Dr S Sreedhara v Royal United Hospitals Bath NHS Foundation Trust: 6005628/2025
EMPLOYMENT TRIBUNALS
Case No 6005628/2025
Between
Dr S SreedharaClaimantRoyal United Hospitals Bath NHS Foundation TrustRespondent
Before
Employment Judge Ferguson
Members
Mrs D EnglandMr K Ghotbi-RavandiIn person for claimantMs G Crew (instructed by counsel) for respondentDate 8 July 2026
JUDGMENT
It is the unanimous judgment of the Tribunal that:[1]The complaint of race discrimination relating to the Claimant’s referral to the PPA (paragraph 4.2.7 in the list of issues) is wellfounded and succeeds. It is also just and equitable to extend the time limit in respect of this complaint. It is the judgment of the Tribunal by a majority (Mr Ghotbi-Ravandi dissenting) that:[2]The complaint of race discrimination relating to the decision on 18 October 2023 to subject the Claimant to monitoring (paragraph 4.2.3 in the list of issues) is not well-founded and is dismissed. It is the unanimous judgment of the Tribunal that:[3]The other complaints of race discrimination are not well-founded and are dismissed.[4]The complaints of whistleblowing detriment are not well-founded and are dismissed.[5]The complaints of victimisation are not well-founded and are dismissed.[6]Directions relating to remedy have been sent to the parties separately.
REASONS
[1]By a claim form presented on 19 February 2025 (following early conciliation from 4 December 2024 to 15 January 2025), the Claimant brought complaints of race discrimination, victimisation and detriments because of making protected disclosures.[2]The issues to be determined were agreed at a preliminary hearing on 7 November 2025. Subsequently, in February 2026, the Claimant applied to amend the claim. The application was determined at a further preliminary hearing on 11 May 2026. The Claimant withdrew a number of complaints, including all allegations of harassment, but she also sought to add complaints of detriment because of protected disclosures, alter some wording in the list of issues, add some new factual allegations and change the comparators she relied on. Some of the amendments were not opposed. Of those that were opposed, permission to amend was refused, except that the Claimant was permitted to add an actual comparator for one of her complaints of direct race discrimination.[3]The list of issues was confirmed at the start of the final hearing as follows:[1]TIME LIMITS1.1 Were the discrimination and victimisation claims made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:1.1.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?1.1.2 If not, was there conduct extending over a period?1.1.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?1.1.4 If not, were the claims made within such further period as the Tribunal thinks is just and equitable? The Tribunal will decide:1.1.4.1 Why were the complaints not made to the Tribunal in time?1.1.4.2 In any event, is it just and equitable in all the circumstances to extend time?1.2 Was the detriment complaint made within the time limit in section 48 of the Employment Rights Act 1996? The Tribunal will decide:1.2.1 If not, was there a series of similar acts or failures and was the claim made to the Tribunal within three months (plus early conciliation extension),1.2.2 If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit?1.2.3 If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable period?[2]PROTECTED DISCLOSURES DETRIMENT (WHISTLE BLOWING) 2.1 Did the Claimant make a qualifying disclosure as defined in section 43B of the Employment Rights Act 1996? The Tribunal will decide:2.1.1 What did the Claimant say or write? When? To Whom? The Claimant says she made disclosures on these occasions: 2.1.1.1. PD1 On 18 October 2023, the Claimant verbally raised concerns about junior medical staff affecting patient care to Dr Kerslake and Dr Robson, 2.1.1.2. PD2 On 19 October 2023, the Claimant emailed Dr Robson and Dr Kerslake reiterating her concerns about junior medical staff affecting patient care. 2.1.1.3. PD3 On 1 November 2023, the Claimant emailed Dr Robson concerns about Dr Crowe affecting patient care. 2.1.1.4. PD4 On 15 January 2024, the Claimant emailed Dr Robson concerns about junior doctors affecting patient care.2.1.2 Did the above amount to a disclosure of information?2.1.3 Did the Claimant believe the disclosure of information was made in the public interest?2.1.4 Was that belief reasonable?2.1.5 Did the Claimant believe it tended to show that: 2.1.5.1 the health or safety of any individual had been, was being or was likely to be endangered;2.1.6 Was the Claimant’s belief reasonable?2.1.7 If the Claimant made a qualifying disclosure, was it a protected disclosure because it was made to the Claimant’s employer pursuant to section 43C(1)(a) of the Employment Rights Act 1996[3]DETRIMENT (EMPLOYMENT RIGHTS ACT 1996 SECTION 47B)3.1 Did the Respondent do the following things?3.1.1 D1 Following the meetings on 18 October 2023 and Claimant’s email to Dr Kerslake and Dr Robson on 19 October 2023 Dr Kerslake and Dr Robson failed to properly investigate and/or treat with appropriate seriousness the Claimant’s allegations regarding junior medical staff or explain to the Claimant what was being done to investigate her concerns.3.1.2 D2 On the morning of 18 October 2023, after the Claimant raised concerns about junior medical staff, complaints were later made about her by those staff. Those complaints were not discussed with the Claimant beforehand but were instead escalated to the Divisional Director, Dr Kerslake. Dr Kerslake and Dr Robson arranged a meeting with the Claimant that same afternoon to discuss the complaints made against her.3.1.3 D3 On 18 October 2023, Dr Kerslake and Dr Robson informed the Claimant of clinical concerns regarding her decision-making in relation to therapeutics and discharge planning but did not provide her with a written copy of the complaints, despite her request.3.1.4 D4 On 18 October 2023, despite there being agreement that there were no clinical concerns, Dr Kerslake and Dr Robson confirmed that the Claimant would be subject to monitoring regarding the complaints made against her by junior medical staff, and the Claimant was subjected to monitoring from 18 to 24 December 2023.3.1.5 D5 Following the Claimant’s email to Dr Kerslake and Dr Robson on 1 November 2023 Dr Kerslake and Dr Robson failed to properly investigate the Claimant’s allegations regarding Dr Crowe or progress them under the Bullying and Harassment policy or explain to the Claimant what was being done to investigate her concerns.3.1.6 D6 On 27 November 2023, Dr Kerslake and Dr Robson told the Claimant she had issues with her communication skills and failed to give a reasonable explanation of this.3.1.7 D7 In January/February 2024, Dr Kerslake and Dr Richards made a PPA referral regarding the Claimant.3.1.8 D8 On 9 February 2024, Dr Kerslake emailed the Claimant to say there was a perceived concern with the Claimant’s communication skills and suggested the Claimant should: attend a formal communication skills course, receive peer support during acute ‘hot’ weeks for a minimum of three months and have regular mentor meetings.3.2 By doing so, did it subject the Claimant to a detriment?3.3 If so, was it done on the ground that she had made the protected disclosures set out above?[4]DIRECT RACE DISCRIMINATION (EQUALITY ACT 2010 SECTION 13)4.1 The Claimant describes herself as of Indian Origin4.2 Did the Respondent do the following things?4.2.1 On 18 October 2023, Dr Kerslake and Dr Robson arranged a meeting with the Claimant to discuss complaints made about her. These complaints were not discussed with the Claimant first. The Claimant relies4.2.2 On 18 October 2023, Dr Kerslake and Dr Robson failed to provide the Claimant with a written copy of the complaints against her. The Claimant relies on Dr Crowe as a comparator and/or a hypothetical4.2.3 On 18 October 2023, despite there being agreement that there were no clinical concerns, Dr Kerslake and Dr Robson confirmed the Claimant would be subject to monitoring regarding the complaints against her by junior medical staff. In summary, when clinical concerns were raised about white colleagues, either no action or limited action was taken by the Respondent, yet when clinical concerns were raised regarding the Claimant, she was subjected to supervision (without having the benefit of due process being followed). The Claimant relies on Dr Crowe as a4.2.4 Following the meeting on 18 October 2023 and the Claimant’s email to Dr Kerslake and Dr Robson on 1 November 2023 Dr Kerslake and Dr Robson failed to properly investigate the Claimant’s allegations regarding Dr Crowe or progress them under the Bullying and Harassment policy or explain to the Claimant what was being done to investigate her concerns. The Claimant relies on a hypothetical comparator.4.2.5 On 21 November 2023, Dr Kerslake emailed suggesting that there was a ‘deeper cultural issue that needs addressing’, in response to complaints the Claimant made, thereby deflecting the concerns raised about Dr Crowe; an approach that would not have been and was not adopted when it came to concerns raised about the Claimant. The Claimant relies on Dr Crowe as a comparator and/or a hypothetical4.2.6 On 27 November 2023, Dr Kerslake and Dr Robson told the Claimant she had issues with her communication skills and failed to give a reasonable explanation of this. The Claimant relies on Dr Crowe as a4.2.7 In or around February 2024, Dr Kerslake and Dr Richards made a PPA referral regarding the Claimant. The Claimant relies on Dr Crowe as a comparator and/or a hypothetical comparator.4.2.8 On 18 December 2024, in the appeal outcome letter, the Claimant was offered an additional payment of rate of £25 that was significantly lower than what was previously offered by Ms Griffiths. The Claimant relies on a hypothetical comparator.4.3 Was that less favourable treatment? The Tribunal will have to decide whether the Claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and those of the Claimant. If there was nobody in the same circumstances as the Claimant, the Tribunal will decide whether she was treated worse than someone else would have been treated. The Claimant says she was treated worse than those people identified above and replies upon a hypothetical4.4 If so, was it because of race?4.5 Is the Respondent able to provide a reason for the treatment occurred for a non-discriminatory reason not connected to race?[5]VICTIMISATION (EQUALITY ACT 2010 SECTION 27)5.1 Did the Claimant do a protected act? 5.1.1 The Claimant contends that the following amount to protected acts:(a) On 16 May 2024, in the grievance meeting, the Claimant alleged she was bullied and harassed by Dr Kerslake.(b) On 23 July and 2 October 2024 in the appeal grounds and on 18 November 2024 in written submissions, the Claimant alleged that the Respondent failed to address her complaint of bullying and harassment against Dr Kerslake and there had been a difference in treatment compared to other white employees.5.2 Did the Respondent do the following things?5.2.1 On 10 October 2024, Dr Robson, in his appeal statement, made false allegations that there had been credible concerns raised about the Claimant by nursing staff and senior sisters about patient safety.5.2.2 In the alternative, on 10 October 2024, in Dr Robson’s appeal statement, he stated that there had been credible concerns raised about the Claimant by nursing staff and senior sisters about patient safety where the Claimant was not told the details of these alleged concerns thereby being denied the opportunity to respond.5.2.3 On 18 December 2024, in the appeal outcome letter, the Claimant was offered an additional payment of rate of £25 that was significantly lower than what was previously offered by Ms Griffiths.5.3 By doing so, did the Respondent subject the Claimant to detriment?5.4 If so, was it because the Claimant had done the protected acts? 4. The Claimant confirmed that the hypothetical comparator she relied upon was a white British consultant in the same circumstances as her. 5. It was agreed that all issues relating to remedy would be put on hold until after a judgment on liability, with the exception of the Respondent’s argument that one of the protected disclosures was not made in good faith.[6]We heard evidence from the Claimant. On behalf of the Respondent, we heard evidence from Philip Robson, Lisa Southway and Ian Kerslake.[7]We had an agreed bundle of 1880 pages, to which the Respondent’s grievance policy was added at the start of the final hearing.[8]The Claimant requested permission to use transcription software to take a note of the evidence, as an adjustment because she was representing herself and due to her mental health issues. We permitted this, but unfortunately the software was not workable. We ultimately allowed the Claimant to record the evidence on her phone, with a direction that this was solely for the purpose of enabling her to listen to the evidence at the end of each day if needed, it was not to be shared in any way, and it would need to be deleted at the conclusion of the parties’ submissions. We ensured that the deletion took place as directed.[9]The evidence concluded on the sixth day of the hearing. On the seventh day, the hearing was converted to CVP due to extreme heat in the court building caused by a heatwave. Submissions and deliberations took place by CVP. We reserved judgment.
FACTS
[10]The Claimant commenced employment with the Respondent as a consultant haematologist on 7 September 2022. The Claimant is of Indian origin. She has worked continuously in the NHS since 2006. She qualified as a consultant in haematology and has been working as a substantive haematology consultant since 2019. In her previous post she covered three hospitals in Surrey. The Claimant asserts that she has never had any performance issues or concerns raised with her in any previous role.[11]The Clinical Lead for the haematology department at all material times was Dr Philip Robson. The Claimant says that at least until October 2023 she was the only non-white substantive consultant haematologist at the Respondent. That was not disputed by the Respondent.[12]The Claimant’s clinical work included running outpatient clinics and, at other times, being the consultant in charge of the haematology ward. Weeks of the latter type of work are referred to as “hot weeks”.[13]It is not in dispute that during a Multi Disciplinary Team (“MDT”) meeting on 19 December 2022 another haematology consultant, Dr Crowe, spoke rudely to the Claimant in front of the whole team of 20-30 people, challenging the Claimant’s clinical decision-making and undermining her. The Respondent’s witnesses acknowledged that this was unacceptable and that it may have had a knock-on effect as regards other staff members’ confidence in the Claimant. Dr Robson says he apologised to the Claimant about it and spoke to Dr Crowe at the time, about ways that she could discuss things more constructively, and asking her to be mindful of who was listening to the discussion.[14]The Claimant had a period of sickness absence in 2023 from April to July 2023 due to a back injury, followed by a period of annual leave, returning to work in early August 2023.[15]On 18 October 2023 at around 8.30am the Claimant raised some concerns with Dr Robson about the junior medical team. The Claimant’s evidence was that she raised the following issues: “a. A patient was given a specific medication (Dalteparin) despite clear instructions to switch to an alternative medication (Apixaban). b. Patient’s test results not being checked and acted until picked up by me. c. Some crucial medication for cancer patients were not prescribed. d. Unprofessional behaviour, such as giggling behind me several times and responding to me in a snappy manner.”[16]The Respondent does not dispute that the Claimant raised these matters, at the meeting at 8.30am and/or in a meeting around 1pm later that day.[17]Dr Robson’s evidence was that shortly after his conversation with the Claimant, but before he was able to speak to anyone about the Claimant’s concerns, two junior team members came to speak to him about concerns they had about the Claimant. He said he asked them to put their concerns in writing. His evidence was that one of them was in tears.[18]At 11.14am that morning, one of the junior doctors, an SHO whom we will refer to as “D”, sent Dr Robson a lengthy email entitled “Confidential Email as requested”. It is set out here in full: “Dear Dr. Robson, I hope this email finds you well. I am writing to you in regards to the unsafe decisions and lack of support myself and other juniors have felt throughout our time working with Dr. Sreedhara in the last year. The first instance where I felt the lack of support was last year with [ ]. He had beeen frustrated with the pain that he had been feeling and being sent down to have his Echo appointment and wanted to speak to us to express his concerns along with his wife. I asked Dr. Sreedhara to come and speak to him with me as support. When we went into the room, rather than being apologetic and listening to the patient's concerns, she kept interrupting him and blaming him for not using the pain medications provided to him. I was in shock and embarrassed to the point where after we left, I went back into the room and apologized to the patient on her behalf. The second week, we were helping out on outliers and needed consultant decisions. We weren't able to get a hold of her then we saw her going home and Nam had to then call for her to help us out with a few urgent things. This was relatively okay up until the hot week when she came back from her leave in August which made me think about the above instances in retrospect. It was the bank holiday weekend, and there were no transfusion slots on the day unit nor in Ambulatory care. For [ ], she wanted her to go home that Friday, despite her being transfusion dependent. The CNSs and I during whiteboard kept insisting that we didn't feel safe for her to go home without a proper transfusion plan and with nowhere for her to go in the community to have a transfusion. But she was adamant for her to go home. I therefore suggested if the patient could at least wait to have her PET scan as an inpatient on Tuesday, using it as an excuse to keep the patient in. However, she called me out in front of everyone, and told me that it is inappropriate for patients to stay in hospital just for their scans. I remained quiet and when she had come back after whiteboard I said that I have spoken to the CNSs and there were no transfusion slots for her to go in the community and needs to stay until after the bank holiday weekend which had finally convinced her. During that same whiteboard meeting, [ ] had her PET CT cancelled previously because she had eaten, and she had the chemotherapy anyway during Dr Knechtlis hot week. The nurses had said that her PET CT was rebooked and whether she still needed. I then said that the plan as per Dr. Knechtli was for the patient to have her PET CT after treatment. Dr Sreedhara however insisted that she wanted a baseline scan anyway despite already proceeding with treatment. She then retracted saying she didn't want it only to insist once again that she would like one as an outpatient as baseline. Fast forward to 2 weeks later, I was in an email trail where the radiologist was wondering whether she still needed the scan and Dr Knechtli had been CC'ed in and he was also confused and spoke to Dr. Crowe about it. Dr. Crowe who was on hot week then asked us about who had requested the scan when it was inappropriate and there were other ways to monitor disease. I then closed the door and spoke to her about it. Dr Crowe then proceeded to ask about any other instances and that's when I had spoken to her. Also during that whiteboard meeting, she had wanted to discharge [ ], who was waiting for a TAVI, had falling platelets and potassium level and was admitted due to an episode of syncope where she fell on her head, with low platelets, because of her aortic stenosis and had to have IV potassium replacement. Because I had already been silenced when I spoke about [ ], I kept quiet despite feeling uncomfortable with letting her go home over a bank holiday weekend with falling platelets, falling potassium and aortic stenosis. I had already expressed that she was an inpatient because she's being worked up for a TAVI which can be difficult as an outpatient but then again was told off for that. She then told [ ] that she can go home and come the Thursday during her clinic appointment and have her bloods done before that. I wasn't given a plan and I knew that transfusion slots were hard to come by especially on a Friday. I felt quite uncomfortable writing the discharge summary without a safe plan so I went to the day unit schedulists and begged them for a transfusion slot of at least some platelets. Her Hb was also low but it wasn't as bad as her platelet trend. Luckily enough there had been a cancelation and I was able to book her in. I then asked her to have bloods done on Tuesday so we could check her potassium and added her to the live list but still felt uncomfortable even though I safety netted the patient and told her to come back in at any sign of feeling unwell. I had never felt so anxious and scared about sending a patient home, even if she was happy about it. When I sent [ ] home yesterday as well, I had to make a transfusion plan with [ ] to help support her in the community. Dr. Sreedhara didn't want to see her because she wanted to wait for the full bone marrow results. She had just asked me to book her into clinic in a week's time. This week, she hadn't examined a single patient she saw despite them being unwell. She wanted to see [ ] who was spiking temperatures. She saw him, asked if he was well. He said he was. She asked about any symptoms whatsoever not specifying and he said no so she had left the room. She only asked for the PICC line to be removed without looking at it nor listening to his chest. But also asked for him to have 80mmol of potassium which the nurses weren't comfortable with doing peripherally so they had kept the line in. Overnight, he proceeded to deteriorate and his potassium remained low. The next day she had asked if there were any unwell patients we wanted her to see. I said no becauee I felt that it was safer for me to see this patient on my own. He then had a NEWS of 10 in the afternoon, so I went to see him myself and spoke to CCOT for some assistance. I was more uncomfortable telling Dr. Sreedhara that there was a sick patient on the ward because I knew she wouldn't be able to help much. I had also asked CCOT to speak to ITU to possibly send him over. When she called the ward, Baaba had told her that I was discussing a patient with CCOT about him. She spoke to me, I gave her the plan and that he was unwell and she said okay we'll see him tomorrow. She did however come to the ward and wanted to speak about him but didn't give me a proper plan. She had however booked a scan without letting us know nor seeing or examining the patient. I had already spoken to micro about him as well and had a plan from their side. And then last week on Friday, she had asked Liv to speak to micro about an antibiotic switch for [ ] to oral and sending her home with hospital at home. Liv felt uncomfortable with this decision because her CRP was rising, she continued to spike high grade temperatures and only had a day of meropenem. Knowing [ ], we knew she was just anxious and needed plenty of reassurance and that she was sensible enough to know she needs to stay if required. She just needed a goal to look forward to. Liv then went and spoke To [ ] herself and reassured her and told her it'll be safer to stay. When I was asked to switch the meropenem to doxycylin I refused and told Liv to just act like she forgot to tell me and let her have more time with the IV meropenem. Luckily enough, we received a phone call by the micro consultant looking after patients on meropenem asking about her. He also found the switch quite odd and advised her to stay on it. Liv then told Dr. Sreedhara that it was micro advised and that she has already spoken to the patient who agreed to stay. With all of these instances, we just feel super anxious on the ward due to unsafe decisions when it comes to discharges and unwell patients. We don't feel the senior support we usually receive when it is anyone else's hot week. We're all constantly on edge trying to make things as safe as possible, going out of our way, making excuses to try and ensure patient safety. This past week as well, she kept trying to prescribe on the PAs accounts and almost prescribed a chemotherapy medication on mine even though we kept saying we can't do it. She did manage to discontinue a chemotherapy on my account without me knowing but that was fine. In all honesty, I can tell that she's trying and that she's struggling and I do feel bad but I also see everyone's mental health deteriorate around me because of how stressful it is, seeing all around us the mistakes she makes and us trying so hard to rectify it. It is draining and we all dread the hot week with her because we all expect that we're going to be on the edge of our seats ensuring patients are safe and well. The nurses, the juniors, the physios and the CNS's have all felt uncomfortable and unsupported and have been saying for a while that we need to say something. There were points where some of us gave chemo go aheads (with the knowledge that the patient was safe and well) so it doesn't delay treatment. I also feel obligated to mention the good things which is during clinics, when I discussed patients with her, she always had good and straightforward decisions and was always supportive of me in clinic. I had to uncomfortably document the unsafe decisions in the notes as well but knew it was a must. That is all I can think of for the time being. Apologies for the long email. I am sorry that this is going to be stressful for you. I hope this helps. Thank you and Kind regards”[19]We infer that it was not a coincidence that complaints from the Claimant and the junior doctors against each other came at almost exactly the same time. The Claimant said in her evidence that in the month or so before this Dr Crowe had been “harshly” criticising her decisions, which “created ripples” in the department. She said there were two or three juniors in particular who started misbehaving, including challenging her decisions. She also said that simple instructions were not carried out by them. This appears to be consistent with D’s email, in which she said that she had had a private conversation with Dr Crowe about the Claimant sometime in September 2023, when Dr Crowe expressed disapproval of a decision by the Claimant and asked D “about any other instances”. D’s complaint itself also describes a dysfunctional relationship between the Claimant and some of the juniors. It is clearly a matter of serious concern that juniors felt the Claimant was making unsafe decisions and were therefore not giving full information to the Claimant (e.g. not informing her about unwell patients because D felt it was safer for her to see the patient on her own). By 18 October matters had clearly deteriorated to the extent that both sides felt patient safety was being compromised.[20]Dr Robson’s evidence was that the complaint from the juniors was not the first time concerns had been raised with him about the Claimant. He said in his witness statement, “In the weeks and months running up to 18 October 2023 a number of significant patient safety concerns were raised about Dr Sreedhara's clinical practice”. He said these concerns came from “senior members of the Haematology team” and “consultants outside of the team”. He gave the example of the patient that he understood was the one discussed in the MDT meeting on 19 December 2022. The Claimant says that this was not the patient that was discussed because the condition/ symptoms described did not relate to that patient. We were unable to resolve that dispute. He also gave another example of an alleged unsafe decision to transfuse platelets, although he accepted that that case had never been raised with the Claimant and there was no evidence about it before us. He also referred to two concerns raised with him by nurses. These were cases that were mentioned in an email from a junior doctor on 19 October.[21]We accept that prior to 18 October 2023, Dr Robson may have been aware of occasions when the Claimant’s practice had been challenged, but we do not accept that it is correct to characterise them as instances of others “raising significant patient safety concerns”. They were evidently not matters that led to any formal action or investigation, and at least one of them was never mentioned to the Claimant at all.[22]Dr Robson’s evidence was that given the seriousness of the concerns being raised on 18 October, and having received comments from other team members in the previous weeks and months, he sought advice from Dr Ian Kerslake, Divisional Director, who suggested they arrange to meet the Claimant later that day.[23]Dr Kerslake is a consultant in anaesthesia and intensive care medicine. He was appointed as Divisional Director on 1 October 2023. This involves providing clinical leadership to the Family and Specialist Services Division (which includes Haematology) for 2 days a week.[24]It appears that sometime before 12.11pm, the meeting had been arranged to take place that afternoon at 1pm, because at 12.11pm Dr Robson forwarded D’s email to Dr Kerslake, saying “An illustration, ahead of our meeting at 1pm”. Dr Kerslake later that afternoon forwarded the email to Dr Sarah Richards, Deputy Chief Medical Officer.[25]Dr Kerslake’s evidence about arranging the meeting differed from Dr Robson’s. He said that Dr Robson told the Claimant about the complaint from the juniors “and she wanted a meeting to discuss it straight away”. In his oral evidence he said that was what Dr Robson had told him. That was not put to the Claimant in cross-examination, and her case has always been that she was called to the meeting at short notice, around 30-40 minutes before it took place, and that the whole thing came as a shock to her.[26]We find that the Claimant’s evidence is consistent with Dr Robson’s. We do not accept Dr Kerslake’s evidence, which is hearsay and not supported by any other evidence, that the Claimant asked for the meeting to take place straight away.[27]Dr Robson and Dr Kerslake said that they took advice from HR and were told that the junior doctors were protected as whistleblowers so their identities should not be disclosed to the Claimant. It was put to Dr Robson in crossexamination that he could have given the Claimant a redacted copy of the email. He said HR had been clear that they could not do that because it might enable the Claimant to work out who had complained. There was no documentary evidence of this advice from HR. He said it was a conversation on the phone.[28]We accept that the junior doctors had asked not to be identified and that HR had advised Dr Robson not to disclose their identities. We consider it unlikely that, in the very short time available, there was a specific discussion about whether a redacted version of the junior doctors’ emails could be provided to the Claimant, but we accept that Dr Robson decided that very little could be shared with the Claimant because otherwise she could work out who had complained.[29]Either shortly before or during the meeting, Dr Robson gave the Claimant an outline of two of the issues from D’s email. One was the concern about the patient who needed to go to ITU and was not examined. The other was about the patient whom the Claimant was proposing the discharge with oral antibiotics, but then was switched back to IV and kept in.[30]Somewhat surprisingly, given the Respondent’s evidence about the seriousness of the issues being raised, no notes seem to have been taken of the meeting at 1pm.[31]Dr Kerslake emailed the Claimant at 7am the following morning: “Thank you for taking the time to speak with Phil and me yesterday, I'm sorry it was a difficult conversation and I hope that you're ok. I just wanted to recap what we spoke about, and to let you know what we will do as a next step. I informed you that some concerns have been expressed regarding your decision making related to patients being discharged, and decision making around therapeutics. I explained that I wasn't in a position to outline these concerns more specifically at the moment, but that I hoped to be able to do so as soon as possible. I told you that my main concern from a divisional perspective was to protect both you, and patients, and that I planned to explore the concerns raised in more detail as a matter of urgency. In order to undertake the above, I suggested that it would be advisable to have a second haematology consultant doubled up with you for the remainder of your acute week. You told me that you felt unable to continue with your work until you'd been given a chance to consider the points raised in the letter, and I agreed it would be ok for you to go home. We agreed that I would make contact 19/10/23 to outline the next steps for you. I want you to know that there is support available to you during this difficult time, the trust provides support through the EAP team and you can contact them by […]”[32]The Claimant replied, setting out in more detail what had been discussed. She wrote: “Dear Ian, Thank you for the e-mail. I am sorry that some concerns were raised about my decision-making related to patients' discharge and therapeutics. I was informed about the meeting with you (our divisional director) and Phil (our head of the department) just about 30-40 minutes prior to the meeting yesterday (18.10.23), which came as a complete shock to me having never had any concerns or discussions raised with me before this, but I agreed to meet hoping to listen to concerns and understand the issues. Ian, you met me and Phil in the seminar room on 18.10.23 Just after I discussed with Phil several issues as mentioned below. You enquired about my well-being, the workload in general and my ability, the wider team, any concerns from nurses on wards and any family concerns from my perspective. The hot week has been busy, we had no registrar on wards and on occasion, outliers too (covering the clinic), constantly changing juniors with no continuity, and at times delaying care. We discussed the undermining in the department, Phil agreed about the incidents of undermining within the department and you both agreed that this will be dealt with, and I am very thankful for that. I was hoping to listen to the exact concerns and understand the issues( if any other than those mentioned below by Phil), however, these were not discussed with me during our meeting. You offered to have a second consultant double up with me. This again is a big surprise to me, as I was not given an account of specific issues. I could not understand the need for a second consultant. You mentioned it for the safety of the patients. For the same reason, I would like to know the issues too otherwise I wouldn't feel safe wondering what the issues are worried about repeating. For me not knowing what the concerns are and therefore not having the chance to understand/ reflect/learn/opportunity to explain from my perspective is not helpful, hence I requested to know the exact concerns in the first instance. Hopefully, knowing these will help me. Otherwise, I feel like I am simply being judged and this would not be constructive. Phil may have mentioned to you that just a few minutes prior to our meeting I met with him and enquired about what concerns were raised as I deserve to know the issues for my understanding, to explain my perspective and to reflect and also several other issues as below. He mentioned the following two issues that were raised against me– 1. A patient who deteriorated later in the evening and needed to go to ITU was not examined. 2. A patient was initially given oral antibiotics suggested for discharge and againchanged this to IV antibiotics and kept Pt in. With regards to 1st issue – This was a neutropenic sepsis pt who had ongoing temperatures. Although this pt has had fevers for weeks he was stable, only later in the evening around 17.00hrs just before I left, I was checking through all the pts on the power chart at my desk and noticed that this pt had to increase CRP, ongoing fevers which are not responding to current management. In fact, I discussed him with Phil and we both went through the management together again with Phil re this Pt too and informally with other consultants in the room just to see if we need to do anything differently as he is continuously spiking temperature in spite of various treatments, tests to tease out the cause. I gave heads to Phil as he was on call that evening Just then junior on the ward called to say he had a high VIEWS score and the outreach team was reviewing him. I went to the ward probably past 17.00 to make sure the juniors were okay and to support them if any issues. Since he was seen by the outreach team, I didn't feel that he needed to be re-examined. Juniors were happy with the plan, and no issues were raised with me, since it was past 17.00 and I had personal commitments, I had to leave. But I reviewed management and discussed it with other colleagues, our outreach team saw him and he was handed over to the evening consultant on call, I gave a clear plan and supported my juniors. With regards to 2nd issue - This was a post-autologous stem cell transplant stable pt, afebrile for 48hours, who needed to stay in the hospital for the completion of IV meropenem course as per microbiology team advice and to support ongoing electrolyte supplementation. Earlier when I met the patient on the ward round, she mentioned that she wanted to self- discharge and that she could not stay any longer on the ward. I explained the need for a hospital stay to pt and said that I would explore the possibility of sending her home if we have the capacity to facilitate hospital-at-home service. We discussed this with a microbiologist on the phone, who suggested oral antibiotics as an alternative to meropenem, so with this, we were hoping to send her home with the above. Another microbiologist visited the ward (on their routine ward rounds) and suggested that meropenem could not be switched to orals and she needed to continue on IV meropenem. Later our SHO mentioned that pt had changed her mind and was willing to stay, therefore we changed the plan as we didn't go far with the hospital-at-home team either. Earlier that day in the morning before I knew about our meeting I requested to meet Phil to express my concerns in the department that were concerning me 1. The undermining by other Team members, how this spiralling wider in the team 2. Management team issues 3. Problems with juniors on the ward affecting patient care.• A pt with an EGFR of about 20 was given dalteparin in spite of clear instructions to change to apixaban• Not checking patient's test results until picked up by me and acted on.• Not following instructions to give pts the information leaflets delaying discharge.• Unprofessional behaviour such as giggling behind me several times and responding in a snappy manner which is disruptive to the teamwork.• When the patient was transferred from another hospital, some of the drugs were not prescribed in our system.• I thank [ ] and [ ] for their dedication, professionalism and friendly behaviours,• which are very much required in the teams. 4. One of the incidents from outpatient clinic staff comments – “Too many chiefs but not enough Indians” I am very thankful to you both for your support and kind words. I am sorry I left yesterday, I could not carry on the way I was. For most of the night, I was awake, and although slept briefly, I woke up with nightmares and severe migraines. Hope this gets better.”[33]Dr Robson in his witness statement said that during the meeting the Claimant “did not raise any concerns regarding Dr Crowe”, but he accepted in his oral evidence that she had done. This is consistent with the email above, in which she said “We discussed the undermining in the department, Phil agreed about the incidents of undermining within the department and you both agreed that this will be dealt with, and I am very thankful for that.”[34]It is not in dispute that at the meeting the Claimant provided her own account of the two patient cases that were raised with her, and Dr Robson said he was satisfied that there were no concerns about her clinical decisionmaking.[35]It is also not in dispute that Dr Kerslake told the Claimant during the meeting that another consultant would “double up” with her for the remainder of her “hot week”, for the safety of the patients. The Claimant was not happy about this. She was upset and it was agreed that she could go home. She was off work for the remainder of the week. She said in her evidence that Dr Kerslake called her on the Friday (20 October) and said they did not have any clinical concerns, and she could return to work the following week. She did so. In fact it appears from contemporaneous emails that this telephone conversation probably took place on Thursday 19 October.[36]On 19 October at 10.21am, the other junior doctor to whom Dr Robson had spoken the previous day, a first-year Physician’s Associate, whom I will refer to as “B”, sent Dr Robson an email with a list of complaints or concerns about the Claimant. She wrote: “Sorry for the late email. It has been difficult to try and word this as I have found it is not just specific patients for me, it has been a general vibe with some moments making me uncomfortable I will try and bullet point these so I am concise. Sorry, hope this is helpful 1. There is a general lack of communication. Plans for patients are not clearly communicated. For instance a r/v of a pt in amb care (sorry I can’t remember the pt’s name) During hot week. The plan was to arrange a bone marrow for a patient who had ongoing anaemia despite iv iron replacement and b12. But, later I was told to hold off on it awaiting a b12 but in handover was communicated to another consultant that I was previously told to arrange the BMAT regardless. I had done that of my own accord after discussing with the secretaries because the plan given previously was very confusing and I booked it in with a plan to cancel if that was not the right plan. 2. For [ ]. The issue was reluctance to discuss a new diagnosis with him and his family. He is a gentleman on OPUSS who was admitted with confusion and ? New diagnosis of Myeloma. He was very confused and even though another consultant had informed him of the diagnosis , he was struggling to retain the information. A meeting was set up with his family which I encouraged Sree to attend but she was reluctant to do so (even though there was no Reg on the hot week to fill in) and wanted the CNS involved to deliver information to the patient only. The CNS in question expressed discomfort with this as it was not for him to deliver the news of a new diagnosis to a patient and family. She made comments on it not being her area of expertise and didn’t think it was necessary for her to do have this conversation. In the end I had to ask another consultant who had not been involved to do the discussion with the CNS. 3. We are generally not heard. I unfortunately don't have a specific occurrence because it is something that happens a lot in the board round or in patient reviews whether in patient or outliers, where we are talked over and made quiet about our thoughts or opinions. 4. There was also an overall reluctance to see patients in an outlier round even though they were urgent. Hence on arrival to review patients, there was an impatience in information gathering regarding the patient’s admission and the management given. It was very hands-off with the expectation that the medical team would have done everything including the Haem specific plans. This was the case when we reviewed [ ]. 5. There were never any clear plans given when asked about patients on hot week, so I found myself guessing quite a bit and muddling my way through a little bit. Which is not safe for patients if i make the wrong call with my limited knowledge. Don’t want to generalise too much so will leave it to these examples only. If there are any more I think of I will email you”[37]This was forwarded to Dr Kerslake and in turn to Dr Richards. Dr Kerslake suggested that coaching support could make a difference. Dr Richards wrote: “Yes some mentoring, reflection and communication skills may be helpful. The other person on my mentoring list is [a palliative care consultant] who is a communication skills expert. He could perhaps spend some time with her too. Let me know and I can contact hime. At the moment I don’t think we need to restrict practice but we do need to give her some support, think about doubling her up for her next HOT week and give her some SMART objectives.”[38]Dr Kerslake emailed the Claimant on 20 October, thanking her for her email and phone call the previous day. He wrote: “I've spoken to Phil, but just to reiterate what we said yesterday- I read out some of the issues highlighted in the letter for you to have a think about and suggested that it would be useful to collate some wider feedback from your department. This is primarily to aid us in thinking about how we support you moving forwards, so that you are able to do your job effectively, and that you can enjoy coming to work. I will arrange this on your behalf. I read out some of the positive points in the letter which relate to clinic, and we agreed that if you felt able to, that you would return to work on Monday in a clinic capacity. You were going to let both Phil and I know if this changes. I also told you I was concerned about the way you had been treated at times, and I was going to look into this in more detail also. I'm away on leave now until 2/11 but we will plan to sit down together in the week commencing 6th November, with Phil, to go through the feedback in detail and from that, workout a package of support for you.”[39]There is a dispute about whether the Claimant’s “communication skills” were discussed in the meeting on 18 October. Both Dr Robson and Dr Kerslake said in their witness statements that the subject of communication skills was discussed. The Claimant denies this. We prefer the Claimant’s evidence on this issue. There is no mention of communication in the Claimant’s or Dr Kerslake’s emails of 19 October. Further, D’s complaints were not really about communication. They were about her lack of confidence in the Claimant’s decisions. B’s complaints, on the other hand, did raise some concerns about the Claimant’s communication, including that “Plans for patients are not clearly communicated” and juniors “are generally not heard… we are talked over and made quiet about our thoughts or opinions”. We find on the balance of probabilities that Dr Kerslake raised the subject of communication during the phone conversation on 19 October, but not during the meeting on 18 October.[40]Dr Robson’s evidence was that the suggestion of having a second haematology consultant doubled up with the Claimant was “to feedback on the Claimant’s communication skills”, but the suggestion had come in the meeting on 18 October, and confirmed in Dr Kerslake’s email the following morning, before any mention of communication as a problem. Dr Kerslake’s email made it clear that the concerns raised were about “decision making”, and the Claimant was told that the doubling up was to ensure patient safety.[41]Dr Kerslake said in his witness statement that sometime after 20 October he contacted Andrew Hollowood, the Chief Medical Officer, and Jane Dudley, Deputy Culture and People Officer, and obtained 360 feedback from the department. In his oral evidence, however, Dr Kerslake said that he asked Dr Wexler to collate some feedback, and that it was not from the entire department. He said he left it to her to decide who to approach. There were no documents about this process in the bundle. In his witness statement, Dr Kerslake referred to a document in the bundle that was created by Dr Wexler in June 2024. The Respondent no longer contends that that was the product of the 360 feedback obtained in October or November 2023.[42]As to the complaints the Claimant had raised about the juniors, Dr Robson’s evidence was that he spoke to other consultants and other members of the team to get a full picture. He said that others did not report the same concerns about juniors not following instructions, but some consultants commented that they could be quieter on the ward. He said he spoke to the juniors within the week after 18 October. He said in his witness statement, “Following this, I spoke with the Junior members and flagged concerns regarding their behaviour on the Wards and to be quiet, respectful and ensure that they listen to their supervisors and follow through on plans generated for patients, including the looking up of all test results.”[43]In a statement made for the purposes of a grievance investigation in late 2024, Dr Kerslake said the following about the Claimant’s complaint about the juniors: “Concerns raised by Dr Sreedhara regarding the behaviour of junior medical and nursing staff were communicated to Dr Phil Robson via email. Dr Robson subsequently discussed these concerns with me, which primarily revolved around junior staff members allegedly not following Dr Sreedhara’s instructions, leading her to perceive their actions as undermining her authority. Given the acknowledged history of undermining behaviour by Dr Sreedhara’s consultant colleagues—a matter we had previously agreed to address—we recognized the potential risk that such behaviour may have affected the junior team’s confidence in Dr Sreedhara. However, it was also noted that these were junior members of the team, and we were conscious of the importance of fostering an environment where staff felt empowered to raise concerns. In response, Dr Robson engaged with the junior doctors, providing guidance on how to appropriately raise concerns in a clear and transparent manner. I considered this approach to be a proportionate response, ensuring that junior staff felt supported in voicing their concerns while maintaining professional integrity“In October 2023 whilst covering the ward, Dr Sreedhara came to me early one morning, asking to speak to me about the junior team on the ward – highlighting two areas of concern: their behaviour and professionalism during ward meetings and ward rounds, and that they were not carrying out her instructions (with regard the care of the ward patients). We discussed both issues in depth, so that I might better understand her concerns – whilst also having specific examples to discuss with the team in person, later. The issue with regard carrying out the instructions from ward rounds had not been raised by other Consultants before as a systematic problem – and I sought opinion from my other Consultant colleagues. It did not appear to be a problem more widely. Informal discussions about behaviour on ward rounds (such as continuing other conversations during the ward round) had been raised before by other team members previously. I committed to discussing this with them (and did so within the first week this was brought up). There has been a significant improvement in this behaviour since – no further complaints have been raised.” (PR)”[44]While we accept that Dr Robson had another conversation with the juniors after the meeting with the Claimant on 18 October, we find that his account of the conversation that he gave in September/ October 2024 is more likely to be accurate than the account given in his evidence. We accept that he spoke to them about their behaviour and gave them guidance on how to raise concerns, but we do not accept that he discussed any of the clinical concerns that the Claimant had raised with them. His view was that this was not a wider problem; the problems only arose when the Claimant was the consultant in charge of the ward. To the extent that the Respondent contends Dr Robson carried out an “investigation” into the Claimant’s concerns about the juniors, we do not accept that is an accurate description of what happened. He spoke to them about their behaviour but did not take the matter further.[45]As for the Claimant’s complaint about undermining behaviour by Dr Crowe, there is no evidence that either Dr Robson or Dr Kerslake did anything further about this in October 2023.[46]On 1 November 2023, the Claimant sent a lengthy email to Dr Robson, which begins as follows: “I believe patient care is paramount in the hospital, we all work in teams, MDT discussions to enable the best possible care for patients. The discussions are usually conducive and any difference of opinion is discussed in a polite way to aid in best possible care for the patients. I am sorry to bring to your attention few issues I have been facing within the department. I feel that I cannot deal with these within my capacity anymore hence this e mail for your consideration and intervention please. 1. Regarding Undermining and bullying by Dr. … Crowe 2. Concerns about Dr. … Crowe’s poor clinical Judgement, in some cases resulting in significant poor care for the patients. Dr. … Crowe’s attitude has been extremely challenging, She has been constantly undermining and bullying me on many occasions in the wider team meetings, which have been witness by and rest of the team members. She is an experienced consultant, who has been in the trust for much longer time with wider network, she addresses any difference of the opinion with regards to patient care in an aggressive tone, in a very accusative and rude way, and this has become a repeated theme. She naturally comes across as right, although in many of the situations the patient care is affected as result of her poor decisions whilst undermining my decisions. It is increasingly getting difficult for me as a new and less experienced consultant with no significant established networks to defend myself. This has a derogatory effect on my confidence, my mental wellbeing leaving me with constant worry, sleepless at times and also affected my personal as well as professional life as a result. This led to a disruptive team work, to the extent, other team members ignoring and devaluing me. This is affecting patient care and has become increasingly concerning. Hence this letter to you.”[47]The Claimant then gave two examples of cases where she alleged Dr Crowe’s poor judgement resulted in significantly compromised care for the patients. The details provided included screenshots from patient records. This was followed by four examples where the Claimant said she was undermined, and she was concerned about Dr Crowe’s poor clinical judgement as well. The Claimant also gave two examples of situations where she felt undermined, which included the case which the Claimant said was the one discussed in the MDT meeting in December 2022.[48]The Respondent’s case is that this email was not sent in good faith, and that it was retaliatory because the Claimant believed the complaints against her, raised on 18 October, had come from Dr Crowe.[49]The Claimant’s evidence was that she knew the complaints had come from juniors because Dr Robson told her that about a week after the meeting on 18 October. Dr Robson denies that and says that sometime later he told the Claimant it was not Dr Crowe who had complained, but he never told her who had.[50]Given that the complaints followed what appears to have been a difficult few weeks, with Dr Crowe criticising the Claimant and some juniors not respecting the Claimant on the ward, we find that the Claimant either believed Dr Crowe had instigated the complaints or that she was responsible for them in some way. We find that the conversation with Dr Robson about who made the complaints is more likely to have come later, after the Claimant’s complaint of 1 November, because he was trying to defuse the situation.[51]Having said that, we do not consider it accurate to describe the Claimant’s complaint against Dr Crowe as “retaliatory” and do not accept it was made in bad faith. The Claimant had already complained a number of times about Dr Crowe’s undermining behaviour. She considered this was essential context for considering the complaints that had been raised against her. The email of 1 November 2023 expanded upon the Claimant’s position. It was a response to the complaints that had been raised about her, but it was not vindictive. The Claimant was seeking to defend herself.[52]The Respondent’s evidence is that on receipt of the email Dr Robson reviewed the clinical concerns raised and decided that there was nothing that warranted further investigation.[53]Although both Dr Robson and Dr Kerslake said that they considered the Claimant’s complaint of 1 November was retaliatory, the Respondent does not say that they took the view it therefore did not need to be addressed, or indeed that it had any effect on the way it was dealt with.[54]Dr Robson was asked in some detail during his oral evidence about the first two cases the Claimant raised. In respect of one of them he accepted that a case of progressive myeloma had been picked up late. He said from looking at the patient records this appeared to be because a junior doctor had not spotted the start of a trend in the results, and had allowed too long an interval before the patient was next seen in clinic. He accepted that Dr Crowe had ultimate responsibility for this as the consultant in charge of the clinic, but he did not consider it was a matter that needed to be raised with her, or indeed with the junior doctor concerned.[55]Also in early November, but it appears before he knew about the Claimant’s email of 1 November, Dr Kerslake followed up Dr Richards’s suggestion of coaching by contacting the palliative care consultant she mentioned. Explaining the background, he wrote: “She has been in the trust for about a year and about 2 weeks ago had two letters of complaint lodged against her from trainees. She has had issues with decision making and I think finds a lot of the acute haematology work very stressful. She has previously (last 4 years as end of training reg and consultant) worked in a level 1 haem unit (mainly OP work, no medical responsibility of inpatients) to the RUH as a level 3 haem unit (acute patients, BMT etc). She seems competent at clinic work but during her acute weeks starts to run into problems. I will forward the letter of complaint to you in confidence so you can get a flavour of what's going on. Unfortunately, her insecurity and indecisiveness has led to a couple of colleagues being quite unpleasant to her and I think this has made the whole situation worse.”[56]Dr Kerslake accepted that he was wrong about the Claimant’s previous work being level 1, and not having medical responsibility for inpatients. The Claimant’s previous hospital was level 2 (while the Respondent hospital is level 3) and there were some haematology inpatients. He said that it was his impression that she found the acute haematology work stressful. He accepted the Claimant had never said that to him or anyone else.[57]In cross-examination he also accepted the criticism that his email blamed the Claimant’s “insecurity and indecisiveness” for the problem, rather than other colleagues undermining her.[58]On 6 November the Claimant’s email of 1 November was forwarded to Dr Kerslake, who in turn forwarded it to Andrew Hollowood and Jane Dudley on 21 November. Dr Kerslake wrote, “We feel it highlights a deeper cultural issue that needs addressing”.[59]Dr Kerslake’s evidence was that he intended for HR to arrange a cultural review to discuss the MDT meetings. He said, “Unfortunately, the Claimant went on long term sick leave before this review was arranged.”[60]It is not in dispute that the Claimant commenced sick leave on 8 February 2024.[61]A further meeting took place on 15 November between the Claimant, Dr Robson and Dr Kerslake. Again, very surprisingly, no notes were taken. Dr Kerslake emailed the Claimant a summary of what was discussed on 27 November, which he said he had to do from his memory of the meeting. He wrote: “Sorry for the delay in writing this summary email. As before if there’s anything in there you think needs to be included please do say. Phil and I sat down with you on 15th November to talk through the letter in a bit more detail and some of the issues raised through both the letter and feedback collated from some of the wider team. There were a number of themes identified- 1. Management of unwell patients. We discussed that there were concerns around decision making for unwell patients and that significant safety issues had been raised by the team on the ward. When Phil gave you some examples of this you were able to give very detailed explanations around (some of) the decisions you had made, and these were sufficiently detailed to satisfy both Phil and myself that you had a good grasp of the clinical issues and your decision making was sound. This suggests that the problem lies in the communication of these considered plans, so that the juniors understand the breadth of consideration and the issues you have assessed, in detail. 2. Discharge Planning. Again the ward team had raised concerns around some of the discharge plans you had put in place and whether these were sufficient. You were able to give sufficient detail about these cases to satisfy us that you had given sufficient thought to this. 3. Communication There were a number of facets here that we explored and we explained to you that we thought this was the root of the problems.a. Outlier care- pushing forwards with outlier care was felt to be lacking and there needed to be more input into supporting juniors for outlier managementb. Juniors described feeling ‘unheard’ when they raised concerns and felt unable to challenge you, particularly during the morning board round (MDT) meetings. 4. Triage This was not the main issue discussed, but we briefly touched on the fact that you had a lower threshold for seeing pa ents coming through this system which came up in your 360 feedback. You agreed to possibly audit this and look at it in more detail or undertake a benchmarking exercise. You should discuss the outcome from this with Phil when the data becomes available. The main thrust of our discussions centred around your communication skills with the wider team and you told us that you felt you had taken necessary steps to be approachable for the junior team- you had given out your mobile telephone number and they could call you whenever. You felt upset that the juniors o en didn’t listen to your instructions, and in fact had brought this up with Phil during your hotweek as an issue to be addressed. You were also upset that the juniors hadn’t called you or discussed any of their issues with you and you felt that this was their issue rather than yours. I challenged this and told you that I felt it to be our responsibility as senior clinicians to create an environment where people felt safe to speak up and talk about concerns, and that if this wasn’t happening, the responsibility lies with us to address those issues and explore why. I felt it took quite a long time to get your agreement on this aspect and I expressed my concerns to you that you did not have insight into how you come across to the wider team, and that for me this was the prime area to focus on in supporting you moving forwards. I suggested two areas where I felt we could support with this- 1. Buddying up during hot week You were not keen on this idea ini ally as you felt that it must mean that we doubted your clinical skills despite us telling you we were satisfied. I explained that the idea was to try and triangulate your communication skills- i.e. how are people interpreting your interactions vs what you think is happening? We agreed that you would be doubled up with Phil and you were going to swap your hotweek for when Phil was available. We will make a decision as to whether further support is needed beyond this afterwards. 2. Coaching I offered you some coaching to look at the communication skills issues we discussed with [ ]. You agreed to think about this and let me know. I am very keen that you accept this offer as I think it helps satisfy my concerns about having insight, however, the decision is ultimately yours and I would appreciate it if you could let me know what you want to do? As we explained in the meeting …, our main aim here is to give you the support needed to come into work and enjoy it, and I am very confident we will get there very soon! Thanks for your time and as always please come and chat if you wish,”[62]In terms of the 360 feedback, Dr Kerslake said in his evidence that the only concern that arose from that was the triage issue. He then clarified that that had come directly from Dr Robson, not as part of the feedback exercise. He could not recall what the outcome of the 360 feedback process was. The Claimant’s evidence, which was not challenged on this issue, was that she was told during the meeting on 15 November that the feedback was good. She also said that no communication issues were raised in the feedback.[63]Dr Kerslake said in his oral evidence, not mentioned in his witness statement, that he had a chat with Dr Crowe on or around 1 December 2023, which included raising some of the concerns about her behaviour towards the Claimant. He took the view that she was exhibiting symptoms of burn-out for a number of reasons, including the department being understaffed and some personal matters. He said she was receptive to the discussions about her behaviour, and they put some measures in place to support her, including reducing her clinic workload. He said it was a positive meeting.[64]He said he did not put any of the Claimant’s specific concerns from her email of 1 November to Dr Crowe because he knew that things were difficult for her and she was struggling with the myeloma workload. He was concerned that if they went straight to her with the complaints it would have been the final straw and she might have gone off sick. Nor did he suggest any steps to improve her communication, such as mentoring or a course. He said he was trying to “treat the burn out”, which he saw as the root cause of the problem. He said he was worried about the department, and was desperate to keep both the Claimant and Dr Crowe “in work and happy”.[65]It is not in dispute that the “buddying up” did not ultimately take place with Dr Robson, but rather with Dr Wexler, another consultant in the department. This happened between 18 and 23 December 2023. There was very little evidence about this, and nothing contemporaneous in writing. Dr Kerslake said that he was hoping “something positive” would come out of it, but it did not, so he did not think about it again. His recollection was that he was told it was “strained and difficult”, perhaps because the Claimant did not want it to happen. The Claimant denied this and said that Dr Wexler had complimented her for being diplomatic.[66]On 24 December 2023, a critical incident occurred with a patient on the ward who collapsed and went into “peri-arrest”. The Claimant was the consultant in charge. The arrest team were called, but were not ultimately needed.[67]On 28 December 2023, the ward sister involved in the incident sent Dr Robson an email raising patient safety concerns. It was effectively a complaint about how the Claimant had managed the emergency situation. It included an allegation that the Claimant had told the arrest team to leave when she had not properly examined the patient. The email ended: “I went home worrying about the patient when I finished my shift. I went to bed and was still worried and scared, I was just processing things in my head. In my thoughts I went to the extent of thinking that if this patient dies there is an element of negligence. I am sorry if this sounds dramatic but this is how scared I was. I respect people in their positions but from the way Dr Sree speak to us as nurses, she commands and makes it clear that she is up there and we are under her. I hope all the above makes sense but the bottom line is I personally worry about the safety of patients in our care when Dr Sree is the consultant on duty.”[68]On 5 January 2024 the Claimant had a meeting with Dr Richards that had been arranged via a Non-Executive Director of the Respondent whom the Claimant had spoken to. Dr Richards wrote after the meeting: “It was good to talk to you this morning and I was sorry to hear of some of the challenges you are currently facing. We both agreed that you would benefit hugely from a mentor. I have spoken to [JS], who is a hugely experienced clinician with strong leadership/management experience and he would be very willing to be a confidential mentor for you.”[69]The Claimant replied, thanking Dr Richards “for listening and the advice this morning”. She said she hoped mentoring would help her to “navigate through the current situation”.[70]On 10 January 2024 Dr Robson sent the Claimant an email with a summary of the nurse’s complaints, and asking for her response on each issue. The summary was as follows: “Ward rounds very brief – with concerns about the degree of assessment with regard history taking and patient examination Specific concerns about safe care with regard collapsed/peri-arrest patient o Declining to review ECG – passing it to junior team to review o Stopping junior team performing emergency assessment (‘A to E’) o Concern the arriving arrest team told the ‘chest was clear’ when the patient had not been examined during the ward round review at that point o Arrest team dismissed – concerns there may have been a missed opportunity for them to provide additional help o Stopping nurse taking blood tests as part of the acute assessment – when they had been asked for, without explaining why o Deferring the decision about whether or not the patient was fit for chemotherapy later that day to a junior doctor (suggesting the patient was reviewed later in the afternoon for that decision). o Evolving severe anaemia in the patient over the preceding 48-72 hours – that was not addressed in a timely manner. o Concern that the assessment and approach to the patient were not what would have been expected from a Consultant, and concern that if the patient deteriorated further we had not done everything that could and should have been done When contacted for advice by ward nursing staff (when off site) – asked to contact the Junior doctor covering the ward, rather than providing the advice directly. Concerns expressed about communication style and approach with the nurses on the ward – commanding/demanding, not engaging and listening. ‘Lacking respect’, ‘felt unsupported, and worried for the safety of the patients’.”[71]On 14 January 2024 the Respondent received a patient complaint. This was a complaint that since February 2022 the management of his blood disorder had been “abysmal”. There was one complaint specifically about an appointment with the Claimant in September 2023. Dr Robson liaised with the Claimant about a response to the complaint. It was not suggested by the Respondent that the complaint reflected any unsafe practice by the Claimant. The outcome of an investigation into the complaint did not conclude that the Claimant had done anything wrong.[72]On 15 January 2024 the Claimant submitted a written response to the nurse’s complaint. She alleged that the reason for the peri-arrest was the juniors and/or nurses not ensuring the patient had a blood transfusion sooner. She denied the allegations of failing to examine the patient properly on 24 December. As to her communication style, she said she had to be direct and assertive because it was an emergency situation. She said she was disappointed with the attitude of the junior doctor, who happened to be D, the one who originally complained about the Claimant on 18 October. The Claimant alleged that D was repeatedly failing to check blood tests and engage with her. She also felt the nurse looking after the patient on that day was not proactive, and not carrying out instructions.[73]Dr Robson forwarded the Claimant’s statement to Dr Kerslake, who said they needed statements from other people and to look at the patient notes. Dr Robson requested a statement from D, and obtained the patient records.[74]On 18 January 2024, Dr Robson forwarded the summary of the nurse’s complaint and the Claimant’s statement to Dr Richards. He said that he had a copy of the notes covering the incident “but I am not convinced they add a lot to the picture”. Dr Richards asked Dr Robson for his thoughts and he replied: “It has, as one might expect turned into a he said, she said type scenario and I suppose we cannot delineate who, if anyone is at fault. It remains unclear that there is a clinical competence issue here and I would definitely, from the information available, think that this is related to communication, behaviours (on all sides). It would be interesting to see what the reflections of [D] are. Depending upon the reflections of [D] I think it would be trying to work out a way to support recovery of the professional relationships and a way to recognise improving communications more widely.”[75]D provided her statement on 22 January 2024. She said that she had asked for transfusions to be done on 23 December. On 24 December it had not been done, and she recalled reading in the notes that the Claimant had advised not to give the transfusions until the patient’s temperature was below 38. She said that when the Claimant attended she denied that she had said not to give the transfusions. D also repeated the allegation made by the nurse that the arrest team were sent away when the Claimant had not examined the patient. D also said, “She was being very demanding and noticeably rude to both [nurses] which neither appreciated. The whole situation didn't feel very safe and the nurses felt underappreciated and overwhelmed, and honestly, so did I.”[76]D’s statement and the patient notes were sent to Dr Richards on 23 January 2024. Dr Richards wrote that day to Dr Robson and Dr Kerslake: “Hi I had been thinking that we would insist on a communication update which she so far is resisting as up until now it had been her word against another. Having seen the latest statement and notes I suspect we need to investigate (as her statement does not reflect notes and it appears she gave incorrect advice not to transfuse a patient Hb<4 who went on to arrest). I will speak to PPA and come back to you. You did say you would send me details of further patient safety concerns but I don’t think I ever saw these.”[77]“PPA” was a reference to “Practitioner Performance Advice”, which Dr Kerslake described as “a service which assists and provides advice to resolve concerns fairly, share learning for improvement and preserve resources for patient care.” It was formerly known as the “National Clinical Assessment Service (NCAS)”. The Respondent’s capability policy describes NCAS as “an operating division of the NHS Litigation Authority”, which “provides help and support in resolving concerns about the professional practice of doctors.” The policy states: “At any stage of the process outlined in this policy, be it formal or informal, the Trust may wish to inform and involve NCAS in the resolution of concerns raised against a doctor. In these circumstances the doctor will be made aware that NCAS will be contacted. Regardless of the above, if clinical performance concerns cannot be resolved at an informal stage the matter must be referred to NCAS before consideration by a performance panel. Equally, where exclusion or restriction from practice is being considered NCAS must be notified so that alternatives can be considered. Failure on the part of the practitioner to co-operate with a referral to NCAS may be seen as evidence of a lack of willingness to resolve performance difficulties. If the practitioner chooses not to cooperate with such a referral, and an underlying health problem is not the reason, disciplinary action may be taken in line with the Trust Managing Conduct Policy and the Maintaining Higher Professional Standards in the Modern NHS guidance.”[78]It was put to Dr Kerslake in his evidence that a referral to the PPA would go on a doctor’s record and would be disclosable to any prospective NHS employer. He did not dispute that but said he was not aware of it. He said it was not him who instigated the referral to the PPA.[79]Dr Richards was not called as a witness by the Respondent and no reason was given for this. In the absence of any evidence as to her engagement with PPA, other than her email of 23 January 2024, we find that she contacted them about the Claimant shortly after her email and arranged a meeting. That meeting took place on 9 February 2024.[80]As for the reasons for the referral, the trigger for Dr Richards appears to have been her concern that the Claimant had given incorrect advice not to transfuse the patient who “went on to arrest” (although it is not in dispute that he did not in fact go into arrest).[81]Dr Kerslake’s evidence was that he attended the meeting with the PPA on 9 February, but this was to discuss another doctor and it was decided to ask for advice about the Claimant’s case at the same time. He accepted, however, that it was possible that Dr Richards had arranged in advance with the PPA to discuss the Claimant’s situation. In light of the email of 23 January 2024, we find that that is what happened. It is also clear from subsequent correspondence that this was treated as a formal PPA referral.[82]The Respondent accepts that it was a breach of the capability policy not to inform the Claimant about the referral before it took place.[83]On 23 January 2024, the Claimant sent two emails to Dr Robson. The first was a concern about calls she had received from nurses while she was oncall. She considered it was not an effective way of working and they should have contacted a junior doctor for advice first. The second email said that she was feeling very stressed. She said that the undermining she had mentioned previously was ongoing. She wrote: “Undermining me in wider teams perhaps made other team members lose confidence in me and look me down, perhaps it was easier to complain against me as they strongly believed that I was as incompetent as being portrayed. This also makes me wonder what and how people are speaking about me on my back in my absence, as these ramifications are now wider. On the other hand, my complaints or concerns were not taken seriously, when I mentioned that juniors were ignoring me and not carrying instructions, about undermining within the department, and also about the issues with the management, which are yet to be resolved. I feel there is more than undermining in this department.”[84]Dr Robson replied on 24 January. He said he would speak to Dr Kerslake the following day and get back to her. In his evidence Dr Kerslake said he could not remember whether that meeting took place. The Claimant chased a response on 2 February 2024. Dr Kerslake said they would provide a response as soon as possible.[85]The Claimant commenced sickness absence on 8 February 2024 due to stress. She has remained off sick since that date.[86]Dr Kerslake emailed the Claimant on 9 February 2024 with the subject “Outcome from complaint”. He wrote: “Thank you for your patience whilst we decided how to move forwards with the most recent letter of complaint written by a member of the team. First off we wish to acknowledge that this has been stressful for you, and has made your working life more challenging, and I am sorry for that. As you know I would have preferred to discuss this with you face to face but you requested written communication only. I took the opportunity, in the context of our previous meetings in the Autumn, to discuss your case informally with Miss Sarah Richards the deputy CMO (Workforce). The reason for this is that Sarah has a lot of experience in helping to support doctors of all grades who are experiencing a variety of problems in the workplace. As a senior leadership team, we feel that many of the issues raised from the centre around challenges with your communication skills, and often seem to occur when you are extremely busy working during your ‘hot’ week looking after acutely unwell patients. Sarah suggested that we meet with the NHS PPA (Practitioner Performance Advice, formerly NCAS) to discuss how to support you, and we have had that mee ng today. They were very helpful and agreed with a number of actions that we wish to discuss with you. In summary these are: 1. Your attendance at a formal communications skills course 2. A further period of pier support during your acute ‘hot’ weeks. This would take the form of you working together, rather than reporting back to them and would last for a minimum of 3 months. 3. Regular meetings with your mentor- [ ] Sarah and I would like to be able to sit down with you and talk through some of this in more detail. We would support and encourage you to bring along an advocate- to be very clear, this is not a formal meeting but is another opportunity to work through how we might support you to get to a better place at work. You are welcome to bring a BMA representative if you wish, it will not change the informality of the meeting and they should get in contact with me to arrange the date if this is your request. As part of these discussions we would also like to explore your own experience of working in the haematology team, as this will help inform the work we do with the wider department supported by the assistant director of people and culture. I would like to reiterate that we are not taking any formal ac on and that everything we are working on at the moment is to support you to thrive in the RUH. The PPA will write separately to outline the discussions we have had with them today and clarify any ongoing support they may suggest in addition to what has been outline above. We will share this letter with you also.”[87]On 4 March 2024 Dr Kerslake sent the Claimant the formal response from the PPA. It was a letter to Dr Richards which reads as follows: “Dear Miss Richards, I am writing to confirm our MS Teams conversation on 9 February 2024 at which your colleague, Dr Ian Kerslake, Divisional Director for Family and Specialist Services, was also present. Apologies for the delay in you receiving this letter which resulted from our respective annual leave. Please let me know if you feel I have misunderstood the position in any way as this may affect my advice. We encourage transparency in the management of cases and recommend that practitioners should be informed when their case has been discussed with us. I am happy for you to share this letter with Dr 30461 unless you consider it inappropriate to do so. Moreover, Dr 30461 is welcome to contact us for a confidential discussion regarding the case. Please note that to preserve confidentiality, the practitioner is referred to by a case reference number as opposed to by name. Dr 30461 is an International Medical Graduate (‘IMG’) who completed all of her training in the UK. She was appointed by the Trust as a Consultant Haeamatologist approximately two years ago having completed her CCT in another region. You explained that Dr 30461 had some health issues which required her to have a period off work soon after she started in the post. Dr Kerslake described being made aware of some concerns regarding Dr 30461's relationships with various colleagues around September 2023. Dr 30461 was felt to “not be pulling her weight” and she was involved in discussions with two Consultant colleagues at an MDT which were described as assertive. This incident had an impact on Dr 30461's confidence and she was provided with support from the Clinical Lead. You explained that this incident is being addressed separately with the other two consultants involved following Dr 30461 making an allegation of bullying. In October 2023 a letter was received from a number of the doctors in training in the department which raised concerns about Dr 30461's behaviour and decision making during her Hot Week. The letter stated that Dr 30461 does not accept any discussion around the management of patients. Dr Kerslake explained that the department provides level 3 care and the Hot Week consultant is expected to manage acutely unwell patients on the ward; this differs slightly form other units where Dr 30461 has worked. The letter was discussed with Dr 30461, Dr Kerslake and the Clinical Lead. It was felt that the issues identified related more to communication than clinical skills as Dr 30461 was able to explain the rationale for her decision making on Hot Week. There were no concerns regarding clinics and a plan was instituted to provide additional support to Dr 30461 in the acute setting. Dr 30461 expressed some reservations about this approach as she felt it would undermine her and reassurance was provided about this being a supportive measure. Dr 30461 was also offered a coach however she did not feel this as necessary at the time. This was all confirmed in an email to Dr 30461. Unfortunately, Dr 30461's relationship with the Consultant with whom she was working on her next Hot Week became strained. They reported that Dr 30461 appeared unwilling to accept advice and there was a complaint from a member of the nursing staff. Dr 30461 has denied an allegation that she did not review patients. In general, there are concerns that Dr 30461 does not listen, appears unwilling to reflect on her practice and has a tendency to respond defensively. This is having an impact on Dr 30461's relationship with her colleagues. You explained that the Trust have a scheme to support IMGs with a linked Non Executive Director who you approached to offer support to Dr 30461. They had an informal discussion with Dr 30461 and have advised that she feels that the concerns are related to bias against her and a reported fall out with colleagues. Dr 30461 is said not to recognise that the concerns have a valid basis and has declined to undertake professional development for her communication skills. Dr 30461 has now accepted a mentor from the scheme which is helpful. Dr 30461 is considered to be safe to work, the Trust want to support her and we discussed the options available. These include role modelling, protected time for peer support in the acute setting and a communication skills course. I highlighted that the latter are provided by the various Medical Defence Organisations, the Royal Colleges and the BMA. Dr 30461 has requested the details in writing, and I suggested that it would be helpful to write to Dr 30461 setting out in detail the history to date, the steps taken already, her responses, and the proposed plan for remediation. You can make it clear that this is not a formal or disciplinary process and that these are supportive measures. Dr 30461 has made reference towards seeking advice from the BMA and I suggested that you encourage her to attend future meetings with their support. You may also want to seek her consent to copy her representative into any correspondence. I advised that, whilst perhaps premature at this stage, Dr 30461 may benefit from a Behavioural Assessment with Practitioner Performance Advice. This is a supportive measure to identify any behavioural cause for the concerns and to determine any appropriate remediation. They are designed to be exploratory and developmental and it involves online psychological testing and an interview with an Occupational Psychologist. Further details are available on our website. We also explored the organisation's need to address the concern raised by Dr 30461 about being the subject of bias. Dr Kerslake explained that HR have been asked to review the Culture in the Team and I suggested that this aspect could be made a particular focus which proactively sought the views of others who may be impacted in the team. This may be a difficult time for Dr 30461 who is likely to require support. This can be provided by referral to Occupational Health and she should be advised about support she can obtain from other organisations such as the Medical Defence Organisations. I will plan to follow this case up in March. Please do not hesitate to contact me should there be any developments in the meantime. Relevant regulations/guidance:• Local procedures• Maintaining High Professional Standards in the Modern NHS (MHPS)• General Medical Council Guide to Good Medical Practice Review date: 22 March 2024.”[88]Dr Kerslake’s evidence was that he believed all of the proposals were supportive, not punitive. He said that he understood Dr Richards was concerned about the Claimant’s decision-making in relation to the delayed transfusion on 23/24 December 2023, but he felt that it was not appropriate to take that matter any further until they had tried to address the communication issues that he believed were at the root of the problems.[89]On 16 April 2024 the Claimant submitted a formal grievance. She complained that the allegations against her were escalated inappropriately and she has had monitoring imposed on her unreasonably. On the other hand, when she raised concerns and made complaints they were ignored or watered down, and she continued to experience bullying at work.[90]Dr Reston Smith, Deputy Chief Medical Officer, was appointed to investigate the grievance. In email correspondence between the Claimant and Dr Smith the Claimant also said that she wanted ongoing issues relating to her pay to be addressed, after the complaints against her had been dealt with. This included a complaint about the delay in paying her for on-call work and the pay rate for this work. A grievance meeting was held on 16 May 2024. The Claimant explained her complaint that she felt the complaints against her were inappropriately escalated, while concerns she raised about others were not taken seriously. She said that she felt she was being harassed and bullied by Dr Kerslake.[91]In advance of the meeting Dr Smith had asked Dr Kerslake to explain what had been done in response to the complaints that the Claimant raised about members of staff bullying her. Dr Kerslake had explained that he discussed the concerns (amongst some other issues) with Dr Crowe and put measures in place to support her, including managing her workload. He had also instigated getting input from the “culture team” to try to improve on behaviours between colleagues. As for the clinical concerns raised, Dr Kerslake said that he had asked Dr Robson to review the clinical cases that the Claimant raised concerns about and he felt they were not substantiated. Dr Smith responded saying: “I am reluctant to put additional strain on Haematology but really I would want to be assured that we have considered each of the points on patient disease management she raises in "Document 2" which accompanied her grievance. It may be that you have already seen this but this review needs to have been more than a look over by Phil, we need to have some documented evidence of oversight and for me a response to each of the concerns she has raised.”[92]After the grievance meeting Dr Smith wrote again to Dr Kerslake, saying: “I need assurance that there has been a proper review in response to Sree's concerns. In the absence of really understanding how we have reviewed the cases then that is difficult. If I flip this on it's head - we have had a concern raised about one member of the workforce which has resulted in meetings with clinical and divisional leadership, information gathering with targeted feedback, an action plan to support and eventually discussion with the PPA to inform support for that individual. On the other hand I have seen what seem to be significant concerns raised about the clinical management of patients by another clinician and, as it stands, I am not assured we have reviewed these fully (I would accept this may be because I have no idea about how these cases have been reviewed).”[93]On 21 May 2024 Dr Robson sent Dr Crowe a redacted version of the Claimant’s complaint of 1 November 2024, outlining each of the clinic concerns raised.[94]On 3 July 2024 Dr Robson told Dr Smith that he had sent the redacted email to Dr Crowe and chased her for a response.[95]Dr Smith sent the Claimant the outcome of her grievance on 10 July 2024. The relevant findings were as follows: 95.1. The Claimant’s complaint about payment for on-call work was partially upheld due to the length of time it had taken to resolve, and the lack of clarity on the rates. It was noted that the Trust had calculated an amount of £4,375 that was owed to her and they were waiting for final confirmation that this was what she was expecting. 95.2. The Claimant’s “medical workforce” concerns were described as follows: “In your complaint you felt the way that Ian had addressed your concerns about the Junior Doctors and their practice was unfair, and you wanted to understand what actions had been taken to address your concerns with regards to the clinical practice of a Consultant colleague”. This complaint was not upheld. Dr Smith wrote: “I am assured that the Divisional Director undertook action to explore your concerns regarding the junior medical and nursing workforce, he had triangulated your report with information from across the specialty and found that there had been no other safety concerns raised and that no further action was necessary. A clinical review is taking place of the cases where you have raised concern around the clinical practice of a Consultant colleague.” 95.3. Dr Smith noted the Claimant had requested to see “all unedited feedback” relating to the Claimant’s performance. This complaint was partially upheld. Dr Smith wrote: “During the meeting it was explained that I had seen the feedback/complaints in relation to what had been raised with you, and as this member of staff had raised concerns anonymously it wouldn’t be fair or reasonable to remove the anonymity, but I am satisfied that what Ian Kerslake shared with you at the time was relevant in terms of what needed to be shared with you. This was managed informally as a team, so I am satisfied that the full summary is not shared with you and I therefore do no uphold this part of your grievance. I do however, uphold that a summary of the 360 feedback that was collected as part of your concerns should be shared with you, I have therefore upheld this part of your complaint and have enclosed the summary within this letter (appendix 1).”[96]In fact, appendix 1 was a document created by Dr Wexler in June 2024 for the purposes of the grievance. The Respondent accepted it was not a summary of the feedback obtained in October/ November 2023.[97]The outcome letter did not address the Claimant’s complaint that the concerns raised against her had been escalated unfairly, or her complaints of bullying.[98]On 11 July 2024 Dr Crowe sent Dr Robson her detailed response to the Claimant’s concerns about her clinical practice. There was no evidence of anyone having reviewed this response or taken the matter further in any way. Dr Robson’s evidence was that, to the best of his knowledge, the response was forwarded to Dr Smith. He said he did not perform an additional review and he did not believe anyone else did either.[99]The Claimant appealed against the outcome of the grievance on 23 July 2024. This included an allegation that “Caucasian employees are favoured”.[100]The Claimant made additional submissions for her appeal on 26 September and 2 October 2024.[101]Dr Kerslake and Dr Robson were asked to provide a statement for the purposes of the appeal. Dr Robson sent his statement to Dr Kerslake on 20 September, who incorporated it into his own statement which was submitted on 10 October 2024. Part of Dr Robson’s statement described what had been happening prior to 18 October 2023. It included the following: “There had been several informal incidents where Nursing staff, and Senior Sisters on the ward, had independently raised concerns about how individual patients were being managed, and a number of the Clinical Nurse Specialists had expressed concerns about advice they had been given, seeking out other Consultant opinion when it was out with the usual practice. Given the escalating feedback from multiple members of the team, in many disciplines, and the very specific and credible concerns raised about patient safety specifically, I thought it appropriate to seek advice from my Divisional Lead…”[102]This statement was sent to the Claimant alongside the management statement of case, produced by Dr Smith. The Claimant submitted her statement in response on 18 November 2024. This alleged bias and discrimination because of her race.[103]On 4 December, Andrew Hollowood, Interim Managing Director, wrote to the Claimant saying that the appeal would be limited to the issues of payments for additional work and complaints about her contract and job plan. He wrote: “We take the concerns you have raised regarding bullying & harassment as outlined in full in your statement, dated 20th November 2024, very seriously. These concerns were not investigated as part of the grievance process and therefore we will be referring these for a comprehensive investigation separately, in line with our Bullying & Harassment Policy (attached). We are in the process of appointing an investigating manager who will be responsible for conducting this investigation and we will confirm this individual to you in due course. If you would like further information on this process, please contact Holly Hitchcock, who can talk you through it.”[104]We heard no evidence as to any further investigation under the Bullying and Harassment policy.[105]The appeal hearing took place on 16 December 2024 in the Claimant’s absence. She was sent the appeal outcome on 18 December 2024. On the issue about on-call payments, the outcome letter reads: “I noted that, during “Oncall – remote from home” shifts, Consultants are paid £25 per hour for periods of time when they are not receiving calls, but are available, and £50 per hour when taking calls. In the absence of a precise record of how many calls a Consultant has taken, they are paid for an average of 3 hours at £50. For example, a 16-hour shift would be paid at a rate of 13 hours at £25 per hour, and 3 hours at £50 per hour (a total of £475). I noted that in the Management Statement of Case (Appendix 8d), this principle had not been applied consistently. In the absence of a submission from you on how many calls you took on these dates, I decided that the 3 calls average should be applied in all shifts of this type.”[106]The Claimant’s case is that this constituted a reduction in the rates that had previously been used to calculate the payments she was owed, and that that was an act of victimisation.[107]It is not in dispute that on 8 January 2024, Carla Griffiths, Divisional Manager for Operations, Family and Specialist Services Division, emailed the Claimant following a detailed investigation into payments that the Claimant said she was owed. When calculating the on-call payments from February 2023 onwards she used a flat rate of £40 an hour (regardless of whether a call was taken). This resulted in the figure of £4,375 that the Trust agreed at the time, and in the grievance outcome, was owed to the Claimant. Ms Griffiths also attached a document setting out the rates, which said that the applicable rate from 1 February 2023 was £40 an hour.[108]Dr Robson and Dr Kerslake both gave evidence that they had responsibility for signing off claims for on-call payments. They also made such claims themselves. They said that the Trust rates have always been £25/ £50 an hour depending on whether calls are taken. The Claimant relied on minutes of a staff meeting in November 2022 which said that a letter was about to be sent out indicating that the rate for on-call would be £40 an hour. There is no evidence, however, that that happened, and no evidence that any consultants have actually be paid in accordance with that rate, other than Dr Griffiths’s email of 8 January 2024.[109]Lisa Southway, Deputy People Partner, gave evidence to the Tribunal that the information about the rates that was used for the appeal outcome came from Dr Robson, Dr Kerslake and Dr Smith.[110]When the issue about the on-call payments was looked at as part of the Claimant’s original grievance, Dr Kerslake had forwarded Ms Griffiths’s email of 8 January 2024 to Dr Smith, saying “WLI payment [on-call payment] was in accordance with rates of pay”. His evidence was that he had not noticed Ms Griffiths used £40 as the rate.[111]Further, it was not clear what the Claimant’s position was as to the rate, either at the grievance or appeal stage. She had been offered a payment based on £40 an hour, but had not accepted it. At no stage did she assert that £40 was the correct rate.[112]We found the lack of clarity about this extremely surprising, and in particular no-one on the Respondent’s side knew where Ms Griffiths had obtained the information about the rates from that she used in her email of 8 January 2024.[113]We are, however, satisfied that Dr Robson and Dr Kerslake’s genuine understanding at all times has been that the rate was £25/ £50 an hour. Neither of them, or indeed anyone else involved in the appeal, recognised that Ms Griffiths had used a different rate until these proceedings. When they were asked for the purposes of the appeal what the rate was, they simply provided what they believed to be the correct information.
THE LAW
[114]As to whistleblowing, the Employment Rights Act 1996 (“ERA”) provides, so far as relevant: 43B Disclosures qualifying for protection (1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following— … (d) that the health or safety of any individual has been, is being or is likely to be endangered, … 47B Protected disclosures A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.[115]A qualifying disclosure is a protected disclosure if it is made to the worker’s employer or another specified person.[116]To succeed in a complaint of detriment because of whistleblowing, the protected disclosure need not be the sole or main cause of the detriment. It is sufficient if it materially (i.e. more than trivially) influences the employer’s treatment of the whistleblower (Elias J in Fecitt and ors v NHS Manchester (Public Concern at Work intervening) [2012] ICR 372, CA,). In any detriment claim under s.47B, it is for the employer to show the ground on which any act, or deliberate failure to act, was done (s.48(2)).[117]The proper approach to the burden of proof and drawing of inferences was summarised by the EAT in International Petroleum Ltd and ors v Osipov and ors EAT 0058/17: 117.1. The burden of proof lies on a claimant to show that a ground or reason (that is more than trivial) for detrimental treatment to which he or she is subjected is a protected disclosure that he or she made. 117.2. By virtue of S.48(2), the employer (or worker or agent) must be prepared to show why the detrimental treatment was done. If it (or he or she) does not do so, inferences may be drawn against the employer (or worker or agent) — see London Borough of Harrow v Knight 2003 IRLR 140, EAT. 117.3. However, as with inferences drawn in any discrimination case, inferences drawn by tribunals in protected disclosure cases must be justified by the facts as found.[118]The Equality Act 2010 (“EQA”) provides, so far as relevant: 13 Direct discrimination(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. … 27 Victimisation (1) A person (A) victimises another person (B) if A subjects B to a detriment because-- (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.(2) Each of the following is a protected act-- (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act. … 136 Burden of proof (1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.(3) But subsection (2) does not apply if A shows that A did not contravene the provision.[119]Race is a protected characteristic. Pursuant to s.9 of the EQA, race includes colour, nationality and ethnic or national origins.[120]The comparison with a person who does not share the protected characteristic requires there to be no material difference between the circumstances of the claimant and of the actual or hypothetical comparator (s.23(1) EQA).[121]As to determining whether an act was “because of” a protected characteristic, it is well known that discrimination is rarely overt. Linden J explained in Gould v St John’s Downshire Hill 2021 ICR 1, EAT: “The question whether an alleged discriminator acted “because of” a protected characteristic is a question as to their reasons for acting as they did. It has therefore been coined the “reason why” question and the test is subjective… For the tort of direct discrimination to have been committed, it is sufficient that the protected characteristic had a “significant influence” on the decision to act in the manner complained of. It need not be the sole ground for the decision… [and] the influence of the protected characteristic may be conscious or subconscious.”[122]The Supreme Court in Royal Mail Group Ltd v Efobi 2021 ICR 1263, confirmed that the claimant in a discrimination case bears the initial burden of proving, on the balance of probabilities, facts from which, in the absence of any other explanation, the employment tribunal could infer an unlawful act of discrimination. Although the tribunal must, at the first stage, ignore the employer’s explanation for allegedly discriminatory treatment, the tribunal is entitled to have regard to all material facts at stage one, including facts adduced by the employer (Laing v Manchester City Council and another 2006 ICR 1519, EAT). Further, an employer’s reliance on explanations that are inconsistent, inadequate or untruthful may be taken into account by the tribunal at stage one (Solicitors Regulation Authority v Mitchell EAT 0497/12).[123]A difference in status and a difference in treatment are not, without more, a sufficient basis on which a tribunal “could conclude” that the respondent has committed an act of unlawful discrimination (Madarassy v Nomura International plc 2007 ICR 867).[124]Unreasonable behaviour alone cannot found an inference of discrimination (Bahl v Law Society [2004] IRLR 799). If, however, there is no explanation for the unreasonable treatment the absence of an explanation (as opposed to the unreasonableness of the treatment) might found an inference. But a tribunal should not be “too ready” to infer unlawful discrimination from unreasonable conduct in the absence of evidence of other discriminatory behaviour (Igen Ltd (formerly Leeds Careers Guidance) and ors v Wong and other cases 2005 ICR 931, CA).[125]In Clifton Diocese v Parker 2026 EAT 68 the EAT held that the tribunal had erred by adopting an impermissible “blanket approach” to the allegations of discrimination at the first stage of the burden of proof in relation to a complaint of direct religion or belief discrimination, instead of dealing with each of the allegations separately. HHJ Tayler set out a series of practical ‘sense-check’ questions to assist tribunals when considering whether to draw an inference of direct discrimination: 125.1. first, what is, or are, the alleged discriminatory act, or acts? Sometimes it may be possible to analyse more than one act together, but whether it is appropriate to do so will depend on matters such as whether the acts were allegedly committed by the same person, are similar in nature, and their timing. 125.2. secondly, in respect of that act, or those acts, who is the alleged discriminator or discriminators? 125.3. thirdly, did the alleged discriminator do the alleged act to the claimant? 125.4. fourthly, are there facts from which the tribunal could decide, in the absence of any other explanation, that the alleged discriminator did the alleged act because of the relevant protected characteristic? In answering this question, the things said or done by another person or other people are generally unlikely to provide assistance. There may be cases where a lack of proper equal opportunities policies, poor compliance with relevant policies or the Equality and Human Rights Commission’s Code of Practice and/or a culture in which discriminatory language or practices are allowed to develop, may make it more likely that the act was done because of the protected characteristic, but that will generally require additional analysis. 125.5. finally, if, on a logical analysis, there are facts from which the tribunal could decide, in the absence of any other explanation, that the act was done because of the protected characteristic, then the inference of discrimination must be drawn unless the alleged discriminator proves that the act was not done to the claimant because of the relevant protected characteristic.[126]Once the burden of proof has shifted, the employer must prove, on the balance of probabilities, that its treatment of the claimant was in no sense whatsoever based on the protected ground (Igen, above).[127]In some instances, particularly where the claimant is relying upon a hypothetical comparator, it may be appropriate to dispense with the first stage altogether and proceed straight to the second stage (Shamoon v Chief Constable of the Royal Ulster Constabulary 2003 ICR 337, HL; Laing, above).[128]The Tribunal has a broad discretion in deciding whether it is just and equitable to extend time under s.123(1)(b) (Southwark London Borough v Afolabi [2003] IRLR 220). Factors that may be considered include the relative prejudice to the parties, the length of the delay, the reasons for the delay and the extent to which professional advice was sought and relied upon. The onus is on the claimant to show that it is just and equitable to extend the time limit. CONCLUSIONS Detriments because of protected disclosures
CONCLUSIONS
[129]The Respondent concedes that PD2, PD3 and PD4 were protected disclosures on the basis that, on each occasion, the Claimant disclosed information that she reasonably believed tended to show that patient safety had been, was being or was likely to be endangered. As for PD1, it was also ultimately not disputed that the Claimant had raised specific patient safety concerns during either or both meetings that took place on 18 October 2023. The Respondent accepted in those circumstances that there was no material distinction between PD1 and PD2, so logically PD1 would also constitute a protected disclosure. We agree and find that it did.[130]Turning to the alleged detriments, D1 is an allegation in two parts,(a) the failure to investigate and/or treat seriously the complaints against the juniors and(b) the failure to explain to the Claimant what was being done. Even taking this complaint at its highest, there is no evidence from which we could find that the reason, or a material reason, for any such failures was the fact that the Claimant had raised the concerns in the first place. Had she not raised a complaint, there would be no need to investigate. There is nothing in the evidence to suggest that the Respondent was seeking to penalise the Claimant for raising these complaints and that was not put to the Respondent’s witnesses. The Claimant’s case is that the response was inadequate, but that is not a complaint of detriment because of making a protected disclosure. We do not accept that any protected disclosure had any influence on the way that the Respondent responded to the Claimant’s complaints.[131]As to D2, the Claimant confirmed at the start of the hearing that she does not allege that the complaints were made against her by the juniors because she had raised concerns earlier that morning about them. This complaint is about the management response to the juniors’ complaints. The Claimant says they were inappropriately and unfairly escalated to the Divisional Director and she was called to a meeting at very short notice. Again, whilst the Claimant complains that this was unfair and indeed discriminatory, there is no evidence that Dr Robson or Dr Kerslake’s response to the complaints was influenced by the fact that the Claimant had herself complained about the juniors. The Claimant has not established any causal link. Our findings as to the reasons for the Respondent’s conduct are set out below.[132]The same applies to D3 and D4. The Claimant argues that the way in which the Respondent handled the complaints against her was unfair and heavy handed, but even if that is correct there would be no basis for us to find that this had anything to do with the Claimant having herself raised concerns about the juniors. The Claimant did not put to the Respondent’s witnesses that they would have acted differently if she had not raised concerns herself, and there is no evidence to suggest that they would have done.[133]As for D5, this fails for the same reason as D1. The fact that the Claimant raised concerns about Dr Crowe is unlikely itself to be a reason why there was a failure to investigate or explain to the Claimant what was being done about those concerns. Whatever failings there may have been, there is no evidence that the Respondent’s approach was influenced by the fact that the Claimant made a protected disclosure.[134]D6 to D8 are all aspects of the same essential complaint, that the Respondent reached adverse conclusions about the Claimant’s communication skills and took action as a result. There is nothing in the evidence to suggest that Dr Robson, Dr Kerslake or Dr Richards were influenced by the fact that the Claimant had raised concerns about other members of staff. Their conclusions were clearly based on the complaints they had received. Whether their conclusions were fair or reasonable is a matter that we consider below in the context of the race discrimination complaints, but even if they were not, there would be no basis to find that the protected disclosures had any influence on the Respondent’s actions.[135]The complaints of detriments because of protected disclosures are not well-founded and they are all dismissed. Direct race discrimination 4.2.1 On 18 October 2023, Dr Kerslake and Dr Robson arranged a meeting with the Claimant to discuss complaints made about her. These complaints were not discussed with the Claimant first. The Claimant relies on Dr Crowe as a[136]The facts of this complaint are not disputed, except for Dr Kerslake’s suggestion that it was the Claimant who requested the meeting, which we have rejected. The Claimant was asked to attend a meeting at 1pm, at less than an hour’s notice. The meeting took place with both Dr Robson, Clinical Lead, and Dr Kerslake, Divisional Director. At the meeting the Claimant was informed that some concerns had been expressed regarding her decisionmaking related to patients being discharged and around therapeutics. It is not disputed that this was a direct response to two juniors having complained about the Claimant to Dr Robson earlier that morning, and an email from D received at 11.14am. The Claimant was not given details of any other concerns that had been raised.[137]The Claimant relies on Dr Crowe as an actual comparator on the basis that when the Claimant raised complaints against her on 1 November 2023, the matter was not immediately escalated to Dr Kerslake and Dr Crowe was not called to a meeting at short notice. Pursuant to s.23 of the EQA there must be “no material difference” between the circumstances of the comparator and that of the claimant.[138]We find that there were material differences such that Dr Crowe is not a proper comparator for this complaint. The circumstances on 18 October were that the Claimant had raised complaints against junior doctors in the department, suggesting that they were not following her instructions, and shortly afterwards two junior doctors made a complaint about the Claimant, calling into question her competence and raising patient safety concerns. D’s email, on the face of it, described a number of potential instances of poor care by the Claimant. Of course, the concerns raised by D could not be assumed to be well-founded, not least because they came from a clinician with far less experience than the Claimant, but nor could they be dismissed. As already noted, the picture presented was of a dysfunctional relationship between the Claimant and the juniors, which has obvious risks for patient safety, especially as this came in the middle of one of the Claimant’s “hot weeks”. We accept that both Dr Robson and Dr Kerslake were genuinely concerned that there could be an immediate negative impact on patient care.[139]The complaint against Dr Crowe, on the other hand, was a list of patient cases in which the Claimant believed poor decisions had been made. For the most part the concerns were about oversight and diagnosis, rather than acute care. It was alleged there had been serious consequences for patient safety, but there was no equivalent urgency to the situation that arose on 18 October. The alleged failure to investigate the concerns is a separate complaint addressed below.[140]We must decide whether the Claimant has proved facts from which we could conclude, in the absence of any other explanation, that the Respondent’s actions were because of her race. Having rejected Dr Crowe as an actual comparator, the Claimant would need to show that she was treated less favourably than a hypothetical comparator would have been treated, i.e. a white British consultant in materially the same circumstances.[141]We accept that the matters disclosed in D’s email were sufficiently serious to warrant calling the Claimant to an urgent meeting, including with the Divisional Director. As the Claimant was the consultant in charge of the ward that week, it was important for managers with overall responsibility for patient care to understand her perspective and to assess whether any immediate steps needed to be taken to protect patient safety. It would be surprising if a meeting with the Claimant had not been called.[142]We do not accept that the other matters Dr Robson relies on as preceding 18 October provided any further justification for an urgent meeting. As we have already noted, they were evidently not matters that he had ever intended to take any action about. We agree with the Claimant that this is a retrospective attempt to bolster the reasons for calling the meeting. However, the concerns that had been raised with Dr Robson on 18 October, together with D’s email, gave sufficient cause for concern to justify the meeting.[143]Having accepted that the circumstances warranted an urgent meeting, the Respondent’s actions do not call for any other explanation, and there is no evidence that could found an inference of race discrimination. The fact that Dr Robson has somewhat overstated the extent of concern about the Claimant by referring to earlier concerns is not a sufficient basis to draw an inference of race discrimination.[144]Even if the burden did shift to the Respondent, we would find that the Respondent has proved the reason why Dr Robson and Dr Kerslake decided to call the meeting had nothing to do with the Claimant’s race. It was simply a first step towards investigating what the problem was, and to assess whether any immediate action needed to be taken.[145]As for not discussing the complaints with the Claimant first, we have accepted that the situation was sufficiently urgent that an initial meeting was required to find out the Claimant’s perspective. The lack of detail given to the Claimant is relevant to her other complaints, but given that we accept it was justified to hold an urgent meeting, it would not have been possible to provide details of the complaints to her beforehand. 4.2.2 On 18 October 2023, Dr Kerslake and Dr Robson failed to provide the Claimant with a written copy of the complaints against her. The Claimant relies[146]Again, the facts of this allegation are not disputed. The Claimant was told about two of the concerns in broad outline, but was not given a copy of D’s email or a redacted version of it.[147]The Claimant relies on Dr Crowe as an actual comparator. It is not disputed that Dr Crowe was given an edited (not anonymised) version of the Claimant’s complaint against her in May 2024, which set out the detail of all of the clinical concerns raised by the Claimant.[148]We do not accept that there was “no material difference” between the circumstances in each case, such that Dr Crowe is a proper comparator. Most importantly, the Claimant had not requested anonymity in relation to her complaint whereas the junior doctors had. Further, the circumstances that gave rise to the complaint being provided to Dr Crowe were that Dr Smith suggested a review of the clinical decision-making needed to take place in order to establish whether any patients had come to harm. Dr Crowe’s views were sought in order to inform that review, and there was no way that she would have been able to provide relevant input without seeing the detailed complaints.[149]By contrast, the meeting on 18 October was called to make an urgent assessment of any immediate risk to patient safety. When the two examples were put to the Claimant, she provided her explanation and this was accepted. Although at that stage it appears to have been intended that a fuller review would take place and more information would be shared with the Claimant, in fact there was no further investigation into the Claimant’s clinical competence based on the matters raised in D’s email. If there had been, of course the Claimant would have needed to see the detail of the complaints against her in order to respond fully.[150]We are not satisfied that there are facts from which we could conclude, in the absence of any other explanation, that the failure to provide the Claimant with the written complaints was because of her race. In any event, this is a situation in which we accept the Respondent’s explanation for the treatment, i.e. they had been advised not to disclose the identities of the complainants, and they genuinely believed that the Claimant would be able to work out who had complained from the contents of the emails. Even if we were to adopt the two-stage approach and even if the burden shifted to the Respondent, we find the Respondent has proved the reason for the treatment had nothing to do with the Claimant’s race. 4.2.3 On 18 October 2023, despite there being agreement that there were no clinical concerns, Dr Kerslake and Dr Robson confirmed the Claimant would be subject to monitoring regarding the complaints against her by junior medical staff. In summary, when clinical concerns were raised about white colleagues, either no action or limited action was taken by the Respondent, yet when clinical concerns were raised regarding the Claimant, she was subjected to supervision (without having the benefit of due process being followed). The Claimant relies[151]The Respondent objects to the use of the word “monitoring” and we accept that neither Dr Robson nor Dr Kerslake used that word. This complaint relates to the decision on 18 October 2023 that the Claimant would be “doubled up” with another consultant for the remainder of the week, which the Claimant interpreted as a form of monitoring. In fact, the doubling up never occurred because the Claimant was off work for the rest of the week.[152]There is no dispute that Dr Kerslake and/or Dr Robson told the Claimant during the meeting on 18 October 2023, as confirmed in the email the following morning from Dr Kerslake, that it would be advisable to have a second consultant doubled up with her for the remainder of the week.[153]The following is the decision of the majority of the Tribunal (Employment Judge Ferguson and Ms England).[154]The Claimant again relies on Dr Crowe as an actual comparator on the basis that she was not “doubled up” after the Claimant made complaints about her on 1 November 2023. For largely the same reasons as those as we have given in respect of the decision to hold an urgent meeting, we find that there were material differences between the two situations. We have already accepted that the complaints against the Claimant warranted an urgent meeting and gave rise to possible risks to patient safety. The fact that the complaints arose during the Claimant’s hot week was another important factor.[155]We do have considerable sympathy for the Claimant, who felt that this was deeply unfair in circumstances where only two specific concerns had been shared with her, and her explanations for those had been accepted. She had not been given any information about other concerns. It was also understandable that she felt unable to continue working without knowing what mistakes she was alleged to have made. However, this was clearly intended at the time as an interim measure pending further investigation into the complaints. Patient safety was paramount and there was cause for serious concern about the functioning of the team.[156]The strongest point in the Claimant’s favour is that the Respondent has sought to defend the decision to double up on the basis that the purpose of it was to “triangulate” concerns about the Claimant’s communication skills, i.e. obtain the perspective of a neutral third person. We have rejected that explanation because at this point, before the email complaint from B was received on 19 October 2023, the subject of “communication skills” had not been raised.[157]Even if that were sufficient to shift the burden to the Respondent, however, we find that it is clear on the evidence that the reason for the doubling up was to ensure patient safety. Concerns had been raised, including about the Claimant’s “decision making related to patients being discharged, and decision making around therapeutics” (Dr Kerslake’s email of 19 October), during one of the Claimant’s hot weeks, and it was not possible to establish immediately whether there were risks to patient safety, not least because of the junior doctors’ request for anonymity. That undoubtedly created some unfairness to the Claimant, whose competence was effectively called into question before a proper investigation, but that unfairness was outweighed by the Respondent’s duty to its patients.[158]Despite rejecting the Respondent’s explanation about communication skills, we find that the real reason for the treatment was to protect patient safety. The Respondent may have been reluctant to admit that in its evidence because of the unfairness in not being able to share details of the concerns with the Claimant, but the question for us is not whether the decision was fair or reasonable. The question is whether it had anything to do with the Claimant’s race and we are satisfied that it did not. We do not accept that a hypothetical white British consultant in the same circumstances would have been treated any differently.[159]Mr Ghotbi-Ravandi concluded that the fact that the Respondent had given a false reason for this decision was sufficient to shift the burden of proof, and that the Respondent has not proved it was in no sense whatsoever because of the Claimant’s race. He would therefore have upheld this complaint. 4.2.4 Following the meeting on 18 October 2023 and the Claimant’s email to Dr Kerslake and Dr Robson on 1 November 2023 Dr Kerslake and Dr Robson failed to properly investigate the Claimant’s allegations regarding Dr Crowe or progress them under the Bullying and Harassment policy or explain to the Claimant what was being done to investigate her concerns. The Claimant relies on a hypothetical comparator.[160]There were two aspects to the Claimant’s complaint against Dr Crowe. First, the complaint of undermining behaviour, also referred to on occasions as bullying. This was first raised by the Claimant in December 2022 and it was raised again during the meeting on 18 October 2023. Further details were given in the email on 1 November 2023. The Claimant also alleged on 23 January 2024 that the behaviour was ongoing, and she raised it again in her grievance and appeal. Secondly, the Claimant made a number of allegations of poor clinical practice affecting patient safety, in her email of 1 November 2023.[161]This complaint encompasses alleged failure to investigate both aspects, as well as an alleged failure to inform the Claimant what was being done.[162]Addressing the clinical complaints first, we find that these were not treated as seriously as they should have been. There is no documentary evidence of Dr Robson’s review that he says he carried out at the time. We note that Dr Smith, the Deputy Chief Medical Officer, was surprised by the lack of investigation when he was looking into the Claimant’s grievance in May 2024. Further, he effectively directed that there should be a further review, but nothing was done other than Dr Crowe being asked for her comments. That was a pointless exercise because no-one looked at her response and considered afresh whether there were any concerns that needed to be addressed.[163]As for the bullying complaints, we accept that up until the Claimant’s grievance, it was open to the Respondent to try to address the issue informally. This took the form of conversations with Dr Crowe by both Dr Robson and Dr Kerslake, and Dr Kerslake instigating a “cultural review”. By 23 January 2024, it was clear that the Claimant was alleging the treatment was ongoing so any attempts at informal resolution had not succeeded. We accept that the Respondent was still seeking to deal with the matter after this, for example by suggesting a further meeting at which the Claimant could have explained what the ongoing treatment was, but this never took place because the Claimant commenced sickness absence shortly afterwards.[164]We do not find that Dr Robson or Dr Kerslake ought to have commenced a formal investigation into the allegations of bullying. This was essentially a dispute between two senior clinicians. It was a difficult and delicate situation which had to be handled with care. It is not for us to say what the correct response was.[165]During the hearing the Claimant raised the fact that the grievance did not include consideration of the bullying allegations, but as this complaint is limited to alleged failings by Dr Robson and Dr Kerslake, and they were not responsible for the scope of the grievance, that is not relevant to the question of whether they discriminated against the Claimant.[166]As for the alleged failure to inform the Claimant, the Respondent accepts that it did not inform her of the outcome of Dr Robson’s review of the clinical concerns. It accepts that this should have been done. As to the bullying allegations, there was little to report, but Dr Kerslake did not report back to the Claimant on his meeting with Dr Crowe in December 2023. He did indicate in his email of 9 February that there was to be further work “with the wider department supported by the assistant director of people and culture”.[167]The Claimant has not named an actual comparator for this complaint and relies on a hypothetical comparator. We must decide whether there are facts from which we could conclude that any failings were because of the Claimant’s race, i.e. that if a white British consultant had raised the same complaints about a colleague, the Respondent would have treated them more seriously. We are not, at this stage of the analysis, considering whether the Respondent would have acted differently if Dr Crowe had not been white. That is a question that arises from the Claimant’s reliance on Dr Crowe as a comparator for her other complaints.[168]The Claimant has not expressly put her case on the basis that her race was a factor in any failure to investigate Dr Crowe. The Claimant’s case is that when both she and Dr Crowe faced similar complaints, Dr Crowe was treated more favourably. The relevant factor here, on the Claimant’s case, was the race of the subject of the complaints, not the race of the person who complained. We did not hear any evidence about the race of the junior doctors who complained about the Claimant, other than Dr Kerslake saying that Dr Robson spoke to junior members of the team “who are also from the global majority”.[169]While we have found that there was an unreasonable failure to investigate more thoroughly the clinical concerns, and the Claimant was not kept informed, we are not satisfied that there are facts from which we could conclude this was because of the Claimant’s race. Unreasonable behaviour is not sufficient on its own to shift the burden to the Respondent and the Claimant has not proved something more that could indicate a hypothetical white British comparator would have been treated more favourably.[170]As for the response to the bullying complaints, Dr Kerslake explained that given the department was already short staffed, he was very anxious to ensure that both the Claimant and Dr Crowe could continue to work. It was not the case that Dr Kerslake or Dr Robson assumed the allegations were not valid. They have always accepted that they were. The question of what action was taken in response is the subject of the complaint about the referral to the PPA, where Dr Crowe is relied upon as a comparator. There is simply no evidence to support a conclusion that Dr Robson and/or Dr Kerslake’s approach to the complaints against Dr Crowe had anything to do with the Claimant’s race. 4.2.5 On 21 November 2023, Dr Kerslake emailed suggesting that there was a ‘deeper cultural issue that needs addressing’, in response to complaints the Claimant made, thereby deflecting the concerns raised about Dr Crowe; an approach that would not have been and was not adopted when it came to concerns raised about the Claimant The Claimant relies on Dr Crowe as a[171]It is not in dispute that this comment was made. The Claimant has not alleged that the reference to a “cultural issue” was an implied reference to her race. We are satisfied that Dr Kerslake was referring to the working culture of the team, not anything relating to any individual’s cultural background.[172]The allegation here is that he “deflected” the concerns raised about Dr Crowe. This is really another aspect of the same complaint at 4.2.4, i.e. that there was a failure to investigate the allegations of bullying and harassment against Dr Crowe. We have already found that there is nothing to suggest that the Claimant’s race had anything to do with the way the Respondent handled it. 4.2.6 On 27 November 2023, Dr Kerslake and Dr Robson told the Claimant she had issues with her communication skills and failed to give a reasonable explanation of this. The Claimant relies on Dr Crowe as a comparator and/or a hypothetical comparator.[173]To the extent that this complaint includes an allegation that the Claimant was not told what the communication concerns were, we do not accept that that is correct. Dr Kerslake’s email of 27 November 2023 set out a number of issues that could properly be said to come under the heading of communication skills, including not giving enough input into supporting juniors with “outlier management”, juniors feeling unable to challenge the Claimant and the Claimant not being approachable enough. It is not in dispute that the Claimant was not given copies of the complaints, including the complaint from B which raised a number of communication issues, but the Respondent had to balance fairness to the Claimant against the need to preserve the anonymity of those who had complained. We find that the Claimant was told the gist of the concerns about communication, such that she was in a position to respond.[174]The main complaint here is that Dr Kerslake and Dr Robson concluded that the Claimant had issues with her communication skills. Even if they did not use that exact language, we consider that clearly was their view, and this is what was communicated in the email of 27 November 2023.[175]The Claimant relies on Dr Crowe as a comparator on the basis that no adverse conclusions were reached about her communication skills, notwithstanding that clinical concerns and allegations of bullying had been raised against her.[176]First, we are not satisfied that no adverse conclusions were reached about Dr Crowe. Both Dr Robson and Dr Kerslake accepted that Dr Crowe’s conduct had been unacceptable, and that her behaviour in the MDT meeting in December 2022 in particular had the effect of undermining the Claimant and potentially affected how she was viewed by others. Dr Robson said he made it clear to Dr Crowe at the time that this was not acceptable. Dr Kerslake said he also spoke to Dr Crowe about this behaviour on 1 December 2023. The real difference between the two situations is what steps the Respondent then took. That is the subject of the Claimant’s next complaint, about referral to the PPA.[177]Further and in any event, we find that there were material differences in the circumstances of the complaints against the Claimant as compared to the complaints against Dr Crowe. The complaints against the Claimant included matters that could have arisen from poor communication skills, such as not clearly conveying to the juniors what the plans were for patients or the reasons for decisions, or not giving the juniors opportunities to ask questions. The complaints against Dr Crowe were different in nature; the Claimant alleged she was deliberately undermining her in front of other staff. That is not necessarily a question of “communication skills” but rather of respect for one’s colleagues and professional courtesy.[178]We therefore find that Dr Crowe is not a proper comparator and/or she was not treated more favourably.[179]We must then consider whether there are facts from which we could conclude that Dr Robson and Dr Kerslake’s conclusion that the Claimant had issues with communication was because of her race.[180]We do have some concerns about the reasonableness of the conclusions reached by Dr Robson and Dr Kerslake, as set out in the email of 27 November 2023. The email carried the implication that it was the Claimant who was solely responsible for the problems in the team. Dr Kerslake said that they were satisfied the Claimant “had a good grasp of the clinical issues and your decision making was sound”. He said “This suggests that the problem lies in the communication of these considered plans, so that the juniors understand…”. We consider that is a questionable conclusion. There were other possible explanations for the fact that juniors were raising concerns about the Claimant, including that they had developed an unjustified distrust in the Claimant’s decisions. As for the perception that the Claimant was not approachable, that was a potentially problematic area because the Claimant was alleging that she was being undermined, disrespected and unfairly challenged by colleagues. If that was the position, it is perhaps unsurprising that she would be defensive and may not wish to invite challenge to her decisions.[181]Having said that, we accept it was Dr Robson’s and Dr Kerslake’s genuine view that the problems were at least in part due to poor communication by the Claimant. Further, no punitive outcomes were being suggested at this stage. The only suggestions in the letter of 27 November were buddying up to “triangulate” the Claimant’s communication skills and mentoring. The Claimant agreed to the buddying up and it took place with Dr Wexler. The Claimant has not complained about that as part of her claim. We are slightly unclear as to what the purpose of it was, given that there was no written feedback from Dr Wexler afterwards, but it was not an unreasonable suggestion as a way of trying to establish the causes of the problems in the team. As for coaching, this was entirely voluntary and the Claimant declined the offer. She did later, however, accept mentoring from another person, arranged by Dr Richards.[182]Despite our concerns that the email of 27 November unfairly put the blame for the problems at the Claimant’s door, and failed to acknowledge other possible causes of the problems, this is not sufficient to found an inference that Dr Robson or Dr Kerslake’s conclusion the Claimant had issues with her communication skills had anything to do with her race. In the absence of punitive consequences, we accept that at this stage they were genuinely trying to support the Claimant and to resolve the problems with a light touch. In those circumstances we do not accept that a hypothetical white British comparator would have been treated more favourably.[183]We do, however, consider that the Respondent’s overall approach as to the allocation of blame is a relevant factor when considering the decision to refer the Claimant to the PPA, so we return to this issue below. 4.2.7 In or around February 2024, Dr Kerslake and Dr Richards made a PPA referral regarding the Claimant. The Claimant relies on Dr Crowe as a[184]We have had to reach factual conclusions about the PPA referral based on incomplete evidence because the decision appears to have been driven by Dr Richards who was not called as a witness by the Respondent. As noted above, we were given no explanation for her absence.[185]It is clear from the correspondence in the bundle that Dr Richards was aware of the issues with the Claimant from 18 October 2023 onwards because Dr Kerslake forwarded several of the emails to her and kept her informed. The decision to make a referral to the PPA appears to have been made by Dr Richards on 23 January 2024. The trigger for her decision was a concern that the Claimant’s statement “did not reflect notes” and that the Claimant appeared to have given “incorrect advice not to transfuse a patient who went on to arrest”.[186]We have found that the meeting on 9 February 2024 was then arranged with the PPA. Even if Dr Kerslake was not involved in the actual referral and setting up the meeting, in light of Dr Richards’s email of 23 January 2024 and the correspondence that followed the meeting, we are satisfied that he knew the Claimant was going to be referred to the PPA and he agreed with that course of action.[187]We find that a referral to the PPA is a formal step in the Respondent’s capability policy. It would be recorded in a doctor’s personal file and would be disclosable to future employers. It could therefore have serious implications for a doctor’s career. It also had in the Claimant’s case significant immediate consequences, in that the outcome was a recommendation that she attend a formal communication skills course and she would be doubled up for a minimum of three months. It was proposed there would be formal follow-up by the PPA after six weeks.[188]A theme in the Respondent’s handling of these issues has been the absence of note-taking. The lack of notes of the PPA meeting on 9 February 2024 is perhaps the most surprising example of this. The best evidence of what was discussed in the meeting is the PPA letter of 1 March 2024. In the absence of any evidence to the contrary, we find that what was set out in that letter reflects what both Dr Kerslake and Dr Richards said about the Claimant during the meeting.[189]We find that they painted an unbalanced picture of the situation to the PPA. We note the following in particular: 189.1. They referred to an allegation that the Claimant was “not pulling her weight”, which had never been put to the Claimant. Dr Kerslake said in his evidence that this allegation came from Dr Crowe. We have seen no evidence to suggest that this was a fair or valid perception of the Claimant. 189.2. They portrayed Dr Crowe’s undermining behaviour as “assertive”, which underplayed Dr Kerslake’s own assessment of the seriousness of it, conveyed to the Claimant and, for example, to the person who had been put forward as a potential coach for the Claimant. 189.3. They referred to complaints having been received from “a number of the doctors” in October 2023, when in fact only two had complained. 189.4. It was said that the Claimant’s relationship with Dr Wexler “became strained” after the doubling up week. There was no evidence that that was correct, and it had not been discussed with the Claimant. 189.5. They did not give the full context, and in particular did not explain that Dr Crowe’s behaviour may have caused others to lose respect for the Claimant, or that the Claimant had herself raised concerns about others’ performance or clinical decision-making.[190]The Claimant relies on Dr Crowe as a comparator. When considering the “material circumstances” that applied to the Claimant and Dr Crowe, we must focus on the circumstances that were known to each of the alleged discriminators, namely Dr Kerslake and Dr Richards.[191]We find that both Dr Kerslake and Dr Richards were aware of all matters relating to the complaints against the Claimant, having been involved in managing the situation from 18 October 2023. In terms of the complaints against Dr Crowe, the Claimant’s complaint of 1 November 2023 had been forwarded to Dr Kerslake and he was aware of the wider complaints about Dr Crowe’s treatment of the Claimant in MDT meetings. He asked Dr Robson to review the clinical complaints, and it appears there was no follow-up in respect of that until the grievance. Dr Kerslake discussed the wider behavioural issues with Dr Crowe in a meeting on 1 December. There is no evidence that Dr Richards knew about the clinical complaints against Dr Crowe, but we infer from the email exchange with the Claimant on 5 January 2024, and the PPA letter, that the Claimant had discussed Dr Crowe’s undermining behaviour with Dr Richards.[192]As regards both, we find that there were material differences between the circumstances that applied to the Claimant and those that applied to Dr Crowe. There are certainly similarities, but it is a material difference that complaints against the Claimant had come from multiple sources, whereas those against Dr Crowe came from only from the Claimant. As regards Dr Richards, the lack of evidence that she was aware of the clinical concerns raised against Dr Crowe is also a material difference.[193]Dr Crowe is not, therefore, a proper comparator for this complaint. She can nevertheless be relied upon as an evidential comparator and we consider the difference in approach, in particular by Dr Kerslake, is significant.[194]On the information known to Dr Kerslake, it was possible that Dr Crowe was at least partly, if not substantially, responsible for the problems in the team. He decided not to take matters further in relation to Dr Crowe, other than by means of a cultural review which would have involved the whole team and did not suggest any individual blame. By contrast, he agreed and contributed to referring the Claimant to the PPA, a formal step that could have lasting consequences for her career. Although there were some differences in the circumstances, we do not consider they are sufficient to explain such a significant difference in approach.[195]Similarly, on the information known to Dr Richards, she was aware of the undermining behaviour by Dr Crowe but was not proposing any action needed to be taken against Dr Crowe. As regards the Claimant, she knew that the Claimant had been engaging with Dr Kerslake and Dr Robson about the complaints made by the juniors on 18 October 2023. It is not clear what she meant by the “communication update” that the Claimant was “resisting” (email of 23 January 2024); by that stage the only outcomes were the buddying up, which had taken place, and coaching, which had not, but the Claimant had agreed to the mentoring suggested by Dr Richards. The incident on 24 December 2023 did not justify a significant change in approach, given there had been no proper investigation into it by that stage, and Dr Robson’s view (as the Clinical Lead) was that there appeared to be communication and behaviour issues “on all sides”.[196]The referral of the Claimant to the PPA therefore represented a significantly harsher approach than was taken towards Dr Crowe. It was also made in breach of the terms of the capability policy, which says that the doctor should be made aware that NCAS/PPA will be contacted, i.e. before the referral takes place. The Claimant knew nothing about it until Dr Kerslake’s email, after the meeting had taken place on 9 February 2024.[197]When considering whether there are facts from which we could draw in inference of discrimination, we take no account of the Respondent’s explanation for any difference in treatment.[198]We consider this is a borderline case, but we are satisfied that there are facts from which we could conclude that the Claimant’s race was a factor in both Dr Kerslake and Dr Richards’s conduct. As well as the disparity in treatment as compared to Dr Crowe, we rely on the following: 198.1. The consequence of the referral was that the Claimant was the only person in the team against whom formal action was taken, whereas no meaningful investigation was undertaken at all into the concerns raised about the juniors or about Dr Crowe. This was an unfair outcome when it was not clear that the Claimant was solely responsible for the problems in the team, and she was repeatedly told that there were no concerns about her clinical competence. The original complaints from the juniors, in particular from D, disclosed potentially serious wrongdoing, including concealing important information about patients from the Claimant, but no action was taken in relation to this. The incident on 23/24 December 2023 did not justify a more formal approach being taken to the Claimant without a proper investigation. Insofar as Dr Robson suggested that any failure in care was ultimately the Claimant’s responsibility, as the consultant in charge, that is contrary to what he said at the time and he did not take the same approach when considering the complaints against Dr Crowe. He accepted there had been suboptimal care in respect of a patient for whom Dr Crowe was responsible, but said in his view this did not warrant further action. This suggests that senior management were prepared to afford the benefit of the doubt more readily to Dr Crowe than they were to the Claimant. 198.2. The letter from the PPA mentioned at the outset that the Claimant was an “International Medical Graduate”. We cannot see the relevance of that information, given that the Claimant had worked in the NHS continuously for 18 years. The information must have come from Dr Kerslake and/or Dr Richards. 198.3. Dr Kerslake and Dr Richards gave an unfairly negative impression of the Claimant to the PPA and underplayed the possibility that fault lay elsewhere. 198.4. The referral appears to have been prompted by a clinical concern, i.e. incorrect advice not to transfuse, but that did not feature in the discussion with the PPA, which focused exclusively on perceived communication issues. 198.5. The referral was made without informing the Claimant, in breach of the capability policy. 198.6. Until relatively recently before the referral, the Claimant had been the only non-white consultant in the department. 198.7. The lack of notes of key meetings, in particular the PPA meeting on 9 February 2024, makes it difficult to establish exactly what was discussed.[199]Noting that it is unusual to find direct evidence of racial bias, and that racial bias may be either conscious or subconscious, we conclude the above provides a sufficient basis to infer that both Dr Kerslake’s and Dr Richards’s decision to refer the Claimant to the PPA was influenced by her race.[200]We must therefore consider whether the Respondent has proved, on the balance of probabilities, that the treatment was in no sense whatsoever because of the Claimant’s race.[201]Dr Richards has not given evidence to the Tribunal. The only evidence we have as to her reasons for the referral is the email of 23 January 2024. That is not sufficient to rebut the inference that we have found can be made. We accept that Dr Richards was supportive to the Claimant at a meeting on 5 January 2024, and the Claimant expressed gratitude for that, but that does not preclude the possibility that Dr Richards made negative assumptions about the Claimant’s competence and skills that she would not have made about a white British consultant. In the absence of evidence from Dr Richards to explain the concerns we have identified, the Respondent has not proved that Dr Richards’s referral of the Claimant to the PPA was in no sense whatsoever because of her race.[202]As for Dr Kerslake, the only explanations he gave that could account for the difference in treatment between the Claimant and Dr Crowe were given in his oral evidence. Two possible non-discriminatory reasons were put forward, first that he did not want to pursue the complaints against Dr Crowe formally because he was concerned it might be the “last straw” and she would go off sick, and secondly that when he spoke to Dr Crowe she was receptive to the discussion and steps were taken to address the cause of her behaviour, whereas the Claimant was defensive and unwilling to accept any fault. We do not accept that either explanation is sufficient to prove that race was not a factor (whether conscious or subconscious) in his treatment of the Claimant. Dr Kerslake approached his conversation with Dr Crowe as a welfare matter, whereas the meetings with the Claimant were expressly to address complaints that had been made about her. He seemed more concerned about the potential effect on Dr Crowe than on the Claimant, despite the fact that, as he accepted, both were under strain as a result of the department being understaffed. There was no satisfactory explanation for this. Further, it is unsurprising that Claimant would be more defensive than Dr Crowe. It was a more confrontational situation, and the Claimant felt that her competence was being unfairly questioned by others in the team. It is also relevant that she had not been given copies of any of the complaints against her. Given that context, and the admitted background of undermining behaviour, the Claimant’s defensiveness was not a reasonable basis to justify referring her to the PPA.[203]As with Dr Richards, we accept that some of the actions that Dr Kerslake took earlier in the process were genuinely intended to be supportive. He was evidently very keen to find a way through the issues without any negative impact on the department. The referral to the PPA, however, represented a significant escalation. It is entirely possible that unfair assumptions about the Claimant made by Dr Kerslake, influenced by the Claimant’s race, played a part in that. The Respondent has not proved on the balance of probabilities that Dr Kerslake’s approach was in no sense whatsoever because of the Claimant’s race.[204]We address the question of time limits below. 4.2.8 On 18 December 2024, in the appeal outcome letter, the Claimant was offered an additional payment of rate of £25 that was significantly lower than what was previously offered by Ms Griffiths. The Claimant relies on a hypothetical[205]In light of our factual findings, we are satisfied that the reason the Claimant was told the on-call rate was £25 in the outcome of the appeal was because that was the information supplied by Dr Robson, Dr Kerslake and Dr Smith. We are also satisfied that all involved in the appeal genuinely believed that was the correct rate. It was not a deliberate reduction from the rate offered by Ms Griffiths because no-one involved had recognised she had made her calculations based on a higher rate. There would therefore be no basis for us to find that this was done for any reason other than a genuine belief that it was the correct rate. This complaint therefore fails. Victimisation[206]It is not in dispute that the Claimant did protected acts by making allegations of race discrimination as part of the appeal against her grievance. The Respondent did not accept, however, that the Claimant did a protected act on 16 May 2024 by complaining of bullying by Dr Kerslake in the grievance meeting. It is not disputed that the Claimant alleged in the grievance meeting she had been bullied and harassed by Dr Kerslake, but the Respondent says this did not constitute an allegation of race discrimination. The Respondent said in closing submissions, however, that if the Claimant had relied on the grievance itself as a protected act, the Respondent would have been likely to concede that it was, given that the Claimant referred to working in “a biased environment”. We find that the comments made at the grievance meeting must be considered in context, and given that the Claimant had already complained of bias, it can be assumed that her allegations of bullying during the meeting were part of the same overall complaint. We therefore accept that the Claimant did a protected act on 16 May 2024.5.2.1 On 10 October 2024, Dr Robson, in his appeal statement, made false allegations that there had been credible concerns raised about the Claimant by nursing staff and senior sisters about patient safety.5.2.2 In the alternative, on 10 October 2024, in Dr Robson’s appeal statement, he stated that there had been credible concerns raised about the Claimant by nursing staff and senior sisters about patient safety where the Claimant was not told the details of these alleged concerns thereby being denied the opportunity to respond.[207]We address these two complaints together because the considerations on the issue of causation are the same.[208]The reference to “credible concerns” in the statement did not specifically refer to concerns raised by nursing staff. Dr Robson simply said that in light of the “very specific and credible concerns raised about patient safety” he thought it appropriate to seek advice from his divisional lead, namely Dr Kerslake. We find that this was a reference to the matters raised by the junior doctors on 18 October 2023. That included the concern that is described by B in her statement, involving a Clinical Nurse Specialist expressing concern about the Claimant’s reluctance to discuss a new diagnosis with a patient and his family. That appears to be what Dr Robson was referring to in his statement. His statement did not contain new substantive allegations. These are concerns that had been raised previously, but about which the Claimant was not given full details, for the reasons already outlined. It is evident that Dr Robson always considered the concerns to be “credible” because he took swift action as a result. We therefore find there would be no basis to find that describing them as such in his statement had anything to do with the Claimant’s protected acts. Similarly, there was no fresh decision to make allegations that had not been shared with the Claimant. He was referring to matters where a decision had been made a year beforehand not to share the full details with the Claimant. These complaints therefore fail. 5.2.3 On 18 December 2024, in the appeal outcome letter, the Claimant was offered an additional payment of rate of £25 that was significantly lower than what was previously offered by Ms Griffiths.[209]We have already accepted the Respondent’s reason for concluding in the grievance appeal that the rate was £25. It had nothing to do with the fact that the Claimant had done a protected act. Time limits[210]The only complaint that we have upheld is the complaint of race discrimination relating to the Claimant’s referral to the PPA. This occurred between 23 January and 9 February 2024. The ordinary time limit therefore expired on 8 June 2024. The Claimant did not commence early conciliation until 4 December 2024, and did not present her claim until 19 February 2025, some 9 months out of time. We only have jurisdiction in respect of this complaint, therefore, if we consider it is just and equitable to extend the time limit.[211]The Claimant says she did not present her claim sooner because she was attempting to resolve her concerns through the internal grievance process, which did not conclude until December 2024. She says she was also on sickness absence from 8 February 2024 and suffering from significant anxiety and depression which affected her ability to take steps to pursue a Tribunal claim. She was not legally represented until a later stage and was not fully aware of the applicable time limits.[212]The Claimant has not presented medical evidence about her mental health during this period, but it is not in dispute that the Claimant has been seriously unwell and unfit to work since February 2024. The Respondent points out that she was able to engage with the grievance process, so therefore ought to have been able to submit a claim. That was not put to the Claimant in crossexamination and we do not consider it necessarily follows. The Claimant’s explanation, albeit in submissions rather than in her evidence, was that she was focused on the grievance process, which was difficult in itself, and she would not have been able to cope with the additional pressures of bringing a Tribunal claim.[213]The fact that the Claimant was seeking to resolve her concerns through the internal process is a weighty factor in this case. The grievance outcome on 10 July 2024 did not directly address the Claimant’s complaints of bullying and that she had been treated differently to colleagues despite that being the main issue she complained about in her original grievance. It was suggested, however, that a clinical review was taking place into Dr Crowe. This never happened. The Claimant then renewed her complaints about bullying and differential treatment in her appeal. It was only on 4 December 2024 that she was told these complaints would be investigated separately and the Respondent would appoint an investigating manager. We had no evidence about whether that was taken any further. We observe that the allegation of differential treatment has been at the heart of the Claimant’s complaints from the outset, and that there has never been a satisfactory internal investigation and outcome on that issue. It is possible that a thorough internal investigation could have avoided the significant time and expense spent on these proceedings.[214]The final factor that we take into account is the prejudice to the Respondent in extending the time limit. We accept there is some prejudice because the Respondent has had to defend a decision that was made around a year before the claim was presented, but the Respondent has not asserted any actual forensic prejudice caused by the delay. It was not suggested the delay had anything to do with Dr Richards not being called as a witness. We accept that Dr Kerslake’s memory is likely to have been affected by the delay, but the complaint was not new to him in February 2025. He has been aware since at least April 2024 that the Claimant objected to her referral to the PPA and that it constituted biased treatment. The Respondent has not argued that it has been hampered in its defence of the complaints by the delay.[215]On balance we accept that it is just and equitable to extend the time limit.[216]The complaint of race discrimination about the Claimant’s referral to the PPA therefore succeeds. Approved by: