Dr C B Colaҫo v London NW University Hospital NHS Trust: 3314124/2021
EMPLOYMENT TRIBUNALS
Case No 3314124/2021
Between
Dr C B ColaҫoClaimantLondon NW University Hospital NHS TrustRespondentDate 23 August 2024
JUDGMENT
The complaint of age discrimination are dismissed following a withdrawal by the claimant. The claimant’s remaining claim(s) will proceed to hearing which is provisionally listed for 13 to 16 and 19 to 23 August 2024. JUDGMENT The judgment of the tribunal is that:[1]The complaint of being subjected to a detriment for protected disclosure is not well founded and is dismissed.[2]The complaint of direct discrimination arising from race is not well founded and is dismissed.[3]The complaint of unfair dismissal arising from a protected disclosure is not well founded and is dismissed.[4]The complaint of unfair dismissal pursuant to s.94 Employment Rights Act is not well founded and is dismissed. JUDGMENT having been sent to the parties on 14 November 2024 and reasons having been requested in accordance with Rule 62(3) of the Rules of Procedure 2013, the following reasons are provided:
REASONS
[1]The claimant presented a claim form on 4 August 2021 following a period of conciliation.[2]The claim arises out of the claimant’s employment with the respondent as a Consultant Rheumatologist which ended on 5 May 2021 following his resignation on 2 February 2021.[3]The tribunal was provided with a bundle of documents of 760 pages, a cast list, an agreed chronology and a glossary. There was late disclosure by the claimant of some documents which were added to the bundle on the morning of the hearing; in particular, the evidence regarding the letter dated 21 June 2020 which is referred to in 2 (e) in the list of issues. Numbers in brackets below are references to pages in the bundle.[4]We heard oral evidence from the claimant. On behalf of the respondent, we heard from Dr Michael Naughton (MN), Dr Anthony Isaacs (AI), Ms Mariessa Kielty (MKi), Dr Martin Kuper (MK), Mr Ellis Pullinger (EP) and Dr Nigel Stephens (NS). Paragraphs of their statements are identified below by their initials and the number of the paragraph (YZ/1)
The issues
[5]The issues to be decided by the tribunal were discussed at the hearing before EJ George on 7 March 2023 (134-136). The issues as finalised at the beginning of the hearing are set out below: Protected disclosure detriment
The issues
[1]The Claimant relies on the Grievance dated 13th January 2020 as his protected disclosure. The Respondent accepts that was a protected disclosure.[2]Was the Claimant subjected to the following alleged detriments as a result of the Grievance?a. Throughout the period up to his resignation on 2 February 2021, the Respondent (in particular Nick Win, Dr Stephens, Dr Naughton and Dr Isaacs) failed to address promptly or adequately the Claimant’s Dignity and Respect at Work complaint against Nurse Specialist Michael Williams dated 30 December 2019 (the First Dignity at Work Complaint).b. The Respondent did not take any active steps to protect the Claimant as requested and in particular did not accede to the Claimant’s reasonable request that his work be separated from Mr Williams.c. The Respondent (Dr Stephens) refused to allow the Claimant to be accompanied to the meeting to discuss his grievance on 25 February 2020 by his BMA Representative.d. At the meeting on 25 February 2020 to discuss the Claimant’s Grievance, Dr Stephens, Dr Naughton and Mrs Kielty were dismissive of his complaints and tried to avert the important issues he had raised and, moreover: i. They tried to interpret his complaint as being in fact about Nurse Specialist Michael Williams. ii. They tried to interpret the subject of his complaint as in fact being his responsibility. iii. They laughed at him when he requested a detailed breakdown of patient complaints to allow him to provide explanations or consider these meaningfully, and refused to give him copies of the outcomes.e. The Respondent (in particular Nick Win, Dr Stephens, Dr Isaacs) failed to respond adequately or at all to the Claimant letter dated 21 June 2020 in which he raised further complaints about Mr Williams and stated that he believed that it was by that point unreasonable and unacceptable for the Respondent to expect him to work safely with Mr Williams. The Respondent failed to take any active steps to protect the Claimant or separate his work from Mr Williams.f. The Respondent (in particular Nick Win, Dr Stephens, Dr Naughton) failed to respond adequately or at all to the Claimant second Dignity and Respect at Work complaint about the conduct of Mr Williams which he raised in November 2020 (the Second Dignity at Work Complaint). Following this complaint, the Respondent failed to take any active steps to protect the Claimant or separate his work from Mr Williams.g. On 1 February 2021, the Claimant colleague and clinical lead Dr Anthony Isaacs(i) wrongly criticised the Claimant for referring a patient to Dr Sarah Kazi when he was away from the clinic on study leave;(ii) wrongly criticised the Claimant for not asking Mr Williams to deal with the prescribing with another consultant, Dr Mark Lazarus;(iii) in so doing, unjustifiably questioned the Claimant professional competence and performance; and(iv) took the side of Mr Williams over that of the Claimant in the management of this patient.h. On 9 April 2021 the Respondent (Ellis Pullinger) failed to uphold any matter raised in the Grievance at stage 2 of the Respondent grievance process.i. On 1 June 2021 the Respondent (Dr Martin Kuper) dismissed the Claimant’s appeal against the stage 2 Grievance outcome.j. In July 2021 the Respondent (Dr Anthony Isaacs) retracted the offer of an honorary contract and on 17 July the Claimant was provided notice to clear his IT account on or before 19 July 2021.k. On a date not specified, the Claimant offered to return to work on a part-time basis after the end of his notice period (3 May 2021). This request was ignored by the Respondent (in particular Dr Anthony Isaacs). Time limits:[3]Has the Claimant submitted any claims under s48 Employment Rights Act 1996 (ERA) before the end of the period of three months beginning with the date of the act or failure to act which the complaint relates to, or where that act or failure is part of a series of similar act or failures, the last of them?a. Any individual allegation of detriment which occurred prior to 30 April 2021 is out of time as an individual allegations.b. With respect to those allegations, which are contained in paragraphs 2(a)-(h) do they form part of a series of similar acts or failures with the allegations at paragraphs 2(i)-(k)?[4]If not, was it reasonably practicable for the Claimant to submit his claims within time?[5]If not, did the Claimant present his claims within a further reasonable period? Unfair dismissal[6]The Claimant relies on the matters pleaded at paragraphs 2(a)-(g) above as amounting individually or cumulatively to a breach of the implied term of trust and confidence.[7]In relation to such of those allegations are proved, the questions for the Tribunal are as follows:a. What was the most recent act (or omission) which the Claimant says caused, or triggered, his resignation?b. Has the Claimant affirmed the contract since that act?c. If not, was that act (or omission) by itself a repudiatory breach of contract?d. If not, was it nevertheless a part of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a repudiatory breach of the implied term of trust and confidence?e. Did the Claimant resign in response (or partly in response) to that breach?[8]If the claimant was dismissed, what was the reason or principal reason for dismissal - i.e. what was the reason for the breach of contract?[9]Was it a potentially fair reason?[10]Did the respondent act reasonably in all the circumstances in treating it as a sufficient reason to dismiss the claimant?[11]With respect to the section 103A ERA automatic unfair dismissal claim, was the Grievance the sole or principal reason for the acts and omissions which amounted to a repudiatory breach of the implied term of trust and confidence? Direct race discrimination[12]The Claimant relies on his Indian ethnicity.[13]Did the Respondent subject the Claimant to the following treatment? a. The matters set out at paragraph 2(a)-(k) above.[14]Did such treatment of the Claimant amount to less favourable treatment compared with the treatment of:a. A hypothetical comparator in the case of paragraphs 2(a)-(i)?b. Dr Batten, Dr Keat and Dr Higgins, all of whom are White British, or alternatively a hypothetical comparator, in the case of paragraph 2(j)?[15]Was any less favourable treatment because of the Claimant’s race, such that he was directly discriminated against contrary to s.13 and 39 of the Equality Act 2010?[16]With respect to the constructive discriminatory dismissal claim (s.39(2)(c) and 39(7)(b) EqA 2010):a. Was the Claimant dismissed (see paragraphs 6 & 7 above)?b. If so was the Claimant’s race the reason for the acts and omissions which amounted to a repudiatory breach of the implied term of trust and confidence? Time limits:[17]Have the claims been brought within the primary time limits?a. With respect to the individual race discrimination complaints, any individual allegation of detriment which occurred prior to 30 April 2021 is potentially out of time.b. With respect to those allegations, which are contained in paragraphs 2(a)-(h) do they form part of a continuing course of conduct extending over a period with the allegations at paragraphs 2(i)-(k)?[18]If any of the allegations are out of time, it is just and equitable for the time limit in respect of such allegations to be extended? Findings of fact Background 6. This section of our reasons sets out the broad chronology of events to the extent that it is relevant to the factual findings we need to make. The parties will note that not all matters they told the tribunal about are recorded because we have limited them to points that are relevant to the issues the tribunal needs to decide. The alleged detriments relating to issue 2 (protected disclosure) are repeated under issue 13 (direct race discrimination) and partly repeated under issue 6 (unfair dismissal). Where we have identified issues 2 (a) to (k) in the chronology of events below our fact findings also relate to issues 6 and 13 where relevant. 7. The claimant first worked for the respondent as a locum between 1993 and 1996. He has been employed by the respondent since 1996 although the exact date is not clear from the documents before us. 8. At the relevant time the respondent was responsible for three hospitals; Central Middlesex Hospital (CMH), Northwick Park Hospital (NPH) and Ealing Hospital (EH). The claimant was primarily based at CMH. 9. The claimant worked in a team which consisted of himself and another fulltime consultant. Both consultants were supported by Michael Williams (MW) and a PA. MW is a Clinical Nurse Specialist in rheumatology. He was appointed in 2017, and the claimant was involved in his appointment. 10. The working relationship between MW and the claimant was not consistently harmonious. In evidence the claimant explained that they had initially got on well. He said, “We were close”, but the relationship deteriorated around October 2018. The claimant felt MW felt was partly responsible for a patient complaint in August 2018, although he acknowledged in a report that MW was a “valuable member of our little team” (733-736). 11. There was a complaint by MW in October 2018 that the claimant had been racist towards MW. This was resolved by an apology and the claimant was directed to repeat his equality and diversity training (MN/29). Dignity at Work complaint (issues 2(a), (b), (e), and (f)) and Issue 6 and 13) 12. The claimant kept a complaint log of incidents relating to MW from 2 September 2019 to 14 January 2020 (234-239). 13. In December 2019 there was an incident (not recorded on the log) involving a patient which caused MW and the claimant to raise complaints against each other. MW emailed Rachel Butler, (Rheumatology Matron, MW’s line manager), copying in Marissa Kielty (MKi) (General Manager Integrated Medicine) and Michael Naughton (MN) (Clinical Lead of Rheumatology, the claimant’s line manager at the time) (224). 14. MW’s version of events was that an altercation developed when he challenged the claimant about having to wait for a prescription for 45 minutes. He said Dr Colaço accused him of shouting at him which MW said was ‘far from the truth although I may have appeared a bit anxious after waiting so long” (224). 15. On 30 December 2019, the claimant sent a ‘Dignity and Respect at Work Complaint Form’ to Nicholas Win (HR Business Partner) regarding the incident, in which he stated that he was seeking immediate separation of work duties from MW (226-228). The claimant stated that MW walked up to him ‘thrusting’ a prescription form and booklet. The claimant replied that he would do it later. The claimant said MW ‘’kept shouting over me and my efforts to quieten his tirade failed.” And he said, “I felt intimidated by this attack from MW.” 16. The claimant said in his Dignity at Work complaint: “I do not believe it is a safe situation now for me to be sharing patient care again with MW after this outburst.... I have reached the point of raising this formally as I require urgent protection from further incidents of being shouted at by MW.” 17. In response to a question on the form “What resolution are you seeking”, he wrote: “Immediate separation of my work duties from CNS, Michael Williams.” 18. Progress in formally dealing with the complaint was exceptionally slow. The respondent was contending with Covid from February 2020, and the tribunal finds that this would have been a significant reason for the delay,as the people appointed to investigate were exceptionally busy.
Background
[19]Nicholas Win (HR Business Partner) confirmed that an investigator would be appointed on 14 July 2020 (288). He then advised the claimant by email on 9 December 2020 that the person assigned could not investigate and another investigator was now assigned. Unfortunately, that person was also unable to investigate for a reason not clear to the tribunal but, presumably, due to the pandemic. It was not until 9 February 2021, after the claimant had resigned, that the terms of reference were sent to an independent investigator, Becky Attwood. The outcome letter was issued on 20 April 2021, and the complaint was not upheld (573).[20]The claimant maintains that he sent an email setting out further complaints against MW on 21 June 2020 to Nicholas Win, NS and Anthony Isaacs (AI) (issue 2(e)). It was not in the bundle. The claimant did not have access to his NHS emails and says for that reason he was unable to produce a copy of it. The respondent denies ever receiving it. The day before this hearing the claimant produced a document which was not the email itself but notes that he shared with his union rep in preparation for an email that was to be sent. There was no evidence that it was sent. The claimant did not get a response, and he did not chase one. NS and MN were taken to the notes and denied that they had ever received an email with that content. AI was not in post at the time even though he is referred to in issue 2(e). He only became the claimant’s manager from September 2020. The tribunal find on a balance of probabilities that it was not received, and it is more likely the document referred to is a draft that was not progressed.[21]On 30 November 2020 the claimant raised what he refers to as his second Dignity at Work complaint (348-349). It was not on a formal Dignity at Work form but was an attachment to an email sent to Nicholas Win, copying in AI and MKi and the claimant’s union rep (355). As with the previous complaint, it arose out of an incident which led to a complaint by MW (353). It was about the claimant asking a patient to see MW while MW was having his lunch on a day when he did not do clinics. The claimant said MW was ‘unhelpful, indignant’ and shouted at him. MW denied shouting.[22]The claimant wrote this is ‘yet another example of the pattern of MW’s unpredictable unprofessional behaviour impacting on patient care.” It went on to say “I do not feel I have MW’s support or trust.... Please expedite procedural matters as I will be recording this constant stress at work with my GP and with Occupational Health.”[23]This was arguably not a formal Dignity at Work complaint because it was not on the prescribed form, but that is not material for the decisions the tribunal needs to make.[24]In 2(f) of the list of issues the claimant refers to MN as failing to respond adequately to the complaint, but MN was no longer his line manager at that time.[25]Although it did take a very long time to formally respond to the first Dignity at Work complaint, that does need to be seen in the context of covid and also in the context of other events at the time. The first complaint was essentially a complaint about an argument in the clinic, albeit that the claimant says it was not an isolated incident. The next complaint which he says he sent in June 2020 was not received and the complaint in November 2020 was again precipitated by an argument which flared up in the clinic.[26]The tribunal has considered what the respondent did to address the situation with MW. The respondent, reasonably, in the tribunal’s view, decided separation was disproportionate but that there were other ways to deal with the situation.[27]The respondent gave consideration to whether they could separate MW and the claimant after the first Dignity at Work complaint. MN discussed this with MKi (MN/34) and concluded that separation was not a viable option: “We considered that the incident was not so severe that it would warrant immediate separation of duties... because such an immediate response would create serious patient safety concerns and would not be operationally possible.”[28]The claimant was on sickness leave from 24 February 2020 to 6 April 2020 and following that he worked at home due to the pandemic, except on Fridays. The only day he came into face-to-face contact with MW was on a Friday. As the complaints had largely been about MW barging into his clinic or arguments that developed at work the respondent reasonably believed that limiting face-to-face contact with each other would alleviate the situation.[29]Anthony Isaacs (AI) who took over as the claimant’s line manager from September 2020, was not aware of the problems in the relationship until November 2020 (AI/26). He was copied into an email from MW dated 27 November 2020 and from the claimant dated 30 November 2020 referred to at paragraph 21 above. He investigated the possibility of separating the claimant and MW and also decided that it was not viable (AI/36) (368).[30]MW and the claimant shared the care of hundreds of patients and there was no other specialist rheumatology nurse at CMH. In addition, MW supported the other consultant, Dr Lazarus. MW was the sole nurse at the clinic dealing with patients; he was the first port of call on the helpline; he was integral to ongoing prescriptions and monitoring blood tests. AI emailed NS and NK to express his concerns (368-369) saying “From a clinical perspective (and I have spoken through options with Mariesa) it is impossible to disentangle the specialist nurse work from his practice ... Bernie has made several suggestions on what he recommends for cover but these suggestions I have explored with Maries and do not possible (sic) as these are people I understand not employed or with responsibilities solely under rheumatology (day care team) and also not trained...”[31]Alternative measures were however put in place such as AI and the other consultant in the department, Dr Lazarus, offering MW clinical support to reduce the claimant’s direct dealings with MW (AI/42) (371).[32]As well as applying his mind to how he could alleviate the situation, AI showed concern for how the claimant was feeling. On 2 December 2020 he emailed the claimant to ask how he was feeling and said he was always happy to talk (364). When the claimant replied to say that he wanted his whole practice to be separated from MW due to the toxic atmosphere (363) AI called the claimant and spoke to him on the phone for one and a half hours (AI/35).[33]We find that the respondent, and particularly AI, gave a lot of thought to possible solutions. It was understandable that the respondent decided not to separate them completely as that would be disproportionate and would have a greater impact on patient care than trying to find ways for them to work together. They were rightly focused on patient care while mindful of their duty of care to the claimant. Grievance Stage 1 (issue 2 (c), (d), 6 and 13)[34]The claimant raised a grievance on 13 January 2020 (241-248). He asked for a full review of the service at CMH with reference to matters including staffing, reinstatement of a specialist registrar, the lack of integration with the other sites, the pharmacy and patient group and walk-in clinics. He maintains that it was a protected disclosure because he reasonably believed it tended to show that: a.The Respondent had breached, was breaching and would continue to breach its legal obligations, specifically: NHS England had contracted with the Respondent to provide the sub-specialist CTD clinic and the Respondent owed NHS England an obligation to ensure that the clinic it was providing was correctly and properly staffed; and that smooth referral protocols to Tertiary Centres were in place. For example, the removal of the trainee Specialist Registrar from London Deanery as a single matter of governance was in breach of this agreement with NHSE. b. The health and safety of patients of the CTD clinic had been, was being and was likely to be endangered.[35]The respondent’s Grievance Policy (148-169) has three stages:38.1 Stage 1: an informal stage where the respondent listens to concerns and sends a written outcome;38.2 Stage 2: the employee completes a form, a grievance meeting and investigations take place following which an outcome letter is issued;38.3 Stage 3: an appeal stage with the purpose of considering the outcome determined at Stage 2; the purpose is not to rehear the grievance.[36]On 21 February 2020 there was a Stage 1 meeting which was attended by NS, MK and MN. The claimant was accompanied by a colleague, BW. The claimant asked to take his trade union representative to the meeting. He was told by NS that he could take a colleague but not a union representative as this was an informal meeting. That was incorrect. The Grievance Policy provides a right to be accompanied at all stages, including the informal stage, by a trade union official or work colleague (153). In oral evidence NS explained that his refusal was a genuine misunderstanding. He thought that because it was an informal process, and the respondent was not going to be professionally represented, it was not necessary for the claimant to be represented. He said he would have welcomed a trade union representative as in his experience that can help clarify issues. We found this a credible explanation.[37]The claimant was not satisfied with the way the Stage 1 meeting was conducted. NS limited it to one hour. During the meeting the claimant noticed no one looked at the documents setting out his grievance, although they had read them beforehand. NS said that he wanted to allow the claimant to express his concerns. He said the grievance was discursive and not coherent: “It was therefore very important for us to clarify the issues he was raising and be able to discuss them openly.” (NS/9). We find the meeting was conducted in accordance with respondent’s policy at Stage 1.[38]Although no minutes were taken the bundle contained some handwritten notes by the claimant (737-738). There was also a typed summary by MN which was based on written notes which he took at the meeting (280).[39]After the meeting NS summarized what he saw as the claimant’s concerns and his response to them and set these out in his letter dated 25 February 2020. As the claimant was on sick leave this was not received by him until it was forwarded to him on 6 March 2020 (258-260). Stage One treatment of the claimant’s substantive concerns[40]NS’s outcome letter (254-256) was succinct; he gave explanations relevant to the main concerns such as staffing. The claimant said the outcome letter left him feeling annoyed and bullied. The claimant felt the respondent had attempted to quash the process (272). He alleges NS, MN and MKi were dismissive of his complaints; they tried to interpret his complaints as being about MW; tried to interpret the subject of his complaints as being his responsibility and laughed at him when he requested a detailed breakdown of patient complaints to allow him to provide explanations (2 (d) list of issues).[41]The tribunal has carefully compared the details the claimant set out in his grievance with the notes of MN, the notes of the claimant and the outcome letter in assessing the allegations raised. The tribunal found the claimant’s description is not an accurate representation of the meeting and outcome letter.[42]The claimant’s major concern was staffing and resourcing at CMH. In response to this NS referred to the imminent arrival of Dr Lazarus. It is notable that at the time the claimant raised the grievance there was a gap in between one consultant leaving and the other starting work. Although a locum was in place in the meantime the claimant did have to work alone for a period of eight weeks or so which must have been a difficult period for him (MN/18).[43]There was a historic concern of the claimant dating back to 2013 when the specialist registrar was withdrawn from the department. That was a decision by the deanery. The claimant was informed that it was not a decision which those hearing the grievance could influence.[44]They were not prepared to agree to walk-in clinics and explained why; not having the patients’ notes, budgeting and the effect on the claimant’s workload.[45]The claimant complained that CMH was not getting its fair share of the budget. He wanted more transparency. It was explained to him there was only one budget. The claimant appeared to want to challenge how the budget was spent; they tried to reassure him that they were committed to provide outpatient Rheumatology services at all three hospitals.[46]The claimant alleged there was a policy in place which was designed to isolate him from the Rheumatology Departments at the other hospitals. That was denied but his feelings of isolation were acknowledged during the meeting. NS reflected in cross examination that, with hindsight, it would have been preferable to have covered this specifically in the outcome letter but he felt it was fully discussed in the meeting. Meetings were subsequently set up with all three sites every three months which they thought would help address how the claimant was feeling.[47]The claimant claims that the respondent’s ‘HEART’ principles (honesty, empathy, accountability, respect and trust) were being breached and this was not addressed. The tribunal interprets his reference to the principles in his grievance as reminding the respondent that it needed to act according to its values. The tribunal find that, as expressed, it did not require a response and it is understandable the respondent did not refer to it explicitly.[48]The claimant was granted some requests relating to the pharmacist and time for the Patient Group and, although the claimant may not have considered this satisfactory, we find it demonstrates that the respondent was willing to listen to his concerns and seek solutions where it was possible to do so. NS allowed him time in the job plan for the Patient Group; an acknowledgement of the work the claimant had put into this.[49]The claimant felt they tried to interpret his complaint as being about MW. There is a reference to MW in the outcome letter: “The relationship with colleagues [MW] must prompt reflection on your part. We must all strive to work harmoniously in teams.”[50]MW is not mentioned in the claimant’s notes or in the grievance. MW is referred to in MN’s notes, which state “He wants MW to go to work at NPH and get CNS support there.” This suggests that the MW matter was raised by the claimant in the meeting. The tribunal find that very probable as the claimant had strong feelings about MW and it seems likely that he would refer to it at some time during the meeting. It does not suggest that the respondent interpreted his complaints as being about MW.[51]We find the comment about team working in the outcome letter by NS to be fair and reasonable. The claimant may have taken offence because he was fixated on separation from MW being the only acceptable outcome. He did not acknowledge his own responsibility for the situation. The tribunal find it was not reasonable for the claimant to take offence at the comment and the comment itself is not indicative of the respondent interpreting his complaint as being about MW.[52]The respondent’s outcome letter made suggestions to improve the claimant’s workload including discharging patients in accordance with protocols. The claimant may have perceived the proposals as putting the responsibility for the problems on him, but we find that in the context of addressing his concerns they were intended to support him.[53]The claimant alleges that they laughed when he requested a detailed breakdown of patient complaints to allow him to provide explanations. In cross examination he said they did not laugh out loud so much as laugh in a ‘smirkish’ type of way. The respondents’ witnesses denied this. We accept their evidence that they did not laugh or smirk. We cannot envisage any plausible reason why that would be their reaction during a discussion about complaints. The claimant did not put forward any credible reason. We accept that the claimant picked up on something and reacted to something and he felt put in his place, but we decided that the claimant must have misinterpreted their reaction. NS suggested a thematic review of complaints by the Central complaints team in response to his concerns about complaints (259).[54]In summary, the employees who attended the meeting on the respondent’s behalf were not dismissive. The points raised by the claimant were covered. They were sympathetic to his feelings and addressed the concerns in the grievance in terms of the effect on him. The substance of the grievance concerned matters which were within the management’s prerogative, and it was unreasonable of the claimant to demand changes to operational matters which management had considered but decided were not appropriate. Stage 2 Issues 2 (d), (h) and 6 and 13[55]On 4 June 2020 the claimant emailed the respondent’s CEO saying that he wished to progress his grievance (272-273) and on 12 June 2020 Nicholas Win confirmed that the grievance would move to Stage 2 (290).[56]A Teams meeting was set for 16 September 2020 to hear the Stage 2 grievance with Ellis Pullinger (EP) (Interim CEO) as chair, a representative from HR and NS, MN and MKi.[57]A new document was prepared by the claimant and sent to the respondent dated 15 September 2020. It was two pages long (681-682) and it was headed “Forward Plan for the Rheumatology Unit”. The content largely related to matters in the first grievance about service provision including proposals for clinics and resource. It was decided to postpone the 16 September full hearing and convert it to a preliminary meeting.[58]Another preliminary meeting was held on 11 December 2020 (526). Although this did delay the final Stage 2 hearing it was in accordance with the Grievance Policy, Stage 2, which refers to preliminary meetings to enable the employee to explain their grievance.[59]The claimant was asked to clarify what was outstanding from the informal Stage 1 meeting (526) and that was put to the management for response.[60]On 24 September 2020 the claimant set out a formal Stage 2 application (315-319). This is largely a response to the grievance outcome letter. The Stage 2 grievance meeting took place on 10 March 2021. No minutes were taken.[61]On 9 April 2021 the Stage 2 grievance outcome was issued (526-529). The grievance was not upheld. EP’s concluded (528 to 529): “...I am content that the divisional management team has made reasonable efforts in answering and explaining their response to your service delivery questions. This does not mean that you are not entitled to express your concerns about the service at CMH but, equally, I’ve not seen evidence that your concerns have been completely ignored and/or that there is not sufficient comparative data on how Rheumatology services are delivered across three main hospital sites.... I also want to stress that I’ve not seen any evidence of ill-considered management decisions on providing service at CMH albeit in difficult circumstances on certain occasions.”[62]He acknowledged that the claimant felt very strongly about the issues and the stress and anxiety that it had caused him. And on behalf of the Trust he acknowledged regret and concern that this had all clearly been very difficult for the claimant.[63]We find that EP looked seriously at the substance of the grievance which set out the same concerns as at Stage 1 and, to a large extent, concerned service delivery. He checked that a reasonable explanation had been given by management, and he acknowledged how strongly the claimant felt. Stage 3 issue 2(h), 6 and 13[64]The claimant lodged a formal Stage 3 appeal on 9 May 2021 (586-588). He did not agree with the conclusions that had been reached at Stage 1 and 2. He did not raise complaints about the process save that he alleged EP was misled and suggested a thorough investigation of his grievance was still outstanding (587). He made no suggestion that any of the failures to uphold his complaints were because of his race or because he had made a protected disclosure.[65]The appeal was decided on 21 May 2021 by Dr. Martin Kuper (MK) (Chief Medical Officer). MK was clear that his purpose was to hear the points of the outcome the claimant was not satisfied with; it was not to rehear the grievance (MK/9).[66]On 1 June 2021 MK issued the Stage 3 outcome (614-618). He did not uphold the appeal. He found no evidence that the Stage 2 panel had not considered the points he raised or that their outcome was inappropriately applied. He decided to make a recommendation that management review whether there was a case for a junior doctor within the Rheumatology service at CMH and if appropriate seek to engage with HEE, the matter not being within the remit of the claimant’s line management. The claimant’s resignation Issue 2 (g) and Issue 6[67]The claimant sent an email on 2 February 2021(449) resigning with a termination date of 5 May 2021, that being three months’ notice. He says, “I regret to inform you of my decision to resign...” stating he would be very grateful if the investigations into the grievance and the Dignity at Work complaints could be concluded. He said he would have expected to work until February 2024 but was concerned about the safety of patient services and his own vulnerability unless these matters were settled.[68]The day before that email he had written to his union representative to say, “I may well resign tomorrow over this outburst” (445). He was referring to an email from AI (issue 2(g) involving Dr Kazi).[69]Dr Kazi was a Senior House Officer in the Medical Day Unit which was next door to where the claimant worked. On 2 December 2020 the claimant emailed AI suggesting that MW hand over all clinical matters to Dr Kazi as he was unable to work with him (363). AI told MW to instead refer to Dr Lazarus, the other consultant in the department. On 4 December 2020 the claimant emailed AI arguing that Dr Kazi was capable of receiving clinical requests from MW which she could then relay to him. AI had stated that would not be appropriate because: ‘they are an MDU doctor for the several specialities, have other duties and not part of our department to ask to do this. I am aware that if a senior consultant asks them for help then they are likely to find it difficult to say no. Indeed I suspect they dont have the rheumatology training required.’ (374-375). AI talked to Dr Kazi to understand her role and the Day Care Unit she worked in because he did not manage her (378). He was concerned that she was a more junior doctor, and she was not trained in rheumatology. We find his actions and communications to the claimant were entirely reasonable.[70]Following that, on 1 February 2021 MW emailed the claimant with a query and the claimant replied telling him to refer to Dr Kazi (433). MW forwarded that to AI and AI emailed the claimant to ask him why he was referring to Dr Kazi when he had instructed him not to (446). Dr Kazi expressed concern as she was not qualified to prescribe the drug (435), and AI checked the position and decided himself that it was not appropriate as the patient had covid (437).[71]The claimant interprets this series of events as AI unjustifiably questioning his professional competence and performance and taking the side of MW over that of the claimant in the management of this patient (issue 2(g)). The tribunal does not agree with the claimant’s interpretation of events. AI had given clear instructions that matters were not to be referred to Dr Kazi well before the incident and he had given good reasons why that was the case, having spoken to Dr. Kazi. The claimant was failing to follow very reasonable management instructions.[72]The claimant refers to other reasons for resigning. He refers to a ‘lady’s complaint’ being “the trigger for my resigning” and a complaint involving an altercation with MW (536 and 478). In his statement for the case management stage to the tribunal (54) he refers to structured complaints by which he means complaints by MW, and, in cross examination, he referred to MW weaponizing complaints against him. It is also clear that the relationship with MW and the management decision not to accede to his request to separate them was a significant factor.[73]The claimant also felt, as his grievance demonstrates, that management were making decisions he disagreed with going back to 2002. He was understandably upset by patient complaints, and he felt that management would not support him. We found no evidence that he was correct in that view. We found that the various members of management dealt with him in a way that was courteous and respectful. They listened carefully to him, and they were objective and fair in all their dealings. Post resignation (issues 2(j) and (k))[74]In his resignation letter the claimant enquired about part-time work in the combined pediatric clinics and asked for an honorary contract to complete his research work. Honorary contracts are unpaid contracts to enable research. On 11 February 2021 the claimant emailed again enquiring about a part-time contract and honorary contract (460).[75]MKi made enquiries about part-time work. She spoke to pediatrics, about him working in their combined clinics but they were not prepared to fund it. On 30 March 2021 the claimant emailed to say he assumed from AI’s last email that that he was implying that there is no part-time work, so he would register on the bank (723). AI’s emails for that period have been lost so we do not know what the email said. However, overall, we find that his request for part-time work was not ignored, it was considered and followed up by MKi.[76]On 17 February 2021 MKi emailed the claimant to say that she would ask her colleague, Junaid, (who was in the office next door) ‘to sort an honorary contract with you’ (724). This was followed by an email between MKi and Junaid, copying in the claimant, asking Junaid to ‘set up’ an honorary contract (722) She explained in evidence that what she meant by ‘set up’ was that he should prepare the form for signature. She had no authority to grant a contract. We found her explanation credible. We are satisfied that a contract had not been agreed. We also find this was the claimant’s understanding because on 18 March 2021 the claimant contacted AI to request a part-time or fixed term contract and says he would ‘at least’ value an honorary contract to complete his research projects (497- 498). On 7 July 2021 he was told to change his email signature as he was indicating that he had an honorary role. He did that straightaway (622- 623).[77]AI did not realise at first that he was the one who needed to make the decision about an honorary contract. He thought it was the Research and Development Department. Once he realised it was his decision, he discussed it with MKi (727 to 728). She referred to contracts granted to 2 of the people the claimant has named as comparators, Dr Kent and Dr Higgens. AI decided that the claimant had not demonstrated reasons why he needed an honorary contract. He had no outstanding registered research projects (626) and that in itself was deemed a sufficient reason for not awarding an honorary contract.[78]On 14 July 2021, prompted by an email from the claimant chasing the honorary contract, AI replied to say that he was not prepared to offer him an honorary contract (624-625). The way that it was worded was very frank. He said: “...personally I have no problem with you but professionally I dedicated a disproportionate amount of my time to you.... There were of course things that were entirely appropriate using my time I am being no way critical of. Equally I feel the professional relationship had deteriorated and broken down with colleagues at CMH and yourself.”[79]The tribunal found it reasonable to infer from this that AI was referring to management problems such as the Dr Kazi incident and the problems the claimant had working with MW. He was not referring to the grievance about service provision issues. He was not involved with the grievance. The process commenced before he started managing the claimant and he was not involved in the meetings. Although he was made aware of difficulties in the relationship between MW and the claimant in November 2020 there is no suggestion that he was influenced by or aware of the substance of the grievance the claimant had brought.[80]We find that the respondent had a credible reason for not giving an honorary contract (the research projects were not registered). AI felt that he was unable to work with the claimant and he felt the claimant did not have a good relationship with colleagues. He thought it best he did not return (728). It was not because the claimant had made complaints and observations about service delivery; it was because of the day to day difficulties of managing him.[81]In respect of the comparators that are referred to in the list of issues, we did not hear cogent evidence on who they were, how they compared, or the circumstances in which they had been given an honorary contract.[82]On 17 or 19 July 2021 the claimant was asked to clear his IT account (626). He had left the respondent’s employment by then. The tribunal considers that was an entirely appropriate request in the circumstances. The law Discrimination
The law
[83]Direct discrimination is defined in section 13(1) Equality Act (EqA) 2010 as follows: “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.”[84]The concept of treatment being less favourable suggests some form of comparison; section 23(1) applies: “On a comparison of cases for the purposes of section 13, 14 or 19 there must be no material difference between the circumstances relating to each case.”[85]The effect of section 23 is to ensure that any comparison made must be between situations which are genuinely comparable. The case law, however, makes it clear that it is not necessary for a claimant to have an actual comparator to succeed. The comparison can be with a hypothetical comparator. Further, as the Employment Appeal Tribunal and appellate courts have emphasised in a number of cases, including Amnesty International v Ahmed [2009] IRLR 884, in most cases the real question is the “reason why” the decision maker acted as he or she did. Answering that question involves consideration of the mental processes (whether conscious or subconscious) of the alleged discriminator, and it may be possible for the Tribunal to make a finding as to the reason why a person acted as he or she did without the need to concern itself with constructing a hypothetical comparator.[86]In Shamoon v Chief Constable of the Royal Ulster Constabulary (2003) ICR 337, Lord Nicholls in the House of Lords (NI) said that the Tribunal should focus on the primary question which was why the complainant was treated as he or she was. Did the complainant, because of a protected characteristic, receive less favourable treatment than others?[87]Race is a protected characteristic under s. 9 EqA 2010 and includes (a)colour,(b)nationality and (c)ethnic or national origins.[88]EqA 2010 provides for a shifting burden of proof. Section 136 provides as follows: (2) If there are facts from which the Court could decide in the absence of any other explanation that a person (A) contravened the provision concerned, the Court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.[89]Consequently, it is for a claimant to establish facts from which the Tribunal can reasonably conclude that there has been a contravention of the Act. If the claimant establishes those facts, the burden shifts to the respondent to show that there has been no contravention by, for example, identifying a different reason for the treatment. Protected Disclosure[90]The statutory test is whether the worker was subjected to the detriment by the employer “on the ground that” he or she had made a protected disclosure. It is for the claimant to prove, on the balance of probabilities, that there was a protected disclosure, that there was a detriment and the employer subjected the claimant to the detriment. If so, then the burden shifts to the employer to show the ground on which the detrimental act was done: Section 48(2) ERA.[91]Under section 47B there is no statutory definition of “detriment”. In Ministry of Defence v Jeremiah [1980] ICR 113, CA, it was said that “detriment” meant simply “putting under a disadvantage” or a detriment exists if a reasonable worker would or might take the view that the action of the employer was in all the circumstances to his detriment (approved in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337, CA).[92]The test for “detriment” is the same as in discrimination law. If a reasonable worker might regard the treatment as a detriment, and the claimant genuinely does so, that is sufficient to establish there has been a detriment. There does not necessarily need to be any physical or economic consequences. An unjustified sense of grievance cannot amount to a detriment (Derbyshire v St Helen’s MBC [2007] ICR 841).[93]The Tribunal must consider what, consciously or unconsciously, was the employer’s reason for the detriment. It will need to consider whether to draw an inference from its findings of fact. Causation will be established unless the employer can show that the protected disclosure played no part whatsoever in its acts or omissions: Fecitt v NHS Manchester [2012] ICR 372, CA. The result is that there will be a sufficient causal connection if a protected disclosure was one of several reasons for the detriment, even if it was not the predominant reason. It is enough if it was a material influence, in the sense of being more than a trivial influence. As a result, the causation test for detriment claims is less onerous than the causation test for dismissal claims under Section 103A. There is no need to consider how a hypothetical or real comparator would have been treated.[94]The legislative provision concerning dismissal for making protected disclosures is Section 103A ERA. This provides that a dismissal will be automatically unfair if the reason or the principal reason is that the employee has made a protected disclosure. This is different from the material influence causation test in a detriment claim. Where an employee resigns claiming constructive dismissal, it is still open to the employee to claim that the principal reason for the dismissal was that they have made a protected disclosure. The Tribunal should examine the principal reason for the fundamental breach of the contract of employment that led to the resignation. Constructive Unfair dismissal[95]Section 95 Employment Rights Act 1996 provides, so far as is relevant to the facts of this case: (1)For the purposes of this Part an employee is dismissed by his employer if ... (c) 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.[96]Accordingly, dismissal includes constructive dismissal, which occurs where, owing to the repudiatory conduct of the employer, the employee is entitled to resign and regard himself as dismissed.[97]In Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27 CA Lord Denning set out the basic principles in order to succeed in a claim of constructive dismissal. A claimant must prove:(1) that the employer acted in breach of his contract of employment;(2) that the breach of contract was sufficiently serious to justify resignation or that the breach was the last in a series of events which taken as a whole are sufficiently serious to justify resignation;(3) that he resigned as a direct result of the employer's breach and not for some other reason; and(4) that the Claimant did not waive the breach or affirm the contract. In those circumstances: ‘he terminates the contract by reason of the employer’s conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract.’[98]Terms of an employment contract can be express or implied. Implied terms include a mutual term of trust and confidence. Not every breach of contract entitles the employee to terminate the contract. The breach must be sufficiently serious to amount to a repudiation of the whole contract.[99]A breach of the implied term of trust and confidence will always amount to a repudiatory breach (Morrow v Safeway Stores plc 2002 IRLR 9). Per Malik v Bank of Credit and Commerce International SA 1997 ICR 606, to establish a breach of the implied term it must be found that the respondent’s conduct was calculated or likely to destroy or seriously damage trust and confidence and the respondent did not have ‘reasonable and proper cause’ for the conduct.[100]A course of conduct can cumulatively amount to a fundamental breach of contract entitling an employee to resign and claim constructive dismissal following a ‘last straw’ incident even though the last straw by itself does not amount to a breach of contract, Lewis v Motorworld Garages Ltd 1986 ICR 157 CA.[101]The fundamental breach of contract by the employer need only be a reason for the resignation of the claimant. It does not matter if there are other reasons: Wright v North Ayrshire Council [2014] IRLR 4. ‘ that it was an error of law for the employment tribunal to look for “the” effective cause of the claimant’s resignation, in the sense of the predominant, principal, major or main cause; that the crucial question, in establishing whether an employee who had more than one reason for resigning had been constructively dismissed, was whether a repudiatory breach of contract had played a part in the resignation’. Time Limits[102]The time limit for discrimination claims is set out at s.123 of the EA 2010, (subject to ACAS early conciliation provisions): 123 (1).... proceedings on a complaint within section 120 may not be brought after the end of— (a)the period of 3 months starting with the date of the act to which the complaint relates, or (b)such other period as the employment tribunal thinks just and equitable. ..... (3)For the purposes of this section—(a) conduct extending over a period is to be treated as done at the end of that period;(b) failure to do something is to be treated as occurring when the person in question decided on it.[103]The time limit for detriment and dismissal relating to a protected disclosure and unfair dismissal is set out in s.111 of the Employment Rights Act 1996. A complaint must be presented within 3 months (subject to an extension for ACAS conciliation) or 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.[104]In a detriment claim, time starts to run from the date of the act (or failure to act) on which the complaint is based, not from the date on which the employee becomes aware of that act, or the date on which the detriment was suffered. The claimant must present their claim within three months of the date of the act of which complaint is made. Where this is not reasonably practicable, then it should be within such further period as was reasonable.[105]Where there is a series of similar acts, then time runs from the last of those acts. Such a series could involve a number of acts of detriment by different people where there is “some link between them which makes it just and reasonable for them to be treated as in time and for the complainant to be able to rely on them”: Arthur v London Eastern Railway Ltd (t/a One Stansted Express) [2007] ICR 193, CA.[106]If the last of the acts is dismissed as unfounded or because it was not on grounds of a protected disclosure and that act is the only act within the primary limitation period, then the entire series will be out of time: Royal Mail Group Ltd v Jhuti EAT 0020/16. Submissions[107]We are grateful to counsel for the oral and written submissions and, of course, we have incorporated them into our decision making. The exception to that is the assertion by the respondent’s counsel that the claimant’s counsel did not put the case to the respondent’s witnesses that they acted as they did because of a protected disclosure or race. That submission played no part in our decision making. He gave no authority for his proposition, and it would be surprising if the tribunal were prevented from making a finding in favour of the claimant for that reason. Conclusions Time Limits
Conclusions
[108]We first considered the limitation issue which applies to allegations before 30 April 2021. The claims for constructive and automatic unfair dismissal are within the time limit. The detriments at 2 and 6 (a) to (h), detriments due to protected disclosure or race, are outside the time limit unless the tribunal finds there is a link with the allegations at (i) to (k) sufficient to make it just and reasonable for them to be in time.[109]We found that the allegations (a) to (h) did form a series of similar acts or alleged failures with the allegations at 2(i) to (k). 2(i) is the culmination of the grievance process and therefore brings the earlier allegations regarding the grievance process in time; that is (c), (d) and (e). The allegations regarding MW and the Dignity at Work complaint are inextricably linked with the grievance process. It was clear they were a factor which was causing distress to the claimant and were referred to during the grievance process. With regard to 2(g) AI became involved in trying to manage the relationship with MW which was a factor in the grievance process. The difficulties concerning work allocation to Dr Kazi and the reasons alleged by the claimant for the alleged retraction of the honorary contract were all part of the same factual matrix.[110]As we have found that all of the claims are linked we considered each of the issues in turn. However, as we found that the alleged detriments within the time limit were not because of the protected disclosure or race that in effect means that the detriments after 30 April 2021 are not brought within the time limit. Protected disclosure detriments[111]The claimant alleges that he was subjected to detriments and forced to resign because he raised a grievance on 13 January 2020. He believed he was disclosing information relating to service delivery which meant that the respondent had breached legal obligations and endangered the health and safety of patients.[112]It is accepted in the Grounds of Response that the grievance was a protected disclosure (145). The respondent strongly refutes that the information tended to show what the claimant believed but that is not material to our decision. The point is that we are satisfied that was what the claimant believed and that is what is required for the disclosure to be protected.[113]The claimant alleges the protected disclosure led to matters 2(a) to (k). We considered each of these in turn, deciding if the conduct amounted to a detriment and whether the respondent had demonstrated that the reason for the conduct was in no way related to the protected disclosure.[114]Issues 2(a) and (b) relate to the respondent's alleged failure to promptly address the claimant’s complaints against MW and their failure to separate him from MW. We found that there was a significant delay in formally addressing the Dignity at Work complaint. That was due to the pressures of the Covid pandemic, not because the claimant had made a protected disclosure. We found that the respondent made concerted attempts to address the underlying problem which was the relationship with MW. The respondent took active steps to try and reduce the interaction between MW and the claimant, although they were not able to accede to his request that his work be completely separated. We found they did not ignore his concerns, and they were not motivated to ignore his concerns by the protected disclosure (paragraphs 25-33 above).[115]We found that NS refused to allow the claimant to be accompanied to the Stage 1 meeting by a union representative (issue 2(c)). That was a detriment, although mitigated to an extent as the claimant was accompanied by a colleague. We accepted NS’s explanation that it was a genuine mistake on his part, and if he had known the claimant was entitled to a representative under the policy, he would have been happy to have the representative there. Therefore, we do not find that the protected disclosure played any part in his decision; he would have been prepared to change his position if he had properly understood the procedure (paragraph 36 above).[116]We did not accept the claimant’s interpretation of the Stage 1 grievance meeting (issue 2(e)) as we have set out in our fact findings above (paragraph 41, and 50-54 above). Accordingly, we do not find that the way the claimant was treated at that meeting was a detriment. In respect of the outcome of Stage 1 grievance we found that the respondent engaged with the claimant’s concerns and although they declined to concede to most of his requests they gave careful and serious thought to what they could do to improve the situation. The protected disclosure played no part in their decision not to accede to the claimant’s requests.[117]We do not accept that the respondent received the letter dated 21 June 2020 and accordingly we do not accept there was a detriment to the claimant (paragraph 20 above).[118]The November complaint (issue 2(f)) was not a formal Dignity at Work complaint as alleged in the list of issues but we have considered it nevertheless. We refer back to our conclusions with regard to the first Dignity at Work complaint (paragraph 114 above). We find that the respondent did try and deal with the claimant’s concerns about his relationship with MW after this complaint. In particular AI made fresh attempts to deal with it when he started managing the claimant and discussed with MKi whether it was possible to separate them. He concluded that it was not possible. We were satisfied the failure to concede to his request was not on the grounds of the protected disclosure (paragraphs 26 to 33 above).[119]In respect of Dr Kazi, the comments made by AI were reasonable and justified (issue 2(g)). They concerned an operational matter where the claimant was disobeying instructions. AI did not act as he did on the grounds of the protected disclosure. AI was not questioning the claimant’s professional competence or performance. The claimant’s sense of grievance was unjustified (paragraphs 68 to 71 above).[120]In respect of 2 (h) and 2 (i), Stage 2 and 3 did not overturn the Stage 1 decision. The reasons for not overturning it were related to the substance of the complaints and not on the grounds of the protected disclosure. We found that the response to the grievance at Stage 1 was reasonable and it was not therefore surprising that it did not succeed at Stage 2 (paragraph 63 above). Stage 3 did not overturn the decision because MK found that the panel had considered all the points raised and acted appropriately (paragraph 66 above).[121]We found that AI did not retract the honorary contract (issue 2 (j)). A contract was not agreed (paragraph 76 above). We found that AI was not motivated in any way by the grievance; he had not been involved in the grievance process itself. He had valid reasons for not granting the contract related to doubt about the claimant meeting the requirement for a contract. The claimant was not carrying out ethically approved research. He referred to the difficulties he and colleagues had experienced working with the claimant. We were satisfied this related to the difficulties with MW and not the alleged issues raised in the protected disclosure (paragraphs 77 to 81 above).[122]The request to clear the IT account was not a detriment and it was a reasonable requirement when the claimant left employment (paragraph 82 above).[123]We found that the possibility of part time work was not ignored and was investigated by MKi (issue 2 (k)). It was not offered for a valid reason and that was not related to the protected disclosure (paragraph 75 above).[124]In summary there were no facts from which we could draw an inference that the manner in which the claimant was treated was that he made a protected disclosure. In addition we have considered why the claimant was treated as he was in relation to each issue (applying Shamoon) and concluded that there were valid reasons which were not on the grounds of the protected disclosure. Direct Race discrimination (issues 12 to 16)[125]The claimant relies on his Indian ethnicity. To succeed in a claim for direct race discrimination he would need to establish less favourable treatment.[126]The tribunal were unable to find any conduct by the respondent from which it could infer that the claimant was treated less favourably than an actual or hypothetical comparator.[127]In our conclusions above we set out our findings on the reasons for the claimant’s treatment in respect of each alleged detriment. We found compelling reasons for his treatment in respect of each allegation of detriment which were not in any respect related to his race.[128]In respect of the comparators, the claimant did not advance cogent evidence that they were treated differently or that their circumstances were comparable (paragraph 81 above).[129]In summary there were no facts from which we could draw an inference that the manner in which the claimant was treated was because of his race. In addition we have considered why the claimant was treated as he was in relation to each issue (applying Shamoon) and concluded that there were valid reasons which were not on the grounds of race. Constructive Unfair and Discriminatory Dismissal[130]The claimant’s contract of employment was not terminated by the respondent. The claimant resigned and gave notice. We accept that giving notice is not necessarily inconsistent with constructive unfair or discriminatory dismissal. He clearly had a responsibility to his patients, and it was the end of a very long career so it was understandable that he gave notice. But it is notable that he attempted to secure an honorary contract and part-time work which is indicative that he did not consider at the time that there had been a fundamental breach. He did not make any allegations of race discrimination or detrimental treatment because of the protected disclosure.[131]The claimant’s evidence did not satisfy the tribunal that he was dismissed constructively within the meaning of s.95(1)(c). We found the claimant gave multiple reasons for resigning. His alleged last straws were the argument with AI concerning Dr Kazi and two patient complaints. He felt the management would not support him when there were complaints and he felt the environment he was working in was unsafe. He felt he could not work with MW and was annoyed the respondent would not accede to his request to completely separate them (paragraphs 67 to 73 above).[132]The question of whether there is a breach is to be determined objectively. It is not determined by reference to whether the employee has lost trust and confidence in the employer by, for example, not upholding his grievance or separating him from MW.[133]The tribunal found that the respondent did not breach the term of trust and confidence. The respondent acted reasonably in dealing with the problems the claimant and MW experienced working together and tried to resolve them. AI acted reasonably in admonishing him for referring work against instructions to Dr. Kazi and there was no cogent evidence put forward to suggest that the complaints handling procedure was unfair to him. The respondent listened to his concerns about service delivery and addressed them to the extent it could and considered reasonable.[134]The mistake by NS in not allowing the claimant to be accompanied to the Stage 1 grievance meeting was not a fundamental breach of the contract and not sufficient to constitute a breach of trust and confidence.[135]We found that the respondent did not discriminate against the claimant because of race and accordingly his claim for discriminatory dismissal does not succeed (issue 16 (b)). Automatic Unfair Dismissal (issue 11)[136]We do not find that the grievance was the sole or principal cause for the alleged detriments we have found and accordingly the claim for automatic unfair dismissal does not succeed. Summary[137]The claimant’s complaints are dismissed.[138]I apologise for the delay in sending out these written reasons. Although the request for written reasons was received by the tribunal on 15 November 2024, I did not receive the request for written reasons until 19 December 2024, shortly before the Christmas break, and it has not been possible to finalise the reasons until today. Approved by: