Dr C Agbo v North West Anglia NHS Foundation Trust: 3313755/2023
EMPLOYMENT TRIBUNALS
Case No 3313755/2023
Between
Dr C AgboClaimantNorth West Anglia NHS Foundation TrustRespondent
Before
Employment Judge FrenchDate 23 March 2026
JUDGMENT
[1]By concession, the complaint of unfair dismissal succeeds. If the parties are unable to agree remedy, there shall be a separate remedy hearing listed as outlined below.[2]The complaint of direct race discrimination is not well-founded and is dismissed.
REASONS
[1]This is a claim for unfair dismissal and race discrimination bought by way of claim form dated 1 December 2023.[2]The matter had originally been listed for 8 days but due to availability of the Judge was reduced to 5 days and took place by CVP on 11 to 17 November 2025. It was not possible to conclude the case on that occasion and the case was adjourned for a further 3 days namely 12 to 14 January 2026.[3]It was anticipated that on that occasion the Tribunal would hear the remainder of Dr Gardner’s evidence and have time to deliberate and give oral Judgment.[4]However, owing to an issue that arose in relation to disclosure, which is not repeated for the purposes of this Judgment, this was not possible. As such the panel re-convened without the parties on 10 and 11 February 2026 to deliberate. It was not possible to conclude our deliberations on that occasion and the panel therefore re-convened on 19 and 20 March 2026.[5]This Judgment follows as soon as possible thereafter. Evidence[6]The Tribunal had a main hearing bundle which by the end of the final day consisted of 1344 pages. This was updated on several occasions owing to additional disclosure.[7]The Tribunal also had an additional bundle prepared by the claimant consisting of 126 pages.[8]We had a witness statement bundle consisting of 118 pages. For the claimant we heard evidence from the claimant himself, the claimant’s wife Eunice Agbo, Dr David Ward (the claimant’s line manager), Dr Amaka Achara (colleague) and Pastor Idrid Oyinlade.[9]For the respondent we heard from Dr Dhakshinamoorthyy Viyayasankar (Divisional Director Urgent & Emergency Care), Dr Callum Gardner (Chief Medical officer), Louise Tibbert (Chief People Officer) and Luke De Lord (Programme Director). Mandy Ward (Associate Director of Communications and Engagement) had produced a witness statement relevant to issue 7d but this was withdrawn by the claimant and as such it was not necessary to hear evidence from her by way of cross examination.[10]We also had written submissions from both parties' representatives which were supplemented by oral submissions, and we had regard to the same.
The issues
[11]The issues before the Tribunal are set out at page 50 of the bundle as identified in the case management order of Employment Judge Brown dated 13 May 2024. At the outset of the hearing there was some suggestion by the claimant that the issues were not accurate and initially it was suggested by the claimant that he sought to make an amendment application. Ultimately this was not pursued, the claimant confirming that the matters identified were evidential.[12]The issues, adopting the same numbering in the list of issues are as follows: Heads of complaint 1. The Claimant brings complaints of:a. unfair dismissal (section 98 Employment Rights Act 1996 (“ERA”)); andb. direct race discrimination Jurisdiction 2. Were the Claimant’s discrimination complaints presented within the time limits set out in section 123 EqA? 3. The Tribunal will decide: a. Was the claim made to the Tribunal within three months (plus early conciliation extension) of the acts complained of? Having regard to the start of ACAS early conciliation on 21 September 2023, any matter prior to 22 June 2023 is on the face of out of time. b. In relation to any complaints which are out of time, do they form part of conduct extending over a period ending on or after 22 June 2023?c. If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?d. If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide: i. Why the complaints were not made in time; ii. Whether it would be just and equitable in all the circumstances to extend time. Unfair dismissal (ERA: section 98) 4. Does the respondent prove that the Claimant was dismissed for some other substantial reason of a kind such as to justify the Claimant’s dismissal, namely that he had not obtained relevant qualifications. 5. If so (the burden being neutral), did the Respondent act reasonably or unreasonably in the circumstances (including the size and administrative resources of the Respondent) in treating the reason as a sufficient reason to dismiss the Claimant? Race discrimination 6. The Claimant describes his race for the purposes of his claim as black, African, and of Nigerian nationality. 7. Did the Respondent treat the Claimant less favourably because of race than it treated or would treat the comparator(s) indicated below in the following alleged respects: a. Dr Gardner on 16 December 2022 deciding to terminate the Claimant’s locum contract (hypothetical comparator); b. Dr Gardner on 30 January 2023 terminating the Claimant’s strategy and transformation clinical lead role with effect from end of January 2023 (the Claimant compares himself to: i. Laura Stent ii. Pallav (male) iii. Amarait (male) c. Dr Gardner on 21 April 2023 not shortlisting the Claimant for the vacancy of consultant nephrologist post (comparator: Katie Marshal) d. Dr Gardner on 4 July 2023 failing to announce on the Trust’s website the Claimant’s award for the 2023 Top 100 Most Influential People of African Descent in the World - Dr Gardner (hypothetical comparator).e. Dr Gardner on 4 July 2023 taking the Claimant off the Trust’s consultant list (despite the Claimant still working for the Trust on a bank contract) (comparator: Dr Walsh).f. Dr Gardner on 11 September 2023 assigning Louise Tibbert to the selection panel for the Consultant Nephrologist post (hypothetical comparator). Remedy 8. If the Claimant succeeds in whole or in part, what remedy (including what, if any, recommendations) should be awarded?[13]During the course of the hearing, the claimant withdrew complaints 7b and 7d. As such the Tribunal has not gone on to determine the same.[14]The respondent also conceded that the claimant’s dismissal was procedurally unfair and the Tribunal therefore have not considered the same. We have however looked at the reason for dismissal namely whether it was substantively unfair and in respect of the race discrimination complaint. Fact finding[15]In December 2017, the claimant commenced work at the Trust as a Locum Consultant in Renal and Acute Medicine as an agency worker. On 1 March 2021, he moved to an NHS staff bank contract with the respondent. It is understood that a bank contract helps to manage staffing needs and provides no guaranteed hours of work. The claimant’s bank contract with the respondent was terminated on 26 August 2023.[16]The respondent's position was that a bank contract did not make the claimant an employee of the trust. The response to the claim however did not dispute that the claimant had 2 years' service in which to bring a complaint of unfair dismissal. The respondent conceded that by virtue of his locum contracts which commenced on 1 July 2021 and terminated on 30 June 2023 that the claimant would have 2 years qualifying service such that he could bring a complaint of unfair dismissal. In the course of the hearing the respondent accepted that the claimant’s dismissal was procedurally unfair because had the Trust appreciated that Dr Agbo had reached 2 years of service on 30 June 2023 itself, it is likely that the Trust would have extended Dr Agbo’s contract for a further period in which he would have obtained his CESR accreditation.