Mr R Tozzi v Oxford University Hospitals NHS Foundation Trust: 3300119/2021
EMPLOYMENT TRIBUNALS
Case No 3300119/2021
Between
Mr R TozziClaimantOxford University Hospitals NHs Foundation TrustRespondent
Before
Employment Judge Gumbiti-ZimutoMr C Milsom (instructed by counsel) for respondentDate 27 August 2025
JUDGMENT
By consent the claimant’s claims of ordinary unfair dismissal and automatic unfair dismissal are dismissed.
REASONS
[1]The claimant was appointed as a consultant gynaecological oncologist for the respondent in January 2009. He was dismissed by the respondent in October 2020. His appeal against dismissal was successful and he was reinstated on 16 July 2021. However, discussions between the parties to implement the claimant’s return to work were unsuccessful. The claimant did not return to work and resigned on 11 December 2022, claiming constructive dismissal.[2]The claimant’s claim was presented on 6 January 2021, after his dismissal and prior to his reinstatement. He brought complaints of whistleblowing detriment, direct race discrimination and unfair dismissal (‘ordinary’ unfair dismissal, and dismissal because of whistleblowing).[3]After his dismissal was overturned on appeal, and he was reinstated, the claimant presented amended particulars of claim on 21 March 2022 and withdrew his complaints of unfair dismissal. After his resignation, the claimant was given permission on 12 March 2023 to amend his claim to include a complaint of constructive unfair dismissal.[4]The respondent presented its response on 6 May 2021 and its amended responses on 21 March 2022 and 10 April 2023. The respondent defends the claim. Hearings
the claim.
[5]Preliminary hearings for case management took place on 24 January 2022 and 9 August 2023.[6]The main hearing took place over 15 days from 12 May 2025 to 4 June 2025. The timetable in the appendix below explains what happened on each day. The timetable is an updated version of the provisional timetable which was included in case management orders given to the parties at the hearing on 14 May 2025.[7]The hearing was hybrid. The claimant and all members of the tribunal attended in person throughout. The respondent’s representatives attended in person, other than on 30 May 2025 (closing remarks) when they attended by video. Some witnesses attended in person and some by video, as explained in the appendix. Case management on days 1 to 3 of the main hearing[8]The claimant made two applications at the start of the hearing, and some other case management matters were discussed on days 1 to 3 of the hearing. Our case management decisions were explained at the hearing Case Number: 3300119/2021 (RJR) Page 3 of 45 and in the written case management orders given to the parties on 14 May 2025. Documents, evidence and closing comments[9]The parties agreed a hearing bundle with 3963 pages (4 lever arch files). Page references in these reasons are to the agreed bundle.[10]At the start of the hearing, 203 pages were added to the bundle by agreement (pages 3964 to 4166).[11]By agreement, the respondent’s grievance procedure was added to the bundle during the course of the hearing.[12]We heard witness evidence as set out in the appendix. One of the respondent’s witnesses, Frances Bonney, did not attend. We said we would attach such weight to her written statement as we thought appropriate. In the event, we made our decision on the matter with which she was involved on the basis of other witness evidence, undisputed facts and the contemporaneous documents.[13]After the witness evidence concluded, the parties did not attend on 29 May, so that they could take some time to prepare their written closing comments. The claimant and the respondent’s counsel both prepared detailed written closing comments. These were exchanged and sent to the tribunal on 29 May 2025. The respondent’s counsel and the claimant both made oral closing remarks on 30 May 2025.[14]We reserved judgment. The tribunal deliberated on 2, 3 and 4 June 2025. The judge apologises for the delay in promulgation of the reserved judgment and reasons. As explained to the parties in a letter sent on 4 July 2025, there was a delay because the judge was away from the tribunal for three weeks.
Issues
[15]The issues for determination were identified at the first preliminary hearing. An updated list of issues produced by the respondent was discussed at the second preliminary hearing and agreed by the claimant on 23 August 2023. The final agreed list of issues was at pages 169 to 174 of the bundle for the final hearing.[16]There was an agreed amendment to paragraph 5.4 of the list of issues, as explained in the case management orders of 14 May 2025.[17]The claimant complaints of protected disclosure detriment, constructive unfair dismissal following his reinstatement and direct race discrimination.[18]The issues for determination are included in each of the relevant parts of our conclusions. Case Number: 3300119/2021 (RJR) Page 4 of 45
Findings of fact
[19]We make the following findings of fact about what happened. Where there is a dispute about what happened, we decide what we think is most likely to have happened, on the basis of the evidence we have heard and the documents we have read.[20]We have not included here everything that we heard about during the hearing. Our findings include those aspects of the evidence which we found of most assistance for us in deciding the agreed
issues.
[21]Our findings are set out in broadly chronological order, except at some points where it assists to group some specific factual findings. The appointment of the claimant[22]In 2008, the respondent began a recruitment process for an experienced gynaecological oncology surgeon. The respondent wanted to broaden the range of surgical skills of its gynaecological oncology team. It was looking for a surgeon who could offer radical multi-visceral surgery, in particular for ovarian cancer, and who could lead a research programme in surgical aspects of the treatment of gynaecological cancers.[23]In January 2009 the respondent appointed the claimant as a consultant in gynaecological oncology. The claimant had trained in highly respected centres in Europe including in Germany. He had training and experience in carrying out a range of radical multi-visceral surgical procedures that in the UK were more often performed by doctors with other specialisms.[24]There was a range of opinions among the claimant’s colleagues at the respondent about the claimant’s approach to complex surgery for advanced gynaecological cancers. There was recognition that he was a very well trained and highly skilled surgeon. However, some of his colleagues were concerned about a lack of multi-disciplinary involvement in patients’ treatment and surgery. In some cases, there were differences of opinion as to whether surgery or chemotherapy/radiotherapy was the best treatment option.[25]We accept that there were what were described by the claimant’s witness Professor Stephen Kennedy as philosophical differences between the training and approach in the UK and in much of the rest of Europe regarding the surgical management of gynaecological cancers.[26]In November 2012 the claimant became clinical lead for the respondent’s surgical gynaecological oncology service (we refer to this as ‘the service’). Prior to this, the claimant had worked part time for the respondent, three weeks a month, with the claimant working the other week each month as a consultant in a hospital in Italy. When he became clinical lead, the claimant began working full time for the respondent. Case Number: 3300119/2021 (RJR) Page 5 of 45[27]It was recognised that at the time the claimant took over the clinical lead role, there were some problems with the service. For some time it had not been functioning well, and it had considerable challenges with meeting targets. These problems had existed before the claimant joined the respondent and before he became clinical lead.[28]There were multiple investigations and reviews of the service in the period from 2013 to 2017. We heard a lot of evidence about these reviews and include some summary findings about them here, but the detail of the reviews was not directly relevant to the issues for us to decide. The 2013 reviews[29]A review of the gynaecological oncology surgical clinical lead post was carried out in July/August 2013 by Nick Maynard, the clinical director of surgery, working with the respondent’s cancer lead consultant (page 424).[30]The review recommended that an established consultant gynaecological oncology surgeon should be recruited to lead the service instead of the claimant, but that he should remain in post in the meantime.[31]Mr Maynard also recommended a comprehensive review of the service to improve its functionality. That comprehensive review was carried out in November 2013 by Mr Richard Guy, a consultant colorectal surgeon (page 1023). He recommended that the service should involve specialists from other fields in difficult pelvic cases from the outset of treatment.[32]Following the two reviews in 2013 an action plan was put together for the service in December 2013 (page 3789). Steps included setting up a regular pelvic cancer multi-disciplinary team (‘MDT’) which would meet monthly. As the name suggests, the MDT includes clinical staff from a number of relevant disciplines. The GMC investigation[33]In November 2014 the respondent’s medical director forwarded the November 2013 review report to the General Medical Council (the GMC). The GMC opened an investigation into the claimant’s fitness to practice (page 3797). In later correspondence with the GMC, the respondent recognised that the information it had provided to the GMC was misleading and that there were no immediate concerns about the claimant’s practice.[34]Moving ahead briefly in the chronology, in April 2017 the outcome of the GMC investigation was that the case was closed with no regulatory action (page 3815). The March 2015 action plan[35]In late February 2015 the respondent implemented a further change in surgical strategy for the service (page 3848). The claimant and his colleagues had not been involved in the decision to make the change. Case Number: 3300119/2021 (RJR) Page 6 of 45 They were concerned about the implications for their patients. On 10 March 2015 the claimant resigned his role as clinical lead for the service (page 3846).[36]The change in surgical strategy was followed on or around 18 March 2015 by the introduction of another action plan for the service. It mandated more multi-disciplinary working, and identified cases in which consultant surgeons of another specialty would have to be involved at all stages of patient care and surgery (page 1233). Investigations initiated but not pursued in 2016[37]In May 2016 and November 2016 the respondent opened investigations into the claimant after concerns were raised by colleagues (page 434 and page 438). However, the investigations were not pursued. The 2017 review[38]In Autumn 2017 Mr Maynard, the respondent’s cancer lead at this time, was asked to conduct another internal review of the service (page 449).[39]The review report dated 28 December 2017 highlighted concerns about support, capacity and leadership of the service. There were also concerns that the claimant had failed to comply with multi-disciplinary working (page 460). The report recommended improvements in administrative support, capacity and leadership and steps to improve interpersonal relationships in the team (page 464). Events leading up to the 4 June 2018 MDT meeting[40]The MDT meeting of 4 June 2018 is an important event in the chronology. We first explain our findings about some events before that meeting.[41]On 23 May 2018 the claimant raised some concerns about an upcoming surgical procedure in an email to the clinical director of gynaecology Ingrid Granne (page 1503). The claimant did not believe the surgery should go ahead because he thought the surgeon who was due to carry out the operation did not have sufficient expertise.[42]Two of the claimant’s colleagues were copied into the claimant’s email. One responded to Dr Granne and thanked her for looking into it as a matter of priority. The other replied to say they completely agreed it was a priority (page 1502).[43]Dr Granne spoke to the surgeon who was due to carry out the surgery. He felt he had the necessary skills to perform the surgery. Over the next few days there were further emails between the claimant, Dr Granne, the divisional medical director and the respondent’s deputy medical director. The claimant continued to raise his concerns about the surgeon’s expertise. Case Number: 3300119/2021 (RJR) Page 7 of 45[44]Dr Granne said that the team should make these decisions together as a group (page 1500). The divisional medical director Chris Cunningham explained why he believed the surgery was within the surgeon’s competence. He suggested that the discussions and decisions should be undertaken within the MDT meeting (page 1496). The 4 June 2018 MDT meeting[45]The MDT meeting took place on 4 June 2018. It was attended by about 12 people including consultants, other doctors, nurses, other healthcare professionals and some students who were observing. Dr Granne was present in her position as clinical director for gynaecology.[46]At the meeting the claimant repeated the concerns he had raised in his emails about the expertise of his colleague. We accept that during the meeting the claimant said to his colleague words to the effect of: ‘We don’t think you have the expertise to do this specific surgery. We would like to know, how many have you done, how many operations have you done, to undertake this surgery?’.[47]We find that in saying, ‘We don’t think you have the expertise to do this specific surgery’, the claimant disclosed information which he believed tended to show that the health and safety of a patient was likely to be endangered. He was saying that the surgeon’s lack of expertise was an additional risk to the patient over and above that associated with the surgery itself, and that danger to the patient’s health and safety was likely.[48]There was a significant and genuine difference of medical opinion about the claimant’s view. At least one of the claimant’s colleagues with the same clinical specialism shared the claimant’s view. On the other hand, neither Dr Granne nor Professor Cunningham felt that there was any additional danger to the patient from the claimant’s colleague performing the operation (rather than any other surgeon). Witnesses told us that the number of times a surgeon has performed a particular procedure is not a helpful measure and that increased experience does not always correlate with lower risk. We accept that characteristics not directly associated with a surgeon’s experience could also be important factors in terms of risk to patients.[49]However, for the purpose of the protected disclosure provisions, we consider what the claimant believed. We accept the claimant’s evidence that he believed that a surgeon’s lack of experience in conducting a specific surgical procedure carried an additional risk such that the patient’s safety was likely to be endangered.[50]We also find that the claimant believed that he was making this disclosure in the public interest. He believed that his intervention at the meeting was necessary in the patient’s interest because of a danger to health and safety, and that this was a matter of public interest. Case Number: 3300119/2021 (RJR) Page 8 of 45[51]We return in our conclusions to the reasonableness of the claimant’s beliefs.[52]At the meeting, the discussion between the claimant and his colleague became heated. The claimant was very focused on understanding how many times his colleague had performed this specific surgery. When he felt his colleague was not giving a clear answer, the claimant repeated the question multiple times, and firmly insisted on being given an answer. We find that at times the claimant raised his voice. The discussion was prolonged. The chair of the meeting was unable to move things on. Dr Granne tried to defuse the situation by asking the claimant’s colleague to stop speaking.[53]Some people in the meeting thought that the claimant’s behaviour was inappropriate and raised concerns with senior managers at the time and shortly after the meeting: 53.1. During the meeting, Dr Granne emailed Professor Cunningham and the respondent’s deputy medical director to ask for advice. In her email, Dr Granne described the meeting as ‘a very angry MDT’ (page 480). 53.2. A consultant clinical oncologist, Sally Trent, sent an email in the evening after the meeting to those who had been at the meeting. She said she thought the manner of the discussion at the meeting was unacceptable. She emailed Mr Maynard on the 5 and 6 June 2018. She described the claimant’s behaviour in the meeting as harassment and bullying of his colleague (page 474 and 1090). She criticised another senior colleague for ‘allowing it to happen’. 53.3. About a week later, four other people who had been in the meeting reported to Mr Maynard that they felt uncomfortable in the meeting and/or that the claimant’s behaviour had been inappropriate (pages 1086 to 1089).[54]On 24 July 2018 the claimant’s colleague made a formal complaint about the claimant’s conduct towards him at the meeting (page 991). He said he felt publicly bullied, harassed and discriminated. He made a second complaint about the conduct of another senior colleague at the meeting; this second complaint was resolved by agreement when a written apology was given (page 517). Unauthorised absence issue[55]In July 2018 the claimant had to travel urgently to Italy to respond to a family crisis. He was due to be on call at the time he was going to be away. He was able to find cover for most of his on-call duties, but could not find any cover for Saturday 7 July 2018. He did not ask for assistance or escalate this to a senior manager.[56]Dr Granne called the claimant on the morning of Saturday 7 July. He did not answer. He responded by text about two hours later and called her about one hour after that. He said that he was out of the UK but available Case Number: 3300119/2021 (RJR) Page 9 of 45 by telephone and that he would be back in the UK and on call the following day.[57]Dr Granne reported the claimant’s absence to the respondent’s medical director. The MHPS investigation[58]Following the MDT meeting on 4 June 2018 and some other concerns which had been raised by colleagues, the respondent decided to conduct an investigation under its procedure for handling concerns related to medical and dental practitioners. The procedure is often referred to as Maintaining High Professional Standards or ‘MHPS’ (page 546).[59]In July 2018 Chandi Ratnatunga, the divisional director of the clinical support services division, was appointed as case manager for the investigation. Chris Milford was appointed as investigator. Mr Milford is a consultant ENT surgeon. At the outset of the investigation, Mr Milford made it clear that he was not qualified to give an opinion on matters specifically relating to gynaecology/oncology surgery. Mr Ratnatunga and Mr Milford considered whether an external expert was required to address the allegations relating to the claimant’s specific surgical practice area, and decided not to instruct an external expert. Mr Milford considered the allegations with regard to general principles of good surgical/medical practice, by reference to guidance including the Royal College of Surgeons’ Good Surgical Practice standards document.[60]The terms of reference for the investigation set out the allegations against the claimant (page 942). The five key allegations were: 60.1. Bullying and harassment in relation to conduct at the MDT meeting on 4 June 2018; 60.2. Concerns about surgical practice; 60.3. Concerns about a specific procedure undertaken in July 2018; 60.4. Behaviour towards colleagues resulting in a lack of trust and breakdown in communications; 60.5. Failure to declare a conviction under the Road Traffic Offenders Act 1988 issued on 22 November 2017.[61]The terms of reference explained that if additional issues of concern were identified in the course of the investigation, consideration would be given to including these in the investigation. Exclusion of the claimant[62]In August 2018 the claimant was excluded from work pending the outcome of the investigation (page 488). Mr Ratnatunga made this decision after seeking advice from NHS Resolution’s Practitioner Performance Advice service (the PPA). Mr Ratnatunga told the claimant that exclusion was necessary because of the nature and the extent of the concerns. Exclusion was permitted under the respondent’s MHPS procedure (page 554). Case Number: 3300119/2021 (RJR) Page 10 of 45 Additional allegations in the MHPS investigation[63]In about October to December 2018 Mr Milford conducted interviews with those involved in the incidents mentioned in the terms of reference. In her interview with Mr Milford on 7 November 2018, Dr Trent raised two additional cases of surgical concern (page 1077).[64]In December 2018 the terms of reference of Mr Milford’s investigation were amended to include these additional issues of concern with surgical practice (page 955).[65]One of the allegations by Dr Trent was that at an MDT meeting on 16 October 2017, the claimant had misled the MDT by saying that he had consulted with the pelvic orthopaedic team about a patient, when he had not. This was reflected in her own handwritten note of the meeting (page 1092). Dr Trent made the same allegation in her written statement following her interview with Mr Milford.[66]Moving ahead briefly in the chronology at this point, Dr Trent also made this allegation at the claimant’s disciplinary hearing. The allegation was not upheld by the disciplinary panel. The disciplinary panel’s decision on this point was based on a written action plan which another member of the MDT had prepared after the MDT meeting of 16 October 2017 (page 443). The action plan referred to discussions with the pelvic orthopaedic team as a step to be taken by the claimant, not as one already taken: it said that the claimant was ‘to discuss with Pelvic Orthopaedic team and re-discuss next week with regards to surgical options’.[67]We find, based on this contemporaneous written record by a different doctor who was at the meeting, that it is more likely that the discussion was that the claimant was going to speak to the pelvic orthopaedic team, not that he had already done so. We find that Dr Trent genuinely believed that the claimant had misled the MDT at this meeting, but her belief was based on a mishearing or a misunderstanding. The investigation into the unauthorised absence[68]At about the same time that Mr Milford was appointed as investigator, Mr Ratnatunga had separately appointed Michelle Taylor Siddons, the head of clinical governance for the clinical support services division, to investigate the allegation about the claimant’s unauthorised absence on 7 July 2018 (page 485). The scope of her investigation was set out in separate terms of reference (page 788).[69]Mrs Taylor Siddons’ investigation report was produced on 30 January 2019 (page 524). She concluded that on 7 July 2018 the claimant had not been able to arrange cover for his on-call duties, and, as he was out of the UK, he would not have been able to respond immediately if needed. She found that there were mitigating circumstances, in that the claimant’s absence was related to a significant and unexpected family crisis. She Case Number: 3300119/2021 (RJR) Page 11 of 45 found that in the absence of a clinical lead for the service for a prolonged time, there had not been any communication about how to book leave or who to contact in the event of an urgent situation.[70]The claimant accepted Mrs Taylor Siddons’ conclusions and agreed that her investigation was carried out fairly. RCOG review[71]There remained wider concerns about the service, arising from Mr Maynard’s December 2017 review. In November 2018 the deputy medical director was appointed as interim medical director. She decided to commission the Royal College of Obstetricians and Gynaecologists (RCOG) to review the respondent’s gynaecological oncology service.[72]RCOG assessors visited the trust in January 2019 and provided a report in April 2019 (pages 844 and 863).[73]The RCOG review found that there were dysfunctional working relationships in the MDT team, and poor clinical engagement by the gynaecological oncology surgical team. The RCOG review recommendations included that the appointment of a clinical lead was a key requirement for the successful continuation of the service. The claimant’s webpage profiles[74]In April 2019 Damian Scott, a private patient service manager for the respondent, reviewed the private patient webpage for surgical, oncology and women’s services. He identified that some updates were needed. He emailed Frances Bonney, the respondent’s web communications officer, to ask her to make the changes (page 2398).[75]One of the changes Mr Scott asked for was the removal of the profiles of six consultants who were no longer carrying out private work for the respondent. He included the claimant’s profile in the list of profiles to be removed. This was because the claimant had not had any private bookings since March 2018 and had not renewed his insurance cover for private work.[76]Ms Bonney replied two days later to say that she had made the changes, and she attached a link to the updated private patient webpage (page 2397).[77]At about the same time, the claimant’s profile was also removed from the webpages with information about the respondent’s NHS gynaecological oncology surgeons. We find that it is likely that Ms Bonney did this by mistake at the same time that she updated the private patients webpage. We make this finding because the instruction in Mr Scott’s email that started by saying ‘the following consultants … don’t work here anymore or carry out private work’ might have been understood as meaning that those consultants had left the trust’s employment entirely. Case Number: 3300119/2021 (RJR) Page 12 of 45[78]We find that the removal of the claimant’s profile from the NHS pages was a genuine mistake. It was not done because the claimant was excluded from work at the time. It was nothing to do with the concerns he had raised at the MDT meeting on 4 June 2018. We entirely accept Mr Scott’s evidence that as his work was separate to clinical work, he was not aware of the claimant having raised any concerns at that meeting. We make the same finding in relation to Ms Bonney, on the basis of the nature of her role. We find that it is very unlikely that in her role any of the discussions at that meeting would have come to her knowledge.[79]The claimant identified that the profile of another consultant who had left the respondent was still on the website some time later. We accept that at times there may be delays in updating the respondent’s various webpages. The removal of the claimant’s profile happened at the time it did because Mr Scott had the capacity to conduct a review of the webpage at that time and having done so decided that it needed updating. Mr Milford’s investigation report[80]There were some delays in Mr Milford’s interviews with the claimant because of the availability of the claimant’s representative and because it took some time for the respondent to provide anonymised copies of the clinical records of patients referred to in the terms of reference for the investigation.[81]Mr Milford’s interviews with the claimant took place on 4 February 2019, 15 February 2019 and 6 March 2019. The claimant was accompanied by his BMA representative. His exclusion from work was continuing at this time. Mr Ratnatunga explained the reasons for exclusion to the claimant. These were to maintain the integrity of the investigation, and to ensure the safety of patients, and of staff assisting with the investigation (page 840).[82]Mr Ratnatunga continued to regularly review the exclusion and to extend it, explaining the reasons for doing so to the claimant (page 843, 871, 873, 874 for example).[83]In March 2019 Mr Milford provided a provisional draft of his investigation to Mr Ratnatunga. In light of Mr Milford’s provisional conclusions about the issues concerning the claimant’s clinical practice, Mr Ratnatunga made the decision that a consultant gynaecologist should be instructed as an independent expert, to provide an expert opinion on the clinical practice issues raised in the investigation.[84]Alan Farthing was instructed. He is a Consultant Gynaecologist, a Fellow of the RCOG and at the time of the report was the Head of Department for Imperial College NHS Trust Gynaecological Oncology service (page 876).[85]Mr Farthing’s report was provided on 16 August 2019 (page 875). He gave his clinical opinion on the cases which were referred to him. He concluded that the claimant is an expert surgeon with significant experience of difficult Case Number: 3300119/2021 (RJR) Page 13 of 45 cases. He said there is no suggestion that his surgical skills are in any way inadequate. He said the claimant appeared to use surgery in more circumstances than would be usual in the UK, for example in cases that would in other centres in the UK be treated by chemoradiation alone (page 881).[86]Mr Farthing’s report was appended to Mr Milford’s final report.[87]Mr Milford provided his final report to Mr Ratnatunga on 5 September 2019 (page 885). His conclusions included that: 87.1. There had been longstanding problems within the gynaecological oncology service, which previous investigations had sought to address; 87.2. There was a sound basis for concluding that the claimant had bullied his colleague at the MDT meeting on 4 July 2018; 87.3. The claimant is a hardworking and technically able surgeon. 87.4. A general theme emerged from the cases that the claimant had problems working within a team and had lost the trust of some of his colleagues; 87.5. The claimant did not inform the respondent or the GMC of his conviction under the Road Traffic Offenders Act 1988. Decision to refer the case to a panel[88]On 20 November 2019 Mr Ratnatunga informed the claimant that he had taken the decision to refer his case to a panel for consideration under the MHPS procedure (page 1357). This related to the matters which had been investigated by both Mrs Taylor Siddons and Mr Milford.[89]Prior to reaching his decision, Mr Ratnatunga sought advice from the PPA as to whether a PPA assessment could be an appropriate alternative. The PPA decided not to offer an assessment.[90]The claimant’s exclusion from work continued in the meantime. Mr Ratnatunga decided this was necessary to protect the interests of patients.[91]Sam Foster, the respondent’s chief nursing officer, was appointed to chair the panel. She wrote to the claimant on 17 January 2020 about the arrangements for the panel hearing. It was to be held on 2 to 6 March 2020 (page 1360). The claimant’s BMA representative emailed Ms Foster on 24 January 2020 raising some queries and asking for the hearing to be postponed to a date after 1 May 2020 to allow the claimant more time to prepare (page 1362).[92]Ms Foster replied on 6 February 2020 proposing possible dates in June 2020, replying to the other queries and enclosing a detailed list of the allegations against the claimant (page 1365 and 1368). Case Number: 3300119/2021 (RJR) Page 14 of 45[93]After this, the respondent was involved in dealing with the Covid 19 pandemic. Internal matters including disciplinary hearings were delayed and for this reason the claimant’s hearing did not go ahead in June.[94]Ms Foster was heavily involved in the response to the pandemic and due to her workload, the respondent’s Chief People Officer, Terry Roberts, was asked to chair the claimant’s panel instead. Mr Roberts wrote to the claimant on 3 July 2020 to say that the panel hearing would take place on 1 to 7 September 2020 (page 1340). Job adverts[95]Over the summer of 2020 the respondent advertised two vacancies in the service.[96]On 28 July 2020 Dr Granne submitted a request for approval to recruit a consultant (page 2338). The request explained that this was to replace one of the claimant’s colleagues who had resigned. The post was described as a direct ‘like for like replacement’. The request was approved by the relevant departments of the respondent and the vacancy was advertised (page 2322).[97]On 29 July 2020 Dr Granne applied for approval to recruit for another post. This was the post of clinical lead for the service (page 2346). The request explained that this was a new post recommended by the RCOG review the previous year. The request was approved and the vacancy was advertised in September 2020 (page 2319).[98]Neither of these two posts were the claimant’s post. MHPS hearing and dismissal[99]The MHPS panel hearing chaired by Mr Roberts took place on 7 days between 1 and 10 September 2020. The panel included an external gynaecological oncologist. The claimant was accompanied at the hearing by his BMA representative and his solicitor.[100]The hearing was long and complex due to the amount of information the panel received and the need to investigate highly specialised clinical issues.[101]Mr Ratnatunga presented the respondent’s case. He explained why he felt that a disciplinary hearing was required (page 1756). He felt the findings of the two investigations were of a very serious nature. He considered that the concerns did not have a solitary focus but involved matters around conduct, practice and behaviours which were complex, interrelated and numerous. He described the allegation about the claimant’s conduct at the MDT as bullying and harassment of a colleague contrary to the respondent’s Respect and Dignity at Work Procedure (page 1757). Case Number: 3300119/2021 (RJR) Page 15 of 45[102]There were nine witnesses for the respondent, including Mrs Taylor Siddons, Mr Milford and Mr Farthing. Eight witnesses attended for the claimant.[103]The decision was sent to the claimant on 2 October 2020 (page 2151). The panel upheld some of the allegations against the claimant, based on the evidence it heard. These included findings that the claimant had: 103.1. breached procedures by taking leave from work during a period when he was scheduled to be on-call (7 July 2018); 103.2. bullied and harassed his colleague in the MDT meeting on 4 June 2018; 103.3. failed to declare a conviction under the Road Traffic Offenders Act 1988 issued on 22 November 2017; 103.4. caused a significant breakdown in working relationships and a loss of trust and confidence within the respondent.[104]The panel also upheld or partially upheld allegations relating to clinical care in relation to five patients. This was based on Mr Farthing’s clinical opinion on the cases which were referred to him.[105]In relation to the allegation about the claimant’s conduct in the meeting on 4 June 2018, the panel acknowledged that the claimant had been asked by Professor Cunningham to raise his concerns about the surgery at the MDT, but concluded that this did not justify the claimant doing so in the manner in which he did. The panel heard evidence from the claimant’s colleague and accepted that he was still upset by the treatment and had left the respondent as a result. Based on the evidence it heard from him and from other colleagues who were at the meeting, the panel decided that the manner in which the claimant had raised his concerns was inappropriate and amounted to bullying and harassment. The claimant had asked repeated and persistent questions in a belligerent manner. We accept the evidence of Mr Roberts that the concern was not with what the claimant had said, but the manner and the way in which he said it.[106]The panel unanimously decided that as the cumulative effect of the claimant’s actions had led to a breakdown in working relationships, the appropriate sanction was dismissal for some other substantial reason, with pay in lieu of full contractual notice. The dismissal took effect on 5 October 2020 (page 2169). Employment tribunal claim[107]At around this time the claimant began these proceedings. He notified Acas for early conciliation on 23 October 2020 and received the Acas certificate on 7 December 2020 (page 41). He presented his employment tribunal claim on 6 January 2021 (page 42). Appeal against dismissal Case Number: 3300119/2021 (RJR) Page 16 of 45[108]The claimant appealed against his dismissal on 20 November 2020 (page 2184). The following members of the appeal panel were appointed (in accordance with the MHPS procedure): 108.1. The chair of the respondent trust, Sir Jonathan Montgomery, as the non-executive director; 108.2. Professor Brian Gomes da Costa, as the external independent chair; 108.3. Dr Richard de Boer as the external medical practitioner.[109]Two advisors were appointed to the panel: Ms Rachel Stanfield, the respondent’s director of workforce and HR advisor to the panel, and Mr Prithwiraj Saha, consultant gynaecologist and obstetrician, the external clinician of the same specialty as the claimant.[110]The claimant was told that the appeal would not be a full re-hearing of his case, but that he could provide additional documents and call witnesses (page 2313). The claimant provided additional documents and relied on the statements of 21 witnesses. In the event the respondent did not challenge the evidence of the claimant’s witnesses, so they were not required to attend the appeal hearing.[111]The appeal hearing was arranged for 18 and 19 January 2021 but this had to be postponed because Dr de Boer became unavailable. He was supporting his employer with the Covid 19 pandemic.[112]The claimant’s appeal hearing took place on 13, 14 15 April, 15 and 20 June and 5 July 2021 (page 3023). Three days were initially scheduled but this had to be extended. Ms Stanfield was replaced as HR advisor by Elizabeth Nyawade, the director of workforce from St George’s NHS Trust. Other than this change, the panel and advisors remained the same. The claimant was accompanied at the hearing by his BMA representative and his solicitor.[113]During the hearing, the claimant said that he had made a protected disclosure at the MDT meeting on 4 June 2018 and that he should not have been subjected to a detriment because of his disclosure. He said he had not raised this at the disciplinary hearing (or at any stage before the appeal). He said he thought it was the duty of the disciplinary panel to identify that he had made a disclosure. The panel sought ‘open’ legal advice on this point. The trust’s solicitor joined the hearing (page 3091). He told the hearing that: 113.1. it is not a requirement for an employee to state that they are making a protected disclosure; and 113.2. the protection against whistleblowing detriment applies whether or not the employee specifically identifies the disclosure as being a protected disclosure.[114]After the hearing day on 20 June 2021, the parties were told that the chair of the panel had become unwell and could not continue with the hearing. Case Number: 3300119/2021 (RJR) Page 17 of 45 The panel and the parties agreed that the best way forward was for Sir Jonathan Montgomery to take over as chair of the appeal panel and for Mr Saha’s role to change from advisor to the panel to a decision-making member of the panel (page 3196).[115]The final day of the hearing took place on 5 July 2021 (page 3202).[116]The appeal panel’s unanimous decision was set out in a letter dated 16 July 2021 (page 3248). The appeal panel allowed the appeal in respect of all the clinical care allegations. It upheld some of the other allegations but decided that it was not reasonable to regard them as justifying dismissal, even as part of a cumulative case. The appeal panel amended the decision of the disciplinary panel to substitute warnings in respect of the policy breaches identified in the allegations which it upheld. The decision of the appeal panel meant that on 16 July 2021 the claimant was reinstated to his employment with the respondent.[117]The allegations which were upheld by the appeal panel were that the claimant: 117.1. breached procedures by taking leave from work during a period when he was scheduled to be on-call (7 July 2018); 117.2. bullied and harassed his colleague in the MDT meeting on 4 June 2018; and 117.3. failed to declare a conviction under the Road Traffic Offenders Act 1988 issued on 22 November 2017.[118]In respect of the claimant’s conduct at the MDT meeting, the appeal panel found that there was no evidence that the disciplinary panel had considered whether the claimant’s degree of concern for the patient’s safety might have explained his behaviour. It also concluded that it was not appropriate for the managers with whom the claimant had originally raised his concerns to ask him to take them to the MDT rather than investigating them directly.[119]The appeal panel’s decision letter did not specify the type of warning which was to be imposed in respect of the allegations which were upheld. The claimant’s BMA representative asked the panel to clarify this.[120]The appeal panel had not considered this question prior to finalising its decision. On 20 July 2021 the panel members had further discussions by text about the type of warning which should be imposed (page 3954). On 28 July 2021 the claimant was notified of the disciplinary sanctions imposed by the panel (page 3262). These were: 120.1. Written warning in respect of the absence during a period when he was scheduled to be on-call on 7 July 2018; 120.2. Final written warning in respect of his conduct at the MDT meeting on 4 June 2018; and 120.3. Written warning in respect of the failure to declare a conviction under the Road Traffic Offenders Act 1988. Case Number: 3300119/2021 (RJR) Page 18 of 45[121]The claimant explained in his witness statement in these proceedings that it felt unacceptable to him that he would be subject for 12 months after his return to work to a final warning on the bullying incident, despite it being recognised to be a protected disclosure. He said it was hugely compromising to a safe return to work, and it was like offering voluntarily to lay down beneath a guillotine.[122]In the period when his appeal was being progressed, the claimant was appointed to another job in Italy. He began working as a consultant surgeon in gynaecology and gynaecological oncology in Padua in March 2021 (page 3513). The role included clinical work and running a clinical academic research programme. On 26 July 2021 the claimant was appointed to a five year post as director of obstetrics and gynaecology at Padua (page 3686). That post also included clinical work. Backpay[123]After the appeal decision and reinstatement, the respondent began to make arrangements for the claimant to be paid backpay from the date of his dismissal on 5 October 2020 to the date of his reinstatement on 16 July 2021. The cut off date for the July 2021 payroll had passed by the time of the appeal decision. From around 6 August 2021 the respondent was taking steps to establish the backpay due to the claimant (page 3263 to 3265).[124]On 24 August 2021 the claimant’s solicitor wrote to the respondent to say that the trust was in breach of contract for failing to pay backpay, and asking for it to be paid within 14 days (page 3267 to 3268).[125]The backpay calculations were not straightforward because the claimant’s pay was variable and some administrative steps were required following the reinstatement. The steps taken by the respondent included the following: 125.1. on 26 August 2021 Mr Roberts advised on using payments made to other consultants as a way to average the payments that may be due to the claimant (page 3269 and 3270); 125.2. on 27 August 2021 the HR Records Manager advised that a new appointment and change form would be needed to get the claimant back on the payroll (page 3275 to 3279); 125.3. the respondent wrote to the claimant on 1 September 2021 to asked him to complete the form (page 3280 to 3281). The completed form was sent for internal approval (page 3282 to 3285) and once approved it was forwarded to the HR records manager (page 3293 to 3294) on 10 September 2021.[126]The backpayment was made to the claimant on 14 September 2021 (page 3298). His salary was also reinstated. Case Number: 3300119/2021 (RJR) Page 19 of 45 The first return to work meeting[127]At about this time, the claimant and the respondent began to discuss arrangements to facilitate the claimant’s return to work after nearly three years’ absence. The PPA provided advice and was involved with the discussions, as part of its remit is to advise on planning, reskilling and assessment of practitioners following an absence. The respondent was following the National Clinical Assessment Service guidance on supporting practitioners back to work (page 215).[128]Meghana Pandit, the respondent’s chief medical officer, and Professor Cunningham, the divisional medical director, led the discussions for the respondent. Professor Pandit wrote to the claimant on 6 October 2021 to set up a meeting (page 3313). She offered three alternative times in October.[129]The claimant replied to the letter on 21 October 2021, after the proposed times had passed (page 3318). He asked for his legal representative to be able to attend, and for the meeting to be recorded.[130]Further dates were provided (page 3317). Professor Pandit said that it would be inappropriate to have legal representation at the meeting because it was an internal meeting (page 3330). She said the claimant could be supported by a BMA or other defence organisation representative. The claimant replied to say that he was not prepared to have a meeting without legal representation and recording (page 3316).[131]Following further communications, a meeting went ahead on 6 December 2021. It was attended by a representative of the PPA as well as the claimant, Professor Pandit and Professor Cunningham (page 3349).[132]At the meeting, Professor Pandit explained to the claimant that since he had last been at work, the gynaecology MDT members had gone through mediation with an independent mediator and the MDT was functioning better. The independent mediator remained on board to work with and support the MDT. Professor Cunningham explained that colleagues were aware of the claimant’s reinstatement and there was some consternation, but they had agreed to approach it positively.[133]Professor Pandit said the respondent was considering what would be needed to facilitate the claimant’s return to clinical work after a long gap. The claimant said that the last time he had treated a patient for the respondent was August 2018, but he had done some irregular clinical work as a gynaecologist since then, outside the UK.[134]The claimant said that he had been excluded for three years because of allegations against him by colleagues which were not upheld. He said that he wanted to understand how the allegations against him were generated, so that he could move on. He said he would like Professor Pandit to look into this and for the circumstances of the investigation against him to be reviewed, to ensure that it wouldn’t happen again. Professor Pandit Case Number: 3300119/2021 (RJR) Page 20 of 45 suggested that he put his request in writing to Mr Roberts. The claimant was unhappy about this as Mr Roberts had chaired the disciplinary panel which dismissed him. Professor Pandit suggested that the claimant send his request to Ms Stanfield, the respondent’s director of workforce instead. She invited him to copy his request to those attending the meeting including the PPA representative.[135]At the end of the meeting, Professor Pandit outlined next steps (page 3351). These included that the claimant would: 135.1. provide more information about the clinical work he had been doing since his dismissal; 135.2. give suggestions for a surgical mentor external to the respondent; 135.3. meet with the independent mediator; 135.4. provide more details about the review he had requested into the concerns raised by his colleagues. The claimant said that his return to work was conditional on this review of the allegations against him.[136]After the meeting, the respondent took steps to set up the claimant’s online access to the statutory and mandatory training programme, and sent the claimant some possible dates for a meeting with the mediator. Dates in January were suggested for the next meeting, but the claimant said that he had not been able to meet the mediator or secure a mentorship, and he suggested that the meeting should be postponed (page 3356).[137]In December 2021, after the first return to work meeting, members of the respondent’s HR team learned from an online newspaper article of the claimant’s appointment as the director of obstetrics and gynaecology at Padua hospital and that he had been working at the hospital since March 2021 (page 3365). They searched online because the claimant had not provided details himself. When they found this information, they were concerned that the claimant had not told them about this. It seemed inconsistent with what he had said about doing ‘irregular clinical work’. They notified the respondent’s counter fraud team about this in January 2022 (page 3381) and provided further details in February 2022 (page 3411). We find that the inconsistency between the claimant’s description of ‘irregular clinical work’ and the information the HR team had found about his new role was the reason the respondent decided to seek advice from the counter fraud team. The second return to work meeting[138]The second return to work meeting took place on 18 February 2022 (page 3481). The action points from the previous meeting were discussed. The claimant had met with the MDT’s independent mediator. He had not completed any of the other action points from the earlier meeting. He had not been able to access the respondent’s online training system because his email address was inactive and he had not followed this up with the respondent prior to the second meeting. Case Number: 3300119/2021 (RJR) Page 21 of 45[139]In relation to the plans for return to clinical practice, the claimant had not provided details of the clinical work he had been doing since his dismissal. At the meeting, the claimant said that he had been undertaking regular clinical work outside the UK for the last 8-9 months. The PPA adviser at the meeting said that an exact list of activity undertaken would be needed to develop an action plan to support the return to practice. The claimant said he had not identified an appropriate surgical mentor. Completion of PPA referral forms by the respondent and the claimant was confirmed as the next step.[140]In relation to the claimant’s request for a review of his concerns, the claimant said that had not provided more details because he felt that Ms Stanfield had a conflict of interest. He said his concerns would have to be addressed in advance of his return to work. He said he was committed to the mediation process but this was a separate process to addressing his concerns.[141]Professor Pandit clarified her understanding of the concerns the claimant wanted to be addressed before he could return to work as: 141.1. Concerns raised about his practice had resulted in him not working for three years. How had this been allowed to happen? And 141.2. Concerns that he had been victimised for raising concerns.[142]The claimant said this summary was the tip of the iceberg and his concerns were more detailed. He said that he had experienced racism, discrimination, undermining behaviours, victimisation and alienation since 2010. He said addressing these concerns regarding the last 10 years were an essential part of his return, and unless they were addressed, he would not feel able to return. He said that these matters were part of his employment tribunal claim. The PPA advisor suggested that the respondent might need to take legal advice on how to proceed if the concerns were already part of the claimant’s employment tribunal claim.[143]The meeting recorded an action point for Professor Pandit to obtain legal advice regarding the options for addressing concerns that were already part of an employment tribunal claim. Professor Cunningham said that for the claimant’s concerns to be addressed, they would need to be captured in a grievance document. He asked whether the document would be the same as the claimant’s employment tribunal claim. The claimant said the substance of his claim related to structural procedures/processes but was also person specific and included behaviours. He said the respondent should look at the failures of the structural procedures and processes. This response was not sufficiently clear to enable the respondent to understand what the claimant wanted to be investigated. Professor Pandit agreed to feedback to the claimant once she had obtained legal advice.[144]It was agreed that the development of an action plan to support the claimant’s return to work would be progressed in the meantime. Case Number: 3300119/2021 (RJR) Page 22 of 45[145]After the meeting Professor Cunningham began to complete the PPA referral form. The claimant had not provided any further information about the work he had been doing since dismissal. Professor Pandit wrote to the claimant on 24 March 2022 setting out the information which was needed from him so that the PPA referral form could be completed. This would assist the respondent and the PPA to consider what, if any, period of retraining the claimant would require before returning to clinical duties with the respondent (page 3496).[146]The claimant replied to Professor Pandit’s letter by email on 23 May 2022 (page 3518). He gave the details requested about his clinical work, without naming the hospital where he was working. In relation to the request for a review of his concerns, he said he was disappointed that Professor Pandit had not mentioned these serious issues that he had now raised twice, nor provided any proposals to deal with them. He said he insisted that these issues were taken into consideration as an integral part of his reinstatement process. He said it was essential to guarantee his safety at the respondent and conditional to his return to work.[147]The claimant had been due to meet the independent mediator in April but he cancelled the meeting and by 24 May 2022 had not rearranged (page 3512).[148]On 1 June 2022 the claimant was appointed as a professor in the University of Padua (page 3685).[149]Professor Pandit replied to the claimant on 14 June 2022 (page 3520). She said that she was facilitating his return to work, and was impartial. She said that it was appropriate for Mr Roberts to support her as he had corporate responsibility for MHPS for the respondent. She said in relation to the issues the claimant had raised, she understood them to be substantially linked to the employment tribunal claim and that they would therefore be independently determined.[150]The claimant replied to Professor Pandit on 17 June 2022 (page 3521). He said he would confirm the name of the hospital where he had been working once the reinstatement process with the respondent was completed. He asked that Mr Roberts have no further involvement in his return to work. He said that the resolution of the issues that arose over 10 years at the respondent and during the capability and conduct investigation, hearing and appeal hearing were very important to him. He said he expected the respondent to run a proper investigation through a third party. He said this was conditional to his return to work and he needed and deserved a safe working environment free from discrimination, victimisation and harassment.[151]The claimant met with the independent mediator at about this time (page 3524). He told her that he was happy to come back to work as long as there was an external investigation into the key people who brought the case against him and the way he was treated over ten years at the respondent. He said such an investigation would need to include people Case Number: 3300119/2021 (RJR) Page 23 of 45 taking responsibility for the untruths that had been told against him. He said that if the investigation was done to the respondent’s and his satisfaction, then he would mediate with his colleagues. Further return to work discussions with Dr Sykes[152]At about this time Professor Pandit became the interim chief executive of the respondent. Anny Sykes became the interim chief medical officer and she took over the discussions to progress the claimant’s return to work. She felt that the first step in facilitating the claimant’s return was to understand what clinical support and retraining was required. She wanted to know who the claimant had been working for, so she could confirm what clinical work he had been doing.[153]Dr Sykes wrote to the claimant on 7 July 2022 (page 3526). She asked him to confirm the name of the hospital which had employed him since March 2021. She said that the respondent was entitled to know this under the claimant’s terms and conditions of service. She said the PPA would be assisting in determining the training the claimant required before his return to work. She asked him to explain how he was planning to return to his full time duties with the respondent while having an ongoing commitment to another organisation.[154]In relation to the claimant’s concerns, Dr Sykes focused on the claimant’s concern about safety. She said that the respondent would be clear with the whole gynae-oncology team about the importance of working together in a professional, cooperative and respectful way. She said if the claimant encountered any issues on his return to the workplace, he should raise them pursuant to the trust’s policies and procedures.[155]There were further emails exchanged between Dr Sykes and the claimant in July and August 2022. The claimant did not agree that he was required to tell the respondent the name of his other employer (page 3534). He said that a formal investigation was needed to properly and comprehensively address the serious issues raised throughout his tenure, including whistleblowing disclosure and the events that led to his ‘unfair exclusion, dismissal and (eventual) vindication and reinstatement’. He said, ‘Only then can you credibly guarantee a safe, respectful environment’. He said the respondent’s failures should not be allowed to be repeated and that was the issue that needed to be properly addressed before he could confidently resume his work with the respondent.[156]On 18 August 2022 Dr Sykes asked the claimant to provide the name of his employer in Italy and confirmation of how he was planning to return to full time duties while working full time for another organisation (page 3533). She asked the claimant to provide this information within 7 days. She said the issues the claimant was raising were being litigated separately in the employment tribunal forum.[157]The claimant did not reply within 7 days. He emailed Dr Sykes on 12 September 2022 (page 3533). He said that as all the investigations against Case Number: 3300119/2021 (RJR) Page 24 of 45 him were unfounded, there was a legitimate suspicion that they were punitive for having raised concerns. He said that as the respondent had been unresponsive and had failed to act, it was his duty to bring the concerns to the public knowledge and to escalate such concerns to higher authorities. He said that as Dr Sykes and the respondent showed no consideration and had failed to take his legitimate concerns into account, he believed there to be a fundamental breach of contract which left him with no option but to consider his resignation.[158]Dr Sykes was on leave at this time followed by a period of illness. She replied to the claimant on 17 October 2022 (page 3532). She asked the claimant to provide the information she had previously requested. She said that there was an overlap between the claimant’s concerns and his employment tribunal claim, and that a number of the points the claimant had raised had been considered at the appeal hearing, so it would not be appropriate to re-open them. She said he had not raised any concerns in line with the respondent’s policies and procedures, either as an individual grievance or a dignity at work complaint. She denied there had been any fundamental breach of contract and urged the claimant to engage in a return-to-work plan/discussions by return.[159]The claimant did not reply for some weeks. In the meantime, Dr Sykes took advice from the PPA adviser in December 2022 (page 3578). The PPA adviser raised the possibility of the claimant carrying out a return-towork action plan at another trust, and then returning to the respondent after completion of the action plan. The PPA adviser felt this might be advantageous as it would avoid the need to resolve all the issues at the respondent in advance of the claimant’s return. The claimant’s resignation[160]Before Dr Sykes had discussed this suggestion with the claimant, on 11 December 2022 the claimant sent an email to Dr Sykes in which he resigned with immediate effect (page 3531). He said that if ‘this and all the other issues’ were not formally investigated by the respondent, he did not feel that he could safely return to work. He said that although the appeal hearing overturned the decision to dismiss him, it did not investigate the processes and investigation which resulted in a lengthy exclusion. He said he had raised concerns both verbally and in writing multiple times in his 10 years of service but they were consistently ignored. He said it had been 18 months since he was reinstated, and the respondent had not engaged with the issues he had raised.[161]Dr Sykes replied on 21 December 2022 accepting the claimant’s resignation and expressing regret that he had decided not to engage any further in terms of the return to work (page 3530).[162]In January 2025 the respondent’s counter fraud team confirmed to the respondent that the claimant’s case did not meet the threshold for fraud and they were closing the matter (page 3619). Case Number: 3300119/2021 (RJR) Page 25 of 45 Comments about the claimant’s nationality[163]The claimant is Italian. Some of his colleagues at the respondent, including clinical fellows who worked with him, were Italian. The claimant alleges that he was referred to as ‘Italian mafia’ (page 173). The claimant himself did not hear anyone use this or any similar term about him. Rather, he says that colleagues told him prior to August 2018 that others had described him (or him and his colleagues) as Italian or Italian mafia.[164]There was some evidence of terms referencing the claimant’s nationality or the word ‘mafia’ being used to refer to the claimant and/or his colleagues: 164.1. A speciality registrar colleague of the claimant said in her statement for the MHPS hearing that some negative comments were made about the claimant being an Italian (page 1465). She left the respondent in 2019; 164.2. A manager who worked in gynaecological oncology said in her statement for the MHPS hearing that there was a standing nickname among some teams that the claimant and his colleagues were the ‘Oxford or Gynae oncology mafia’ (page 1454). She told the MHPS hearing as a witness that she had heard this from a clinical fellow (page 2103). She did not say that she had heard it herself; 164.3. Matteo Morotti gave evidence to us that the claimant and his colleagues, including Dr Morotti himself, were frequently described as ‘the Italians’. He had been told by clinical fellow colleagues that there were jokes about the ‘Italian mafia’ but he did not hear them himself. Dr Morotti left the respondent in 2019; 164.4. Anil Vaidya gave evidence to us that the claimant was labelled as ‘the Italian’ and his team as ‘the Italians’. He said he heard consultants describe the claimant in derogatory terms referencing his nationality on two occasions, one of which was a reference to ‘the Italian mafia’. Professor Vaidya left the respondent in 2015. He told the claimant about these comments before March 2015. The respondent learned of these specific allegations for the first time in Professor Vaidya’s witness statement for these proceedings 164.5. Professor Kennedy gave evidence to us that some senior clinicians and managers of the respondent judged the claimant’s attempts to implement the 2015 action plan as ‘very Italian actions’. The service fell under Professor Kennedy’s directorship for about a year in about 2017;[165]There was no evidence on which we could make any findings as to who made these comments. The claimant and his witnesses did not name any of the people they say made them. Some of the allegations have been Case Number: 3300119/2021 (RJR) Page 26 of 45 made late in proceedings, for example in Professor Vaidya’s statement. As to when they happened, at the latest they occurred in August 2018: the claimant says that his colleagues told him about these comments before he was excluded from work by the respondent. The comments reported by Professor Vaidya had happened and had been reported to the claimant by March 2015 at the latest, when Professor Vaidya left the respondent.[166]Some of the witnesses who gave evidence to us including the claimant suggested that the claimant had been treated differently than a British surgeon with the same clinical approach would have been treated. Based on the evidence we heard and read, we find that the concerns about the claimant arose from differences of clinical approach or training, and were not related to nationality. The law Protected disclosures
The law
[167]Section 43A of the Employment Rights Act 1996 provides that a protected disclosure is: 167.1. a ‘qualifying disclosure’ within section 43B; 167.2. which is made in accordance with one of six specified methods of disclosure set out in sections 43C to 43H.[168]Section 43B defines a qualifying disclosure. Sub-sections 43B(1) and (5) say: “(1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following—(a) that a criminal offence has been committed, is being committed or is likely to be committed,(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c)that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed. Case Number: 3300119/2021 (RJR) Page 27 of 45 … (5) In this Part “the relevant failure”, in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1).”[169]In summary, a qualifying disclosure is i) a disclosure of information that ii) in the reasonable belief of the worker making it, is made in the public interest and iii) (again, in the reasonable belief of the worker making it) tends to show that one or more of six ‘relevant failures’ has occurred, is occurring or is likely to occur. Relevant failures include endangering health and safety, and deliberately concealing information about another relevant failure.[170]Points ii) and iii) concern the claimant’s beliefs. The claimant must have both these beliefs, as a matter of fact and on a subjective basis. If they do, their beliefs must be reasonable beliefs to hold, on an objective basis. A belief may be reasonable even if it is incorrect (Babula v Waltham Forest College [2007] EWCA Civ 174 CA.)[171]To decide whether a qualifying disclosure is a protected disclosure, the method of disclosure must be considered. A qualifying disclosure made to an employer is a protected disclosure under section 43C(1)(a): “(1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure - (a) to his employer ….” Protected disclosure detriment[172]Protection against detriment for making a protected disclosure is set out in section 47B of the Employment Rights Act which says: “A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.”[173]‘Detriment’ is given a wide interpretation. It means putting under a disadvantage, or treatment that a reasonable worker might consider to be to their detriment (Ministry of Defence v Jeremiah 1980 ICR 13, CA).[174]The test for whether a detriment was done ‘on the ground that’ the worker has made a protected disclosure is explained in Fecitt and others v NHS Manchester [2012] IRLR 64, CA. What needs to be considered is whether the protected disclosure materially influenced (in the sense of being more than a trivial influence) the employer’s treatment of the worker. This requires examination of both the conscious and subconscious thought processes of the person who carried out the alleged detrimental treatment. Case Number: 3300119/2021 (RJR) Page 28 of 45[175]The effect of the protection against detriment is not that those who make a protected disclosure have immunity for any behaviour or conduct related to the making of the disclosure, no matter how bad. In Kong v Gulf International Bank (UK) Ltd [2022] EWCA Civ 941 Simler LJ considered Bolton v Evans [2006] IRLR 500 EAT, concluding at paragraph 56: “There may in principle be a distinction between the protected disclosure of information and conduct associated with or consequent on the making of the disclosure. For example, a decision-maker might legitimately distinguish between the protected disclosure itself, and the offensive or abusive manner in which it was made, or the fact that it involved irresponsible conduct such as hacking into the employer's computer system to demonstrate its validity. In a case which depends on identifying, as a matter of fact, the real reason that operated in the mind of a relevant decision-maker in deciding to dismiss (or in relation to other detrimental treatment), common sense and fairness dictate that tribunals should be able to recognise such a distinction and separate out a feature (or features) of the conduct relied on by the decision-maker that is genuinely separate from the making of the protected disclosure itself. In such cases, as Underhill LJ observed in Page [2021] ICR 912, the protected disclosure is the context for the impugned treatment, but it is not the reason itself.” Burden of proof in protected disclosure detriment[176]In a complaint of detriment, section 48(2) provides that it is for the employer to show the ground on which any act, or deliberate failure to act, was done. The burden shifts to the employer where the other elements of a complaint of protected disclosure detriment are shown by the claimant.[177]Unlike the operation of the burden of proof under the Equality Act 2010, a failure by the employer to show positively the reason for an act or failure to act does not mean that the complaint of whistleblowing detriment succeeds by default. It is a question of fact for the tribunal as to whether the act was done ‘on the ground’ that the claimant made a protected disclosure (Ibekwe v Sussex Partnership NHS Trust UKEAT/0072/14/MC). Constructive unfair dismissal[178]Section 95(1)(c) provides that an employee is dismissed where: “the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.”[179]Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27 sets out the elements of a constructive dismissal. The tribunal must consider whether: 179.1. there was a fundamental breach of contract on the part of the employer; 179.2. the employer’s breach caused the employee to resign; and Case Number: 3300119/2021 (RJR) Page 29 of 45 179.3. the employee resigned without affirming the contract, for example by delaying too long before resigning or by other conduct.[180]The claimant relies on breaches of the implied term of trust and confidence. This term was explained by the House of Lords in Malik v Bank of Credit and Commerce International SA 1997 ICR 606, HL as a term to the effect that neither party will, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee. The test of whether the conduct is such that it undermines trust and confidence is objective: Omilaju v Waltham Forest London Borough Council [2005] ICR 481.[181]In Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ 978 Underhill LJ set out guidance on the questions to be considered where an employee claims to have been constructively dismissed and where there are said to be a number of breaches of the implied term. Those questions are: 181.1. What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, the resignation? 181.2. Has the employee affirmed the contract since that act? 181.3. If not, was that act (or omission) by itself a repudiatory breach of contract? 181.4. If not, was it nevertheless a part of a course of conduct comprising several acts and/or omissions which, viewed cumulatively, amounted to a breach of the implied term of trust and confidence? 181.5. If so, did the employee resign in response (or partly in response) to that breach?[182]If a constructive dismissal is established, the tribunal must also consider the reason for dismissal, including whether the reason for the dismissal is a potentially fair reason, and whether the dismissal is fair in all the circumstances, pursuant to section 98(4) of the Employment Rights Act 1996. Direct race discrimination[183]Race is a protected characteristic under sections 4 and 9 of the Equality Act 2010. Race expressly includes nationality and national origins (section 9(1)(b) and (c)). This encompasses being of a particular nationality or national origin (for example being Italian) and also not being of a particular nationality (for example not being British).[184]Section 13(1) of the Equality Act says: “A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.” Case Number: 3300119/2021 (RJR) Page 30 of 45 Burden of proof in complaints under the Equality Act[185]Sections 136(2) and (3) provide for a shifting burden of proof: "(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) This does not apply if A shows that A did not contravene the provision."[186]This means that if there are facts from which the tribunal could properly and fairly conclude that there has been unlawful discrimination, the burden of proof shifts to the respondent.[187]If the burden shifts to the respondent, the respondent must provide an adequate explanation, which proves on the balance of probabilities that the respondent did not discriminate. The respondent would normally be expected to produce cogent evidence to discharge the burden of proof.[188]If there is a prima facie case and the explanation for the treatment is unsatisfactory or inadequate, then the tribunal must make a finding of discrimination. Jurisdiction – time limits[189]Section 48(3) of the Employment Rights Act says: “An employment tribunal shall not consider a complaint under this section unless it is presented—(a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.”[190]Section 123 of the Equality Act says: “(1) Subject to section 140B [extension for ACAS early conciliation] proceedings on a complaint within section 120 may not be brought after the end of—(a) the period of 3 months starting with the date of the act to which the complaint relates, or Case Number: 3300119/2021 (RJR) Page 31 of 45(b) such other period as the employment tribunal thinks just and equitable. … (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.”
Conclusions
[191]We have applied these legal principles to the facts as we have found them, to reach our decisions on the issues for determination by us. We set out our conclusions in a different order to the list of issues. We first considered whether the claimant made a protected disclosure, then the complaints of detriment and constructive dismissal. Finally, we set out our conclusions in respect of the complaint of direct race discrimination. Protected disclosure[192]We first consider whether the claimant made a qualifying disclosure in the MDT meeting on 4 June 2018 (issues 19.1 to 19.7).[193]At the meeting the claimant disclosed information. The words we have found the claimant to have used contained factual content from which it was clear that he was saying that there was an additional danger to a patient if surgery was carried out by a surgeon with less experience in that particular surgery.[194]We have found that the claimant believed that these words tended to show that the health and safety of a patient was likely to be endangered. As to whether this was a reasonable belief, we have found that there was a significant and genuine difference of medical opinion about this. Some doctors felt strongly that increased experience of a particular surgery does not always correlate precisely with reduced risk or danger. However, we have concluded that it was reasonable for the claimant to believe that lack of experience in a particular surgery was a factor which would be likely to impact surgical risk such that a patient’s safety was likely to be Case Number: 3300119/2021 (RJR) Page 32 of 45 endangered. It is reasonable to consider that experience is likely to be a highly relevant risk factor.[195]We have also found that the claimant believed his disclosure was made in the public interest. This was also a reasonable belief. The disclosure concerned surgery in respect of one patient only, but was made against a background of a long period of reviews raising concerns about the service. It would be a matter of public interest.[196]For these reasons, we have decided that the claimant made a qualifying disclosure under section 43(1)(d) at the MDT meeting on 4 June 2018.[197]As the claimant had been directed by Professor Cunningham to raise his concerns at that meeting, and senior clinical managers were present, the disclosure was a disclosure to the claimant’s employer under section 43C(1)(a). It was therefore a protected disclosure. Protected disclosure detriment[198]We next consider whether the treatment the claimant complains about happened as alleged, and if so whether it was a detriment done on the ground that he made a protected disclosure.[199]The alleged detrimental treatment is set out in issues 19.8.1 to 19.8.3 as: 199.1. holding a disciplinary hearing some two years [after the meeting on 4 June 2018] with the claimant being unable to work in the meantime; 199.2. removing the claimant’s profile from the respondent’s website during his suspension (until 5 October 2020) despite him still being an employee; and 199.3. placing an advert, purportedly being the claimant’s job, on its job portal just prior to the claimant’s internal disciplinary hearing.[200]There are three parts to the first allegation (issue 19.8.1): the exclusion, the holding of the disciplinary hearing and the question of delay. There is no dispute that the respondent held a disciplinary hearing in September 2020 and that the claimant was excluded from work from August 2018 until the outcome of the disciplinary hearing. Therefore, the detrimental treatment happened broadly as alleged by the claimant. We have found that he made a protected disclosure on 4 June 2018.[201]Under section 48, it is for the respondent to show the ground on which the decisions to exclude and to hold a disciplinary hearing were made. We have to consider whether the treatment was done ‘on the ground that’ the claimant has made a protected disclosure, that is whether the protected disclosure materially influenced (in the sense of being more than a trivial influence) the exclusion of the claimant and the holding of a disciplinary hearing. This requires examination of the thought processes of the person who carried out the alleged detrimental treatment. Case Number: 3300119/2021 (RJR) Page 33 of 45[202]The decisions to exclude the claimant and to hold a disciplinary hearing were taken by Mr Ratnatunga, the case manager.[203]Exclusion: We have found that the decision to exclude the claimant was permitted by the respondent’s procedure and was made after taking advice from the PPA. We have found, based on the contemporaneous written documentation, that Mr Ratnatunga’s decision to exclude the claimant was because of the nature and scope of the allegations against him. There were five key allegations. Some of the allegations, and therefore part of the reason for the decision to exclude the claimant, were about the claimant’s surgical practice and working relationships. These were serious allegations supported by evidence. It was clearly appropriate that they be properly considered. These allegations led to a decision that the claimant should be excluded for patient safety. That part of the reasoning which led to the decision to exclude was not related in any way to the protected disclosure made by the claimant on 4 June 2018.[204]Another part of the decision to exclude was the allegation which concerned the meeting on 4 June 2018 and the need to protect other employees and assist the investigation. We have to scrutinise this aspect of the respondent’s decision very carefully, because the allegation was linked to the occasion on which the claimant made a protected disclosure.[205]We are satisfied that the respondent has shown that this allegation was about the claimant’s behaviour at the meeting, specifically that the way he questioned his colleague about his expertise may have amounted to harassment and bullying. The behaviour occurred in the context of the claimant’s protected disclosure, but the protected disclosure was not the reason (or a reason) for the allegation being made. The allegation was about the manner in which the claimant put his questions to his colleague. That was separable from the protected disclosure in itself. The allegation was included in the investigation because colleagues present at the meeting had raised concerns with senior managers about the claimant’s behaviour at the meeting. There were genuine concerns about how the claimant had spoken to his colleague. The allegation would not have been made if the claimant had raised his concerns in a different manner, without raising his voice and repeatedly questioning his colleague for a prolonged period.[206]Therefore, although one of the allegations which formed the basis of the decision to exclude the claimant concerned the claimant’s behaviour at the meeting on 4 June 2018 at which the claimant made a protected disclosure, the allegation was about how the claimant treated his colleague (his conduct), not what he was saying (his disclosure). The decision to exclude him was not materially (or in any sense) influenced by the protected disclosure itself.[207]Holding a disciplinary hearing: We reach the same conclusions about Mr Ratnatunga’s decision that the allegations should be referred to a disciplinary hearing. This decision was based on the conclusions of the two disciplinary investigations. A number of allegations were being Case Number: 3300119/2021 (RJR) Page 34 of 45 considered. Both investigations found evidence in support of some of the allegations against the claimant. Mr Ratnatunga considered that these should be referred to a disciplinary hearing.[208]Mr Milford’s conclusions about the allegations about the meeting on 4 June 2018 concerned the question of whether the claimant bullied his colleague at the meeting. He was not considering the protected disclosure. The decision to hold a disciplinary hearing to hear the allegations against the claimant was not made on the ground of the claimant’s protected disclosure. The protected disclosure did not materially influence that decision. It was the claimant’s conduct towards his colleague at the meeting which was the reason for Mr Milford’s conclusion, not the disclosure itself.[209]The decision to hold a disciplinary hearing was taken because various allegations had been raised against the claimant and investigated, and evidence in support of some of them had been found. We are satisfied that the decision to proceed to a disciplinary hearing was in no way retaliation by the respondent for the protected disclosure the claimant made at the meeting on 4 June 2018.[210]Delay: We have found that the disciplinary process to which the claimant was subject took a long time. The disciplinary hearing in September 2020 was over two years after the meeting in June 2018 and over two years after the claimant was excluded from work in August 2018. A number of factors contributed to the delay. These included the scope and complexity of the investigation, the need to obtain an independent expert report (and this being identified after the provisional investigation report was produced), the claimant’s request for more time to prepare for the hearing, the halt on all internal matters at the start of the Covid-19 pandemic and the need to appoint a new panel chair. The delay was not on the ground of the claimant’s protected disclosure. We are satisfied that the respondent did not delay the process for that reason.[211]Therefore, the complaint of protected disclosure detriment in respect of issue 19.8.1, the exclusion, disciplinary hearing and the delay, fails. In summary, it was the way the claimant behaved towards his colleague at the meeting on 4 June 2018 which was the reason for the allegation against him and which (together with other unrelated allegations) was the reason for the decision that he should be excluded and that there should be a disciplinary hearing. The claimant’s behaviour at the meeting was separable from the protected disclosure itself.[212]Decision to dismiss: After he was reinstated on appeal, the claimant withdrew his complaint of unfair dismissal in relation to the disciplinary panel’s decision to dismiss. The question of whether the dismissal by the disciplinary panel was because of his protected disclosure was not an issue for us. If it had been, we would have reached the same conclusion as in the complaint of detriment in issue 19.8.1. We accept that the panel’s concern about the 4 June 2018 meeting was about how the claimant had spoken to his colleague, not about what he had said. Again, we accept that Case Number: 3300119/2021 (RJR) Page 35 of 45 the manner in which the claimant addressed his concerns to his colleague is separable from what he was saying.[213]Website profile: As to the removal of the claimant’s profile from the respondent’s website during his exclusion, we have found that this was nothing to do with the concerns he raised at the MDT meeting on 4 June 2018. We found that it was a genuine mistake by someone who was not aware of the claimant’s protected disclosure. The removal of the claimant’s website profile was not on the ground of, or influenced in any way by, the claimant’s protected disclosure.[214]Job adverts: As to the placing of recruitment adverts prior to the claimant’s internal disciplinary hearing, we have found that neither of the adverts were for the claimant’s job. The respondent was not trying to replace the claimant or prejudging the outcome of his disciplinary hearing. The placing of these two adverts for jobs which were within the service but not the claimant’s role had nothing to do with the claimant’s protected disclosure.[215]The three complaints of protected disclosure detriment fail for these[216]The following elements are required for a constructive dismissal to be made out: 216.1. the respondent fundamentally breached the claimant’s contract of employment; 216.2. the claimant resigned in response to the breach(es); 216.3. the claimant resigned without affirming the contract by delay or by other conduct.[217]The claimant relies on four aspects of the respondent’s treatment of him post-reinstatement by the appeal panel which he says breached the implied term of trust and confidence. These are set out in issues 5.1 to 5.4 as amended by consent at the start of the hearing: 217.1. from 16 July 2021 to 11 December 2022 the respondent did not engage meaningfully with the claimant to facilitate his return to work because it did not grant the claimant's request for an independent investigation to be undertaken into the circumstances which resulted in his suspension and dismissal before he returned to work. The claimant sought an independent investigation because he did not feel his position would be safe particularly because the employees who dismissed him remained in position and were arguing that trust and confidence remained intact when they had previously argued that it was irreconcilably broken; 217.2. Professor Pandit and Dr Sykes argued over the course of November 2021 and 2022 that the claimant's concerns, inclusive of the alleged protected disclosure on 4 June 2018, had been addressed in the claimant's appeal hearing which was untrue. The Case Number: 3300119/2021 (RJR) Page 36 of 45 claimant contends that he was entirely justified in raising concerns as to how his return would be managed, and how his concerns as to his victimisation and disclosures as to patient safety would be appropriately addressed by the respondent, given his two year suspension, his dismissal and subsequent reinstatement; 217.3. the claimant was reinstated on 16 July 2021, but it was not until 15 September 2021 that the respondent made a payment of back pay, and this was only following a letter from the claimant's solicitors dated 24 August 2021; 217.4. As a result of the respondent’s repeated failure to address the claimant’s concerns, going back to his reinstatement of July 2021, in December 2022 matters came to a head when Dr Sykes wrote to the claimant on 17 October 2022. In her email, Dr Sykes requested information surrounding alternative employment the claimant had secured in Italy at the time of the appeal process, reiterated that the claimant could raise complaints via the respondent's internal policies (something he had repeatedly done to no avail), and suggested that the chief people officer Terry Roberts would handle these complaints which was a conflict of interest because he had sat on the panel which had dismissed the claimant in October 2020. Subsequent correspondence sought to assert that the claimant had not done enough to facilitate his return to work, which was simply not borne out by the correspondence.[218]In summary, the claimant relies on the following conduct by the respondent: 218.1. between 16 July 2021 and 15 September 2021, the delay in paying his back pay; 218.2. between 16 July 2021 and 11 December 2022, the failure to grant the claimant’s request for an independent investigation into the circumstances which resulted in his suspension and dismissal; 218.3. over the course of November 2021 and 2022, Professor Pandit and Dr Sykes arguing that the claimant's concerns, inclusive of the alleged protected disclosure on 4 June 2018, had been addressed in the claimant's appeal hearing; 218.4. on 17 October 2022, Dr Sykes’ email requesting information about the claimant’s employment in Italy.[219]We have followed the stepped approach set out in Kaur.[220]The ‘subsequent correspondence’ referred to in issue 5.4 is Dr Sykes’ email dated 21 December 2022. As this post-dated the claimant’s resignation on 11 December 2022, the most recent act on the part of the respondent which the claimant says caused, or triggered, the resignation was Dr Sykes’ email of 17 October 2022.[221]The claimant did not reply to Dr Sykes’ email until 11 December 2022. He did not do anything which affirmed the employment in the period between 17 October 2022 and 11 December 2022. Although there was a long delay Case Number: 3300119/2021 (RJR) Page 37 of 45 between Dr Sykes’ email and the claimant’s response, in the context of the lengthy discussions which had been ongoing between the claimant and the respondent about his return, the delay in itself did not amount to an affirmation of the contract by the claimant.[222]We therefore consider whether Dr Sykes’ email of 17 October 2022 was, by itself, a repudiatory breach of contract, that is a breach of the implied term of trust and confidence. That requires us to consider whether the email, viewed objectively, was conduct which, without reasonable and proper cause, was calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee.[223]There was reasonable and proper cause for Dr Sykes to ask in her email of 17 October 2022 that the claimant reply to the questions she had asked previously in her email of 18 August 2022 about where he was working and how he was planning to return to his full-time duties with the trust while working full-time for another organisation. Those were reasonable and proper questions for her to ask in the context of the discussions about the claimant’s return to work. The information sought was relevant to the plans being put together by the respondent and the PPA for the claimant to return to his clinical practice. The respondent needed to understand what work the claimant had been doing and where he had been working, in order to confirm the information he had given and finalise the plan for him to return to clinical practice. It was also reasonable and proper to ask what the claimant proposed to do about the fact that he had two full-time jobs. That was clearly highly relevant to the arrangements the respondent was making for the claimant to return to work.[224]Dr Sykes’ questions were asked to assist with the return to work and the rebuilding of the working relationship after the reinstatement. They were not calculated or likely to destroy or seriously damage the employment relationship. Further, in her email Dr Sykes did not refuse to grant the claimant an independent investigation. She said it would not be appropriate to reopen those matters which had already been considered at the appeal hearing, and she pointed out that the claimant had not raised any other concerns via the respondent’s grievance or dignity at work procedures. She ended by urging the claimant to engage in a return-towork plan/discussions. Overall, her email did not amount to conduct which was calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee.[225]We conclude that Dr Sykes’ email did not in itself breach the implied term. We go on to consider whether it was nevertheless a part of a course of conduct comprising several acts and/or omissions which, viewed cumulatively, amounted to a breach of the implied term of trust and confidence.[226]The claimant relies on the respondent’s failure between 16 July 2021 and 11 December 2022 to grant his request for an independent investigation as part of a cumulative course of conduct which breached the implied term. Case Number: 3300119/2021 (RJR) Page 38 of 45[227]We have not found that the respondent refused to grant that request. In summary, we found that the respondent invited the claimant to provide details of his concerns so that the respondent could consider how best to investigate them, but the claimant failed to do so. Our findings were: 227.1. At the first return to work meeting, the claimant said he wanted the circumstances of the investigation against him to be reviewed, and he agreed to provide more details to Ms Stanfield; 227.2. By the second return to work meeting, the claimant had not provided any details, and the investigation he was seeking had expanded to include allegations of racism, discrimination, undermining behaviours, victimisation and alienation over a 10 year period. Professor Cunningham told the claimant that for his concerns to be addressed, they would need to be captured in a grievance document; 227.3. After discussions at the second meeting about the overlap with the employment tribunal complaint, Professor Pandit told the claimant she understood his concerns to be substantially linked to the employment tribunal claim and said they would therefore be independently determined through that route. The claimant said that he expected the respondent to run an investigation through a third party of the issues that arose over 10 years at the respondent and during the capability and conduct investigation, hearing and appeal hearing. This partly overlapped with the disciplinary procedures; 227.4. The claimant did not provide details of his other concerns. In his discussions with the mediator, the scope of the investigation he was seeking expanded further, to include a requirement that people take responsibility for the untruths that had been told against him; 227.5. When the claimant told Dr Sykes he thought the respondent had been unresponsive to his concerns, Dr Sykes reminded the claimant that he had not raised any concerns in line with the respondent’s policies and procedures, either as an individual grievance or a dignity at work complaint.[228]The respondent made clear to the claimant throughout the return to work discussions that his concerns would have to be put in writing, for example as a grievance or under the dignity at work procedure, for them to be investigated. There was reasonable and proper cause for that request. It would not have been possible for the respondent to investigate a history of concerns over a 10 year period without the claimant providing details about what he wanted to be investigated. The claimant failed to do this.[229]We have found that at times over the course of November 2021 and 2022, Professor Pandit and Dr Sykes said it would not be appropriate to reconsider matters which had already been addressed in the claimant's appeal hearing. We accept that it was reasonable and proper for the respondent to decline to reopen those matters. They had already been considered in detail by the appeal panel. However, Professor Pandit and Case Number: 3300119/2021 (RJR) Page 39 of 45 Dr Sykes did not say that the claimant could not raise any other concerns. The claimant was invited to put his concerns in writing but did not do so.[230]The respondent’s request that the written grievance be directed to Mr Roberts or Ms Stanfield did not breach the implied term. The respondent had reasonable and proper cause to ask the claimant to direct a written grievance to its senior human resources managers. They did not say that the investigation would be carried out by them. The claimant was invited to copy his concerns to Professor Pandit, Professor Cunningham and the PPA representative.[231]We have concluded that there was reasonable and proper cause for the respondent’s approach to the claimant’s requests for an investigation into his concerns as part of the return-to-work arrangements. It was not conduct which was calculated or likely to destroy or seriously damage the relationship of trust and confidence.[232]The claimant also relies as part of a cumulative course of conduct breaching the implied term on the delay in paying his backpay on reinstatement. The two-month delay was not a breach of the implied term. Viewed objectively, it is obvious that calculating backpay for a 10 month period including variable pay would be administratively complicated. The claimant was aware from 1 September 2021 of the steps the respondent was taking to calculate and arrange his backpay.[233]There was a reasonable and proper cause for the steps the respondent took to calculate and pay backpay to the claimant. In the circumstances, the delay was not calculated or likely to destroy or seriously damage the relationship of trust and confidence.[234]Overall, there was no breach of the implied term by the respondent in relation to the backpay and return-to-work arrangements for the claimant, either individually or cumulatively as part of a course of conduct. The respondent’s conduct was not conduct which viewed objectively was, without reasonable and proper cause, calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee.[235]Therefore the claimant resigned and was not constructively dismissed under section 95(1)(c).[236]Lastly on the question of constructive dismissal, based on our findings about the evidence we heard and read, we would have concluded in relation to the reason for resignation that the reason for the claimant’s resignation was that he did not want to return to work with the respondent. We say this because: 236.1. there were very lengthy delays in the claimant replying to the respondent and completing actions he was asked to complete in the course of the return-to-work discussions; Case Number: 3300119/2021 (RJR) Page 40 of 45 236.2. it felt unacceptable to the claimant that he would be subject for 12 months after his return to work to a final warning on the bullying incident, and the sanction determined by the appeal panel could not itself be the subject of any further investigation or review; 236.3. at the time of his reinstatement on appeal in July 2021, the claimant had just been appointed to the role of director at the hospital in Padua and in June 2022 during the course of the return-to-work discussions with the respondent, he was appointed as a professor at Padua university.[237]We have concluded that the respondent’s conduct post-reinstatement was not the (or a) reason for the claimant’s resignation. We have concluded that it is more likely that from the time of his reinstatement in July 2021 the claimant was waiting to see how things would develop with his new role in Padua, and that by December 2022 he had decided to stay there.[238]As we have concluded that the claimant resigned and was not dismissed, the complaint of unfair dismissal fails. Direct race discrimination[239]The agreed list of issues says that the basis for this claim is the claimant’s Italian nationality.[240]The claimant makes three allegations of unfavourable treatment beause of race. These are in issues 34.1 to 34.3 of the list of issues as follows: 240.1. The respondent notified him of his dismissal in a letter dated 2 October 2020; 240.2. "unnamed colo-rectal surgeons" referred to him as "Italian mafia". The Claimant alleges that his colleagues [referred to in our findings at paragraphs 164.1 to 164.3 above] relayed to him that he was known by this moniker at various points throughout his employment and prior to his suspension, they repeated those allegations in writing in their witness statements to the respondent and orally at the internal disciplinary hearing at which those witness statements were adopted. The claimant further alleges that those statements were not challenged, nor was a finding to the contrary made by the panel in respect of them (see further information served on 23 February 2022) 240.3. [In a statement to the disciplinary investigation and at the disciplinary hearing, Dr Trent] stated that the claimant had deliberately misled the MDT [in a meeting on 16 October 2017].[241]Comments about nationality: we have started with the second allegation. There was insufficient evidence to support this complaint. The claimant and his witnesses have not named any of the people they say made these comments. Some of the allegations have been made very late in proceedings, for example in Professor Vaidya’s witness statement. Case Number: 3300119/2021 (RJR) Page 41 of 45[242]Even if the claimant had said who was alleged to have made the comments, these complaints are significantly out of time. The claimant was aware of some of the comments before March 2015 and of others before August 2018. That means that some of these complaints have been brought over 5 years out of time and others over 2 years out of time. Those are very significant delays in the context of a claim which has a three-month time limit. The claimant did not explain why he had not brought these complaints before. The prejudice to the respondent from having to defend stale complaints considerably outweighs the prejudice to the claimant from not being able to pursue them. We conclude that it is not just and equitable to allow these complaints to proceed.[243]The complaint about comments based on the claimant’s nationality fails.[244]Dismissal on 2 October 2020: the claimant says that his dismissal by the disciplinary panel was because of his nationality. In the list of issues this was expressed as less favourable treatment because of being Italian, but in his evidence the claimant spoke about less favourable treatment because of not being British.[245]The claimant invited us to find that he was subject to more reviews and investigations than a British surgeon would have been. However, the reviews were attempts to resolve wider issues in the service, as recognised later by the RCOG, and were not focused on the claimant alone. The wider issues had existed for some time, before the claimant joined the respondent. Further, we have found that issues which were raised about the claimant were because of differences in training and approach between the UK and other centres, such as centres in Germany where the claimant trained, not because of the claimant’s nationality. Colleagues raised genuine concerns and would have done so whatever the claimant’s nationality. A British surgeon with the same clinical training and approach as the claimant would have been subject to the same treatment.[246]The claimant also pointed to his colleague who was also the subject of a complaint about his conduct at the MDT meeting on 4 June 2018 but who did not face disciplinary proceedings. His circumstances were very different to the claimant’s, as the complaint about him concerned his lack of action over the claimant’s conduct, not his conduct in itself.[247]We have not found any evidence from which we could conclude that the claimant was dismissed because of being Italian or because of not being British. The burden does not shift to the respondent on this issue.[248]If we had found that the burden had shifted to the respondent, we would have accepted that the claimant’s nationality did not play any part in the decision of the disciplinary panel to dismiss the claimant on 2 October 2020. The disciplinary panel reached its decision on the basis of two detailed investigations and after a lengthy hearing. It carefully considered the allegations against the claimant and reached conclusions based on the evidence it heard. It concluded that the scope of allegations which it found Case Number: 3300119/2021 (RJR) Page 42 of 45 proven against the claimant were such that dismissal for some other substantial reason was the appropriate sanction. The fact that the appeal panel reached a different decision to the disciplinary panel does not mean that the first decision was discriminatory because of race. The difference was largely because the appeal panel took a different view to the disciplinary panel of the allegations about clinical practice. The views of both were based on the opinion of external experts. The decision to dismiss was not in any way because of the claimant’s nationality.[249]The MDT meeting of 16 October 2017: we have not found any facts from which we could conclude that nationality played any part in Dr Trent’s allegation about this meeting. This means that the burden does not shift to the respondent on this issue.[250]If we had found that the burden shifted, we would have accepted that the respondent had met the burden. We have found that Dr Trent genuinely believed that the claimant had misled the MDT at this meeting. Her belief was based on a mishearing or a misunderstanding, not the claimant’s nationality. The wider concerns Dr Trent raised about the claimant were based on a genuine difference of clinical view, not the claimant’ nationality.[251]All the complaints of direct race discrimination fail for these reasons. The claim in the round[252]This claim has arisen against a background of longstanding problems and difficult working relationships, as found by the RCOG review. There were clinical, philosophical and personality differences. This made for a difficult working environment. Problems persisted despite a series of action plans and reviews, both internal and external.[253]The claimant criticises many aspects of the respondent’s treatment of him; we accept that some could have been dealt with differently. In particular, looking back, it seems that the respondent may not have appreciated that recruiting the claimant to bring a new surgical skillset and undertake more extensive surgery could cause issues in the context of the respondent’s more multi-disciplinary approach and ways of working. The series of reviews into the wider issues within the service failed to resolve things. Removing the claimant as clinical lead for the service but asking him to stay on in the role indefinitely while his replacement was recruited would seem to have been unlikely to improve a difficult workplace dynamic. Finally, given the way in which matters developed at the MDT meeting on 4 June 2018, with hindsight it would have been better to have dealt with the claimant’s concerns outside that meeting, as the claimant tried to do before the meeting.[254]We heard a lot of evidence about these matters and the wider background. Ultimately, not all of it was relevant to decide the rather narrower issues before us. As far as those issues are concerned, we are satisfied that, while some aspects could have been dealt with differently, the respondent’s treatment of the claimant was not because of the claimant’s Case Number: 3300119/2021 (RJR) Page 43 of 45 protected disclosure or his nationality, and that the respondent’s attempts to facilitate the claimant’s return to work after his reinstatement did not breach the implied term of trust and confidence.[255]We express our hope that our judgment assists to bring a close to these long running issues and goes some way to helping those involved to move on. Hearing on 2 October 2025[256]The provisional remedy hearing set for 2 October 2025 will be cancelled unless, within 28 days of this judgment being sent to the parties, either party makes any application which the tribunal decides should be dealt with at that hearing. Approved by: