Deborah Evans left the respondent’s employment.

[129]By email dated 27 May 2021 members of staff, including the claimant, had been informed of Ms Evans’ imminent departure and the recruitment of: ‘…Tom Olam, who will support the team at 8c level, until further notice. Reporting lines will remain the same’ . Tom Olam took over from Ms Evans as the claimant’s line manager. Dr Perry was a member of the interview panel which appointed Tom Olam. Mr Olam is black African.

[130]On 27 May 2021 the claimant had not yet raised a grievance against Mr Perry.

[131]Mr Olam was recruited through an agency. He was recruited to fill the role formerly performed by Ms Evans. Both Ms Evans and Mr Olam were recruited on an interim basis to meet a temporary issue for capacity within the medical staffing team, including stability in its management. The tribunal accepts the comments of Dr Allum that: ‘Part of the need for that recruitment was due to the management issues between the claimant and the Band 4 staff and also the concerns that Dr Perry had raised about his management of the claimant…’.

[132]The post occupied by Ms Evans and Mr Olam was not open to application from any member of existing staff. It was a temporary post which was open to recruitment solely through the agency. Mr Olam was recruited at Band 8c because appointment at that grade was what he required to secure his recruitment.

[133]The claimant complains that, had she known that there was a Band 8c post available, she would have applied for the position. In fact, there was no permanent Band 8c post available. It would in any event have defeated the rationale for the creation of the temporary post had the claimant been appointed to the position.

[134]In the course of an email sent to the claimant on 22 July 2021, Dr Allum reiterated that the claimant was at that time line managed by Mr Olam and not Dr Perry.

[135]In an email dated 16 August 2021, Mr Olam reinforced to the claimant his position as her line manager: ‘I just wanted to clarify that my mandate in this role (interim) is that you should be reporting to myself as your line manager and not Vincent…’.

[136]Following receipt of the email from Mr Olam, the claimant emailed Dr Allum on 17 August 2021 and complained: ‘…This is the second time Tom Olam is referred as my line manager without any discussion, any rationales. As far as I am concerned Dr Vincent Perry is my formal line manager since my appointment…I will appreciate if we could meet to discuss reporting lines, removal of my key responsibilities, line management change over rationale and support for my personal and professional development that is concerning’.

[137]Dr Allum responded to the claimant’s email on 18 August 2021: ‘…You were advised in December that Deborah would be taking over from Vincent as your line manager. Tom has subsequently taken over from Deborah, and you have been reminded that Tom is your line manager on numerous occasions since then. You were also advised in December that you would not have operational management of the team you would focus on line management…in order to avoid any confusion about your role, I will ask Tom to meet with you to discuss your reporting lines and duties, to ensure that this is absolutely clear.’

[138]The tribunal rejects the claimant’s continued insistence that there was uncertainty as to who her line manager was, and/or that there was any confusion in the claimant’s mind as to whether Dr Perry continued to be her line manager or even a co-line manager.

[139]From December 2020 onwards, the claimant can have been in no doubt that Dr Perry was no longer her line manager. When she wrote to Dr Allum on 17 August 2021 that: ‘As far as I am concerned Dr Vincent Perry is my formal line manager since my appointment…’, the claimant knew that this was not the case and had not been for some time. Allegation 5(a)(iii) – In November 2020, Dr Caroline Allum removed the claimant from her roles and responsibilities when Mr Scully left the respondent’s employment – Para 11 PoC

[140]In December 2020 the investigation of the collective grievance against the claimant was ongoing. This presented an enormous challenge for management of the medical HR team. It was a small team. Band 4 members who worked below the claimant wanted no contact with her. This was the background to Dr Allum’s decision that Ms Evans should manage the team operationally.

[141]The decision was reached following careful consideration by Dr Allum, including consultation with Ms Evans. It is a decision which Dr Allum believed would provide stability, prevent further strain on working relationships, and would also provide continuity for the team operationally going forward. The tribunal accepts Dr Allum’s evidence that, given the circumstances confronting Dr Allum, this is a decision she would have made regardless of who occupied the claimant’s position.

[142]The claimant’s role as medical staffing manager included an element of project work. As reflected in Ms Evans’ email to the claimant dated 21 December 2020 referred to above, operational management of the team was passed to Ms Evans and Dr Allum decided that the claimant should focus on the project work.

[143]In her witness statement at paragraph 12, Dr Allum describes the importance of this work: ‘The project work was incredibly important to medical staffing and needed to be actioned by a senior member of the medical staffing team. It included a wholesale pay audit of all doctors employed by the Trust which was outstanding and critical [emphasis added]. It was an area that I believed that the Claimant could excel in. Having the Claimant focus on project work was intended to allow the medical staffing team to get ahead of projects which, like the pay audit, were taking some time to resolve’.

[144]As set out above, by email dated 04 May 2021, Ms Evans instructed the claimant to focus on two specific projects.

[145]Tom Olam reminded the claimant that these projects should be her focus in his email to her dated 16 August 2021: ‘…until further notice you should solely focus on the two projects that you were previously asked by Deborah Evans in her email of 4/5/21 (See email from Deborah below). 1. Recruitment plan for Kent 2. Implementation of new SASG contract I would therefore like to emphasise that matters relating to team management or other generic Medical HR queries be directed myself [sic] or to discuss with me to avoid duplication of efforts’

[146]No party has suggested that the project work allocated to the claimant was unimportant or inappropriate to the claimant’s experience and status. This is further illustrated by correspondence between the claimant and Dr Perry in April 2021.

[147]The issue of the claimant working on the implementation of the new SAS grade contract was raised with the claimant in an email dated 20 April 2021 when Dr Perry asked the claimant for: ‘…an update regards implementation of the new SAS Grade contract? Who is involved in this work?’.

[148]The claimant replied in an email dated 20 April 2021 where she indicated that she was: ‘…more than happy…’, to manage this project.

[149]The project work allocated to the claimant was important work which required to be undertaken by a professional of the claimant’s experience. Alleged detriment 15(h) – On 22 September 2021, Dr Vincent Perry removed the claimant from the pay audit that she initiated and was leading on – para 2 PoC

[150]In the list of issues it is alleged that on 22 September 2021 Dr Perry removed the claimant from the pay audit. In fact, as set out at paragraph 2 of the Particulars of claim, and in submissions, the claimant’s case is that she was removed from the pay audit in: ‘March-April 2021’.

[151]The claimant commenced work for the respondent in March 2020. In April 2020 she sent Dr Perry a draft list of the Medical HR department’s priorities for the next 12 months. By his email reply dated 09 April 2020 Dr Perry included the pay audit in his list of: ‘…things missing or that I think needs to be clearer in this paper.’.

[152]In August 2020 a meeting was convened between the claimant, Dr Perry, and Mr Scully to address how the pay audit would be conducted.

[153]At the beginning of 2021 no progress had yet been made on the pay audit and by mid-March 2021 Dr Allum confirmed that she wanted a report as soon as possible and in any event by 30 April 2021. The urgency of the matter led Dr Perry to decide to take the lead on it.

[154]In early 2021 the claimant had a period of leave due to long covid sickness and compassionate leave. By email dated 22 March 2021 she announced that she was now back at work.

[155]In an email dated 07 April addressed to Ms Dwivedi (which was cc’d to Dr Perry and the claimant), Ms Evans raised a query concerning the pay audit. In the claimant’s reply dated 08 April 2021 she requested: ‘Please update me on the pay audit as I am out of touch since I returned to work’.

[156]Dr Perry replied on 08 April 2021 and informed the claimant that he was: ‘…now leading on getting this done as EMT has given a deadline of 30.04.2021 to deliver the report.’. In respect of this the claimant replied: ‘Thanks Vincent’ and raised no query or objection.

[157]In taking on the pay audit, Dr Perry was trying to make progress on a piece of work which was now increasingly urgent. There was no other motivation on his part. Allegations: 5(a)(v) In March 2021, Dr Perry and Dr Allum moved the Claimant away from a case she was working on since April 2020 – Para 13 PoC; and, 5(a)(xi) On 19 July 2021, Dr Allum asked the Claimant not to attend the follow up meeting scheduled for 20 July 2021 with Dr AY – para 13 PoC.

[158]Shortly after the claimant was appointed, the impact of the covid pandemic made its presence felt in the operation of the respondent’s HR function. Dr Anu Yadava [‘AY’] was involved in an employee relations issue in around April 2020. Ordinarily HR support would have continued to be provided to her by a representative from the HR Directorate. Due to covid however, teams from the HR directorate had been temporarily re-deployed into other areas, so on this occasion HR support came from the medical staffing team. The claimant assisted with providing that support. It did not feature as part of the claimant’s core role.

[159]By March 2021 the respondent had switched the principal focus of the claimant’s work to projects. Dr AY had a meeting on 15 March 2021. On 12 March 2021 Ms Evans emailed the claimant to let her know that: ‘I have been requested by Vincent [Perry] and Caroline [Allum] to attend the meeting on Monday afternoon with Dr AY. I will explain when we next talk.’

[160]The rationale for this decision was the respondent’s intention that the primary focus of the claimant’s work would be project work. It was nothing more than that.

[161]The claimant views it differently and at paragraph 74 of her witness describes it thus: ‘…Ms Allum asked Ms Evans to ensure that I did not attend a meeting with Dr Anu Yadava whom I had been advising since my appointment in 2020’. The tribunal finds that the claimant is wrong to attribute the rationale for that decision to an intention to exclude the claimant, as opposed to a management effort to try to make what appeared to management to be the most appropriate use of the human resources available to them.

[162]Due to the breakdown of the relationship between Dr AY and her previous line manager, by July 2021 Dr Perry had taken over as Dr AY’s line manager. There was a further meeting with Dr AY on 19 July 2021. This was attended by Dr Perry and Tom Olam. Providing support for Dr AY was not a key responsibility for the claimant and by July 2021 the primary focus of the claimant’s work was specific strategic tasks. It was not necessary for the claimant to attend. The allocation of support for AY to someone other than the claimant was the Medical HR department allocating limited resources as they thought appropriate. Allegation 5(a)(vii) – In April 2021 the Claimant was not invited by Dr Caroline Allum and Dr Vincent Perry to the meeting with trainees’ representatives – para 6 PoC

[163]In April 2021 the claimant was not invited to a meeting with the trainees’ representatives.

[164]By the date of the meeting in April 2021, the primary focus of the claimant’s work was project work. While there may have been occasions when the claimant may have assisted with other issues, by April 2021 other issues were not the primary focus of her work. The project work allocated to the claimant related to significant and important matters.

[165]The tribunal is satisfied that the reason why the claimant was not invited to attend the meeting with the trainees’ representatives is as was stated by Dr Allum. The focus of the claimant’s duties at that point in time was important project work and consequently it was not necessary for the claimant to attend the meeting with the trainees’ representatives. Allegation 5(a)(viii) - 05 May 2021 Dr Caroline Allum confirmed the claimant’s feeling that she was set to fail when she did not even feel that there was a need to meet with the claimant to go through the KENT resourcing strategy paper – para 10 PoC

[166]The claimant has provided no evidence in her witness statement or orally that there was either a meeting scheduled on 05 May 2021 or that any such meeting was requested at that date.

[167]As is set out earlier in this judgment Ms Evans emailed the claimant on 04 May 2021 in the following terms: ‘Further to our discussion today, following my meeting with Vincent Perry, Simon Hart and Caroline please can you pick up the following items as a priority. We need you to focus full-time when Anamika returns from sick leave on the CAMHS/Kent Consultant recruitment which has become critical for the organisation. 1. CAMHS/Kent Consultant Recruitment Put together a paper to go to EMT at the beginning of July 2021. To consider, new ways or [sic] working/support for job roles/ job plans/ Data and Evaluation Secondly: 2. SAS new contract Paper to go to EMT in August 2021. Implementation/Time line/Benefits for the organisation Thank you for your support delivering the above projects’

[168]Ms Evans in her email informed the claimant that the Kent paper was to go to EMT [Executive Management Team] at the beginning of July 2021. This message was reinforced in an email sent by Dr Allum on 05 May 2021. The email was sent to the CEO office and cc’d to the claimant, Ms Evans, and Simon Hart. It reads: ‘Oumouly is kindly pulling together papers for EMT at Simon and my request. Can you please let us have dates for her to attend to present the papers? One at the beginning of July – on CAMHS recruitment for Kent. One at the beginning of August – on the new SAS contract’

[169]On 01 June 2021 Dr Allum emailed the claimant as follows: ‘I hope you are well. As per my previous email, we have a date for you to present the Kent paper to EMT. Fran will confirm the date by return email so that you have it. Thanks for doing this important piece of work’.

[170]The claimant responded on 01 June 2021 date: ‘I am working on it, please let me know if there are any specifics to incorporate. Once I receive the date I will arrange to share my initial draft for your comment and approval. Fran – I will appreciate if you could share the previous paper.’

[171]In her 01 July 2021 email, the claimant expressed neither surprise nor objection to the statement in Dr Allum’s email that: ‘As per my previous email, we have a date for you to present the Kent paper to EMT’. This is unsurprising given that the claimant was a Band 8a experienced medical staffing professional, and the respondent was entitled to expect such work to fall within her professional range of ability.

[172]Dr Allum and Mr Hart arranged to meet with the claimant on 30 June 2021 between 11.15a.m. and 11.45a.m. to go through the claimant’s draft Kent paper with her. This was intended to be in good time before the 09 July 2021 submission deadline for the EMT meeting on 13 July 2021.

[173]By 9.40a.m. on 30 June 2021, Dr Allum had still not received a draft paper from the claimant for discussion at the meeting later that morning. Consequently, Dr Allum emailed to ask whether the claimant had a draft paper for Mr Hart and herself to view before the meeting. The paper was sent by the claimant at 10.32a.m.

[174]Feedback was given to the claimant at the meeting on 30 June 2021, and she sent a second draft to Dr Allum and Mr Hart on 02 July 2021. The claimant’s covering email stated: ‘See attached the draft paper and summary for your comments. Feel free to make any amendments and please let me know if you would like to discuss any aspects. I will appreciate if you could send me your comments by Tuesday 6th July’.

[175]At paragraph 104 of her witness statement, the claimant says that: ‘On 2nd July 2021, I requested a meeting [with] Ms Allum to discuss a medical HR program proposal that I was preparing for KENT. It was a flagship program for the Trust worth millions. Ms Allum refused to meet with me before submission even though she overviewed the project.’

[176]Paragraph 104 of the claimant’s witness statement represents a distortion of the facts:• As is set out in her email dated 02 July 2021, the claimant did not request a meeting with Dr Allum to discuss the paper.

• Taken in isolation paragraph 104 may lead the reader to conclude that Dr Allum did not meet with the claimant to discuss the paper prior to submission.

[177]The false impression given by paragraph 104 of the claimant’s witness statement was preceded by the similarly misleading paragraph 91 of the claimant’s witness statement where she states: ‘…It was only on 1st June that Ms Allum told me about this presentation. After I raised a grievance against Mr Perry on 2nd June Ms Allum decided not to go ahead with the plan of me presenting the paper, nor did she meet with.’

[178]Paragraph 91 of the witness statement is entirely misleading insofar as it implies that from 2nd June 2021 Dr Allum did not meet the claimant to discuss the paper, and that from that date Dr Allum decided that the claimant should not present the paper.

[179]Following receipt of the claimant’s second draft on 02 July 2021, Mr Hart replied with comments embedded in the draft document on 06 July 2021. Overall, Mr Hart thought that: ‘…this needs quite a bit more work…At the moment this is a lot of statements but is lacking the more detailed elements necessary for the EMT to be confident about what actions will be happening by when and how this relates to outcomes and time-scales’.

[180]The claimant responded on 07 July 2021 to ask: ‘…if we could urgently meet to discuss the paper.’ The claimant also requested that Mr Hart, ‘…could also give feedback for the summary paper with initial estimates for the programme.’

[181]On 07 July 2021, the claimant sent a further revised draft. Mr Hart responded on 08 July 2021 when he acknowledged the revisions and provided further comments on the draft. Nonetheless Mr Hart’s overall view was that he thought: ‘…that there is more that needs to be done to make this presentable and frankly not enough time to do it enough justice. Better done properly than rushed to meet a deadline that we will otherwise miss. I am on leave from next week and so have not time to participate in a meeting about this…My suggestion therefore to you and Caroline is that you take it off next week’s agenda and bring it back when it is fully revised.’.

[182]Dr Allum agreed with Mr Hart’s suggestion and the paper was taken off the agenda for the EMT on 13 July 2021.

[183]There is no evidence that Dr Allum set the claimant up to fail. This project was important. As described in Ms Evans email dated 04 May 2021, the subject of the project had: ‘…become critical for the organisation’. There was no advantage whatsoever to Dr Allum in the project being delayed or performed less than optimally. On the contrary, there would be obvious disadvantages.

[184]Dr Allum and Mr Hart set aside time in busy schedules to meet with the claimant to discuss her paper and suggest amendments. Significant support and advice was provided on the claimant’s various drafts before Mr Hart and Dr Allum felt compelled to conclude that the paper should be removed from the agenda for the 13 July 2021 EMT meeting. The suggestion that the claimant was set up to fail is without foundation. Claimant’s grievance sent on 02 June 2021

[185]On 27 May 2021 the claimant received the outcome of the collective grievance raised against her. On 02 June 2021 the claimant sent Dr Allum a letter dated 01 June 2021 which was headed: ‘Re: Formal complaint of bullying, harassment, victimisation and human right [sic] violation against Dr Vincent Perry’.

[186]In the letter of complaint, the claimant raised 14 points which were set out as follows: ‘1.Race discrimination 2. Psychological torture – being punished & revenge for my achievements and exemplar working relationship with the interim HRD 3. Lack of support 4. Pre-empt outcome before collective grievance investigation commenced. 5. Set to fail 6. Marginalised, excluded and taken away before investigation. 7. Band 8c appointed without consultation 8. Moved away from pay audit I was leading on & Gateway doctors 9. Undermined my authority 10. Lack of transparency/exclusion/solo working 11. Hostile environment 12. Breach of trust and confidence/dishonesty/lack of professionalism 13. Harassment since I came back on long Covid and on compassionate leave 14. Not invited to meetings but formally expressing that he is not meeting with me.’

[187]The claimant goes on to state that she is: ‘…writing to raise a formal grievance’. She states that: ‘I have been the subject of a sustained harassment, bullying and discrimination from my line manager Vincent Patrick Perry (VP) since June 2020 until the more recent events of him providing false and fabricated evidence to support a collective grievance against me. I have also been, mentally tortured, victimised psychologically and abused by VP to cover up fraudulent actions and take a revenge of his broken line management with the interim HRD – BS’

[188]The claimant then alleges details of: ‘…several actions and events..’, which she says have been: ‘…taken or orchestrated…’ by Dr Perry: ‘…in violation of my basic Human Right, breach of NELFT and NHS constitution standards...’. These are summarised below: ‘Setting poor examples and blaming others’ exemplified by –• Dr Perry not having a one-to-one meeting with the claimant and failing to provide her with, ‘…the correct information to complete my induction or set clear objectives’. Despite this Dr Perry, ‘...encouraged the collective grievance…’ against the claimant.

• Dr Perry initially requested that Anamika Dwivedi be downgraded one band but the claimant is being blamed for this despite having, ‘…acted upon the advice of the very senior HR team’.

• Dr Perry failed to follow recruitment best practices within the department. ‘Distortion and fabrication of information’ –

• Despite asking the claimant not to invite Nana Owusu (the head of medical education) to a meeting, Dr Perry then blamed the claimant for excluding her from that meeting. ‘Malicious and vexatious complaints’ –

• Dr Perry encouraged the collective grievance, ‘…as a revenge of his broken line management with the HRD and for my refusal to accept/take ownership of the LCEA options to cover up for him.’

• The team breached data protection legislation in order to look for information that could support that could support their allegations: ‘…which is I believe a gross misconduct and sackable offence’.

• Dr Perry: ‘…provided false and fabricated information regarding my relationship with other managers, recruitment practices and leadership style that he had never raised a concern about as my line manager’. Breach of trust –

• Dr Perry has ‘…breached the duty of candour and his deliberate fabrication and distortion of information is a breach of his duty of trust and confidence.’

• ‘…unfairness in treatment, exclusion from meetings and racial discrimination.’

• ‘arranged [a meeting with the claimant] following our meeting with the interim HR director to use me as a scapegoat for the EMT paper he was asked to do to justify his advice and choice of Local Clinical Excellence Awards with all the finance implications.’ Fraud –

• ‘Following my removal from the pay audit that I initiated and was leading on, I believe [Dr Perry] potentially committed frauds that he did manage to cover up’. Claimant’s report to the fraud team concerning Dr Perry

[189]The claimant stated at paragraph 103 of her witness statement that: ‘In July 2021, I formally contacted Daniel Higg, from the Fraud team and raised concerns with serious discrepancies in the pay audit’. The claimant provided no further information in her witness statement about what were said to be the: ‘…serious discrepancies in the pay audit.’

[190]On 20 July 2021 the claimant emailed Mr Higg. The subject of the email is: ‘Potential Fraud in Medical HR’. The substance of the email is as follows: ‘We discussed briefly a potential fraud a month ago. Please let me know when is the best time to contact you to discuss further’.

[191]On 01 August 2021 the claimant emailed Mr Higg again. The subject matter of the email remained, ‘Potential Fraud in Medical HR’. The claimant wrote: ‘I suspect potential frauds and a possible cover up in the Medical HR department in NELFT. Please find attached Dr Vincent Perry’s report extracted from the Master Pay Audit of Job Plan compared with ESR that informed the report he submitted to EMT in April 2021. I was also made aware of 5 PAs (20h per week) in ARD that Dr Perry has not covered for years. I have asked ARD Finance Business Partner to advise on the possibility of converting these 5 Pas to a speciality doctor post. Please do not hesitate to contact me should you need further clarities [sic] or additional information.’

[192]‘PA’ stands for Programmed Activities. It is the unit of time which a consultant is paid for. Dr Perry firmly denies all allegations of fraud and explained in his written evidence why he does so. Dr Perry detailed his pay arrangements and the basis for attributing to him PAs for the purposes of calculating his pay.

[193]Dr Perry’s pay is the equivalent of 16 PAs. This comprises a 12 PA contract which is enhanced by 3 PAs to reflect a 25% responsibility uplift in respect of his role as Deputy Medical Director. Dr Perry has the benefit of a further 1 PA which was awarded to him when he took on the role of: ‘Trust Payment and Outcomes Lead’ following a successful interview for the position.

[194]The fact that Dr Perry’s remuneration is equivalent to 16 PAs a week does not mean that he physically worked an exact 16 PAs in a week.

[195]Dr Perry’s pay package utilises some PAs from a former clinical role in another directorate and which the record still shows as being tied to that other directorate. He has asked that this funding be transferred to the Deputy Medical Director budget but this has not occurred.

[196]The hours which Dr Perry works as Deputy Medical Director are full-time. Initially he continued to undertake clinical activity by covering for other doctors approximately 1 day per week, but this became harder and harder as his role as Deputy Medical Director became busier.

[197]No evidence was placed before the tribunal from which the tribunal could make a finding that Dr Perry has engaged in any fraudulent activity, or a cover up of such activity. Allegation 5(a)(x) – On 22 June 2021 Dr Allum and Dr Perry tried to blame the claimant for the offer of downsizing Anamika Dwivedi (“AD”) from her band 6 role to a band 5 role – Para 7 PoC

[198]Allegation 5(a)(x) in the statement of issues refers to a proposed downgrading of Ms Dwivedi from band 6 to 5. The parties agree that it should in fact refer to a proposed downsizing from 7 to 6.

[199]In April 2020, Anamika Dwivedi commenced employment with the respondent. The claimant and Dr Perry both sat on the interview panel. The claimant was keen to employ Ms Dwivedi, they had worked together previously. Ms Dwivedi was employed at Band 7.

[200]It wasn’t long after Ms Dwivedi joined the respondent that the claimant complained to Dr Perry that Ms Dwivedi could not remain on a Band 7: ‘…as she does not have the skill’. This comment appears within Dr Perry’s notes of a one-to- one meeting which he had with the claimant on 29 June 2020.

[201]The claimant suggested in evidence that these notes could not be relied on because they are notes that had never been shared with the claimant until she received the bundle. The fact that notes may not have been shared previously with the claimant is not of itself a reason for not relying on the notes. The issue for the tribunal is whether those notes are accurate in the material respect.

[202]The tribunal is satisfied that they are. The claimant acknowledged in evidence that she thought that Ms Dwivedi should be downgraded to Band 6. This coincides with the content of Dr Perry’s notes.

[203]The claimant suggests that the idea to downgrade Ms Dwivedi first came from Dr Perry. He denies this. The tribunal accepts this denial and is satisfied that the first suggestion of downgrade came from the claimant. The claimant has not told the truth about this.

[204]The claimant is the HR professional who was working most closely with Ms Dwivedi on a day-to-day basis. No adequate reason has been identified as to why Dr Perry himself would seek to downgrade Ms Dwivedi. No precipitating incident or event has been identified which might explain Dr Perry initiating this discussion.

[205]The evidence that it was the claimant who drove the discussion of downgrade of Ms Dwivedi is also found in the evidence of Dr Allum. She attended a meeting in August 2020 which was also attended by the claimant, Dr Scully and Dr Perry. At the meeting a potential restructure of the whole medical staffing team was discussed. Band 4 staff remained absent at the time and it was decided that it was not a good time to start such a process.

[206]Critically the claimant was expressly told at that meeting that it would not be appropriate to downgrade Ms Dwivedi at that time, particularly as there had been no attempt to performance manage in accordance with the respondent’s policies. This was a clear management instruction. It was however an instruction which was subsequently ignored by the claimant. The tribunal rejects the claimant’s evidence that the instruction was not given at that meeting.

[207]During the course of the collective grievance investigation, it emerged that contrary to the clear management instruction, the claimant had gone ahead and sought to downgrade Ms Dwivedi. In the letter dated 27 May 2021 confirming the outcome of the collective grievance, it is stated: ‘…from the evidence received it seems that [the claimant] was arranging for [Ms Dwivedi] to become a band 6 without referring to or following NEFLT policy. This was only stopped when the change form was not processed, not by [the claimant’s] actions’.

[208]The tribunal finds that it was the claimant who was responsible for initiating the proposal to downgrade Ms Dwivedi. It is also the claimant who was responsible for seeking to implement the downgrade. Insofar as anyone suggested this, it was true. The claimant failed to follow a reasonable management instruction. Alleged detriment 15(a) – On 14 June 2021 the Claimant was not admitted by Dr Allum and Dr Perry at the JLNC pre-meet with management – para 25 PoC 209. ‘JLNC’ is an acronym for ‘Joint Local Negotiating Committee’. On 14 June 2021, the claimant was not invited to attend a pre-meet for the JLNC.

[210]The tribunal finds that there was no reason for the claimant to be invited to this premeet. There was no motivation for not inviting the claimant other than entirely proper business purposes, including the best management of resources.

[211]By 14 June 2021, the primary focus of the claimant’s work was project work. Further Simon Hart who was the ‘Executive Head of People and Culture’ with overall responsibility for HR within the respondent was attending the pre-meet. In all the circumstances there simply was no need for the claimant to attend. Claimant’s email to Dr Perry dated 23 June 2021

[212]In June 2021 the claimant sought to employ via an agency a temporary member of staff for the medical staffing team.

[213]On 16 June 2021 the agency emailed the claimant and attached the CV of what was said by the agency to be a suitable candidate who was interested in the position.

[214]On 18 June the claimant emailed the respondent’s temporary staffing team to send them the candidate’s CV and to inform them that an interview had been arranged for 21 June.

[215]On 21 June 2021 the claimant emailed the temporary staffing team to let them know that the candidate had been successful and to ask them to follow up because: ‘…we are looking for a start as soon as all pre-checks and compliance are completed’. This email was also cc’d to Anamika Dwivedi, Tom Olam and Dr Perry.

[216]Dr Perry responded by email on 21 June. He stated: ‘I am slightly surprised by this email. I have not been sighted on further recruitment to the team at the moment. I am very concerned about the overspend on the Medical Staffing budget that sits under me. I should authorise all expenses for this budget. At the moment we have two band 8’s a band 7 and a band 4 in the team, plus input from Glenda, Claire and Vijay. This looks enough to me to deal with the current demands at the moment.’

[217]The claimant responded to Dr Perry by an email dated 23 June 2021: ‘…As you are aware concerns have been raised with regards to the quality of service we provide that has deteriorated in my absence: Issues with DBS already risk registered – That has not been touched since Jan. Medical HR inbox – more than 1500 emails not responded to/actioned as of today. Pay queries – not addressed on time, AMD, deputy MD chasing, following up, completing admin tasks. Trainees exception reporting not actioned on time, escalated to Finance and Guardian of Safe Working. Pay tracker not updated for monthly pay queries records… Agency employment complaining on CVs that they sent since January without feedback – knowing the high agency spend. Recruitment system TRAC not cleansed. Project paused hence the delay in submitting the “Audit report”. We are firefighting and have been since I joined the trust and as we are all aware this is impacting on staff Health and Wellbeing, family life and patient safety. We need arrangements for AL to be taken. The list is not exhaustive and can go on. This is just to reiterate the current situation of the department… Claire – she has agreed to help with the backlog of the DBS to ensure we can give assurance for our doctor’s fitness to practice…I hope and pray that an executive decision can be made to redefine roles and responsibilities and focus on the NHS constitution values for the benefits of the patients’. Alleged detriment 15(b) – The Claimant emailed Dr Perry on 23 June 2021 copying the executive management team to discuss areas of concerns [sic] with a hope to get support. He ignored the Claimant and she instead received a response back from Tom Olam on

[218]On 15 July 2021, Tom Olam replied to the claimant’s email to Dr Perry dated 23 June 2021. It was a polite and professional response to the concerns raised by the claimant in her email about the: ‘quality of service’ within the medical resources department.

[219]It was entirely appropriate for the response to be written by Tom Olam who was at that time was the most senior HR professional working within the department. In that capacity Mr Olam had operational responsibility for the service provided by the department and recruitment strategy also fell within his remit.

[220]In her Particulars of Claim, the claimant describes Mr Olam’s response as: ‘inappropriate and humiliating’. She does not identify any specific part of Mr Olam’s email as either inappropriate or humiliating. The tribunal finds that this is for good reason. The email was neither inappropriate nor humiliating. It was a professional response, to a colleague who had raised issues of concern about the service provided by the department.

[221]The claimant emailed Mr Olam on 15 July 2021 to ask him why he: ‘…was responding and the rationale to why you have been asked to respond to the email I addressed to my line manager.’ In all the circumstances, this was an extraordinary question for the claimant to ask.

[222]The tribunal finds that it would have been absolutely clear to any HR professional of the claimant’s seniority, including the claimant, that Dr Perry had ceased to be her line manager quite some time before, and that by 15 July 2021 her line manager was Mr Olam.

[223]In cross-examination it was put to the claimant that she had been informed by an email dated 27 May 2021 with the subject line: ‘Update in regards line management in medical staffing’, that as from 02 June 2021 the claimant would be reporting to Tom Olam.

[224]The claimant responded to the question by accepting that she had been told that she was now reporting to Tom Olam. She went on: ‘Did he line manage me? No. Did I just get an email to say he was line managing me? Yes.’

[225]This response does not make sense. The claimant confuses the clear reality that Mr Olam was her line manager, with her personal wish that Dr Perry remained her line manager. It was not for the claimant to determine who her line manager should be.

[226]In circumstances where the claimant acknowledges that she had been told previously that Mr Olam was her line manager, it was inappropriate for the claimant to respond to Mr Olam on 15 July 2021 stating, in effect, that Dr Perry was her line manager. Alleged detriment 15(c) – On 2 July 2021 Dr Allum sent a text message to Dr Bhat claiming that the Claimant said that Dr Bhat did not have access to his establishment which was totally inaccurate – para 30 PoC

[227]On 30 June 2021 the claimant had a meeting with Dr Allum. During the course of that meeting that claimant told Dr Allum that Dr Mohan Bhat (Assistant Medical Director) had said that he did not have access to his establishment. Dr Allum found this alarming as in her view it could: ‘…constitute a major risk to the organisation including financial risk’.

[228]It was a matter of such concern that Dr Allum wrote down the words used by the claimant. These words she included in an email to the claimant dated 02 July 2021: ‘In the conversation on 30/06/21 with myself and Simon you said: “The claimant said, ‘The AMD’s don’t have sight of their establishment’. That they didn’t have access to the system and you referenced Mohan.”

[229]Dr Allum sent a text to Dr Bhat the next day and wrote: ‘…Oumouly said that you don’t have access to the system with medical establishment. Is that correct?’. Dr Bhat replied: ‘Not sure what Oumouly meant by this’, and then went on to highlight problems which had arisen as a result of the HR system not talking to the one held by Finance.

[230]The claimant disputes that she told Dr Allum that Dr Bhat did not have access to his establishment. The claimant asserts that Dr Allum sent the text to Dr Bhat in order to undermine the claimant. She emailed Dr Allum on 02 July 2021 and said that: ‘…at no point [did I tell] you that Mohan has not got access to his own establishment’.

[231]Dr Allum emailed the claimant in response the same day. Her reply included the words set out above. Dr Allum reiterated her concern about what she had been told by the claimant and said that the reason why she texted Dr Bhat was because of her concern that if he didn’t have access to the system with his medical establishment, it needed to be sorted immediately.

[232]The claimant sent an email in reply which began: ‘It is clear that there has been some miscommunication with regards to the below. May I clarify what I meant…’. The claimant then sets out an explanation. This includes the following: ‘AMDs in Essex and Kent have not got access to their establishments – I have requested this from their finance business partner…’.

[233]The tribunal is satisfied that the only reason why Dr Allum sent the text to Dr Bhat was because the words which she attributed to the claimant had been said by the claimant. Dr Allum made a note of the words at the time. She was concerned about the potential negative impact for the respondent if what the claimant said was true and so she contacted Dr Bhat. In so doing she was not seeking to undermine the claimant, and she was not influenced by any consideration extraneous to ensuring that Dr Bhat had access to his establishment.

[234]It is likely the words spoken by the claimant to Dr Allum were the result of a simple ‘miscommunication’ by the claimant. It is a miscommunication which was swiftly corrected. Alleged detriment 15(d) – On 07 July 2021 the Claimant asked for clarity on a GP that was allowed to act up as a consultant, which the Claimant found to be inappropriate. Dr Allum and Dr Perry tried to put again the blame on the Claimant when this was actioned in the

[235]During the covid 19 period, a GP was seconded to the respondent from another NHS Trust to help the respondent meet its staffing requirements. The GP performed extremely well in her role. At the time Dr Porcari, the Associate Medical Director for Essex, was short of staff and agreed that the GP should act up as a locum consultant for a short period of time.

[236]At the time that this arrangement was made the claimant was on sick leave. The claimant bore no responsibility for the agreement that the GP should act up as a consultant, and at no time did either Dr Allum or Dr Perry suggest that the claimant was in any way responsible for the arrangement.

[237]The claimant alleges that Dr Perry and Dr Allum: ‘…tried to blame me on a consultant acting up in Essex, even though it happened in my absence’. The claimant refers to, and relies on, an exchange of emails about the engagement of the GP as a consultant. This exchange of emails took place between the claimant, Dr Allum, and Dr Perry between 05 July 2021 and 07 July 2021. At no point in the course of those emails does either Dr Allum or Dr Perry seek to blame the claimant for the engagement of the GP as a consultant. The claimant’s suggestion that they did so is entirely without foundation.

[238]In the final email of the exchange on 07 July 2021 Dr Perry sought to explain in short form the background to the GP’s appointment. He started his email by suggesting that: ‘[Dr Porcari] will be able to tell you the long story behind this’. This observation is inconsistent with any suggestion of blame being attributed to the claimant for the employment of the GP to act up as a consultant.

[239]Dr Perry went on to explain that the GP was keen to work for the respondent and might apply for a specialist grade post. He said that Dr Porcari had sought advice from him and that he and Tom Olam had met to consider what working options with the respondent there might be for the GP.

[240]There was not even a hint of a suggestion that the claimant was to ‘blame’ or in any way responsible for the GP’s stint acting up as a consultant. It is quite clear from the correspondence that the GP’s performance was regarded as a success. There is no question of blame being attributed to anyone arising from the GP’s engagement as a locum consultant. Alleged detriment 15(g) – On 18 August 2021 the Claimant was forwarded a query from a trainee doctor and found out that she was not made aware of a communication that went to all - para 24 PoC. Dr Allum’s response: “…you have been asked to focus on the two projects and nothing else.” – para 24 PoC.

[241]On 17 August 2021 an email was sent on behalf of Dr Allum. The subject of the email was stated as: ‘Letter to juniors affected by onboarding issues’. It was sent to a number of people who worked within the respondent. The claimant was not among the recipients.

[242]Subsequently on 18 August 2021 one of the recipients of the email in their reply to the email cc’d other colleagues. One of those colleagues in turn sent a reply and cc’d a number of people including the claimant.

[243]On 18 August 2021 the claimant emailed Dr Allum to complain that she was: ‘…not copied, made aware or even mentioned in the list of people to contact. Is this a typing error or something else that I need to be aware of…’.

[244]Dr Allum replied on the same day: ‘As per the previous emails from Tom and Deborah you have been asked to focus on the two projects and nothing else. I will ask Tom to pick up again in your 1:1 if you need further clarification’.

[245]There is no evidence before the tribunal which suggests that the subject of the email sent on 17 August 2021 was related to the claimant’s project work.

[246]The claimant was not included in the recipients of the 17 August 2021 email because it was not necessary to do so. The issue concerned was not part of the work on which the claimant was to focus at that time. This is the reason why the claimant was not included in the list of recipients. There was no ulterior motive on the part of Dr Allum. Alleged detriment 15(e) – The Claimant was not invited by Dr Perry to attend the LCEA review in August 2021 after having advised on it in 2020. Instead, Mr Tom Olam was invited and the Claimant had no updates about the outcome – para 27 PoC

[247]The claimant was invited by Dr Perry to attend the Local Clinical Excellence Awards [‘LCEA’] review on 24 August 2020. The claimant was not invited to attend the LCEA review in August 2021.

[248]The reason for this was that by August 2021, the claimant’s role had changed to a primary focus on projects work. By August 2021 the LCEA was being handled by Tom Olam and attendance at the review fell within the remit of Mr Olam’s responsibilities. Consequently, there was no need, and it was not appropriate, for the claimant to attend the LCEA review when Mr Olam was attending. This is the reason why the claimant was not invited to the August 2021 review. It has nothing to do with the claimant having raised a grievance. Allegation 5(a)(xiv) - On 9th September 2021 Dr Perry arranged a meeting and chose selectively two other colleagues (Mohan Butt and Muchi [surname unknown] – both nonwhite) from a subgroup that the Claimant created and led on – para 16 PoC

[249]On 09 September 2021, Dr Perry convened a meeting at which issues concerning the speciality and specialist doctors’ [‘SAS’] new contract were discussed. He invited the claimant to that meeting along with Dr Mohan Bhat who was an associate medical director [‘AMD’] and Muchie Shamuyarira. The statement of issues describes both Dr Bhat and Muchie Shamuyarira as ‘non-white’.

[250]In evidence the claimant expressed the view that this meeting was called to: ‘…humiliate her further’. The tribunal finds no evidence to support this assertion.

[251]The meeting was called for proper business purposes. No evidence was presented to the tribunal which demonstrates that the conduct of the meeting was in any way improper or intended to humiliate the claimant.

[252]There is no evidence of such conduct during the meeting contained in either the claimant’s witness statement, nor suggestion of it at paragraph 16 of the Particulars of Claim attached to the ET1.

[253]The claimant complains that the issue is one with which she had been involved and that the two other attendees at the meeting on 09 September 2021 had been drawn from a subgroup which she had created. The tribunal finds that the entire purpose of the meeting and the selection of attendees was in an effort to progress an issue of importance for the respondent.

[254]The subject matter of the meeting was an entirely proper one for Dr Perry to be engaged with and to call a meeting to which the claimant was also invited. Dr Perry had no interest in undermining the claimant in respect of her work concerning the SAS doctor’s contract. On the contrary, the tribunal finds that he had every interest in achieving a smooth implementation of the new contract.

[255]The tribunal finds that Dr Perry had no ulterior motive for calling the meeting on 09 September 2021 other than what he perceived, rightly or wrongly, to be the proper management of an issue of great importance to the respondent. Alleged detriment 15(i) – Dr Allum allegedly fabricating the complaint that led to the Claimant’s suspension

[256]In her email to the claimant dated 04 May 2021, Ms Evans had requested that the claimant focus on two projects which were described as a: ‘…priority...’. The second of those projects was the: ‘SAS new contract. Paper to go to EMT in August 2021. Implementation/Time line/Benefits for the organisation.’

[257]On 03 June 2021 a Medical Managers Meeting was held. There were twelve attendees, including Dr Allum, the claimant, and Dr Perry.

[258]The minutes of the meeting include the following contribution from the claimant: ‘All SAS doctors as a starting point as they all will need to agree a job plan before transitioning to the new contract, but all doctors needs [sic] a job plan before transitioning to the new contract, but all doctors needs [sic] an approved job plan which is a contractual requirement.’

[259]By email to the claimant dated 09 July 2021, Dr Allum set out her understanding that the: ‘…SASG doctors who move to the new contract will at that point need job planning.’. In her reply dated 12 July 2021 the claimant confirmed that it was: ‘...also my understanding that the JP is a requirement prior to the transition.’

[260]By email dated 14 July 2021, Dr Allum informed the claimant that: As regards whether or not a job plan is a requirement prior to the transition, the Framework Agreement confirms (at section 5.1) that eligible doctors have until 30 September 2021 to submit an expression of interest in transferring to the new TCS, and then the job planning process is undertaken before the transition. We will therefore act in line with this.’ [emphasis added].

[261]On 31 August 2021 the claimant sought to arrange for an email notification to be sent to SAS/Associate Specialist Doctors to remind them that: ‘The six month window (1 April 2021 – 30 September 2021 to confirm with us your expression of interest to move to the new contract will end soon…’.

[262]At a Medical Management Meeting on 02 September 2021, the minutes record that the claimant reported that: ‘26 SAS doctors expressed their interest in transferring to the new contract…’.

[263]On 08 September 2021 the claimant emailed colleagues and informed them that she would: ‘…shortly send a reminder to those who expressed their interest to liaise with their AMDs to start job planning and send me a copy of their signed job plan.’

[264]In an email to Dr Perry sent on 09 September 2021, the claimant stated that she would: ‘…circulate the list of SAS who expressed their interest which I will do next week.’

[265]By 16 September 2021 the claimant had not yet circulated the list of SAS doctors who had expressed an interest in the new contract. On that day Dr Allum contacted Tom Olam to ascertain whether he had received the list. Mr Olam confirmed that he had not.

[266]Mr Olam who was then the claimant’s line manager had a discussion with her about the list on the evening of 16 September 2021. In an email sent at 08.23am on 17 September Mr Olam followed up on the discussion in an email.

[267]Mr Olam’s 17 September 2021 email includes the following: ‘…I requested that you share with me the list of those 28 SAS doctors that have expressed interest to move onto the new contract, but you said it was agreed at the last SAS meeting (when asked by the AMD – Vivian Porcari) that you would share this with the AMDs in week commencing 20th September. Until then you were not going to share it with anyone…I am making a reasonable management request that you share with me the current list of SAS doctors that have expressed interest to migrate to the new contract [emphasis added]. This will enable me to ascertain where we are with the project and to enable Caroline to update EMT at the end of month, since EMT have not been updated over the past two sessions.’

[268]The claimant acknowledged Mr Olam’s email on the morning of 17 September 2021, but she provided none of the information which he had requested. The claimant said that she found Mr Olam’s email: ‘…confusing and not reflecting our full conversation last night…[the claimant] will discuss with Caroline.’.

[269]In her oral evidence the claimant suggested to the tribunal that the reason why a list of the doctors was not sent to Tom Olam at that time was because a definite list was not then available. If this was really the case, it is remarkable that the claimant did not indicate this in her reply to Tom Olam or in her subsequent correspondence with Dr Allum as set out below.

[270]Dr Allum sent her own email to the claimant on 17 September 2021 at 08.19 a.m. In addition to the claimant, Dr Allum’s email was sent/cc’d to Simon Hart, Tom Olam, and Dr Perry. Dr Allum requested that the claimant: ‘Please reply to all above with the list of SASG doctors transferring to the new contract, those who have yet to respond and those who have declined by 10am today. I know Tom has already asked you for this list. I need to let the AMDs know who to job plan by close of play today and we only have 13 days left for them to do this. This is obviously high priority. Please can we have an agenda and plan for this afternoon? We need to see actions and timelines for delivery of this contract. If we do not have the above, regrettably we will have to cancel the meeting this afternoon and reschedule until we have this information. We need to have assurance that all is on track for delivery by 30th September.’

[271]Dr Allum’s email reflected what she genuinely understood to be the urgency of the situation. The claimant can have been in no doubt that the matter was pressing. On 31 August 2021 she had asked that a chaser be sent to all SAS doctors to remind them that the 6 month window for expressions of interest ran from 01 April to 30 September 2021 and was shortly to expire.

[272]The claimant will have known Dr Allum had a legitimate interest in ascertaining how many doctors were at that point due to transfer to the new contract. Dr Allum’s 17 September 2021 correspondence was sent 5½ months after the expression of interest exercise started and 13 days before it was due to expire.

[273]In this context, the reply which the claimant sent to Dr Allum on 17 September 2021 was hopelessly inadequate. The claimant wrote: ‘I just saw your email and acknowledge receipt. I will arrange a meeting with yourself and your management to discuss the series of hate incidents/crimes and clarify our roles. In the meantime I will be very grateful if I can be treated as a human and my dignity respected.’

[274]The claimant’s reply simply ignored Dr Allum’s reasonable request for information about those SAS doctors who had expressed an interest in transferring to the new contract. This is information which the claimant had intimated that she had in her possession at the Medical Management Meeting on 02 September 2021, in her email to Dr Perry dated 09 September 2021, and to Mr Olam when discussing matters only the evening before.

[275]The information was not the property of the claimant. No adequate explanation was offered by the claimant as to why she refused to provide the information requested to either Mr Olam or Dr Allum. The claimant was not entitled to hold the information hostage to her own demands.

[276]If there was no definitive list as the claimant suggested under cross-examination, the claimant could have provided what she had to Mr Olam and Dr Allum, subject to that caveat. The claimant had an opportunity to explain this in her emails sent on 17 September 2021 in response to Mr Olam and Dr Allum’s requests. She didn’t do so. Instead, the responses which the claimant chose to send to the reasonable requests of management were determinedly obstructive. The claimant’s replies failed to engage with the substance of the requests which were made to her.

[277]The tribunal was presented with no evidence which could support a finding that in the manner of progressing their requests for the information either Mr Olam or Dr Allum conducted themselves in a way that could properly be described as either a hate incident/crime or failing to respect the claimant’s dignity.

[278]Insofar as the claimant was referring to other matters which either formed part of her existing grievance or about which she would wish to complain, it was entirely inappropriate to withhold the information about the transitioning SAG doctors.

[279]At 18.13 on 17 September 2021 the claimant sent to two AMDs a partial list of doctors who were to transition to the new contract. It comprised 6 names.

[280]The claimant continued without adequate reason to fail to send the list of names to Dr Allum, Mr Olam, Mr Hart, and Dr Perry, as Dr Allum had requested in her email sent earlier in the day on 17 September 2021.

[281]As recorded by Mr Olam in his email to the claimant dated 17 September 2021, the claimant had said that she would share the list of transitioning doctors with the AMDs in the week commencing 20 September 2021. On that date Dr Allum emailed Mr Olam to request that he chase up the list of transitioning doctors with the claimant: ‘We do need the names and numbers of those who are transferring from her asap as per the emails last week – this is now an urgent matter so we can complete by 30/9’.

[282]Mr Olam had a meeting with the claimant on 21 September. It was at this point that the claimant told Mr Olam that she didn’t have a solid list of SAS doctors who either did or did not have an interest in transitioning to the new contract. Nonetheless the claimant told Mr Olam that she: ‘…would share with [Mr Olam] by the end of day the current position of those with/out interest in transitioning to the new contract.’

[283]The claimant did not share the current position with Mr Olam by the end of the day. What the claimant did do was to email Mr Olam at 17.42 on 21 September to say that she had: ‘…updated the AMDs on their respective Doctors transitioning and will give them a final list on 1st October as the deadline is 30th September. Out of the 68 SAS 32 have expressed an interest on the new contract but this varies on a daily basis and I am still having 1 to 1 discussions. The final briefing is arranged by medical education tomorrow.’

[284]Again the claimant failed to provide to Mr Olam a list of the relevant individuals. The evidence before the tribunal did not evidence any business case or any other proper basis in support of the claimant’s continued refusal to provide Mr Olam with information in her possession, information which the claimant stated she had provided to: ‘…AMDs on their respective Doctors transitioning...’.

[285]Mr Olam responded to the claimant’s email at 18.15 on 21 September 2021. He asked the claimant to: ‘…share the provisional list tomorrow after the final briefing so that we have an idea of numbers and can start to plan accordingly and to enable Caroline [Allum] to give an update to EMT on the SAS Project.’

[286]The claimant did not reply to Mr Olam until an email sent to him at 11.15 a.m. on 22 September 2021, when the claimant responded: ‘…Will do.’.

[287]The claimant’s email to Mr Olam sent at 11.15a.m. followed one which had been sent to her by Dr Allum 11 minutes before at 11.04a.m. In that email Dr Allum told the claimant that she wanted to meet with the claimant that afternoon to discuss a: ‘serious issue…The allegations are that you have refused to carry out a reasonable management instruction. You will be aware that the request has a big impact on the organisation both from a reputational and service delivery aspect and that the deadline for organisational completion is 30th September 2021. The allegation relates to you not providing any assurance/evidence that you have completed the required consultation process or were able to provide a current list of SAS doctors who have formally expressed an interest in migrating to the new contract or have chosen to remain on the old contract. This was despite numerous chaser emails and more recent meeting with Tom Olam on Thursday 16th September 2021 and yesterday and the SAS project currently being a key part of your role.’

[288]It was now just 8 days before the expiry of the time for SAS doctors to lodge their expressions of interest. Despite earlier requests from Dr Allum and Mr Olam the claimant had still not provided the list of SAS doctors requested. The requests were straightforward and would not have been difficult to respond to in a cooperative manner. If the claimant was missing information, or there was some continuing uncertainty about the information provided, it would have been a simple matter for the claimant to highlight this when she sent the information to Dr Allum, Mr Olam and others.

[289]The tribunal is satisfied that the motivation for the meeting being called was entirely due to Dr Allum’s concerns as outlined in her email sent to the claimant at 11.04a.m. on 22 September 2021. There was no ulterior motive. It was not related to any other matter.

[290]The meeting between Dr Allum and the claimant was scheduled at 4.15p.m. on 22 September. The claimant confirmed her attendance by an email sent at 11.50a.m. Between that time and the commencement of the meeting, the claimant did not send to Dr Allum a provisional current list of the SAS doctors who had expressed an interest in transitioning to the new contract, and those doctors who had decided to remain on the existing contract.

[291]The outcome of the meeting, which was also attended by a senior HR manager was that the claimant was suspended immediately on full pay. This was confirmed by letter which restated the allegation against the claimant in the same terms as Dr Allum’s email sent at 11.04a.m on 22 September 2021.

[292]The tribunal finds that the suspension arose from genuine concern about the way in which the claimant dealt with requests to provide what was considered by Dr Allum to be essential information. Dr Allum harboured a genuine concern about potential

[293]On 23 September 2021 the claimant sent: ‘the most updated version’ of the list.

[294]On 27 September 2021 the claimant raised a grievance against Dr Allum which alleged that the claimant had been subject to unfair and poor management by Dr Allum. The complaint was put in a number of different ways:• Setting the claimant up to fail by providing inadequate line management support

• Placing Deborah Evans in line management position to find faults in the claimant’s work/leadership in order to instigate a performance improvement plan and failing to recognise the claimant’s contribution, including by inserting a band 8c [Mr Olam] into the structure with no clear rationale and who was completing the same work as the claimant creating inequity

• Removing the claimant from work she was leading on as a means of humiliating her

• Fabricating evidence in order to have the claimant suspended or to ruin her reputation

• Setting tasks for the claimant without providing the necessary background information to complete the work, refusing to meet with the claimant to discuss in order to set the claimant up to fail

• Unfairly denying access to resources to support the claimant by preventing a PA in the development of a job description document

• Failing to follow the governance policy in respect of the claimant by allowing/gaining access to her inbox without her consent, and by forwarding to Capsticks solicitors a confidential email sent by the claimant at a time when there were no legal disputes and therefore failing to protect the claimant’s personal and sensitive information

• As a result of the investigation, does the evidence support whether the claimant is or has been subject to an ongoing campaign of harassment, humiliation, intimidation, bullying by Dr Allum?

[295]This grievance was investigated by Mr Wellington Makala, the respondent’s Executive Chief Nursing Officer. By an outcome letter dated 03 March 2023, Mr Makala informed the claimant that: ‘…there is no evidence to suggest that you have been subjected to unfair and poor management and/or an ongoing campaign of harassment, humiliation, intimidation or bullying by [Dr Allum]’. Alleged detriment 15(k) – In October 2021, Ms Pavanjit Devsi was appointed as the Commissioning Manager regarding the disciplinary process against the claimant, despite being junior to Dr Caroline Allum

[296]Due to also being a witness, Dr Allum was deemed inappropriate to act as commissioning manager in respect of the disciplinary process against the claimant. The role of commissioning manager was allocated to Ms Pavanjit Devsi who is employed by the respondent as Director of Procurement and Contracts. Ms Devsi took on the position on 14 October 2021.

[297]Dr Allum is an executive director of the respondent. Ms Devsi is not. Dr Allum has a more senior rank within the respondent. Ms Devsi is nonetheless a senior manager. She does not work within Dr Allum’s directorate and consequently Dr Allum has no control over Ms Devsi’s work. There is no evidence to contradict or undermine Ms Devsi’s assertion that her personal qualities are such that she is capable of exercising independent judgment regardless of Dr Allum’s status as an executive director.

[298]There is no evidence that the appointment of Ms Devsi as commissioning manager was influenced by any extraneous considerations other than finding a suitable person to act as commissioning manager. Alleged detriment 15(l) – The failure to regularly review her suspension or provide a buddy

[299]When Ms Devsi took on the role of commissioning manager, the claimant was already suspended from work. Under the respondent’s policy, where an employee is suspended the commissioning manager is: ‘…responsible for reviewing necessity for suspension/restriction on a fortnightly basis and for notifying the employee of that decision.’

[300]Ms Devsi did review the suspension but not on a fortnightly basis. She reviewed the suspension on 24 November 2021, 04 February 2022, 01 March 2022 and 20 April 2022.

[301]The tribunal is satisfied that the reason for Ms Devsi’s failure to follow the policy was not due to her being influenced by any extraneous considerations. Ms Devsi has attempted to fulfil the obligation to keep the suspension under review and believed that she had done so. She has fallen short of the respondent’s published policy by reason of inexperience. At the time of her appointment as commissioning manager, Ms Devsi has managed only one other suspension previously.

[302]In a letter to the claimant dated 01 March 2022 on the subject of suspension reviews, Ms Devsi wrote: ‘At this point in time, whilst we will continue to review the suspension regularly, it is unlikely that this suspension decision will change until the investigation process has been concluded and the investigative report is submitted.’ It is clear from Ms Devsi’s evidence that she did not fully appreciate the practical implications for a commissioning manager of the respondent’s policy of fortnightly reviews of suspension. This is a training issue for the respondent.

[303]During the disciplinary process the claimant did have access to a support buddy. Initially the claimant was allocated an HR business partner, Donna Sackey. The claimant requested a change and on 15 October 2021 she was allocated Lindsey Royan who is a consultant clinical psychologist. Ultimately the claimant asked that Catherine Lund, Associate Director of Quality Governance who was also the Chair of the Ethnic Minority Network should take on the role and she agreed to do so. Alleged detriment 15(m) – On 25 March 2022, the Respondent imposed terms of reference on the Claimant in respect of her grievance whereas these are normally discussed and

[304]The claimant raised 3 grievances in total:• Dated 01 June 2021 and sent to Dr Allum on 02 June 2021, grievance raised against Dr Perry.

• Dated 27 September 2021 grievance raised against Dr Allum.

• Dated 28 February 2022 grievance raised against Dr Allum and the respondent: ‘…regarding unfair and discriminatory suspension’.

[305]Submissions were made on behalf of the claimant that Terms of Reference were imposed in respect of the third grievance which is dated 28 February 2022. It is this third grievance to which the alleged detriment 15(m) relates.

[306]Under paragraph 6.1.5 of the respondent’s HR Investigation Policy where allegations have been made under the Disciplinary, Grievance or Prevention of Bullying and Harassment Policies: ‘Once the investigation is agreed to be necessary the commissioning manager will need to confirm the Terms of Reference for the investigation…’. Under paragraph 6.1.6 of the HR Investigation Policy: ‘An essential element of this is to set out the allegation(s) against the employee. Allegations need to be carefully drafted to ensure that they are relevant and strike the right balance in terms of breadth and depth. Care should be taken to consult with any appropriate professional advisers, for example the relevant director of nursing.’ Under paragraph 6.1.9 of the HR Investigation Policy: ‘Ideally the employee will be provided with the Terms of Reference of the Investigation…’.

[307]The tribunal heard from Mr Wellington Makala who is the respondent’s Executive Chief Nursing Officer and ultimately acted as the commissioning manager in respect of the grievances raised by the claimant, including the third grievance. Mr Makala described himself as being, ‘of the same race’ as the claimant.

[308]It is notable that, on 10 November 2021, Mr Makala messaged the claimant to inform her that the Terms of Reference in respect of the grievance against Dr Perry had been sent to her union representative who in turn had sent them to the claimant. The claimant responded that she had accepted the Terms of Reference in respect of the Dr Perry grievance and that she would get back to Mr Makala about the terms of reference in respect of the Dr Allum grievance.

[309]There was email correspondence in December 2021 about the Terms of Reference in respect of the September 2021 grievance against Dr Allum. The correspondence was between Zulekha Ahmed (the respondent’s Senior Human Resources Manager – Interim), and the claimant. The correspondence was cc’d to Mr Makala and to the claimant’s union representative. Ultimately on 16 December 2021 the claimant agreed Terms of Reference in respect of the September 2021 grievance against Dr Allum.

[310]The claimant alleged in her witness statement that, in respect of her third grievance dated 28 February 2022, that: ‘On 25th March 2022 the Respondent imposed terms of reference on me in respect of my grievance whereas these are normally discussed and agreed between the parties (This document is not in the hearing bundle)’.

[311]The tribunal was not provided with any document dated 25 March 2022 which imposed Terms of Reference in respect of the investigation into the claimant’s February 2022 grievance against Dr Allum. On the evidence provided to the tribunal it is unable to find that such a document exists.

[312]The tribunal accepts the evidence of Mr Makala that no written Terms of Reference were prepared in respect of the investigation of the 28 February 2022 grievance.

[313]The grievance alleged that:• The, ‘…suspension was a knee-jerk response, carried out without justification and in a humiliating way.’

• The respondent, ‘…failed to follow rules in the procedure governing suspensions…’

• ‘Due to the circumstances – the decision and actions of the trust was swift, harsh and unfair compared to colleagues with similar or worse allegations, I feel discriminated against’

• ‘I believe my suspension on 22nd September 2021 by Dr Caroline Allum was unlawful and discriminatory. I believe I was victimised because of my whistleblowing regarding Dr Perry’s potential fraud. Medical workforce malpractices and possible cover up…’

• Among other ‘added concerns’ the grievance referenced, ‘My recent email to Makala Wellington regarding Medical HR institutionalised malpractices, racism, discrimination and culture.’

[314]On 10 August 2022, Mr Makala met with the claimant and discussed the February 2022 grievance. Also present at that meeting were Ted Purcell (the claimant’s trade union representative), and Steve Stavrinou (a HR manager from the respondent). On that date the claimant confirmed to Mr Makala that the only issues she was complaining about were that the suspension was a: ‘knee-jerk response’ and that the appropriate process had not been followed.

[315]Mr Makala investigated the February 2022 grievance and by letter dated 03 March 2023 informed the claimant of the outcome of the investigation. In that letter Mr Makala sets out in more refined terms what was discussed at the meeting on 10 August 2022. The account has not been challenged: ‘We discussed your concern, and you clarified that this allegation was that you felt that due process of the suspension was not taken in accordance with Trust Policy. You agreed that due to the complexities of undertaking several investigations already in situ, that I would respond to this issue separately and it would not form part of the investigation being undertaken. A further meeting was scheduled for 30 September 2022 which you were not able to attend.’

[316]The respondent’s HR Investigation Policy at paragraph 6.1.6 refers to the need for allegations in the Terms of Reference to be: ‘…carefully drafted to ensure that they are relevant and strike the right balance in terms of breadth and depth’. The reference to: ‘carefully drafted’ certainly implies that the Terms of Reference should be in writing. On this occasion this did not occur.

[317]It may be thought that this was an error of judgment on Mr Makala’s part. No evidence has been adduced to the tribunal however, from which it could infer a malign or ulterior motive on Mr Makala’s part. Mr Makala presented as a man of independent mind who was determined to do his best to discharge his role as commissioning manager. There is no evidence from which the tribunal could infer that Mr Makala had been placed under pressure or influence by any other party.

[318]Mr Makala was open at the meeting on 10 August 2022 about how he intended to go forward with the investigation. This meeting was attended by both the claimant and her trade union representative and the tribunal has not been directed to any objection raised at that meeting to the course proposed by Mr Makala.

[319]The tribunal finds:• Terms of Reference in respect of the 28 February 2022 grievance were not imposed on 25 March 2022;

• What Mr Makala proposed as Terms of Reference were discussed and agreed at the meeting on 10 August 2022;

• The absence of written Terms of Reference is due to a judgment made by Mr Makala which he genuinely believed fully met his obligation as commissioning manager;

• Mr Makala did his best to discharge his role independently and with no motive other than endeavouring to the best of his ability to properly and fairly investigate the grievance. Alleged detriment 15(n) – On 29 April 2022, the claimant received a letter setting out the terms of reference for Nick Macklin’s investigation

[320]Nick Macklin is a Chartered Member of the Chartered Institute of Personnel and Development. In 2022 he worked with DAC Beachcroft LLP and specialised in conducting and managing workplace investigations. Mr Macklin was engaged by the respondent to conduct investigations into the claimant’s grievance against Dr Perry and her grievance dated 27 September 2021 against Dr Allum. Mr Macklin had never worked at the respondent and had no prior contact with any of the individuals concerned in his investigations.

[321]In her witness statement the claimant states that: ‘I received a letter from Wellington Makala dated 29th April 2022 setting of the terms of reference for Nick Macklin’s made by the claimant. The claimant did not produce a copy of the offending letter.

[322]No evidence has been provided to the tribunal from which the tribunal could conclude that there was anything improper or inappropriate about the content of the letter. Alleged detriment 15(o) - On 04 May 2022 the investigation officer failed to answer questions about who made the allegations against her

[323]Ms Jyoti Grewal, an independent HR consultant, was appointed to investigate the allegations made against the claimant which ultimately led to her suspension. During cross-examination the claimant conceded that the meeting at which alleged detriment 15(o) occurred took place on 21 April 2022 rather than 04 May 2022 as pleaded. The meeting took place remotely by MS Teams.

[324]Present at the meeting were the claimant, her union representative, the claimant’s buddy (Ms Lund), and Ms Grewal herself.

[325]In a letter dated 12 April 2022 Ms Grewal explained the purpose of the meeting to the claimant as follows: ‘As you know the purpose of the investigation meeting will be to review the concerns raised, to seek your version of events and discuss any information gathered. If you have identified any witnesses, which you feel are pertinent to the investigation, we can discuss this at the meeting. The questions I will be asking during the meeting include, but are not limited to:• The SAS project and your understanding of timescales

• Evidence of ‘a list’ of those moving over to the new contract

• Reasons for not producing said list to the Trust

• Delays with the project and if this was communicated

• Any other factors and your response to the allegations’

[326]At the meeting the claimant asked Ms Grewal: ‘Who are the people who made the complaints…against Oumouly?’.

[327]Ms Grewal responded that it was based on the Terms of Reference: ‘So I would have thought the witnesses that I have interviewed Caroline Allum, so she would have been one of them. I don’t think they were specific complaints, I think that these are the allegations and the individuals who can provide a response to the allegation are those witnesses.’

[328]The claimant was not satisfied with that response and queried: ‘Ok so let me ask the question again. Who are the people who made the complaint against Oumouly?”. At that point Ms Grewal asked the Claimant: ‘Can you refer that back to the Trust.’

[329]The claimant’s union representative took up the issue and asked: ‘…who are the names on the terms of reference?’. Ms Grewal replied: ‘So it’s under the General, page 2, so there are…it says, “The investigator will seek to interview the first instance [sic] Tom Olam, Deborah Evans, Vincent Perry and Caroline Allum and any other staff member that I feel that’s relevant or Oumouly identifies as a witness as well’.

[330]The claimant then went on to cross-question Ms Grewal as to whether specific individuals were complainant’s or witnesses, and at what point, in the claimant’s terms, Dr Allum went from commissioning manager to witness.

[331]The transcript of the meeting on 21 April 2022 reflects Ms Grewal as investigator doing her best to respond to the claimant’s queries. It is not correct that Ms Grewal: ‘…failed to answer questions about who made the allegations against [the claimant]’.

[332]Dr Allum’s decision to suspend was her response to circumstances as they appeared to her concerning the transition of SAS doctors to the new contract. Dr Allum did not act on a complaint but made a decision as manager on the basis of her knowledge and perception of the available information.

[333]The tribunal has not been presented with evidence to support any suggestion that Ms Grewal did not attempt to discharge her role honestly, independently and to the best of her ability. If there was any shortcoming in her approach, it was not due to Ms Grewal being influenced in her decision making and communication with the claimant by anything, other than making an attempt to carry out an investigation of matters within the Terms of Reference.

[334]There is no evidence that the terms of Ms Grewal’s response to the claimant’s questions was improperly influenced or shaped by the decision maker or any other person. Alleged detriment 15(p) - On 30 May 2022, Mr Macklin declined to interview certain witnesses that she had proposed

[335]The claimant’s witness statement simply states that: ‘…Mr Macklin declined to interview certain witnesses that I had proposed’. The claimant did not in the statement either identify any specific witnesses or contextualise their significance.

[336]Similarly, the claimant’s oral evidence did not provide this detail either.

[337]Mr Macklin’s report of his investigation records: ‘During the course of my investigation, OB [the claimant] submitted an extensive list of potential witnesses, in addition to those identified when the terms of reference were agreed. I gave very careful consideration to this list and had a virtual meeting with OB and her then trade union representative, Ted Purcell [TP], National Organiser, Community Trade Union, to discuss how these individuals might contribute to the finding of fact in respect of the issues raised in OB’s grievance. Using that as the only criteria for selection I undertook to approach four of those originally listed…’. Mr Macklin then went on to describe the efforts which he made to interview the four identified individuals. Ultimately, he was only able to speak with three of the four individuals.

[338]No evidence has been adduced which might support a suggestion that Mr Macklin’s exercise of discretion in deciding which witnesses to speak with, was tainted in any way by improper or extraneous considerations. The tribunal finds that he made these decisions independently and in the proper discharge of his role as investigator. Alleged detriment 15(q) – The respondent failed to deal with her grievances in a timeous manner

[339]In respect of this alleged detriment the claimant’s counsel relies in written submissions on the claimant’s grievances against Dr Perry (dated 02 June 2021) and against Dr Allum (dated 27 September 2021).

[340]Mr Nick Macklin was appointed to investigate both grievances. His investigation reports are lengthy. The report into the grievance against Dr Perry is 80 pages long. The report into the grievance against Dr Allum is 52 pages long.

[341]The Terms of Reference for the investigation of the 02 June 2021 grievance against Dr Perry were agreed by the claimant by messaging service on 11 November 2021 and signed electronically on 12 November 2021. Mr Macklin accepted the case on 16 November 2021. At that time the target completion date for the investigation was stated to be 4 weeks from 30 November 2021. In fact, the investigation report is dated 31 December 2021, more than a year later. A letter from Mr Makala notifying the claimant of the outcome of the grievance was not sent until 03 March 2023.

[342]Mr Makala was not the first commissioning manager appointed to deal with the 02 June 2021 grievance. Originally Mr Simon Hart, the respondent’s Executive Director of People and Culture, was appointed. The claimant objected to Mr Hart’s appointment on the basis of her assertion that Mr Hart was, as Mr Hart described in an email to the claimant dated 13 July 2021: ‘…too closely involved in the Medical HR department to remain neutral and unbiased.’ While Mr Hart did not accept that this was the case, nonetheless on 13 July 2021 he informed the claimant that he would agree to her request that someone else should be appointed commissioning manager. Consequently, Mr Makala was appointed commissioning manager.

[343]During his time as commissioning manager, Mr Hart endeavoured without success to agree Terms of Reference with the claimant. A flavour of the issues which arose is found in his email to the claimant dated 13 July 2021 to which he attached his latest revised version of the Terms of Reference. Mr Hart commented: ‘Please note that I have removed any additions you made which sought to extend the terms of reference beyond the scope of your original grievance, removed any allegations which post-date your grievance, and removed any sub-clauses which will be covered by the broader headings in any event, in order to ensure that the terms of reference are clear, concise and workable. You will of course have an opportunity to elaborate on your complaints as you see fit during the investigation process. In order to finalise the terms of reference, could you please let me know the names to be inserted at 2a) and 2e).’

[344]After Mr Makala took over as commissioning manager, it took some time to agree Terms of Reference which, as noted above, were not agreed by the claimant until November 2021.

[345]The Terms of Reference for the investigation of the 27 September 2021 grievance against Dr Allum are dated 07 December 2021. Mr Macklin accepted the case on 13 December 2021. The target completion date was 4 weeks from 13 December 2021. On 16 December 2021 the claimant submitted electronically her agreement to the Terms of Reference. The investigation report is dated December 2022. This was approximately 11 months after the target completion date. A letter from Mr Makala notifying the claimant of the outcome of the grievance was not sent until 03 March 2023.

[346]Both investigation reports set out the extensive enquiries and review of documentation carried out by Mr Macklin. It is clear however that a number of factors contributed to at least part of the delay.

[347]In his report in respect of the grievance against Dr Allum, Mr Macklin wrote: progress.’

[348]No evidence has been placed before the tribunal which would support a conclusion that Mr Macklin did not act independently and/or that his investigation was protracted due to any reason extraneous to what Mr Macklin thought was necessary for the investigation. LAW Jurisdiction

LAW

[349]Under the Equality Act 2010 [‘EqA’] s123(1)(a) the primary time limit for making a discrimination claim is claim is three months which runs from the date of the act to which the claim relates. Under s123(1)(b) it can be such other period other than 3 months as the tribunal thinks just and equitable. The same time limit applies to the victimisation and harassment claims.

[350]EqA s123 provides as follows: ‘(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. … (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.’

[351]Under the Employment Rights Act 1996 [‘ERA’] s48(3) and (4), a claim for detriment on the ground of protected disclosure, must be brought: ‘…(a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. (4) For the purposes of subsection (3) – (a) where an act extends over a period, the “date of the act” means the last day of that period, and (b) a deliberate failure to act shall be treated as done when it was decided on;’

[352]In Hendricks v Metropolitan Police Commissioner

[2002] EWCA Civ. 1686

at para 52, the focus should be on the substance of the complaints that the Commissioner was responsible for an ongoing situation or a continuing state of affairs in which female ethnic minority officers in the Service were treated less favourably. The question is whether that is "an act extending over a period" as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed.

[353]In cases where the tribunal has actually made final decisions on the facts, it is impermissible for the tribunal to rely on any act which it has not found to be a discriminatory act, as a constituent part of alleged conduct extending over a period of time.

[354]In South West Ambulance Service NHS Foundation Trust v Mrs C King

UKEAT/0056/19/OO

, Choudhury J held at paragraph 33: ‘33. In order to give rise to liability, the act complained of must be an act of discrimination. Where the complaint is about conduct extending over a period, the Claimant will usually rely upon a series of acts over time (I refer to these for convenience as the "constituent acts") each of which is connected with the other, either because they are instances of the application of a discriminatory policy, rule or practice or they are evidence of a continuing discriminatory state of affairs. However, if any of those constituent acts is found not to be an act of discrimination, then it cannot be part of the continuing act. If a Tribunal considers several constituent acts taking place over the space of a year and finds only the first to be discriminatory, it would not be open to it to conclude that there was nevertheless conduct extending over the year. To hold otherwise would be, as Ms Omeri submits, to render the time limit provisions meaningless. That is because a claimant could allege that there is a continuing act by relying upon numerous matters which either did not take place or which were not held to be discriminatory.’

[355]In considering when it is just and equitable to extend time, Leggatt LJ at paragraph 25 of Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] EWCA Civ. 640

, held: ‘As discussed above, the discretion given by section 123(1) of the Equality Act to the employment tribunal to decide what it "thinks just and equitable" is clearly intended to be broad and unfettered. There is no justification for reading into the statutory language any requirement that the tribunal must be satisfied that there was a good reason for the delay, let alone that time cannot be extended in the absence of an explanation of the delay from the claimant. The most that can be said is that whether there is any explanation or apparent reason for the delay and the nature of any such reason are relevant matters to which the tribunal ought to have regard.’ Detriment on the ground of protected disclosure

[356]Under the Employment Rights Act 1996 [‘ERA’] s48(3) and (4), a claim for detriment on the ground of protected disclosure, must be brought: ‘…(a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or

[357]The tribunal has taken into account the principals set out in Selkent Bus Co Ltd v Moore

[1996] ICR 836

. Mummery J held at paragraph 843D that: ‘Whenever the discretion to grant an amendment is invoked, the tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it’. At page 844 Mummery J went on to observe: ‘(5) What are the relevant circumstances? It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant.(a) The nature of the amendment. Applications to amend are of many different kinds, ranging, on the one hand, from the correction of clerical and typing errors, the addition of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The tribunal have to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action.

(b) The applicability of time limits. If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions, e.g., in the case of unfair dismissal, section 67 of the Employment Protection (Consolidation) Act 1978 .

(c) The timing and manner of the application. An application should not be refused solely because there has been a delay in making it. There are no time limits laid down in the Regulations of 1993 for the making of amendments. The amendments may be made at any time — before, at, even after the hearing of the case. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made: for example, the discovery of new facts or new information appearing from documents disclosed on discovery. Whenever taking any factors into account, the paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment. Questions of delay, as a result of adjournments, and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision.’ Direct Discrimination because of Race

[358]Section 13(1) of the Equality Act 2010 [‘EqA’] provides that: ‘A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others’.

[359]Section 23(1) of the EqA states that: ‘On a comparison of cases for the purposes of section 13 […] there must be no material difference between the circumstances relating to each case.’

[360]Lord Scott noted at paragraph 110 of Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] UKHL 11

[2003] ICR 337

that: “… the comparator required for the purpose of the statutory definition of discrimination must be a comparator 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. …” In Shamoon Lord Nicholls went on to explain that: “8. No doubt there are cases where it is convenient and helpful to adopt this two step approach to what is essentially a single question: did the claimant, on the proscribed ground, receive less favourable treatment than others? But, especially where the identity of the relevant comparator is a matter of dispute, this sequential analysis may give rise to needless problems. Sometimes the less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue. The two issues are intertwined. …11. … employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case. Or was it for some other reason? If the latter, the application fails. If the former, there will usually be no difficulty in deciding whether the treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others.

12. The most convenient and appropriate way to tackle the issues arising on any discrimination application must always depend upon the nature of the issues and all the circumstances of the case. There will be cases where it is convenient to decide the less favourable treatment issue first. But, for the reason set out above, when formulating their decisions employment tribunals may find it helpful to consider whether they should postpone determining the less favourable treatment issue until after they have decided why the treatment was afforded to the claimant. ...”

[361]In Khan v Chief Constable of West Yorkshire Police

[2001] UKHL 48

, at paragraph 29 Lord Nicholls addressed the assessment of the reason why a claimant has suffered any alleged less favourable treatment: ‘…why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? … this is a subjective test…The reason why a person acted as he did is a question of fact.’

[362]In respect of the burden of proof, section 136 of the EqA provides: ‘(1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision…’

[363]The Court of Appeal in Igen v Wong

[2005] EWCA Civ. 142

at paragraph 76 set out guidance as to how an employment tribunal should approach the task of applying the statutory provisions as previously formulated in a direct discrimination case: ‘…We repeat the warning that the guidance is only that and is not a substitute for the statutory language. Annex(1) Pursuant to section 63A of the SDA, it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part II or which by virtue of s. 41 or s. 42 of the SDA is to be treated as having been committed against the claimant. These are referred to below as "such facts".

(2) If the claimant does not prove such facts he or she will fail.

(3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that "he or she would not have fitted in".

(4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.

(5) It is important to note the word "could" in s. 63A(2). At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.

(6) 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.

(7) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 74(2)(b) of the SDA from an evasive or equivocal reply to a questionnaire or any other questions that fall within section 74(2) of the SDA.

(8) Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account in determining, such facts pursuant to section 56A(10) of the SDA. This means that inferences may also be drawn from any failure to comply with any relevant code of practice.

(9) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent.

(10) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.

(11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since "no discrimination whatsoever" is compatible with the Burden of Proof Directive.

(12) That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.

(13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.’

[364]In Madarassy v Nomura International plc

[2007] EWCA Civ. 33

at paragraph 36 Mummery LJ stated that: “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 ... the respondent had committed an unlawful act of discrimination.”

[365]Under EqA at s136(2): ‘The complainant must prove facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the complainant which is unlawful. So the prima facie case must be proved, and it is for the claimant to discharge that burden.’ - Hewage v Grampian Health Board

[2012] UKSC 22

at paragraph 31 per Lord Hope. While the language used in EqA s136(2) differs from that under the provisions which s136(2) succeeded, Lord Leggatt in Elobi v Royal Mail Group Limited

[2021] UKSC 33

confirmed at paragraph 35 that, ‘…the language used in section 136(2) of the 2010 Act has not made any substantive change in the law.’

[366]In Elobi Lord Leggatt at paragraph 28 confirmed that the use of the words: ‘…in the absence of any other explanation…’ in EqA s136(2), does not alter previous case law which, ‘…established that it did not matter if the employer had acted for an unfair or discreditable reason provided that the reason had nothing to do with the protected characteristic…’.

[367]Importantly Lord Leggatt in Elobi at paragraph 38 considered that: ‘…it is worth repeating Lord Hope’s reminder in Hewage v Grampian Health Board that it is important not to make too much of the role of the burden of proof provisions. As he said at para 32: “They will require careful attention where there is room for doubt as to the facts 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.”

[368]A tribunal must be alert to the risk of unrecognised prejudice on the part of an employer: ‘“I turn to the question of subconscious motivation. All human beings have preconceptions, beliefs, attitudes and prejudices on many subjects. It is part of our make-up. Moreover, we do not always recognise our own prejudices. Many people are unable, or unwilling, to admit even to themselves that actions of theirs may be racially motivated. An employer may genuinely believe that the reason why he rejected an applicant had nothing to do with the applicant's race. After careful and thorough investigation of a claim members of an employment tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time or not, race was the reason why he acted as he did. ……. Members of racial groups need protection from conduct driven by unrecognised prejudice as much as from conscious and deliberate discrimination.” Nagarajan v London Regional Transport

[1999] UKHL 36

per Lord Nicholls. Protected Disclosure – whistleblowing Qualifying disclosure

[369]When an employee makes a disclosure of information in the public interest, in certain circumstances the employee enjoys protection against detriment(s) which occur on the ground that the employee has made the disclosure.

[370]The disclosure must be a ‘qualifying disclosure’ within the terms of s43B(1) of the Employment Rights Act 1996 [‘ERA’]: ‘(1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following –(a) that a criminal offence has been committed, is being committed or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged, or

(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.’

[371]Sales LJ in Kilraine v London Borough of Wandsworth

[2018] EWCA Civ. 1436

[2018] ICR 150

provided guidance on what constitutes a qualifying disclosure under s43B(1): ‘[30] … the concept of “information” as used in section 43B(1) is capable of covering statements which might also be characterised as allegations…section 43B(1) should not be glossed to introduce into it a rigid dichotomy between “information” on the one hand and “allegations” on the other… [31] … although sometimes a statement which can be characterised as an allegation will also constitute "information" and amount to a qualifying disclosure within section 43B(1), not every statement involving an allegation will do so. Whether a particular allegation amounts to a qualifying disclosure under section 43B(1) will depend on whether it falls within the language used in that provision. […] [35] … In order for a statement or disclosure to be a qualifying disclosure according to this language [language of s43B(1)], it has to have a sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection (1). […] [36] Whether an identified statement or disclosure in any particular case does meet that standard will be a matter for evaluative judgment by a tribunal in the light of all the facts of the case. It is a question which is likely to be closely aligned with the other requirement set out in section 43B(1), namely that the worker making the disclosure should have the reasonable belief that the information he discloses does tend to show one of the listed matters. As explained by Underhill LJ in Chesterton Global at [8], this has both a subjective and an objective element. If the worker subjectively believes that the information he discloses does tend to show one of the listed matters and the statement or disclosure he makes has a sufficient factual content and specificity such that it is capable of tending to show that listed matter, it is likely that his belief will be a reasonable belief.’

[372]As referenced by Sales LJ in Kilraine in Chesterton (Global) Ltd (trading as Chestertons) and another v Nurmohamed (Public Concern at Work Intervening)

[2017] EWCA Civ. 979

[2018] ICR 731

, at paragraph 8 of the judgment Underhill LJ addressed the question of when it may be said that a disclosure satisfies the terms of ERA s43B(1) [emphasis added]: ‘Those provisions were subject to some exegesis by this Court in Babula v Waltham Forest College

[2007] EWCA Civ. 174

[2007] ICR 1026

. Two points in particular are emphasised in that case, though in truth both are clear from the terms of the section itself:(1) The definition has both a subjective and an objective element: see in particular paras. 81-82 of the judgment of Wall LJ (pp. 1045-6). The subjective element is that the worker must believe that the information disclosed tends to show one of the six matters listed in sub-section (1). The objective element is that that belief must be reasonable.

(2) A belief may be reasonable even if it is wrong. That is well illustrated by the facts of Babula, where an employee disclosed information about what he believed to be an act of criminal incitement to religious hatred, which would fall within head (a) of section 43B (1). There was in fact at the time no such offence, but it was held that the disclosure nonetheless qualified because it was reasonable for the employee to believe that there was.’

[373]The judgment in Chesterton (Global) Ltd was considered in detail in Dobbie v Felton (t/a Feltons Solicitors)

[2021] IRLR 679

where at paragraph 27 HHJ Tayler identified: ‘…a number of key points I consider it is worth extracting from Underhill LJ's reasoning, and re-emphasising:(1) the necessary belief is that the disclosure is made in the public interest. The particular reasons why the worker believes that to be so are not of the essence

(2) while the worker must have a genuine (and reasonable) belief that the disclosure is in the public interest, that does not have to be his or her predominant motive in making it – Underhill LJ doubted whether it need be any part of the worker's motivation

(3) the exercise requires the tribunal to recognise, as in the case of any other reasonableness review, that there may be more than one reasonable view as to whether a particular disclosure was in the public interest

(4) a disclosure which was made in the reasonable belief that it was in the public interest might nevertheless be made in bad faith

(5) there is not much value in trying to provide any general gloss on the phrase "in the public interest". Parliament has chosen not to define it, and the intention must have been to leave it to employment tribunals to apply it as a matter of educated impression

(6) the statutory criterion of what is "in the public interest" does not lend itself to absolute rules (7) the essential distinction is between disclosures which serve the private or personal interest of the worker making the disclosure and those that serve a wider interest (8) the broad statutory intention of introducing the public interest requirement was that "workers making disclosures in the context of private workplace disputes should not attract the enhanced statutory protection accorded to whistleblowers" (9) Mr Laddie's fourfold classification of relevant factors may be a useful tool to assist in the analysis: i. the numbers in the group whose interests the disclosure served ii. the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed iii. the nature of the wrongdoing disclosed iv. the identity of the alleged wrongdoer (10) where the disclosure relates to a breach of the worker's own contract of employment (or some other matter under section 43B(1) where the interest in question is personal in character), there may nevertheless be features of the case that make it reasonable to regard disclosure as being in the public interest’.

[374]At paragraph 28 of Dobbie HHJ Tayler made: ‘…a few general observations I consider it worth adding:(1) a matter that is of "public interest" is not necessarily the same as one that interests the public. As members of the public we are interested in many things, such as music or sport; information about which often raises no issue of public interest

(2) while "the public" will generally be interested in disclosures that are made in the "public interest", that does not necessarily follow. There may be subjects that most people would rather not know about, that are, nonetheless, matters of public interest

(3) a disclosure could be made in the public interest although the public will never know that the disclosure was made. Most disclosures are made initially to the employer, as the statute encourages. Hopefully, they will be acted on. So, for example, were a nurse to disclose a failure in the proper administration of drugs to a patient, and that disclosure is immediately acted on, with the consequence that he does not feel the need to take the matter any further, that would not prevent the disclosure from having been made in the public interest – the proper care of patients is a matter of obvious public interest

(4) a disclosure could be made in the public interest even if it is about a specific incident without any likelihood of repetition. If the nurse in the example above disclosed a one off error in administration of a drug to a specific patient, the fact that the mistake was unlikely to recur would not necessarily stop the disclosure being made in the public interest because proper patient care will generally be a matter of public interest

(5) while it is correct that as Underhill LJ held there is "not much value in trying to provide any general gloss on the phrase "in the public interest" – noting that "Parliament has chosen not to define it, and the intention must have been to leave it to employment tribunals to apply it as a matter of educated impression" – that does not mean that it is not to be determined by a principled analysis. This requires consideration of what it is about the particular information disclosed that does, or does not, make the disclosing of it, in the reasonable belief of the worker so doing, "in the public interest". The factors suggested by Mr Laddie in Chesterton may often be of assistance. While it certainly will not be an error of law not to refer to those factors specifically, where they have been referred to it will be easier to ascertain how the analysis was conducted. It will always be important that written reasons set out what factors were of importance in the analysis; which may include factors that were not suggested by Mr Laddie in Chesterton . As Underhill LJ held "The question is one to be answered by the tribunal on a consideration of all the circumstances of the particular case". It follows that if no account is taken of factors that are relevant; or relevant factors are ignored, there may be an error of law

(6) for the disclosure to be a qualifying disclosure it must in the reasonable belief of the employee making the disclosure tend to show one or more of the types of "wrongdoing" set out in section 43B (a)-(f) ERA. Parliament must have considered that disclosures about these types of "wrongdoing" will often be about matters of public interest. The importance of understanding the legislative history of the introduction of the requirement for the worker to hold a reasonable belief that the disclosure is "made in the public interest" is that it explains that the purpose was to exclude only those disclosures about "wrong doing" in circumstance such as where the making of the disclosure serves "the private or personal interest of the worker making the disclosure" as opposed to those that "serve a wider interest"

(7) while the specific legislative intent was to exclude disclosures made that serve the private or personal interest of the worker making the disclosure, that is not the only possible example of disclosures that do not serve a wider interest, and so are not "made in the public interest". There might be a disclosure about a matter that is only of private or personal interest to the person to whom the disclosure is made and does not raise anything of "public interest".

(8) while motivation is not the issue; so that a disclosure that is made with no wish to serve the public can still be a qualifying disclosure; the person making the disclosure must hold the reasonable belief that the disclosure is "made" in the public interest. If the aim of making the disclosure is to damage the public interest, it is hard to see how it could be protected. Were a worker to disclose information to his employer, that demonstrates that it is discharging waste that is damaging the environment, with the aim of assisting in a coverup, or to recommend ways in which more waste could be discharged without being found out; while the disclosure would otherwise be a qualifying disclosure, it is hard to see how the disclosure could be "made" in the public interest. The fact that a disclosure can be made in "bad faith" does not alter this analysis. A worker might make public the fact that the employer is discharging waste because he dislikes the MD, and so is acting in bad faith, but nonetheless hold the reasonable belief that making the disclosure is in the public interest because the discharge of waste is likely to be halted. Generally, workers blow the whistle to draw attention to wrongdoing. That is often an important component of why in making the disclosure they are acting in the public interest.’

[375]In order to acquire statutory protection a qualifying disclosure must be made by the correct method as prescribed by statute. Under ERA s43C(1)(a) a disclosure made to the whistleblower’s employer meets this requirement. Detriment

[376]ERA s47B(1) provides that: ‘A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.’

[377]In respect of the meaning of ‘detriment’ for the purposes of s47B, Sir Patrick Elias in Jesudason v Alder Hey Children’s NHS Foundation Trust

[2020] EWCA Civ. 73

, [2020] I.C.R. 1226 at paragraphs 27 and 28 observed that: ‘[27] …It is now well established that the concept of detriment is very broad and must be judged from the view point of the worker. There is a detriment if a reasonable employee might consider the relevant treatment to constitute a detriment… [28] Some workers may not consider that particular treatment amounts to a detriment; they may be unconcerned about it and not consider themselves to be prejudiced or disadvantaged in any way. But if a reasonable worker might do so, and the claimant genuinely does so, that is enough to amount to a detriment. The test is not, therefore, wholly subjective.’

[378]In Derbyshire and others v St Helens Metropolitan Borough Council (Equal Opportunities Commission and others intervening)

[2007] UKHL 16

, [2007] I.C.R. 841 at paragraph 27 Lord Hope noted that: ‘…an unjustified sense of grievance cannot amount to “detriment”…’.

[379]ERA s48(2) provides that where a claim is made under s47B(1): ‘…it is for the employer to show the ground on which any act, or deliberate failure to act, was done.’

[380]In Serco Ltd v Dahou

[2016] EWCA Civ. 832

[2017] IRLR 81

at paragraph 40 Laws LJ observed that: ‘As regards dismissal cases, this court has held (Kuzel, paragraph 59) that an employer's failure to show what the reason for the dismissal was does not entail the conclusion that the reason was as asserted by the employee. As a proposition of logic, this applies no less to detriment cases. Simler J did not hold that it would never follow from a respondent's failure to show his reasons that the employee's case was right. Usually no doubt it will….’.

[381]It is clear from the judgment of Elias LJ in NHS Manchester v Fecitt & Ors [2011] Civ. 1190 at paragraph 45 that: ‘…section 47B will be infringed if the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer's treatment of the whistleblower.’ Victimisation

[382]Section 27 of the EqA provides that: ‘(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 – [….] (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.’

[383]Section 39(4)(d) of the EqA provides that: ‘An employer(a) (A) must not victimise an employee of A's

(b) (B) – […] (e) by subjecting B to any other detriment.’

[384]In Saad v Southampton University Hospitals NHS Trust [2019] I.C.R. 311 HHJ Eady QC considered the definition of ‘bad faith’ for the purposes of s27(3) of the EqA: ’47. …What is significant…is the fact that section 27(3)…has no prior stage where the employment tribunal has first to determine whether the employee believes in what they are saying (the evidence or information they are giving or the allegation they have made). The tribunal is simply required to find whether that evidence, information or allegation is true or false; if false, it must then determine whether it was given or made by the employee in bad faith. And that must mean that it has to determine whether the employee has given the evidence or information or made the allegation honestly: to paraphrase Auld LJ in Street (see para 41), absent other context, bad faith has a core meaning of dishonesty. In this context (and, again, as Auld LJ observed in Street ), it has to be at the bad faith stage that the tribunal turns its attention to the question whether the employee has made the allegation honestly or not…whether the employee has an honest belief in what they have said will not have been tested at any prior stage; that is a question that will arise only when the employment tribunal determines the issue of bad faith under section 27(3) .48. In resisting the appeal in this case, the respondent has focused on the employment tribunal's findings of fact—in particular, its assessment of the claimant as someone motivated by a desire to deflect criticism. That, the respondent contends, was obviously relevant to the determination of bad faith under section 27(3) of the 2010 Act, even if the tribunal had not sought to read across from its findings on the protected disclosure claim.

49. I do not rule out that the employee's motivation for making the allegation in issue might be relevant to the tribunal's determination of bad faith for section 27(3) purposes. In GMB Union v Fenton 12 October 2004, the appeal tribunal did not consider that the existence of a collateral motive was sufficient to establish an absence of good faith but did not entirely dismiss its possible relevance: see para 30. There are, however, good policy reasons for exercising caution when having regard to the existence of a collateral motive in the context of a claim of unlawful victimisation under the Equality Act 2010 . An employee might, for example, feel reluctant to raise a complaint of discrimination, notwithstanding the fact they genuinely believe they have suffered less favourable treatment because of a relevant protected characteristic. That reluctance might recede should they then face a complaint about their own conduct or performance (indeed, they might see the complaint as simply another example of discrimination). In raising an allegation of discrimination in response to the complaint, the employee might well be seeking to deflect the criticism they face but that does not mean they are acting in bad faith.

50. When determining whether an employee has acted in bad faith for the purposes of section 27(3) , the primary question is thus whether they have acted honestly in giving the evidence or information or in making the allegation. As Burton J observed in Fenton, the issue is not the employee's purpose but their belief. I do not say that the existence of a collateral motive could never lead to a finding of bad faith—not least because it is impossible to foresee all scenarios that might arise—but the focus should be on the question whether the employee was honest when they gave the evidence or information or made the allegation in issue. In answering that question, the employment tribunal will already have established that the evidence, information or allegation was false; that does not mean the employee acted in bad faith, although it may be a relevant consideration in determining that question (the more obviously false the allegation, the more an employment tribunal might be inclined to find that it was made without honest belief). Similarly, the employee's motive in giving the evidence or information or in making the allegation may also be a relevant part of the context in which the tribunal assesses bad faith. The tribunal might, for example, conclude that the employee dishonestly made a false allegation because they wanted to achieve some other result, or that they were wilfully reckless as to whether the allegation was true (and thus had no personal belief in its content) because they had some collateral purpose in making it. Motivation can be part of the relevant context in which the tribunal assesses bad faith, but the primary focus remains on the question of the employee's honesty.’

[385]Under s136(1) of the EqA, the burden of proof provisions in s136 apply to a claim of victimisation under s27 EqA. Harassment

[386]EqA s26 provides that: ‘(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. […] (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;

[387]Under EqA s109:(1) Anything done by a person (A) in the course of A's employment must be treated as also done by the employer.

(2) Anything done by an agent for a principal, with the authority of the principal, must be treated as also done by the principal.

(3) It does not matter whether that thing is done with the employer's or principal's knowledge or approval.

(4) In proceedings against A's employer (B) in respect of anything alleged to have been done by A in the course of A's employment it is a defence for B to show that B took all reasonable steps to prevent A – (a) from doing that thing, or (b) from doing anything of that description.

[388]A successful claim for harassment under s26(1) will include findings that:• The respondent engaged in unwanted conduct;

• The unwanted conduct had either the purpose or effect of either violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her;

• The unwanted conduct was related to the claimant’s race.

[389]In the context of a harassment claim, the test of whether conduct is related to a protected characteristic, in this case race, is broader than the: ‘because of’ test applied in determining allegations of direct discrimination. HHJ Auerbach observed in Tees Esk and Wear Valleys NHS Foundation Trust (appellant) v Aslam and another (respondents)

[2020] IRLR 495

at paragraph 20 that: ‘…the test of whether conduct is related to a protected characteristic is a different test from that of whether conduct is 'because of' a protected characteristic, which is the connector used in the definition of direction discrimination found in s 13(1) of the 2010 Act. Put shortly, it is a broader, and, therefore, more easily satisfied test. However, of course, it does have its own limits.’

[390]In determining whether the unwanted conduct was related to the claimant’s race: ‘24. …the broad nature of the 'related to' concept means that a finding about what is called the motivation of the individual concerned is not the necessary or only possible route to the conclusion that an individual's conduct was related to the characteristic in question. Ms Millns confirmed in the course of oral argument that that proposition of law was not in dispute. 25. Nevertheless, there must be still, in any given case, be some feature or features of the factual matrix identified by the Tribunal, which properly leads it to the conclusion that the conduct in question is related to the particular characteristic in question, and in the manner alleged by the claim. In every case where it finds that this component of the definition is satisfied, the Tribunal therefore needs to articulate, distinctly and with sufficient clarity, what feature or features of the evidence or facts found, have led it to the conclusion that the conduct is related to the characteristic, as alleged. Section 26 does not bite on conduct which, though it may be unwanted and have the proscribed purpose or effect, is not properly found for some identifiable reason also to have been related to the characteristic relied upon, as alleged, no matter how offensive or otherwise inappropriate the Tribunal may consider it to be.’ Tees Esk and Wear Valleys NHS Foundation Trust (appellant) v Aslam and another (respondents)

[2020] IRLR 495

per HHJ Auerbach at paragraphs 24 and 25.

[391]In deciding whether the circumstances in EqA s26(1)(b) are met, the tribunal must take into account the matters set out at EqA s26(4): ‘…In order to decide whether any conduct falling within sub-paragraph (1)(a) 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 as3 having that effect (the objective question). It must also, of course, take into account all the other circumstances – subsection (4)(b). The relevance of the subjective question is that if the claimant does not perceive their dignity to have been violated, or an adverse environment4 created, then the conduct should not be found to have had that effect. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the claimant's dignity or creating an adverse environment for him or her, then it should not be found to have done so.’ Per Underhill LJ at paragraph 88 of Reverend Canon Pemberton v Right Reverend Inwood, former acting Bishop of Southwell and Nottingham

[2018] IRLR 542

[392]In the context of complaints of sexual harassment, Morrison P at paragraph 28 of Reed v Stedman

[1999] IRLR 299

cautioned against ignoring the potential cumulative effect of individual incidents of alleged harassment: ‘…It is particularly important in cases of alleged sexual harassment that the fact-finding tribunal should not carve up the case into a series of specific incidents and try and measure the harm or detriment in relation to each. As it has been put in a USA Federal Appeal Court decision (eighth circuit) (USA v Gail Knapp [1992] 955 Federal Reporter, 2nd series at p.564): 'Under the totality of the circumstances analysis, the district court [the factfinding tribunal] should not carve the work environment into a series of incidents and then measure the harm occurring in each episode. Instead, the trier of fact must keep in mind that “each successive episode has its predecessors, that the impact of the separate incidents may accumulate, and that the work environment created may exceed the sum of the individual episodes.”’.’

CONCLUSIONS

[393]Both counsel have each very helpfully provided written submissions, which they supplemented orally. The tribunal does not propose to recite verbatim the content of those submissions in these reasons, but they have been given full consideration by the tribunal in making its decision. Jurisdiction/amendment Extension of time and amendments sought

[394]In respect of this claim – the parties are agreed that any matter occurring before 26 May 2021 is prima facie out of time and requires permission to extend time. The respondent says that the allegations are not part of one continuing act. The respondent presents the allegations in the list of issues which occurred prior to 26 May 2021 in three groups. Group 1 - paragraphs 5(a)(i), (xii), (xiii) which occurred around August 2020 and relate to the claimant’s input into the collective grievance. 5(a)(iv) also relate to Dr Perry but occurred in December 2020. Group 2 – paragraphs 5(a)(ii) and (iii) which occurred in October – November 2020 and relate to Dr Allum, with no suggested involvement from Dr Perry. Group 3 – 5(a)(vi) [allegation against Dr Perry – April 2021] , (vii) [allegation against Dr Perry and Dr Allum – April 2021], and (viii) [allegation against Dr Allum – 05 May 2021].

[395]In respect of the amendment application dated 04 August 2022, anything before 05 May 2022 is prima facie out of time. This covers the allegations at paragraphs 15(i), (j), (k), (m), (n) and (o) of the amendment application. Time and the allegations in respect of discrimination, harassment and victimisation

[396]The tribunal is urged by the claimant to find that the allegations under paragraph 5(a) collectively constitute a course of alleged conduct extending over the relevant period. The allegation at 5a(ix) relating to 02 June 2021 against Dr Perry is within time. It is part of an alleged course of conduct against Dr Perry which was directed towards the claimant.

[397]In submissions, the claimant states that: ‘There is considerable overlap between the allegations that are in time and those that are out of time: they generally involve the same decision-makers (VP [Dr Perry] and CA [Dr Allum]) and are factually similar in that they form part of a course of conduct. As such it is contended that there is conduct extending over a period…’.

[398]The respondent urges the tribunal not to take this course. The respondent says that the allegations do not form part of one continuing act. They form 3 distinct groups as set out above. The significant time gaps between the allegations, and the way that they fall into distinct groups suggest that these are individual acts of discrimination. They are not all part of one continuous act.

[399]While the nature of the behaviour alleged in individual allegations may be regarded as stand alone, put together with other allegations it could represent a course of alleged discriminatory conduct by Dr Perry against the claimant. So too with the conduct alleged by the claimant against Dr Allum.

[400]Ultimately however, the tribunal determines that the theoretical possibility of a finding of a course of conduct is in reality frustrated by the actual findings of fact which the tribunal has made and set out in this judgment. It is clear from the judgment of Choudhury J in Southwest Ambulance Trust NHS Trust v Mrs C. King cited above, that it would be wrong in principle to rely on acts which it has not actually found to be discriminatory, in determining whether there has been a course of conduct.

[401]The tribunal has dismissed all of the allegedly discriminatory acts which appear in the Agreed List of Issues at paragraph 5a(i)-(xiv). In the circumstances, none of those which are out of time can be relied upon as a constituent in a series of acts for the purposes of bringing those acts which are prima facie out of time, within time. Just and equitable

[402]In delivering its oral reasons the tribunal indicated that it would extend time on the ground that it was just and equitable to so. In practical terms this made little difference because the claim was dismissed on its merits in any event. In giving written reasons, the tribunal is not bound by its earlier oral reasons for its order. The written reasons are the authoritative account for its judgment.

[403]The tribunal is mindful of the wide discretion under EqA s123(1)(b) which Leggatt LJ referred to in Abertawe. The tribunal has an unfettered discretion to determine what is: ‘just and equitable’ in considering the extension of time for making the claim. The tribunal does not necessarily require the claimant to offer a good reason or an explanation for the delay. The tribunal must nonetheless not fail to take into account a relevant matter.

[404]The application for an extension of time under the just and equitable discretion was considered by the tribunal in the context of final findings of fact which it had made. The decision to extend time under the just and equitable discretion gave insufficient weight to the tribunal’s dismissal of the allegations of discriminatory acts under paragraph 5a of the Agreed List of Issues. This is plainly relevant. It does not sit well with a finding that it would be just and equitable to extend time. In the circumstances, the tribunal does not extend time under the just and equitable discretion.

[405]This does not change anything in the practical outcome for the parties. The claims were dismissed on their merits in August 2023. Detriments, amendment, and time

[406]In respect of the amendment application dated 04 August 2022 anything before 05 May 2022 is prima facie out of time. This covers the allegations at paragraphs 15(i), (j), (k), (m), (n) and (o) of the amendment application.

[407]The claimant puts its case on the basis that: ‘…it is contended that there have been a series of similar acts which justify a finding that the claims are in time’.

[408]The respondent counters that: ‘The out of time allegations evidently do not form part of one course of conduct with the in-time complaints. The allegations are against different people and are not, on the face of it, linked.’.

[409]In the schedule of detriments, detriment 15(i)-(q) are the subject of the amendment application. The amendment application was issued on 04 August 2022. Anything before 05 May 2022 is out of time. There are just 3 of the proposed detriments to be added by amendment which are in time: 15(l), (p) and (q).

[410]In determining the amendment application the tribunal must consider the Selkent guidance. Nature of the amendment – The proposed amendments do not add a new cause of action. They would add new factual allegations but they would not change the basis of the existing claim. The applicability of time limits – Of the 9 allegations, 6 (including 15j) are out of time. As noted above, the claimant relies on there being, ‘a series of similar acts or failures’ with the last of them, if in time, potentially bringing other out of time allegations, within time.

[411]There is problem with: ‘a series of similar acts or failures’. It is analogous to Southwest Ambulance Trust NHS Trust v Mrs C. King. Excluding 15j, which is considered separately, five out of the eight remaining alleged detriments are out of time. These five detriments have been found either, not to be a detriment at all or, to be a detriment but lacking a causal link between the protected disclosure and the alleged detriment. In light of the principle set out in Southwest Ambulance Trust, the tribunal does not include the five out of time detriments in any potential: ‘series of similar acts or failures’.

[412]In the circumstances, the tribunal does not find that there was a series of similar acts or failures based on the five out of time proposed detriments which the claimant wishes to add by amendment.

[413]The ERA s48(3)(a) provision in respect of: ‘similar acts or failures’, is not the only potential route to an extension of time. ERA s48(3)(b) provides that the tribunal can extend time: ‘…within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months’.

[414]The amendment application was made on 04 August 2022. Consequently, any act occurring before 05 May 2022 is out of time. The proposed detriments occurred respectively in: 15i, September 2022; 15k, October 2021; 15m, 25 March 2023; 15N, 29 April 2022; 15o, May 2022.

[415]There is no significant evidence or explanation which supports a finding that it was not reasonably practicable for the claimant to issue the claims of detriment in time.

[416]In all the circumstances, no extension of time is granted for the presentation of the claim in respect of detriments 15i, 15k, 15m, 15n, and 15k.

[417]Insofar as the written reasons in this judgment in respect of extensions of time differs from that expressed when oral reasons for the decision were given, the tribunal emphasises the core judgment in this case remains that the claims are dismissed.

[418]The tribunal has in any event set out in the judgment its substantive decisions in respect of each of the detriments and allegations referred to in the parties Agreed List of Issues.

[419]The tribunal finds that the balance of hardship and injustice favours granting the claimant permission to amend her claim to add the detriments at paragraph 15i, 15p and 15q. Admitting these claims causes little prejudice to the respondent. They are of the same nature as the existing claims. Amendment - Detriment 15j

[420]Permission is sought to amend the claim to include the alleged detriment at paragraph 15J. The proposed amendment is: ‘The suspension of the Claimant from 22 September 2021 to date’.

[421]At paragraph 34 of the Particulars of Claim attached to the 28 February 2022 claim it is stated that: ‘…in September 2021 she was treated less favourably that [sic] the Respondent would treat white colleagues when she was suspended from work…’ [emphasis added]. The suspension occurred on 22nd September 2021 which was before the first claim was presented on 3rd October 2021. Despite this, no complaint about the claimant’s suspension from work was raised in the first claim.

[422]This act was relied on in the claimant’s third claim as an act of direct race discrimination. On 11 April 2022 Judge Burgher at paragraphs 12 and 13 of his decision found that that claim was one of a number of claims which he concluded: ‘…were an abuse of process in the Henderson v Henderson sense. All the additional claims relate to events taking place before the first claim. The claimant should, if she had exercised reasonable diligence, have made allegations in her first claim. The appropriate step for the Claimant to have taken was to apply to amend her first claim, not bring a further claim. 13. In these circumstances, I exercise my discretion to strike out the third claim, pursuant to Rule 37(1)(a) of the ET rules. Therefore, case number 3200790/2022 is dismissed.’.

[423]The detriment which the claimant seeks to include on amendment is: ‘15j The suspension of the Claimant from 22 September 2021 to date’. The allegation which was struck out and dismissed by Judge Burgher was that claimant was treated less favourably when in September 2019: ‘…she was suspended from work.’. Central to both allegations is the claimant’s suspension from work in September 2019. This was struck out and dismissed on 11 April 2022.

[424]No further application has been made in respect of the decision of Judge Burgher on 11 April 2022. In the circumstances, the tribunal refuses the application to amend to include the alleged detriment at paragraph 15j. Equality Act 2010 s13 – Direct Discrimination because of Race

[425]Paragraph 4 of the list of issues states that the claimant relies on the protected characteristic of race: ‘Black, African…and being French…’.

[426]The question posed for the tribunal at paragraph 5 of the list of issues is whether the claimant has proved facts from which, in the absence of any other explanation, the tribunal could decide that the respondent treated the claimant less favourably because of the claimant’s race than it treated or would treat others?

[427]At paragraph 5a of the list of issues, the claimant sets out a series of allegations which it is said constitute the alleged less favourable treatment. The allegations are addressed in the findings of fact set out above under headings formatted ‘Allegation 5(a)(i)…Allegation 5(a)(ii)…’ etc. They are further addressed sequentially below. The tribunal does not repeat the findings of fact set out above but relies on them in full in support of its conclusions.

[428]At paragraph 5b of the list of issues reference is made to, ‘Background allegations (as in the CMO)’. In the event, the tribunal has not been addressed on ‘background allegations’ and the evidence focussed on the substantive allegations of less favourable treatment. Comparators

[429]At paragraph 6 of the list of issues it is said that: ‘The claimant relies upon the following actual comparators…a. Dr Vincent Perry

b. Ms Anamika Dwivedi

c. Associate Medical Directors (AMDs). There are 6 AMDS. Two are white.

d. Oliver Shanley

e. Peter Carter

f. Deborah Evans’

[430]Under EqA s23(1) it is essential that: ‘On a comparison of cases for the purposes of section 13 […] there must be no material difference between the circumstances relating to each case.’ [emphasis added]. The tribunal has however not been provided with sufficient information from which it could conclude that there is ‘no material difference’ between their circumstances of the suggested comparators and those of the claimant.

[431]No detailed information has been provided to the tribunal to enable comparison of the roles and duties carried out by the proposed comparators and the role and duties of the claimant. On the face of it, the roles and duties performed by the suggested comparators are different to that performed by the claimant.

[432]Dr Perry is the Deputy Medical Director; Ms Dwivedi is a more junior colleague of the claimant whom the tribunal has found the claimant sought to have downgraded; Associate Medical Directors are qualified medical professionals with a different role to that of the claimant; Oliver Shanley is the Chief Executive Officer of the respondent; Peter Carter is the Director of Medical Education; Deborah Evans was engaged as an interim Medical Staffing Associate in around December 2020 at a higher band and tasked, among other things, with line managing the claimant.

[433]Five months after starting employment with the respondent, the claimant was subject to a grievance about the conduct of herself and Ms Dwivedi, the grievance was raised by the other 3 members of the Medical HR department.

[434]In her witness statement at paragraph 70 the claimant complains that when the grievance was raised against her it resulted in her in December 2020 being: ‘…moved away from my normal operational leadership and team management duties’. The claimant seeks to contrast this with what happened to Dr Perry when: ‘…he had a grievance raised against him he was not treated in the same way. He was not suspended, nor did he have his duties restricted. On the contrary he was given more managerial responsibilities.’

[435]In fact the claimant wasn’t suspended in December 2020. The decision that Ms Evans should be responsible for the operational management of the team was a practical decision made against a background where 3 out of the 5 members of the claimant’s team had an unresolved grievance against the claimant still outstanding. Those members of the claimant’s team wished to have no contact with her at that time. The claimant’s focus was directed by the respondent to project work which was of great importance to the respondent and which required to be undertaken by a professional of the claimant’s experience.

[436]When the claimant raised her grievance against Dr Perry on 02 June 2021, he was not at that time her line manager.

[437]In respect of each of the proposed comparators, the tribunal has not been provided sufficient information to determine that any or all of them fulfil the requirement in EqA s23(1) that there is: ‘…no material difference…’, in their circumstances and those of the claimant.

[438]On the information provided. the tribunal is unable to be satisfied that Lord Scott’s observation in Shamoon is fulfilled, namely that: ‘…the comparator required for the purpose of the statutory definition of discrimination must be a comparator 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’ [emphasis added]

[439]The tribunal has considered the reason why the alleged less favourable treatment occurred. ‘Allegation 5(a)(i) - On 20 August 2020, Dr Perry encouraged the collective grievance as a revenge of [sic] his broken line management with the HRD and for the Claimant’s refusal to accept/take ownership of the Local Clinical Excellent Awards options to cover up for him – para 15 PoC’

[440]The claimant has not proven that Dr Perry encouraged the collective grievance, whether as revenge or otherwise. A discussion with one of the medical resourcing officers where Dr Perry explained that the concerns could be dealt with formally or informally, does not constitute encouragement of the collective grievance. The grievance against the claimant arose because of complaints made by the claimant’s subordinates about the claimant’s own conduct.

[441]The tribunal is satisfied that Dr Perry’s conduct in respect of the collective grievance

[442]In any event, the tribunal notes that the claimant in her allegation against Dr Perry as set out at 5(a)(i) supplies an alleged explanation for Dr Perry’s conduct which itself has nothing to do with the protected characteristic. The claimant suggests that Dr Perry encouraged the collective grievance as: ‘…revenge of [sic] his broken line management with the HRD and for the Claimant’s refusal to accept/take ownership of the Local Clinical Excellence Awards options to cover up for him’. This reason is distinct from the claimant’s protected characteristic. ‘Allegation 5(a)(ii) In October 2020, not being allowed by Dr Caroline Allum to meet with MTIs as part of their induction with management – para 4 PoC’

[443]The purpose of the MTI meeting was for the new employees to meet the senior leadership at Medical Director and Chief Executive level. There was no reason for the claimant to attend this meeting and that is why she was not invited. It had nothing to do with her protected characteristic. ‘Allegation 5(a)(iii) in November 2020, Dr Caroline Allum removed the Claimant from her roles and responsibilities when Mr Scully left the Respondent’s employment – para 11 PoC’

[444]At this time the investigation of the collective grievance against the claimant was ongoing. This presented an enormous challenge for management of the medical HR team. It was a small team. Band 4 members who worked below the claimant wanted no contact with her. The management difficulties which this presented were significant and were at the root of Dr Allum’s decision that Ms Evans should manage the team operationally.

[445]Prior to Ms Evans arrival, all 5 members of the claimant’s team were involved in the grievance either as complainants (three band 4 employees), or as the subject of the grievance (the claimant and Ms Dwivedi).

[446]It is not correct that Dr Allum: ‘…removed the Claimant from her roles and responsibilities’. Operational management of the team was passed to Ms Evans, but Dr Allum asked the claimant to focus on project work which was of great importance to the respondent and demanded to be undertaken by a person of the claimant’s experience and qualifications. No party disputed either the importance of the project work allocated to the claimant or that it was work which could fall within the claimant’s role.

[447]Counsel for the claimant urges the tribunal to reject Dr Allum’s explanation for allocating operational responsibility to Ms Evans. Counsel submits that: ‘The band 4s were either off sick or seconded at this point. This was 4 months on from the date of the grievance being lodged, and the claimant had been working in this period without any issues. It must have been because of the claimant’s race.’.

[448]In fact, in the intervening period the claimant had been on leave for nearly 6 weeks. The fact that the team, as constituted prior to the August 2020 grievance, was not functioning at all, is itself an illustration of the profound management difficulty with which Dr Allum had to wrestle.

[449]The grievance was unresolved and remained outstanding. Serious allegations had been raised against the claimant by her 3 junior staff. The allegations included bullying, rude, aggressive and intimidating behaviour.

[450]The tribunal accepts that Dr Allum’s decision to reallocate operational management to Ms Evans had nothing to do with the claimant’s protected characteristic. It had everything to do with her trying to address an incredibly difficult management problem pending resolution of the collective grievance. Ms Evans’ email to the claimant dated 21 December 2020 set this out in the clearest terms. ‘Allegation 5(a)(iv) – Since December 2020, after Mr Bernard Scully, Interim Director of HR and OD left the organisation, the claimant never had a 1 to 1, target sets, objectives, guidance or directions from Dr Vincent Perry – para 9 PoC. The claimant should have had monthly 1 to 1s’

[451]Dr Perry was on sick leave from 09 November 2020 until 11 January 2020. As is set out in the findings of fact, the claimant is, and was at the time, well aware that from December 2020 onwards Dr Perry has not been her line manager. Consequently, there has been no default on Dr Perry’s part in providing the matters complained of at allegation 5(a)(iv).

[452]The fact that Dr Perry has not acted as the claimant’s line manager has nothing to do with the claimant’s protected characteristic. As set out in the findings of fact, the reasons for the difficulties which arose in Dr Perry’s working relationship with the claimant had nothing to do with the claimant’s protected characteristic. ‘Allegation 5(a)(v) - In March 2021, Dr Perry and Dr Allum moved the claimant away from a case she was working on since April 2020 (namely involving Dr AY) – para 13 PoC’ and ‘Allegation 5(a)(xi) On 19 July 2021, CA asked C not to attend follow up meeting with AY’

[453]As set out in the findings of fact, the support role for Dr AY would, but for the covid crisis, have been provided by a representative from the HR directorate. It was due to HR directorate staff being redeployed that in April 2020 HR support for Dr AY came from the medical staffing team. Providing HR support for Dr AY was not a core function of the claimant's role.

[454]By March 2021 the primary focus of the claimant’s work had been switched to projects. In those circumstances the respondent deemed it appropriate that Ms Evans, who had by then assumed operational responsibility for the medical staffing team, to attend the meeting with Dr AY in March 2021.

[455]By July 2021 Dr Perry had taken over as Dr AY’s line manager and consequently he attended the meeting on 19 July 2021 with Dr AY. Dr Perry was accompanied at that meeting by Tom Olam who had by then replaced Ms Evans as the person with operational responsibility for the Medical HR team.

[456]The allocation of support for Dr AY to someone other than the claimant was the Medical HR team allocating limited resources as they thought appropriate. It had nothing to do with the claimant’s protected characteristic. ‘Allegation 5(a)(vi) – In April 2021 the Claimant asked Dr Vincent Perry to meet with her and he refused – para 5 PoC’

[457]As set out in the findings of fact, the claimant requested the meeting by email dated 20 April 2021. By that time Dr Perry was no longer the claimant’s line manager. He did not refuse to meet her but referred the claimant to her then line manager, Ms Evans. Dr Perry told the claimant that he would join a meeting with the claimant if Ms Evans needed him to join the meeting.

[458]Dr Perry was not the claimant’s line manager in April 2020 and it is clear that he regarded the issues which the claimant wished to raise as appropriate to be raised with her line manager in the first instance. His referral of the claimant to her line manager had nothing to do with the claimant’s protected characteristic. ‘Allegation 5(a)(vii) – In April 2021 the Claimant was not invited by Dr Caroline Allum and Dr Vincent Perry to the meeting with the trainees’ representatives – para 6 PoC’

[459]By April 2021 project work was intended to be the primary focus of the claimant’s work. Consequently, it was not necessary for the claimant to attend the meeting with the trainees’ representatives. The fact that the claimant was not invited to the meeting ‘Allegation 5(a)(viii) – On 05 May 2021 Dr Caroline Allum confirmed the Claimant’s feeling that she was set to fail when she did not even feel that there was a need to meet with the Claimant to go through the KENT resourcing strategy paper – para 10 PoC’

[460]As set out in the findings of fact, there is no evidence that Dr Allum either wished to set the claimant up to fail, or did set the claimant up to fail, in respect of the Kent paper. The issues which the paper concerned were important ones for the respondent. As the respondent’s Executive Medical Director Dr Allum had every interest in obtaining a report of an appropriate professional standard rather than setting the claimant up to fail.

[461]In fact, Dr Allum and Simon Hart did meet with the claimant on 30 June 2021 to discuss her draft report. Mr Hart provided written feedback on drafts on 2 occasions before it was decided to take the report off the agenda for the 13 July 2021 EMT meeting.

[462]It is neither correct nor consistent with the evidence that Dr Allum set the claimant up to fail. Dr Allum’s conduct in respect of providing support for the claimant had nothing to do with the claimant’s protected characteristic. ‘Allegation 5(a)(ix) – On 02 June 2021, Dr Perry appointed a Band 8 without consulting the Claimant, and the Claimant was not made aware that a band 8c was to be filled as she would have applied – para 12 PoC (claim 1)’

[463]The appointed Band 8c was Tom Olam. He is black African. Mr Olam was appointed to fill the role formerly performed by Ms Evans. This included operational management of the Medical HR team. It was a role which had been allocated to Ms Evans because of the difficulties which arose within the Medical HR team following the collective grievance.

[464]No existing member of staff was given an opportunity to apply for the Band 8 post to which Mr Olam was appointed. It was temporary position which was recruited through an agency.

[465]At the date that Mr Olam was appointed to the role the claimant’s appeal against the outcome of the collective grievance had not been resolved. The initial outcome of the grievance had upheld claims that:• The management style of the claimant is bullying, rude and aggressive, and displays controlling and intimidating behaviour;

• The team are overloaded with work, unsupported and are set unrealistic targets and deadlines and are never recognised;

• The claimant devalues the team’s contributions; and dictates what will be happening without consulting the team and finding out if their assessment of facts are accurate;

• The behaviour of the claimant has caused fear within the team;

• The claimant abused her authority;

• The claimant displays ineffective/incompetent management.

[466]In the circumstances there was a reason which had nothing to do with the claimant’s protected characteristic as to why she was not consulted about the Band 8 post, or given an opportunity to apply. ‘Allegation 5(a)(x) – On 22 June 2021, Dr Caroline Allum and Dr Vincent Perry tried to blame the Claimant for the offer of downsizing Animika Dwivedi (“AD”) from her band 7 role to a band 6 role – para 7 PoC’

[467]As set out in findings of fact there is no evidence that Dr Allum or Dr Perry ‘tried to blame’ the claimant for the suggestion of downgrading Ms Dwivedi. The suggestion that Ms Dwivedi be downgraded was initiated by the claimant. The claimant has failed to establish facts from which the tribunal could decide in the absence of any other explanation that the respondent treated the claimant less favourably because of her protected characteristic. ‘Allegation 5(a)(xii) – In July/August 2020 Dr Perry provided false and fabricated information regarding the Claimant’s relationship with other managers, recruitment practices and leadership style that he had never raised a concern about as my line manager – para 19 PoC’

[468]The tribunal refers to the findings of fact. The claimant has failed to establish facts from which the tribunal could decide in the absence of any other explanation that the respondent treated the claimant less favourably because of her protected characteristic.

[469]Dr Perry did raise with the claimant concerns about her communication and leadership style when he was her line manager. Insofar as Dr Perry expressed criticism of the claimant, the tribunal is not satisfied that it was ‘false and fabricated’. Criticism of the claimant raised with her by Dr Perry was because he genuinely believed it to be merited. It was nothing to do with the claimant’s protected characteristic. ‘Allegation 5(a)(xiii) – In July/August 2020 despite expressly asking the Claimant to invite a colleague (NO) to a meeting, Dr Perry blamed the claimant for excluding that person and used that as evidence of abuse of power for the collective grievance – para 18 PoC’

[470]The claimant failed to establish any of the following: that Dr Perry expressly asked her not to invite Nana Owusu to a meeting; that Dr Perry blamed her for excluding Nana Owusu; that Dr Perry used that as evidence of abuse of power for the collective grievance. The claimant has failed to establish facts from which the tribunal could decide in the absence of any other explanation that the respondent treated the claimant less favourably because of her protected characteristic.

[471]The conduct of Dr Perry in respect of the invitation of Nana Owusu to the meeting ‘Allegation 5(a)(xiv) – On 9th September 2021 Dr Perry arranged a meeting and chose selectively two other colleagues (Mohan Butt and Muchi [surname unknown] – both nonwhite) from a subgroup that the Claimant created and led on – para 16 PoC’

[472]The tribunal is not persuaded that that the claimant has established facts from which the tribunal could decide in the absence of any other explanation that the respondent treated the claimant less favourably because of her protected characteristic. Neither Mohan Butt nor Muchi were the property of the claimant. No adequate basis was established by the claimant as to why Dr Perry, who had a different role to the claimant, should not be free to invite them to attend a meeting. Dr Perry was not constrained in his choice of invitees because they were members of a subgroup created by the claimant. Similarly, Dr Perry was not restricted to a binary option of inviting either all or none of the members of the claimant’s subgroup. It was entirely a matter for Dr Perry as to who he chose to attend his meeting.

[473]The tribunal is satisfied that the meeting was called by Dr Perry for proper business purposes. The conduct of Dr Perry in convening the meeting was nothing to do with the claimant’s protected characteristic. Conclusion on Complaint of Direct Discrimination because of Race

[474]In all the circumstances, the tribunal is not satisfied that the respondent discriminated against the claimant because of her race contrary to EqA s13. The complaint of direct discrimination is dismissed. Equality Act 2010 – s27 Victimisation

[475]The list of issues asks the following: ‘8. Did the Claimant do a protected act by:a. Raising a grievance alleging discrimination – para 20 PoC? It is agreed between the parties that the Claimant raised a grievance on 1 June 2021 which alleged that she was discriminated against. Did the Claimant give false information, or make a false allegation in bad faith?

b. Raising a grievance on 28 February 2022 (see amendment). 9. If the Claimant did a protected [sic], was Claimant subjected to detrimental treatment as a consequence of having done that protected act? The claimant relies on the alleged detriments at (14)(15) below. Para 21 POC (And Amendment).’

[476]The tribunal finds that, subject to the issue of bad faith, each of the grievances dated 01 June 2021 and 28 February 2022 respectively constitute protected acts within the terms of EqA s27(2)(d).

[477]The grievance dated 01 June 2021 references alleged race discrimination. This is an allegation of a contravention of the EqA as required by s27(2)(d).

[478]The grievance dated 28 February 2022 is said in the claimant’s written submissions to be brought within the terms of EqA s27 by its reference to the claimant’s belief that her suspension was: ‘unlawful and discriminatory’. It is said that this should be read in conjunction with the claimant’s reference in the grievance to a recent email sent by her to Mr Makala regarding alleged institutionalised malpractices within Medical HR including: ‘racism, discrimination and culture’. In the circumstances, the tribunal is satisfied that the grievance dated 28 February 2022 did include an allegation of a contravention of the EqA as required by EqA s27.

[479]As noted above, HHJ Eady QC in Saad v Southampton University Hospitals NHS Trust [2019] I.C.R. 311 at para 47 considered the tribunal’s task when applying EqA s27: ’…The tribunal is simply required to find whether that evidence, information or allegation is true or false; if false, it must then determine whether it was given or made by the employee in bad faith. And that must mean that it has to determine whether the employee has given the evidence or information or made the allegation honestly: … absent other context, bad faith has a core meaning of dishonesty.’

[480]On the basis of the tribunal’s findings of fact, the allegations of race discrimination made in the grievances dated 01 June 2021 and 28 February 2022 are false. They are not supported by the evidence to the requisite standard of proof.

[481]Turning to the question of whether the allegations were made in bad faith within the terms of EqA s27(3), the tribunal is urged by the respondent to find that the allegations were made in bad faith. The respondent’s counsel directs the tribunal’s attention to matters including the following which it is said demonstrate that the allegations were made in bad faith:• The claimant wrongly asserted that she had never had a formal one to one meeting with Dr Perry when in fact Dr Perry had one to one meetings with the claimant;

• The claimant wrongly asserted that the possible downgrading of Anamika Dwivedi was first suggested by Dr Perry rather than the claimant;

• The claimant wrongly asserted that Dr Perry had asked her not to invite Nana Owusu to a meeting, and that Dr Perry had then blamed the claimant for excluding Ms Owusu from the meeting;

• The claimant wrongly asserted that Dr Perry had provided false and fabricated information regarding the claimant's relationship with other managers, recruitment practices and leadership style.

[482]The claimant’s written submissions state that: ‘The claimant’s conviction in her belief as to these allegations [the grievances] was clear in her oral evidence and it is clear that she honestly believes the allegations that she makes. Even if they are not accepted as being true allegations by the tribunal, it is submitted they were not in bad faith on that basis.’

[483]HHJ Eady QC at paragraph 50 of Saad v Southampton University Hospitals NHS Trust [2019] I.C.R. 311 advised that: ‘When determining whether an employee has acted in bad faith for the purposes of section 27(3) , the primary question is thus whether they have acted honestly in giving the evidence or information or in making the allegation. As Burton J observed in Fenton, the issue is not the employee's purpose but their belief.’

[484]The unsatisfactory aspects of the claimant’s evidence are highlighted by the respondent’s counsel’s submissions on the victimisation claim. These submissions are relevant in determining whether the claimant’s grievances were made in bad faith. They are not however conclusive on the issue. The fact that the claimant may have lied or is otherwise wrong about certain factual matters does not of itself establish that the claimant made the allegation of race discrimination in bad faith.

[485]The tribunal has considered whether the identified deficiencies in the claimant’s evidence either individually or collectively should lead the tribunal to the conclusion that the allegation of racial discrimination was made in bad faith. The tribunal is not convinced that they should.

[486]The tribunal is not satisfied that the evidence supports a finding that the claimant’s allegation of race discrimination made in each of the grievances was made in bad faith within the terms of EqA s27(3). While it may be that the evidence supports a lack of accuracy and/or honesty on the claimant’s part in respect of certain factual matters set out in the grievances, the evidence as a whole is not sufficient for the tribunal to make a finding that the claimant was dishonest when she alleged in the grievances that she had been subjected to race discrimination.

[487]The tribunal therefore finds that the allegations of race discrimination contained with the claimant’s grievances dated 01 June 2021 and 28 February 2022 constituted protected acts under EqA s27.

[488]For the claimant to succeed in her claim of victimisation, there must not only be a protected act, but the respondent must also have subjected the claimant to a detriment because the claimant did a protected act.

[489]In support of the victimisation complaint, the claimant relies on the alleged detriments set out at paragraph 15 of the Schedule of Issues. The tribunal’s decision in respect of each detriment are based on the relevant findings of fact as set out in this judgment. The tribunal is not satisfied that the claimant was subjected to these alleged detriments because she had done a protected act. In the circumstances, one of the essential ingredients of EqA s27 is not satisfied and the claim of victimisation must fail.

[490]As to the specific alleged detriments: 15(a) - On 14 June 2021 the Claimant was not admitted by Dr Allum and Dr Perry at the JLNC pre-meet with management – para 25 PoC By this date, the primary focus of the claimant’s work was project work. There was no reason for the claimant to be invited to this pre-meet. In the circumstances, the claimant was not subjected to a detriment by the respondent. In any event, this decision was in no sense whatsoever because the claimant had raised a grievance. 15(b) - The Claimant emailed Dr Perry on 23 June 2021 copying the executive management team to discuss areas of concerns [sic] with a hope to get support. He ignored the Claimant and she instead received a response back from Tom Olam on By 15 July 2021 Mr Olam was the claimant’s line manager and it was appropriate for him to respond to her letter. Mr Olam’s response was not inappropriate and humiliating. In the circumstances the claimant was not subjected to a detriment by the respondent. Neither the fact of Mr Olam responding, nor the content of his response was in any sense whatsoever on the ground that the claimant had made a protected disclosure. 15(c) - On 2 July 2021 Dr Allum sent a text message to Dr Bhat claiming that the Claimant said that Dr Bhat did not have access to his establishment which was totally inaccurate – para 30 PoC The words in Dr Allum’s text to Dr Bhat were an accurate reflection of what the claimant had told Dr Allum. In the circumstances the claimant was not subjected to a detriment by the respondent. Neither the composition of the text or its sending by Dr Allum were in any sense 15(d) - On 07 July 2021 the Claimant asked for clarity on a GP that was allowed to act up as a consultant, which the Claimant found to be inappropriate. Dr Allum and Dr Perry tried to put again the blame on the Claimant when this was actioned in the Neither Dr Perry nor Dr Allum tried to put blame on the claimant for the GP acting up as a consultant. In the circumstances, the claimant was not subjected to a detriment by the respondent. Dr Perry and Dr Allum’s approach to this issue was not in any sense whatsoever because the claimant had raised a grievance. 15(e) - The Claimant was not invited by Dr Perry to attend the LCEA review in August 2021 after having advised on it in 2020. Instead Mr Tom Olam was invited and the Claimant had no updates about the outcome – para 27 PoC By August 2021 the primary focus of the claimant was to be on project work. At that time the LCEA fell within the remit of Mr Olam’s responsibilities and consequently it was neither necessary nor appropriate for the claimant to attend the review. In the circumstances the claimant was not subjected to a detriment by the respondent. The invitation to Tom Olam to attend was in no sense whatsoever because the 15(f) - At no point had any of the Claimant’s management team meet [sic] with her to explain the change in her manage [sic], they just told her that was the case. The claimant refers to a reiteration of this in an email on 18 August 2022 – para 26 PoC The first management communication with the claimant about issues which might fairly be described as line management was on 22 September 2020 when Bernard Scully emailed the claimant and asked her to discuss with him, ‘in the first instance’, any areas which were giving her concern. Dr Allum emailed the claimant on 29 December 2020 and notified her that her line manager was Deborah Evans until further notice. This was followed up by Ms Evans in an email dated 30 December 2020. Dr Perry confirmed this in an email dated 24 March 2021. By email dated 27 May 2021 the claimant was informed that Mr Olam had been recruited to take over from Ms Evans who was leaving the respondent’s employment. In the same email, the claimant was informed that reporting lines would remain the same. The claimant was kept fully informed in writing of the changes in her line management. The first grievance was not raised until 01 June 2021, the second grievance was raised on 28 February 2022. These grievances were raised long after the respondent had first communicated in writing to the claimant the change in line management from Dr Perry. Similarly, the revision of the claimant’s duties to focus her work on projects had been set before the claimant raised her first grievance. No meeting was offered to the claimant to discuss the changes in line management. This was a detriment to which the claimant was subjected by the respondent. By the time the first grievance was raised, it had been more than 6 months since the respondent had decided not to hold a meeting with the claimant to discuss her change in line manager from Dr Perry. Any subsequent decision to hold a discussion about a change in line manager followed the practice which had been adopted when Ms Evans took over from Dr Perry. No meeting was held. The decision not to hold a meeting with the claimant to discuss the change in line management was in no sense whatsoever because she had raised a grievance. 15(g) - On 18 August 2021 the Claimant was forwarded a query from a trainee doctor and found out that she was not made aware of a communication that went to all – para 24 PoC Dr Allum’s response: “…you have been asked to focus on the two projects and nothing else” – para 24 PoC The claimant was not cc’d into the email to which the junior doctor responded, because it was believed that it did not fall within the remit of the project work which was intended to be the claimant’s primary focus at the time. Consequently, Dr Allum did not think it necessary to include the claimant on the circulation list. The decision that the claimant should focus on project work had been made before the claimant raised a grievance. The decision not to include the claimant on the circulation list was in no sense whatsoever because the claimant had raised a grievance. 15(h) – On 22 September 2021, Dr Vincent Perry removed the claimant from the pay audit that she initiated and was leading on – para 2 PoC The claimant now acknowledges that she was not removed from the pay audit on 22 September 2021. The claimant states that this occurred in ‘March/April 2021’. At that time the claimant had not raised a grievance. The removal of the claimant from the pay audit was in no sense whatsoever because she had raised a grievance. by Dr Allum. The tribunal finds that the suspension arose from genuine concern about the way in which the claimant dealt with requests to provide what was considered by Dr Allum to be essential information. Dr Allum harboured a genuine concern about potential reputational damage to the respondent. The claimant was a band 8a senior HR professional who had failed, apparently for no good reason, to provide any adequate response to requests for information made by the claimant’s line manager Mr Olam, and to the Executive Medical Director Dr Allum. In the circumstances neither the concerns leading to the claimant’s suspension, nor the decision to suspend the claimant were in any sense whatsoever because the 15(k) - In October 2021, Ms Pavanjit Devsi was appointed as the Commissioning to Dr Caroline Allum different directorate to Dr Allum. The evidence indicates that the appointment of commissioning manager. The decision to appoint Ms Devsi was in no sense The failure to regularly review her suspension was a detriment to which the respondent subjected the claimant. Ms Devsi attempted to fulfil the obligation to keep the suspension under review and believed that she had done so. She fell short of the respondent’s published policy by reason of inexperience. Ms Devsi had managed only one other suspension previously. The failure to review the suspension regularly was in no sense whatsoever because the claimant had raised a grievance. The claimant did have access to a support buddy. She has not been subjected to a detriment in this regard. The claimant was initially allocated a HR business partner. When the respondent requested a change of buddy she was allocated a consultant clinical psychologist. Ultimately at the claimant’s request the Chair of the Ethnic Minority Network took on the role. The alleged unwanted conduct of, ‘The failure to…provide a buddy’ did not take place. A total of three buddies were at different times allocated to the claimant. The respondent endeavoured to allocate a buddy to the claimant and responded to the claimant’s requests to find another buddy when she was unhappy with the allocated buddy. The respondent’s approach to the allocation of a buddy was not in no sense grievance, this was in no sense whatsoever because the claimant had raised a grievance. Mr Makala, endeavoured to investigate the claimant’s grievance, properly and fairly. Insofar as there was any shortcoming in the process by which Mr Makala set the terms of reference, it was in no sense whatsoever because the claimant had raised a grievance. As set out in the findings of fact above:- allegedly offending letter. No evidence has been provided to the tribunal from which the tribunal could conclude that in receiving a letter setting out the terms of reference the claimant was subjected to a detriment because she had raised a grievance. questions about ‘who made the allegations against her’ to the best of her ability and Ms Grewal is an independent HR consultant and there is no evidence that Ms Grewal was not acting independently when she responded to the claimant’s questions about: ‘who made the allegations against her’. In no sense whatsoever did the investigating officer did not fail to answer questions about who made the allegations against the claimant, because the claimant had raised grievances. witnesses to interview. In considering what he describes as: ‘…an extensive list of potential witnesses, in addition to those identified when the terms of reference were agreed.’, Mr Macklin held a meeting with the claimant and her then trade union representative: ‘…to discuss how these individuals might contribute to the finding of fact in respect of the issues raised in OB’s [the claimant’s] grievance. Using that as the only criteria for selection I undertook to approach four of those originally listed…’. reference. Each of these terms of reference were agreed by the claimant. The interviewees. As Mr Macklin put it: ‘…to discuss how these individuals might contribute to the finding of fact in respect of the issues raised in OB’s [the claimant’s] grievance.’ The claimant in her witness statement made no criticism of how Mr Macklin conducted the meeting he held to discuss potential witnesses. Mr Macklin’s decision as to which witnesses to interview, was in no sense whatsoever made because the claimant had raised grievances. claimant on 03 March 2023. The claimant’s written submissions state that: ‘There is little reason provided for the delay and it is suggested that this must have been because of C’s protected acts/disclosures and/or race.’ The tribunal is satisfied that the delay was in no sense whatsoever because the Equality Act 2010 – s26 Harassment related to Race

[491]The list of issues poses the following questions at paragraphs 15 and 16: ’16. Did the Respondent subject the Claimant to unwanted conduct relating to the protected characteristic of race by doing any of those matters alleged at paragraph 15i to 15q above? 17. If so, did that conduct have the purpose or effect of violating the Claimant’s dignity or creating a hostile, intimidating, degrading, humiliating or offensive environment for the claimant?’.

[492]The tribunal refers to the findings of fact set out in these reasons. In respect of the matters at 15(i)-15(q), the findings have the following in common. The tribunal does not find that any of the alleged unwanted conduct was related to race.

[493]Therefore one of the essential ingredients of EqA s26(1)(a) is not satisfied and the claim for harassment must fail.

[494]As to the specific alleged incidents of unwanted conduct: by Dr Allum. The tribunal finds that the suspension arose from genuine concern about the way in which the claimant dealt with requests to provide what was considered by Dr Allum to be essential information. Dr Allum harboured a genuine concern about potential In the circumstances the tribunal does not find that Dr Allum fabricated the complaint which led to the claimant’s suspension. The tribunal finds that Dr Allum’s complaint had nothing to do with the claimant’s race, instead it arose from genuinely held concerns about the claimant’s behaviour. 15(k)- In October 2021, Ms Pavanjit Devsi was appointed as the Commissioning to Dr Allum different directorate to Dr Allum. The evidence indicates that the appointment of commissioning manager. The decision to appoint Ms Devsi had nothing to do with the claimant’s race. The failure to regularly review the suspension had nothing to do with the claimant’s race. Ms Devsi attempted to fulfil the obligation to keep the suspension under review and believed that she had done so. She fell short of the respondent’s published policy by reason of inexperience. Ms Devsi had managed only one other suspension previously. The respondent did have access to a support buddy. She was initially allocated a HR business partner. When the respondent requested a change of buddy, she was allocated a consultant clinical psychologist. Ultimately at the claimant’s request the Chair of the Ethnic Minority Network took on the role. The alleged unwanted conduct of: ‘The failure to…provide a buddy’ did not take place. A total of three buddies were at different times allocated to the claimant. In any event, the respondent’s approach to the allocation of a buddy had nothing to do with the claimant’s race. The respondent endeavoured to allocate a buddy to the claimant and responded to the claimant’s requests to find another buddy when she was unhappy with the allocated buddy. The evidence placed before the tribunal does not support a finding that the alleged unwanted conduct had anything to do with the claimant’s race. grievance, there is no evidence from which the tribunal could find or infer that this was related to the claimant’s race. Mr Makala, who is: ‘of the same race’ as the claimant, genuinely endeavoured to investigate the claimant’s grievance, properly and fairly. Insofar as there was any shortcoming in the process by which Mr Makala set the terms of reference, it had nothing to do with the claimant’s race. As set out in the findings of fact above: allegedly offending letter. No evidence has been provided to the tribunal from the which the tribunal could conclude that there was anything improper or inappropriate about the content of the letter. On the evidence placed before it, the tribunal is unable to find that the 29 April 2022 letter constituted unwanted conduct under EqA s26(1)(a). The claimant has not made a specific complaint about any part of the content of the letter. The claimant is an experienced and senior HR professional. She had raised grievances which required investigation. The claimant will have understood that terms of reference may be set. In any event, there is no evidential basis on which the tribunal could find that the alleged unwanted conduct had anything to do with the claimant’s race. Grievances had been raised which required investigation. In the circumstances, the act of sending a letter setting out the terms of reference for the investigation, cannot, without more, be regarded as having anything to do with the claimant’s race. questions about ‘who made the allegations against her’ to the best of her ability and In written submissions made on behalf of the claimant, the tribunal is invited to focus on Ms Grewal’s response when, after the claimant had asked for a second time: ‘Who are the people who made the complaint against Oumouly?’, Ms Grewal responded: ‘Can you refer that back to the Trust’. This exchange must be seen in its full context. Ms Grewal had already endeavoured to answer the claimant’s question, this included her comment that: ‘I don’t think they were specific complaints’. In response to a further question from the claimant’s union representative as to the names on the terms of reference, Ms Grewal read out the names of the specific individuals who were named on the terms of reference. In formulating her decision to suspend the claimant, Dr Allum did not act on a complaint but made a decision as manager on the basis of her knowledge and perception of the available information. On the evidence, the tribunal is unable to find the alleged unwanted conduct is established, namely that: ‘the investigation officer failed to answer questions about who made the allegations against her’. In any event, on the evidence the tribunal is not satisfied that the approach of Ms Grewal to answering questions about who made allegations against her had anything to do with the claimant’s race. Ms Grewal is an independent HR consultant and there is no evidence to support a finding that Ms Grewal was not acting independently when she responded to the claimant’s questions about: ‘who made the allegations against her’. The notes from the meeting on 21 April 2022 paint a picture of a person who is doing their best to respond to the questions to the best of their ability. Other than the bald assertion that Ms Grewal’s answers were related to race which implied by the allegation of harassment, there is no evidence on which the tribunal could base such a finding. The tribunal finds that Ms Grewal’s responses to the claimant’s questions had nothing to do with the claimant’s race. witnesses to interview. In considering what he describes as: ‘…an extensive list of potential witnesses, in addition to those identified when the terms of reference were agreed.’, Mr Macklin held a meeting with the claimant and her then trade union representative: ‘…to discuss how these individuals might contribute to the finding of fact in respect of the issues raised in OB’s [the claimant’s] grievance. Using that as the only criteria for selection I undertook to approach four of those originally listed…’. reference. These terms of reference were each agreed by the claimant. The interviewees. As Mr Macklin put it: ‘…to discuss how these individuals might contribute to the finding of fact in respect of the issues raised in OB’s [the claimant’s] grievance.’ The claimant in her witness statement made no criticism of how Mr Macklin conducted the meeting he held to discuss potential witnesses. In all the circumstances the tribunal is not satisfied that Mr Macklin’s approach to his choice of interviewees had anything to with the claimant’s race. claimant on 03 March 2023. The claimant’s written submissions state that, ‘There is little reason provided for the delay and it is suggested that this must have been because of C’s protected acts/disclosures and/or race.’ The tribunal is satisfied that the delay had nothing to do with the claimant’s race. Employment Rights Act 1996 – Protected Disclosure - Whistleblowing

[495]The claimant relies on three potential protected disclosures:(a) The grievance dated 01 June 2021

(b) The email sent on 23 June 2021 to Vincent Perry

[496]The list of 14 complaints set out in the claimant’s grievance dated 01 June 2021 do not satisfy the essential requirement for ‘qualifying disclosure’ within the terms of ERA s43B(1) that the disclosure should in the reasonable belief of the claimant be in the public interest and tend to show one or more of the matters at ERA s43B(1)(a)- (e).

[497]As noted in HHJ Tayler’s analysis of Chesterton (Global) Ltd at paragraph 27 of Dobbie v Felton: ‘(6) the statutory criterion of what is "in the public interest" does not lend itself to absolute rules (7) the essential distinction is between disclosures which serve the private or personal interest of the worker making the disclosure and those that serve a wider interest [emphasis added] (8) the broad statutory intention of introducing the public interest requirement was that "workers making disclosures in the context of private workplace disputes should not attract the enhanced statutory protection accorded to whistleblowers" [emphasis added] (9) Mr Laddie's fourfold classification of relevant factors may be a useful tool to assist in the analysis: i. the numbers in the group whose interests the disclosure served ii. the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed iii. the nature of the wrongdoing disclosed iv. the identity of the alleged wrongdoer.

[498]The tribunal is mindful that there may be more than one view as to whether a particular disclosure was made in the public interest. It is also the case that, as noted in Dobbie v Felton where the interest in question is personal in character, there may nevertheless be features of the case that make it reasonable to regard disclosure as being in the public interest. The nature of the matters set out in the 14 complaints are however essentially disclosures which serve the personal interest of the claimant rather than the wider public interest.

[499]The complaints relate to the claimant alone and not to a wider group. The nature of the interests affected and the extent to which they are affected essentially relate to the claimant. The alleged wrongdoing is personal to the claimant. The complaints are against Dr Perry, the individual whom the claimant alleges was her line manager.

[500]The list of 14 complaints set out in the grievance do not have sufficient factual content and specificity as to be capable of tending to show one or more of the matters set out at s43B(1)(a)-(f). Even if the claimant subjectively believed that the disclosure was made in the public interest, objectively that belief is not reasonable.

[501]The more detailed complaints set out within the grievance dated 01 June 2021 largely serve the personal interest of the claimant rather than the wider public interest.

[502]The suggestion made in the more detailed complaints that the team breached data protection legislation in order to look for information that could support their allegations does not have sufficient factual content and specificity as to be capable of tending to show one or more of the matters set out at s43B(1)(a)-(f). The bare allegation contains no information which could support a conclusion that objectively a belief that this disclosure was made in the public interest was reasonable.

[503]There is an element of the grievance which falls into a different category. The claimant’s allegation that: ‘Following my removal from the pay audit that I initiated and was leading on, I believe [Dr Perry] potentially committed frauds that he did manage to cover up.’

[504]The other complaints concern allegations that Dr Perry has failed, is failing or is likely to fail to comply with any legal obligation to which he was subject. In making the allegation of fraud and cover up, the claimant’s allegation falls under ERA s43B(1)(a) namely that a criminal offence has been committed, is being committed or is likely to be committed.

[505]An allegation of fraud committed on a health trust by a senior member of staff and covered up by that member of staff, goes beyond the purely personal interest of the claimant. It will more readily pass the ERA s43B(1) threshold of public interest. The fact that a claimant’s disclosure may be motivated by personal interest does not prevent a disclosure being a qualifying disclosure under s43B(1). As HHJ Tayler observed at paragraph 28 of Dobbie v Felton: ‘…a disclosure that is made with no wish to serve the public can still be a qualifying disclosure; the person making the disclosure must hold the reasonable belief that the disclosure is ‘made’ in the public interest.’

[506]An allegation of a criminal offence does not of itself constitute a qualifying disclosure under the terms of ERA s43B(1). This requires, among other things, a disclosure of: ‘information’. As Sales LJ highlighted at paragraphs 35 and 36 of his judgment in Kilraine: ‘[35] …in order for a statement or disclosure to be a qualifying disclosure…it has to have a sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection (1)… [36] Whether an identified statement or disclosure in any particular case does meet that standard will be a matter for evaluative judgment by a tribunal in the light of all the facts of the case. It is a question which is likely to be closely aligned with the other requirement set out in section 43B(1), namely that the worker making the disclosure should have the reasonable belief that the information he discloses does tend to show one of the listed matters. As explained by Underhill LJ in Chesterton Global at [8], this has both a subjective and an objective element. If the worker subjectively believes that the information he discloses does tend to show one of the listed matters and the statement or disclosure he makes has a sufficient factual content and specificity such that it is capable of tending to show that listed matter, it is likely that his belief will be a reasonable belief.’ [all emphasis added].

[507]The disclosure of alleged criminal conduct is narrowly stated in the 01 June 2024 grievance: ‘Following my removal from the pay audit that I initiated and leading on I believe [Dr Perry] potentially committed frauds that he did manage to cover up’. [emphasis added]. The tribunal finds that there is insufficient factual content and specificity in the disclosure to meet the requirements of ERA s43B(1).

[508]The tribunal notes that the allegation is that Dr Perry ‘potentially’ committed frauds. No facts are provided by the claimant as to the mechanism by which Dr Perry may have committed these ‘potential’ frauds or as to any other aspect of the alleged potential frauds.

[509]The claimant offers no evidence other than the fact that she was removed from the pay audit to support her allegation of potential frauds and cover up.

[510]In the circumstances of this case, the fact of the claimant’s removal from the pay audit is not of itself information which objectively has a sufficient factual content and specificity such that it is capable of tending to show that a criminal offence has been committed, is being committed or is likely to be committed. More is required. There are many reasons why the claimant may have been removed from the pay audit. These include entirely innocent reasons. The fact of removal from the pay audit does not without more satisfy ERA s43B(1)(a).

[511]Similarly, the fact of the claimant’s removal from the pay audit is not of itself information which objectively has a sufficient factual content and specificity to be capable of tending to show that ‘potential’ frauds carried out by Dr Perry have been, are being, or are likely to be, deliberately concealed. Reporting suspected fraud in July 2021

[512]The agreed list of issues asks the tribunal to consider whether the claimant’s report of suspected fraud in July 2021 was a protected disclosure. The list of issues does not request the tribunal to consider whether the email sent by the claimant to Mr Higgs on 01 August 2021 constitutes a protected disclosure. Nonetheless in written submissions, the claimant’s counsel relies on the content of the 01 August 2021 email.

[513]It is said by counsel on behalf of the claimant that when the 01 August 2021 email is read together with the claimant’s email dated 22 July 2021 that they are: ‘…clear in their terms and specific enough to amount to a disclosure of information when read together.’

[514]These reasons will address first the issue which the agreed statement of issues invites the tribunal to consider, namely whether the claimant’s actions in reporting suspected fraud in July 2021 constitutes a protected disclosure. The impact of the 01 August 2024 email will then be considered.

[515]The evidence which was presented to the tribunal in respect of the July 2021 report of fraud falls short of what is required to constitute a protected disclosure. The email dated 22 July 2021 offers no indication of the detail of the information provided to Mr Higgs when he and the claimant apparently: ‘…discussed briefly a potential fraud a month ago.’ The heading of the email: ‘Potential Fraud in Medical HR’, offers no indication of what the ‘potential fraud’ may have been.

[516]The content of the email dated 22 July 2021, in its reference to a brief discussion: ‘a month ago’, does not readily align with the content of the claimant’s witness statement.

[517]At paragraph 103 of her witness statement the claimant states that: ‘In July 2021, I formally contacted Daniel Higg, from the Fraud team and raised concerns with serious discrepancies in the pay audit’ [emphasis added]. The claimant’s email dated 22 July 2021 makes no mention of: ‘serious discrepancies in the pay audit’ and refers only to a brief discussion between the claimant and Mr Higgs which took place one month before. The subject of their discussion is referred to as simply: ‘a potential fraud’.

[518]The assertion in the claimant’s witness statement that in July 2021 the claimant formally raised concerns about ‘serious discrepancies in the pay audit’ is contradicted by the content of the 22 July 2021 email, which in its totality states: ‘We discussed briefly a potential fraud a month ago. Please let me know when is the best time to contact you to discuss further.’

[519]The email states that the earlier brief discussion between the claimant and Mr Higgs took place: ‘a month ago’, which would have been June and not July 2021. The email dated 22 July 2021 must be read in the context of that discussion.

[520]There is a problem however, in that the email dated 22 July 2021 says nothing about the content of the discussion, other than that it was brief. The claimant’s suggestion in her witness statement that she: ‘…formally contacted Daniel Higg, from the Fraud team and raised concerns with serious discrepancies in the pay audit’, is undermined by the fact that the 22 July 2021 email does not reflect that assertion.

[521]As noted above, an allegation of fraud committed on a health trust by a senior member of staff and covered up by that member of staff, goes beyond the purely personal interest of the claimant. Nonetheless, as observed in Kilraine, in order for a statement or disclosure to be a qualifying disclosure, it has to have a sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection ERA s43B(1). In this case s43B(1)(a) and (f), namely that a criminal offence has been committed, is being committed, or is likely to be committed, and/or that it has been, is being or is likely to be deliberately concealed.

[522]Even if the claimant subjectively believed that the information disclosed tended to show one or more of the matters in ERA s43B(1)(a)-(f), objectively the belief was not reasonable.

[523]The factual content of the 22 July 2021 email is both insufficient and lacking in the specificity necessary to constitute a protected disclosure. It refers only to a: ‘potential fraud’.

[524]Taken at its highest, if the 22 July 2021 email is read in the context of the assertion at paragraph 103 of the claimant’s witness statement that in July 2021 the claimant: ‘…raised concerns with serious discrepancies in the pay audit’, it remains insufficient and lacking in the specificity necessary to constitute a protected disclosure. No information is given about the nature of the alleged: ‘serious discrepancies’ in the pay audit.

[525]The agreed statement of issues is clear in its description of the relevant alleged protected disclosure as being: ‘Reporting suspected fraud in July 2021’. The alleged protected disclosure is pinned to a certain point in time, namely July 2021. In this context, the claimant’s invitation through her counsel to read the 22 July 2021 email together with the content of the claimant’s subsequent email sent on 01 August 2021 is misconceived. Whatever was written by the claimant on 01 August 2021, this written communication cannot have constituted any part of the claimant’s report of suspected fraud in July 2021.

[526]The content of the claimant’s email dated 01 August 2021 would suggest that what is written there had not been described to the respondent previously in the terms which the claimant set out on 01 August 2021.

[527]In attaching to that email: ‘…Dr Vincent Perry’s report extracted from the Master Pay Audit of Job Plan compared with ESR that informed the report he submitted to EMT in April 21.’, there is no comment to the effect of: ‘as previously discussed’. This is surprising, if indeed the claimant had previously: ‘raised concerns with serious discrepancies in the pay audit.’

[528]In any event, the terms of the claimant’s email dated 01 August 2021 do not have a sufficient factual content and specificity such as is capable of tending to show that a criminal offence has been committed, is being committed, or is likely to be committed. The disclosure does not satisfy the reasonable belief test in s43B(1).

[529]The claimant is a senior HR professional working for an NHS Trust. She will be familiar with the fact that various factors influence the attribution of PAs to a consultant’s income and to that of a Deputy Medical Director. The claimant should also be aware that the duties of the Deputy Medical Director go beyond clinical duties and that the attribution of PAs to Dr Perry’s remuneration may reflect this.

[530]Whether or not subjectively the claimant believes that the information disclosed in the 01 August 2021 email discloses tends to show that a criminal offence has been committed, is being committed or is likely to be committed, objectively the belief is not reasonable. At its highest, the information contained in 01 August 2021 may put the recipient on notice that the issue of how Dr Perry’s pay has been and is to be administered in the future may require to be looked into and potentially changed. The information contained within the disclosure does not tend to show that the terms of either ERA s43B(1)(a) or (f) are satisfied.

[531]At the date of the August email Dr Perry was working as Deputy Medical Director. He was entitled to be paid for his work for the respondent as a consultant fulfilling that role. The 01 August 2021 email provides no information which is capable of tending to show that any aspect of the pay arrangements for Dr Perry disclose the commission of a criminal offence or deliberate concealment of such an offence, either in the past, the present, or that it is likely to occur in the future. The email sent on 23 June 2021 to Vincent Perry

[532]The claimant asserts that the disclosure of information in her email to Dr Perry dated 23 June 2021 is made in the public interest and tends to show the circumstances set out in ERA s43B(1)(b) and (d). s43B(1)(b) – that a person has failed, is failing or is likely to fail to comply with any legal obligation to which is subject. s43(1)(d) – that the health or safety of any individual has been, is being or is likely to be endangered

[533]It is said on behalf of the claimant that s43(1)(b) is satisfied because the information disclosed tended to show that: ‘pay queries not addressed as a potential breach of contract with doctors’. Section 43B(1)(d) is said to be satisfied because the information disclosed tended to show that: ‘the health and safety of individuals may be endangered (both staff health/wellbeing and patient safety at risk)’.

[534]It is alleged on behalf of the claimant that:• The email, ‘…clearly involved disclosures of information in that it referred to DBS checks not being done, to HR emails not being responded to or actioned and pay queries not being addressed, and to the fact that the team have been firefighting which was impacting on wellbeing and patient safety’

• ‘It was reasonable to consider these were in the public interest given that they affected a wide group (all doctors at the trust and all patients at the trust), the potentially serious repercussions arising from the failures recorded, the serious nature of the wrongdoing and the status of the NHS as a public body.’

[535]The respondent rejects the claim that the 23 June 2021 email contains protected disclosure stating that:• the claimant has not satisfactorily identified any alleged breach of a legal obligation.

• ‘It is not accepted that there is a disclosure of information which tends to show endangerment of health and safety. ‘Issues with DBS already risk registered – that has not been touched since Jan’ is insufficient. It is not clear what the issue with DBS is or if it has a link to health and safety. [The claimant] refers to firefighting and an impact on staff health and wellbeing, family life and patient safety. Again there is no disclosure of information. It lacks sufficient factual content or specificity’

• ‘The claimant gives no evidence about her belief when she made this disclosure nor how she says this email is in the public interest. It is submitted that [the claimant] did not have a reasonable belief that her disclosure was in the public interest. This email is a direct reply to [Vincent Perry] overruling the claimant in respect of appoint a Band 5. [The claimant’s] interest is in obtaining a new member of staff through the Executive overruling [Vincent Perry].

[536]The relevant content of the email is: ‘…As you are aware concerns have been raised with regards to the quality of service we provide that has deteriorated in my absence: Issues with DBS already risk registered – That has not been touched since Jan. Medical HR inbox – more than 1500 emails not responded to/actioned as of today. Pay queries – not addressed on time, AMD, deputy MD chasing, following up, completing admin tasks. Trainees exception reporting not actioned on time, escalated to Finance and Guardian of Safe Working. Pay tracker not updated for monthly pay queries records… Agency employment complaining on CVs that they sent since January without feedback – knowing the high agency spend. Recruitment system TRAC not cleansed. Project paused hence the delay in submitting the “Audit report”. We are firefighting and have been since I joined the trust and as we are all aware this is impacting on staff Health and Wellbeing, family life and patient safety. We need arrangements for AL to be taken. The list is not exhaustive and can go on. This is just to reiterate the current situation of the department…Claire – she has agreed to help with the backlog of the DBS to ensure we can give assurance for our doctor’s fitness to practice… I hope and pray that an executive decision can be made to redefine roles and responsibilities and focus on the NHS constitution values for the benefits of the patients’.

[537]In considering the background to the email the observations of HHJ Tayler at paragraph 28(8) of Dobbie v Felton are pertinent: ‘while motivation is not the issue; so that a disclosure that is made with no wish to serve the public can still be a qualifying disclosure; the person making the disclosure must hold the reasonable belief that the disclosure is "made" in the public interest…The fact that a disclosure can be made in "bad faith" does not alter this analysis. A worker might make public the fact that the employer is discharging waste because he dislikes the MD, and so is acting in bad faith, but nonetheless hold the reasonable belief that making the disclosure is in the public interest because the discharge of waste is likely to be halted. Generally, workers blow the whistle to draw attention to wrongdoing. That is often an important component of why in making the disclosure they are acting in the public interest.’

[538]Under cross-examination the claimant rejected the suggestion that the 23 June email was written solely because Dr Perry has overruled her in respect of the appointment of a band 5. The claimant insisted that it was: ‘about malpractices’.

[539]While the claimant may have had a number of motivations for writing the email dated 23 June 2021, the tribunal accepts that she did subjectively believe that the information she disclosed tended to show one or more of the matters listed in ERA s43B(1).

[540]The information disclosed lacks sufficient factual content and specificity to support the claimant’s submission that: ‘pay queries not addressed as a potential breach of contract with doctors’, fulfil ERA s43B(1). The email simply refers to: ‘Pay queries – not addressed on time, AMD, deputy MD chasing, following up, completing admin tasks.’ This reference does not provide sufficient information which tends to show that the respondent has failed, is failing or is likely to fail to comply with its legal obligation not to breach its contract with doctors.

[541]A failure to address pay queries ‘on time’ does not of itself indicate a potential breach of contract. More information is needed if the terms of ERA s43B(1)(b) are to be fulfilled. Objectively the claimant’s belief is not reasonable that the information disclosed in the email fulfils the terms of ERA s43B(1)(b): ‘Pay queries – not addressed on time, AMD, deputy MD chasing, following up, completing admin tasks.’ It does not on its own constitute a qualifying disclosure.

[542]The tribunal does however find that content within the 23 June 2021 tends to show that: ‘the health or safety of any individual has been, is being or is likely to be endangered’ within the terms of s43B(1)(d).

[543]There are two aspects to this:(a) The information in respect of the DBS [Disclosure and Barring Service] checks, and;

(b) The cumulative impact of the information provided in the email about issues which are alleged to have resulted in staff ‘firefighting’.

[544]Two pieces of information are conveyed about the DBS in the email:• ‘Issues with DBS already risk registered – That has not been touched since Jan.’

• ‘Claire – she has agreed to help with the backlog of the DBS to ensure we can give assurance for our doctor’s fitness to practice’

[545]The first comment refers to issues with DBS that has [sic] not been touched since January. The second comment refers to a: ‘backlog of the DBS’. This information is reinforced by the reference to the need: ‘to ensure we can give assurance for our doctor’s fitness to practice’.

[546]The combined effect of the two comments is that:• The issues relate to DBS checks for doctors;

• There has been a delay in dealing with issues concerning the DBS;

• The backlog of DBS checks impacts the respondent’s ability to give assurance in respect of the fitness to practice of doctors recruited by the respondent.

[547]The information disclosed has sufficient factual content and specificity to tend to show the matter at ERA s43B(1)(d).

[548]In consideration of the fourfold classification of relevant factors set out in Chesterton:(i) The numbers in the group whose interests the disclosure served The respondent’s patients and staff.

(ii) The nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed The patients have an interest in assurance that there are no DBS issues which might render treating doctors unfit to practice. The medical staff have an interest in assurance that they are working with colleagues who do not have any DBS issues which might render them unfit to practice. The interest of both groups in not having the recruitment of doctors, who are required for the appropriate treatment of patients, stalled by unnecessary delays in completing DBS checks.

(iii) The nature of the wrongdoing disclosed Incomplete DBS checks causing delay in confirming doctors as fit to practice.

(iv) The identity of the alleged wrongdoer An NHS Hospital Trust.

[549]The tribunal is satisfied that subjectively the claimant believed that the disclosure was made in the public interest and tended to show that the health or safety of patients has been, is being, or is likely to be endangered. Objectively this belief was reasonable. Where recruitment of doctors is required to meet an identified need for appropriate care within the respondent Hospital Trust, delays in the recruitment of necessary medical staff is likely to endanger the health and safety of patients.

[550]Turning to the cumulative effect of the information set out in the 23 June 2021 email as to the issues which are alleged to have resulted in, and/or evidence: ‘firefighting’.

[551]The information disclosed by the claimant in the email includes information about failings and delays by the medical HR department in discharging its duties. This includes the following information:• Issues with DBS which has [sic] not been touched since January (around 5 months before the date of the 21 June 2021 email);

• 1,500 emails not responded to/actioned;

• Pay queries – not addressed on time;

• Trainees exception reporting not actioned on time;

• Pay tracker not updated for monthly pay queries records;

• Agency complaining on CVs they sent since January without feedback;

• Backlog of DBS necessary to ensure doctors fitness to practice.

[552]The information disclosed also includes the assertion that the medical HR department is: ‘firefighting’ with, it is said, an impact on: ‘…staff health…and patient safety’. On an ordinary reading of the email, it is clear that a linkage is being drawn between the failings/delays within the department and the fact that it is: ‘firefighting’.

[553]The tribunal finds that the information disclosed has sufficient factual content and specificity to tend to show the matter at ERA s43B(1)(d).

[554]In consideration of the fourfold classification of relevant factors set out in Chesterton:(i) The numbers in the group whose interests the disclosure served The respondent’s patients, and the respondent’s staff in the medical HR department. The medical HR department comprises a relatively small number of people. The group includes the claimant.

(ii) The nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed The health and safety of staff and patients. The picture portrayed is of a medical HR department which is unable to function adequately so that the health and wellbeing of the staff within the department is being impacted. In turn, it is implied that the fact that the department concerned with medical staffing is unable to keep up with its workload in the ways identified in the email (including issues with DBS which had not been touched since January, around 5 months before the date of the 21 June 2021 email), is likely to endanger the health and safety of patients.

(iii) The nature of the wrongdoing disclosed The complaint is that the medical HR department is ‘firefighting’, as evidenced in the information provided in the list of examples set out by the claimant. The expression ‘firefighting’ indicates that the staff in the department are currently overwhelmed by work. It is implied that the medical HR department is currently not fit to perform effectively all the tasks which the respondent requires it to perform, due to the respondent’s failure to make an ‘executive decision’ to, ‘redefine roles and responsibilities’. Read in conjunction with immediately preceding correspondence in June 2021 from the claimant seeking to engage a temporary member of staff for the department, it is implied that at least part of the cause of the problem, is the respondent’s failure to resource the department adequately.

(iv) The identity of the alleged wrongdoer An NHS Hospital Trust.

[555]The tribunal is satisfied that subjectively the claimant believed that the disclosure was made in the public interest and tended to show that the health or safety of patients has been, is being, or is likely to be endangered.

[556]Objectively this belief was reasonable. A core part of the medical HR department’s role is to ensure that suitably qualified medical staff are put in place to ensure that patients medical needs are adequately met. Where the medical HR department is not fulfilling its fundamental role in dealing with DBS issues in a timely fashion, there is in failings in the medical staffing department cause recruitment of doctors is required to meet an identified need for appropriate care within the respondent Hospital Trust, delays in the recruitment of necessary medical staff is likely to endanger the health and safety of patients.

[557]What has been set out is information as to a series of failings/delays which the claimant subjectively believes tend to show the matter at ERA s43B(1)(d). Employment Rights Act 1996 s47B(1) – Protected Disclosure Detriment

[558]Establishing a protected disclosure is just the first hurdle which the claimant must surmount. It is also necessary to establish that the claimant was subjected to detriment on the grounds of having made the protected disclosure.

[559]Paragraph 15 of the Agreed Schedule of Issues poses the question: ‘Was the Claimant subjected to detriment(s) on the grounds of having made a protected disclosure contrary to s47B Employment Rights Act 1996? The alleged detriments relied on are [the matters set out at paragraphs 15(a)-(q) of the Agreed Schedule of Issues]’.

[560]These detriments have already been addressed in the context of the complaint of victimisation. They are further addressed below in the context of the complaint that the claimant was subjected to detriment on the grounds of having made a protected disclosure.

[561]In considering the alleged detriments, the tribunal has kept in mind the observations of Elias LJ in NHS Manchester v Fecitt to the effect that: ‘…section 47B will be infringed if the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer's treatment of the whistleblower’.

[562]The Claimant alleges that she was subjected to the detriments considered below, on the grounds of having made a protected disclosure in her 23 June 2021 email to Dr Perry. In this paragraph the tribunal addresses whether that was in fact the case. In reaching its decisions the tribunal has relied on relevant findings of fact as set out above. 15(a) - On 14 June 2021 the Claimant was not admitted by Dr Allum and Dr Perry at the JLNC pre-meet with management – para 25 PoC By this date, the primary focus of the claimant’s work was project work. There was no reason for the claimant to be invited to this pre-meet. In the circumstances, the claimant was not subjected to a detriment by the respondent. This decision was made prior to the protected disclosure within the 23 June 2021 email. Therefore in no sense whatsoever could the decision about the pre-meet have been made on the ground that the claimant had made a protected disclosure. 15(b) - The Claimant emailed Dr Perry on 23 June 2021 copying the executive management team to discuss areas of concerns [sic] with a hope to get support. He ignored the Claimant and she instead received a response back from Tom Olam on By 15 July 2021 Mr Olam was the claimant’s line manager and it was appropriate for him to respond to her letter. Mr Olam’s response was not inappropriate and humiliating. Neither the fact of Mr Olam responding, nor the content of his response was because the claimant had made a protected disclosure. The fact that Mr Olam was asked to reply was in no sense whatsoever on the ground that the claimant had 15(c) - On 2 July 2021 Dr Allum sent a text message to Dr Bhat claiming that the Claimant said that Dr Bhat did not have access to his establishment which was totally inaccurate – para 30 PoC The words in Dr Allum’s text to Dr Bhat were an accurate reflection of what the claimant had told Dr Allum. In the circumstances the claimant was not subjected to a detriment by the respondent. The composition of the text, and its sending by Dr Allum, were each in no sense whatsoever done on the ground that the claimant had made a protected disclosure. 15(d) - On 07 July 2021 the Claimant asked for clarity on a GP that was allowed to act up as a consultant, which the Claimant found to be inappropriate. Dr Allum and Dr Perry tried to put again the blame on the Claimant when this was actioned in the Neither Dr Perry nor Dr Allum tried to put blame on the claimant for the GP acting up as a consultant. There is no detriment as pleaded. Dr Perry and Dr Allum’s approach to this issue was in no sense whatsoever decided on the ground that the claimant had made a protected disclosure. 15(e) - The Claimant was not invited by Dr Perry to attend the LCEA review in August 2021 after having advised on it in 2020. Instead Mr Tom Olam was invited and the Claimant had no updates about the outcome – para 27 PoC By August 2021 the primary focus of the claimant was to be on project work. At that time the LCEA fell within the remit of Mr Olam’s responsibilities and consequently it was neither necessary nor appropriate for the claimant to attend the review. The decision that the claimant’s focus was to be on project work had been made before the 23 June 2021 email had been sent. It was this decision, made before the protected disclosure, which led to attendance at the LCEA review falling within the remit of Mr Olam rather than the claimant. The fact that the claimant was not invited to attend the LCEA review in August 2021 but Mr Olam was invited, was in no sense whatsoever on the ground that the claimant had made a protected disclosure. 15(f) - At no point had any of the Claimant’s management team meet [sic] with her to explain the change in her manage [sic], they just told her that was the case. The claimant refers to a reiteration of this in an email on 18 August 2022 – para 26 PoC Paragraph 26 of the Particulars of Claim in fact refers to an email dated 18 August 2021. The first communication with the claimant about issues which might fairly be described as line management was on 22 September 2020 when Bernard Scully emailed the claimant and asked her to discuss with him: ‘in the first instance’, any areas which were giving her concern. Dr Allum emailed the claimant on 29 December 2020 and notified her that her line manager was Deborah Evans until further notice. This was followed up by Ms Evans in an email dated 30 December 2020. Dr Perry confirmed this in an email dated 24 March 2021. By email dated 27 May 2021 the claimant was informed that Mr Olam had been recruited to take over from Ms Evans who was leaving the respondent’s employment. In the same email, the claimant was informed that reporting lines would remain the same. The claimant was kept fully informed in writing of the changes in her line management. The 23 June 2021 email containing the protected disclosure was sent well after the change in the claimant’s line management had already arisen and been communicated to the claimant. By the time the protected disclosure was made, it had been more than 6 months since the respondent had decided not to hold a meeting with the claimant to discuss her change in line manager from Dr Perry. Any subsequent decision to hold a discussion about a change in line manager followed the practice which had been adopted when Ms Evans took over from Dr Perry. No meeting was held. The decision not to hold a meeting with the claimant to discuss the change in line management was in no sense whatsoever on the ground that the claimant had made a protected disclosure. 15(g) - On 18 August 2021 the Claimant was forwarded a query from a trainee doctor and found out that she was not made aware of a communication that went to all – para 24 PoC Dr Allum’s response: “…you have been asked to focus on the two projects and nothing else” – para 24 PoC The claimant was not cc’d into the email to which the junior doctor responded, because it was believed that it did not fall within the remit of the project work which was intended to be the claimant’s primary focus at the time. Consequently, Dr Allum did not think it necessary to include the claimant on the circulation list. The decision that the claimant should focus on project work was made before the protected disclosure. The decision not to include the claimant on the circulation list was in no sense whatsoever on the ground that the claimant had made a protected disclosure. 15(h) – On 22 September 2021, Dr Vincent Perry removed the claimant from the pay audit that she initiated and was leading on – para 2 PoC The claimant now acknowledges that she was not removed from the pay audit on 22 September 2021. The claimant states that this occurred in: ‘March/April 2021’. This was prior to the claimant’s protected disclosure made by email dated 23 June 2021. In the circumstances the claimant’s removal from the pay audit was in no way whatsoever on the ground that she had made a protected disclosure. by Dr Allum. The tribunal finds that the suspension arose from concern about the way in which the claimant dealt with requests to provide what was considered by Dr Allum to be essential information. Dr Allum had a genuine concern about potential In the circumstances neither the concerns leading to the claimant’s suspension, nor the decision to suspend the claimant were in any sense whatsoever on the ground that the claimant had made a protected disclosure. 15(k) - In October 2021, Ms Pavanjit Devsi was appointed as the Commissioning to Dr Caroline Allum different directorate from Dr Allum. The evidence indicates that the appointment of commissioning manager. The decision to appoint Ms Devsi was in no sense whatsoever on the ground that the claimant had made a protected disclosure. The failure to regularly review her suspension was a detriment to which the respondent subjected the claimant. Ms Devsi attempted to fulfil the obligation to keep the suspension under review and believed that she had done so. She fell short of the respondent’s published policy by reason of inexperience. Ms Devsi had managed only one other suspension previously. The failure to review the suspension regularly was in no sense whatsoever on the ground that the claimant had made a protected disclosure. The respondent did have access to a support buddy. She was initially allocated a HR business partner. When the respondent requested a change of buddy she was allocated a consultant clinical psychologist. Ultimately at the claimant’s request the Chair of the Ethnic Minority Network took on the role. The alleged unwanted conduct of, ‘The failure to…provide a buddy’ did not take place. A total of three buddies were at different times allocated to the claimant. The respondent endeavoured to allocate a buddy to the claimant and responded to the claimant’s requests to find another buddy when she was unhappy with the allocated buddy. The claimant was allocated a buddy. The respondent’s approach to the allocation of a buddy was in no sense whatsoever determined on the ground that the claimant had grievance, this was in no sense whatsoever on the ground that the claimant had made a protected disclosure. Mr Makala genuinely endeavoured to investigate the claimant’s grievance, properly and fairly. Insofar as there was any shortcoming in the process by which Mr Makala set the terms of reference, it was no sense whatsoever on the ground that the claimant had made a protected disclosure. As set out in the findings of fact above: allegedly offending letter. No evidence has been provided to the tribunal from which the tribunal could conclude that the sending of the letter was, in any sense whatsoever, done on the ground that the claimant had made a protected disclosure. questions about: ‘who made the allegations against her’ to the best of her ability and Ms Grewal is an independent HR consultant and there is no evidence that Ms Grewal was not acting independently when she responded to the claimant’s questions about: ‘who made the allegations against her’. In no sense whatsoever did the investigating officer fail to answer questions about who made the allegations against the claimant on the ground that the claimant had witnesses to interview. In considering what he describes as: ‘…an extensive list of potential witnesses, in addition to those identified when the terms of reference were agreed.’, Mr Macklin held a meeting with the claimant and her then trade union representative: ‘…to discuss how these individuals might contribute to the finding of fact in respect of the issues raised in OB’s [the claimant’s] grievance. Using that as the only criteria for selection I undertook to approach four of those originally listed…’. reference. Each of these terms of reference were agreed by the claimant. The interviewees. As Mr Macklin put it: ‘…to discuss how these individuals might contribute to the finding of fact in respect of the issues raised in OB’s [the claimant’s] grievance.’ The claimant in her witness statement made no criticism of how Mr Macklin conducted the meeting he held to discuss potential witnesses. In no sense whatsoever did Mr Macklin decline to interview witnesses on the ground that the claimant had made a protected disclosure. Mr Macklin’s decision as to which witnesses to interview was based on his independent professional judgment. claimant on 03 March 2023. The claimant’s written submissions state that: ‘There is little reason provided for the delay and it is suggested that this must have been because of C’s protected acts/disclosures and/or race.’ The tribunal is satisfied that the delay was in no sense whatsoever because the claimant had made a protected disclosure.

[563]In view of the above analysis, the claim under the Employment Rights Act 1996 s47B(1) fails.

[564]The Employment Judge apologises for the delay in issuing this judgment. He has written a note to both parties to address this.