Mr G Sheshappanavar v Milton Keynes University Hospital NHS Trust: 3300116/2020

EMPLOYMENT TRIBUNALS

Case No 3300116/2020

Between

Mr G SheshappanavarClaimant

Milton Keynes University Hospital NHS TrustRespondent

Before

Employment Judge Maxwell

In person for claimant

Mr L Dilaimi (instructed by Counsel) for respondent

Date 18 October 2021

JUDGMENT

[1]The Claimant’s claim of trade union detriment is not well-founded and is dismissed.

[2]The Claimant’s claim of victimisation is not well-founded and is dismissed.

REASONS

[1]The Tribunal was provided with an agreed bundle of documents running to page 973. We heard evidence from:1.1 Mr Gopalkrishna Sheshappanavar, the Claimant;

1.2 Mr Atif Malik, Consultant in Trauma and Orthopaedics;

1.3 Mr Andrew James, Lead Consultant for Trauma and Orthopaedics; Case Number: 3300116/2020 2 of 40

1.4 Ms Jean Aldous, formerly employed by the Respondent as Divisional General Manager for Women’s and Children’s Health, later as Interim Associate Director of Operations in A & E medicine;

1.5 Mrs Nataliya Lawson, Human Resources Business Partner – Medicine;

1.6 Dr Ian Reckless, Consultant Physician / Medical Director and since 2020 have also been Deputy CEO of the Trust;

1.7 Mrs Emma Livesley, Chief Operations Officer and am an Executive Board member;

1.8 Ms Jennifer Kearney, Associate Director of Operations – Surgery.

Claims

[2]The Claimant contacted ACAS on 6 November and a certificate was issued on 9 December 2019. He presented his claim form on 6 January 2021, bringing claims of:2.1 Trade Union detriment – section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRA”);

2.2 Victimisation – section 27 of the Equality Act 2010 (“EqA”).

Issues

[3]The issues for determination were identified and agreed at a case management hearing before EJ Daniels on 12 November 2020. They are set out again, below. Time – Victimisation

[4]Were the claimant’s complaints of victimisation presented within the time limits set out in sections 123(1)(a) & (b) of the Equality Act 2010 (“EQA”) /?

[5]Dealing with this issue may involve consideration of subsidiary issues including: whether there was an act and/or conduct extending over a period, and/or a series of similar acts or failures; whether time should be extended on a “just and equitable” basis; when the treatment complained about occurred; etc. Time - Trade Union Detriment

[6]Are any complaints of trade union detriment in contravention of section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULR(C)A 1992”) out of time?

[7]If so, can the Claimant show that it was not reasonably practicable to present those complaints in time?

[8]If so, were the complaints presented within a reasonable time thereafter? Case Number: 3300116/2020 3 of 40 Victimisation (s.27 EqA 2010) and/or trade union detriment (s.146 TULR(C)A 1992)

[9]Did the Claimant do a protected act within the meaning of section 27 EqA 2010?

[10]It is accepted that the Claimant did a protected act (“the protected act”) by presenting claims of sex and race discrimination to the Employment Tribunal in 2011.

[11]Did the claimant take part in the activities of an independent trade union at an appropriate time? (The claimant has been ordered to provide further particulars in this respect). Alleged detriment 1: “pursuing” the MHPS investigation into C which commenced on 17 November 2016 and concluded on 2 February 2018

[12]Did this amount to a detriment? If so:12.1 was the Claimant subjected to that detriment because he had done the protected act? (s.27 EqA 2010) and/or

12.2 was the sole or main purpose of subjecting the Claimant as an individual to that detriment preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so? (s.146(1)(b) TULR(C)A 1992) Alleged detriment 2: the manner in which the 2019 investigation and hearing was conducted

[13]Did this amount to a detriment? If so:13.1 was the Claimant subjected to that detriment because he had done the protected act? (s.27 EqA 2010) and/or

13.2 was the sole or main purpose of subjecting the Claimant as an individual to that detriment preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so? (s.146(1)(b) TULR(C)A 1992) Alleged detriment 3: issuing the Claimant on 8 August 2019 with a 2 year written warning

[14]Did this amount to a detriment? If so:14.1 was the Claimant subjected to that detriment because he had done the protected act? (s.27 EqA 2010) and/or

14.2 was the sole or main purpose of subjecting the Claimant as an individual to that detriment preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so? (s.146(1)(b) TULR(C)A 1992) Case Number: 3300116/2020 4 of 40 Alleged detriment 4; The manner and process by which the claimant’s grievance process was conducted regarding Dr Malik.

[15]Did this amount to a detriment? If so:15.1 was the Claimant subjected to that detriment because he had done the protected act? (s.27 EqA 2010) and/or

15.2 was the sole or main purpose of subjecting the Claimant as an individual to that detriment preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so? (s.146(1)(b) TULR(C)A 1992) Alleged detriment 5; The outcome of the claimant’s grievance process regarding Dr Malik (which was dismissed in its entirety).

[16]Did this amount to a detriment? If so:16.1 was the Claimant subjected to that detriment because he had done the protected act? (s.27 EqA 2010) and/or

16.2 was the sole or main purpose of subjecting the Claimant as an individual to that detriment preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so? (s.146(1)(b) TULR(C)A 1992)

Remedy

[17]If the claimant succeeds, in whole or part, the Tribunal will be concerned with issues of remedy and in particular, if the claimant is awarded compensation and/or damages, will decide how much should be awarded. Specific remedy issues that may arise and that have not already been mentioned include:17.1 did the respondent unreasonably fail to comply with a relevant ACAS Code of Practice, if so, would it be just and equitable in all the circumstances to increase any award, and if so, by what percentage, up to a maximum of 25%, pursuant to section 207A of the Trade Union & Labour Relations (Consolidation) Act 1992 (“section 207A”)?

17.2 did the claimant unreasonably fail to comply with a relevant ACAS Code of Practice, if so, would it be just and equitable in all the circumstances to decrease any award and if so, by what percentage (again up to a maximum of 25%), pursuant to section 207A?

Facts

[18]The Claimant has been employed by the Respondent since 1 August 2007. He is a speciality lead doctor in Trauma and Orthopaedics (“T&O”), middle tier level. The Claimant is a member of the British Medical Association (“BMA”). For a period, beginning on 21 July 2016, he was an accredited BMA local representative. The Claimant was at times, Staff and Associate Specialists (“SAS”) Lead; SAS refers to middle grade doctors, not being trainees or Case Number: 3300116/2020 5 of 40 consultants. The Claimant also attended local negotiation committee (“LNC”) meetings. Witness Evidence

[19]We are satisfied that all witnesses were doing their best to give honest answers, according to their own recollection and perception of events.

[20]The Respondent’s witnesses, for the most part, gave clear and straight-forward answers to the questions asked. This included some appropriate concessions and, in the case of Mrs Lawton, apologies for her error with respect to the letters of 14 and 24 June 2019 which she drafted and the associated erroneous advice given to the case manager, Bina Parmar, a Consultant who was acting as Case Manager.

[21]The Claimant undoubtedly has a keen analytical mind and eye for detail. He did at times, however, appear to be inflexible, seeking to maintain a position he thought supported his case when the evidence pointed another way. The Claimant was asked whether there was any impediment to him presenting his claim with respect to the 2019 grievance decision, within 3 months. The Claimant said that his disciplinary invitation letters of 14 and 24 June 2019, stated that the hearing would consider both the allegation against him and his against Mr Malik, such that he understood this complaint would be determined following the final day of the disciplinary hearing on 8 August 2019. The Claimant was then taken to the note of the disciplinary hearing on 18 July 2019 where he was told that his counter-allegation against Mr Malik would not be dealt with and a letter of 22 July 2019, advising that his complaint against Mr Malik under the dignity at work policy had not been upheld. When it was then suggested the Claimant must have understood his grievance had been rejected, he referred back to the earlier disciplinary invitations saying that both matters would be addressed. We are satisfied he understood what he was told about this at the hearing on 18 July and additionally, the 22 July letter was unambiguous. We also noted that he had appealed the dignity at work decision by his email of 5 August 2019. As such, it appeared the Claimant was seeking to avoid making an appropriate concession. In his closing submissions, Mr Dilaimi reminded the Tribunal of occasions in cross-examination when the Claimant had accepted that a relevant person genuinely believed in the reason they had given for a decision made and suggested this was inconsistent with them having acted for one of the unlawful reasons. When the Claimant addressed us in closing, he said that he had not understood the “legal” meaning of words such as “genuine”. We observe that “genuine” is an ordinary English word rather than a legal term and the implication, which appeared to be that the Claimant would not have made the concessions he did in the event he had realised the potential relevance of so doing for his claim, was an unhelpful approach. Protected Act

[22]The Claimant brought Tribunal proceedings in 2011, including claims of race and sex discrimination. Although not upheld, the parties agree that in bringing these complaints, the Claimant did a protected act within EqA section 27. Case Number: 3300116/2020 6 of 40

[23]Several of the Respondent’s witnesses knew that the Claimant had brought an earlier claim and we will address their knowledge of this, to the extent necessary, when addressing their involvement in the matters relied upon as detriments. TU Activities

[24]The parties also agree that the Claimant engaged in trade union activities when he was an accredited BMA representative. There is, however, a dispute as to whether he was similarly engaged, outside of the period of accreditation, when undertaking tasks as SAS lead or attending the LNC.

[25]Necessarily, given the unionised nature of much of the Respondent’s workforce, managers will often have dealings with the BMA representatives and those of trade unions representing other staff groups. We were referred to correspondence and minutes of meetings for the matters the Claimant relies upon as constituting him carrying out trade union activities and the schedule he prepared. Several of the letters were signed by a group of SAS doctors, rather than the Claimant of their behalf. Nothing we were shown suggested that his dealings with the Respondent on these occasions were antagonistic. His profile as a TU rep does not appear to have been high, with several of the Respondent’s witnesses having little or no knowledge of the Claimant being active. Whilst many documents in the bundle record colleagues and managers complaining of his conduct in other respects, the Claimant accepted he had not seen anything in the bundle criticising him for the matters he relies upon as trade union activities.

[26]Knowledge of the Claimant having been an accredited BMA rep, SAS lead or otherwise attending LNC, varied between the Respondent’s witnesses. It was not suggested to any of them that they knew more about this than they admitted and we accepted their accounts in this respect. 2016 Investigation

[27]By a letter of 26 October 2016, a local GP wrote to the trust complaining about the Claimant. This included: There are few issues with Mr Gopals’s Advice: 1. Unsafe Treatment- Refusal to accept the patient and advised me an unsafe treatment which could be detrimental to her health. 2. Competency-1 have serious concerns about Mr Gopal’s level of competency. 3. Attitude: I found Mr Gopal to be very arrogant, he was dismissive and gave no importance to the health of this patient. I have serious concerns about Mr Gopal’s level of competency and his behaviour in this particular situation. We are all under extreme pressure but still need to treat our patients and colleagues with some dignity and respect. It saddens me to put in a complaint about a colleague, because I Case Number: 3300116/2020 7 of 40 know how hard everyone in the NHS works, people are often very quick to complain about trivial matters, in this case I felt that Mr Gopal should have handled the situation differently and a little more sympathetically.

[28]The GP letter was sent to the Respondent’s Chief Executive, Joe Harrison and then, on or about 1 November 2016, passed on to Dr Reckless, in the latter’s capacity as Medical Director. Dr Reckless gave evidence it was very uncommon to receive complaints from external doctors about the behaviour of one of the Trust’s doctors. The Claimant challenged this, suggesting Dr Reckless had contradicted himself by saying that such occurrences were “rare” and then elsewhere in his statement, referring to steps “usually” taken when investigating complaints. The Claimant also referred to complaints made by hospital colleagues about one another (such as himself and Mr Malik). We did not find Dr Reckless’ account inconsistent. Grievances between colleagues are, sadly, a fact of life in many large workplaces. We accept, however, that a complaint in terms such as these, coming from a doctor outside of the hospital, and complaining about one of the Trust’s doctors, was indeed a rare occurrence. Unsurprisingly, when it was brought to the attention of Dr Reckless, he wished to know more.

[29]As part of his initial enquiry, Dr Reckless spoke with Kat McCann, General Manager, whose role brought her into contact with the Claimant’s department. She informed him that Tony Styles, Operational Manager for T&O, had raised some informal concerns. Dr Reckless asked Ms McCann to speak with colleagues to understand these concerns.

[30]Dr Reckless knew the Claimant had attended LNC on behalf of the SAS doctors but not that he had been a BMA representative. The Claimant suggested that Dr Reckless pursued matters against him in 2016 (and 2018, which we will address separately) and sought to build a case because of his earlier tribunal claim. Dr Reckless knew relatively little about this matter at the time. After joining the Respondent, Dr Reckless became aware that a senior member of staff, Mr Flynn, had stepped down from a leadership role and understood the background to this was a past “legal case”. At some point, Dr Reckless came to know the Claimant had been involved in this, although he could not say whether this was in 2016 or later. Dr Reckless said he did not know the Claimant’s claim included discrimination. He was not challenged on this latter point, there is no document which suggests he is wrong about it and we accept his evidence. Dr Reckless had no involvement with or interest in the earlier tribunal claim, the matter having concluded before his own employment even began. We find that on being presented with a surprising and potentially serious complaint from an external medical professional, Dr Reckless wished to know if there was any relevant background, other concerns about the Claimant or welfare issues relating to him.

[31]We do, however, understand why Claimant is suspicious about the sequence of events. Having received one complaint in writing, Dr Reckless’ enquiries prompted more. The Claimant calls this a fishing expedition. Whilst we do not find Dr Reckless set out to fish for more complaints, asking Ms McCann to speak with the Claimant’s colleagues did result in concerns which had been voiced then being put into writing. Case Number: 3300116/2020 8 of 40

[32]On 11 November 2016, Mr Malik, a Consultant in T&O, wrote to Mr James. Mr Malik had only very recently (the month before) joined the Respondent. Mr Malik referred to the Claimant not completing ward rounds or admin duties, saying he was too busy, leaving more junior doctors feeling unsupported and an occasion when the Claimant left the hospital without warning. Having set out these various concerns, Mr Malik went on to say “I must stress that Mr Sheshapannavar is a clinically sound surgeon/ doctor and I have no concerns regarding this issue whatsoever.” This approach, criticism and at the same time some supportive words for the Claimant, was to be repeated by Mr Malik.

[33]The relationship between Mr Malik and the Claimant was a difficult one from the start. Mr Malik came into the T&O department as a consultant and, therefore, the Claimant’s senior. The Claimant was, however, a far more experienced doctor. The Claimant is highly educated and very intelligent. He is a capable professional with an eye for detail and undoubted analytical ability. These qualities have been demonstrated in his professional life and also at the tribunal, not least in his careful reading of documents and development of arguments based on the same. He can also on occasions be somewhat rigid. Plainly, Mr Malik, who was new to management at this level (he was not the Claimant ‘s line manager but would be in charge when they were both on duty) found the Claimant difficult to manage. There was and remains a clear difference of opinion between the Claimant and Mr Malik on various matters rehearsed in evidence. There was some tension and heat, on both sides, during the Claimant’s cross-examination of Mr Malik, which the Tribunal sought to dissipate. The Tribunal had to intervene several times, to discourage excessive tone and to ensure that questions were asked and answers given without the questioner speaking over the witness or vice versa. Mr Malik did not know the Claimant had been a BMA representative or about the other alleged trade union activities. Mr Malik was aware of the Claimant’s earlier tribunal proceedings and understood this included a discrimination claim. He did not, of course, have any involvement in this. Mr Malik wrote about the matters he did on 11 November because they were of concern to him and not because of the Claimant’s earlier tribunal claim, or any BMA activities.

[34]On 14 November 2016, Mr Styles, the Clinical Director on Orthopaedics wrote to Mr Manji raising several concerns:12 September 2016, the Claimant declined a theatre list unless paid at a higher rate; 28 October 2016, the Claimant should have been on shift but was not at the hospital; 31 October 2016 when the Claimant refused to see a paediatric patient; and a general refusal to complete admin. Mr Styles believed there was a patient safety issue.

[35]In light of the information fed back to Dr Reckless, he decided to appoint Hamid Manji, Divisional Director, as Case Manager, with a view to the commissioning of an investigation under the Managing High Professional Standards (“MHPS”) process. This was done formally, by a letter of 17 November 2016. The Claimant’s claim is that Dr Reckless took this step because of trade union activities or the earlier discrimination claim. Dr Reckless’ letter, which is contemporaneous with his decision, began as follows: Concerns raised in relation to Mr Gopalkrishna Sheshappanavar, SAS doctor in Trauma & Orthopaedics Case Number: 3300116/2020 9 of 40 I am writing to formally request that you take on the role of Case Manager and consider an investigation into several concerns that have been brought to my attention over the last fortnight in relation to Mr Gopalkrishna Sheshappanavar, SAS doctor in Trauma & Orthopaedics. The index concern was brought to my attention by Joe Harrison. He received a letter on 01 November 2016 from a local General Practitioner, raising significant concerns about his interaction with Mr Sheshappanavar on the afternoon of 11 July 2016. The concerns related to both the advice given and Mr Sheshappanavar’s attitude during the conversation (when he was perceived as arrogant, dismissive and insufficiently patient-centred). It is not clear to me why the General Practitioner waited until November to raise his concerns. A copy of the letter is enclosed. Having discussed this letter with Joe last week, I advised Kat McCann of the issues raised. In response, she informed me that the Operational Manager had mentioned a concern relating to Mr Sheshappanavar’s behaviour to her in recent days. I asked her to speak to colleagues such that the nature of any concerns could be clarified. In the last 24 hours, Kat has provided me with a written account from Tony Styles, Operational Manager (in the form of a letter addressed to you, 14 November 2016) and a further account from Mr Atif Malik, Consultant Orthopaedic Surgeon (email copied to you, 16 November 2016). I note that Mr Malik has been in the Trust for only a short period of time and has no prior experience working with Mr Sheshappanavar. These accounts raise a number of allegations which require - in addition to the concerns outlined above - further examination:

[36]Dr Reckless’ letter summarised the various issues raised. We find this letter accurately reflects not only the process followed at the time but also Dr Reckless’ thinking. Having been concerned about the GP complaint he made some initial enquiries, which prompted information from colleagues to the effect there may be a broader problem. Given the circumstances, the decision to appoint Mr Manji to consider commissioning an investigation is unsurprising and we do not find that Dr Reckless was influenced in this by the Claimant’s Tribunal claim or any of the alleged BMA activities.

[37]On 25 November 2016, Mr Manji spoke to the Claimant and explained he had been asked to start an MHPS investigation. The Tribunal did not hear evidence from Mr Manji but the Claimant accepted in cross-examination that Mr Manji did as he did because he was so instructed and not because of BMA activities or the earlier discrimination claim.

[38]By a letter of 8 December 2016, Mr Manji informed the Claimant that he had commissioned an MHPS investigation, with Ms Aldous as investigator and a named specialist advisor from another hospital. Ms Aldous knew the Claimant had been involved in some local negotiations but not that he had been a BMA representative. She did not know about the Claimant’s discrimination claim at this time but she did learn of it in 2019. A copy of the investigation terms of reference were included. The allegations were listed as: Case Number: 3300116/2020 10 of 40 1. A letter dated 26 October 2016 from […] (a local General Practitioner), raised significant concerns about the interaction he had with Mr Sheshappanavar on the afternoon of 11 July 2016. In his letter Dr Islam claims that he found Mr Sheshappanavar’s attitude arrogant, dismissive and insufficiently patient centred, posing a potential detrimental risk to the patient’s health. Dr […] also raises concerns in relation to Mr Sheshappanavar’s advice. 2. A statement from Tony Styles, Operational Manager for MSK Services, has indicated that Mr Sheshappanavar was absent from the hospital on the afternoon of 28 October 2016. It is alleged that Mr Sheshappanavar originally had a list scheduled on his timetable for that afternoon which was cancelled earlier in the day and when contacted to assist with another list, he had already left the site and refused to return to the hospital. 3. It is also alleged that, on 10 November 2016, Mr Sheshappanavar took a lunch break which was in excess of that which would be considered reasonable and that his late arrival to clinic resulted in a number of patients being delayed unnecessarily. 4. It is alleged in Mr Styles’ statement that Mr Sheshappanavar also behaved unprofessional and inappropriately on the 12 September 2016 It is alleged that Mr Sheshappanavar had previously agreed to undertake an additional waiting list session on the 12 September 2016 under the hospital’s standard waiting list tariff. However it is alleged that on the day Mr Sheshappanavar wanted to renegotiate the rate much higher; so much so that the list was delayed significantly in starting and subsequently resulted in patient cancellations 5. It is alleged that Mr Sheshappanavar refused to see a young inpatient referred by the paediatricians when on-call on 31 October 2016, despite being requested to do so by the trauma co-ordinator and subsequent involvement from the on-call consultant, Mr Malik. Mr Malik alleges that in addition Mr Sheshappanavar failed to provide him with the adequate information so that he could make an informed decision and, as a result, he felt it necessary to go and review the patient himself. Mr Malik felt that Mr Sheshappanavar’s communication was both inappropriate and unprofessional. 6. It is alleged that Mr Sheshappanavar does not complete tasks which are undertaken as a matter of routine by his peers. This includes checking letters prior to them being dispatched or supporting junior and senior colleagues by undertaking necessary ward rounds. Mr Malik alleges that in a period of seven weeks, he is only aware of 1 ward round undertaken by Mr Sheshappanavar. Mr Malik alleges that he has attempted to support Mr Sheshappanavar by modifying his workload so that he can carry requested duties such as ward rounds, but that this has been met with resistance and that Mr Sheshappanavar continues to actively choose not to carry out those duties. Case Number: 3300116/2020 11 of 40 7. Mr Malik alleges in an email to the General Manager for Surgery dated 11th November 2016 that he feels Mr Sheshappanavar’s behaviour and reluctance to work as part of an effective team hinders positive patient and staff experience and may, as a result, put patient safety at risk. He further alleges that Mr Sheshappanavar’s junior colleagues feel inadequately supported by him, particular the Foundation doctors when issues arise on the wards. 8. Mr Malik alleges that he feels harassed and bullied by the behaviour of Mr Sheshappanavar and finds it challenging to undertake his role as Mr Sheshappanavar’s lead consultant as a result. Such behaviour would not be consistent with the Trust’s values, commitments, standards and behaviours.

[39]The Claimant says this step of pursing an investigation was excessive invites us to draw an inference that it must have been because of BMA activities and / or his Tribunal claim. About these various allegations, the Claimant says: the GP complaint was not upheld; he had good explanations for many of the matters; and any fault on his part was modest. With respect, this involves looking at matters with the benefit and hindsight and solely from the Claimant’s perspective. We are satisfied the allegations then under investigation were serious matters and the relevant decision makers, those who might be said to have been “pursuing” the investigation, primarily Dr Reckless and to a lesser extent Mr Manji, genuinely believed these matters merited investigation. The Claimant was not, however, suspended.

[40]The Claimant cross-examined various witnesses on what he said were departures from the provisions of the MHPS national framework, or the Respondent’s local implementation of that. Several witnesses were taken to: III. GUIDANCE ON CONDUCT HEARINGS AND DISCIPLINARY PROCEDURES INTRODUCTION 1. Misconduct matters for doctors and dentists, as for all other staff groups, are matters for local employers and must be resolved locally. All issues regarding the misconduct of doctors and dentists should be dealt with under the employer's procedures covering other staff charged with similar matters. Employers are nevertheless strongly advised to seek advice from the NCAA in conduct cases, particularly in cases of professional conduct. 2. Where the alleged misconduct relates to matters of a professional nature, or where an investigation identifies issues of professional conduct, the case investigator must obtain appropriate independent professional advice. Similarly where a case involving issues of professional conduct proceeds to a hearing under the employer's conduct procedures the panel must include a member who is medically qualified (in the case of doctors) or dentally qualified (in the case of dentists) and who is not currently employed by the organisation. 1 Case Number: 3300116/2020 12 of 40

INTRODUCTION

[41]Paragraph 2 from the extract set out above was applied in connection with the first MHPS investigation insofar as a panel member had been identified, albeit the matter did not actually proceed to a disciplinary hearing. Paragraph 1 was not followed. No advice was sought from NCAA, nor its replacement, NCAS. Dr Reckless’ evidence was this course was only followed in practice where the case was especially complex and / or the doctor had been suspended from work, neither of which was the case here. The Claimant did not challenge what was said about this in fact being the practice and we accept it was. In those circumstances, even if the failure to contact NCAA / NCAS was a departure from the MHPS, it was not unusual and provides no basis for an inference that it was causally linked with BMA activities and / or the earlier tribunal claim. We are not sitting in judgment on a breach of contract or unfair dismissal claim, with respect to MHPS compliance.

[42]Between January and February 2017, Ms Aldous carried out a number of interviews, including with the Claimant, Mr Malik and Mr Styles.

[43]In an email of 5 February 2017 to the BMA, the Claimant included what he said was a recent conversation with Malik on 3 February, in which the latter, following a discussion about the rota, was then very apologetic and said he had only written the letter of 11 November 2016 because he had been put under tremendous pressure from the “top”, by the Respondent’s Chief Executive, to do so. Mr Malik said he recollected the conversation the Claimant was referring to but denied being put under any such pressure or telling the Claimant he was. Mr Malik said the Claimant was “upset and forlorn” and he tried to be supportive by saying “I am sure it will be fine”, in reference to the outstanding MHPS investigation. We find it likely Mr Malik said words to the effect he was asked to put his concerns in writing, which would have been true. There was no suggestion, however, not even on the Claimant’s account of this conversation, that Mr Malik said his concerns were not proper and genuinely held.

[44]We note that in his email of 5 February 2017 to the BMA, the Claimant referred to his activities as SAS Lead and said he believed he had been victimised because of his earlier tribunal claim, before saying “I am aware that the ET go by strict time limits. Can you therefore advise me when the clock starts for this?” When asked why given his view about the decision to investigate him, he did not submit a claim within 3 months, the Claimant said he should have received all of the evidence relating to this matter with the outcome letter of 17 February 2018, this did not happen, the BMA decided not to pursue it and so he left it alone (i.e. did not himself pursue a claim). This answer does not, of course, address why the Claimant did not present a claim either within 3 months of the investigation commencing, or soon after reaching the conclusion he did about the Respondent’s reasons for pursuing it. Rather, this appears to be an explanation of why he did not bring a claim within 3 months of the MHPS outcome being sent to him.

[45]Thereafter, the pace of Ms Aldous’ investigation appears to have slowed considerably. She interviewed Mr James in April and spoke to the Claimant for a second time in June. Case Number: 3300116/2020 13 of 40

[46]Ms Aldous completed her investigation report on 10 July 2017. In connection with the first allegation, the GP complaint, she concluded that the evidence obtained from Mr Pearce, Consultant Orthopaedic Surgeon, supported the Claimant’s clinical advice. As to the nature of the personal interaction with the GP, she accepted the Claimant’s account at face value and decided it was unnecessary to interview the GP. The first allegation was not upheld. The manner in which the first allegation was dealt is not remotely consistent with the suggestion that Ms Aldous was approaching matters in a way that unfair to the Claimant. On allegation 2, the Claimant had admitted to being absent from the hospital when he ought not to be and that this was a lapse of judgment. Whilst Mr James and Mr Styles confirmed the Claimant knew he should have been on site, the latter added that a replacement doctor had been found on the day. Ms Aldous concluded the Claimant had behaved unprofessionally but (per Mr Styles) there was no impact on patient care. Ms Aldous continued in a similar vein, upholding some complaints and not others, consistent with the evidence obtained. Her overall conclusion was expressed thus: Conclusions and recommendations In summary, in investigating all eight allegations, the investigator found no evidence to support allegations 1, 3, 7 and 8. Mitigation has been outlined in the preceding section, however the investigator concluded that evidence was found to support allegations 2, 4, 5 and 6 and Mr Sheshappanavar is therefore in breach of the Trust’s values, commitments, standards and behaviours. Patient care had been directly impacted upon in allegation 4 in that a patient’s surgery was cancelled at short notice. There was evidence of poor team working and uncooperative behavior in allegation 5 and unprofessional behavior and lack of insight in respect of allegations 2, 4 and 6. Mr Sheshappanavar provided some rationale for his behavior in respect of allegation 5 and argued mitigation in respect of allegation 6. Recommendation 1 The weight of the evidence in allegations 2, 4, 5 and 6 is such that I recommend To the case manager that there is a case to answer. Recommendation 2 That if this case is not brought forth to a hearing, as the weight of evidence centers around Mr Sheshappanavar’s attitude and behavior, and not his clinical competencies, that future management of behaviour and conduct is addressed in regular documented meetings with his clinical supervisor.

[47]Ms Aldous’ investigation was thorough, her report detailed and conclusions well-reasoned with references to the evidence. Whilst the outcome of this Case Number: 3300116/2020 14 of 40 investigation is not one of the detriments in the Claimant’s claim, we find Ms Aldous reached her decision for the reasons she set out.

[48]Despite Ms Aldous having reported in July 2017, no decision on this matter was communicated to the Claimant for over 6 months. This is a remarkable delay, which has not been explained. The Claimant told us of the great stress he was placed under by this matter hanging over him. We have no difficulty accepting that this was an incredibly difficult time for the Claimant. We do also note that the Claimant had the benefit of a BMA advisor, Jade Murphy, at interview and throughout. Somewhat surprisingly, neither the Claimant nor Ms Murphy appear to have been pressing for a decision.

[49]By a letter of 2 February 2018, a ‘no further action’ outcome was communicated by Mr Manji, which summarised Ms Aldous finding and included: I have considered the investigation report, its findings and recommendations and I have concluded that, although there could have been a referral to a disciplinary hearing I am satisfied that no further recurrence of these behaviours has been reported since the investigation process commenced. I am also pleased that you have shown insight into behaviours and actions e g. you acknowledged that you should have remained on site on 28 September 2016 I believe that the most appropriate and supportive way to deal with the matters is to outline my expectations to you, along with various recommendations arising from the investigation report. […] your lack of co-operation and behaviour, whether intended or not, caused conflict and adversely affected team working, causing delays in clinical decision making. As a long-standing and valued Specialty Doctor, you are reminded that you must uphold the trust’s standards, behaviours and values during the course of your interactions with all stakeholders of the trust; patients, management teams, your peers and medical colleagues, general practice. It is vital that you have insight into your conduct in the workplace and adjust your behaviour accordingly. In order to support you to this end, I would be happy to arrange for you to discuss this aspect further with a peer-level coach. […] Your attitude and professional behaviour have improved since the commencement of this investigation process. […] In terms of the MHPS investigation process, I would consider this now closed but you are reminded of your obligations as outlined in the course of this correspondence. If there is any recurrence of the nature of the Case Number: 3300116/2020 15 of 40 incidents investigated by Jean Aldous, I will need to consider a further formal investigation process in which this correspondence and any review may be considered.

[50]The Claimant says in terms of any improvement in his behaviour, the only change he made was to scale back his BMA activities and, therefore, the letter, refers to this. We do not agree. Quite plainly, the improvement from Mr Manji’s perspective was the absence of any further behaviour of the sort as had been investigated and upheld by Ms Aldous. The complaints pursued in this claim do not include issuing the MHPS outcome on this occasion. We note, however, the response was a modest one, given those parts upheld and would not point toward the Respondent being out to ‘get’ the Claimant.

[51]In October 2018, Mr Malik received complaints from two A&E consultants. They said the Claimant had been rude and uncooperative. Mr Malik did not take these further at the time, although he referred to back to them after events in December.

[52]On 12 December 2018, Mr Malik was the on-call consultant for T&O during the nightshift. Living less than 30 minutes from the hospital, he was permitted to discharge this responsibility from home. At about 9pm Mr Malik called the hospital to speak to the on-call registrar. The purpose of Mr Malik’s call was to get information about the patients on the ward, so this might inform his decision about the next day’s theatre list. This was part of his usual practice, save unless he already knew the position from speaking with the senior house officer (“SHO”) and everything appeared straight forward.

[53]On this evening the registrar happened to be the Claimant, although Mr Malik did not know this until he got through to the switchboard. The Claimant did not answer his pager and so Mr Malik called his mobile phone number but this went to voicemail. Mr Malik called the switchboard again and this time was put through to the SHO who said he would pass on a message. After several attempts, at 9.26pm Mr Malik spoke with the Claimant. Mr Malik was, by this stage, somewhat irritated.

[54]Mr Malik and the Claimant discussed a patient on the ward. Earlier that day, Mr Malik had spoken with the SHO about the same individual, received the same information the Claimant was now giving and asked whether the Claimant had actually seen the patient. The Claimant said he had not and Mr Malik suggested he should. As they discussed other patients, Mr Malik felt the information he was being given was vague. When he pressed the Claimant for the specifics of one particular patient, including name, age and whether they were able to walk, the Claimant declined to provide this, telling him it was not relevant and he did not need to know. Given the lack of information provided, Mr Malik asked the Claimant whether he had seen this patient. The Claimant said he had. The Claimant went on to accuse Mr Malik of not trusting his judgment and treating him like a “slave”. Mr Malik said that he was the on-call consultant, responsibility for the patients rested with him and he told the Claimant to obtain the information. Case Number: 3300116/2020 16 of 40

[55]A second telephone call took place at 10.39pm, The Claimant advised that one patient on the ward may have been suffering with cauda equine syndrome (“CES”). This is a most serious condition, involving compression of the nerves at the bottom of the spine, which can result in paralysis and incontinence. The protocol at the Respondent was for such patients to be transferred to the John Radcliffe Hospital at Oxford, as the Respondent does not have the facilities to properly assess this condition. Mr Malik advised the Claimant to contact Oxford and discuss the MRI. The Claimant said he would not do this as no MRI was available to be transferred to Oxford and until Mr Malik attended at the hospital himself. When on-call as consultant, Mr Malik would only attend in the event an urgent matter required this and given the on-call registrar would also be an experienced doctor, this happened infrequently. Mr Malik is not a spinal specialist and did not think his personal attendance would improve the care given to the suspected CES patient.

[56]During the same call The Claimant asked Mr Malik to come in to assess whether a different patient’s fracture was old or new. Again, Mr Malik did not believe his attendance was necessary and he told the Claimant to immobilise the fracture in a splint, which the Claimant said he could not do because of a lack of splints. Mr Malik then suggested the immobilisation be achieved with skin traction, which the Claimant declined to do without giving any reason.

[57]Mr Malik repeated his request for the information about the patient discussed in their first phonecall. The Claimant said he would not give that as he had already done so. Mr Malik said he had not.

[58]The conversation became somewhat heated. Mr Malik said he would take up the Claimant’s refusals with Mr James, as CSU Lead. The Claimant accused Mr Malik of bullying him, which reflects his perception of these exchanges. The Claimant believed Mr Malik was asking for information unnecessarily and being deliberately difficult.

[59]Following this second call, the Mr Malik rang Mr James, both to discuss the Claimant’s behaviour and the CES patient (Mr James being an expert in this field). Mr James agreed with Mr Malik’s view that he did not need to attend the hospital in person. Mr James suggested if the Claimant was concerned about CES and could not contact Oxford, then he should carry out hourly ASIA chart examinations of the patient. Whilst such examinations can be unpleasant and invasive, Mr Malik believed they were appropriate given the advice he had received and the potentially life-changing consequences that may follow from CES. We pause to note that Mr Malik taking matters up with Mr James is indicative of a subjective belief on his part that he was doing the right thing and the Claimant was being obstructive.

[60]Mr Malik then spoke with the Claimant a third time, asking him to carry out hourly ASIA chart exams. The Claimant declined this instruction, saying he had never known this done at that hospital before, he was non-resident on-call, had a fracture clinic in the morning but would ask the SHO to carry this out. Mr Malik reiterated that he wished the Claimant to do this, not thinking it fair to leave such a significant task to a much more junior doctor. Mr Malik confirmed the instruction by an email sent at 11.50pm: Case Number: 3300116/2020 17 of 40 As discussed, please complete an ASIA chart for this patient and ensure that this is rechecked on an hourly basis. If there is any change, this would need an urgent referral to the spinal team at the JR as there is no provision for emergency CES at our hospital as you may be aware.

[61]Again we observe that it is inconsistent with Mr Malik deliberately seeking to act unfairly that he put his instruction to the Claimant in writing; he would have no incentive to document his own wrongdoing.

[62]During this hearing, the Claimant spent much time in cross-examination exploring questions such as whether Mr Malik needed to know the precise as opposed to the approximate age of a patient, or whether the instructions he gave for ASIA examinations were appropriate. The Claimant says not. What was equally apparent, however, is that Mr Malik was and is of a different view. Furthermore, given that Mr Malik was the senior medic in charge, then in the event of a disagreement the Claimant would have to defer to him. If the Claimant had believed that he was being told to do something unlawful or unethical then, of course, it would be right for him to refuse and immediately take the matter up with someone more senior, such as Mr James, but that is not what he said or did at the time, nor is it consistent with him asking the SHO to carry out the ASIA exam. It was not part of the Tribunal’s task to resolve a genuine difference of opinion on a medical matter as between the Claimant and the Respondent’s witnesses.

[63]The Claimant also suggested to several witnesses that his first conversation with Mr Malik that night set the tone for their subsequent exchanges. It was unclear from that proposition whether the Claimant was accepting there had been a lack of cooperation on his part and was seeking to justify that by reference to Mr Malik’s tone. As far as the issues in this case are concerned, however, it is abundantly clear that any deterioration in the communication between these two that night had nothing whatsoever to do with BMA activities or the Claimant having previously brought a discrimination claim.

[64]Both the Claimant and Mr Malik documented their exchanges on 12 December shortly after these had taken place. Mr Malik made extensive handwritten notes, which he scanned and emailed to Mr James at 12.51 am on the morning of 13 December 2021. The Claimant sent his own email, entitled “complaint of bullying, harassment and belittling by not supporting the oncall team” at 1.36am. Leaving aside matters of general characterisation, there was a degree of commonality on the core facts, as far as information requested and instructions given by Mr Malik are concerned. Notably, whilst the Claimant’s principal objection at this hearing to the ASIA chart instruction (on which he sought to cross-examine several witnesses) was that it involved a digital rectal exam and would be very unpleasant for the patient, he did not say anything about this in his contemporaneous email and it would seem to be inconsistent with him instructing the SHO to do it in his place. If the Claimant had believed he was being instructed to do something obviously detrimental to patient care, then we would have expected him to say so in his email to Mr James and to have refused to pass that task onto another more junior doctor. Rather, the Claimant’s complaint at the time was about the unfair burden being put on him and lack of time. Case Number: 3300116/2020 18 of 40

[65]Shortly after midday on 13 October 2019, in a further email to Mr James, Mr Malik noted that in the time since the previous MHPS investigation the Claimant had been a “model registrar”, up until the “last few weeks”. Mr Malik referred to the complaints he had received from the A&E consultants. He then summarised his perspective on the night before, including that the Claimant had been “obstructive”, demonstrated a “refusal to engage”, this was “potentially detrimental to patient care”. Mr Malik said he felt “shaken, upset and bullied”.

[66]The emails from Mr Malik and the Claimant were forwarded by Mr James to Dr Reckless. Having reviewed and considered the material, Dr Reckless came to the conclusion that the allegations made by Mr Malik against the Claimant ought to be investigated under MHPS (i.e. as a potential misconduct). He came to this conclusion as a result of the nature of what had been reported and a similarity to the matters for which the Claimant had been given informal written advice following the 2016 investigation. Dr Reckless’ view of what the Claimant was saying against Mr Malik was this amounted to a bullying and harassment grievance. He decided that, given the factual overlap, both sets of allegations should be addressed in a single investigation but that they should follow separate procedural tracks. This did leave open the possibility that if the Claimant’s grievance were upheld it might then become a disciplinary matter for Mr Malik. The Claimant suggested this difference in approach was because of BMA activities or his previous discrimination claim. We, however, accepted Dr Reckless explanation of why he acted as he did. The Claimant’s complaint about a bullying manner and excessive work burden being placed upon him by his manager on the night in question, was apt to be addressed as a grievance. Whilst Mr Malik says he felt bullied, he alleged that his subordinate refused to follow instructions and this created risks for patient care, which if true could easily be misconduct, especially set against the Claimant having been informally warned about his conduct on a prior occasion.

[67]On 4 January 2019, Dr Reckless appointed Ms Parmar as Case Manager. We did not hear from Mr Parmar. There was no evidence she knew of the matters the Claimant relies upon for BMA activities. She will have learned of the discrimination claim in the course of this investigation and the Claimant did not say she had any prior knowledge in this regard. The terms of her appointment included: Mr Gopal Sheshappanavar, SAS doctor in Trauma and Orthopaedics Following on from our discussion, I am writing to appoint you as Case Manager and to request that you commission an investigation under the Maintaining High Professional Standards (MHPS) framework into allegations that have arisen in relation to the work and behaviour of Mr Sheshappanavar. As I explained, there was a prior MHPS investigation in the second half of 2017 that resulted in a formal outcome letter dated 02 February 2018. This investigation and its outcome should be included as relevant context for this new investigation, given similarities in the alleged behaviours. In addition, you will note that Mr Sheshappanavar has in essence made a counter-allegation that Mr Malik’s behaviour amounted to bullying and Case Number: 3300116/2020 19 of 40 harassment. I would like the Case Investigator to consider this element too in his/her work. Clearly, you will want to consider this letter and the enclosed documentation before drafting terms of reference and commissioning an investigation. It is likely that Louise Clayton (HR Business Partner) will support you in this. I have discussed this case in outline with Danielle Fetch (Director of Workforce) and we are both comfortable with you approaching Mrs Jean Aldous to undertake this fresh investigation should you wish. The inclusion of the prior investigation, which she undertook, within the new terms of reference makes this a pragmatic and appropriate option.

[68]On 16 January 2021, terms of reference for the investigation were prepared and these included: This investigation is commissioned into concerns raised in relation to the conduct of Mr GopalKrishna Sheshappanavar, Specialist Registrar, by Mr Atif Malik, Consultant T&O Surgeon. It is understood that the concerns raised by Mr Malik was followed by allegations of bullying and harassment from Mr Sheshappanavar. Both employees work for the Orthopaedics department in the Surgery Division at Milton Keynes University Hospital NHS Foundation Trust (MKUH). These concerns are to be investigated in line with the Trust Managing High Professional Standards (MHPS) Policy and Dignity at Work Policies. The Case Investigator should also take into account the Trust’s values and behaviours. The Case Investigator The Case Investigator is required to: 1. Notify both members of staff of her appointment as Case Investigator with an accompanying outline of the matters under investigation, relevant policies and procedures and the associated timescales. 2. Undertake an investigation to ascertain the facts in an unbiased manner and to determine whether or not there is evidence to support the concern raised. 3. To investigate the conduct/behaviour of Mr Gopal Sheshappanavar (GS), Specialist Registrar in Trauma and Orthopaedics, as he interacted with the on-call Consultant ( Mr Atif Malik, AM) overnight on the 12th (into 13th) December 2018, in relation to:a. GS’s behaviour as he interacted with AM was perceived as obstructive and antagonistic with a reluctance and/or failure to comply with reasonable clinical management requests and instructions. AM has also referenced complaints, received in Case Number: 3300116/2020 20 of 40 November/December 2018 from Consultants in the Emergency Department about GS’s accessibility and manner. 4. To investigate GS counter-allegation that AM’s behaviour on the evening of the 12th December 2018 amounted to bullying and harassment. 5. The investigation should determine whether GS’s behaviour was consistent with the Trust Values or professional expectations ( Good Medical Practise 2013): a. MKUH Trust Values (Care, Collaborate, Communicate, Contribute)

b. Good Medical practice (Work with colleagues in the ways that best serve patient interests) 6. Gather any relevant documentary evidence over and above those already provided with these Terms of Reference and consider any new documents that come to light during the course of the investigation. 7. Interview all relevant witnesses including Mr GopalKrishna Sheshappanavar and Mr Atif Malik, and obtain a signed witness statement or detailed notes of the investigation meetings as a record of their evidence. The Case Investigator should keep under review at all times the list of witnesses who may need to be interviewed so as to ensure witnesses are not overlooked. 8. Ensure Mr GopalKrishna Sheshappanavar and Mr Atif Malik: a. has adequate opportunity to respond to the allegations; b. has the opportunity to see correspondence relating to the case when appropriate

c. can direct the Case Investigator to any evidence or witnesses that he believes are relevant; and

d. is kept informed (along with the Case Manager) of the progress of the investigation. 9. Consider mitigating evidence as well as evidence of poor conduct or wrongdoing in support of appropriate balance.

[69]Also on 16 January 2019, the Claimant was notified of the investigation: Notice of Investigation I have been appointed by the Medical Director, Ian Reckless to be case manager in relation to recent allegations of misconduct against you by Mr Atif Malik, Consultant Orthopeadic Surgeon, and counter allegations of harassment from you against Mr Atif Malik. Please note that these are currently allegations, however, if proven, they are serious concerns and Case Number: 3300116/2020 21 of 40 could amount to gross misconduct, the outcome of which could lead to a disciplinary hearing in line with Trust policy. The investigation will be carried out by Jean Aldous, General Manager for Women and Children Division. Jean will be supported by Louise Clayton, Head of HR. The investigation will be carried out in accordance with the Trust Managing High Professional Standards (MHPS) Policy and the Dignity at Work Policy. The investigating manager will write to you shortly with details of the investigation and you will have the right to be supported by a trade union representative at any meeting.

[70]The letter to Ms Parmar, the terms of reference for the investigation and letter from her to the Claimant do, to some extent, reflect the differential approach Dr Reckless had decided to pursue, although this was not made as clear as it should have been. That said, the Claimant clearly understood he might face a disciplinary and attended his interview, as he had done previously, with his BMA representative Ms Murphy. Mr Malik went to his own interview unaccompanied.

[71]Ms Aldous was again instructed as investigator. The Claimant suggested she was not independent because she had dealt with previous matter. She was not, of course, involved in the disputed matters she would be investigating.

[72]Ms Aldous carried out interviews with Mr Malik and the Claimant. They provided documents to her. The Claimant admitted not providing information requested by Mr Malik. He also accepted that he had not done as asked with the CES patient as this was an unreasonable request and did not apply the splint or skin traction as he did not agree with the decision. In Mr Malik’s interview he volunteered that he had become aware of the Claimant’s previous tribunal claim and believed colleagues were wary of challenging him as a result. The Claimant relied upon this passage before the Tribunal. Our conclusion is that far from Mr Malik’s observation suggesting that disciplinary proceedings were pursued because he had previously brought a claim, it suggested the Claimant was less likely to be challenged over his behaviour than other colleagues.

[73]Ms Aldous also received a sworn statement from Mahboob Alam, who had been the SHO that night and his statement included: After examining the patient, I was in the observation unit and sat with Gopal as I made the MRI request. I was in close proximity to Gopal while he used the phone to go through switchboard to contact Mr Malik to discuss the patient we had seen. I heard Gopal’s side of the conversation. I heard him say ‘I have told you once, I am not telling you again and again.’ I heard him say this twice. I was asked by the Investigating Officer as to how Gopal’s tone was during this conversation. Gopal did appear to be uncooperative on the phone and was not talking to Mr Malik with respect. Gopal also stated on the phone ‘You are the consultant and I am telling you that you need to come and see the patient.’ The patient pathway was clear, there was nothing more to be done as the MRI would be carried out and the patient would be referred to Oxford. Gopal was advising Mr Malik Case Number: 3300116/2020 22 of 40 to come in and see the patient himself when there was no need - you would only call in the Consultant for a surgery, or an emergency, neither of which applied to this patient. I was asked by the Investigation Officer whether I heard Mr Malik shouting through the phone line. I can confirm that with my proximity to Gopal, I could hear Mr Malik’s voice but could not hear what he was saying and I would have been able to hear if Mr Malik had shouted through the phone at Gopal. I confirm I did not hear a raised voice or shouting. Gopal hung up the phone and didn’t refer to the conversation again until he advised that Mr Malik had asked him to do hourly observations on a patient on Trauma Ward. He asked me whether this was something that I would do and I advised that neuro observations are only carried out by the Nurses, not normally by the Doctor and I have not done it in my year of working here. I asked him why he was being asked to do that and I said that I didn’t know. He said ok' and we didn’t discuss it further. Gopal remained professional and supportive for the shift.

[74]Ms Aldous produced her report on 21 May 2019. She set out the allegations in the following way: Part 1 To investigate the conduct and behaviour of GS, Specialist Registrar in Trauma and Orthopaedics in relation to: a) GS’s behaviour as he interacted with on-call Consultant, Atif Malik (AM) overnight on the 1?h (into 13th) December 2018, was perceived as obstructive and antagonistic with a reluctance and/or failure to comply with reasonable clinical management requests and instructions. b) Complaints received by AM in November/December 2018 from Consultants in the Emergency Department about GS’s accessibility and manner. The counter-allegation that has been made against Mr Atif Malik by Mr Gopalkrishna Sheshappanavar forms the basis of part two of this investigation, as follows: Part 2 a/ To investigate the counter-allegation that AM’s behaviour on the evening of the 12th December 2018 amounted to bullying and harassment.

[75]The Claimant took issue with the way in which the investigation was conducted. The points he focused on were: inconsistencies in the statement of Mr Alam; Ms Aldous’ failure to interrogate the MRI records to confirm Mr Alam’s account of requesting an MRI; and non-neutral questions asked by Ms Aldous. As to Mr Alam, his evidence of seeking an MRI was largely irrelevant since all agreed he Case Number: 3300116/2020 23 of 40 was SHO on the night and it was entirely plausible that he would overhear a heated conversation taking place nearby, or at least the Claimant’s end of that. Similarly, whether the Claimant “hung up” on Mr Malik or the call otherwise came to an end is not significant. The material evidence was what he heard the Claimant say and how it was said. No reason was suggested for why Mr Alam would do other than give his honest recollection. The “non-neutral” questions asked by Ms Aldous appeared in a draft of the interview and not the final version. Her evidence to the Tribunal, which we accepted is that those notes did not accurately reflect what she had said. In any event, the fairness of approach is to be judged by looking at the interviews as a whole rather than one or two questions in isolation. Ms Aldous noted that in the Claimant’s interview it was necessary for her to repeat certain questions when the Claimant failed to give a direct answer. Both the Claimant and Mr Malik were asked pertinent questions which gave them the opportunity to comment on what was said against them.

[76]In her conclusion, Ms Aldous found evidence to support 1a, on the basis of the Claimant’s admissions taken together with the evidence from Mr Malik and Mr Alam. She did not find evidence to support 1b, as Mr Malik could not identify the consultants and there was no document trail. With respect to the Claimant’s allegation against Mr Malik (2a) having viewed the correspondence relied upon and taken into account the Claimant’s perception that the requests for information made by Mr Malik were intended to “make trouble” for him, she did not find evidence to support this view. Ms Aldous observed that in connection with the upheld allegation, 1a, this appeared to be a repeat of the previous behaviour (per the 2016 investigation) was not in keeping with the Respondent’s standards and she recommended disciplinary proceedings.

[77]Ms Aldous investigation and report was suitably comprehensive. She provided a reasoned basis for her conclusions, upholding one part of the allegation against the Claimant and not another. Her disciplinary recommendation was unsurprising given the similarity between the matters she was looking into on this occasion and those for which the Claimant had been informally warned previously, followed by a period of improvement. There is nothing to suggest a link between the manner or outcome of the investigation and BMA activities of the Claimant’s previous discrimination claim.

[78]By a letter of 14 June 2019, the Claimant was required to attend a disciplinary hearing: I am writing to advise you that I have completed the investigation report and have recommended that the case be referred to a formal Disciplinary Hearing for a panel to consider. The allegations to be considered at the hearing are as follows; 1. Your interaction with Mr Atif Malik, the on-call Consultant overnight on the 12th (into 13th) December 2018 was perceived as obstructive and antagonistic with a reluctance and/or failure to comply with reasonable clinical management requests and instructions. Your behaviour was allegedly not consistent with the Trust Values or professional expectations (Good Medical Practise 2013), which would be deemed as misconduct. Case Number: 3300116/2020 24 of 40 2. Your counter-allegation that Mr Atif Malik’s behaviour on the evening of the 12th December 2018 amounted to bullying and harassment.

[79]Allegation 2 was included in error. The attached investigation report provided that no evidence had been found to support this. Furthermore, a single disciplinary hearing would not usually deal with allegations against more than one person. Ms Lawton told the Tribunal she had made an error with this. The same error was included in a letter of 24 June 2019, changing the date of the disciplinary hearing. At the time of drafting these letters, Ms Lawton had no knowledge of the matters the Claimant says were BMA activities, or his earlier discrimination claim.

[80]The Claimant prepared a witness statement for the disciplinary. This largely reflected what he had said before, although it did now include the proposition that hourly ASIA examination would have been intrusive and there was a risk of litigation from the patient. This appears to have been an afterthought.

[81]The Claimant’s disciplinary hearing began on 18 July 2019, with Dr Reckless presiding and Ms Parmar presenting the management case. By this time, Dr Reckless would have seen the statement of Mr Malik, which included reference to a bullying and harassment claim. Whilst the reference to “harassment” might be understood to allude to a discrimination claim under the Equality Act, “harassment” is also used commonly to refer to unwelcome behaviour which is unrelated to any protected characteristic. Dr Reckless evidence was that he did not know the Claimant’s earlier claim included discrimination and we accept this.

[82]As before, the Claimant was represented by Ms Murphy of the BMA. Early in the hearing, Dr Reckless explained he would be determining allegation 1a against the Claimant only and not his counter-allegation against Mr Malik. Ms Murphy made the proper point that it would still be necessary for Dr Reckless to consider the behaviour of Mr Malik when deciding the disciplinary outcome in the Claimant’s case and Dr Reckless accepted that he would need to consider this in mitigation. Ms Murphy also said that the Claimant had not had the chance to appeal against the dismissal of his grievance (i.e. allegation 2a) against Mr Malik.

[83]The disciplinary hearing included live evidence from Ms Aldous, which was challenged by Ms Murphy. It was not, however, suggested that she had been influenced by any BMA activities or the Claimant’s previous discrimination claim. Mr Malik gave evidence and was challenged. Ms Murphy asked why Mr Malik had asked the Claimant to do the ASIA exams rather than the SHO. She did not suggest this step was medically inappropriate or should not have been done at all. Dr Reckless observed this particular instruction from Mr Malik “could be controversial” but that the Claimant should either “obey the instruction or escalate it”. It was not suggested to Mr Malik when he gave evidence at the disciplinary that he was motivated by BMA activities or the Claimant’s previous tribunal claim.

[84]The disciplinary hearing continued on 19 July 2019, by way of a teleconference, with Mr Alam. Although Mr Alam was asked about the MRI he referred to, it was not suggested he was not present when and where he said, nor that he was not Case Number: 3300116/2020 25 of 40 giving an honest recollection of what he heard. Rather than receiving the Claimant’s evidence by telephone, the disciplinary was further adjourned.

[85]In a letter of 22 July 2019, the Respondent advised the Claimant his grievance against Mr Malik had not been upheld: As you are aware, the allegation of misconduct against you by Mr Atif Malik led to a disciplinary process, which is currently ongoing. There was no evidence found by the Investigating Manager Jean Aldous, former General Manager for Women and Children Division, to support the counter-allegation from you that Mr Malik’s behaviour on the evening of the 12th December 2018 amounted to bullying and harassment. As the disciplinary process is a separate process, you will be informed about its progress and outcomes in accordance with the Trust Disciplinary Policy. However, you have the right to appeal against the outcome of the investigation of harassment from you against the behaviour from Mr Malik, as per the Dignity at Work Policy. If you wish to exercise this right, please follow the process outlined in the enclosed Appeals Procedure.

[86]By an email of 5 August 2019, the Claimant appealed the dismissal of his grievance. We note this step does not appear consistent with believing his grievance against Mr Malik was outstanding and would be determined at the resumed disciplinary.

[87]The final day of the disciplinary hearing was 8 August 2019. The Claimant gave evidence, reading from his prepared statement. He did not say the treatment he was receiving was because of BMA activities or his previous tribunal claim. After the evidence finished, both sides summed-up. In essence, the Claimant’s case was that Mr Malik’s requests and instructions were intended to give him a hard time.

[88]Following an adjournment to consider his decision, Dr Reckless upheld allegation 1a and decided that a 2-year final written warning was appropriate.

[89]The decision to issue a warning and rationale for the same was set out in Dr Reckless letter to the Claimant of 19 August 2019. Over several pages, he summarised the evidence received and representations before setting out his conclusion: Panel Findings When considering the allegation, I was presented with evidence that you during the telephone call with Mr Malik you had refused to provide him with the information that he had requested regarding the patients. The accounts presented by you and Mr Malik differed. Dr Alam's statement confirmed that you had said to Mr Malik “you are the consultant and I am telling you to come in” as well as “I have told you once, I am not telling you again". I also heard that during the investigation meeting, you had admitted that you did not provided the information to Mr Malik as you did not believe his request to be relevant. Case Number: 3300116/2020 26 of 40 The allegation has been substantiated. Panel Conclusion […] It was clear to the me that first and foremost, the issue had been related to communication. The clinical aspect was secondary. We had two differing accounts from you and Mr Malik as well as contemporaneous notes from both yourself and Mr Malik. I found that your behaviour and communication was evasive, disrespectful and combative towards Mr Malik for the following reasons:• Mr Malik both in writing and at the hearing, advised that he had discussed the case with Mr James as a clinical manager therefore, his instructions to you followed on from this.

• Dr Alam had advised your behaviour was unusual during your telephone call with Mr Malik.

• Ms Aldous said that she found you evasive during the investigation meeting.

• There was evidence that you had hung up on Mr Malik. With regards to the ASIA scoring, I believe that Mr James' instructions were unusual and that the nuance (to perform hourly only if there was a clinical suggestion of change / deterioration) may have been lost in translation. When considering the sanction, I considered that there had previously been an MHPS investigation whereby you were issued with written advice regarding your behaviour rather than it progressing to a disciplinary hearing. This advice had been issued to you 10 months prior to this incident. I heard that you were able to modify your behaviour during 2018 and this led me to believe that the behaviour that you displayed on this occasion was a deliberate choice.

[90]Whilst there was some disagreement about what was said on the night of 12 December, the core facts around information being sought and instructions given by Mr Malik, which the Claimant refused, were not in dispute. Furthermore, Mr Malik’s account more generally was supported by Mr Alam. Dr Reckless’ view that this amounted to obstructive behaviour was open to him on the evidence. Notably, on the question of hourly ASIA exams, Dr Reckless was sympathetic to the Claimant’s point of view about whether this was appropriate, but he also believed the Claimant should have escalated his concerns if he felt it necessary and could not simply refuse instructions from the on-call consultant.

[91]With respect to the disciplinary hearing, the Claimant argued that there was a failure to comply with the requirements of MHPS for an independent medical practitioner on the panel and / or the lack of advice being taken from NCAA or Case Number: 3300116/2020 27 of 40 NCAS. Dr Reckless gave evidence the approach of the Respondent to the inclusion of an independent medical practitioner was that this would be done where professional misconduct was alleged. Dr Reckless made a distinction between personal and professional conduct. This case was, he said, a matter of personal conduct. The Tribunal understood Dr Reckless to be saying that where the misconduct arose out of a matter of clinical practice, then expert evidence of good practice in this regard might be required. This case, however, Dr Reckless believed, was one of obstructive behaviour, poor communication and a failure to follow management instructions, which did not require an expert view. The Claimant’s position (then and now) was that an independent medic was required because if he was right about the medical matters (e.g. whether the precise age of a patient was required or whether hourly ASIA exams were appropriate) then his behaviour was justified. We find that Dr Reckless did not see matters in the same way as the Claimant. Dr Reckless thought the Claimant should do as asked by his consultant and if he had a proper objection, then he must escalate that, he could not simply say no. Dr Reckless did not believe he needed an independent medical opinion on a question of this sort. As to external advice from NCAA / NCAS, Dr Reckless said this would be sought only in very complex cases or where the medic was suspended. We must determine why Dr Reckless and others did as they did and whether (applying the correct test in each case) this was because of the Claimant’s BMA activities or his previous discrimination claim. We do not find anything to suggest or allow an inference to be drawn that Dr Reckless was influenced, to any extent, by either matter.

[92]By an email of 29 August 2019, the Claimant appealed the disciplinary warning. His first ground repeated the arguments he had advanced at the disciplinary hearing. The second part complained about the disciplinary not also addressing the allegation against Mr Malik as set out in the invitation letter and variously asserted that findings of fact were not supported by the evidence. His third ground was a failure to consider mitigation. The Claimant’s last ground was that the real reason for his treatment was to victimise him for bringing a discrimination claim and / or that being “SAS lead” had “worked against” him.

[93]The grievance appeal took place on 18 November 2019, before Ms Kearney. Ms Parmar and Ms Lawton were in attendance. The Claimant was represented by Ms Murphy. The Claimant repeated much of what he had said at the disciplinary about the interaction between himself and Mr Malik. When discussing how it was that the Claimant’s complaint against Mr Malik had been referred to in the disciplinary invitation letter and not determined at the disciplinary hearing, Ms Lawton said she had drafted the letters for Ms Parmar and perhaps she made an error, putting the processes together. The Claimant said Mr Alam’s statement was false (which had not been put to Mr Alam when he gave evidence in the disciplinary) but could offer no reason for why he would do that. The minutes indicate there was a thorough ventilation of the matters the Claimant wished to raise.

[94]Ms Kearney gave her decision rejecting the appeal by a letter of 19 December 2019. This ran to 4 pages and included her analysis. Although Ms Kearney was aware of the earlier discrimination claim, in cross-examination the Claimant accepted it did not appear she had failed to uphold his appeal because of that. She did not know about the alleged BMA activities. We are satisfied her letter Case Number: 3300116/2020 28 of 40 reflects her true reasons for rejecting this appeal and these did not include BMA activities or the Claimant’s previous discrimination claim.

[95]On 24 January 2020, the Claimant’s disciplinary appeal was heard. Ms Livesley was the decision-maker. Mr Reckless presented the management case. Ms Murphy represented the Claimant. The hearing lasted almost 2 hours. Once again, the issues were very thoroughly ventilated, including the Claimant’s new suggestion that this had all been done for impermissible reasons.

[96]The disciplinary appeal outcome was provided by a letter 2 March 2020. A detailed rationale for not upholding the appeal was set out. Mrs Livesley had, of course, become aware of the earlier discrimination claim and the Claimant being SAS lead through his grounds of appeal. The Claimant accepted in cross-examination that Ms Livesley believed in her reasons. Once again, we find Ms Livesley came to her decision for the reasons she set out. Law Time

Law

[97]In the ordinary course, a claim under the Equality Act 2010 (“EqA”) or the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRA”) must be presented within three months, as extended by the operation of the ACAS EC scheme Not Reasonably Practicable

[98]Where a claim is presented outwith the primary limitation period provided under ERA, the Tribunal has a discretion to extend time if:98.1 it was not reasonably practicable for the claimant to have presented the claim within the 3-month period;

98.2 the claim was presented within a further reasonable period.

[99]The onus is upon a claimant to prove that is was not “reasonably practicable” for a claim to have presented within the specified time period. This represents a high hurdle to a late claim; see Saunders v Southend on Sea Borough Council

[1984] IRLR 119

CA, May LJ giving the judgement of the Court said: 2. 2. In the end, most of the decided cases have been decisions on their own particular facts and must be regarded as such. However we think that one can say that to construe the words 'reasonably practicable' as the equivalent of 'reasonable' is to take a view too favourable to the employee. On the other hand 'reasonably practicable' means more than merely what is reasonably capable physically of being done – different, for instance, from its construction in the context of the legislation relating to factories: compare Marshal v Gotham

(1954) AC 360

. In the context in which the words are used in the 1978 Consolidation Act, however ineptly as we think, they mean something between these two. Perhaps to read the word 'practicable' as the equivalent of 'feasible' as SSirir John Brightman did in Singh's case and to ask colloquially and untrammelled by too much legal logic – 'was it reasonably feasible to present the complaint to the Industrial Tribunal within the relevant Case Number: 3300116/2020 29 of 40 three three months?' – is the best approach to the correccorrectt application of the relevant subsection.

[100]A claimant will not establish that it was not reasonably practicable to bring a claim before an Employment Tribunal simply by relying upon ignorance of the right to bring such a claim, or the time in which that might be done, rather the reasonableness of such ignorance will need to be established. In Walls Meat Company Limited v Khan

[1978] IRLR 499

CA, Lord Denning MR said: 15. 15. I would venture to take the simple test given by the majority in Dedman's

[1973] IRLR 379

case. It is simply to ask this question: Had the man just cause or excuse for not presenting his complaint within the prescribed time? Ignorance of his rights — or ignorance of the time limit — is not just cause or excuse, unless it appears that hhee or his advisers could not reasonably be expected to have been aware of them. If he or his advisers could reasonably have been so expected, it was his or their fault, and he must take the consequences. […]

[101]With the passage of time the existence of Employment Tribunals and the right to bring claims of unfair dismissal and discrimination have become well known. As such, prospective claimants will in most cases struggle to persuade an Employment Tribunal that they were unaware of the right to bring a claim, and those who aware of such rights will, therefore, be on notice of the need to take advice as to how and when such a claim may be made; see Trevelyans (Birmingham) Limited v Norton

[1991] ICR 488

EAT: From From the cases, it is our view that the following genergeneralal principles seem to emerge. The first, as time passes, so it is likely to he much more difficult for applicants to persuade a tribunal that they had no knowledge of their rights in front of industrial tribunals to bring proceedings for unfair dismissal [[…]…] Second, that where an applicant has knowledge of his rights to claim unfair dismissal […] then there is an obligation upon him to seek information or advice about the enforcement of those rights.

[102]Where a claimant is mis-advised by a solicitor as to the relevant time-limits, then they will be fixed with their solicitor’s negligence and unable to rely upon that to establish a lack of reasonable practicability; see Dedman v British Building Engineering and Appliances Limited

[1974] ICR 53

. Whilst poor advice given by a CAB advisor will often lead to the same result, this will not inevitably and always be the case; see Marks and Spencer plc v Williams-Ryan

[2005] IRLR 562

CA: 32. 32. […] There is no binding authority which extends the principle in Dedman to a sitsituationuation where advice is given by a CAB. I would hesitate to say that an employee can never pray in aid the fact that he was misled by advice from someone at a CAB. It seems to me that this may well depend on who it was who gave the advice and in what circumcircumstances.stances. Certainly, the mere fact of seeking advice from a CAB cannot, as a matter of law, rule out the possibility of demonstrating that it was not reasonably practicable to make a timely application to an employment tribunal. Indeed, Ms Callaghan did not so suggest. Case Number: 3300116/2020 30 of 40 Just and Equitable

[103]Where a claim is presented outwith the primary limitation period under EqA, the Tribunal has a discretion to extend time, where it is just and equitable to do so. Separately, where a series of discriminatory acts are found by the Tribunal to constitute a single continuing act of discrimination, the claim will be in time where the last part of the act was within the 3-month period.

[104]So far as material section 123 of the Equality Act 2010 (“EqA”) provides: (1) (1) Subject to sections 140A and 104B proceedings on a complaint within section 120 may not be brought after the end of— (a) (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) (b) such other period as the employment tribunal thinks just and equitable. […] […] (3) (3) For the purposes of this section— (a) (a) conduct extending over a period is to be treated as done at the end of the period; (b) (b) failure to do something is to be treated as occurring when the person in question deciddecideded onon it.it. (4) (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) (a) when P does an act inconsistent with doing it, or (b) (b) if P does no inconsistent act, on the expiry of the period in which P mighmightt reasonably have been expected to do it.

[105]An Employment Tribunal applying section 123 has a broad discretion and, pursuant to the decision in British Coal Corporation v Keeble

[1997] IRLR 336

EAT, the factors relevant to its exercise may include those under section 33 of the Limitation Act 1980, in particular:105.1 the length of and reasons for the delay;

105.2 the extent to which the cogency of the evidence is likely to be affected by the delay;

105.3 the extent to which the party sued had cooperated with any requests for information;

105.4 the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action. Case Number: 3300116/2020 31 of 40

[106]The balance of prejudice between the parties will always be an important factor. There is, however, no presumption that time will be extended; see Robertson v Bexley Community Centre t/a Leisure Link

[2003] IRLR 343

CA, per Auld LJ: 25. 25. It is also of importance to note that the time limits are exercised strictly in employment and industrial cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse. A tribunal cannot hear a complaint unless the applicant cconvincesonvinces it that it is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule. […]

[107]The Court of Appeal considered the exercise of this discretion in Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] EWCA Civ 640

, per Leggatt LJ: 18. 18. First, it is plain from the language used ("such other period as the employment tribunal thinks just and equitable") that Parliament has chosen to give the employment tribunal the widest possible discretion. UnUnlikelike section 33 of the Limitation Act 1980, section 123(1) of the Equality Act does not specify any list of factors to which the tribunal is instructed to have regard, and it would be wrong in these circumstances to put a gloss on the words of the provisioprovisionn or to interpret it as if it contains such a list. Thus, although it has been suggested that it may be useful for a tribunal in exercising its discretion to consider the list of factors specified in section 33(3) of the Limitation Act 1980 (see British CoCoalal Corporation v Keeble

[1997] IRLR 336

), the Court of Appeal has made it clear that the tribunal is not required to go through such a list, the only requrequirementirement being that it does not leave a significant factor out of account: see Southwark London Borough Council v Afolabi

[2003] EWCA Civ 15

;

[2003] ICR 800

, para 33. […] 19. 19. That said, factors which are almost always relevant to consider when exercising any discretion whether to extend time are:(a) the length of, and reasons for, the delay and

(b) whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh). Continuing Act

[108]The question of what amounts to a “continuing act” was considered by the Court of Appeal in Hendricks v Commissioner of Police for the Metropolis

[2003] IRLR 96

, per Mummery LJ: 52. 52. The concepts of policy, rule, practice, scheme or regime in the authorities were given as examples of when an act extends over a period. They should not be treated as a complete and constricting statement of the indicia of 'an act extending over a period'. [...]Instead, the focus should be on the substance of the complaints that the Commissioner was responsible for an ongoing situation or a continuing state ooff 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 bebegingin to run from the date when each specific act was committed. Case Number: 3300116/2020 32 of 40 Victimisation Victimisation

[109]So far as material, EqA section 27 provides: Victimisation Victimisation(1) (1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) (a) B does a protected act, or (b) (b) A believes that B has done, or may do, a protected act.

(2) (2) Each of the following is a protecprotectedted actact—— (a) (a) bringing proceedings under this Act; (b) (b) giving evidence or information in connection with proceedings under this Act; (c) (c) doing any other thing for the purposes of or in connection with this Act; (d) (d) making an allegation (whether or not express) that A or another person has contravened this Act.

[110]As to the meaning of any other detriment, the employee must establish that by reason of the act or acts complained of a reasonable worker might take the view that they had thereby been disadvantaged in the circumstances in which they had thereafter to work. An unjustified sense of grievance cannot amount to a detriment for these purposes; see Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] IRLR 285

HL.

[111]When considering whether any less favourable treatment was because of the claimant’s protected act, we remind ourselves:111.1 direct evidence of discrimination is rare and it will frequently be necessary for employment tribunals to draw inferences from the primary facts;

111.2 if we are satisfied that the claimant’s protected act was one of the reasons for the treatment complained of, it will be sufficient if that reason had a significant influence on the outcome, it need not be the sole or principal reason.

[112]The burden of proof is addressed in EqA section 136, which so far as material provides: (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 occurred. Case Number: 3300116/2020 33 of 40

[113]When considering whether the claimant has satisfied the initial burden of proving facts from which a Tribunal might find discrimination, the Tribunal must consider the entirety of the evidence, whether adduced by the claimant or respondent; see Laing v Manchester City Council

[2006] IRLR 748

EAT.

[114]The burden of proof provisions will add little in a case where the ET can make clear findings of a fact as to why an act or omission was done or not; see Martin v Devonshires Solicitors

[2011] IRLR 352

EAT, per Underhill P: 39. This submission betrays a misconception which has become all too common about the role of the burden of proof provisions in discrimination cases. Those provisions are important in circumstances where there is room for doubt as to the facts necessary to establish discrimination generally, that is, facts about the respondent’s motivation (in the sense defined above) because of the notorious difficulty of knowing what goes on inside someone else’s head “the devil himself knoweth not the mind of man” (per Brian CJ, YB 17 Ed IV f.1, pl. 2). But they have no bearing where the tribunal is in a position to make positive findings on the evidence one way or the other, and still less where there is no real dispute about the respondent!s motivation and what is in issue is its correct characterisation in law […] TU Detriment

[115]Section 146 of TULRA provides: (1) A worker has the right not to [be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place for the sole or main purpose of— […] (b) preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so

[116]In Yewdall v Secretary of State for Work and Pensions EAT 0071/05 the EAT offered guidance as to the correct approach when considering claims under section 146, per Burton P: 23. We nevertheless find that, although clearly this is not necessarily a binding way for a tribunal to approach this statute, a very sensible way to do so would be to follow this structure which, in effect, follows the route of the Act as we see it to be:(i) Have there been acts or deliberate failures to act by an employer? On this, of course, the employee has and retains the onus;

(ii) Have those acts or deliberate failures to act caused detriment to the employee? We then interpose a cross-reference to s147 because it appears to us that this is a sensible time to do so: Case Number: 3300116/2020 34 of 40

(iii) Are those acts in time?

(iv) In relation to those acts so proved which are in time, where detriment has been caused, the question of what the purpose is then arises. We are satisfied that Mr Russell was right to concede - and, in any event, this is our judgment - that there must be establishment by a claimant at this stage of a prima facie case that the acts or deliberate failures to act which are found to be in time were committed with the purpose of preventing or deterring or penalising i.e. the illegitimate purpose prohibited by s146(1)(b). 24. This gives the same mechanism to sections 146 and 148 of TULR(C)A as is provided, for example, by section 63A of the Sex Discrimination Act 1975, where the onus of proof only passes to the employer after the establishment of a prima facie case of unfavourable treatment on discriminatory grounds by the employee which requires to be explained. […]

Conclusion

[117]We turn now to our conclusions. Time

[118]Given the Claimant contacted ACAS on 6 November 2019 and a certificate was issued on 9 December 2019, any complaint about an event which occurred on or after 7 August 2019 would have been presented within three months. Detriment 1

[119]As far as detriment 1 is concerned, the MHPS investigation is said by the Claimant to have concluded on 2 February 2018, which is when he received the outcome. When asked in cross-examination about any impediment to bringing this claim within 3 months, the Claimant said the outcome had not included Ms Aldous’ report and appendices. Quite plainly, the absence of these documents did not prevent the Claimant from bringing a claim complaining about the first MHPS investigation being pursued. He could have asked for these documents at the time and did not do so. The Claimant did not actually obtain the investigation material until it was supplied by way of disclosure in the current case and its absence did not, therefore, prevent him from bringing this claim. We are not satisfied that it was not reasonably practicable for the Claimant to bring his trade union detriment claim in connection with detriment 1, within the period of 3 months. Accordingly, the Tribunal does not have jurisdiction to determine this trade union detriment claim.

[120]In connection with the Claimant’s victimisation claim concerning detriment 1, we consider whether it is just and equitable to extend time. It follows from what is set out immediately above that the Claimant has failed to provide a good reason for the lateness of his claim. That is not, however, the only consideration. We must take into account the balance of prejudice as between the parties. If time is not extended, the Claimant will be denied the opportunity to pursue this claim. Whilst the claim is now somewhat historic, the Respondent has been able to call witness evidence in this regard and produce relevant documents. The Case Number: 3300116/2020 35 of 40 Respondent’s witnesses, supported by contemporaneous written records, have been able to address the Claimant’s allegations and their ability to resist the same has not been significantly undermined by the passage of time. We are also mindful that the Claimant could rely upon evidence in this regard in any event as potentially relevant background to support the drawing of inferences as to the reason for the treatment his is complaining about, in circumstances where many of the same individuals were involved in the later matters also. We think the balance of hardship and injustice favours extending time. As such, we consider it is just and equitable to allow the Claimant’s late claim, notwithstanding the absence of a good reason for its lateness. Detriment 2

[121]This detriment complains about the investigation and hearing in 2019. Subject to a continuing act being found for the victimisation claim, these would appear to be two distinct detriments.

[122]Ms Aldous reported on 21 May 2019. Her report was sent to the Claimant with the disciplinary invitation letter of 14 June 2019.

[123]The Claimant did not offer any explanation for having failed to bring a complaint about the investigation in time. He had the benefit of advice and representation from his trade union, the BMA, throughout. Once again, there would not appear to be any impediment to a claim being brought in time. We are not satisfied it was not reasonably practicable for a claim to have been presented in time and the Tribunal does not have jurisdiction to determine the trade union detriment claim.

[124]As far as victimisation is concerned, the points set out in connection with detriment 1 apply and any potential prejudice to the Respondent is even less. The processes are all well-documented and the witnesses were able to speak to the same and contest the Claimant’s allegations. It is just and equitable to extend time for this claim.

[125]The disciplinary hearing continued until 8 August 2019 and the Claimant’s claims in this regard, both of trade union detriment and victimisation are in time. Detriment 3

[126]The warning was issued on 8 August 2019 and the Claimant’s claims are in time. Detriments 4 & 5

[127]Detriment 4 concerns the grievance process and Detriment 5 the outcome. It seems to the Tribunal that these complaints are broad enough to encompass the entire process, including the appeal and are in time. Detriment 1

[128]The Claimant being made the subject of a disciplinary investigation is a detriment. This involves the suggestion of misconduct, the requirement to be interviewed in connection with allegations to that effect and the risk of Case Number: 3300116/2020 36 of 40 disciplinary proceedings. The Claimant would, reasonably feel he was at a disadvantage in the workplace.

[129]The next question is whether this step was taken because of the Claimant’s protected act. In this regard the Claimant does not need to establish that his protected act was the only reason for the investigation being pursued but it must at least have been a material influence.

[130]We have reminded ourselves that employers are unlikely to admit victimising an employee, perhaps not even to themselves, and it is necessary to look at the primary facts to see whether any appropriate inferences can be drawn

[131]Dr Reckless decided to appoint a case manager to commission an investigation. Given he was unaware the Claimant had brought a discrimination claim, he did not know the Claimant had done a protected act. Without knowledge of the protected act, it cannot have influenced his decision in this regard. As such the Claimant’s claim must fail on that basis. Furthermore, we accepted Dr Reckless’ evidence of the reason why he decided to go down this route and this did not include the fact of the Claimant’s previous claim, irrespective of precisely what he knew about that. The reasons given by Dr Reckless for his actions are rationale and credible, they do not provide a basis for inferring he acted for an inadmissible reason.

[132]To the extent Mr Manji had a hand in the pursuit of the investigation, there was no evidence to suggest he did what he did because of the Claimant’s previous claim, or that he knew there had been a complaint of discrimination. This is consistent with the evidence given by the Claimant, which included that he accepted Mr Manji commissioned an investigation because that was the job he had been given as case manager.

[133]It is unclear whether the Claimant is saying that Ms Aldous “pursued” the investigation because of his protected act. Given she had been specifically instructed to investigate and given terms of reference in that regard, she could do little else but investigate and it is difficult to see how a protected act could have been a material influence in that regard. In any event, we accepted her evidence she did not know of the Claimant’s discrimination claim until 2019.

[134]There are no facts from which the Tribunal could decide the investigation was pursued because of the Claimant’s protected act. And, if the burden had shifted, we were in any event satisfied by the Respondent’s evidence as to the reasons why this was done, which did not include the Claimant’s protected act. Accordingly, the Claimant’s claim in this regard must fail. Detriment 2

[135]The fact of the second MHPS investigation would be a detriment to the Claimant for the same reasons as given in connection with Detriment 1. We are not satisfied, however, that there was any detriment in the manner of its conduct. Separating the substance of the investigation from the fact of it taking place is not, however, an entirely satisfactory way to deal with the Claimant’s claim and so we have gone on to look at his criticisms in this regard, to consider (without Case Number: 3300116/2020 37 of 40 having decided if they were detriments) whether the investigation was carried out in the manner it was for an inadmissible reason.

[136]Ms Aldous did become aware of the Claimant’s protected act during the second MHPS investigation. She had some knowledge that the Claimant had been involved in negotiations but not that he was a BMA representative or was engaged in the activities of a trade union.

[137]We carefully considered the points the Claimant took with respect to the investigation, in particular: his arguments as to the need for NCAA or NCAS advice, inconsistencies in the statement of Mr Alam which he said Ms Aldous ignored; Ms Aldous not exploring the MRI records; and the way in which she asked questions, which he said was non-neutral and betrayed an intention to build a case against him. For the reasons already given, we did not find these points to be persuasive. Ms Aldous report was well-prepared and her conclusions supported by the evidence obtained. The facts in this regard do not support an inference that the manner of the investigation was influenced by the Claimant’s protected act. We accepted that Ms Aldous investigated as she did for the reasons she gave and not to any extent because of the Claimant’s protected act.

[138]There are no facts from which the Tribunal could decide the manner of the investigation was because of the Claimant’s protected act. And again, if the burden had shifted, we were satisfied by the Respondent’s evidence as to the reasons why this was carried out as it was, which did not include the Claimant’s protected act. Accordingly, the Claimant’s claim in this regard must fail.

[139]For the Claimant’s trade union detriment claim to succeed we would need to be satisfied not merely that his activities in this regard had influenced the manner of the investigation but that it was the sole or main purpose for his treatment was to prevent or deter him from taking part in BMA activities or to penalise him for having done so. In light of our findings set out above, this claim cannot succeed. We do not, therefore, need to analyse which of the various matters in the Claimant’s schedule fall within the relevant definition of trade union activities. Detriment 3

[140]Issuing a final written warning to the Claimant was, plainly, a detriment. He would be at a disadvantage in the workplace, under a sanction and with an increased risk of dismissal. This decision was made by Dr Reckless.

[141]We have not found that Dr Reckless was aware of the protected act and the Claimant’s victimisation claim must fail on that basis, since the decision cannot have been materially influenced by a matter of which the decision-maker was unaware.

[142]We did, however, also make positive findings of fact about why Dr Reckless decided on a final written warning. The core facts were not in dispute and notwithstanding the Claimant’s interpretation, reasonably left open the conclusion reached about instructions and information being refused. It was not an answer that the Claimant believed he was right on some of the medical Case Number: 3300116/2020 38 of 40 matters. In Dr Reckless view, whilst the Claimant could have escalated to Mr James if he felt strongly enough, he could not simply refuse. Dr Reckless explanation of how MHPS was applied in practice was not challenged. There was nothing in the primary facts to support an inference being drawn that Dr Reckless had been materially influenced by the Claimant’s earlier claim (irrespective of whether he knew this included discrimination). Dr Reckless believed this was a serious matter and identified a similarity with the conduct for which the Claimant had received an informal written warning. Whilst other options may have been open, the imposition of a final written warning is not obviously disproportionate.

[143]There are no facts from which the Tribunal could decide the disciplinary warning was issued because of the Claimant’s protected act. And again, if the burden had shifted, we were satisfied by the Respondent’s evidence as to the reasons why this was done as it was, which did not include the Claimant’s protected act. Accordingly, the Claimant’s claim in this regard must fail.

[144]Given our acceptance that Dr Reckless made his decision for the reasons he gave at the time, we cannot find his sole or main purpose was to prevent or deter the Claimant from taking part in BMA activities or to penalise him for having done so. In light of our findings set out above, this claim cannot succeed and we do not go on to analyse which of the Claimant’s activities fall within the relevant definition. Detriments 4 & 5

[145]We will deal with detriments 4 and 5 together.

[146]As far as the manner and process of the grievance determination is concerned, the Claimant was not told in clear terms that his complaint against Mr Malik was being dealt with under a separate track, namely as grievance under the dignity at work policy, rather than as a disciplinary matter under MHPS. Only at the disciplinary hearing and in the letter of 22 July 2019, was this made clear. We note the Respondent’s policy anticipates a meeting with the complainant to advise of the outcome and that was not the purpose of the hearing on 18 July 2019. To this extent, the grievance handling might amount to a detriment. Thereafter, in terms of the appeal, a proper process was followed with clarity to the Claimant about this.

[147]As to grievance outcome, whilst the Claimant might subjectively feel he was at a disadvantage by reason of this being dismissed, that sense might be unjustified if the conclusion reached was a proper one on the evidence.

[148]We have in any event gone on to consider whether the matters complained of (without deciding at this stage to what extent, if at all, these were detriments) were done for either of the inadmissible reasons.

[149]The rejection of the Claimant’s grievance resulted from the investigation of Ms Aldous and her finding no evidence to support the complaint against Mr Malik. Her conclusion to this extent was reasonably open on the basis of the interviews and documentary evidence. As above, the fact of the Claimant refusing to Case Number: 3300116/2020 39 of 40 provide information and follow instructions from his manager in the night was not in dispute. The evidence allowed Ms Aldous to reach a conclusion that Mr Malik had acted as he was entitled to and the Claimant’s characterisation of this as bullying, harassment and him being treated as a slave was not made out. Whilst she was aware of the Claimant’s prior discrimination claim, we accepted that she reached her conclusion for the reasons stated in her report and was not influenced by the protected act.

[150]Dr Reckless accepted Ms Aldous report in this regard, which was consistent with his view of the disciplinary matter against the Claimant and we find he acted for the reasons he gave.

[151]As to manner and process, the lack of clarity up until day 1 of the disciplinary and grievance outcome letter, was the result of poor HR advice for which Ms Lawton has apologised. Ms Lawton had no knowledge of the Claimant’s discrimination claim or BMA activities and this cannot have influenced her actions.

[152]In terms of the grievance appeal, MS Kearney was aware of the discrimination claim but we were satisfied by her evidence and that she rejected the appeal for the reasons she gave in a reasoned outcome letter and this did not include the impermissible reasons.

[153]None of these matters provides a basis upon which we could properly draw an inference that the handling or outcome of the Claimant’s grievance was because of his protected acts. Once again, there are no facts from which the Tribunal could decide the disciplinary warning was issued because of the Claimant’s protected act. If the burden had shifted, we were in any event satisfied by the evidence from the Respondent’s witnesses as to the reasons why they did as they did, which did not include the Claimant’s protected act. Accordingly, the Claimant’s claim in this regard must fail.

[154]Having accepted the reasons by those who did the matters the Claimant complains of, we cannot find that their sole or main reason was the BMA activities.

Summary

[155]The Claimant’s claims are not well-founded and do not succeed. Date 18 October 2021 Sent to the parties on: 1.11.2021 ……………………………. For the Tribunal Office: Case Number: 3300116/2020 40 of 40 THY ……...……………………..