[17]On 6 May 2021, the claimant was interviewed by the Trust for a substantive consultant post in acute medicine. At the time, the claimant was not registered on the GMC Specialist Register and informed the respondent’s interview panel that he had applied for registration on the specialist register via the Certificate of Completion of Training (“CESR “) pathway.[18]The following day, 7 May 2021, the Trust made a conditional offer of appointment to the claimant for the substantive post of consultant in the acute medicine department of Hinchingbrooke hospital, where the claimant had worked since 2017. The condition was that the claimant would be on a fixed term locum contract until he achieved registration on the GMC specialist register via the CESR pathway.[19]The Tribunal notes the offer letter page 95 refers to the fact it is a conditional offer. Page 365 also sets out that the claimant is being offered a fixed term locum appointment because he is not yet on the specialist register. The email attaching the contract at page 101 refers to it being ‘your Locum Contract until you receive your CCT then I will send you the Substantive contract’. The contract itself starts at page 104 and is for a fixed term of 12 months commencing 1 July 2021 and ending 30 June 2022.[20]At page 135 Dr Ward sets out his understanding of the offer of employment stating ‘Chris Agbo will switch from locum to substantive automatically once he has CCT. He already went through the formal interview process and that was agreed.’ The Tribunal notes that he was part of the interview panel, and this position is confirmed in his witness statement at paragraph 11.[21]The Tribunal conclude that at the time that the claimant is offered the role, there are no express terms agreed as to a date by which he was expected to get his specialist registration because there is no evidence of the same.[22]We note at page 366 however, that in response to a query that arose about the claimant having a fleet car, Ms Andrea Chamberlain (medical recruitment team leader) stated that ‘the post was offered subject to CCT and confirmation of being added to the GMC Specialist register so therefore until this has been confirmed, the post will remain as locum. They should have been within 6 months of this to be offered the permanent post.’ That is supportive of the fact that there was an expectation that the specialist registration would have been obtained within 6 months of the offer.[23]The Tribunal also notes that this pre-dates Dr Gardner being appointed as Chief Medical officer because it is dated 7 January 2022. The email goes on to say ‘we also keep them as locum to encourage them to get the GMC in place, we aren’t able to leave it like this permanently so it might be worth seeing what the delays are and if there is anything that can be done to help.’ That would support that even before Dr Gardner’s appointment a locum contract could not be in place indefinitely.[24]That position is also supported at page 704 where Dr Okebadejo’s position (who sat on the interview panel), as articulated in the grievance interview was that “at the time, we would have said this is a fixed term, one year locum but with a view to substantive appointment if you can get on the specialist register”. Again, that suggests that the time period in which to obtain specialist registration was not indefinite.[25]Dr Rege was also on the interview panel and when asked about the type of contract offered to the claimant post interview she confirmed that “he did not have his CESR by that time so, I think we gave him a provisional 1 year contract, pending his completion of CESR”. In answer to the question about the length of time in which it was anticipated Dr Agbo would obtain his CESR she stated “within 1 year” outlined on page 737.[26]Therefore, although no express terms were stated we conclude that there was a general expectation of specialist registration within 1 year of the offer which is why a fixed term locum contract of one year was offered, albeit recognise that there is flexibility and a possibility of extension because this is what ultimately happened.[27]Subsequently his fixed term locum contract was extended by a period of 1 year as outlined at page 154. The Tribunal does not consider that this indicates that the locum contract would automatically be renewed each year on an indefinite basis because this is not reflected in the evidence above. There is a process of renewal and another fixed term offered. This contract was terminated on 30 June 2023. The termination letter is at page 288 and is dated 20 March 2023.[28]The respondent’s position is that when Dr Gardner took over as Chief Medical Officer in September 2022, in discussion with Louise Tibbert (chief people officer) he instituted a review of the use of locum consultant contracts for those who did not have specialist registration. It is not disputed that it is pre-requisite for a substantive consultant level appointment for a person to be on the GMC’s specialist register. It was agreed by Dr Gardner and Ms Tibbert, that locum consultant contracts would not extend beyond 2 years but would instead terminate at the end of the fixed term if the CESR/ CCT had not been obtained, subject to discussions regarding alternative employment, for example a specialist role.[29]The Tribunal notes the evidence of Louise Tibbert in this regard at paragraph 3 of her witness statement where she states that the locum situation had not been properly monitored. Together with the evidence of page 366 the Tribunal conclude that even prior to Dr Gardner’s appointment there was a practise of appointment to substantive roles subject to specialist registration without subsequent monitoring of when this was obtained.[30]Dr Gardner introduced a two-year period for this to be obtained, and we accept his evidence that this was to ensure that those performing a role at consultant level as a locum had the appropriate specialist registration. We consider this a matter of common sense in circumstances where Dr Agbo did not dispute that specialist registration was required for the role of consultant and as such it would be at odds if a locum could continue for an extended period of time without this qualification. This is also in line with the general expectation of when specialist registration should be obtained as identified above.[31]It is accepted that this was not a written policy. The Tribunal conclude it was a practise to be applied moving forwards. The claimant’s position is that this was a practise introduced to engineer the termination of his employment and/or that Dr Gardner had a discretion to extend this beyond 2 years which he did for others but chose not to do so for the claimant.[32]In that regard the Tribunal notes the correspondence at pages 149 to 151 a request by Andrea Chamberlain dated 16 September 2022 requesting a report on all locum consultants, with details of start date, end date and speciality which would support that it was a Trust wide practise. Those documents are consistent with the evidence of Lousie Tibbert in her witness statement paragraphs 3 and 4.[33]The Tribunal notes page 145 in which Dr Gardner sets out this position on the spreadsheets provided as a result and by 12 October 2022 his position was “moving forward, I would like us to routinely be out to advert at the 6 month point into a 12 month contract (or the 18 month were we to agree to extend for a second year (minus 1 day); to track all fixed term consultant locum posts in the Trust; and for no one to go over the 2 year point without my approval please”[34]The Tribunal also notes at page 147 where there is reference to moving those consultants over to a specialist role. It is also clear from that email that a number of consultants are listed and discussed, and it does not just apply to Dr Agbo.[35]The Tribunal notes that in further discussions around this practise, Dr Gardner states on page 157 that there needs to be consistency and it will apply to all staff. The Tribunal also notes page 164 where Charlotte Lock indicates that they need to be consistent across the Trust.[36]Following on from the additional disclosure ordered to be provided regarding the position of locum consultants considered at the Medical Control Board who were in post on 30 June 2025, as a result of answers given by Dr Gardner in cross examination, we conclude that it is apparent that the Trust has indeed maintained this policy two years after the event. Although this does not relate to the period in which we are concerned, the claimant sought this information by way of additional disclosure, and it was before the Tribunal. Although not determinative to this claim given the time period, it does support that this practise continued after the claimant’s termination. As such on the evidence we conclude that this was a trust wide policy and not one that was engineered to apply to Dr Agbo alone.[37]In relation to the additional disclosure provided at the part heard hearing, the Tribunal does not go through this on a line by line basis because we consider it disproportionate to the issues in circumstances where it is not concerned with the same time period. We do make the observation that the doctor identified to go beyond the 2 year period and have their locum contract extended beyond 2 years is Dr NOP. That doctor's situation is dealt with in an email trail which starts at page 1338 and moves to page 1330. That is concerned with the time period of the claimant because it is in November 2022 but as identified on page 1336, he had already served 23 months employment and therefore any notice period would have taken him beyond the two year point in any event. As such that is a different situation to that of Dr Agbo and explains why the contract was extended because the 2 year point would have been attained through the notice period in any event.[38]The Tribunal further notes page 65 of the claimant's additional bundle in which he sets out a table of consultants that he says had their contracts extended beyond 2 years and is evidence of the difference in treatment that he experienced. The Tribunal does not go through this document on a line-by-line basis because we consider doing so is disproportionate to the issues to be determined in circumstances where the claimant himself accepted this document has limitations.[39]The Tribunal accepts that this document has limitations in terms of it supporting that position. Firstly, it does not take into account whether the contract had already been extended prior to Dr Gardner’s review of the position and implementation of the practise that locum contracts should not beyond the 2-year period where specialist registration is not obtained. The Tribunal acknowledge that there may have been one or two consultants who have slipped through the net and gone beyond the two-year period in circumstances as identified by Louise Tibbert namely there had not been a firm grasp on the issue. Dr Gardner also explained some had gone beyond 2 years prior to the review of the contracts or others were not identified within the initial review such that the 2 years had expired before those individuals were on their radar. We accept that explanation because it is entirely plausible given the size of the Trust and the evidence of Louise Tibbert that this had not previously been monitored. The Tribunal found Dr Gardner to be a credible witness who made appropriate concessions where required.[40]Secondly the document at page 65 of the claimant’s bundle doesn't indicate the type of contract that the consultant was on, and it is therefore possible that they were now in a specialist role or had reverted to a bank worker but with Dr Gardner still named as the responsible officer. It also does not take account of any breaks in employment and an individual returning after such a break, all of which were accepted by the claimant in cross examination.[41]Dr Gardner’s evidence on this table was that there were a number of people who had already acquired the two years' service prior to him joining the Trust or had been moved to a specialist contract and that is the reason for the longer length of service. This included the doctor known as Employee D who commenced work on 6 September 2021 and employee K who was employed from 21 March 2022 and Dr L who moved into specialist posts because they did not have the CESR.[42]Dr Gardner explained that Dr Z did not go past the two-year point either. It is understood she was employed as a locum consultant, when in 2024 she had been told she needed to move into a specialist role and resigned and left in April 2024. He explained that a few months later, she rejoined the Trust and moved into a specialist post and the Trust had supported her with her CESR profile and that is not reflected in the table at page 65.[43]Based on the claimant’s concession of the limitations of this document and Dr Gardners explanation of why some consultants may show a longer length of service as outlined, the Tribunal do not consider this to be conclusive evidence that non-Nigerians were kept on for longer than 2 years and the claimant was not.[44]The Tribunal also notes that of the consultants listed on page 65 are diverse in terms of race and ethnicity. The claimant’s position is that Dr Gardner was specifically discriminatory against black Nigerians. One of the reasons is said to be because of a comment made in 2018 about hating locums.[45]The claimant also says that it was only one other black Nigerian consultant on that table on page 65 that had their contract terminated at the 2-year point but based on our conclusions above we do not accept proposition given the limitations of the table, which the claimant accepts.[46]As to the events in 2018 the claimant states that he was approached by Dr Gardner who unprompted said to the claimant ‘I hate locums’. The claimant produced a witness statement from his wife Eunice Agbo who supported that at the time the claimant reported that this comment had been made.[47]This is also supported at page 698 paragraph 31 where Dr Gasau reports that when he met Dr Gardner, he said ‘I do not like locums’. Dr Achara also confirmed that she had been told by the claimant that this comment had been made and they had a discussion about it subsequently over lunch.[48]Dr Gardner denies that such a comment was made. On balance the Tribunal conclude that in light of the evidence this comment was made by Dr Gardner. It is reported by more than one person as a comment made by Dr Gardner and reported at the time by the claimant to others.[49]The Tribunal however consider that the mere fact that Dr Gardner made such a comment does not mean that it was linked to race. The term in itself is not inherently discriminatory. The claimant says it was also said to another Nigerian doctor namely Dr Gasau, but no evidence was produced to suggest it hadn't been said by Dr Gardner to other non-Nigerian locums. The Tribunal also considers that it is of note that the claimant does not report this as a complaint at any time. We consider that had the claimant believed this was linked to his race it would have been reported by him at the time. Further Dr Gasau at page 698 did not consider the remark to be discriminatory putting it down to wholly different reasons at paragraph 33. The Tribunal considers that the reasons advanced by Dr Gasau may be the reason it was said by Dr Gardner and that was the claimant’s interpretation at the time, hence he did not report it.[50]In relation to the claimant’s termination, the termination letter is at page 288 which confirms that the fixed term contract will come to an end and will not be renewed. It goes on to confirm that ‘This follows a review of Trust wide Locum Consultant positions, and that there has been a significant delay in you obtaining specialist registration despite a reasonable timeframe to achieve this being given when your fixed term contract commenced on 01 July 2021.’ The termination letter itself is dated 20 March 2023.[51]The Tribunal notes at page 244 is an email discussing termination of the fixed term contract without renewal because the claimant has not obtained his specialist registration. This supports that was the reason for the dismissal as does the dismissal letter itself. That email does go on to refer to the GMC investigations and questions the claimant’s probity, however claimant accepted that Dr Gardner was in a position whereby he had direct contact with the ELA as to the status of the ongoing investigations and others were not. It is therefore entirely plausible that he had additional information from the GMC about the progress of the investigations.[52]The Tribunal notes that page 188 is a letter from the GMC on 24 January 2022 indicating that the claimant has failed his specialist registration portfolio and page 204 sets out what is needed to pass and suggests 12-24 months for completion. Page 186 is an email sent by Dr Ward to Dr Gardner in January 2023 indicating that there is not much required to obtain specialist registration, and he thinks this be in place by the end of the fixed term contract. Dr Gardner at page 220 on 30 January 2023 states he does not agree with this and there is more to this than he has been led to believe (which we understand would relate to ongoing GMC investigations). That is supported by the fact that Dr Ward considered that both GMC investigations had by that point come to an end which is not correct and therefore Dr Gardner did hold a more accurate understanding.[53]As a matter of fact, the claimant obtains registration in July 2023 after his fixed term contract has ended.[54]In relation to the GMC investigations, the first of these was in relation to the submission of inaccurate documents within the application for specialist registration. Dr Rege was informed of this investigation on 7 September 2021, and we can see that at page 1016-1145. That investigation is concluded with no further action being taken against Dr Agbo as confirmed in a letter at page 315 dated 13 April 2023.[55]We can see at page 314 that was emailed to Dr Gardner by the GMC, and we know he has read this by at least by 15 April as he replies to the same at page 312. At time of the shortlisting on 21 April 2023 Dr Gardner would have therefore been aware of this email. In this email Dr Gardner queries which investigation has ended and suggests it is ‘highly concerning' and indicates that he would wish to appeal this decision. Dr Agbo forwards Dr Gardner a copy of that letter of 3 May 2023 at page 318.[56]The second GMC investigation concerned an allegation of human trafficking in which Dr Agbo was suggested to be involved through his international private medical business. We can see an email concerning this dated 30 June 2022 at page 1008 and practise conditions were placed on the claimant as a result. Dr Agbo confirmed in his evidence that the GMC investigation for this allegation remains ongoing at the current time.[57]Separately that investigation is investigated by the police who confirmed the allegations would not be proceeded with against Dr Agbo on 18 May 2023 at page 341. Dr Agbo informed Dr Gardner of this on 22 May 2023 on page 341. It is understood that others involved in this allegation were prosecuted on a criminal basis.[58]In relation to the GMC investigations the claimant criticised Dr Gardner in terms of a lack pastoral support. There is no separate complaint about a lack of pastoral support, but we do consider it goes to the issue of Dr Gardner’s mindset. In that regard we do note that Dr Gardner was reluctant to accept the decision of the GMC and as set out at page 312 indicated that he wished to appeal that decision. We conclude that that supports that Dr Gardner did not consider that Dr Agbo was innocent of the allegations and sought to prove the same. This is acknowledged in the subsequent grievance outcome at page 746 as follows: ‘Whilst it is not covered in the terms of reference it is clear from the statements that have been taken that Dr Callum Gardner has acknowledged in the course of the investigation that he did consider that you were guilty of the GMC allegations against you (being alleged organ trafficking and allegedly having made a fraudulent CESR application). Whilst the investigation has concluded that the evidence does not support unfair treatment, targeted hostility, bullying or race discrimination by Dr Gardner, based on the acknowledgement from Dr Gardner, there was the potential for bias on his part arising from his views regarding the GMC allegations.’[59]It is also supported by page 453 where Dr Ward considers that Dr Gardner had pre-judged the allegations and deemed him guilty.[60]It was also suggested through cross examination that Dr Gardner did not meet with the claimant. Specifically, an issue arose around a meeting that took place on or around 2 May 2023. There is no suggestion that the meeting was of any significance itself in terms of the issues to be determined but rather demonstrated the lack of support.[61]It was put to Dr Gardner that no meeting took place, and he was lying in this regard. We consider that this allegation is unfounded in circumstances where at page 318 the claimant emails Dr Gardner with a GMC letter and says, ‘as requested yesterday’. There is no written request for this document which would support it was requested in a meeting which did indeed take place on 2 May 2023. This is supported by a team's meeting calendar invite at page 1301 which sets out that meeting. We conclude that a meeting via teams took place on that day. In the same email at page 318 the claimant thanks Dr Gardner for the support which would also not suggest that he felt a lack of support.[62]Therefore, in assessing credibility between the two witnesses, we prefer the evidence of Dr Gardner, in circumstances where the claimant pursued this point which was unfounded on the documentary evidence. There is also a further issue on the claimant's credibility involving his assumption that Dr Gardner had been behind a Datix being raised by Katie Marshall which is addressed below.[63]In relation to the non-shortlisting of the claimant on 21 April 2023 there is an email from Dr Gardner on page 316 stating not to shortlist Dr Agbo so as a matter of fact he did not shortlist him. The reason for this as stated by Dr Gardner is he sets out in that email that the claimant had GMC undertakings and does not have their CCT.[64]The Tribunal understands that shortlisting is usually a panel decision and no one member would have overall authority to shortlist or not. We also understand that this usually takes place via the TRAC system. Dr Gardner’s evidence, was that he found that system cumbersome and to save time he therefore sent an email with his decision. We accept that explanation because it was supported by Louise Tibbert who said that sometimes emails were sent by way of shortlisting rather than the TRAC system.[65]We note that at the time of this decision Dr Gardner was aware that one of the GMC investigations had come to an end as outlined above and at page 312. At this time however the claimant was still subject to the police investigation and had the conditions on his practise in relation to the second allegation.[66]We also note Dr Kleeman at page 438 on 2 August 2023 where she states she was concerned as to the shortlisting process and felt that it had not been followed and goes on to state that she assumed that Dr Gardner knew more through his role as responsible officer and so did not challenge it.[67]As to the shortlisting criteria page 923 point 6 says must have a CCT or be within 6 months of obtaining this. Page 925 supports this and says must have specialist registration or be eligible for entry in the next 6 months. As of April 2023, the claimant did not have specialist registration, but we do consider he was eligible for entry within 6 months because we know he had submitted the requested information (set out at page 204), and a decision was awaited. We now know he gained that in July 2023 albeit accept this would not have been known at the time.[68]The Tribunal accept, as did the claimant in cross examination, that as responsible officer Dr Gardner was in a position with better access to what was going on at the GMC in terms of the professional standards matters compared with him or any other and was receiving updates from Mr Finn. This is supported by the evidence of Louise Tibbert who said Dr Gardner subsequently updated her. Dr Gardner’s evidence was also that he was in regular contact with the ELA Mr Finn.[69]Within the claimant’s additional bundle, we note page 23 an email from 23 March 2023 indicating that the claimant's application for specialist registration had been sent to assessors, and a decision was expected in 3 months. Subsequently on 23 June 2023 at page 26 there is a further letter from the GMC apologising for the delay. There is no evidence of the claimant having ever provided the respondent with these letters by way of update as to the status of his portfolio and specialist registration. As such we conclude that based on the direct contact Dr Gardner had with the GMC and the fact that the claimant did not bring this letter to the respondent's attention, Dr Gardner did not consider that the claimant was eligible for entry onto the specialist register within 6 months. It is also in the context of the ongoing GMC undertaking and police investigation which at that stage had not ended.[70]Dr Gardner in response to questions stated that ongoing GMC undertakings were relevant to shortlisting. A copy of the claimant’s application is not available because it was not retained by either party, but it is not in dispute that Dr Agbo had disclosed his GMC investigation in that application. The Tribunal consider that ongoing GMC undertakings were not a bar to shortlisting because there is nothing in the criteria from page 923, but we accept Dr Gardner’s evidence that they were a factor because the application required disclosure of the same.[71]As to the comparator Katie Marshall we note that at the time she was shortlisted she was not subject to any GMC investigations and had obtained her specialist registration. We conclude therefore that she was not in materially similar circumstances to the claimant by way of comparator.[72]In relation to the removal of the claimant from the consultant list on 4 July 2023 it is understood that this is a reference to IT systems confirmed in the incident report in the claimant additional documents at page 54 date 11 July 2023 which says ‘Name showing as do not use on etrack and not showing in ice at all’. Resolution on that page is said that he has left the Trust so they cannot remove the DO NOT USE’.[73]We can then see a chain of emails involving Dr Ward at page 53 of the claimant’s bundle where he says he will continue on bank and asks him to be re-added. At page 51 Dr Ward asks why this was done so promptly when other consultants and he names Dr Kevin Walsh left a long time prior and had not been removed. The claimant relies on Dr Walsh as a comparator.[74]At page 49 an explanation in relation to the issue is provided and attaches an email which can be seen at page 50 indicating that it was an individual called Paul Johnstone who informed IT that Dr Agbo had completely gone and that is the reason for the removal.[75]Dr Gardner explained that when a person leaves the trust there is a leavers process which he would not be part of and which may trigger such steps. On the evidence there is nothing that supports the suggestion that this step was taken either by or because of Dr Gardner.[76]Dr Ward then send that to the claimant at page 48 of the additional bundle and states ‘an honest mistake’ to which Dr Ago replies ‘It may appear like an honest mistake on the surface, however the email comment by Paul "He has gone completely" does not support an honest mistake but rather an inattentional act. What a shame!’[77]We do consider that Dr Ward was a supporter of Dr Agbo, and he confirmed in cross examination that he did consider this to be as set out namely an honest mistake. The Tribunal considers that the claimant has jumped to a conclusion on this issue, firstly assuming that it was a deliberate act when the evidence suggests otherwise and secondly that Dr Gardner was responsible in absence of any evidence on the same and this goes to his credibility on other matters.[78]There is another example of the claimant reaching such a conclusion in paragraph 131 of his witness statement where he states ‘In the course of their discussion Dr Marshall raised issue about how I managed renal cases, and she was encouraged to raise a Datix by Callum Gardner’. This was based on redacted documents in the claimants bundle at pages 29 to 30. In cross examination having been shown the unredacted version the claimant accepted that Dr Ward was involved in this discussion not Dr Gardner, yet he made that assumption on the redacted version. Dr Agbo accepted that Dr Ward was not discriminatory against him and that the subject matter of the Datix was reasonable.[79]As to the assignment of Louise Tibbert to the interview panel on 11 September 2023, this is outlined in paragraph 13 of Louise Tibbert's statement, and she says that Caroline Walker emailed the claimant about an upcoming role which can be seen at page 419.[80]Louise Tibbert then follows that up at page 439 where she informs the claimant that the advert is now live on 3 August 2023. We note page 59 of the claimant’s additional bundle which was confirmation of his specialist registration with effect 29 July 2023. The Tribunal consider this goes to the issue of the claimant having not been dismissed for his race because once he obtains his specialist registration the Trust are receptive to him applying for roles and inform him of the opportunities in that regard.[81]Louise Tibbert’s evidence at paragraph 16 was that the panel composition was decided by herself and Caroline Walker and it was decided that Dr Gardner should not be on the panel because of the claimant’s grievance against her. On the evidence of Louise Tibbert, Dr Gardner was excluded from this process. This is further supported by paragraph 18 where she says that the decision for her to sit on the panel was done in conjunction with Caroline Walker, the chief executive. Within the documents there was nothing to contradict this position.[82]This allegation was widened by the claimant in cross examination, and it was suggested that Louise Tibbert should not be on the panel because she had also been part of the grievance. The allegation in the list of issues however was that it was Dr Gardner that had appointed her, not that she herself was inappropriate.[83]In any event, Louise Tibbert confirmed that she was not an investigator or decision maker in relation to the grievance such that there is no obvious conflict with her having been on the panel. Indeed, this was done in an attempt to prevent bias by Dr Gardner given the claimant’s grievance. We also note her role as chief people officer and this decision was approved by Caroline Walker, the chief executive. The law Unfair Dismissal
The law
[84]Section 94 of the Employment Rights Act confers on employees the right not to be unfairly dismissed and enforcement of that right is by way of complaint to the Tribunal under s.111. There is no dispute that the claimant was dismissed.[85]S.98 of the Act deals with fairness of dismissals. There are two stages within s.98, the first is that the employer must show it had a potentially fair reason for the dismissal and second if the respondent shows that it had a potentially fair reason for the dismissal the Tribunal must consider without there being any burden of proof on either party whether the respondent acted fairly or unfairly in dismissing for that reason.[86]In this case, the respondent states that it dismissed the claimant for some other substantial reason. Some other substantial reason is a potentially fair reason for dismissal under s.98(1)(b). There is no statutory definition of substantial reason but it must not be frivolous or trivial; and must not be based on an inadmissible reason such as race or sex Willow Oak Developments Ltd t/a Windsor Recruitment v Silverwood and ors 2006 ICR 1552, CA.[87]S.98(4) then deals with fairness generally and provides that determination of the question whether the dismissal was fair or unfair having regard to the reasons shown by the employer shall depend on whether, in the circumstances including the size and administrative resources of the employer, the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee and shall be determined in accordance with equity and the substantial merits of the case. Direct race discrimination[88]Section136(2) Equality Act 2010 provides that if there are facts from which the court or tribunal could decide, in the absence of any other explanation, that a person (A) contravened a provision of the EqA, the court must hold that the contravention occurred; and S.136(3) provides that S.136(2) does not apply if A shows that he or she did not contravene the relevant provision.[89]We have taken into account the well-known guidance given by the Court of Appeal in Igen Ltd v Wong [2005] ICR 931 which although concerned with predecessor legislation remains good law. It was approved by the Supreme Court in Hewage v Grampian Health Board [2012] ICR 1054. Ayodele v Citylink Ltd [2018] ICR 748, CA confirmed that differences in the wording of the Equality Act 2010 have not changed the test or undermined the guidance in Igen Ltd.[90]In the case of Igen, the Court of Appeal established that the correct approach for an employment tribunal to take to the burden of proof entails a two-stage analysis. At the first stage the claimant has to prove facts from which the tribunal could infer that discrimination has taken place (on the balance of probabilities). If so proven, the second stage is engaged, whereby the burden then ‘shifts’ to the respondent to prove on the balance of probabilities, that the treatment in question was ‘in no sense whatsoever’ on the protected ground. The consequence is that the claimant will necessarily succeed unless the respondent can discharge the burden of proof at the second stage. However, if the claimant fails to prove a ‘‘prima facie" case in the first place then there is nothing for the respondent to address and nothing for the Tribunal to assess Ayodele and Hewage.[91]At the first stage of the test, when determining whether the burden of proof has shifted to the respondent, the question for the Tribunal is not whether, on the basis of the facts found, it would determine that there has been discrimination, but rather whether it could properly do so.[92]The following principles can be derived from Igen Ltd v Wong (above), Laing v Manchester City Council [2006] ICR 1519 EAT, Madarassy v Nomura International p/c [2007] ICR 867, and Ayodele v City link Ltd (above); which reviewed and analysed many other authorities.[93]At the first stage a Tribunal should consider all the evidence, from whatever source it has come. It is not confined to the evidence adduced by the claimant, and it may also properly take into account evidence adduced by the respondent when deciding whether the claimant has established a prima facie case. A respondent may, for example, adduce evidence that the allegedly discriminatory acts did not occur at all, or that they did not amount to less favourable treatment, in which case the Tribunal is entitled to have regard to that evidence.[94]It is insufficient to pass the burden of proof to the respondent for the claimant to prove no more than the relevant protected characteristic and a difference in treatment. That would only indicate the possibility of discrimination and a mere possibility is not enough. Something more is required, see Madarassy (above).[95]The burden of proof provisions require careful attention where there is room for doubt as to the facts necessary to establish discrimination, but have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or another. (Hewage v Grampian Health Board [2012] IRLR 870, SC.)[96]The prohibition on discrimination against employees is found in section 39(2) Equality Act 2010. Employers must not discriminate:95.1 in the terms of employment;95.2 in the provision of opportunities for promotion, training, or other benefits;95.3 by dismissing the employee;95.4 by subjecting the employee to any other detriment[97]Section 13 Equality Act 2010 states: 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.[98]The claimant relies on race as his protected characteristic which is covered by s9 of the Equality Act.
Conclusions
[99]We address our conclusions with reference to the list of issues outlined above. Unfair dismissal (ERA: section 98) Issue 4. Does the respondent prove that the Claimant was dismissed for some other substantial reason of a kind such as to justify the Claimant’s dismissal, namely that he had not obtained relevant qualifications.[100]The respondent has conceded that the claimant’s dismissal was procedurally unfair but there remains in dispute as to whether it was substantively unfair. The Tribunal is therefore concerned with whether the claimant was dismissed for some other substantial reason which is potentially a fair reason for dismissal. The Tribunal conclude that the claimant was dismissed for some other substantial reason, namely that he had not obtained the relevant qualifications.[101]As a matter of fact, at the time of his dismissal, he had not obtained his specialist registration. This was obtained on 29 July 2023 as set out at page 59 of the additional bundle. His contract terminated on 30 June 2023 with notice having been served on 20 March 2023 as at page 288.[102]The claimant was offered a substantive consultant role on 7 May 2021 however this was conditional upon him obtaining his specialist registration and he was placed onto a one-year fixed term locum contract as a result.[103]The Tribunal concludes that there were no express terms as to the time in which the claimant should obtain specialist registration, however the initial contract was a 1-year fixed term contract. That was the contractual relationship entered into between the parties namely for a fixed term period.[104]As to the offer of the substantive role, we consider that by reason of the locum contract being fixed for one year that there was at least as an initial expectation that specialist registration would be obtained in that period and that is supported by the evidence identified in our fact finding identified above (page 366, page 704 and 737.) The evidence in the bundle from those involved in the interview process confirmed this was not an open-ended appointment but rather one where it was time limited for him to obtain his specialist registration.[105]The contract is then renewed for a further year as outlined at page 154 and again there are no express terms at that time stated as to when specialist registration should be obtained. There were also no express terms indicating that his contract would continue indefinitely until he obtained his specialist registration.[106]The claimant’s position is effectively that he expected the locum consultant contract to continue indefinitely until he achieved his specialist registration. In effect if he had not passed his CESR portfolio on the second attempt his locum contract should still continue. However, this is a role where you do require a specialist registration in order in to perform the role and as such there will always come a point where a locum position cannot continue without the qualification because it is required for the role that is being performed. A continually extendable locum contract until CESR was obtained would not achieve the purpose.[107]Dr Agbo did not have a contractual agreement that his contract or service would continue indefinitely until he obtained his specialist registration. That is supported by page 365 which states that because he did not have his specialist registration, he could only be offered a fixed term locum contract. By its very nature that contract was for a fixed term.[108]As to the practise or policy of not extending the contract beyond 2 years as introduced by Dr Gardner we have already concluded that this applied to all consultants and not just the claimant such to have been engineered to remove the claimant. Page 366 also supports the fact that even before Dr Gardner’s appointment there is an expectation that specialist registration would be obtained within 6 months.[109]We accept that Dr Gardner was entitled to introduce such a policy as chief medical officer in circumstances where his evidence was that he wanted to ensure that those in locum consultants' roles had the relevant specialist registration for the role. His evidence was that the practice was introduced so that that was before the employee reached 2 years and gained substantive employment rights without holding such specialist registration. Dr Agbo accepts that specialist registration is required for the consultant role and as such this policy is a matter of common sense.[110]At the time Dr Agbo’s contract was terminated he did not have specialist registration and therefore we conclude that given the practise or policy of Dr Gardner not to extend beyond 2 years the respondent was entitled to terminate the claimants contract at that time because he did not have the relevant qualifications for a consultant role. Further it bought to an end a fixed term contract for which the fixed term was expiring. That did amount to some other substantial reason.[111]The Tribunal considers that the discretion to extend beyond that fixed term period and related enquiries around when he may obtain his specialist registration are relevant to procedural fairness which has been conceded. The respondent accepts that had they appreciated that Dr Agbo had already gained 2 years' service they would have looked to extend his contract for specialist registration to be obtained. Issue 7 Race discrimination a - Dr Gardner on 16 December 2022 deciding to terminate the Claimant’s locum contract (hypothetical comparator);[112]As a matter of fact, the decision was taken to terminate the claimant's locum contract. There was some dispute over if this was Dr Gardner or Dr Viyayasankar’s decision. Ultimately it was Dr Viyayasankar who sent the termination letter and indeed discussed the issue with the claimant. However, this was as a result of the policy or practise introduced by Dr Gardner. This is supported by page 244 where Dr G says in email to Louise Tibbert that ‘Vijay and Charlotte (at my request) have met with him to tell him that the substantive offer is being withdrawn, and that his FT employment will terminate at his 2 years minus 1 day point’ which supports it was his decision.’ Dr Gardner therefore clearly indicates that this was done at his request.[113]The Tribunal concludes that the claimant has adduced facts from which we could infer that discrimination may have occurred such to shift the burden of proof (as outlined above) to the respondent. This is because, despite the claimant recognising the limitations of his table at page 65, without the respondent's explanation, which we disregard at this stage, on the face of it there appears to be employees who worked beyond the two-year period. We can infer a difference in treatment. We consider that there is ‘something more’ here in line with Madarassy because of the evidence at page 312 and the position adopted by Dr Gardner in relation to the claimant’s GMC investigation and his desire to appeal that decision which without explanation may demonstrate bias.[114]The burden then ‘shifts’ to the respondent to prove on the balance of probabilities, that the treatment in question was ‘in no sense whatsoever’ on the protected ground. We therefore look at the respondent’s explanation.[115]In that regard the table at page 65 has its limitations as accepted by the claimant himself and identified above. Further Dr Gardner has explained the circumstances in which someone may have been kept on for longer than the two year period, again identified above. In short this could be because they moved from a locum to specialist role, it could be because their service had reached 2 years prior to him introducing the policy or that a person left the trust and returned. Louise Tibbert also confirmed that the respondent did not have a handle on the issue of extended locum contracts before and some had gone on for longer before Dr Gardner started.[116]We do not go through this table on a line-by-line basis because we conclude that Dr Gardner’s explanation is entirely plausible in circumstances where the claimant accepts the table does not account for those factors. We also find Dr Gardner to be credible in his explanation and for the reasons outlined above prefer Dr Gardners evidence against the claimants.[117]We have concluded above that the reason for termination was that the claimant had not obtained his specialist registration and the policy that was implemented by Dr Gardner for no locum to go beyond 2 years without that specialist registration. The explanation by the respondent is this was a trust wide policy and did not solely apply to Dr Agbo. That is supported by the evidence namely that it was a policy that applied to all on its introduction, as identified above in paragraphs 32 to 35 namely bundle pages 145, 147, 149-151 and 157). That explanation is the claimant’s termination was for that reason and not his race. The explanation is in turn supported by the documentary evidence.[118]The explanation is also supported by the fact that the claimant accepts specialist registration is required for the role of consultant and at the time the decision was taken to terminate (December 2022) he did not have this. It is also supported by page 366 which indicates that even prior to Dr Gardner’s appointment and introduction of the 2 year point there was a general expectation for specialist registration to be obtained in 6 months, which Dr Agbo had not achieved.[119]The decision to terminate the claimant’s contract was in line with that policy that applied to all. Dr Agbo had not obtained the relevant qualifications for the role of consultant, namely achieving his specialist registration. His employment was therefore terminated at the 2-year point in line with that policy. The Tribunal are satisfied with that explanation and that was the reason for dismissal.[120]That is further supported by the fact that contractually the claimant was on a fixed term contract for which the fixed term was expiring. The termination letter itself at page 288 supports this. Ultimately its termination of a fixed term contract and although the contract was extended once before there is not an expectation that will be indefinite in circumstances where specialist registration is a requirement of a consultant. As such it is a matter of logic that a locum position cannot continue indefinitely without that specialist registration.[121]Further we would accept that concerns about the GMC investigations were unrelated to race in circumstances where Dr Gardner raised that it would be unusual for someone to have two ongoing investigations. Further, one of the allegations was very serious involving police investigation and press interest and a perception of guilt is distinct from the protected characteristic of race in those circumstances.[122]The respondent has therefore discharged the burden of proof, and we are satisfied in those circumstances that the decision to terminate the claimant’s contract was in no sense whatsoever related to race for those reasons. b. withdrawn c. Dr Gardner on 21 April 2023 not shortlisting the Claimant for the vacancy of consultant nephrologist post (comparator: Katie Marshal)[123]As a matter of fact, Dr Gardner did not shortlist the claimant. Looking at email itself in which the decision was conveyed at page 316, it refers to two reasons why namely the claimant having to having GMC undertakings and not yet having his specialist registration or believing he will have so before June.[124]The Tribunal therefore looks at whether this was less favourable treatment. In that regard the claimant relies on Katie Marshall as a direct comparator and says he was treated less favourably than her. Katie Marshall was shortlisted for the role however it was not in dispute that she had already obtained specialist registration and was not subject to GMC undertakings. As such she was not in materially similar circumstances to the claimant. Therefore, the claimant has not adduced facts from which we could infer she was treated more favourable because she was in different circumstances.[125]For completeness we look at a hypothetical comparator in these circumstances and conclude that the claimant has not adduced evidence to suggest that someone else with GMC undertakings and without their specialist registration would have been shortlisted by Dr Gardner. There is no evidence to suggest that if there had been a locum consultant without a specialist registration of a different race and subject to the same GMC undertaking that Dr Gardener would have treated their application in any different way.[126]The Tribunal notes page 204 sets out what is required of Dr Agbo to obtain his specialist registration. We also note page 186 being an email 30 January 2023 from Dr Ward to Dr Gardner regarding what is required. However, by April the claimant had yet to obtain this. The claimant did not suggest that he had provided the respondent with a copy of the letter he received in March indicating that he would expect an outcome in 3 months. Dr Gardner’s evidence was that he did not consider that Dr Agbo would achieve specialist registration by June because of separate discussions he was having with Mr Finn, ELA at the GMC. Dr Agbo accepted that Dr Gardner was in a unique position in that sense in that he had a better understanding of the position directly from the GMC. As such the information available to Dr Gardner at the time of this decision did not support that the claimant would achieve his specialist registration within 6 months.[127]It is noted that at this stage the police investigation in relation to the human trafficking case was still ongoing and did not conclude until 22 May 2023 (page 341).[128]Dr Gardner emailed his shortlisting outcome rather than using the TRAC system for which we have accepted that based on the evidence of Louise Tibbert this was often done by him and other senior staff members as a quicker way to undertake the process. Dr Gardner’s evidence was that he did not have a casting vote. The Tribunal understands that three people were tasked with shortlisting and in his email, he does not suggest that the other votes should be disregarded.[129]It is noted that Dr Kleeman does raise this later in August 2023, but she did not challenge it at the time. It is unknown why Dr Pal then did not go on to shortlist as identified by Dr Kleeman however there is no evidence that it was on the instruction of Dr Gardner. As such it is not Dr Gardner instructions that ultimately prevented the claimant from being shortlisted as part of the overall process. Dr Gardner does not shortlist the claimant himself, but the evidence does not point to any less favourable treatment in circumstances where the claimant did not have his specialist registration and had ongoing GMC undertakings.[130]The Tribunal concludes that there is no less favourable treatment because there is no evidence that someone else in the same position as the claimant would have been shortlisted. d. withdrawn e. Dr Gardner on 4 July 2023 taking the Claimant off the Trust’s consultant list (despite the Claimant still working for the Trust on a bank contract) (comparator: Dr Walsh).[131]As a matter of fact, we find that Dr Gardner did not take the claimant off of the consultant list. There is no evidence that he was involved in such a process.[132]To the extent that the claimant is removed from the IT systems we accept that this followed a leavers process and that is outlined in the chain of evidence in the claimant’s additional bundle at 48 to 54 and addressed in our fact finding above.[133]The complaint therefore fails at this stage because as a matter of fact it did not occur; Dr Gardner did not remove him from the list. In any event we conclude that evidence clearly supports that that took place because of information that Dr Agbo had left the Trust which is outlined in the contemporaneous documents at the time. f. Dr Gardner on 11 September 2023 assigning Louise Tibbert to the selection panel for the Consultant Nephrologist post (hypothetical comparator).[134]As a matter of fact, we have concluded that it was not Dr Gardner who assigned Louise Tibbert to the interview panel. That decision was taken by Louise Tibbert and the chief executive Caroline Walker.[135]To the extent that Lousie Tibbert was then on that panel we conclude that there was no issue in terms of her being on the panel in the circumstances as identified above namely that she was not an investigator or decision maker on the grievance. Further we consider that as head of HR it would not be unusual for her to sit on a panel of this nature and that was her evidence. Ultimately decision was taken to try and ensure fairness in that it removed Mr Gardner and that was the motive behind it.[136]This is supported by Dr Gardners evidence at paragraph 37 in relation to interview panel members which says as follows: ‘Generally, an AAC at the Respondent will include five members as follows:- a Non-Executive Director (who would usually chair), one Executive Director (at the time that was usually either myself or Louise Tibbert, but now we have widened it out so that other Executive Directors may be appointed), one Senior Operations Manager and two Consultants from the Specialty.’[137]Therefore, in light of the fact the respondent were excluding Dr Gardner it appears reasonable for Louise Tibbert to have acted as the executive director. This was in line with policy and the claimant did not challenge that policy. As such there is nothing to suggest that this was done because of the claimant’s race.[138]The claimant relied on page 292 on this point and suggested that it supported that Louise Tibbert was intent to get rid of him. The Tribunal does not conclude that a comment of ‘please ensure no permanent appointment’ is evidence that she was intent to get rid of him. In fact, it supports the 2-year policy that they were trying to implement as it is in response to an email which refers to specialist registration.[139]The complaint of direct race discrimination therefore fails for those reasons. Issue 2 and 3 – Jurisdiction[140]The complaint of discrimination having failed on its merits, the Tribunal has not gone on to consider the issue of time limits. Issue 8 - Remedy[141]In absence of the parties agreeing remedy for the unfair dismissal complaint, there will be a separate remedy hearing to be listed in due course. Parties must write to the Tribunal within 28 days of receipt of the Judgment confirming whether a remedy hearing is required and if so setting out proposed length of hearing, dates to avoid and any additional directions required for its preparation. Approved by: