Dr D Alexandrou v Moorfields Eye Hospital NHS Foundation Trust: 6003503/2024 Dr D Alexandrou v Moorfields Eye Hospital NHS Foundation Trust: 6003503/2024

EMPLOYMENT TRIBUNALS

Case No 6003503/2024

Between

Dr D AlexandrouClaimant

Moorfields Eye Hospital NHS Foundation TrustRespondent

Before

Employment Judge Norris, sitting alone (via CVP)

Date 25 July 2025

JUDGMENT

[1]The Claimant was a disabled person at the relevant time.

[2]The Claimant’s claim of discrimination arising from disability is not well-founded and is dismissed.

[3]The Claimant’s claim of unfair dismissal is well-founded and succeeds.

[4]The Claimant’s claim of wrongful dismissal is not well-founded and is dismissed.

[5]The Claimant’s claim of a failure to provide written reasons for dismissal is not wellfounded and is dismissed.

REASONS

The Issues

[1]The Claimant is a Paediatric Consultant who worked for the Respondent between 6 January 2015 and 7 March 2024, carrying out clinics two days a week (Thursdays and Fridays) with Supporting Professional Activities (“SPA”) offsite on a further two days a week.

[2]In July 2022, age 64, the Claimant requested retirement under the NHS “Retire and Return” scheme. He duly retired under the rules of the scheme on 31 August 2022 and returned to work the following week, under a new 12-month fixed-term contract of employment, valid until 7 September 2023. On 29 August 2023, that contract was extended by mutual agreement for a further six months, to 7 March 2024.

[3]On 17 November 2023, the Claimant underwent open heart surgery. He made a successful recovery and returned to work by way of phased return, starting back on 18 January 2024.

[4]The Claimant had attempted in September and October 2023 to seek confirmation of whether the fixed-term contract could be extended for a year rather than six months, i.e. to September 2024. He had not received a response by the time he went off for his surgery. He renewed his attempts in February 2024. He was told on 1 March 2024 that his contract would not be extended further and that his last day of employment would be 7 March 2024. Termination of the contract was confirmed on 5 March 2024.

[5]The Claimant brought a claim in time on 7 June 2024 complaining of unfair and wrongful dismissal, failure to provide written reasons for dismissal, redundancy pay and discrimination under section 15 Equality Act 2010 (EqA) (“because of something arising in consequence of disability”). The Respondent defended the claim.

The Hearing

[6]At a case management hearing before Employment Judge Plowright on 9 October 2024, the case was listed for five days before a full panel, between 21 and 25 July 2025 (liability only). Owing to a lack of judicial resource to start on 21 July 2025, we began on 22 July, and through the “virtual region”, which meant that the case was listed before me as a Judge sitting alone. I had however read the bundle and witness statements before we started on 22 July, and the Hearing timetable proposed by EJ Plowright had given sufficient time to complete the evidence in four days in any event.

[7]Before we started hearing the evidence, the parties helpfully confirmed that the Respondent has conceded the Claimant’s continuous service so that the Tribunal does have jurisdiction to hear the complaint of unfair dismissal. The questions of the Claimant’s disability status and the Respondent’s knowledge thereof remained in issue.

[8]So far as conduct of the Hearing was concerned, the Claimant confirmed that he did not require any adjustments save that he requested regular short breaks. This was entirely reasonable, and Counsel helpfully noted each time a suitable point in the evidence had been reached so that this could be accommodated.

[9]The Claimant gave his oral evidence on 22 July. Cross examination (during which I also asked occasional questions to clarify the evidence being given) concluded shortly before lunch. During the lunch break, the Respondent forwarded by agreement a copy of a medical report in its possession that had not been included in the bundle. There was no objection to it being adduced and there was no further cross examination about it. The Claimant was re-examined and answered a small number of further questions from me. That concluded the Claimant’s case.

[10]The Respondent’s witnesses gave evidence on the afternoon of 22 July (Ms Lucy Barker, Consultant Ophthalmologist and Paediatric Ophthalmology and Cataract Service Director for Paediatric Ophthalmology) and on 23 July (Ms Natalie Turner, Assistant Divisional Manager, and Mr Adam Harrison, now Medical Workforce Optimisation Lead). Ms Turner was recalled briefly after Mr Harrison had been released. We finished early on 23 July so that Counsel could produce written submissions.

[11]On 24 July the representatives spoke briefly to their written submissions and I spent the rest of the day deliberating. I gave oral judgment on liability on 25 July and a date was fixed for remedy with associated directions if the parties are unable to settle the claim in the interim. The Claimant has subsequently requested these written reasons.

The Issues

[12]As agreed, the issues were as follows (renumbered and with the addition of 8): ORDINARY UNFAIR DISMISSAL – s.98 ERA 1996 Why was the Claimant dismissed?

[2]Does the reason fall under section 98(1) and (2) the ERA 1996?2.1 The Respondent intends to rely on the potentially fair reason of some other substantial reason.

2.2 The Respondent is required to show that:2.2.1 The fixed term contract was adopted for a genuine ‘purpose’,

2.2.2 This was known to the employee, and

2.2.3 The ‘purpose’ had ceased to be applicable.

[3]If so, did the Respondent act reasonably in treating that reason as a sufficient reason for dismissing the Claimant pursuant to s.98(4) ERA?

[4]Did the Respondent act reasonably in the circumstances, including its size and administrative resources, in treating the limiting event of the Claimant’s limited term contract as a sufficient reason for the Claimant’s dismissal?

[5]Was the dismissal of the Claimant fair in all the circumstances (having regard to the equity and the substantial merits for the case)? In particular, was the dismissal within the band of reasonable responses available to the Respondent at the time of the dismissal?

[6]In regards to the above, did the Respondent provide written confirmation of the reasons for the Claimant’s dismissal? WRONGFUL DIMISSAL (breach of contract)

[7]Did the Respondent breach the Claimant’s contract of employment by dismissing him without notice, or without pay in lieu of notice? DISCRIMINATION ARISING FROM A DISABILITY (S.15 EQA)

[8]Was the Claimant a person with a disability at the relevant time?

[9]If so, did the Respondent know, or could the Respondent reasonably have been expected to know that the Claimant was disabled?

[10]What is the “something” relied upon by the Claimant? The Claimant relies on:(a) (A) The Claimant took a period of sick leave from 17 November 2023 to 18 January 2024 owing to his open-heart surgery; and

(b) (B) The Claimant was required to return to work on a phased return owing to his open heart surgery.

[11]Did the “something” relied on at (10) arise in consequence of the Claimant’s disability?

[12]If so, did the Respondent treat the Claimant unfavourably because of something arising from the Claimant’s disability? The Claimant relies on the following unfavourable treatment:(a) (A) The Respondent failed to respond to the Claimant in relation to his enquiries regarding the extension of his Contract;

(b) (B) The Respondent did not extend the Claimant’s contract and unfairly dismissed the Claimant; and

[13]If so, can the Respondent show that the treatment was a proportionate means of achieving a legitimate aim? Law Unfair dismissal 13. Under section 94 Employment Rights Act (ERA) 1996, an employee with more than two years’ continuous service has the right not to be unfairly dismissed by his employer.

Law

[14]Pursuant to subsection 95(1)(b) ERA, the non-renewal of a fixed-term contract amounts to a dismissal. Expiry of such a contract is not on its own a potentially fair reason.

[15]Subsection 98(1) provides: “In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show:(a) the reason (or, if more than one, the principal reason) for the dismissal, and

(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.” Subsection 98(4) says that: “Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer): (a) 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 (b) shall be determined in accordance with equity and the substantial merits of the case.”

[16]Accordingly, it is for the Respondent to show the reason for dismissal. The Tribunal must be satisfied that the reason was both a potentially fair one falling within the scope of the subsections and capable of justifying the Claimant’s dismissal. The authorities show that a “sound, good business reason” for a reorganisation will be sufficient to amount to some other substantial reason.

[17]The Tribunal must then decide whether the employer acted reasonably under subsection 98(4) in dismissing for that reason. At this stage, the fairness of the dismissal is to be considered by asking whether the decision to dismiss fell within the band or range of reasonable responses that a reasonable employer might adopt, without substituting the Tribunal’s own opinion.

[18]Subsection 92(1)(c) ERA provides that an employee is entitled to be provided by his employer with a written statement of particulars of the reasons for the dismissal if the employee is employed under a limited-term contract and the contract terminates by virtue of the limiting event without being renewed under the same contract. Wrongful dismissal/breach of contract

[19]Where the maximum duration of a contract has been fixed at the outset, that contract will terminate automatically on the expiry date, even where the contract also provides for earlier termination on notice in certain circumstances.

[20]No notice is required, and no wrongful dismissal claim arises, on expiry of the fixed term. Section 15 Equality Act 2010 (EQA)

[21]A person will be found to have a disability according to section 6 EQA if:a. they have a physical or mental impairment, and

b. the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. In this context, “substantial” means “more than minor or trivial” considering the time taken to carry out the activity and the way in which the activity is carried out, and “long-term” includes where the effect has lasted or is likely to last for at least twelve months. “Normal day-to-day activities” are those which people do on a regular or daily basis.

[22]According to paragraph 5 of Schedule 1, the assessment of disability must consider the effect of the impairment as if no treatment or correctional measures were in place. An effect which is “likely” to recur (i.e. “it could well happen”) is deemed to be “long-term”.

[23]Pursuant to section 15 EqA, an employer may not subject an employee to unfavourable treatment because of something arising in consequence of the employee’s disability unless it can be justified, i.e. the employer can show that it has a legitimate aim and that the treatment is a proportionate means of achieving it. However, this does not apply if the employer shows that it did not know, and could not reasonably have been expected to know, that the employee had the disability. Findings and conclusions I make the following findings and reach the following conclusions as relevant to the issues before me:

[24]Claimant’s disability status and the Respondent’s knowledge24.1 The Claimant’s unchallenged evidence was that he was generally in good health until mid-late August 2023, when he began to suffer frequent episodes of what he believed to be vertigo. These episodes continued into September 2023, with increased fatigue and breathlessness. On 11 October 2023, the Claimant collapsed while taking his children to school and as a result, underwent cardiac evaluation.

24.2 The Claimant was diagnosed with severe, critical aortic valve stenosis and a moderate degree of mitral valve stenosis with regurgitation. He was seen as an outpatient at the Royal Brompton Hospital cardiology clinic on 9 November 2023. Cardiac surgeon Mr Hoschtitzky noted that the Claimant had had: “some mild hypertension and has led an active life. He started becoming symptomatic only very recently with fatigue and breathlessness and has had one syncopal attack after very minimal exercise. He is otherwise well”.

24.3 The Claimant’s GP signed him off all work for two months (14 November 2023 to 13 January 2024) and on 17 November 2023, the Claimant received a biological aortic valve replacement during planned surgery. His discharge summary notes show that he had “transient episodes of bradycardia following his surgery”, as a result of which his medication bisoprolol had to be stopped.

24.4 On 20 December 2023, cardiac specialist Professor Gatzoulis, wrote as follows to the Claimant’s GP: “[The Claimant] is much better following his rather successful openheart surgery in November. He rehabilitates at good speed, walking for half an hour or longer on a daily basis. Free of sustained palpitations, angina or syncope. On physical examination he is pink, resting saturations of 98% in air with no signs of cardiovascular decompensation. His radial pulse is good volume now in keeping with his improved cardiac output…”. The Claimant was to continue to take aspirin indefinitely, atorvastatin once daily and an iron supplement which he might be able to discontinue following a review. Professor Gatzoulis concluded, “I am delighted with the progress [the Claimant] is making. He had an excellent result from his operation and is making a speedy recovery. He should continue to rehabilitate himself. He should be fit to return part time to work in mid-January. I shall review him with a repeat transthoracic echo in a year from now”.

24.5 A similarly positive letter was sent from Mr Hoschtitzky to the Claimant’s GP the following day, saying: “[The Claimant] has done really well following [the surgery] with an excellent results… he is able to walk unlimited for at least 30 min a day now and has minimal pain. His scar appears to have healed well. … From a work perspective I suggest that by early January he may re-start work but part-time say 3-4 hours a day maximum for 4 weeks before he retains full time scheduling again from early February”.

24.6 The Claimant did return to work on a phased return from 18 January 2024. However, on 28 January 2024, the Claimant undertook a telephone Occupational Health appointment, during which he reported “experiencing fatigue, weakness and shortness of breath on exertion”. The OH nurse wrote that the duration of the condition was “less than 12 months but likely to last at least 12 months” and that the Equality Act was likely to apply.

24.7 In early March 2024, the Claimant’s evidence is that he began to experience palpitations, dizziness and faint episodes. He was signed off work for two days with “work stress” and “aortic valve replacement” on 4 March 2024.

24.8 The Claimant’s GP records show that in February 2025 (i.e. eleven months later), he attended an appointment at which he said he had done well with his physical recovery initially but had started to have more problems with fatigue, shortness of breath and exercise tolerance. His symptoms varied day-to-day with a combination of breathlessness and fatigue and, very rarely, chest pain. He was also experiencing some mental health challenges, specifically his mood, anxiety and sleep; sleep had been a “real problem” for some time with initial insomnia, waking in the night and then taking a long time to get back to sleep. He was tired, and this was increasing his anxiety. He was not feeling down every day, just sometimes. He was tense and anxious at times but not having panic attacks. He was referred to a psychological therapies programme.

24.9 The Claimant was seen in cardiology clinic on 6 May 2025 at a hospital in Oxford. The clinician, Dr Kelion, noted that the Claimant had endured: “a few months of occasional light-headedness associated with a rapid pulse rate on palpation, difficulty sleeping, and shortness of breath on “long” walks (by which he means 10 minutes on the flat in the park). The symptoms persisted until the beginning of this year when he had some talking therapy for his anxiety, and they have greatly improved since then. He is no longer lightheaded, is now sleeping much better, and he can now walk for 30 minutes without breathlessness.”

24.10 The Claimant saw his GP again on 30 June 2025, noting that he had been on antibiotics since a recent dental infection and had felt tired. He had been increasing his daily walking distance. However, that day, after 20 to 25 minutes he had felt faint with palpitations and so rested.

24.11 It was put to the Claimant in cross examination that the report on 20 December 2023 painted a rosy picture one month after his surgery. The Claimant denied this. He drew the Tribunal's attention to the section on medication and the fact that he would be continuing to take aspirin at 75 mg daily on an indefinite basis. He explained that atorvastatin and aspirin were prescribed in order to prevent the most common and serious complications of the heart surgery. The hope was that the atorvastatin would prevent or delay degeneration of the replacement valve, while the aspirin was to decrease accumulation of clotting thereon, and both were intended to increase the life span of the valve. 24.11 The Claimant also referred to bisoprolol which, as is noted above, he had had to stop taking in the immediate aftermath of the surgery because of transient episodes of bradycardia. In answer to my questions, he explained that bisoprolol is a beta blocker which slows down the heart and reduces the pressure, the Claimant’s heart having become bigger and thicker prior to his surgery which was what was causing decreased frequency of the heartbeat, leading to severe dizziness, weakness and fainting. So far as bisoprolol is concerned, once the Claimant had fully recovered his cardiovascular health in December 2023, he went back on this medication, initially at 2.5 mg per day but gradually being increased to 15 mg per day. He observed this is very close to the limit of 20 mg per day. He recently had another fainting attack while out in the park, and that was the reason for the most recent increase. I consider it likely that that is the incident which he reported to his GP on 30 June 2025, above.

24.12 The Claimant’s evidence, which I accept, was that from April 2024, he consistently saw patients in the private sector, but only after consultation with and, in effect, the blessing of, his cardiologist. He observed that in his private clinics, he is able to see patients within the limit of his capabilities, ensuring that he fully regulates the numbers thereof and takes appropriate gaps between appointments. So far as his day-to-day activities are concerned, he continues to experience breathlessness if he walks for 20 minutes or more, and he becomes breathless and dizzy if he climbs stairs very fast.

24.13 Taking the above into account, I find that the Claimant does meet the definition of a person who had, at the material date, a disability within the meaning of the Equality Act 2010:

a. The Claimant’s severe, critical aortic valve stenosis and mitral valve regurgitation are physical impairments.

b. They had, by the date when his employment with the Respondent ended, substantial (in the sense of more than minor or trivial) adverse effects on his ability to carry out day-to-day activities:

(1) From August to October 2023, his contemporaneous reporting was of “fatigue and breathlessness…one syncopal attack after very minimal exercise”.

(2) While his surgery in November 2023 was reported to have had a good clinical outcome, by January 2024, he reported (again, contemporaneously) to OH that he was “experiencing fatigue, weakness and shortness of breath on exertion”.

(3) In early March 2024, he experienced “palpitations, dizziness and faint episodes”.

c. Having regard to the 2011 “Guidance on matters to be taken into account in determining questions relating to the definition of disability”, I note that while experiencing “some tiredness or minor discomfort as a result of walking unaided for a distance of about 1.5 kilometres or one mile” would not reasonably be regarded as a “substantial adverse effect”, “an ability to walk only a short distance without difficulty; for example because of physical restrictions, pain or fatigue” would, without more, reasonably be regarded as such.

d. Similar consideration is given to “difficulty in going up or down steps, stairs or gradients; for example, because movements are painful, fatiguing or restricted in some way”.

e. The Claimant’s symptoms meant that he could not walk for more than ten to twenty minutes, or climb stairs briskly, or he could only do so with difficulty. I accept that this amounted to more than “some tiredness or minor discomfort” and that the effects of the impairments amounted to restrictions on his day-to-day activities.

f. While the surgery in November 2024 improved the underlying condition, it did not cure it or put an end to the associated symptoms. I further accept that the effect of the Claimant’s ongoing treatment should be disregarded. It is clear at least on balance of probabilities that without that ongoing treatment, the Claimant’s symptoms would have persisted and probably worsened, resulting, as he said in a stroke or even death; as of December 2023 he was to restart (and later to increase the dosage of) the bisoprolol so as to control his extra-fast heart beats and breathlessness and bring down his blood pressure. In addition, I accept the Claimant’s evidence that his medication serves also to preserve the life of the replacement valve which in turn reduces his propensity for a stroke.

g. I am reminded by the Respondent of the Court of Appeal’s decision in McDougall v Richmond Adult Community College

[2008] IRLR 227

, which requires me to consider the likelihood of a recurrence in an impairment as at the date of the alleged discriminatory act. I have therefore not considered in this context the evidence relating to the period after the Claimant’s employment ended with the Respondent in March 2024, although the Claimant’s disability impact statement deals mostly only with the effects as at the Hearing and likely ongoing issues, and considerably less with the situation at the date of the acts complained of. Nonetheless, it is fair to note that the recorded ongoing effects of the Claimant’s condition are entirely unsurprising, and fit what was “likely” to be the case as at the date his employment ended.

h. Taking into account the contemporaneous evidence therefore, I note that in January 2024, the view of the Occupational Health nurse was that while the Claimant’s condition had not lasted twelve months, it was likely to do so. I find that this was a reasonable assessment to have taken at the time, in light of the seriousness of the Claimant’s condition prior to surgery, the ongoing symptoms that he reported to her and the continuing treatment that he had been prescribed. The effects had begun to have noticeable effect by the end of August 2023. It was entirely reasonable to conclude in January 2024 that they would be ongoing by August 2024.

24.14 However, I find that the Respondent did not have and could not reasonably be expected to have had knowledge of the Claimant’s disability status until the OH report, which it received (via Ms Turner) on or around 29 January 2024. This is because: a. The Claimant had emailed Ms Turner on 22 August 2023 to say only that he had been “unwell with episodes of vertigo” which had become more frequent over the last couple of days. He told her he was awaiting further investigations with a CT scan. He messaged her again on 29 August 2023 to say he would not be returning that week. There is no evidence here that would reasonably have put the Respondent on notice of the Claimant’s disability. b. In cross examination, the Claimant accepted that he did not tell the Trust about his collapse that took place on 11 October 2023. He agreed that he went on to see patients on 12 and 13 October 2023, which were a Thursday and Friday and thus his regular clinic days. Not only, he said, did the Respondent not know about his condition at the time, he did not know himself. He thought he had had a vasovagal episode; it was not until a few days later that he gave it further consideration. c. Indeed, on 1 November 2023, the Claimant sent an email to Ms Turner, headed “Sick leave”, in which he said only, “I have to be off duties for the next few weeks due to health issues”, adding, “I will keep you updated with more precise information from the Royal Brompton Hospital soon.” Ms Turner replied promptly, wishing him well and asking him to provide a fit note after seven days. The Claimant acknowledged in cross examination that at this stage nobody, including the Claimant himself, knew how serious his health problems were. d. On 3 November 2023, the Claimant had email exchanges with the Learning and Development team. To them, he said, “I was recently diagnosed with a heart condition which needs urgent heart surgery at the Royal Brompton Hospital”, and as a result sought an extension to the timescale for his appraisal, which appears after discussions to have been deferred (at Mr Harrison’s suggestion). Neither Ms Barker nor Ms Turner was copied in to those emails. e. However, on 14 November 2023, the Claimant sent in his fit note which indicated that he would be off for two months for “heart surgery”. As I have noted above, the next reports from his treating clinicians were not sent until after that surgery had been successfully completed. They were positive about the clinical outcome, but more pertinently, gave no indication of the ongoing symptoms that were subsequently described by the Claimant to the Occupational Health nurse. f. I find that what Ms Turner knew by 28 January 2024 was therefore only that the Claimant had had heart surgery; she reasonably believed that the Claimant had done “really well” with “excellent results”. He had no limitations on walking for at least 30 minutes a day and was to continue with a “well-balanced diet and with his daily aspirin”, as per the report of Mr Hoschtitzky. Following a phased return over the period of four weeks, it was said that he could return to his full-time schedule. g. It was not until 29 January, on receiving the OH report, that Ms Turner was, or should have been, on notice, that there was potentially quite a significant variation between the positive outcome to the surgery from a clinical perspective and the ongoing impact of the Claimant’s associated symptoms that I have described above and which were only being managed through medication which he was likely to have to continue to take indefinitely. h. Having received the report, Ms Turner appears to have made no attempt whatsoever to discuss with the Claimant the symptoms he had described, the medication he had been prescribed or the reason(s) for its prescription, or to revert to the OH nurse to follow up on her indication that the condition was “likely” to be covered by the Equality Act. Had she done so, I find that she could not reasonably have failed to come to the conclusion that the Claimant was a person with a disability.

24.15 I accept the evidence of Ms Barker that Ms Turner did not tell her (and she was not otherwise made aware) of the Claimant having vertigo and a CT scan in August 2023. I accept Ms Barker’s evidence that Ms Turner tells her if clinicians are going to be off for a long period but that their specific health conditions are confidential and are not discussed. I note that the emails between the Claimant and Ms Turner from that period are not copied to Ms Barker. There is no other evidence to support an assertion that Ms Barker knew the underlying reason for the Claimant’s ill-health absence at that time, and, as with Ms Turner, no reason for her to suppose the Claimant had a disability even if she did know that he had been experiencing vertigo.

24.16 Similar considerations apply to the period from November 2023 to January 2024 when the Claimant went off for his heart surgery. Again, Ms Barker’s evidence was that she knew the Claimant was to be off (and for an extended period) but not more than that; his personal health details were confidential. She did not need to know the underlying reasons and they were not discussed. She had no actual or constructive knowledge of his disability.

24.17 I do not accept the submission on behalf of the Claimant that Ms Barker was informed by Ms Turner about the contents of the OH report: a. On 11 January 2024, the Claimant emailed Ms Barker to say, “I am recovering well following my recent heart operation, and I will be able to be back to work from next week. My cardiac surgeon suggested to start with 3-4 hours a day for the first month, and build up from there.” Ms Barker responded the following day saying: “I am glad you are feeling better and up to returning. I am happy with your proposal as long as [Ms Turner] is aware.” I accept her oral evidence that she (Ms Barker) does not “get involved in the management of staff” and that while she knew the Claimant was returning, what she described as the “minutiae” were not discussed in her weekly meetings with Ms Turner. b. I prefer Ms Barker’s evidence in this regard to that of Ms Turner, who in any case was only able to say that she “believed” she had disclosed the OH report to Ms Barker: (1) First, there is no documentary evidence that she did so. (2) Second, it is clear from the contemporaneous email exchanges in February 2024 that Ms Turner lost access to the report herself at some point, because she could not log in to the OH portal and accordingly could not provide a copy to the Claimant when he repeatedly requested one. (3) Third, I find Ms Turner was not a reliable witness generally. Her answers on more than one occasion used the words “it would have been”, “I would have done” (or similar) rather than “it was” or “I did”. As I note below, in some instances she was unable to give any explanation for her actions, saying only that she could not recall. Her answer when initially asked “Did you disclose this [the OH report] to Ms Barker?” was, “She was aware of this”. I pressed her to answer the question and then, as I have said, she responded that she “believed so”. c. This mirrored the exchange in cross examination when Ms Turner was asked about the October-December 2023 period, to which I return below in more detail, but in which Ms Turner was asked whether she had discussed the Claimant’s open-heart surgery with Ms Barker and replied, “I would have, yes. It would have been a verbal conversation during our regular catch up. I would have informed her that he had been signed off medically sick for a period of time.” d. There was no definite recollection on Ms Turner’s part of any such discussion. She then agreed when it was put to her that Ms Barker knew by 11 December 2023 and further agreed to having told Ms Barker “in November”. I do not consider this evidence to be reliable. Again, to the extent that there is a relevant conflict on this point, I prefer the evidence of Ms Barker and find that she did not know the reason for the Claimant’s absence from November 2023 to January 2024. e. In any event, even if Ms Turner had told Ms Barker that the Claimant was undergoing heart surgery, Ms Barker could not reasonably be expected to have supposed that the surgery would not resolve the Claimant’s medical condition completely. As I have noted, that did not become clear until the Claimant’s OH visit in January 2024. f. For reasons to which I return below, the precise date on which Ms Barker became aware of the details of the Claimant’s condition is in any event not material to my conclusion on the section 15 complaints. Something arising in consequence of disability

[25]I accept the Claimant’s submission and find that his period of sick leave and his requirement to return to work on a phased basis following his surgery were things that arose in consequence of his disability. Contract extension

[26]As to the Respondent’s failure to respond to the Claimant’s enquiries about the possibility of extending his contract beyond 7 March 2024:26.1 The background to this issue is that it had been the Claimant who, on reaching the age of 64 in 2022, had approached the Respondent regarding the Retire and Return scheme. He had completed and submitted the appropriate form, which clearly states that the “return” is for a maximum 12-month term. His return was duly discussed and agreed to be for that maximum period. The contract expressly states, “This is a fixed term post until 07/09/2023”.

26.2 However, I accept that it is not uncommon for further extensions to be mutually agreed, following the expiry of the initial fixed-term, as indeed occurred at first in this case:

a. On 7 July 2023, i.e. two months before the end of the twelvemonth term, Ms Turner emailed the Claimant to say that it “would be good to meet to discuss extending your contract following last year’s retire and return.”

b. I find that they did have a discussion on 20 July 2023. Ms Turner emailed the Claimant the following day saying, “Thank you for your time yesterday. As discussed, you requested for your current contract to be extended by a further 6 months, and at which point you intend to fully retire. I have made the necessary change to the ESR record, and your new fixed term end date is 7th March 2024”.

c. On 29 August 2023, the Respondent’s Medical HR and Recruitment Officer sent written confirmation to the Claimant of the contract extension to 7 March 2024.

26.3 There was no similar exchange or indeed any discussion between the parties two months ahead of the new expiry date, or at all: a. On 15 September 2023, the Claimant emailed Ms Turner noting that they were nearly at the end of the first month, saying, “I was wondering if it might be better to extend the new contract for one year instead of six months. If that makes things smoother for the Trust to plan ahead, I am more than happy to proceed with one year contract, and I will be grateful for your response please”. Ms Turner did not respond. b. On 3 October 2023, the Claimant emailed her again: “I was wondering if there are any developments please?” Again, Ms Turner did not respond. c. On 24 October 2023, the Claimant emailed Ms Turner a third time: “I was wondering if there is any further development re my contract with the Trust please. It has been over one month since my last email, and I will be grateful for any response, in order to make my plans accordingly.” Ms Turner did not respond.

d. The Claimant was then, as noted above, off with his heart condition and surgery. On 29 February 2024, he forwarded Ms Turner the string of emails set out above, with the following covering email: “This is from 15 September 2023, and I am still waiting for an answer!!! Can I have your response on the issue of the extension of the my contract for one year, no later than noon (12:00 hrs) today please?” Ms Turner replied some two hours later saying that she had seen his email and would come back to him “asap”, adding “I have been held up in meetings this morning”. There was no explanation or apology for the failure to revert previously.

e. That afternoon, the Claimant emailed Ms Turner again, asking for contact details for the manager for Medical HR responsible for consultants’ contracts. He was referred to Mr Harrison, Ms Turner noting in the same email in response that the contract had been renewed for six months from September 2023 and attaching a copy of the letter which confirmed this.

f. The Claimant did email Mr Harrison, asking for an “immediate response from HR”. Mr Harrison replied the same afternoon: “The decision on contract extensions ultimately sit with the service and are funding dependent. I will liaise with [Ms Turner] from my end to hopefully expedite a response for you.” The Claimant replied, “In reference to your comment that the decision on extension of my current contract is funding dependent: Does it mean that the Trust will consider cutting my consultant post? Please note that my decision to retire & return was purely based on my age. I am under the 95 pension scheme, and I wanted to secure my pension rights and not to loose benefits….”.

g. On 1 March 2024, Mr Harrison said: “…In relation to your continued employment, that is subject to the needs of the department. A fixed term contract has a natural end date and is only subject to extension by both parties. [Ms Turner], I believe, has confirmed when your contract is due to expire.” The Claimant replied, “I am still waiting for a response from HR if I am coming to work next week or not, and I will be grateful for a response!” Mr Harrison emailed back, “Under your current fixed term contract, following your last extension, your last working day is 7 March 2024 so you should attend for any work rostered to that date.” The Claimant asked, “So, at least, to clarify: Am I to continue after 7 March 2024 or not? Why is that so difficult to clarify what is the Trust's view on my continued employment?” Mr Harrison responded: “As before, unless your service extends your contract, your employment will cease after 7 March 2024. I understand from [Ms Turner] that an extension is not currently planned. [Ms Turner], please confirm.”

h. On 5 March 2024, Ms Turner emailed and posted a letter to the Claimant saying, “I am writing following our recent correspondence to confirm that your fixed-term contract will end on the planned and previously agreed expiry date of 7 March 2024. Therefore, your last working day will be 7 March 2024. Your contract will be ending at the point of the end of the agreed fixed term end date, the reason being that this role is no longer required as a result of planned service review and reconfiguration.”

26.4 The above emails/exchanges took place against the following background: a. On 21 July 2023, i.e. the day that the Claimant agreed with Ms Turner that his fixed-term contract would be extended to 7 March 2024, Ms Barker was copied in to an email confirming those details. She emailed Ms Turner, asking, “If [the Claimant] is really going to leave us then can we start the process of advertising to replace him?” Ms Turner replied, “Yes definitely, I am trying to source a JD. I had this on my list to discuss with you for Tuesday. We discussed it and he didn't feel that he wanted to do another 12 months.” b. No direct replacement for the Claimant was advertised for, however. I accept Ms Barker’s evidence (which the Claimant did not challenge) that following her own appointment in February 2023, she had intended to develop the service offered to patients so that there would be a shared ophthalmology unit across both Great Ormond Street Hospital (GOSH) and Moorfields. Specifically, Ms Barker considered (and the Claimant agreed in cross examination) that the recruitment of a paediatric rheumatology consultant would improve continuity of care where required between the Respondent and GOSH. c. The Claimant accepts that he did not have the skill set to undertake a paediatric rheumatology consultant’s role; he says that similarly, such a consultant could not perform his role. Ms Barker also says in her witness statement that rheumatology specialists, “who have spent time focusing on a particular area of medicine, can be reluctant to also offer general paediatric cover”. d. I find that this did not deter Ms Barker from speaking to her contact Mr Harry Petrushkin, Consultant Ophthalmologist at GOSH, about what might be done to improve the working relationship at an operational level. An email exchange between them had taken place in May 2023, in which Ms Barker said she was “trying to work out what we are pushing towards” and Mr Petrushkin replied with evident enthusiasm, setting out the problems he perceived might stand in the way of the improvement plans but ending, “thanks for taking this on!” e. I accept Ms Barker’s oral evidence that she then had what she called “corridor conversations” with Mr Petrushkin over the course of the summer 2023. I accept that the reason these are not mentioned in her witness statement is that, as she said when challenged on it by Ms Miller, she did not have “any evidence” of them. I understand her to mean that there is no supporting documentary evidence. f. However, by December 2023, it is clear that matters had moved on because on 11 December, Mr Petrushkin emailed Ms Barker and others as follows: “Please could I introduce Muthana [Al Obaidi], who is the rheumatology clinical lead at GOSH. I wonder if it might be a sensible idea for us to have a scoping meeting to see whether a new paediatric rheumatologist who works between MEH and GOSH might be a good fit for a role within paeds and the future transition service? I suspect there are pros and cons, but I can see a lot of pros!” Again, Mr Petrushkin’s enthusiasm for closer liaison between the two bodies is evident, and I consider this supports Ms Barker’s evidence that they had had further discussions in the seven months that had passed since the email I referred to in the preceding paragraph – critically, including as to the introduction of a paediatric rheumatologist. This message clearly did not come completely “out of the blue”. g. While I appreciate, as I have said above, that the Claimant does not consider that a paediatric rheumatology consultant would have the necessary skillset to cover his role, and vice versa, I find that by 9 January 2024, Ms Barker was nonetheless able to identify, with the help of Ms Al Obaidi, a potential candidate, “T”, who was working at GOSH as a paediatric rheumatology locum consultant. h. The Claimant does not accept that T had the necessary skill set but, quite properly, Ms Miller accepts that without more information as to T’s skills and experience, this is not an argument that can be advanced very far. I find that Ms Barker was clearly satisfied by what she has seen, to the extent (as I return to below) that while the initial approaches did not come to fruition, they are once more being actively pursued. It seems to me fanciful that Ms Barker, as Paediatric Ophthalmology and Cataract Service Director for Paediatric Ophthalmology and Clinical Director for External Partnerships would not only have entertained offering a role to T but have entered a dialogue with GOSH around offering T a contract of any description, not once but twice, if T’s skills and experience were inadequate to cover the Claimant’s clinics.

i. T emailed Ms Barker back on the same day that they were put in touch, saying, “It actually sounds very exciting. How about meeting on Friday on the 26th of January in the afternoon? I have a clinic in the morning and then I am free, so I can come time convenient for you.”

j. The subject line of these email exchanges was “Paediatric rheumatologist to support paediatric uveitis/infusions and transition services”. However, I accept Ms Barker’s evidence that it was intended T would cover what at that time were the Claimant’s clinics on Thursdays and Fridays in addition to offering specialist paediatric rheumatology services. I further accept that it was for this reason that Ms Barker had concluded that she would not renew the Claimant’s contract beyond the end of the six-month extension. She intended to use the budget that would thereby be freed up to offset some of the additional costs of the new service.

[27]In the circumstances, I am satisfied that:a. The reason why the Respondent failed to respond to the Claimant in relation to his enquiries was not because of something arising in consequence of his disability, i.e. either because of his absence in late 2023 or his return on a phased basis in early 2024. My findings on the chronology simply do not support that assertion. The Respondent, through Ms Barker, had been making plans to develop the service from before the point in July 2023 at which it was made aware that the Claimant intended to retire “fully” in March 2024, i.e. from May 2023. Although the Claimant made enquiries, within a month of making that intention known, as to whether it would make things “smoother” if the extension ran for a year rather than six months, I find that this knowledge of his intended retirement had provided something of a catalyst for Ms Barker to pursue those plans, albeit they remained relatively unstructured for some months to come.

b. However, Ms Barker did not know about the Claimant’s disability and indeed between May and December 2023, I have found that she could not have known; for the majority of that period, so far as even he was aware, he did not have one. I do not accept that his (much briefer) absence in August 2023 could have put anyone on notice of disability; and in any event that is not the “something arising in consequence of disability” on which he relies.

c. The evidence also does not support the assertion that Ms Barker reacted unfavourably to the Claimant’s sickness absence and/or need for a phased return; as noted, it was Mr Petrushkin who picked up the thread in writing of a closer liaison with specialist paediatric rheumatology services across both sites from December 2023. The Claimant’s sickness absence was the background to, but not the cause of, the decisions that Ms Barker made.

d. Further, it was Ms Turner who should have replied to the Claimant in September and October 2023 when he made enquiries about a further extension to his contract, not Ms Barker. However, Ms Turner was not the “owner” of the service development plans; as she said several times, she is not a clinician. She might have been asked to assist in compiling a business case if a proposed structure required it, but she was not qualified to suggest clinical improvements to the services, on the evidence before me.

e. An email dated 27 October 2023 that appears in the bundle (which it must be said is difficult to negotiate, with some exchanges or even some quite long “strings” appearing multiple times) from Ms Turner to Ms Barker asks, “[The Claimant] as you know expressed that he would be able to further extend his current contract to 12 months (from original date) which would mean an end date of September 2024, as opposed to April 2024. I had previously mentioned that we may have the role to Ngozi, but not sure how whether her contact would be up for the commitment, I can chase this. In light of this, can I suggest that we do extend [the Claimant] to the full year? Would you be supportive of this? He is chasing an answer so I will go back to him ASAP.” “Ngozi” is Consultant Developmental Paediatrician Dr Ngozi Oluonye, who works across both sites (GOSH and Moorfields).

f. I find that “the role” referred to here was the one that was eventually developed and earmarked for T. Ms Turner did know both that the Claimant was seeking to extend his contract and that he was anxious for an answer; but also that her failure then to give him that answer is strongly suggestive of the fact that Ms Barker did not yet have one for her to give.

g. Thus I find Ms Turner did not reply to the Claimant in September or October 2023 because the plans between Ms Barker and Mr Petrushkin remained at a comparatively early and informal stage; it was not until January 2024, when T was specifically identified as a potential – and willing - candidate for a more structured new role that the decision not to agree a further renewal for the Claimant was made.

h. Evidence supporting that lies in the fact that on 31 January 2024, Ms Turner asked Mr Harrison, “Could you conﬁrm the end date of [the Claimant’s] current contract? I believe this is due to be March -April, but I cannot access ESR. He has had a period of sickness so this has come around quickly. Could you oﬀer a template so we can put in writing to [the Claimant] a conﬁrmation of the end date?” This underlines the fact that Ms Turner had not really put her mind to the Claimant’s situation in terms of the contract renewal until then. Mr Harrison replied promptly with a template for the letter that was eventually sent by Ms Turner to the Claimant on 5 March 2024 (paragraph 16(ii)(h) above).

i. By contrast, there is no supporting evidence at all that Ms Barker or anyone else was concerned by the Claimant’s phased return to work, or indeed by his extended sickness absence. It was, rather, a case of “out of sight, out of mind”. This does have significant implications for the claim of unfair dismissal, to which I return below, but it means that the burden of proof does not shift to the Respondent in relation to the allegation of unfavourable treatment because of something arising in consequence of disability.

[28]The same findings of fact and conclusions are relevant to the question of the reason for the Respondent failing to extend the Claimant’s contract. His sickness absence and phased return were the background to that decision. They were not the cause of it. Notice

[29]In relation to the failure to provide the Claimant with notice, I find this was also not because of anything arising in consequence of disability but because the Respondent did not consider the Claimant was entitled to be given notice as he was employed under a fixed-term contract. He knew when his employment would end because he had been sent a letter confirming this. Without a mutual agreement to extend, that was all that needed to be said, so far as the Respondent was concerned, and while the Claimant had made it abundantly (and increasingly urgently) clear that having initially said he would be fully retiring in March 2024, he had changed his mind, there was never mutual agreement as to a further extension. Conclusion – section 15

[30]In the circumstances I do not need to consider whether the Respondent had a legitimate aim or used proportionate means to achieve it. The claim under section 15 EqA is dismissed. Unfair dismissal

[31]I go on to consider the claim of unfair dismissal. My findings of fact in relation to the chronology involved are relevant here and I do not repeat them.

[32]It is now common ground that:a. The Claimant’s employment terminated automatically at the end of the fixed-term and this was a dismissal;

b. The Claimant’s continuous service was from 2015 and accordingly he had the right not to be unfairly dismissed.

[33]However, this was not something to which, it appears, anyone at the Respondent had put their minds prior to these proceedings. This was likely caused by the fact that those at the Respondent believed the Claimant’s continuous service had been broken by his retirement on 31 August 2022 and re-engagement on the fixed-term contract on 8 September 2022. Thus, the Respondent pleaded in its grounds of resistance, he did not have two years’ service by the date the extension of that fixed-term contract ended on 7 March 2024. It argued that the reference in the contract to January 2015 as being the start of his continuous service was an error. It is against that background that the failures to deal with matters can be seen, though not excused.

[34]I accept that the Respondent had a potentially fair reason for dismissal: i.e. some other substantial reason, namely the proposed employment of a paediatric rheumatologist who would also cover the Claimant’s general paediatric clinical sessions. As I have noted above, the Claimant accepts he would not be capable of performing the paediatric rheumatologist side of the role. Indeed, he doubts that anyone could do both, though as I have found, it is clear that Ms Barker, who I consider to be in a position to know, believes that T could/can. I accept that the Respondent has the budget to cover the Claimant’s sessions and therefore, as submitted by the Respondent, replacing him with someone who was competent to do both (and who would also work between the two sites at Moorfields and GOSH) is capable of amounting to a “sound, good business reason”.

[35]The purpose of the Claimant’s contract extension to March 2024 was to cover the general paediatric role until the new set-up was finalised. At the time that contract expired, I find that the Respondent was in talks with T, anticipating that T would be moving shortly thereafter into the combined role. In the event, it was not until 20 June 2024, three months after the Claimant’s employment had ended, that T withdrew from the process, citing acceptance of a job offer elsewhere.

[36]The situation is therefore not one where the Claimant’s role has either diminished or ceased. As we heard, the role remains available but unfilled as of day two of the Hearing, whether we are considering the Claimant’s own role or the expanded role that was originally earmarked for T. Successive attempts to fill it, either with T or with another clinician, have been unsuccessful. It is a SOSR reason and not a redundancy. The Claimant is not entitled to a redundancy payment, though in light of my findings below, he is eligible for a basic award which is calculated in the same manner.

[37]Turning to consider the process used by the Respondent in dismissing the Claimant, I accept the submissions made by Ms Miller in this regard that the failings were “severe”. I can do no better than to reflect several passages in her submissions:a. There was no meaningful consultation. No genuine attempt was made to explore alternatives. The Claimant was not offered the opportunity to remain in post while restructuring was considered, nor was he engaged in any process. He had only recently returned to work following heart surgery, and the decision not to renew his contract was made with minimal engagement, and without exploring whether he could continue to serve in the General Paediatric function, a role he had fulfilled for many years.

b. The Claimant had on multiple occasions requested to extend his contract beyond March 2024, and chased this, but no response was provided until the very end. Furthermore, the Respondent had complete disregard for discussing the Occupational Health report with the Claimant.

c. The Claimant made a clear and repeated enquiries about the extension of his fixed-term contract beyond March 2024, beginning in September 2023 and following it up through October, February 2024, and again just days before the contract’s expiry. Despite this, there was no formal response from Ms Turner addressing his request. When she eventually replied on 29 February 2024, she merely confirmed the prior extension that had been agreed to March 2024 and failed altogether to engage with the substance of the Claimant’s continuing request to remain in post. I accept that this protracted silence created intolerable uncertainty for a long-serving consultant seeking to continue in employment against a background of significant ill-health.

d. Faced with this lack of clarity, the Claimant reasonably escalated the matter to Mr Harrison on 29 February 2024, only to be met with further vague responses. Mr Harrison stated that any extension was "funding dependent" but made no effort to confirm whether funding had been refused or whether a decision had been made at all. Over a series of emails, he repeatedly failed to provide a direct answer to whether the Claimant’s contract would be renewed, leaving the Claimant in an untenable position working days away from the end of his contract with no information as to whether he would remain employed.

e. I accept the submission that this absence of clarity was not merely inconvenient; it caused real harm. The Claimant was recovering from major cardiac surgery and on a phased return supported by Occupational Health. The evidence shows that the stress and anxiety caused by the Respondent’s silence and evasion contributed to a deterioration in the Claimant’s health, prompting a further period of sickness absence albeit for only two days.

f. I accept that the handling of this matter by Ms Turner and Mr Harrison was procedurally deficient, lacking both transparency and basic fairness. No formal process was followed. The Claimant’s repeated and reasonable attempts to clarify his employment status were met with silence, delay, or obfuscation. Mr Harrison provided the template letter on 1 February and clearly envisaged that it would be completed and sent after Ms Turner had met with the Claimant to discuss the dismissal, but she neither met with the Claimant nor sent the letter.

[38]In all the circumstances, taking into account the considerable size and administrative resources of the Respondent, I have no hesitation in concluding that the dismissal was unfair, and that the manner in which the Respondent handled the expiry of the Claimant’s fixed-term contract fell well short of what a reasonable employer would have done in the circumstances.

[39]Further, I accept the submission that no Polkey reduction is applicable here. The Respondent continues, as Ms Barker confirmed, to have a need for someone to do the general paediatric role previously performed by the Claimant; it is currently being covered by colleagues and/or by requiring the patients to return on another day than a Thursday or Friday. Sixteen months after the Claimant’s dismissal, his role remains unfilled.

[40]Had the Claimant’s employment not been ended by the expiry of the fixedterm contract on 7 March 2024, and had there been any engagement with him about the extension to September 2024 as he had repeatedly requested, I find he would have remained in employment up to that date and indeed potentially beyond. There is no reason to conclude from the Respondent’s perspective that the contract would not have been extended further, given that the new role had still not been put in place by then, and hence that the Claimant would not still be in employment today (subject to what I say below), given the lack of any suitable (or any) replacement. I am unable to make a finding that if the Respondent had followed a fair procedure, it could or would have dismissed the Claimant at any point after 7 March 2024.

[41]However, from his perspective, I observe (but make no further findings at this stage) that on 1 March 2024, the Claimant had said, “Based on my age, my intention is to continue employment until the age of 67, which is the current retirement age for consultants, …”; he reached that age on 1 January 2025, notwithstanding what is said in the schedule of loss about his intention not to retire “for another eight years”. Further evidence on these points will be a matter for remedy, if the parties cannot achieve a mutually agreed settlement prior to a remedy hearing. Wrongful dismissal

[42]As to the question of notice, I accept the Respondent’s submissions that the Claimant is not entitled to be given notice either by contract or under statute. At common law, a fixed-term contract expires on its stipulated expiry date and neither party is required to give notice. The parties could have terminated it earlier by giving notice in writing but neither party chose to do so. Further, since the end date is fixed in advance, the Claimant was, in terms, given six months’ notice when he entered the contract in September 2023 (or, as the Respondent submits, even before that point: Ms Turner writing on 21 July 2023 “your new fixed term end date is 7th March 2024” and the letter dated 29 August 2023 confirming the same), absent any subsequent agreement to renew. The claim of breach of contract/wrongful dismissal is not well-founded and is dismissed. Failure to give a statement of written reasons

[43]Finally, I note that the Respondent did give a statement of written reasons for dismissal on 5 March 2024 and that the Claimant received it by email. It was brief, giving the reason only as “this role is no longer required as a result of planned service review and reconfiguration”. However, neither Counsel was able to find any authorities as to the question of adequacy and I do not address this point further. The Claimant’s complaint under this head accordingly fails.