Dr P Boreham v North Bristol NHS Trust: 6003240/2025

EMPLOYMENT TRIBUNALS

Case No 6003240/2025

Between

Dr P BorehamClaimant

North Bristol NHS TrustRespondent

Before

Employment Judge Woodhead

Date 28 January 2026

JUDGMENT

[1]The complaint of unfair dismissal is not well-founded and is dismissed. The Claimant was not unfairly dismissed.

REASONS

[2]I apologise to all those concerned for the delay in issuing this judgment. The delay arises out of the circumstances referred to below and made clear to the parties at the end of the hearing.

THE ISSUES

[3]This claim, being one of unfair dismissal, had not had the benefit of a case management preliminary hearing. The parties had nonetheless been given clear case management orders on 26 July 2025 which set out deadlines for action to be taken and said, amongst other things [HB40]: The hearing will last about 3 days. If you think that is not long enough, you must write to the Tribunal as soon as possible. The normal Tribunal day is from 10am until 4pm with a break for lunch (usually one hour) and 1 of 78 other breaks as appropriate. […] The respondent must produce the electronic file in accordance with that agreement and send a copy to the claimant. The file of documents shall be limited to 100 pages. […] The claimant and the respondent shall prepare full written statements of the evidence they and their witnesses intend to give at the hearing. No additional witness evidence may be allowed at the hearing without permission of the Tribunal. The written statements shall have numbered paragraphs. The claimant and the respondent shall send the written statements of their witnesses to eachother. The length of the statements of each party shall be limited as follows: the claimant (and any witnesses relied on) – 3,000 words in total; the respondent’s witnesses – 5,000 words in total. For the avoidance of doubt, the claimant is a witness and will be expected to provide a statement. […] Where the claimant and the respondent are both professionally represented, the professional representatives shall prepare a draft statement of issues or questions that are to be decided by the Tribunal at the hearing. The draft statement of issues shall be subject to the Tribunal’s agreement at the commencement of the hearing. […] These Orders are made under Rules 30 and 31 of the Employment Tribunals Rules of Procedure 2024. Any person who without reasonable excuse fails to comply with an Order to which section 7(4) of the Employment Tribunals Act 1996 applies, shall be liable on summary conviction to a fine not exceeding £1,000. If this Order (including the timetable) is not complied with, the Tribunal, under Rule 6 of the Rules of Procedure, may take such action as it considers just which may include(a) waiving or varying the requirement;

(b) striking out the claim or response in whole or in part, in accordance with Rule 38;

(d) awarding costs in accordance with Rules 72 - 82. You may make an application under Rule 31 for this Order to be varied or revoked. 2 of 78

[4]There had been a late application for the claim to be amended to include a complaint of wrongful dismissal which was refused by Employment Judge Bax.

[5]Notwithstanding the Tribunal’s orders at the outset of the hearing I was presented with:5.1 A bundle of 731 pages [HB[]]

5.2 A witness statement bundle of 90 pages [WSB[]] including statements as follows:5.2.1 The Claimant [CWS[]] – 62 pages

5.2.2 Dr P Walker (for the Claimant) [PWSS[]] – 6 pages

5.2.3 Mr A Skyrme-Jones (for the Claimant) [ASJWS[]]- 3 pages

5.2.4 Dr S Kumar Patel (for the Respondent) [SKPWS[]] - 7 pages

5.2.5 Mr P Mitchell [PMWS[]] (for the Respondent) - 6 pages

5.2.6 Ms E Poskitt [EPWS[]] (for the Respondent) – 6 pages

[6]There had been an application to increase the size of the bundle (but none that I saw in respect of the word count in witness evidence). On day two of the hearing mention was made of an application to extend the hearing to five days. I was not aware of that until that point. I later came to understand that Employment Judge Dawson in June 2025 refused the application saying “The case will remain listed for three days. This is a straightforward unfair dismissal claim where the potentially fair reason advanced by the respondent is misconduct. It is not in accordance with the overriding objective to list the case for more than three days.” THE HEARING 18 November 2025

THE HEARING

[7]At the start of the hearing, while I completed my reading, I asked the parties to agree a list of issues, a list of disputed facts and a proposed timetable (all based on templates I had prepared before the start of the hearing). The List of Issues that the parties prepared is in the Appendix to this judgment (“the LOI”).

[8]As regards disputed facts the parties said:8.1 Incidents on 3 March 2023, 9 July 2023 and 13 July 2023 are not disputed

8.2 The gravity of what happened on those specific dates is disputed. 3 of 78

[9]I had indicated, in the timetable I asked the parties to complete and agree, that I wanted evidence to have concluded by the end of the second day with written submissions being presented on the last morning (on the facts, law and suggested conclusions). I indicated that oral submissions should conclude at 11am on the third and final day.

[10]The Parties proposed a timetable with clear timings for each witness. They did not dispute the time limit for concluding evidence and suggested that we start hearing evidence at 14:00 on the first day. I did not challenge the timetable and I needed more time to read the extensive witness evidence. I raised the point that the timetable did not take into account time for Tribunal questions and re-examination and that the professional representatives would need to think about how they would allow for this.

[11]I made clear that witnesses/parties could ask for breaks if needed. I reminded witnesses under oath that they were not permitted to communicate with others about the case during breaks or adjournments while they were giving evidence under oath or refer to documents that were not before the Tribunal

[12]The Claimant’s counsel ran significantly over in his cross examination of Mr Patel and I raised this with him and explained that time is not elastic and reminded him of the deadline for concluding the Respondent evidence the following morning. In the event he did not finish with Mr Patel until well after 16:00 and neither party wanted to start a new witness despite me offering a 30 min extension to the hearing day. I agreed to start at 9:30 the following morning rather than at 10am.

[13]There was some suggestion that a further document would need to be found and disclosed.

[14]I emphasised to both parties the need to stick to the timetable that they had agreed and that time was not elastic. 19 November 2025

[15]A new document was disclosed by the Respondent (a behavioural assessment report) which both parties agreed should be admitted. Neither party referred to it in their cross examination of witnesses.

[16]We heard the evidence of Mr Mitchell and I continued to flag to the Claimant’s representative the extent to which he was using up the time available to him. I was satisfied that witnesses were giving direct answers to cross examination and Tribunal questions and that re-examination was taking limited time. The Respondent’s evidence had been due to conclude at 11:45 but Mr Mitchell’s evidence did not concluded until just before mid-day. I raised the timetable again. There was some discussion in which the Claimant’s representative said he was being placed under undue pressure, said that perhaps it was a question of regional tribunal practice and that historically the case might have gone part heard. I referred to the Tribunal rules (but the Claimant’s counsel did not need me to quote 4 of 78 Rule 45). I asked how he was being put under undue pressure given that the parties had not disputed the deadline for concluding evidence and given that I had not challenged their timetable. The Claimant’s representative said he did have an explanation but did not want to answer my point. I gave him a second opportunity to explain his point after hearing from the Respondent, but again the Claimant’s representative declined.

[17]We then heard the evidence of Ms Poskitt. I did not need to guillotine Mr Searle’s cross examination. It was agreed to depart from the original running order and we heard Dr Walkers’ evidence before lunch.

[18]After the lunch break the Respondent concluded cross examination of the Claimant within broadly the timescales agreed.

[19]Notwithstanding the agreed timetable and scheduling Mr Searle had explained that Mr Skyrme-Jones was not available until 16:30. I was happy to hear his brief evidence then but the Respondent was not available to sit beyond 16:30. The parties agreed that we could hear his evidence the following morning and that it would take limited time. They agreed to send in written submissions by 9:00am. 20 November 2025

[20]At the start of the day we heard the evidence of Mr Skyrme-Jones. I then needed further time to finish reading the written submissions sent in by the parties that morning. I then heard oral submissions and the hearing concluded just before 13:00 with an agreement that I would need to reserve my decision. I explained to the parties that, although I would treat it as a priority, the pressure in the Tribunal system is such that there may be a delay in the production of a written judgment and reasons. I thanked all concerned for their help in getting to the point we had and explained the value that I would gain from having the afternoon, immediately after the evidence and submission, to do some preliminary deliberation. I explained that I would prepare this written decision and reasons and made clear that I would not be able to finish that work that day and did not know when I would then the opportunity to complete it because of the pressure on the Tribunal’s list.

FINDINGS OF FACT

[21]Having considered all the evidence, I find the following facts on a balance of probabilities.

[22]The parties will note that not all the matters that they told me about are recorded in my findings of fact. That is because I have limited them to points that are relevant to the legal issues and the points of dispute.

[23]The Respondent is an NHS Trust delivering healthcare services at a number of sites including Southmead Hospital, Bristol and at a number of sites in the community across Bristol, North Somerset and South Gloucestershire [HB28]. 5 of 78

[24]The Claimant was employed by the Respondent as a Consultant Cardiologist from 6 June 2000 until his summary dismissal on 5 November 2024 for gross misconduct. The Claimant was employed at Southmead Hospital [HB29].

[25]Dr A, at the relevant time was, a Consultant Cardiologist, for the Respondent. Policies

[26]The Respondent’s Harassment and Bullying at Work Policy defines bullying as [HB561]: “Offensive, intimidating, malicious or insulting behaviour. Abuse or misuse of power through means intended to undermine, humiliate, denigrate or injure the recipient.” Dr Patel’s role

[27]I accept Dr Patel’s evidence [SKPWS1-2] that he is Medical Director for Medical Workforce, a post which he has held for three years. His role sits within the Chief Medical Officer’s Team and he is responsible for overseeing professional relations and standards in respect of the medical workforce, including managing doctors under Maintaining High Professional Standards in the Modern NHS (“MHPS”).

[28]Dr Patel is a Consultant in Acute Medicine and Rheumatology and has held a Consultant post for 24 years. He has known the Claimant since the mid-1990s and their paths crossed professionally as they worked at the same hospitals throughout their careers, and he has previously referred patients to him.

[29]Dr Patel’s role as Medical Director for Medical Workforce means that, where there is a complaint against a member of the medical workforce, he has to arrange for it to be investigated. He then has to decide whether to convene a Decision Making Group (“DMG”) to consider next steps. One of the outcomes from the DMG can be that an independent disciplinary panel is convened. If that course of action is decided upon then Dr Patel prepares a management statement of case which he presents to the disciplinary panel. Prior formal and informal action

[30]In his evidence the Claimant acknowledged amongst other things [CWS11 – 26] that his social interactions with others have on occasions been poor during his career and he has ended up saying the wrong thing or offending people. He gave examples and explained the pressures of work and why he had made certain clinical decisions, at the same time as accepting that on an occasion a nurse had been right and he had been wrong [CWS14]. He said, referring to one incident, that he did not shout but did raise his voice and was firm. He explained that he is over 6 foot 4 inches tall and said that a blunt statement by someone of his size did make a nurse feel uneasy. He acknowledged that he had previously been given a final written warning which had run from December 6 of 78 2019 to December 2021. This final warning had been issued for a one off incident in May 2018 in which, when challenged on an instruction he had given to colleagues, he had behaved in a bullying and intimidating manner towards them [HB30].

[31]On 22 December 2022 a ‘Dr S’ of the Respondent wrote to the Claimant following an investigation into the Claimant’s behaviour following a Cath Lab project issue which concluded that the Claimant had acted in a manner “not compatible with [the Claimant’s] obligations under the General Medical Council’s Good Medical Practice. […] [the Claimant demonstrated] limited insight into [his] problematic conduct, and the consequent risk of such behaviour being repeated as a result [HB82]”. The Claimant had accepted the findings. Dr S made a number of recommendations:• “A restorative meeting with the attendees of the 8th April meeting, giving them the opportunity to explain the effect of your actions and behaviour at the meeting, and giving space for reflection on this. This meeting will be moderated by an appropriately trained and experienced mediator.

• A 360 appraisal to be carried out, with collaborative selection of appraisers between you and the Trust. The aim of this will be to provide a broad range of fair and constructive feedback on your work and relationships with your colleagues, which can be reflected on and incorporated into your future practise.

• A check-in in four to six months’ time, where we can discuss your reflections on the outcome of the above actions.”

[32]The Respondent said that the 360 appraisal which the Claimant then set up was not effective because he did not included as reviewers any personnel chosen by the Respondent. The Claimant said that he never received names from Dr S. Dr Walker’s evidence

[33]I accept Dr Walker’s evidence that the Claimant:33.1 has from time to time during his career had disagreements with colleagues and the fact he is such a tall man who expresses himself quite forcibly means that people may feel intimidated.

33.2 does not act in a way which is intentionally intimidating or malicious, or with the aim of exerting power over anyone. I note here that the investigation which preceded the Claimant’s dismissal in respect of complaints by nurses found “I have seen no evidence that would lead me to believe this was malicious or intentional and am more inclined to view this as a serious lack of insight on Dr Boreham’s part in that he appears oblivious to the fact that the way he has conducted himself has caused two members of staff to feel physically shaken to the point of reluctance to 7 of 78 work with his patients in future” and it was not the Respondent’s case that the Claimant acted with intent to intimidate or bully.

33.3 can be very forthright in expressing his views, particularly when he feels he is acting in the best interests of patients.

33.4 Was very hard working, helpful on a personal level, good humoured, usually charming, an excellent teacher and very good with his patients.

33.5 There was some history between the Claimant and a ‘Dr A’ in relation to a Cath Lab project which was cancelled which the Claimant was upset about.

[34]I accept Dr Walker’s oral evidence that:34.1 Around a decade prior Dr Walker and the Claimant had had a disagreement and Dr Walker had felt intimidated because of the Claimant’s physical size and his forceful and direct way of express himself.

34.2 Dr A is himself 6 ft 1in and a psychologically robust man who is physically very fit and younger than the Claimant. February 2023

[35]Dr A had a plan for the care of a patient which the Claimant, in conjunction with a Dr Walker, subsequently varied.

[36]Nine days after the patient was discharged [CWS30], on 23 February 2023 at 15:30, Dr A sent the Claimant an email (copied to Dr Walker) which included the following [HB84]: I can see from medical notes that you cancelled the MPI and discharged the patient with 4 month FU under [Dr W]. In my opinion this is unprofessional and unsafe- when a consultant colleague who has dealt with the patient makes a management plan, this should not be reversed unless there is a change in the patient circumstances.

[37]The Claimant replied the same day at 17:56 (copying Dr Walker) explaining why he had done what he had done with the patient and saying: Your opinion was noted but the management plan was made by the clinicians with direct clinical responsibility for the patient as per current protocol. It is good that we can all offer opinions about patient care, but the decisions on patient care are made by the Consultants responsible. 8 of 78 I would advise you against using terms like unprofessional unless you can substantiate them. […]

[38]The following morning Dr Walker at 6:24 [HB85] wrote to Dr A and to the Claimant an email saying amongst other things: […] I did discuss him with PB and based on what I could remember at the time agreed he could go home and be investigated as an OP. In the event he did attend for an OP MPI and I was asked by [OW] if he still needed it, having already had his angiogram. Not recalling all his details I said he didn't and so he didn't have it! I think this demonstrates- a well as my imperfect memory - the difficulty we can have tracking patients along our current, frenetic care pathways. The only way we can work in this environment is to keep strictly to the agreed handover process as it relates to 27a and 27b: C0W2 hands over to C0W1 on 27a and C0W3 interacts with C0W1 when transfers between 27a and 26b are being considered. Within this framework, responsibility for any patient is delegated to the consultant caring for him/her at any one time. [patient] was discharged by PB after consultation with me and because I was the admitting consultant to 27a I'm responsible for his follow-up. We are all doing our best within a rather chaotic system and need to keep talking to each other. I apologise to you both for any confusion I have caused with [PATIENT] but I'm afraid the system is rather set up for us to fail. Miraculously, patients rarely seem to come to grief and was apparently very pleased to have been spared an MPI.

[39]Dr Patel accepted that:39.1 Dr Walker gave a good explanation for what had happened and was trying to ease the friction between Dr A and the Claimant;

39.2 Dr A’s email had been inflammatory;

39.3 The Claimant’s reply had been reasonable.

39.4 The Claimant acted properly in discharging the patient. 9 of 78 3 March incident and 13 March 2023 formal complaint by Dr A [HB117]

[40]Dr A did not reply to the Claimant or Dr Walker. Around eight days later at around 8:45am in the morning the Claimant was passing Dr A’s office and decided to speak to him about Dr A’s comment that the Claimant had acted in an unprofessional and unsafe way. Dr A did not like the nature of the conversation and spoke to Dr Patel about it who advised him of the options which included(i) taking no action

(ii) seeking to resolve the matter informally

(iii) or formally investigating the issue if Dr A made a formal complaint. Dr Patel did not induce Dr A to make a formal complaint.

[41]On 13 March 2023 Dr A decided to raise the matter formally as follows [HB117]: “I was in the office alone at the Avon Way Car Park Offices, when Dr Boreham came into the room. He started to threaten me thathe would sue me. He said that he would call his lawyer and take me to court and sue me if I ever sent him an email like that again. His tone and manner were aggressive, angry and intimidating. It made me feel very uncomfortable and I was concerned that the incident might escalate into physical threats. I told him that I could not stop him if he wanted to speak to his lawyer. I am surprised and shocked by this incident, that a consultant colleague would speak in a threatening and aggressive manner. In my long NHS service, I have never been verbally threatened by a member of staff. […] In my email I stated that it was unsafe and unprofessional to change the management plan without further discussion. Dr Boreham responded by emphasizing that he was the ward consultant, and responsibility for the patient was no longer mine. Although I disagreed with his argument, I decided not to engage in further email exchange on the subject. Having reflected on this incident, I am concerned that a consultant would choose to resolve a difference of opinion in a threatening and confrontational way, by using terms such as "I will sue you". As Clinical Lead for Cardiology, it has. become increasing difficult to work with Dr Boreham due to his uncooperative and aggressive behaviour.” 5 April 2023 meeting with Dr R and Mr C

[42]Dr R at the relevant time was the Joint Clinical Director for Division of Medicine. On 5 April 2023 Dr R, together with Mr C (HR Business Partner) met with the 10 of 78 Claimant so that Dr R could tell the Claimant that a complaint had been made against him that needed to be investigated. There was a dispute between the parties as to where this meeting happened. The Respondent said it was in an office. The Claimant said in his witness statement that it was in a public place by some lifts. The independent investigator, Ms Byrne, interviewed Dr R about the meeting on 21 July 2023. Owing to the serious nature of the meeting on 5 April 2023 and because the account of that meeting given on 21 July 2023 by Dr R and Mr C on 14 August 2024 [HB154 para 21 and 27] is more proximate to the date of his meeting with the Claimant, I consider it more probable that it took place in an office.

[43]In any event, the Claimant’s reaction to the news given by Dr R came to form the basis of disciplinary allegation 2 (i.e. that the Claimant demonstrated a lack of insight regarding his actions in the conversation with Dr A when the matter was raised with him on 5 April 2025 by Dr R). It is clear that the details of Dr A’s complaint were not provided to the Claimant at the meeting and the Claimant was not told that his reaction was going to be judged at the meeting.

[44]Dr R, when interviewed about the meeting, said [HB127]: “It was relatively brief. I told him a complaint had been made. We said due to previous issues that an external process would follow and it had been escalated to the CMO [the Chief Medical Officer, Mr W] for it to start. He asked is it about [Dr A]? and I said yes. I said I can’t tell you the exact details as that’s not the purpose of the complaint. I told him my role was to inform him privately of what’s happening. He was immediately visibly annoyed and was becoming angry but he controlled himself […] He said something like you know what this is about don’t you. I said I’m not going to go into that today and he was shaking his head. It was his non verbal communication that showed he was annoyed and angry. He began to describe what happened but then stopped himself from defending himself but I could tell from his non verbal and some verbal communication that he was very annoyed. There was no remorse or concern for the colleague. No evidence of that just displeasure just annoyance and angry. No reflection of any sort”.

[45]Mr C, when subsequently interviewed by the independent investigator about this meetings said: “It was really just to inform him and to give him an initial comment but not to stray into any pre investigation process as we recognise the need to leave that to the investigator. We wanted to give him the chance for an immediate response.[HB154]”.

[46]It is clear that it was Dr R’s report to Dr Patel of the Claimant’s reaction to the news that a complaint had been made against the Claimant that formed part of Dr Patel’s decision to then convene a DMG to consider next steps [SKPWS5]. 11 of 78

[47]The DMG consisted of Dr Patel, Mr C, Ms N (Associate Director of Medical Workforce), Dr C (Co-Clinical Director) and Dr G (Clinical Director). The DMG took place on 19 April 2023 [HB90] in accordance with Section 8 of the Trust’s MHPS Policy [HB571-572]. The collective decision was to commission a formal investigation, informal efforts to address the Claimant’s behaviour having been unsuccessful. The DMG concluded that the 4 step model [HB632-638] had been met. 31 May 2023 – Dr Patel and PPAS [HB92]

[48]On 31 May 2023 Dr Patel spoke with the Practitioner Performance Advice Service (“PPAS”) and they issued a letter on 8 June 2023 which, amongst other things, said: In summary, [the Claimant] received a final written warning following a panel hearing in November 2019 which expired in November 2021. [the Claimant] has been provided with coaching, a mentor, and underwent a Behavioural Assessment (BA) with PPAS in 2020. The case was closed in December 2022 following the most recent investigation in accordance with Maintaining High Professional Standards in the Modern NHS (MHPS) regarding allegations about [the Claimant]'s conduct towards colleagues. [the Claimant] accepted a number of the allegations during the process and an informal resolution was agreed which included [the Claimant] attending a listening event with colleagues who had been affected by these events. The intention was for [the Claimant] to understand the impact he has on the team and the adaptations they make to try and avoid these incidents. [the Claimant] was also to arrange 360 degree feedback with 50% of participants to be chosen by the Trust, the remainder by him. The situation was to be reviewed in four months. You are familiar with the background and, as the details are contained in earlier correspondence, I shall not rehearse them here. You explained that a further complaint has recently been received from a Consultant colleague of [the Claimant]. […] The Trust now intends to carry out a formal investigation in accordance with Part I of 'Maintaining High Professional Standards in the Modern NHS' (MHPS) on which your local policy is based. […] You are content that the team are able to work together and that there are no patient safety issues. The Trust are not considering any restrictions or an exclusion. As agreed, I have discussed this case with other advisers on an anonymous basis to confirm whether they were aware of any other interventions that may be appropriate. The various communication 12 of 78 courses provided by the MDOs were highlighted as well as the need for an Occupational Health review to ensure there are no underlying health issues. It would also be helpful to ensure that any action points following previous processes, including the BA, have been completed and that appropriate support has been provided by the directorate to facilitate this. Finally, you could consider the use of a Behavioural Agreement if this has not been tried previously. A template can be found here […] [HB92-93]

[49]The Claimant was told on 21 June 2023 [HB95] that he was being investigated formally by letter from Dr Patel which set out the following allegations:49.1.1 That on Friday 3rd March 2023 [the Claimant] spoke to [Dr A], Consultant Cardiologist, about a clinical matter in an aggressive and intimidating manner;

49.1.2 that in the same conversation [the Claimant] threatened to take legal action against [Dr A];

49.1.3 that [the Claimant’s] manner was such that [Dr A] was concerned that [the Claimant’s] behaviour could become physically threatening.

49.1.4 That [the Claimant] demonstrated a lack of insight regarding [the Claimant’s] actions in the conversation with [Dr A] when the matter was raised with [the Claimant] by Dr R. [CWS68]. 21 June 2023 Claimant alleges bias [HB99]

[50]Having received Dr Patel’s letter setting out the allegations to be investigated the Claimant was concerned that Dr Patel was the case manager against him for the second time [CWS69] and he wrote to Mr W, the CMO [HB99-100]. Mr W shared the Claimant’s email with Dr Patel asking him not to allow it to influence the process. Dr Patel replied to Mr W [HB99] setting out his view of his prior involvement with the Claimant.

[51]I do not consider that Dr Patel encouraged Dr A to complain. It is clear that Dr Patel, after receiving Ms Byrne’s investigation report, suggested to the disciplinary panel that he thought that the Claimant should be dismissed and this is not inconsistent with the Respondent’s policies [HB573]. However, he was not the person charged with making the disciplinary decision and he was one member of the DMG. He was also one of only two trained case managers. In the circumstances Mr W did not take the Claimant’s concerns further and the Claimant did not further challenge Mr Patel’s involvement when there were opportunities for him to do so (for example as part of a later grievance against Dr A, when Ms Byrne interviewed him or when Dr Patel told the Claimant that further allegations were to be investigated). 13 of 78 21 July 2023 – Claimant grievance

[52]On 21 July 2023 the Claimant had raised his own grievance against Dr A which read as follows [HB142, 123]: I would like to bring to the attention of the Trust a serious allegation by [Dr A], that my clinical management of a patient was ‘unprofessional and unsafe’ and based on a personal opinion not based on fact. [Dr A], sent me the e-mail on 23 Feb 2023 15:30 copy attached. It stated that I altered the care of a patient under the care of Dr Paul Walker on ward 27A which was ‘unprofessional and unsafe’. As the 2nd of the two Ward Cardiologists, I had discussed the patient with Dr Walker and we had both agreed a plan of action for the patient which was different to that suggested by [Dr A]. I wrote back to [Dr A] pointing out that the current Standard Operating Procedure was for the ward-based Consultants to make the clinical decisions and we were doing just that. I also asked him to refrain from making unsubstantiated comments which were, untrue and extremely unprofessional. I received no acknowledgment or apology from [Dr A]. On 03 March I saw [Dr A] alone in his office and tried to discuss the matter. I informed him that he was making very serious allegations and would seek legal advice if he continued to act in this way. Unfortunately, I’m not sure [Dr A] fully understood my point and we talked over each other until it became clear that I would not get a satisfactory response and left his office. In my mind [Dr A] has made this complaint against me to deflect attention from his own unprofessional behaviours. I would like the Trust to investigate [Dr A]’s actions. […] I am seeking an apology from [Dr A] for his inappropriate comments but hope we can quickly resolve this misunderstanding and continue working together. 27 July 2023 – Appointment of Ibex Gale as investigator [HB103]

[53]On 27 July 2023 the Respondent commissioned an independent investigator, Ms Bryne of Ibex Gale, to investigate the complaint of Dr A [HB103].

[54]Ms Byrne interviewed four witnesses throughout July and August 2023:54.1 Dr A [HB111-115] who commented, amongst other things: 14 of 78 “I don’t think he’s [the Claimant] very open to feedback but that’s my subjective impression. I know there has been investigations before but I don’t want to cloud your judgment. So that was the email exchange. It was finished in my mind and I didn’t expect anything different in the outcome but at least I’ve raised it. […] Yes [the Claimant’s reply was dismissive] but at least I’ve said something and there’s a record of it. My point was to hopefully change some behaviour. I was not planning a conflict or argument. So that was the email. A very dismissive response with no explanation or reflection on what I’d said. There was zero acknowledgement. […] He turned up in the office unexpected at 8.45am on Friday 3 March. I was sat there thinking and planning my day and he sat opposite me. He said to me “if you ever say anything like that again I will sue you. I will call my lawyer and take you to court”. He was leaning forward, very intimidating, very aggressive, […] It is the only interaction I could think of. We do work in the same department and see each other regularly. Since this investigation started he is not speaking to me. There seems to be a significant change of tone. No hellos for example but previously before this we had a mutual working professional relationship. […] Yes [the Claimant was looking at me intensely]. I felt very physically threatened and he was saying that he would sue me. Investigator: How did you react to that? I was very surprised. I’ve been a consultant for 16 years and in the NHS for over 25 years. I have never been spoken to like that ever before. He could have said I didn’t like the tone of your email or can we talk about that, but it was just aggressive and threatening encounter and I felt very uncomfortable. Investigator: What did you say in response? I said calmly if you want to call your lawyers then you can do. He then repeated if you do that again I will sue you. I can’t remember whether he said defamation of character but he was saying he’ll take me to court. 15 of 78 Then he just walked out of the room. He didn’t door slam or anything like that but he was very tense and aggressive posturing. I almost felt like he might lose control. My sympathetic drive was active. My fight or flight. It was very threatening, and I didn’t know what might happen next. I was braced for physical violence but that didn’t happen. Investigator: What happened once he left? I sat there thinking what a way to start the day. I got on with the day but I thought about it over the weekend and I thought Dr Boreham thinks he can get away with behaving like this. He intimidates people who just back down because that’s his personality and I thought that’s not ok and he needs to be challenged on his behaviour. I decided to speak to somebody. He has spoken to me rudely in the past which I’ve just ignored but I decided not to this time. I thought if he talks to the clinical lead like this where is my position or standing. Nobody else knows I’ve taken this action but I thought I have to do something. I thought a lot about whether to do something about it or not and so I spoke to [Dr Patel] on his mobile on the Monday and he said have a think about it and he said put what you happened and how you felt in writing if you want me to look at it so in the email I said I had a concern about a colleague. So I left it with [Dr Patel] to decide what to do. I didn’t say I wanted an independent investigation. I think [Dr Patel] thought about it and discussed it and after quite a long time we are now escalating it to an independent investigation. In my mind I had thought nothing was going to happen about it. I was quite surprised when I got the email from ibex gale. I have mixed feelings about it. Time has passed so things are less raw. It’s good that it’s being challenged but I think it will affect my working relationships. I’ve never raised a concern about a colleague before. It’s usually water off a duck’s back but as I’ve got more experienced I’ve learnt that you should challenge things because otherwise it will continue. Part of me thinks nothing physical happened but I’m also thinking about others too.”

54.2 Dr R [HB126-128];

54.3 The Claimant (on 26 July 2023) [HB129-138];

54.4 Mr C (on 14 August 2203) [HB153-155].

[55]I have taken full account of what the Claimant said to Ms Byrne. I note that he told her that he approached Dr A on 3 March 2023 to elicit an apology [HB132] and that key elements of his account of their interaction were: [the Claimant said to Dr A] “Something like, 'It'd be best you do not write emails of that type without discussing the patient.' Then gave him the caveat, 'If you were to write or make further comments, then I will ask my solicitor to contact you.' Essentially, if he repeated it, I would pursue a 16 of 78 legal recourse. I'm not sure he fully understood what I was getting at. He was speaking back to me that it wasn't appropriate. Then he said, 'Then I will engage my solicitor,' and then we started talking over each other and it didn't make sense, so I left. I told him not to make comments like that to anybody unless you can substantiate them. You don't make personal opinions unsubstantiated, without being sure of your facts. […] I'm in medicine. Your professional qualifications, standing and reputation are important. They engender the confidence of patients and their families and colleagues. I work with 10 colleagues. If it becomes a slinging match where people's reputations are called into question without substantiating them, it's bad practice. […] I could have sent another email asking him to retract that comment. It was an opportunity that happened. He was there alone, I thought it was a good opportunity. I was wondering too, if there was an email, it could be to his detriment in the future. I thought it would be better to complete this between us. [HB132] I worked with him for 14 years, I've been in the trust for 23 years. I've never once been physical with anybody in all this time, including him. He knows that. He's not a small man. He's technically the clinical lead, so he has administrative superiority over me. He's a younger, strong man. I think he has-, shall we say, his imagination has got the better of him. […] I'm not sure you can threaten someone with the law. It's neutral. I don't think you can threaten them with a solicitor. It's not like I said, 'I'll see you in hell, I'll make sure to do you down.' All I said was, 'Write something like that again and you'll get a letter from my solicitor.' That's a promise. I wasn't more aggressive than him. We both got hot under the collar, raised our voices, and spoke over each other. It was an exchange of equals, I don't think there was an imbalance. What was said was given. Given as good as you got. There was no one-sidedness.

[56]In response to other questions from Ms Byrne the Claimant said:

[57]SB: Was the interaction in line with those [NBT trust values]?

[58]PB: I would think that a discussion about professional and personal ethics is part of them, so yes. 17 of 78

[59]SB: Were you respectful to him on that day?

[60]PB: Yes. I deferred to him as a colleague. It's for his own professional sake he should not write things like that.

[61]SB: How did the conversation end?

[62]PB: I just left.

[63]SB: No contact since then?

[64]PB: Yes, we meet each other regularly. It's the same as it was before it happened, still very cordial, as we talk about other things. 57. I consider that it is more probable that relations between Dr A and the Claimant were as Dr A described : “Since this investigation started [the Claimant] is not speaking to me. There seems to be a significant change of tone. No hellos for example but previously before this we had a mutual working professional relationship.”. 58. Ms Byrne produced her report on 24 August 2023 [HB157-174] some of her key findings were as follows [HB168-169]: “40. I find that on 3 March 2023 at or around 08.45, Dr Boreham entered the Cardiology Office where Dr [A] was sat alone at his desk with no others present. I am satisfied that there is consistency in that both Dr [A] and Dr Boreham told me a conversation was then initiated by Dr Boreham who essentially informed Dr [A] that if he made similar comments regarding Dr Boreham’s practice (referring to the ones he made in his email of 23 February 2023) then Dr Boreham would instigate legal action against him.41. I find that Dr [A] responded to Dr Boreham but there is an inconsistency in whether Dr [A] replied that he would also engage his solicitor or whether Dr [A] said “if you’d like to do that, then you can” and I am unable to make a finding in that respect but the evidence suggests Dr Boreham left the room fairly quickly after his initial statement and that the interaction was brief.

42. Dr Boreham disputes that his behaviour could be considered aggressive or intimidating but given the nature of the circumstances of the interaction and the threatening language used by Dr Boreham, it is reasonable for Dr [A] to have considered Dr Boreham’s behaviour to have been aggressive and intimidating and I accept that Dr [A] genuinely found the interaction unsettling and concerning.

43. I do not accept that Dr Boreham’s intention was for Dr [A] to respond to the email or apologise to him that morning as there is no evidence that 18 of 78 a conversation in that regard was initiated. It is more likely that Dr Boreham’s sole intention was to leave Dr [A] feeling intimidated by his threats of legal action and to dissuade him from repeating the behaviour which was offensive to Dr Boreham. There is no evidence that Dr Boreham sought to de-escalate the conflict; indeed his actions had the opposite effect.

44. It is likely that Dr Boreham was leaning forward towards Dr [A] during the interaction and that his body language was hostile. This, coupled with the lack of pleasantries when he entered the room and the threatening language that was used, lead me to conclude that it was reasonable for Dr [A] to have felt physically threatened by Dr Boreham and that the purpose of the exchange from Dr Boreham’s perspective was to leave Dr [A] feeling threatened, even though he denies this was the case.” 59. She concluded [HB174]:

[69]Overall, I consider that Dr Boreham’s behaviour towards [Dr A] on Friday 3 March 2023 could, from an objective perspective, be deemed to have been aggressive, intimidating and threatening and is therefore incompatible with the Trust’s standards of behaviour and conduct required of its staff, the Trust’s values and the standards set out in the relevant GMC guidance including Good Medical Practice (2013).

[70]I acknowledge the email exchange on 23 February 2023 whereby [Dr A] raised concerns with Dr Boreham about the management of a patient and which used the terms ‘unsafe and unprofessional’, which Dr Boreham was particularly offended by. However, whilst this may explain what had provoked Dr Boreham, this does not render Dr Boreham’s actions appropriate.

[71]Whilst I agree that Dr Boreham’s reaction to the information that a complaint had been raised against him during the meeting with [Dr R] and [Mr C]l on 5 April 2023 was less than optimal and not what the Trust would hope for or expect, I have concluded that his behaviour was not inappropriate or in breach of any policies. However, the lack of reflection that he demonstrated and the immediately defensive position that he adopted could reasonably be considered indicative of a lack of insight and self-awareness. His response suggests that he does not accept any responsibility for the situation he finds himself in and that [Dr A] is the aggravating party, not him. Diabetes Specialist Nurses (“DSN’s”) 60. The Respondent has nurses that are specialists in the care of patients with diabetes. They were not assigned to the ward on which the Claimant worked. They visit wards within the hospital where there are patients with diabetes. They therefore visited cardiology patients on the ward where the Claimant worked. 19 of 78 The Claimant had been involved in the treatment of diabetes since he received training as a registrar. A third of all cardiology patients have diabetes which results in the development of coronary artery disease and other cardiac conditions [CWS103]. 9 July 2023 and 13 July 2023 61. On 9 July 2023 and 13 July 2023 the Claimant had interactions with DSN’s visiting the cardiology ward which became the subject of complaints against the Claimant. On 9 July 2023 the Claimant discussed a patient with a nurse I will call “DSN R”. On 13 July 2023 a nurse, who I will call “DSN E” stopped the Claimant during his ward round to discuss a patient that she and a nurse that I will call “DSN K” were treating. In the evening of 13 July 2023 the Lead DSN (who I will call “DSN D”) sent an email to Dr R and others saying [228]: “I was hoping both/either of you would agree to meet with the DSN team so we can raise our concerns to address what we feel is the unprofessional/ bullying conduct of Consultant Dr Boreham towards our team. This has been an ongoing historic issue which we raised a number of years ago, but fear behaviours have not changed. We are all at a point where we feel our only option is to raise this again formally and a grievance if necessary. The DSNs are respectful that Consultant's don't have to follow our advice and we have no issue with others questioning our decisions. But we do have a duty of care to highlight decisions which we feel may cause a patient harm. When a difference of opinion arises, we would expect other colleagues to embrace a healthy/ professional discussion about the evidence base with the best interests of the patient at heart. We can provide specific incidents, but regularly feel belittled and intimidated by Dr Boreham's behaviour when he is present on 27a (a culture which thankfully we do not experience in any other part of the hospital or by any other Consultant). I am now in a position where members of my team are too anxious to attend 27a in case Dr Boreham is on duty as they fear confrontation. This disrupts our service and ability to support patients, but is also highly distressing to a team working really hard to provide exceptional care to our patients under immense pressure. We would be grateful for your time” 62. Dr R and DSN D spoke about the issue on Friday14 July 2023 [HB228] and arranged to speak again on 18 July 2023. It is clear that the DSNs then did discuss their concerns with each other. I find that on the balance of probabilities 20 of 78 they were nervous about raising what were serious concerns against a Consultant and wanted to make sure that they did so in a considered way. I do not find that there is evidence of them colluding to raise false allegations. They, understandably, wanted to validate or test with each other how their experiences of their interactions with the Claimant had left them feeling. The DSN’s put together written ‘Reflective Statements” with the following central complaints:62.1 DSN E (undated) – [HB120-122]. DSN E referred to a clinical disagreement between the Claimant and DSN R on 9 July 2023. She said she believed “the encounter was extremely unpleasant and in front of other members of staff.”. On 13 July 2023 she approached the Claimant to discuss a change in the same patient’s treatment and the Claimant said he would not have a discussion if it related to that patient. When the Claimant confirmed that he had made the prescription in question DSN E challenged him on it. They had a disagreement on the patient’s treatment and she said that the Claimant consistently talked over her, suggested that the DSN team had caused the patient injury (which she disputed) and that the Claimant’s manner was aggressive and rude and she found his attitude intimidating and scary. When she asked him why he was being so rude he replied “I wouldn’t say rude, just forceful”. She said that the encounter left her feeling very shaky and unsettled. She said that she would leave the patient as the Claimant’s responsibility but the DSN team did not agree with his approach. She said she found the whole encounter very distressing, the Claimant had an arrogant manner and appeared not to even consider anyone else’s point of view and appeared particularly to dislike the DSNs. She said they worried about seeing the Claimant’s patients for fear of further confrontation and the incident happened in the middle of the ward in front of others, which had the potential to affect the confidence in the DSN team and cause humiliation.

62.2 DSN D – 26 July 2023 [HB124- 125]. DSN D reported what she had been told as Lead DSN. She also commented on her own experience of the Claimant’s “long standing poor behaviour towards the DSN team” and referred to a statement she had made about him in 2013. As commented by other DSNs, she said that the pharmacist had also questioned the Claimant’s treatment plan. She said she had heard the Claimant continuing to make derogatory statements about the DSN team to others, implying incompetence. She raised concerns about the implications of a consultant being beyond question because of their intimidating manner and said that she had over the years tried to rise above it and find ways to avoid direct interaction with the Claimant or reluctantly withdrawn the DSN input rather than deal with confrontation. She said it had gone on long enough and that it had got to the point where she felt she had a duty of care to promote patient safety, advocate for the well-being of her team (who avoided the Claimant) and protect their positive reputation. She suggested that, as the Claimant had not raised performance issues with their line management (including the diabetes consultants), his remarks 21 of 78 were for the purpose of belittling and causing distress to the DSNs.

62.3 DSN K - 1 August 2023 [HB143]. DSN K described raising concerns about the treatment plan put in place by the Claimant with another DSN who was said she was uncomfortable about raising it with the Claimant and asked DSN K if she could change the plan without involving the Claimant. She then went on to describe the interaction that DSN E had with the Claimant on 13 July 2023. She described the Claimant as dismissive and obstructive, rude and belittling and that the Claimant refused to have a constructive conversation. She said that as a junior DSN she would be apprehensive about approaching the Claimant in the future.

62.4 DSN R – 4 August 2023 [HB147]. DSN R described her interaction with the Claimant on 9 July 2023 complaining that the Claimant had loudly said in front of others that he wanted a different treatment plan. DSN R said she then explained why she disagreed and the Claimant then forcefully questioned her decision making in front of others. DSN R said she “held her ground”, told the Claimant he could change the plan if he disagreed with it, but she was not happy to endorse his approach and the Claimant finally said “just do what you want”. She said the interaction left her feeling very shaken and a junior team member reassured her that she had held her ground well. She said that despite 24 years of diabetes nursing experience, she felt intimidated and was left doubting her decision making. She was concerned that the Claimant’s approach could make other team members doubt the DSNs professional competence. 63. DSN D had commented on DSN E’s reflective statement on 20 July 2023 saying [HB118]: Looks great I would just make it clear that whilst you can’t provide evidence that the regimen wouldn’t work, to your knowledge there is no evidence to suggest that it does, or is it safe. I would add that collective DSN concerns were raised by the Lead DSN to the ward pharmacist (who happens to have been our Specialist Diabetes Pharmacist for many years). The pharmacist also challenged Dr Boreham and advised that the plan was potentially unsafe. Her advice was unable to support a change in the plan. Perhaps the only thing I would add is that the incident happened in the middle of the ward in front of others, which had the potential to affect the confidence in the DSN team and cause humiliation Also that given we had already discussed the approach and education 22 of 78 with patient/ wife our decision was undermined in front of the them You could say he is a frequent attender to SMH and fear that his actions may have also affected future confidence in us Only thoughts….you don’t have to add, or feel free to use own words xx 64. I do not consider that these comments undermined the validity of the reflective statements and consider that they are understandable in circumstances were DSN’s felt that they needed formally to raise collective concerns about their experiences of working with the Claimant. I do not consider it problematic, for example, that the DSN’s all commented and used similar if not identical language to make the point that they had not had similar experiences from anyone else in the hospital. 65. The DSN D sent the reflective statements to Dr R and to Dr C on 4 August 2023 [HB188]. An email from Dr C to Dr Patel, Dr R and Mr C on 24 August 2023 recorded [HB156]: Re: DSNs – [Mr C] went back to the team to see if they could reframe their statements in the form of a grievance (if they felt comfortable to do so) – I think that they are thinking that through as individuals. […] So not much new to report but things in progress. […] 66. On 4 September 2024 Dr Patel asked Dr C and Dr R if there had been any progress with the DSN complaint position [HB177]. He said that, if not he would need to let the Claimant know the outcome of the investigation into Dr A’s complaint and proceed accordingly. It was suggested that Dr C indicated that she was disappointed that the DSN’s had not confirmed that they wanted to proceed with a complaint when she replied “No change on this since my last email I’m afraid” and “I don’t think there is going to be any outcome imminently from either of the above issues, so the current investigation on ﬁndings will likely have to stand alone” [HB177]. I do not read her email in that way. I consider that she was just expressing regret as to there being no update and it was understandable that the Respondent wanted, if possible, for the Dr A complaint and DSN complaints (if taken forward) to be looked at together. That does not mean that there was a scheme within the Respondent to build a case for the Claimant’s dismissal. 67. On 6 September 2023 the Respondent sent the Claimant Ibex Gale’s investigation report into Dr A’s compliant [HB175]. 68. A period of time then passed but the DSN’s then spoke to Mr C and in October 2023 they confirmed that they stood by their statements and wanted to complain 23 of 78 about the Claimant. It is clear that they were nervous about doing that and had met with Mr C and sought the support/advice of a Royal College of Nursing officer [HB181 and 189]. They did not want to add anything by way of bulling/harassment complaints and felt that their statements were comprehensive. I do not consider that an email from Mr C to them could be categorised as encouraging or inciting them to do so [HB190]. I consider that Dr C’s email of 24 August 2023 [HB156] does not accurately frame Mr C’s query to the DSN’s. On 17 October 2023 Mr C confirmed this to Dr Patel [HB190] who on 31 October 2023 confirmed he would convene a DMG and, subject to the DMG’s approval, extend the investigation into the Claimant [HB197]. 69. On 25 October 2023 Mr C confirmed the Claimant’s rota to the DSN team and Dr C so that arrangements could be made for the DSN’s not to have contact with the Claimant [HB194]. 70. On 9 November 2023 the DMG decided to proceed with instructing Ibex Gale to investigate the DSN complaints [HB207]. 9 November 2023 – DMG decides to proceed 71. On 9 November 2023 the DMG convened and at their meeting concerns raised/decisions made were as follows [HB207]:

71.1 Could the Claimant continue to work in a team with clinical colleagues and could that create wider problems, including for patient care, (if colleagues did not feel “psychologically safe”).

71.2 An informal approach having previously been taken, the Claimant being clear on the standards of behaviour expected and there being an apparent pattern of behaviour, a formal approach was warranted.

71.3 Ibex Gale would be asked to investigate the conduct of the Claimant towards the DSN’s (not the nature of the diabetes treatment of the patient – which, whilst unorthodox, might be deemed acceptable). This would be looked at formally in conjunction with the complaint of Dr A.

71.4 The Claimant would not be excluded from the workplace pending the investigation but it would be made clear to the Claimant that if he attempted to interfere with the investigation and there were negative impacts on other staﬀ, there would be serious consequences.

[72]Dr Patel updated the DSN’s on what was to happen [HB210-213]. 28 November 2023 – Respondent tells the Claimant about DSN allegations

[73]On 28 November 2023 Dr Patel spoke with PPAS [HB223-225] and wrote to the Claimant to let him know that there would be a formal external investigation also into allegations made by the DSNs [HB214-219] before steps would be taken in relation to the earlier allegations of Dr A. The letter accompanying Dr Patel’s 24 of 78 email set out the terms of reference for the investigation as follows: 1. That you have had two interactions with members of the Diabetes Specialist Nurse (DSN) team regarding patient care where you have used an aggressive, intimidating and undermining manner; your behaviours have led to significant distress and concern on the part of the DSN team about seeing any further patients under your consultant care. 2. That you demonstrated bullying behaviour (as defined by the North Bristol NHS Trust Harassment and Bullying at Work Policy 2019) towards members of the Diabetes Specialist Nurse (DSN) team. 3. That you show no insight regarding the impact of your interactions with the Diabetes Specialist Nurse (DSN) team.

[74]The letter gave the names of the DSNs who had raised complaints, told the Claimant that he should avoid contact with them and said that “Other individuals may be interviewed if required. You will also have the opportunity to suggest other potential witnesses during your investigation interview.”

[75]The same day the Claimant’s acknowledged Dr Patel’s correspondence saying [HB214]: Received, thank you. I remember this well, a very interesting character. PB December 2023 to January 2024 – interviews with DSNs.

[76]DSN D and DSN E were interviewed on 14 December 2023 by Ms Byrne [HB229-236, 237-243] and DSN K on 15 December 2023 [HB249-254]. Surprisingly Ms Byrne had not been provided with their reflective statements and she had to ask for them [HB245]. There was clearly some concern amongst the DSN’s about coming across the Claimant in work during this period [HB248, 255-256]. On 9 January 2024 DSN R was interviewed by Ms Byrne [HB257- 263].

[77]On 21 December 2023 the Claimant’s trade union representative Ms H, made contact with Mr C [HB271]. On 25 January 2024 Dr Patel wrote to Ms H as follows [HB272-273]: Thank you for your email of 21st December, regarding Dr Boreham’s outstanding grievance. Apologies it has taken us a little while to respond to you. We recognise Dr Boreham’s right to take out a grievance in relation to issues he has a concern about, and that we have a responsibility to 25 of 78 undertake an objective and fair investigation of any grievance. We believe that the recent independent investigation undertaken by Ibex Gale has provided the necessary inquiry into these events, and that it would not be reasonable to expect a second investigation of the same events to take place. We understand that this MHPS investigation has recently been extended to include further allegations, but believe that the initial report which covered the specific events in question here was shared with Dr Boreham prior to that. We do recognize that the Ibex Gale investigation was not specially tasked with making findings on the appropriateness of the treatment plan or [Dr A]’s email, but that these issues were discussed in detail with [Dr A] and Dr Boreham, and their views on the events are detailed within the report. Having considered the comments made by Drs Boreham and Aziz, we agree with Dr Boreham that as the “Consultant of the Week” clinical decision making for ward patients did ultimately rest with him. We also acknowledge that it is reasonable to make changes to pre-existing treatment plans should circumstances change significantly. However, we would also note that, in our view, it would be reasonable for a consultant changing a treatment plan to discuss these changes with the initial consultant decision maker, assuming they are available, and this is the approach usually taken within the division. The Ibex Gale investigation made a number of findings of fact, and reached some conclusions (particularly at Paragraph G on page 2), around the appropriateness of Dr Boreham’s behaviour following the disagreement over the treatment of this patient. Therefore, we do not believe it would be reasonable to conclude that [Dr A] raised a grievance ‘to deflect attention from his own unprofessional behaviours’, as Dr Boreham alleges in his complaint. We would note that the revised Ibex Gale investigation report, and any new conclusions it reaches, is still awaited. As CDs, we will support any recommendations it makes to resolve the issues stemming from these events, and to enable those involved to continue working together, as Dr Boreham states in his grievance he would like to do also. As mentioned in [Dr R’s] previous email to Dr Boreham in October, should you feel that any elements of this grievance are either not objectively covered by the Ibex Gale investigation, or by the response above, we would ask that you detail them in response to this letter. We will look to address any such issues via the grievance process, the first stage of which will be an attempt to resolve them informally. We would be happy to meet and discuss this process, should it be required. If this is not the case, we will consider Dr Boreham’s grievance closed. 26 of 78 6 February 2024 – Claimant interviewed in relation to the DSN allegations [HB274]

[78]The Claimant was not interviewed in relation to the allegations made by the DSN’s until 6 February 2024 [HB274-288]. This was a substantial delay but the Claimant appeared to recall the events [HB214] and was able to put across his response to the complaints against him. Amongst other things he said:78.1 He had dismissed the DSN’s plan, not the DSN’s themselves.

78.2 He did not think that the DSN’s appreciated that he was the person responsible for the patient’s care.

78.3 His interaction with DSN R had been fairly brief, not particularly memorable and that DSN R didn't cry, she was not shaking, he did not notice a trembling in her voice and he did not notice her being upset but she went quiet and left it at that.

78.4 Staff Nurse EB had been strident and offended that the Claimant said he thought they should change the patient’s drug plan. He said that Staff Nurse EB had a reputation for being rude and firm and that while he had been listening to her she had not listened to him.

78.5 He could not have been abrupt with DSN E because she is a persistent woman and he could not get away and he could not get a word in edgeways. He made clear he had been trying to avoid a conversation with DSN E in the first place and when asked if that might have been rude he said: “This is damned if you do, and damned if you don't. No, I knew she wanted to continue the argument or discussion about the treatment. I hoped we had made it clear, but, you know, dog with a bone. She wasn't going to let it go. I didn't say, 'Will you shut up/be quiet/I've had enough,' but unless you speak in a whisper now, everything is a raised voice. It's all a matter of who is monitoring the decibel metre? And the person who complains is usually the person who says the voices are raised. There are loud phones, one has to speak up.”

78.6 He said that his comment about the community DSN team could not reasonably have been interpreted as a slight on the hospital DSN team and that both he and DSN E had been firm but he thought that they had both conducted themselves in an acceptable way notwithstanding that he thought that DSN E had been ruder than he was (DSN E having been a bit abrasive, consistent with her reputation). He respected the fact that she held to her views.

78.7 In response to a question as to whether there was anyone else he thought 27 of 78 Ms Byrne should interview he said Dr Skyrme-Jones and Staff Nurse EB, “but I would be surprised if they can remember this conversation" and that there were others whose names they may be able to recall. 124. The DSN’s were not malicious in raising their complaints “more scraping the bottom of the barrel, bringing things up, fishing for things to bring up”.

[79]On 6 February 2024 Dr Patel spoke again to the PPAS [HB291]. On 7 February 2024 Ms Byrne asked Dr Patel to ask the two people who the Claimant mentioned as having been potential witnesses (Staff Nurse EB and Mr SkyrmeJones) whether they had any evidence on the 9 July and 13 July interactions with the Claimant [HB190, 293, 294].79.1 Mr Skyrme- Jones replied [HB294] “I am not on usually on the ward when PB is COW 1/2 as our on call weeks do nor overlap. Also 9 July was a Saturday. So whilst it is a long time ago I cannot remember any notable and concerning episodes of PB interaction with the Diabetes team from then.”

79.2 Staff Nurse EB did not reply. She was later contacted by Ms H (the Claimant’s union representative) and replied as follows on 21 September 2024: “I'm not sure how helpful I can be. I am not available on 3rd October for the hearing. I recall very little of the detail from 13th July, I'm not sure what 9th July relates to.”.

[80]On 19 February 2024 Ms H wrote a further letter with comments in respect of the Dr A matter [HB300-301], raising the matter of the Claimant’s grievance against Dr A and raising matters in respect of the investigation of the DSN complaints. March 2024 – Ibex Gale investigation report Part 2 prepared [HB303]

[81]In March 2024 Ms Byrne finalised and issued her investigation report into the DSN complaints [HB303 – 317].

[82]As regards the events of 9 July 2023 Ms Byrne concluded [HB312]:38. The evidence suggests that there was an altercation between [DSN R] and Dr Boreham on 9 July 2023 regarding a difference of clinical opinion in the proposed diabetes management plan for patient [patient initials].

39. I find that there was some lack of knowledge and misunderstanding on both sides as neither provided any insight on the others reasoning for their proposed plan and neither party were aware that the other had spent time with the patient's wife. However, I do find it likely that that Dr Boreham approached the situation in an obstinate and disrespectful manner and gave the impression that he was not prepared to listen to [DSN R]’s viewpoint or explain his own reasoning for his position which 28 of 78 led her to feel dismissed, undermined, devalued as a colleague, intimidated and ‘shaken’.

[83]As regards the events of 13 July 2023 Ms Byrne concluded [HB315]:60. The evidence supports that there was an altercation between [DSN E] and Dr Boreham on 13 July 2023 and that this was also due to the difference of clinical opinion with regard to the diabetes management plan for patient [patient initials].

61. I find it that Dr Boreham took the same position as he had on 9 July 2023 in that he immediately refused to listen to [DSN E]’s views but that his frustration appears to have escalated further this time likely due to the fact that the DSN team had not accepted his decision and continued to express their concerns in an attempt to change his opinion, which he was not prepared to do. During this incident, which was witnessed by a colleague, Dr Boreham is described as having been hostile, dismissive and extremely rude and, on balance of the evidence available, I find this likely to be true despite Dr Boreham’s protestations that his interaction with [DSN E] was acceptable behaviour though not ‘particularly easy or smooth’. As a result of this behaviour towards her, I find that [DSN E] was left offended, ‘shaken’ and ‘scared’ to work with Dr Boreham’s patients in future.

[84]Her overall conclusions were that the Claimant’s behaviour could amount to bullying under the Respondent’s policies in that the DSN’s in question felt intimidated and insulted but that it was not malicious or intentional. She found that the Claimant appeared oblivious to the fact that the way he had conducted himself had caused two members of staff to feel physically shaken to the point of reluctance to work with his patients in future [HB316]. She found that he had not met the standards expected of all medical professionals in particular the requirement to treat colleagues with kindness, courtesy and respect and to help to create an environment that is compassionate, supportive and fair.

[85]On 24 April 2024, Dr Patel wrote to Ms Byrne as follows [HB320]: “[…] Also…as we previously discussed, Dr Boreham raised a grievance as per Trust policy against [Dr A] (who made the original complaint that was the ﬁrst part of this investigation). Our feeling was that as this matter involved two individuals and not lots of other people, the investigation that you were undertaking regarding the incident between Drs [A] and Boreham would cover this oﬀ. Would you be able to review and consider whether the issues raised in 29 of 78 Dr Boreham’s grievance are covered in your report, please?”

[86]Ms Byrne replied: “Essentially, you will need to be satisﬁed that you are able to respond in full to the concerns Dr Boreham has raised and that you have all the information you need to be able to provide your response. If you feel there are gaps missing we are able to investigate further at your instruction.” 1 May 2024 – Grievance Outcome and Part 2 report provided [HB323]

[87]On 1 May 2024 Dr Patel wrote to the Claimant as follows [HB323-324]: I have received the final report from Ibex Gale. I have attached both parts of the report for you to read. I have considered the report findings and have decided that there is sufficient cause, with respect to the original Terms of Reference, for this matter to be considered by a panel in accordance with Maintaining High Professional Standards. I note that you submitted a formal grievance on 20th July 2023 regarding the professional behaviour of [Dr A]. You were informed that as this grievance was linked to the allegations against you that these matters would be investigated concurrently as part of the independent investigation into these allegations against you. I have reviewed the details of the first part of the report received in August 2023, and have concluded that the details of the grievance that you submitted have been investigated and addressed during the first part of the investigation. I would specifically make the following comments: 1. The details of the e-mail exchange between yourself and [Dr A] on 23rd February 2023 have been reviewed and considered in the report as relevant context…to properly understand the background to [Dr A]’s complaint (page 1). In addition, the report author states Where I make findings of fact and draw conclusions within this report I do so on the balance of probabilities based on the interviews…and the information available to me…(page 4). 2. [Dr A]’s use of the phrase unprofessional and unsafe in the e-mail of 23rd February 2023 referred specifically to the discharge of the patient and the cancellation of the MPI scan. 3. The report acknowledges that Dr Boreham felt particularly offended by the email exchange on 23 February 2023 where [Dr A] raised concerns with Dr Boreham about the management of a patient…(page 2). 4. Whilst acknowledging your view of the interaction with [Dr A] on 13th March 2023, the report states Hs(sic) response suggests that he does 30 of 78 not accept any responsibility for the situation he finds himself in…(page 2). 5. With respect to [Dr A]:a. He clarified at interview that the intention of his email was to raise a concern… (page 6).

b. He described the email of 23rd February 2023 as outlining his professional assessment (page 6).

c. He stated that he was keen to ‘tackle issues as they arise’ and that he wanted to discuss the issue openly (page 6). 6. I note that you explained that you felt that [Dr A] was saying that you were personally ‘unprofessional and unsafe’ rather than the decision making itself. As a result of the above, I believe that you interpreted [Dr A]’s email to you as a personal slight, whereas he was referring to the process of discharge and cancellation of the MPI scan. I have attached a copy of the Trust Grievance Policy and you will see that you have the right to appeal my conclusion in relation to your grievance should you wish to do so. However, should you decide to do so, that will not preclude a formal hearing process, which will now proceed. I will be in contact shortly with further details of when and where the formal disciplinary hearing will take place and the potential consequences of the outcome should the panel uphold the allegations made against you. […]

[88]Ms H wrote on the Claimant’s behalf wrote on 30 May 2024 [HB327]: […] I have carefully read the reports of the recent investigations into Dr Boreham’s conduct and it is very clear from the evidence that has been collected that this case should not be going to a disciplinary hearing. It is extremely clear that this situation arose from poor communication between colleagues. It has been suggested that the email from [Dr A] to Dr Boreham was referring to discharge of a patient in general, when in fact this was a direct, unsubstantiated and defamatory criticism of Dr Boreham’s clinical practice. 31 of 78 The most appropriate cause of action would be for the Trust to engage in mediation (for those concerned) which is more appropriate as there have been several misunderstandings. I have worked for many years in HR & Management in the NHS and such incidences are resolved better through mediation rather than through a disciplinary hearing which is unnecessary, timely and costly when the NHS is already over stretched and need as many hands as possible to ease some of the pressures. […]

[89]Dr Patel did not reply until 28 June 2024 [HB330-331]. He did not take up the offer of mediation (reasonably in my view given the seriousness of Dr A’s complaint) and indicated that he intended that there be a disciplinary hearing on dates in mid-August.

[90]I do not consider that Dr Patel’s grievance decision was adequate. Dr A’s email made clear that he was expressing a personal opinion on what the Claimant had done. However, it was not unreasonable for the Claimant to have considered it a quite serious personal slight on his professionalism. It was not reasonable for Dr Patel to have:90.1 suggested that the Claimant should not have taken it as a personal slight because Dr A was “referring to the process of discharge and cancellation of the MPI scan”;

90.2 tried to suggest that there was a distinction between Dr A’s criticism of ‘the decision making” as against the Claimant personally being ‘unprofessional and unsafe’.

[91]Dr A was clearly expressing an opinion which was critical of the Claimant’s professional decision-making and the Claimant was entitled to take that criticism personally. Dr Patel should have acknowledged this. The Claimant initially did the right thing in making his views clear in an email. What he should not have then done was confront Dr A. Had he felt it needed to be taken further than his email then he should have engaged in the Respondent’s formal processes and raised a complaint against Dr A. However, the Claimant did not appeal Dr Patel’s finding. His position was that he did not agree with the decision but did not think it was worthwhile appealing.

[92]On 1 July 2024 Dr Patel again spoke with PPAS [HB333-334]. Ms H was not available on the dates proposed for the disciplinary hearing [HB336]. After consideration of available dates, on 15 August 2024 the Claimant was invited to a disciplinary hearing which was not scheduled until 3 October 2024 [HB338- 340]. The disciplinary allegations read as follows: 1. That on Friday 3 rd March 2023 you spoke to [Dr A], Consultant Cardiologist, about a clinical matter in an aggressive and intimidating 32 of 78 manner; that in the same conversation you threatened to take legal action against [Dr A] and that your manner was such that [Dr A] was concerned that your behaviour could become physically threatening. 2. That you demonstrated a lack of insight regarding your actions in the conversation with [Dr A] when the matter was raised with you by [Dr R], Co-Clinical Director for Medicine. 3. That you had interactions with members of the Diabetes Specialist Nurse (DSN) team regarding patient care on 9th and 13th July 2023 where you used an aggressive, intimidating, and undermining manner; your behaviours led to significant distress and concern on the part of the DSN team about seeing any further patients under your consultant care. 4. That you show no insight regarding the impact of your interactions with the Diabetes Specialist Nurse (DSN) team. 5. That one or both incidents demonstrated bullying behaviour (as defined by the North Bristol NHS Trust Harassment and Bullying at Work Policy 2019) towards these members of staff. 6. If the above allegations are proven that these actions are incompatible with the standards of behaviour and conduct required of its staff and Trust values and the standards set out in the relevant GMC guidance including Good Medical Practice (2013) and (2024).

[93]The letter also said (emphasis added): “As a result of the Disciplinary Hearing you should be aware that the outcome may lead to disciplinary action (or if found to be gross misconduct or a failure to respond to previous formal warnings may lead to your dismissal) under the Trust’s Disciplinary Procedure.”

[94]In August there was correspondence between the Respondent and Ms H as regards the extent to which the Claimant’s earlier and expired two year final written warning (issued in 2019) could be taken into account at a further disciplinary hearing. She also requested copies of PPAS letters and she and the Claimant objected to the panel composition in particular fearing that HR representatives would have access to the Claimant’s personnel file. At the end of August the Respondent confirmed to Ms H: “In terms of the panel, the reason the panel has been made up in this way is because we have had to accommodate both yours and Dr Boreham’s leave arrangements. We wanted to hold this panel hearing a few weeks ago and had to re-arrange this and you both have had limited availability between then and November. There are no other Executives available on this or another date around this limited window of time. I disagree robustly that having two HR reps means they will be colluding with each other. The Chief People Officer, is relatively new in post and here on an interim basis, so will not have any historical knowledge of Dr Boreham to call upon. In any event he is acting in his role as Executive Director not in a HR 33 of 78 capacity, he will be seeking advice from the HR representative on the panel. Both are senior enough and professional enough within the organisation to know that they have to base whatever findings they come to as a panel on the evidence that is presented to them at the hearing.” I consider this to have been a reasonable response. 19 September 2024 – Management Case [HB362]

[95]On 19 September 2024 Dr Patel submitted his management statement of case which recommended to the disciplinary panel that the Claimant be dismissed [HB362-377, 377]. This was sent to the Claimant on 24 September 2024 [HB395]. I note here that the Claimant objected to the following detail having been included in the management statement of case as relating to an expired warning but consider that it was relevant information for the disciplinary hearing panel: Relevant Background Context: Agreement with Dr Boreham regarding his conduct December 2022: The interaction with [Dr A] occurred on 3rd March 2023, three months after a letter was sent to Dr Boreham on 22nd December 2022 by [Prof S], Deputy Chief Medical Officer at NBT, which summarised an informal investigation process related to Dr Boreham’s behaviour towards colleagues at a meeting in April 2022. The investigation found that Dr Boreham had shouted during the meeting, described colleagues as unprofessional and said that they did not know what they were doing, and that his behaviour had caused colleagues to feel intimidated and embarrassed. Dr Boreham’s behaviour was found to be incompatible with his obligations under GMC Good Medical Practice, and that colleagues took steps to avoid or mitigate his inappropriate conduct. The investigator also noted Dr Boreham’s limited insight into his problematic conduct, and the risk of such behaviour being repeated as a result. During a meeting to discuss the investigation In December 2022, Dr Boreham had accepted the findings of the investigation and the recommendations in full. He was reminded of the need to be aware of the impact our actions can have on others. It was agreed that there would be three outcomes for restorative and/or reflective action: 1. A restorative meeting with the attendees of the meeting in April 2022, in which the impact of his behaviour could be explained and reflected upon. 2. A 360 appraisal with appraisers chosen by Dr Boreham and the Trust to provide a broad range of fair and constructive feedback about Dr 34 of 78 Boreham’s work and relationships with colleagues. 3. A check-in in four to six months (ie by June 2023) to discuss Dr Boreham’s reflections on the process. None of the above actions were undertaken, in the main because there had been insufficient time from the recommendations before the next incident occurred. Previous Professional Support for Dr Boreham: Dr Boreham was also the recipient of two other interventions to help to support him and his professional development: 1. In 2017-18 he received three individual professional coaching sessions during which the coach stated that they believed that Dr Boreham recognises the impact he has on others can be intimidating and that as a result he is taking steps to act in line with the Trust values: Recognising the person and Working well together. 2. In 2020 Dr Boreham underwent a Behavioural Assessment that was undertaken by an Occupational Psychologist from Practitioner Performance Advice (part of NHS Resolution). Feedback from this process included the following comment: A focus on how he might be better able to pick up on the emotions and feelings of others ‘in the moment’ could benefit his ability to engage effectively with…as well as colleagues. …Dr Boreham may find it helpful to focus on developing techniques for offering challenge or criticism to others in a constructive fashion whilst staying true to his desire to be direct…it is recommended that Dr Boreham continues to reflect on how he might find ways to identify his main sources of frustration and act on them in a constructive way. Dr Boreham could take more opportunities to understand the impact of his approach to interacting with different members of the team. This would likely be a starting point for providing greater levels of self-awareness and identifying possible modifications to his approach which may be beneficial. Whilst he may be prepared to agree to undertake some form of development work for the sake of ensuring he is able to continue in his current role, unless he engages with this beyond paying ‘lip service’, it is unlikely to have long-term impact. 35 of 78 …a first step in any form of ongoing development work would be to encourage Dr Boreham to spend some time investigating feedback from others (especially colleagues but also patients) on his working style and approach to help him to self-identify any areas for improvement. In terms of interactions with colleagues…Dr Boreham demonstrated more openness that his direct style might not always be appreciated or work to best effect. …Dr Boreham exhibited a tendency to attribute the cause of the issue more to the person on the receiving end rather than recognising what was within his control, and this appears to affect the extent to which he has engaged in efforts to moderate his approach… This suggests a somewhat dismissive attitude towards the feedback shared and a degree of unwillingness to adapt …Dr Boreham may find it helpful to focus on developing techniques for offering challenge or criticism to others in a constructive fashion whilst staying true to his desire to be direct. …the psychometrics which describe Dr Boreham as someone who is more likely than most to feel angry or frustrated with other people…Dr Boreham’s current strategy for managing these frustrations at work is to avoid entering into discussions that might lead to potential conflict. …it is recommended that Dr Boreham continues to reflect on how he might find ways to identify his main sources of frustration and act on them in a constructive fashion. There was less evidence of how he engages in development in terms of seeking to enhance his interpersonal skills… Whilst he did engage in coaching… the insights he has taken away from this appear to be somewhat limited…and he demonstrated little motivation to continue to engage with efforts to adapt his style other than choosing to avoid interactions that may lead to conflict. Following the investigation into Dr Boreham’s actions, I conclude that there is a case to answer, in that Dr Boreham: 1. Did behave in an aggressive, intimidating, and threatening manner towards [Dr A] on 3rd March 2023; his behaviour was in breach of Good Medical Practice (2013) paragraphs 24, 35, 36 and 37. 36 of 78 2. Did demonstrate bullying behaviour (as defined by the North Bristol NHS Trust Harassment and Bullying at Work Policy 2019) towards [Dr A] on 3rd March 2023. 3. Did demonstrate a lack of insight regarding his actions in the conversation with [Dr A] when the matter was raised with him by [Dr R], Co-Clinical Divisional Director for Medicine. 4. Did demonstrate behaviour towards members of the DSN team on 9th and 13th July 2023 that was in breach of Good Medical Practice (2013) paragraphs 24, 35, 36 and 37. 5. Did behave in an intimidating, dismissive and increasingly hostile manner towards members of the DSN team on 9th and 13th July 2023 which would fulfil the definition of bullying under the North Bristol NHS Trust Harassment and Bullying at Work policy 2019. 6. Did demonstrate a lack of reflection and adopt a defensive position regarding his actions demonstrating that he has little insight into the impact of his behaviour. 7. Did seek to deflect away from his own poor behaviour by accusing others ([Dr A], [DSN R] and [DSN E]) of being at fault and not accepting any responsibility for his behaviour. 8. Has repeatedly (2022 and 2023) demonstrated behaviour towards colleagues that is incompatible with his professional obligations as set out in Good Medical Practice (2013) paragraphs 24, 35, 36 and 37. 9. Has repeatedly (2022 and 2023) shown a lack of insight regarding his adverse conduct towards colleagues, despite his behaviours having been discussed and the nature of the issues explained to and discussed with him. 10. Has demonstrated a repeated pattern of behaviour (2022 and 2023) regarding adverse conduct towards colleagues whilst still completing remedial actions from a previous incident regarding his conduct. 11. Has failed to moderate his professional behaviour to prevent adverse incidents with colleagues, despite formal external assessment and coaching support.

[96]The same day, 24 September 2024, the Claimant sent the Respondent his own statement of case [HB396, 408-419]. That said amongst other things: “The issues within the statement from a management perspective is that it is drawn from numerous people, where they could have been malicious in nature given the “Toxic Culture”. This raises the question on motivation for 37 of 78 making these allegations.” The Claimant did not make this statement clear. “Dr A - Once he understood what I was saying he became angry and raised his voice, and we ended up talking over each other and I left. […] he didn't seem intimidated then and there was no likelihood of a physical threat which he knew. I suspect he exaggerated his impression of my intentions to justify his complaint against me. […] The discussion between [Dr A] and Dr Boreham may have been heated but it was not overheard or witnessed and as such is one word against another.” I do not consider it probable that Dr A would have raised his complaint to justify the comments Dr A had made in his email to the Claimant. In fact, raising the complaint against the Claimant made it more likely that his own email would be scrutinised. “DSNs - On the 13th March she returned with her colleague [DSN E] who is known to the wd27A nurses as an uncompromising abrasive individual. I explained the situation and again she refused to alter the insulin so I informed her I would do it and ask the Community Diabetic nurses to check on the patient. On both occasions our discussion were held in the nurses station with several nurses and doctors present. Those present included senior [Staff Nurse EB] (see appendix 5) and Consultant Cardiologist Dr Andrew Skyrme-Jones (appendix 4) all of whom overheard our conversation as we were sitting next to each other. As you will see from both [Staff Nurse EB] and Dr Andrew Skyrme-Jones that they do not remember much of the event because there wasn’t much to remember. […] The DSNs were in the company of colleagues and my comments tried to emphasize the need for their ﬂexibility but my insight clearly told me their minds were made up and they would not help. They showed no signs of distress, there were no tears or verbal complaints of how rude or unpleasant I was allegedly being, for the simple reason that I was civil to both of them on each occasion. […] to confuse a diﬀerence of opinion with abusive behaviour which is both inaccurate and unfounded […] Dr Boreham has not been respected by Dr A and the DSN team with the decisions he took concerning a patient and was not respected and valued as a colleague and yet he is being taken to task at a disciplinary hearing which is completely unjustiﬁed.” 38 of 78 3 October 2024 – the disciplinary hearing

[97]The disciplinary hearing took place as scheduled on 3 October 2024. Mr Mitchell chaired the panel which also included Dr K (Deputy Medical Director at Gloucestershire Hospitals NHS Trust) and Ms M (HR support). I was provided with the notes of the hearing [HB427-442] and an Opening Statement [HB422 – 424] and Closing Statement [HB425 – 426] of the Claimant. Also in attendance were:97.1 the Claimant;

97.2 Ms H

97.3 Dr Patel (who presented the management case)

97.4 Ms Byrne (Case Investigator via Microsoft Teams)

97.5 Mr C (HR Business Partner in support of Dr Patel).

[98]Amongst other things Ms H at the hearing said that the issues in question should not be subject to disciplinary action and that mediation was more appropriate. Given the nature of the complaints I do not consider that was a reasonable suggestion. Neurodivergence

[99]As regards neurodivergence there was the following exchange at the hearing between the Claimant’s representative [D] and Ms Bryne [SB] [HB430]: “D – not everyone shows emotions in a neurodivergent way.. also noted by [Dr R] and [Mr C]. SB – neurodivergence was never presented to me as something to consider we are conscious of this but never put forward to me, if it had, i would have considered any mitigating impact D – findings are opinions rather than fact, would you agree?

[100]There was also then the following exchange between the Claimant’s representative [D], Dr Patel [S] and the Claimant [Dr B] [HB438]: “S – do you think the datix was reasonable? Dr B – yes as she noted the facts of the case, and not my behaviour S – you previously recognised your behaviour could be intimidating? – coaching in 2018 39 of 78 Dr B – the woman was brilliant, she pointed out to me that I am a very tall and when I stand I tower over people, she suggested you should think about sitting more, as height can be intimidating to some individuals so I am mindful of this and will always sit and step away S – were they entirely to blame for the interactions? Dr B – no one is entirely to blame, there are always two sides S – do you accept responsibility? Dr B– yes, I am the other side of this. In regards to Dr A – he robustly defended his situation. S – demonstrated any impact you had on the others? Dr B – Demonstrate it no, accepted the first nurse was quite quiet, second I knew [DSN E] she comes to the ward quite often, not easily intimidated I didn’t intend to. I just wanted a conclusion to the conversation rather than open ended. I have a big voice, I am slightly deaf, I work with geriatrics I speak loudly my children ask me to turn the volume down, I am aware of all these impacts. S – you mentioned about neurodivergence this is the first it was mentioned? D – just for broader context, to make awareness. S – general comment or something to be considered Dr B? D -general S – good medical practice, your interaction demonstrated a: open and safely? Dr B – yes S – working collaboratively Dr B – Yes S – respect Dr B – Yes S – awareness 40 of 78 Dr B – yes, some idea may be a bit black and white and brief, but I know some will find my manner overbearing as I am tall and loud S – previous professional support, 2020 – do you pick up on emotions in the moment? Dr B – no S – have you developed techniques for offering challenged critique to others in a constructive fashion? Dr B – asks for question to be explained further / paraphrased Sometimes no, I can get caught out but rarely, mostly can see where a conversation is going, 2-3 years ago I was caught out in a meeting, mostly not an issue not recurring problem”

[101]I note this comment as regards the extent of the Claimant’s contrition and as regards his later diagnosis of ASD (addressed below). However, I do not consider that the reference to neurodivergence was sufficient to put the Respondent on notice that it might need to explore neurodivergence as a possible contributory factor to the nature of the Claimant’s interactions with others.

[102]Ms H also submitted for the Claimant that “Since Dr Boreham joined NBT, the professional working relationship with Dr Patel has at times been fractious, they do not share much in common accept mutual dislike which implies that there is another motive here against Dr Boreham.”. She said that accusations in Dr A’s email had been given insufficient consideration. Contrition and insight

[103]Exchanges relevant to the question of contrition and insight shown by the Claimant also included comments as follows by the Claimant [K being Dr K] [HB440]:103.1 That the three incidents were unfortunate and isolated.

103.2 That on reflection, as regards his interactions with the DSN’s: “try and spend more time, rather than rush the conversation which is what I was doing. It was more decided to differ lets leave it at that. My brevity was misconstrued as being undermining and dismissive and perhaps should have slowed down and asked what to do. […] times have changed, social interaction has changed, no longer acceptable to be brief or black and white. People want context and where you are coming from. We would do this because XYZ… rather than just saying what would be done. We need to be more conversational. […] it is good [that people speak up and come forward], people are overly sensitive and misconstrue a problem or 41 of 78 meaning of what I was saying. No longer coward into silence, however everything can be perceived as an offence tread on eggshells.

103.3 As regard Dr A: “conversations with him can be loud, generally not just with me. Occasionally prone to loudness, I am not one to criticise. We worked together for 16 years, but not closely. We share common ideas in medicine and cardiology. Have we ever met socially? No, we have been at departmental meetings together and away days. We are not close personal friends but are close colleagues. I do not know what possessed him to send that email.”

[104]I conclude that the Claimant did show awareness of how he can come across and the impact that he can have on other people. However, he did not materially acknowledge how his conduct towards Dr A had made Dr A feel. The Claimant’s focus was on Dr A’s provocative and insulting email and Dr A’s robustness. He also did not materially accept fault in how he had made the DSN’s feel. Exclusion of the Claimant from the workplace [HB434]

[105]As regards exclusion/suspension of the Claimant from the workplace pending the investigation and disciplinary process, Dr Patel explained the four step model and MHPS policy and that the Respondent should avoid restriction and exclusion unless absolutely necessary. Ms M reiterated that the goal of the policies is to avoid suspension because of the potential harm and reputational damage. Mr Mitchel was concerned to understand the interplay between allegations which Mr Patel said warranted dismissal and Mr Mitchell’s expectation that in those circumstances there would be some restrictions on and/or suspension of the Claimant. Mr Patel had explained that they had assessed that there was no evidence of unacceptable risk and had decided to avoid exclusion. He explained that measures had been taken to minimise future interactions between the DSN team and the Claimant.

[106]After a period of deliberation the panel briefly confirmed that they had concluded that the allegations were well founded and that they would take some time to consider the appropriate sanction [HB442]. 5 November 2024 decision letter

[107]The panel then issued their outcome letter on 5 November 2024 confirming their decision to dismiss the Claimant with immediate effect as follows [HB460-466]: […] At the start of the hearing, [Ms H] raised concerns with the inclusion of information about previous concerns with your behaviour and conduct. 42 of 78 She cited Section 16.6 of the Trust’s MHPS Policy in reference for time limits for formal warnings. It was acknowledged that the information on pages 12 and 13 of the management case were included as contextual information about your pattern of behaviour and previous actions taken to support you. It was also confirmed that the pack referred solely to informal management and did not reference any warnings. [Ms H] confirmed that you agreed to the hearing proceeding on this basis. Allegations The hearing was convened to consider the following allegations: […] Documents The following documents were received by the Panel prior to the hearing as follows:(a) Management Case of 19 September 2024 and investigation Reports on August 2023 and March 2024,

(b) Your Statement of Case prepared for the hearing of 3 October

(c) Additional documents provided to the panel on 3 October including PPA letters of 8 June 2023, 4 October 2023, and 7 December 2023, and an email exchange between you and Paul Walker in February 2023. Findings The facts that contributed the panel’s conclusions against each of the allegations are as follows: 1. That on Friday 3 March 2023 you spoke to [Dr A], Consultant Cardiologist, about a clinical matter in an aggressive and intimidating manner; that in the same conversation you threatened to take legal action against [Dr A] and that your manner was such that [Dr A] was concerned that your behaviour could become physically threatening. 2. That you demonstrated a lack of insight regarding your actions in the conversation with [Dr A] when the matter was raised with you by [Dr R], Co-Clinical Director for Medicine. On 23 February [Dr A] wrote to you, expressing concerns about a patient who had undergone a coronary angioplasty procedure and for whom he 43 of 78 had ordered a scan that you subsequently cancelled and discharge the patient. He challenged your decision to change a patient’s treatment and described this as “unprofessional and unsafe,” you visited his office eight days later. You informed [Dr A] that if he made similar comments in future then you would instigate legal action against him. The investigation concluded that, “given the nature of the circumstances of the interaction and the threatening language used by Dr Boreham, it is reasonable for [Dr A] to have considered Dr Boreham’s behaviour to have been aggressive and intimidating.” You accepted that following the email exchange with [Dr A] on 23 February, you had visited him in an office, that you challenged him on his use of the terms “unprofessional and unsafe”, and that you informed him that you would take legal action if he used similar language in future. You showed some sign of considering different ways to behave when asked how you might approach the situation differently and send a further email instead of approaching [Dr A] in his office. However, the panel was concerned that in your submission, you focused predominantly on what you saw as inappropriate language from [Dr A], instead of your inappropriate behaviour in approaching him a week later and using language that had the effect of threatening him. The panel was also concerned when you said that you considered that you were “giving him a pass,” taken to mean that you were treating him more leniently than you could have done and considered that you were educating him on the risks of him being subject to legal action for libel. This response deflected the discussion from the incident on 3 March and your behaviour on that day. It also showed a considerable lack of insight into the seriousness of speaking to colleagues in this manner in circumstances where the patient’s treatment plans were being discussed. The panel also considered that this incident occurred less than three months following an informal discussion of remedial actions put in place to support you. The panel was concerned that this illustrated persistent uncivil behaviour and a lack of reflection and ability to change behaviour that you had recognised as being inappropriate. We were concerned to hear that although you had requested 360-degree feedback, this did not include any individuals nominated by the Trust, thus giving an incomplete assessment of your relationships and behaviour. The panel also considered that you undervalued having a restorative meeting with your colleagues, as you worked together regularly and had moved on from events. The panel concluded that both allegations were upheld. We concluded that you had behaved in an aggressive and intimidating manner towards [Dr A], and that this met the Trust’s definition of bullying behaviour which is “offensive, intimidating, malicious or insulting behaviours” or “abuse or 44 of 78 misuse of power through means intended to undermine, humiliate, denigrate or injure the recipient.” The panel also considered that you demonstrated a lack of reflection and insight about your behaviour. Given that the incident with [Dr A] occurred less than three months after an earlier, informal discussion about your behaviour and remedial action, this raised significant concerns about your ability to reflect on past events and put in place steps to prevent reoccurrence of inappropriate behaviours. 3. That you had interactions with members of the Diabetes Specialist Nurse (DSN) team regarding patient care on 9 and 13 July 2023 where you used an aggressive, intimidating, and undermining manner; your behaviours led to significant distress and concern on the part of the DSN team about seeing any further patients under your consultant care. 4. That you show no insight regarding the impact of your interactions with the Diabetes Specialist Nurse (DSN) team. On Sunday 9 July, [DSN R] (a DSN) visited Gate 27A to review a patient, and that you informed her that you had changed the insulin regime that one of the patients ([patient initials]) would need. She reported that you publicly challenged her and questioned her decision-making. This left her feeling “shaken,” “intimidated and doubting” her “decision making.” Your subsequent interaction with [DSN E] on 13 July also demonstrated your reluctance to discuss clinical matters, which she found to be “distressing,” leaving her “shaken” and “scared.” She sought support from [DSN D], who was one of the other DSNs on duty that day. On 13 July, [DSN E] approached you to discuss the patient, and your behaviour was described as “extremely rude” when [DSN E] was “acting in the best interest of the patient to ensure safe and effective care.” The panel agreed with the independent investigator’s assessment that this consisted of a “serious lack of insight on Dr Boreham’s part in that he appears oblivious to the fact that the way he has conducted himself has caused two members of staff to feel physically shaken to the point of reluctance to work with his patients in future” (p 12). The panel was particularly concerned that this interaction resulted in DSN colleagues feeling that they were not able to raise clinical concerns, and doubting their own judgement, potentially creating a psychologically unsafe environment where clinical concerns could not be voiced and discussed. For example, the Panel noted that [DSN K], who had observed the change in the patient’s plan stated that “as a junior DSN, I would be very apprehensive about approaching this consultant in future.” In her interview, [DSN E] stated that they managed staff allocations according to where you would be working to avoid you working with junior and lessexperienced staff who may feel less comfortable working with you. 45 of 78 Although your clinical decision-making was not under investigation, your behaviour did not only cause distress but could also negatively impact patient safety as colleagues did not feel safe to question or challenge you or raise clinical concerns that they had with you. In the hearing, you raised the Datix submission submitted by [DSN E] and stated that this did not refer to any behavioural issues. However, Datix reports are not confidential, and should not refer to personal information. On review, the panel saw that the report did refer to a clinical management issue and a difference in opinion that could not be resolved and was therefore recorded as an incident. You also noted that, prior to this hearing, you had approached two witnesses to the events of July 2023, and that they had limited recollections of what had occurred. You stated that this indicated “that they do not remember much of the event because there wasn’t much to remember” (PB case, page 6). However, the incidents did impact on other witnesses, including [DSN K], who described your behaviour as rude, and by a junior doctor who reassured [DSN R] after the incident. It had a significant impact on members of the DSN team, leading them to complain. The panel continued to be concerned at your apparent lack of reflection, learning and ability to change your behaviour in response to feedback. This incident occurred just over four months after the incident with [Dr A], and you had been informed the previous month that you were under investigation under the MHPS policy for this incident. This illustrates repeated and persistent behaviour that has had the effect of making colleagues feel intimidated or undermined. In addition, there was evidence to indicate that you did not take the complaints about your behaviour sufficiently seriously. You described the incident as a “difference of opinion turned into a behavioural thing” (p34) and said that “unless you speak in a whisper now, everything is a raised voice” (p40). In the hearing, you stated that you considered people to be overly sensitive, leading to a need to walk on eggshells. This indicated to the panel that you had no regards for current standards of behaviour and priorities around civility and respect to colleagues and did not present the panel with evidence that you would change your behaviour in future. Therefore, the panel upholds both the allegation that your behaviour was aggressive, intimidating and undermining and caused distress; and that you showed no insight regarding this. 5. That one or both incidents demonstrated bullying behaviour (as defined by the North Bristol NHS Trust Harassment and Bullying at Work Policy 2019) towards these members of staff. 46 of 78 The panel upheld the allegation that your behaviour met the definition of bullying under NBT’s 2019 Bullying and Harassment Policy, specifically: -

64.1 Offensive, intimidating, malicious or insulting behaviour -

64.2 Abuse or misuse of power through means intended to undermine, humiliate, denigrate or injure the recipient. This is because colleagues found your behaviour aggressive, intimidating and undermining. In the first incident, you threatened a colleague with legal action and in the second, you misused the power imbalance with more junior colleagues, so they did not feel safe to express their clinical judgement. During our deliberations, the panel also considered your professional standards of conduct, and Trust values and standards. The Trust’s values of being Caring, Ambitious, Respectful and Supportive govern how we behave towards one another and the Panel considered that the behaviours identified in the allegations which have been upheld did not demonstrate these values. Furthermore, we referred to the behavioural framework on page 19-21 of NBT’s Disciplinary Policy and considered that the allegations upheld above demonstrate: Persistent lack of civility towards colleagues, patients and visitors: Persistently rude or aggressive feedback to others, that continues after feedback is given, or you are asked to stop behaving in a particular way. This could include using a condescending tone, ignoring people, or microaggressions. In relation to Good Medical Practice, the guidance states the following: - Domain 2, Para 24: You must promote and encourage a culture that allows all staff to raise concerns openly and safely, - Domain 3, Para 35: You must work collaboratively with colleagues respecting their skills and contributions, - Domain 3, Para 36: You must treat colleagues fairly and with respect, - Domain 3, Para 37: You must be aware of how your behaviour may influence others within and outside the team. We considered that the behaviours identified in the allegations which have been upheld above indicate that these standards have not been met by you. 47 of 78 Sanction The panel considered what the appropriate sanction should be based on the allegations which have been upheld above. The Panel noted the following: (a) The incidents took place in work time and in a clinical setting; (b) As an experienced consultant, you are responsible for contributing towards an open and safe culture where people feel free to speak up so the NHS can correct and learn from errors and near misses and develop best practice. Your behaviour, particularly in the incidents leading to the second investigation, seriously risked the development of this culture. (c) You are a highly experienced, senior clinical leader. It is therefore important that you lead by example in terms of your conduct and adherence to the Trust’s values and standards of behaviour. It is noted that in some circumstances, your behaviour was directed towards more junior members of staff;

(d) Your behaviour led to a potentially unsafe culture where your colleagues no longer felt able to raise clinical concerns or felt comfortable working with you. This is in itself a patient safety issue and is at odds with the Trust’s Freedom to Speak Up culture where all staff are encouraged and supported to raise concerns;

(e) Your behaviour had a significant impact on the DNS team particularly, causing them to alter patterns of work and to ensure that junior members of staff were not required to work with you;

(f) The repeated and persistent nature of your negative behaviour towards colleagues meant that the Panel was not assured that you had learned from the incidents, showed any insight into the wrongs of your behaviour, and that similar issues would not reoccur in the future. The Panel noted that your explanations for your behaviour were, in the main, deflections and lacked ownership of the behaviours. As a result, the Panel considered that the Trust’s restorative, just and learning culture, which emphasises learning from mistakes, and supporting colleagues to restore good relations, would not be an adequate safeguard to ensure that you did not engage in such behaviours in the future;

(g) As set out above, your actions breach the Harassment and Bullying at Work Policy and that your behaviour falls within the definition of persistent lack of civility towards colleagues, patients and visitors as set out in the behavioural framework in the Trust’s disciplinary policy, for which, if proven, may lead to your dismissal. 48 of 78

(h) The Management Case set out previous concerns about your conduct and behaviour and previous attempts to support you. You agreed to its inclusion when raised at the outset of the meeting by your representative. The Panel noted therefore that previous attempts to address your behaviour had not been successful; Taking the above into account, the panel considered carefully what the appropriate sanction should be, weighing up the factors outlined above. The Panel considered the allegations upheld to be very serious and are satisfied that they constitute gross misconduct. This is due to the persistent nature of your poor behaviour as well as the lack of insight and learning demonstrated by you. The Panel found nothing which means that a sanction less than summary dismissal is appropriate in the circumstances. In addition, the Chief Medical Officer (CMO) will notify the General Medical Council (GMC) of your dismissal and the circumstances leading to it. As a result, you are summarily dismissed for gross misconduct with immediate effect. Your effective date of dismissal is 5 November 2024. You are not entitled to a period of notice or payment in lieu of notice. Any outstanding holiday entitlement will be calculated and forwarded to you. […] Finally, I would remind you that you have the right to appeal against this decision. This should be submitted within 14 calendar days from the receipt of this letter via completion of the attached ‘Appeal template’. Please complete as many of the sections as possible which will help facilitate a timely appeal hearing being arranged. […] I attach a copy of the notes of this meeting for your records. […] 14 November 2024 – Claimant’s appeal [HB469]

Findings

[108]The Claimant appealed against the decision to dismiss him on 14 November [HB469-472]. In his appeal he indicated the following headline grounds: Analysis of that information and / or conclusions drawn from it is flawed There were procedural errors, unfairness or bias, in how the policy has been applied The decision to dismiss was a disproportionate response to the situation 49 of 78

[109]The Claimant did not indicate on the form that he asserted the following potential grounds of appeal: Not all relevant information was gathered / taken into account You have new information that is material and needs to be considered

[110]In the narrative of his appeal the Claimant said: 1. Procedural error in that the policy was not adhered to by the Medical Director [Dr Patel]. The was also an ulterior motive here to dismiss. 2. The dismissal was a disproportionate response to the situation: In the first complaint, the lack of involvement by management to resolve the situation with [Dr A] in March 2023, is remarkable and suggests this was welcomed by Dr Patel as an opportunity to pursue a more serious course of action and not to use mediation as recommended by MHPS & ACAS guidelines. [Dr A] initiated the entire situation by sending an unsubstantiated defamatory email, but no action was taken by the Trust, which suggests bias. In the second incident with DSNs the Trust failed to show any significant detrimental effect to the DSNs from the conversations with Dr Boreham which was a difference of clinical opinion which he had full patient responsibility. 3. Analysis of that information and / or conclusions drawn from it is: The hearing panel reviewed this case in a pre-determined manner, it failed to demonstrate any signs of an open approach and did not challenge Dr Patel who showed considerable bias and made assumptions that were not questioned by the panel, everything he presented was accepted without question. The assessment of a definite lack of insight on Dr Boreham's part is purely hypothetical and was not assessed by adequately qualified personnel such as a clinical psychologist. 15 November 2024 letter [HB474-475]

[111]On 15 November 2024 the Respondent sent the Claimant a letter in respect of some more recent complaints raised against him which had not formed part of the disciplinary decision: […] 50 of 78 I am writing to you following the outcome of an initial decision-making process which considered three complaints made against you. These were: 1. A grievance received from [SH] regarding an email sent on 27th September criticising her professionalism and ability, copying many colleagues. 2. A physical confrontation with [NA] following a query raised about your need to leave early, and the impact on patient care. 3. A datix dated 11th July regarding disagreement about prescribing/dose decisions on 27a on 18th June, and your subsequent criticism of the pharmacist colleague in feedback email on 1st August. This was initially reviewed in a decision-making group in August, but was discussed alongside the other two incidents due to the interrelated patterns of behaviour. The decision-making group applied its restorative just culture approach, including the questions in our four-step model. The group concluded that the three incidents could be considered bullying behaviour under the Trust’s Fairness at Work Policy, that these impacted the development of a psychologically safe culture where colleagues can raise concerns of patient care, and that these represent a pattern of behaviour and limited reflection and learning on your part. The group concluded that the above could constitute misconduct and warrant an investigation under the Trust’s MHPS Policy. If upheld, a possible outcome may be dismissal. The group also considered that it may be appropriate to exclude you from duty pending investigation. I have been made aware that you are no longer working for North Bristol NHS Trust, and as such, exclusion and investigation will not be pursued at this time. In addition, the Chief Medical Officer (CMO) shared details of these complaints with the General Medical Council (GMC). NBT reserves the right to investigate these complaints at a later date, should your circumstances change. […] 10 December 2024 –Notice of appeal hearing

[112]On 10 December 2024 the Claimant was invited to an appeal hearing scheduled for 3 February 2025 [HB478]. Conciliation and issue of Claim

[113]Acas received notice of early conciliation on 22 January 2025 and issued its certificate by email on 27 January 2025. The Claimant presented his claim to 51 of 78 the Tribunal on 30 January 2025. 3 February 2025 - Appeal hearing and

Outcome

[114]The appeal hearing panel were provided with:114.1 a copy of the management case for the Disciplinary Hearing [HB487] (and all of the documents contained within it);

114.2 the Claimant’s Appeal Statement of Case. This was at [HB503-518];

114.3 A Management Response to the Claimant’s appeal which was at [HB514- 521].

114.4 The letter dated 15 November 2024 quoted above [HB474-475]

[115]The notes of the appeal hearing were at [HB522-545].

[116]Ms Poskitt chaired the hearing and was accompanied by supported Ms Wood (Chief People Officer) and Mr Deacon (Deputy Medical Advisor). The Claimant attended with a trade union representative. Mr Mitchell attended to present the management response. The hearing was conducted via Microsoft Teams.

[117]The Claimant had wanted Dr Walker and Mr Skirm-Jones to give evidence to the hearing. Ms Poskitt concluded [EPWS10] that “the witnesses were not required to consider the grounds of appeal. However, taking a pragmatic view, I decided to continue with the Appeal Hearing and consider the point further if something arose that one of the witnesses could address. Ultimately, it was a matter of fact that those witnesses were not interviewed during the MHPS investigation. It would have been for the Claimant to call those witnesses to the Disciplinary Hearing when challenging the evidence, he was represented at that time, and did not do so.”. She concluded that their evidence was not relevant to the Claimant’s points of appeal.

[118]At the end of the hearing the panel left the room to have a discussion and decided that they needed more time to decide the outcome and the then met two days later to discuss the evidence heard and to deliberate.

[119]The panel issued their appeal decision by letter of 6 March 2025 [HB553-560]: […] Outcome I am writing to confirm my decision, after considering your grounds for appeal, against each of the three elements, my conclusions are: 1 . Procedural errors 52 of 78 The grounds for the appeal were that there had been a procedural error in that the policy was not adhered to by the Medical Director, Dr Patel. Further, that there was also an ulterior predetermined motive to dismiss you from your employment. In your statement, you add that the Panel were made aware before the hearing that you had been subject to a Disciplinary Hearing in 2019 which bore no relevance to this hearing and introduced bias and that it was included despite your objections. During the Appeal Hearing, the points relating to this were explored in detail and discussed for a significant period of time. There are a number of parts to this. Therefore, whilst your original written Appeal statement refers to a specific issue, I have considered all the elements you raised during the Appeal Hearing as well. To confirm, these were as follows: i. The introduction of information relating to the 2019 disciplinary hearing into the October 2024 disciplinary hearing. ii. The reference within the Case Manager’s report to the 2022 informal action. iii. The use of Ibex Gale as Independent Investigators in 2019 as well as 2023/24. iv. Ulterior predetermined motive to dismiss. v. Witnesses for the Hearing in October not being called. vi. The investigation into the grievance raised by you against [Dr A]. i. Introduction of information relating to the 2019 disciplinary hearing You being the subject of a disciplinary hearing in 2019 was raised at the start of the Disciplinary Hearing in October 2024 by you and your representative ([Ms H] for the October 2024 meeting). The disciplinary outcome letter from Peter Mitchell dated 5 November 2024, describes that the Disciplinary Hearing pack did not include details of the 2019 disciplinary action and, therefore, you and your representative agreed to proceed on that basis. There was no information about the previous disciplinary process within the Appeal Hearing pack either. In the Appeal Hearing you confirmed that the 2019 warning was not in the disciplinary pack and was only introduced by yourself into the Disciplinary Hearing in October 2024. Further, as confirmed by the Appeal Panel on 3 February 2025, the Appeal Panel are also not aware of the details of the disciplinary action from 2019. 53 of 78 Therefore, it was acknowledged that the introduction on this information was by you and your representative, therefore this was not a procedural error by the Trust. ii. Reference to the 2022 informal action The 2022 informal letter from [Professor S] was also discussed, as this was included in both the Disciplinary Hearing pack of October 2024 and the Appeal pack of February 2025, including in the management response presented by Peter Mitchell. The letter provided context to a pattern of behaviour and support given to you. The Appeal Panel considered that this was acceptable for inclusion as the time period was close enough to the events in 2023 to be relevant Therefore, the Appeal Panel does not view its inclusion as a procedural issue. iii. Use of Ibex Gale as Independent Investigators in 2019 and 2023/4 During the Appeal Hearing, your representative raised a concern around the use of Ibex Gale, the company that the Trust used for the investigation reports. There were two reports undertaken by Ibex Gale and included in the Disciplinary Hearing and Appeal packs. Both investigations were undertaken by [Ms Byrne], and both were relevant to the disciplinary allegations. The first was relating to the incident between you and [Dr A], and was undertaken in July and August 2023, with a report sent to the Trust in August 2023 and to you in September 2023. The second investigation was undertaken between December 2023 and February 2024, with the report sent to the Trust in April 2024 and to you in May 2024. Neither you nor your representative raised any issues with the use of Ibex Gale at the time they conducted the investigations nor at the Disciplinary Hearing itself. At your Appeal Hearing, you raised that Ibex Gale conducted the investigation which was related to the 2019 disciplinary action. You suggested that Ibex Gale were therefore biased as the investigator could have been aware of the earlier action. No evidence was presented by you which supported that there was any bias present and you agreed that there was no such evidence available. Peter Mitchell confirmed that he did not know who conducted the investigation related to 2019 and that if it was Ibex Gale that they are a large organisation who were used for their independence and impartiality. Subsequently it has been confirmed to me through a review of the HR file that Ibex Gale did not undertake the 2019 investigation. The two Ibex Gale reports undertaken relating to the two 2023 issues and included in the Disciplinary Hearing pack were independent and you have demonstrated no evidence of conflict or bias. 54 of 78 iv. Ulterior predetermined motive to dismiss No evidence of an ulterior motive was presented by you. As described above, the Appeal Panel were not aware of the 2019 disciplinary action until it was raised by you in the October 2024 Hearing. In the Appeal Hearing you raised that [Dr Patel], who was the Case Manager for the two incidents in 2023, was also involved in the 2019 case. There is no evidence that Dr Patel, as the Case Manager, did not follow the policy. Dr Patel was not part of the Disciplinary Hearing Panel and was, therefore, not a decision maker in respect of either the disciplinary allegations or the sanction. The Disciplinary Hearing Panel were independent, consisting of individuals who had not previously been involved in any issues relating to you. v. Witnesses for the Hearing in October not being called At the start of the Appeal Hearing, I raised the issue that I had, only two days before the Appeal Hearing, been asked to consider the inclusion of witnesses to support your appeal. The Appeal Hearing was to hear evidence related to the three grounds of appeal which you raised, and which are described here. Therefore, as the witnesses were not directly related to those three points, and the purpose of an Appeal Hearing is not to re-hear the case, I would not accept witnesses who were not directly giving evidence of the matters to be discussed on the day. Witnesses were not called by you or your representative for the Disciplinary Hearing and you had the opportunity to do this in line with the Trust’s policy. In the letter from Peter Mitchell on 14 August 2024 inviting you to the Disciplinary Hearing, it is clearly set out that you can invite witnesses should you wish to do this. Whilst two individuals, who you wanted included in the Appeal Hearing as witnesses, are referenced in the Ibex Gale interview with you on 6 February 2024, the conclusion you made was that you “would be surprised if they can remember [the] conversation” (p26 1 para 84). I therefore do not consider that they would have been able to give any relevant evidence based on your own case. vi. The investigation into the grievance raised You raised that the MHPS investigation should have been paused whilst the grievance raised by you against [Dr A] was investigated. However, I confirm that the Trust’s Fairness at Work policy does not state that as a result of overlapping disciplinary and grievance processes that one should be paused. ACAS guidance is that it may be appropriate to suspend a disciplinary or other process, but not required, and this depends on the circumstances. 55 of 78 In any event, your grievance was investigated and an outcome letter sent on 1 May 2024, which stated that you can appeal the decision should you not be satisfied with the response. No appeal was made by you. A further issue raised was that the Trust did not investigate the email from [Dr A] for defamation. Again, this is not an error in procedure as this was considered as part of the grievance. Considering all of the points raised above, there is no evidence of any procedural errors on the part of the Trust. This ground of appeal is therefore not upheld. 2. Disproportionate response to allegations The second ground of appeal raised was that the dismissal was a disproportionate response to the disciplinary allegations. In your statement, you raise that there was a lack of involvement by management to resolve the situation with [Dr A] in March 2023, and you allege that this suggests this was welcomed by Dr Patel as an opportunity to pursue a more serious course of action and not to use mediation. You state that [Dr A] initiated the situation by sending an unsubstantiated defamatory email and that no action was taken by the Trust which suggests bias. In the second incident with the Diabetic Specialist Nurses (DSNs), you state that the Trust failed to show any significant detrimental effect on the DSNs during or following conversations with yourself which were related to a difference of clinical opinion for which you had full patient responsibility. In the Appeal Hearing there was less focus by you and your representative on this ground of the Appeal compared to the other two discussed (above and below). There is no evidence that Dr Patel, as the Case Manager, did not follow the MHPS policy. The Decision-Making Group can determine if informal or formal routes should be followed, and their decision was that the formal route was appropriate in the circumstances. They do not have to recommend mediation if it is not appropriate. This was discussed in the Disciplinary Hearing, and Peter Mitchell confirmed in the Appeal Hearing that the Decision-Making Group determined the formal route and not to use mediation. Both the MHPS and Disciplinary Policy have been followed. 56 of 78 In the evidence presented in the Appeal Hearing pack, [Dr A] states that he thought that you could have become physically threatening and, therefore, the Trust concluded that mediation would not be appropriate in those circumstances. [Dr A] described you as “very intimidating, very aggressive” (Appeal Hearing pack p69 para 25) and “It was very threatening, and I didn’t know what might happen next. I was braced for physical violence but that didn’t happen” (Appeal Hearing pack, p69, para 26). There is evidence that, as a result of you raising a grievance against [Dr A] in relation to the email of 23 February 2023, the Trust’s policy was followed. The letter from Dr Patel, dated 1 May 2024 and included in the Appeal Hearing pack, demonstrates that process was followed, and appropriate review was undertaken of this matter, with a conclusion drawn. That letter states that you have the right to appeal the decision if you wish to do so, however it was confirmed in the Appeal Hearing that you did not do that. Based on the evidence presented in the Appeal pack and what the Appeal Panel heard, I support the conclusion that mediation would not have been suitable route for resolution in this case. The Trust defines bullying as offensive behaviour, which is offensive, malicious and insulting or an abuse of power, and your behaviour fits into this definition, while your behaviour was persistent, occurring shortly after an informal warning. Therefore, the Hearing Panel concluded that this constituted gross misconduct and decided to dismiss you, and the Appeal panel concurs with the decision. I found the decision made by the Hearing Panel to be appropriate in its decision to dismiss you for gross misconduct on this case on the matter relating to your encounter with [Dr A]. In relation to the second part regarding the impact on the DSNs, you confirmed at the Appeal Panel that you recognised that the DSNs were impacted by the encounter with you, however you concluded that they did not suffer “detrimental harm”. The interviews with the DSNs describe your behaviour as “aggressive, rude, intimidating” and that the encounter had left one DSN “literary shaking” (Appeal Hearing Pack p26). You accepted in the Appeal that these statements had been made, and whilst you may not have observed any visible signs at the time, the individuals involved did describe the impact on them. This demonstrates the detrimental impact that this had on them. Furthermore, the Disciplinary Hearing Panel were particularly concerned that this interaction resulted in DSNs feeling that there were not able to raise clinical concerns. In the Outcome Letter to you dated 5 November 2024, the Hearing Panel noted this and that it potentially created a psychologically unsafe environment where clinical 57 of 78 concerns could not be voiced or discussed. Additionally, the Trust’s Fairness at Work Policy clearly states that it is the recipient’s perceptions that determines what ‘harassing behaviour’ is to them. It is the effect that it has on them as an individual. For this second part, based on the evidence presented in the Appeal pack and what the Appeal Panel heard, I support the conclusion that the impact the encounter between yourself and the DSNs had on them was demonstrated. Further, no evidence was heard to counter that the outcome of the Hearing Panel in its decision to dismiss you for gross misconduct on this case. I have reviewed the decisions made by the Disciplinary Panel carefully and I noted all the factors that it took into consideration. The behaviours demonstrated by you show a persistent lack of civility towards colleagues. I refer to the Behaviours Framework at Appendix 1 of the Trust’s Disciplinary Policy which contains illustrative examples of such behaviours as being persistently rude or aggressive to others which continues after feedback. I note that such previous feedback has not improved your behaviours towards others, and therefore, I do not agree that dismissal is a disproportionate response to these allegations. I also note that included in the Appeal pack was a letter dated 15 November 2024 from [Professor S] which detailed further complaints made against you. These related to incidents which occurred in 2024, in the period whilst the investigations into the 2023 incidents were concluding and the Hearing Panel taking place. As I have set out elsewhere, you have demonstrated a lack of insight and I am not convinced that any lesser sanction, or further remedial action would, on balance, improve your standard of behaviour towards others. This ground of appeal is therefore not upheld. 3. Analysis and conclusions were flawed The issue you raise as a ground of appeal is that the Hearing Panel reviewed this case in a pre-determined manner, it failed to demonstrate an open approach and did not challenge Dr Patel who showed considerable bias and made assumptions that were not questioned by the Hearing Panel and that everything that he presented was accepted without question. The assessment of a definite lack of insight on your part, you describe as purely hypothetical and was not assessed by adequately qualified 58 of 78 personnel such as a clinical psychologist. Further, that its introduction as such was wholly inappropriate as it cannot be considered as anything other than an alternative opinion not a qualified opinion. There was a significant discussion on the second point in the Appeal Hearing, in particular in relation to the meaning of insight and the context in which it was being used. The conclusion of the Appeal Panel was that the use of the word insight was appropriate and the Trust’s use of it was acceptable. This is not a clinical diagnosis and there was no suggestion that it was intended to be so. It is used as a reflection and observation of how you behave and conduct yourself; the acknowledgement of the impact of your behaviours on others and the ability to change as a result of that. In the Appeal Hearing, you did show some movement on personal responsibility for your behaviours, recognising that whilst the DSNs did not cry at the time of the encounter, this was not an indication that they were not impacted by it. However, you also disputed the degree of harm to those involved in the two incidents. The Panel found that you did not demonstrate an awareness of your personal status as a consultant and the impact that the imbalance of power in relation to your encounters with the DSNs, in particular, could have. There were previous measures put in place to support you, including coaching and behavioural assessments, which were referenced with the Case Manager report to the October 2024 hearing. The Ibex Gale investigation states that you lacked reflection and self-awareness on your behaviour and the impact that it has on others. In relation to this point there was a lack of evidence brought into either the Disciplinary Hearing or the Appeal Hearing to support a contrary view or that you had acted on the 2022 recommendations. There was no evidence presented which supports the assertion that the Hearing Panel were not open and did not conduct the process in line with the Trust’s Disciplinary Policy. Both you and your representative were at the Hearing and were able to ask questions of the Case Manager, Dr Patel. As stated above, the Panel considers that the use of the term insight is appropriate. The lack of reflection of the impact on others of your behaviour forms the basis of the conclusion. Therefore, I can conclude that there is no evidence presented to uphold that there was flawed analysis. This ground of appeal is therefore not upheld. 59 of 78 I have decided that the decision of the Disciplinary Panel was reasonable and appropriate in the circumstances and that this decision should stand. I have set out above my findings in respect of all of the grounds of appeal you raised in both your statement and the Appeal Hearing itself. I am satisfied that your behaviour demonstrates a persistent lack of civility within the examples of the Trust’s Disciplinary Policy and due to the impact on the individuals concerned, including the risk to patient safety, and the lack of insight from you which would indicate that such behaviours would not reoccur in the future, the sanction of dismissal is appropriate in the circumstances. The behaviours that you have demonstrated are bullying, as described by the Trust’s Fairness at Work Policy as offensive, intimidating behaviour. This concludes the appeal process under the Trust’s Disciplinary Policy and there is no further right of appeal. Claimant’s autism spectrum disorder diagnosis [HB667-668]

[120]The Claimant was diagnosed with ASD on 11 November 2025. The diagnosis does not opine on whether the Claimant’s ASD contributed to his conduct in March 2023 or July 2023 Time taken in the process

[121]The Respondent’s processes clearly took a considerable length of time. The first incident took place in March 2023 but the disciplinary hearing was not held until October 2024 (around a year and a half later). The DSN incidents took place in July 2023 but the Claimant was not interviewed about the complaints being investigated until February 2024. The time periods are relevant not only to procedural fairness but also to the fairness of the sanction imposed.

[122]I conclude that the time periods in question did not render the investigation procedurally unfair. The Claimant was able to recall the events in question and answer the allegations at the investigation and disciplinary hearings.

[123]It is clear that there were no other witnesses who might have been interviewed in respect of the incident with Dr A (the Claimant’s representative, Ms H, herself had submitted “the discussion between [Dr A] and Dr Boreham may have been heated but it was not overheard or witnessed and as such is one word against another.”). This is inconsistent with what the Claimant went on to say in his evidence to the Tribunal ([CWS34] -“The walls are thin. Loud noises are easily heard through the walls such as phones ringing and had there been shouting the secretaries would have heard”) but is it what was said on his behalf at the disciplinary hearing. 60 of 78

[124]As regards the DSN complaints the Claimant told Ms Byrne on 6 February 2024 that he would have been “surprised if they could remember” the conversation. Ms Byrne nonetheless approached Staff Nurse EB who gave no response and Mr Skyrme-Jones who replied [HB294]. The Claimant did not then call them to give evidence at the Disciplinary hearing as he could have done in accordance with the terms of his invitation to that hearing [HB339]. THE LAW Unfair Dismissal

THE LAW

[125]The test for unfair dismissal is set out in section 98 of the Employment Rights Act 1996. Under section 98(1), it is for the employer to show the reason (or, if more than one, the principal reason) for the dismissal, and that it is either a reason falling within subsection (2), e.g. conduct.

[126]Under s98 (4): ‘… the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) 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.’

[127]Tribunals must consider the reasonableness of the dismissal in accordance with s98(4). However, tribunals have been given guidance by the EAT in British Home Stores v Burchell

[1978] IRLR 379

;

[1980] ICR 303

, EAT. There are three stages:127.1 did the respondent genuinely believe the claimant was guilty of the alleged misconduct?

127.2 did it hold that belief on reasonable grounds?

127.3 did it carry out a proper and adequate investigation?

[128]Tribunals must bear in mind that whereas the burden of proving the reason for dismissal lies on the respondent, the second and third stages of Burchell are neutral as to burden of proof and the onus is not on the respondent (Boys and Girls Welfare Society v McDonald

[1996] IRLR 129

[1997] ICR 693

[129]For an investigation to be reasonable, the relevant test does not require employers to carry out a forensic examination akin to a criminal investigation. The Court of Appeal in Taylor v OCS Group Ltd

[2006] IRLR 613

stated (per Smith LJ at paragraph 48): 61 of 78 "...s.98(4) requires the ET to approach their task broadly as an industrial jury. That means that they should consider the procedural issues together with the reason for the dismissal, as they have found it to be. The two impact upon each other and the ET's task is to decide whether, in all the circumstances of the case, the employer acted reasonably in treating the reason they have found as a sufficient reason to dismiss. So for example, where the misconduct which founds the reason for the dismissal is serious, an ET might well decide (after considering equity and the substantial merits of the case) that, notwithstanding some procedural imperfections, the employer acted reasonably in treating the reason as a sufficient reason to dismiss the employee. Where the misconduct was of a less serious nature, so that the decision to dismiss was nearer to the borderline, the ET might well conclude that a procedural deficiency had such impact that the employer did not act reasonably in dismissing the employee. The dicta of Donaldson LJ in Union of Construction, Allied Trades and Technicians v Brain

[1981] IRLR 224

at p.227 are worth repetition: 'Whether someone acted reasonably is always a pure question of fact. Where parliament has directed a tribunal to have regard to equity - and that, of course, means common fairness and not a particular branch of the law - and to the substantial merits of the case, the tribunal's duty is really very plain. It has to look at the question in the round and without regard to a lawyer's technicalities. It has to look at it in an employment and industrial relations context and not in the context of the Temple and Chancery Lane.'“

[130]That said, what constitutes a reasonable investigation (including the extent to which the evidence for and against the charges has been balanced) should be considered in the light of the seriousness of the disciplinary charges and the implications, if founded, on the employee. Serious impacts might arise where the charges have criminal implications or might affect an employee’s future career (for example in a regulated profession) and more might be expected as to the standard of investigation in those circumstances. This is supported by:130.1 the Acas guide on ‘Discipline and grievances at work: “When investigating a disciplinary matter take care to deal with the employee in a fair and reasonable manner. The nature and extent of the investigations will depend on the seriousness of the matter and the more serious it is then the more thorough the investigation should be. It is important to keep an open mind and look for evidence which supports the employee’s case as well as evidence against” ;

130.2 A v B

2003 IRLR 405

(an EAT decision in case where it was held that it was relevant to the question of the reasonableness of an investigation that dismissal could prevent the employee working in their chosen field in the 62 of 78 future).

[131]In Salford Royal NHS Foundation Trust v Roldan

2010 ICR 1457

, CA the serious consequences of dismissal for the employee (including deportation) were important to the tribunal’s finding (upheld by the Court of Appeal) that procedural errors meant that the dismissal was unfair. In the present case, because dismissal of the Claimant has an impact on his ability to practice as a Consultant cardiologist, I must be all the more careful to scrutinise the Respondent’s dismissal of him.

[132]Finally, tribunals must decide whether it was reasonable for the respondents to dismiss the claimant for that reason in all the circumstances of the case. I have also reminded myself that the question is whether dismissal was within the band of reasonable responses open to a reasonable employer. It is not for me to substitute my own decision for that of the disciplinary and appeal decision makers, unless there is only one possible outcome from the application of the relevant legal principles to the case (London Ambulance Service v Small Court of Appeal [2009], Iceland Frozen Foods Ltd v Jones

[1982] IRLR 439

, (as approved by the Court of Appeal in HSBC v Madden

[2000] ICR 1283

)).

[133]The range of reasonable responses test (or, to put it another way, the need to apply the objective standards of the reasonable employer) applies as much to the question of whether an investigation into suspected misconduct was reasonable in all the circumstances as it does to other procedural and substantive aspects of the decision to dismiss a person from his employment for a conduct reason. The objective standards of the reasonable employer must be applied to all aspects of the question whether an employee was fairly and reasonably dismissed (Sainsbury’s Supermarkets Ltd v Hitt

[2003] IRLR 23

, CA). The question is not whether there was something else which the respondent ought to have done but whether what it did was reasonable.

[134]When considering the question of the employer’s reasonableness, I must take into account the disciplinary process as a whole, including the appeal stage. (Taylor v OCS Group Limited

[2006] EWCA Civ 702

). The Tribunal must focus on what information and circumstances were present and in the mind of the dismissal and appeal managers at the time they made their decisions (West Midlands Coop v Tipton [1986]).

[135]An expired warning should not be used to dismiss an employee for conduct that, absent the warning, would not have warranted dismissal (Diosynth Ltd v Thomson

2006 IRLR 284

, Ct Sess (Inner House), the Court of Session). However, it is not that an expired warning must be disregarded entirely for all purposes. In Airbus UK Ltd v Webb

2008 ICR 561

, CA, the Court of Appeal held that the employer had been entitled to take the claimant’s expired warning into account when deciding to dismiss him in circumstances where his conduct in any event warranted dismissal and where other employees guilty of the same misconduct, but who had not had prior warnings, were not dismissed. The 63 of 78 question is whether the extent of the employer’s reliance on an expired warning is reasonable in the circumstances of the case. This decision was applied consistently in Stratford v Auto Trail VR Ltd EAT 0116/16.

[136]Final written warnings may be issued where, during the life of an earlier warning, the employee commits misconduct. However a final written warning might also be the sanction where an employee commits gross misconduct but there are mitigating circumstances. ANALYSIS AND CONCLUSIONS

[137]The parties will note that I have addressed the matters in the List of Issues in a slightly different order to the List of Issues, addressing whether dismissal was within the range of reasonable responses as a final point. Reason for dismissal (1.1 and 1.2)

[138]There is no dispute that the Respondent dismissed the Claimant. I find that the Respondent dismissed the Claimant for the potentially fair reason of conduct (namely his alleged behaviour on 3 March 2023, 9 July 2023 and 13 July 2023 and for the reasons set out in the Respondent’s letter of 5 November 2024). No serious alternative reason was advanced by the Claimant. I address the question of alleged bias on the part of Dr Patel below. Genuine belief in misconduct held on reasonable grounds? (1.3)

[139]I find that the Respondent held a genuine belief in the Claimant’s misconduct on reasonable grounds and following as reasonable an investigation as was warranted in the circumstances for the reasons set out below. Adequacy of the investigation (LOI 1.3.2) Complaint by Dr A

[140]In the context of a Consultant in a hospital and given the serious nature of the complaint of Dr A, I do not accept the Claimant’s contention that the complaint of Dr A should have been dealt with informally.

[141]The Claimant sought to argue that there was no evidence on which it could have been concluded that Dr A had felt a potential physical threat on 3 March 2023. The Claimant argued that Dr A had been inconsistent in what he had said in that regard. I do not accept that contention and find that Dr A was sufficiently consistent in his complaint about the conduct of the Claimant and how it had made him feel. In his complaint he said that the Claimant’s tone and manner were aggressive, angry and intimidating and that the Claimant made him feel very uncomfortable and caused him concern that the incident might escalate into physical threats. When investigated he made clear that he and the Claimant worked in the same department, saw each other regularly, and that since the investigation the Claimant had not been speaking to him. He went on to say that on the day of the 64 of 78 incident the Claimant was looking at him intensely and he had felt very physically threatened (it is overly pedantic to draw any meaningful distinction between this phrase and Dr A’s previous description of concern that the incident “might escalate into physical threats”) . It was not inconsistent for Dr A later to say that he had been “braced for physical violence”.

[142]The Claimant’s arguments that he had only threatened Dr A with a letter from a solicitor (if Dr A ever again suggested that the Claimant had been unprofessional or unsafe in his care of a patient), did not address the fact that Dr A said that the way the Claimant confronted him that morning had made him feel that the Claimant might escalate into physical threats.

[143]Similarly, the fact that Dr A was younger than the Claimant, physically fit and psychological robust, does not mean that he would not feel concerned about a physical threat. A person may have the physical stature to successfully defend themselves against another person but that does not mean that they would not or should not be concerned about the potential for aggressive, angry and intimidating behaviour becoming physical. Nobody, in particular in the workplace, should feel that they might need to call upon their physical stature, fit though it may be, to defend themselves. Nor is it reasonable for a person with the physical stature to defend themselves to be expected to put up with conduct that leads them to feel concerned that a colleague’s aggressive behaviour might become physical. The fact that, by the time he came to be interviewed by Ms Byrne, Dr A was feeling less raw and had been working alongside the Claimant for some time after the incident also does not mean that the Respondent was not entitled to treat Dr A’s allegation as serious and investigate it accordingly.

[144]I do not consider there was an unreasonable failure to interview Dr Walker in respect of the incident on 3 March 2023. I accept the Respondent’s submission that during the Claimant’s interview with Ms Byrne on 23 July 2023 [HB129] the Claimant did not suggest that Dr Walker should be interviewed and in any event it is clear that Dr Walker was not a witness to the incident with Dr A. DSN complaints

[145]Of course it took some time for the DSN’s to prepare their statements and confirm that they wanted to raise their complaints formally and for those complaints to then be investigated. The events in question having occurred in July 2023, the Claimant was not then interviewed until February 2024.

[146]However, I do not consider that this period or the scope of witnesses interviewed in the investigation, was outside the band of reasonable responses or undermined the reasonableness of the Respondent’s belief in respect of the Claimant’s conduct towards the DSN’s as alleged.

[147]As was submitted by the Respondent the Claimant told Ms Byrne on 6 February 2024 that he would have been “surprised if they could remember” the 65 of 78 conversation. Ms Byrne nonetheless approached Staff Nurse EB who gave no response and Mr Skyrme-Jones (who replied as set out in my findings of fact [HB294]). The Claimant did not then call them to give evidence at the Disciplinary hearing as he could have done in accordance with the terms of his invitation to that hearing [HB339]. Even if the delay in the investigation was the reason for those people not recalling the events in question, it was nonetheless within the band of reason for the Respondent to move forward with the investigation and reach the conclusions it reached on the evidence available.

[148]It is clear that the DSN’s did have significant discussions with each other about their complaints against the Claimant and that they worked together in preparing their reflective statements. The Claimant said that he did not shy away from asserting that their collusion in the case against him was nothing short of dishonest, that common wording was repeated across the various statements and that the DSN’s colluded to make their allegations appear more serious.

[149]The issue for the Respondent was not whether either the DSN’s proposed treatment plan or that of the Claimant was better or wrong. The key question was whether the DSN’s complaints about how the Claimant had conducted himself towards them was substantiated and, if so, whether it was gross misconduct.

[150]I do not consider that there is a basis for concluding that the DSN’s were dishonest in their accounts of their interactions with the Claimant or that the extent to which they discussed and framed their statements together rendered acceptance of those statements by the Respondent in the disciplinary and appeal hearings unreasonable. There is no good evidence that they fabricated their evidence in their reflective statements and those statements were materially consistent with what they then said when interviewed by Ms Byrne. I accept the Respondent’s submission that the emails between the DSN’s show that they were nervous witnesses who were reluctant to make a formal complaint about such a senior doctor.

[151]DSN D was clearly not a direct witness to events in July 2023 but she supported the complaints of her team, what they had reported to her and her own experiences of the Claimant and this was clear to the disciplinary and appeal hearing panels. It was not unreasonable for the Respondent to take account of her statement.

[152]The Claimant further argued that Ms Byrne’s questioning of witnesses was biased and she therefore did not act independently. Ms Byrne could at times have chosen more open questions in her interviews of witnesses but this was not a matter raised in the list of issues and it was not a matter that was raised by the Claimant at the disciplinary hearing and I do not consider that Ms Byrne’s questions materially undermined the validity of the investigation. There is no evidence that witnesses changed their accounts or the seriousness of their 66 of 78 complaints against the Claimant or that they did not give an honest account in response to those of her questions that were not phrased in an open way. Reliance on ‘insight’ (LOI 1.3.3)

[153]I accept the Claimant’s submission that it was not reasonable for the Respondent to conclude, based on the investigation undertaken, that the Claimant had “demonstrated a lack of insight regarding [his] actions in the conversation with [Dr A] when the matter was raised with [the Claimant] by [Dr R]” at the meeting on 5 April 2023. As I have made clear in my findings of fact, the details of Dr A’s complaint were not provided to the Claimant at the meeting and, more importantly, the Claimant was not specifically asked for his reaction or told that his reaction was going to be judged at the meeting and it was not therefore reasonable to have criticised the Claimant for showing lack of insight. It is not even clear whether the Claimant was told what impact the Claimant’s conduct was alleged to have had on Dr A. At that stage the Claimant had not had the details of the complaint or his right of reply to it.

[154]It is hard to understand Mr C’s rationale for the meeting with the Claimant on 5 April 2023 (as he explained to Ms Byrne) because the details of the complaint were not provided to the Claimant and so it is unclear how the Claimant could be expected to provide, let alone be judged on, an initial response to those allegations. The Claimant’s non-verbal communication might have showed he was annoyed and angry but that could have been because of the Claimant’s feelings about Dr A expressing his opinion that the Claimant’s choices as regards the patient in question were unprofessional and unsafe, rather than an angry or annoyed reaction to an allegation that Dr A had felt threatened.

[155]The disciplinary panel, in their outcome letter, did not specifically explain their finding on lack of insight as regards the 5 April 2023 meeting and the panel should not have upheld allegation two. However, the panel addressed lack of insight and contrition in the more general sense and having heard the Claimant’s response to the allegations in respect of his alleged conduct on 3 March 2023 during the disciplinary process. This was appropriate and I address it more fully when I turn to the reasonableness of the decision to dismiss. No OH referral or consideration of autism/neurodiversity (LOI 1.3.4)

[156]I do not consider that the Respondent acted outside the band of reasonable responses in reaching its conclusions on the Claimant’s conduct in circumstances where no OH referral was made and the potential for autism or neurodiversity was not considered. The Claimant was only diagnosed with ASD on 11 November 2025 and that diagnosis does not opine on whether the Claimant’s ASD contributed to his conduct in March 2023 or July 2023. ASD is clearly a lifelong condition and it may well have contributed to the Claimant’s behaviour but there was no such evidence during the period in question (between March 2023 and the Claimant’s appeal hearing). 67 of 78

[157]It is not surprising that the reference to an OH referral in the PPAS letter of June 2023 did not actually lead to the Respondent making an OH referral given that the PPAS letter did not suggest a reason for doing so, the Claimant had not and did not subsequently suggest that his behaviour was influenced by a health concern or neurological condition and no such concerns had been raised during the recent December 2022 process. A person with undiagnosed ASD might not be capable of the self-reflection needed to consider whether their behaviour is an indicator of or influenced by a form of neurodiversity but the Claimant had a trade union representative is an experienced medic (albeit specialising in cardiology not neurological conditions), had had a previous psychological/behavioural assessment in September 2020 and yet did not himself get a diagnosis until just before the hearing of his claim at Tribunal. It is too much to expect that the Respondent, or even an OH adviser, would have proposed that he be assessed for ASD in circumstances where neither the Claimant himself nor his union representative meaningfully raised the question between April 2023 and October 2025 (i.e. well after lodging the Claim).

[158]I accept the Respondent’s other submissions in this regard including that:158.1 when Ms Byrne was asked in the Disciplinary Hearing about “neurodivergence” in general terms, she stated that it had not been raised with her by the Claimant, and that if had been, she would have explored it further as potential mitigation [HB430].

158.2 When directly asked in the Disciplinary Hearing as to whether the Claimant was asserting any neurodivergence condition, the Claimant’s union representative replied that she was talking in general terms and not specific to the Claimant [HB438]. I accept the Respondent’s submission that the Claimant’s explanation of that exchange was not probable and is not reconcilable with the Claimant’s own failure to raise the lack of any medical enquiry as a ground of appeal. Alleged bias of Dr Patel (LOI 1.3.5)

[159]I do not accept that Dr Patel was biased. Dr Patel had clearly formed the view, for the reasons he set out in the business case that he presented to the disciplinary hearing, that the Claimant was guilty of gross misconduct that warranted dismissal but I do not consider that he reached that conclusion for any other reason than he found the case against the Claimant to be serious, well founded and warranting of that sanction. There is no evidence that Dr Patel reached his conclusions on an improper basis and the Claimant pointed to no policy preventing Dr Patel making a recommendation. In any event, having reached his conclusions, it was not for Dr Patel to be impartial - he was not the investigator, that role was carried out independently, and he was not on the disciplinary or appeal hearing panels. Further, as the Respondent submitted: 68 of 78159.1 Dr Patel was not the sole decision-maker in respect of the decision to commence a disciplinary investigation – it was a joint decision by the DMG on 19 April 2023.

159.2 Dr Patel was “Case Manager” under MHPS.

159.3 The Claimant alleged bias by email on 21 June 2023 [HB99] and Dr Patel was able to respond to those points on 22 June 23 to the Medical Director Mr W. If the Medical Director thought it appropriate, he could have removed Dr Patel or investigated further – he did not and the Claimant did not press the issue further despite having many opportunities do so (whether through his union representative or in a grievance – noting that the Claimant raised a grievance against Dr A and the Claimant did not appeal Dr Patel’s decision on that grievance or then allege bias).

159.4 When the Claimant alleged bias as a ground of appeal his allegations were fully explored in the Appeal and validly rejected.

[160]I do not consider that the disciplinary outcome or the appeal outcome flowed inevitably from Dr Patel’s opinion. There is no proper basis on which to conclude that the disciplinary and appeal decisions were not taken independently and I accept the integrity of Mr Mitchell and Ms Poskett’s decision making. Delay (LOI 1.3.6)

[161]It is troubling that the investigation of the complaints raised against the Claimant took as long to investigate as they did but I accept the Respondent’s submissions in respect of the reasons for the time periods taken including:161.1 The understandable need for a DMG process and thorough and independent investigation given the nature of the allegations against a senior doctor;

161.2 The events in July 2023 occurring at the time they did – given that the complaints that arose from those events were connected in nature to the complaint by Dr A it was reasonable for the Respondent to decide that they should be looked at together and that the allegations relating to the complaint by Dr A should not be taken forward to a disciplinary hearing until the DSN complaints had been investigated.

161.3 There was a delay in the DSNs confirming that they wanted to make a formal complaint (thereby delaying the investigation);

161.4 A disciplinary hearing having been scheduled for 12 August 2024, there was a further delay to 3 October 2024 because of the non-availability of the Claimant’s representative. 69 of 78

[162]I accept that the timescales did not render the investigation unreasonable or result in the Respondent reaching unreasonable conclusions on the allegations against the Claimant. The timescales, whilst lengthy were within the band of reasonableness in the context of an NHS employer deploying and applying MHPS in a complex case concerning the future employment of a senior and long-serving clinician. Most importantly, and notwithstanding that the Claimant was not interviewed in relation to the DSN allegations until February 2024 and the MHPS timescales not being met, I do not consider that the timescales materially prejudiced the Claimant’s ability to answer the allegations against him or the evidence available to the investigation and disciplinary process. A respondent does not have to interview all potential witnesses in order to carry out an investigation that is within the band of reasonableness and here the Respondent’s investigation was within that band. I accept the Respondent’s submission that no material evidence was lost and that the Respondent was entitled to accept the evidence of the DSN’s over that of the Claimant taking into account the separate complaint by Dr A. No effective appeal process? (1.3.7)

[163]I do not accept the Claimant’s case that he did not have an effective appeal process and that the Respondent therefore did not have a genuine belief in the Claimant’s misconduct held on reasonable grounds. It is clear that the appeal panel were aware of the content of the 15 November 2024 letter confirming that a further disciplinary hearing would have been instigated against the Claimant had he remained in employment because of new allegations made against him. This was relevant context and there is no evidence that Ms Poskett did not take into account that the new allegations had yet to be tested at a disciplinary hearing. It was however within the band of reasonable responses for the Respondent to note at the appeal stage that further allegations had been made against the Claimant.

[164]It was also clearly within the band of reasonableness for Ms Poskett to continue in her role at the appeal in circumstances where both she and Mr Mitchell had served on the Board together. There is no evidence to suggest that this affected her integrity as a decision-maker at the appeal.

[165]I accept the Respondent’s submissions that:165.1 the Claimant and his representative were fully aware of the 14 November 2024 letter and neither argued that the Appeal Panel was “poisoned”, or that the letter be excluded, or that Appeal Panel recuse itself;

165.2 the Appeal Outcome Letter shows that the new allegations against the Claimant played little part in the appeal decision. Instead, and quite properly, the Appeal Panel considered and rejected each ground of appeal on their own merits, setting out full reasons for doing so. All of these findings were permissible and within the band of reasonable responses. 70 of 78 Did the Respondent adopt a fair procedure? [1.5]

[166]As regards LOI 1.5.1, 1.5.2, 1.5.3, 1.5.4 and 1.5.1 I do not uphold the Claimant’s grounds for challenging the fairness of the procedure for the reasons set out above. Overall fairness of the procedure and reasonableness of the Respondent’s belief in the complaints

[167]I accept the Respondent’s submissions on the Respondent’s genuine belief in the allegations being held on reasonable grounds and the fairness of the procedure more generally:167.1 The Respondent identified clear terms of reference as to the matters to be investigated, and communicated this to the Claimant.

167.2 The Respondent appointed an external investigator to maintain impartiality.

167.3 The external investigator was not a decision-maker, but an investigator. It is not alleged that she acted in any way in bad faith.

167.4 The investigation was reasonably carried out with Ms Byrne collating relevant documents and statements and interviewing witnesses.

167.5 The Claimant was also interviewed, and given a full opportunity to present his case.

167.6 When new allegations (relating to 9 and 13 July 2023) were brought forward during the investigation, the new allegations were properly identified and added to the investigation. Again, those witnesses were interviewed, and the Claimant was also interviewed.

167.7 In light of the evidence collated, Ms Byrne acted reasonably by finding a disciplinary case to answer in respect of both sets of allegations.

167.8 The Claimant was provided with both parts of the Ibex Gale Report on 1 May 2024 [HB323].

167.9 The Claimant was provided with the Management Case [HB363] in good time prior to the Disciplinary Hearing, such that the Claimant was able to produce his own written submissions in the form of his own case [HB408] and opening statement [HB422].

167.10 The Management Case did not refer to the expired Final Written Warning dated 3 December 2019 [HB56] (it was actually introduced into evidence by the Claimant’s representative at the Disciplinary Hearing). 71 of 78

[168]As regards the delay in the handling of the Claimant’s grievance and the outcome reached, this was not part of the Claimant’s claim as defined in the agreed list of issues and the Claimant chose not to appeal Dr Patel’s decision. Was dismissal within the range of reasonable responses? (1.3.8/1.4)

[169]The length of time it took between the March 2023 allegation and the July 2023 allegations to reach a disciplinary hearing and the Claimant’s dismissal (the outcome of which was given on 5 November 2024) also clearly reflect on the reasonableness of dismissal as a sanction since the Claimant remained in work throughout this period and was not suspended/excluded. As Mr Mitchell had alluded to at the disciplinary hearing, if conduct warranted potential dismissal, that might have pointed to the need to suspend a clinician. Relevant to this are:169.1 Dr A and the Claimant worked in the same department and saw each other regularly. After the investigation in to Dr A’s complaints the Claimant was not speaking to Dr A and there was a significant change of tone in the Claimant’s attitude to Dr A.

169.2 Arrangements were put in place such that the Claimant and the DSN’s were not working together.

169.3 The Claimant’s submission that the disciplinary hearing was on 3 October 2025 and dismissal was 5 November 2025 and, although the Claimant took leave, he was also at work during this period after the disciplinary hearing and when the detail of the allegations was known, in full, to the Respondent.

169.4 There were no patient complaints about the Claimant for 1 year and 7 months.

[170]Given that Dr A was also a consultant I consider that it was likely that he would have felt able to assert his professional view on a patient care point with the Claimant (should there have been a future disagreement on the approach between them) notwithstanding the Claimant’s conduct towards Dr A in March 2023. As regards Dr A’s allegations, I therefore consider that the Respondent took a reasonable decision, given the reputational implications of excluding the Claimant from work, not to exclude the Claimant pending completion of the investigation and disciplinary process. The fact that Dr A felt ‘less raw’ about the Claimant’s conduct by the time he was interviewed by Ms Byrne does not mean that the Respondent was not entitled to consider the Claimant’s conduct towards Dr A as potential gross misconduct. That is more a reflection of Dr A’s developing attitude to the situation and willingness to put it behind him than the nature of the Claimant’s conduct. The Claimant was less able to put Dr A's email comments behind him and he held on to his sense of grievance towards Dr A. 72 of 78

[171]I consider the Respondent’s decision as regards the non-exclusion of the Claimant in light of the DSN complaints was also reasonable in this regard given arrangements that were made for the DSN’s not to work with the Claimant.

[172]Of course a patient safety risk might have been created had the Claimant acted in an unacceptable way towards another clinician, particularly a more junior one, in circumstances where there was a disagreement between the Claimant and another clinician. Another clinician might not have felt able to express their professional opinion and that might have had an impact on patient care. However, that was a theoretical risk and I consider that on balance the Respondent made an understandable judgment of the risks given the mitigation that I have explained above and talking into account that the Respondent was entitled to assume that the Claimant knew the standards expected of him as a Consultant and given that he had been given a final written warning previously for bullying and intimidating conduct. As such, I do not consider that the fact that the Claimant was not excluded and the process took as long as it did, suggest that dismissal could not have been a sanction within the band of reasonable responses.

[173]For the reasons I have explained, neurodiversity was not a mitigating factor that in the circumstances of this case the Respondent was under an obligation to explore or take into account. The Respondent was not on reasonable notice of the need to explore neurodiversity as a potential factor contributing to the Claimant’s conduct and the Claimant was only diagnosed with ASD just before this Tribunal hearing.

[174]The Claimant in submissions categorized the matters for which he was dismissed as a 5 minute discussion with Dr A on 3 March with a threat to sue and two short conversations with the DSNs on 9 and 13 July where the Claimant, notwithstanding how he may have made the DSNs feel, considered that he acted in the best interest of the patient and for patient safety reasons.

[175]I remind myself that I have found that allegation two was not well founded. That of course counts against the reasonableness of the decision to dismiss but it does not render the dismiss necessarily unfair. The Respondent was entitled to take into account the Claimant’s broader demonstration (or absence of) insight into his conduct/contrition. The Claimant submitted that mitigation was not referred to in the Respondent’s dismissal letter and the Claimant had in any event show signs of reflection [HB462]. I consider that the disciplinary panel, whilst reaching an unreasonable conclusion as regards allegation 2 (which it did not appear specifically to address), nonetheless reached a reasonable conclusion on the Claimant’s insight and level of contrition in the broader context. It acknowledged that the Claimant had reflected that, rather than confronting Dr A, he might have sent a further email. However, I accept their broader concern that the Claimant did not appear to accept how his conduct had made Dr A feel at the time and focused on the provocation that the Claimant perceived in the opinion Dr A expressed in his email. 73 of 78

[176]It is clear that the Claimant demonstrated that he understood how he sometimes came across but, as regards the DSN’s, I consider that the Respondent reached a reasonable conclusion that the Claimant had not demonstrated that he took the DSN complaints and the impact he had had on them sufficiently seriously(i) describing the incident as a “difference of opinion turned into a behavioural thing”

(ii) saying that “unless you speak in a whisper now, everything is a raised voice” and

(iii) saying that he considered people to be overly sensitive, leading to a need to walk on eggshells. It was reasonable for the Respondent to conclude that he had insufficient regard for current standards of behaviour and priorities around civility and respect to colleagues and did not indicate that he would change his behaviour in future.

[177]The impact that the Claimant had had on Dr A was clearly serious (he felt that the Claimant might move to physical threats) and it was reasonable for the Respondent also to conclude that the DSN’s were wary of the Claimant further intimidating them such that they took steps to avoid him. Taking into account the factors I have addressed above, the Respondent reasonably concluded that the Claimant potentially caused a risk to patients if nurses were scared to follow the usual protocol for prescribing medication.

[178]I accept the Respondent’s submission that bullying behaviour is capable of being gross misconduct (being conduct that that destroys the employment relationship). The fact that the Claimant had previously been issued with a final written warning for bullying and intimidating conduct is suggestive of that and indicates that the Claimant knew what was unacceptable. There is no suggestion that that very serious sanction (a final written warning) was imposed because the Claimant had repeated misconduct that had already the subject of a first written warning - the Claimant’s conduct on that occasion alone had warranted a final written warning.

[179]The Respondent was also entitled to take into account the fact that the Claimant had been issued with that final written warning as evidence against which to assess the likelihood of the Claimant repeating or modifying his behaviour. There is no suggestion that the Respondent did so to justify a more serious sanction than would otherwise have been imposed. It was also reasonable for the Respondent to have taken into account that the July 2023 DSN conduct had taken place when the Claimant knew that there was already a complaint about his behaviour from Dr A. Taking all the circumstances into account the Respondent reasonably concluded that there was a material risk that the Claimant would continue to behave has he had done, even if issued with a final written warning (and notwithstanding that the Claimant remained working during the lengthy disciplinary process). That might have entailed patient safety risks and put at risk the Respondent’s relations with its other employees.

[180]I remined myself that the relevant question is not whether I would have dismissed the Claimant in the circumstances. It is not permissible for me to substitute my view. I must examine whether the decision is within the band of reasonable responses available to the reasonable employer (an NHS Trust in these 74 of 78 circumstances). I remind myself also that I must assess the question of reasonableness at the time the decision was taken based on the information known to the dismissing officer at that time. I do not take account of information not then known or which the Respondent now knows with the benefit of hindsight (such as the Claimant’s recent ASD diagnosis). Dismissal for misconduct clearly has serious implications for an NHS Consultant and is a particularly serious sanction given the potential implications for a Consultant’s ability to exercise their profession and skills (which in the case of the Claimant were significant and built over a long career). However, high standards of behaviour can be expected of a Consultant and the Claimant clearly knew what those standards were given his previous disciplinary experience. Taking into account the seriousness of his conduct towards Dr A and the DSN’s and the significant impact it had upon them at the time and the Respondent’s reasonable conclusion as to the likelihood of the Claimant addressing his future behaviour, I cannot say that dismissal was outside the band of reasonable responses and accordingly I conclude that the Claimant was not unfairly dismissed.