Mr D Afful v Ramsey Health Care UK Operations Ltd: 6008911/2024

EMPLOYMENT TRIBUNALS

Case No 6008911/2024

Between

Mr D AffulClaimant

Ramsey Health Care UK Operations LimitedRespondent

Before

Employment Judge Le Grys

Date 26 March 2026

JUDGMENT

The complaint that the claimant was unfairly dismissed is struck out.

REASONS

INTRODUCTION

[1]The claimant complains of unfair dismissal, in addition to other claims.

[2]Section 108 of the Employment Rights Act 1996 requires a claimant to have not less than two years’ service to make an unfair dismissal complaint. The procedural matters raised in the Claimant’s response to the Strike Out Warning are not matters which fall within one of the exceptions in s. 108 of the Employment Rights Act 1996. Additionally allegations of discrimination or harassment under the Equality Act 2010 are not exceptions under s. 108 of the Employment Rights Act 1996.

[3]The claimant was employed by the respondent for less than two years.

[4]Therefore the claimant is not entitled to bring such a complaint.

[5]The claimant has failed to give an acceptable reason, despite being given the opportunity to do so, why the complaint should not be struck out.

[6]Accordingly, the complaint of unfair dismissal is struck out. The claimant’s other complaints, including any claim that there was a discriminatory dismissal, are not affected by this judgment. Approved by

[1]By way of a claim form received on 19 August 2024 the Claimant brought the following complaints;1.1 Direct discrimination (relating to race);

1.2 Direct discrimination (relating to sexual orientation);

1.3 Wrongful dismissal (relating to notice pay)

1.4 Breach of contract.

[2]The Claimant also brought a claim for unfair dismissal, but this was struck out in a judgment of Employment Judge Bax dated 24 January 2025 on the basis that the Claimant did not have the necessary two years’ service.

[3]The Claimant was employed by the Respondent between 13 November 2023 and 21 February 2024 as a scrub nurse. He asserts that his employment was terminated during his probation period, after the Respondent had put to him false allegations that he had whispered sexual comments to a female employee. He also states that it was alleged by the Respondent that he had a personal preference to find a “white girlfriend”, and that the written reports produced during his probation period were inaccurate.

[4]The Respondent disputes the claim. It asserts that concerns were raised throughout the Claimant’s probation in respect of his clinical competence and conduct. In particular, it relies upon an asserted incident on 5 February 2024 when the Claimant left the theatre without permission in order to obtain food; an incident on 9 February 2024 when he was observed scratching his head on the back of another nurse during surgery; and an incident on 13 February 2024 when he appeared to be asleep during an ongoing surgical list. The Respondent accordingly states that the dismissal was for reasons of conduct and capability and denies discriminating against the Claimant in any way.

PRELIMINARY MATTERS

[5]The hearing was a hybrid hearing. The Tribunal were present together in Bristol Civil Justice centre, while the parties and witnesses all appeared remotely from a location convenient to them. No issues arose in respect of the technology.

[6]Having completed reading, the Employment Judge notified the parties that one of his family members currently worked for the Claimant’s previous employer. That employer was not the Respondent in the present proceedings, but there was a factual issue before the Tribunal concerning aspects of the Claimant’s conduct while working there.

[7]As the employer in question was not the Respondent, the dates of employment of the family member and the Claimant had not overlapped, and no witnesses were being called from that employer, the Tribunal was satisfied that no conflict of interest arose. The parties were given an opportunity to comment and did not raise any objection.

[8]The Tribunal was referred to a combined bundle of material of 329 pages (the “CB”). Any references in this decision to page numbers will be to the PDF page.

[9]On the second day of the hearing, the Claimant stated that he wished to add a document to the bundle, relating to the admissibility of evidence in his ongoing proceedings before the Nursing and Midwifery Council (“NMC”). The Respondent did not accept that the document was relevant but did not object to the Tribunal having sight of it. We accordingly added the four‑page document to the bundle and indicated that the question of weight and relevance would be a matter for us to determine in due course.

ISSUES

[10]The parties agreed that the matters which fall to be determined by the Tribunal remain as per the Case Management Order (“CMO”) of Regional Employment Judge Pirani dated 28 May 2025, save for one amendment relating to notice pay, namely;10.1 Direct race discrimination10.1.1 The Claimant describes his race as black African.

10.1.2 Did the Respondent do the following things:10.1.2.1 Terminate his employment.

10.1.2.2 Provide inaccurate reports about his performance.

10.1.2.3 Allege that he wanted a white girlfriend.

10.1.2.4 Reject the Claimant’s appeal.

10.1.2.5 Take into account an allegation which was not investigated (the sexual comment).

10.1.3 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 he was treated worse than someone else would have been treated. The Claimant has not named anyone in particular who he says was treated better than he was and therefore relies upon a hypothetical comparator.

10.1.4 If so, was it because of the Claimant’s race (Black African)?

10.1.5 Is the Respondent able to prove a reason for the treatment occurred for a non-discriminatory reason not connected to race?

10.2 Direct sexual orientation discrimination10.2.1 The Claimant describes his sexual orientation as straight.

10.2.2 Did the Respondent do the following things: 10.2.2.1 On 21 February 2024 asked the claimant inappropriate questions about wanting a white girlfriend.

10.2.3 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 he was treated worse than someone else would have been treated. The Claimant has not named anyone in particular who he says was treated better than he was and therefore relies upon a hypothetical comparator.

10.2.4 If so, was it because of the Claimant’s sexual orientation (straight)?

10.2.5 Is the Respondent able to prove a reason for the treatment occurred for a non-discriminatory reason not connected to orientation?

10.3 Wrongful dismissal/notice pay10.3.1 The Claimant says he was told he would be paid notice pay. He says he is still due to be paid one weeks’ notice pay.

10.3.2 The parties agreed that the Claimant has now been paid a sum equal to his notice pay. The Claimant disputes, however, that this constitutes his notice pay as it was not paid until sixteen months after his employment was terminated. He accordingly asserts that his notice pay has not been paid and that the sum that was sent to him should be deducted from his ultimate award of compensation.

10.3.3 The Respondent asserts that the notice pay has been paid.

10.4 Other payments/breach of Contract 10.4.1 There does not appear to be any outstanding claim for wages other than notice pay. However, the Claimant says he is due to be paid £280 for switching his visa.

10.4.1.1 The Claimant says this was agreed with the Respondent.

10.4.1.2 The Respondent says he failed to put a claim in for this prior to dismissal and, in any event, the contractual agreement provides that the amount is only to be repaid if he was employed for 18 months.

FINDINGS OF FACT

[11]The Claimant was employed by the Respondent as a scrub nurse within the theatre department. His duties included preparing operating theatres; maintaining sterility and infection‑control standards; supporting surgeons during procedures by anticipating and providing the correct instruments; undertaking surgical counts; monitoring the sterile field; and working collaboratively with the wider clinical team to ensure patient safety throughout each operative list. He was expected to carry out these functions in accordance with established clinical protocols, the Respondent’s procedures, and the professional standards applicable to registered nurses.

[12]There was relatively broad agreement between the parties in respect of many of the underlying facts. There was no dispute, for example, as to the dates of employment, and that the Claimant did not ultimately complete his probationary period; that issues were raised during his employment in respect of his clinical performance; and that he was dismissed following a meeting held on 21 February 2024.

[13]The parties also agreed that the Claimant was subject to NMC proceedings in relation to alleged conduct issues at his former employer, where he had also worked as a nurse. The allegations before the NMC included that he had slept while on duty; that he had disappeared while on duty for long periods without communicating this; and that he had demonstrated poor infection control (CB179).

[14]We make no findings on the accuracy of these past complaints; we are not hearing an appeal in respect of them and were not provided with any evidence as to their factual basis. We do take into account, however, that the Claimant was subject to these earlier allegations, and that the Respondent was aware of this from an early stage. His line manager Mike Norris, for example, records in his witness statement his concerns about this during the recruitment process (at [2]).

[15]We also take account of the fact that the Claimant, through his representative in those proceedings, accepted at least some of the allegations made before the NMC; and that there were areas of his practice which required improvement; and that the imposition of an interim order with conditions on his practice was justified (CB180). While the Claimant asserted in his oral evidence before us that these concessions merely reflected his acknowledgment, on legal advice, of a prima facie case, it is nonetheless clear that, at the commencement of his employment with the Respondent, concerns had already been raised in respect of his clinical competence, and that the Claimant had accepted that there was at least a case to answer in that regard. We additionally find that the imposition of an interim order, which restricted his ability to practice without conditions, underlines the seriousness of these allegations, which directly related to matters of patient safety.

[16]We are satisfied that the Claimant’s probationary period was initially for a period of three months, consistent with his contract of employment (at [5.1], CB151), and with the fact that this was subsequently extended by one month (for example, as referenced at CB190). While the Claimant stated that the probationary period was for six months, there was no documentary corroboration for this, and it accordingly remained little more than assertion. While we make this finding, however, we do not consider that much turns upon it; it is agreed in any event that the Claimant’s employment was terminated while he remained on probation.

[17]The Claimant was line managed by Mike Norris, a Theatre Manager. We found Mr Norris to be a credible witness who gave his evidence in a clear and straightforward manner, including accepting where he did not know something or may have made an error. We also found that much of what he stated was either not specifically challenged, or was supported by contemporaneous documents. We accordingly place weight on his evidence.

[18]We turn to those documents, as the Claimant specifically alleges in his claim that the Respondent provided inaccurate reports about his performance. In particular, he relies upon two performance review documents which each bear the same date, 4 January 2024 (CB173 and CB175). He suggested that this shows them to have been created after the event, and says that they were not given to him at the time. For his part, Mr Norris stated that any duplication of the date was no more than an error, likely caused by his using a previous report as a template.

[19]We found the Claimant’s case in this regard to be confused. On the one hand, the claimed inaccuracy of these documents was specifically pleaded as one of the things the Respondent had done that amounted to direct discrimination. On the other, he stated in his closing submissions that he did not assert that the documents were fabricated or fraudulent. Furthermore, he suggested that the Tribunal should treat the documents with caution and potentially attach little weight to them, but then relied heavily on their accuracy himself, for example when asserting that they showed that his performance was improving.

[20]Having considered all of these matters, we accept Mr Norris’ evidence that the documents were prepared contemporaneously. There is, for example, an email dated 4 January 2024 attaching the first of these reviews (CB172). In respect of the second document, the metadata suggests that it was created on 30 January 2024 (SB108), consistent with Mr Norris’ oral evidence that there were further meetings during this period. While the Claimant did not specifically accept the dates of all such meetings, he did not dispute in broad terms that they had continued to meet about performance issues at that time. There is accordingly nothing inherently implausible in the suggestion that Mr Norris would have prepared similar review documents, as he had on other occasions.

[21]Mr Norris accepted that the metadata showed that the second document dated 4 January 2024 had not been printed after it was created, and fairly conceded that he could not say for certain, as a result, whether he had provided the Claimant with a physical copy at that stage. We note, however, that the Claimant himself accepted that he was in possession of such a copy by no later than 13 February 2024 (CB285). In circumstances where the document was not created before 30 January 2024 and the Claimant indisputably had it by 13 February 2024, the metadata cannot be accurate in stating that it was last printed on 4 January 2024. We also note Mr Norris’ unchallenged evidence that he would, in any event, have uploaded it to the Claimant’s Workday record, and we accordingly accept that the Claimant was provided with copies of all documents shortly after they were prepared, and in any event by no later than 13 February 2024.

[22]We reject the assertion made by the Claimant in closing that the Respondent’s solicitors had made any concession to the contrary. The passage to which he referred goes no further than accepting that there had been an administrative error in the dates (CB66), which is entirely consistent with Mr Norris’ evidence and does not amount to an acknowledgment that the documents were created retrospectively or were otherwise unreliable.

[23]We accordingly do not find that the Claimant was provided with inaccurate copies of the performance review reports. We instead accept that these were prepared contemporaneously and were provided to the Claimant before the termination of his employment.

[24]We turn to the contents of these reports. They raise a number of serious clinical concerns, including issues with the Claimant’s timekeeping and his awareness of the sterile field (CB173); that he had fallen asleep in theatre (CB175); that he had left the department to have lunch without consulting the list officer; that he had walked in a clean area wearing a dirty surgical mask; and that he had scratched his head on the back of another nurse while they were both scrubbed (all CB188). There was, in this respect, a degree of similarity between these observed behaviours and the allegations within the ongoing NMC proceedings, in relation to which the Claimant had accepted that there was a prima facie case to answer.

[25]The Claimant did not substantially challenge any of these allegations in either his written or oral evidence. In respect of the allegation that he had fallen asleep, he stated that he may have been “flickering” his eyes. He had given the Respondent a broadly similar explanation during his probation review meeting on 21 February 2024, where he is recorded as saying that he had been “falling asleep” and “may have snoozed” but disputed actually sleeping. The Tribunal remained unclear as to the distinction he sought to draw between snoozing and sleeping, and either way he appeared to acknowledge that his eyes may have been closed. He likewise accepted in his evidence that he had left theatre, but asserted that he had sought the permission of another scrub nurse. The only real dispute was therefore whether that person was in a position to grant permission, rather than to the substance that he had left. There was no dispute as to the allegation that he had scratched his head on another nurse.

[26]We remind ourselves that we need not concern ourselves with determining the rights or wrongs of any of these allegations. What is instead relevant for present purposes is that we accept that there was evidence before the Respondent of significant area of concern in respect of the Claimant’s performance. We additionally note that such concerns, within a clinical setting, are potentially serious, carrying as they do a risk of harm to patients. The fact that many of these allegations would amount to inappropriate behaviour within the theatre environment was never directly challenged.

[27]The Claimant instead relied heavily on what he described as positive feedback from Mr Norris, which he stated showed his improving performance. There was, however, a consistent pattern throughout his evidence of selectively quoting mildly positive feedback from the performance reviews, while seemingly ignoring significant criticisms, even where these appeared within the same sentence. For example, he relied upon the comment that his “awareness of the sterile field has improved” but omitted that the sentence ends “but remains poor” (SB175). He highlighted how his “time keeping has improved again” but not how this ended, namely “although he always seems to be rushing into the department and is rarely here at 0755 to start his shift for 8am – this needs to improve” (SB188). He ignored or downplayed that each of the review documents consistently concluded that he would not pass his probation period.

[28]We found the Claimant’s evidence in this regard to reflect, in large part, the Respondent’s own observations within the performance reviews that he appeared not to fully understand the problems, or their importance within his role. When giving evidence and making submissions he appeared almost unaware of the negative aspects of the performance reviews, and instead presented what are self‑evidently critical reviews as if they were a strong indication of his consistently improving performance. He seemingly failed to recognise that the references to improvement, when read in their proper context, were from a very low base and reflected, at best, relatively marginal gains. He also overstated the significance of the efforts that were being made to progress his development, for example in stating that the reference in the action plan of 13 February 2024 that he should start to scrub on laparoscopic cases reflected the fact that he was being advanced to “complex” work. This was entirely contradicted by Mr Norris’ clear evidence that this was relatively ordinary work that any scrub nurse ought to be able to manage.

[29]The Claimant’s apparent lack of awareness of the importance of these clinical issues was perhaps best reflected in the fact that he repeatedly referred to them in oral evidence as no more than attempts at “micromanagement”. It was somewhat striking that the Claimant perceived potentially serious matters of clinical competence and patient safety, such as the requirement to maintain a sterile field, in such a manner.

[30]We accordingly accept Mr Norris’ clear evidence, supported by the contemporaneous documentation, that there were serious concerns about the Claimant’s performance; that he did not appear to recognise the seriousness of these issues; and that he did not demonstrate sufficient improvement, notwithstanding the extensive performance management, to make it likely that he would pass his probationary period.

[31]An incident then occurred with a female colleague on or around 9 February 2024 (CB190). Following this, the Claimant was invited, on 16 February 2024, to attend a meeting on 21 February 2024 (CB190). While the letter inviting the Claimant to this meeting described it as a probation review, the minutes are headed “investigation meeting” (CB192).

[32]The invitation to the meeting referred, among other matters, to two separate incidents in which the Claimant was said to have whispered inappropriate comments into the ear of a female colleague, the second of which was described as the whispering of sexually explicit words. It warned him that a potential outcome of the meeting was termination of employment, and informed him of his right to be accompanied.

[33]That meeting was chaired by the Head of Clinical Services, Monika Kiss. We note in broad terms that we do not place significant weight on the evidence of Ms Kiss where it is not supported by contemporaneous material or the evidence of other witnesses. Her account was often unconvincing, as she frequently stated that she could not remember, or gave an unequivocal answer before subsequently contradicting herself. For example, she initially indicated that there had been two allegations of whispering, as per the invitation letter, but later stated that there had been only one and that she could not remember why she had referred to two in the letter. Having said this, we found her to be unclear in her recollection rather than untruthful, and note that much of her account did not rely solely on her memory but was corroborated in other ways, such as the meeting notes and the evidence of Mr Norris. We do, therefore, place weight on her account where it has been corroborated.

[34]We remained, however, unclear as to whether there was a single allegation of inappropriate behaviour or two separate incidents. The invitation letter referred to two; Ms Kiss ultimately stated that there was only one. Mrs Juliette Hiett, a People Partner and HR advisor, was clearly under the impression that there was only a single incident, as she had complained in an email of 7 March 2024 that the “same allegation” had been included in the letter twice and that this “just looks really poor” (CB208). The meeting notes, however, refer to an incident on 12 February 2024 (CB194), whereas the invitation had stated 9 February 2024. In this respect, it was never fully clarified whether there was one allegation involving both the “licking” comments and the reference to a “white girlfriend”, or whether these were two separate allegations arising on different dates.

[35]We entirely reject, however, the Claimant’s assertion that Mrs Hiett’s email demonstrated an admission by the Respondent that the process was poorly managed. We instead found Mrs Hiett to be a credible witness, who maintained a consistent account throughout. She was clear that her comment about things being “poor” concerned only administrative aspects, such as sending out a letter which did not appear to have been properly proof-read. We find nothing inherently implausible in her evidence to that effect, which was not directly contradicted by any other documentary or witness evidence. As she was not directly involved in the process, the reference in her email to a single incident also suggests nothing more than that this was her understanding of the situation at the time In many respects, the Claimant’s questions and submissions instead suggested a misunderstanding of Mrs Hiett’s position, as he repeatedly referred to her as being responsible for ensuring “legal compliance”; it was unclear whether he recognised that she had acted in no more than an advisory role, and was not a decision maker.

[36]We accept that, regardless of whether there was an allegation of one incident or two, all of the issues were raised at the outset of the 21 February 2024 meeting. This is consistent with the evidence of each of the witnesses, and with the notes of that meeting. We also find, based on the evidence of Mr Norris and Ms Kiss, supported by the meeting notes, that the questions were asked in a neutral and general way, which included asking the Claimant whether he could provide any additional context or information (SB193). We do not find that this line of questioning was incessant, as asserted during the appeal (CB221), as such a description is not consistent with the questions recorded within the contemporaneous notes. We also accept, for the same reasons, that any reference to a “white girlfriend” went no further than Ms Kiss repeating the information about the conversation that had been provided to her. Beyond asserting in relatively generic terms that he was asked “irrelevant” questions about his “race and preferences” the Claimant did not identify the detail of any specific questions which might suggest otherwise, or particularise any alternative account.

[37]We also accept the evidence of Ms Kiss and Mr Norris that any questions which did reference a “white girlfriend” were directed to the Claimant’s understanding of why a discussion about personal matters within the theatre environment might have made colleagues feel uncomfortable. We accordingly do not find that the raising of these issues within this meeting gives rise to any reasonable inference that it had racial connotations.

[38]We acknowledge the Claimant’s concern that this was raised at all during a probation review meeting, and note that another employer might have chosen to address the clinical concerns and the concerns about his behaviour in separate processes. We accept that the Claimant might have been caught somewhat by surprise by the fact that the meeting began with a discussion about these behaviour points, rather than his probationary performance.

[39]We reject, however, the implication in his submissions that he was ambushed, and in a manner which prevented him from fairly accounting for himself in the remainder of the meeting because he was flustered. The allegations are instead expressly referenced in the meeting invite. The evidence of all of the witnesses, including the Claimant, was also that he had been “sent home” following an incident (for example, CB220), and so it is reasonable to infer that he was at least aware that something had occurred.

[40]Furthermore, the Claimant’s case in this regard was again inconsistent; he asserted both that the process was unfair because the matter was not investigated, but also that it was unfair because he was asked about the allegations. Contrary to that assertion, we find that asking for an account of the person being accused is a fair and reasonable part of any investigation.

[41]We additionally remind ourselves that we are not dealing with a complaint of unfair dismissal; whether the process might have been better handled is accordingly relevant only insofar as it might suggest discriminatory behaviour.

[42]We do not find that the Claimant was unfairly put at a disadvantage because the Respondent did not allow him to bring a representative. The meeting notes are consistent in this respect with all of the witness evidence, including that of the Claimant, that he asked to bring a specific colleague but was told that they were not an appropriate representative because they had been involved in the incident in question. The notes do not suggest that the Claimant then asked to bring anyone else, and instead record that he asked to proceed without a representative. The appeal notes similarly record his acknowledgment that he was permitted a representative, but had decided to proceed without one (CB220). We accordingly do not accept that he asked to bring a different named colleague but this was refused, which was raised for the first time during his oral evidence. We instead find that there was no barrier to him bringing an alternative representative, but that he chose not to.

[43]We also take into account that the Claimant was specifically asked during this meeting whether he had been subject to any discriminatory behaviour, and did not raise any concerns (CB197). We recognise the stressful nature of this meeting, and accordingly do not place significant weight upon this answer, but nevertheless note that he did not raise such concerns at the time.

[44]While his representative did then suggest possible unconscious bias during the appeal meeting (SB221), the Claimant himself continued to accept many of the clinical allegations (for example, CB219) and does not allege that those accusations were discriminatory. Where he does raise the “white girlfriend” comment, he acknowledges that this allegation was not proceeded with once he had explained himself (CB222). His complaint also appeared to be that it would not have been against company policy to have a girlfriend, rather than that the questions had any particular racial connotations (CB224).

[45]Taken together, we accept that the Claimant was asked, at the outset of the meeting on 21 February 2024, to account for the allegation (or allegations) of inappropriate whispering. The questions asked were general in nature, were directed to obtaining his explanation, and were consistent with what one would expect at the exploratory stage of an investigation.

[46]Having heard the evidence of both Ms Kiss and Mr Norris, and having considered the contemporaneous meeting notes, we also accept that the Respondent did not then rely on these matters when deciding to dismiss the Claimant. Once he had denied the conduct and no corroborating evidence was available, the issue was set aside and played no operative part in the decision making. We further find that the Claimant himself understood this to be the case, as reflected in his repeated references, both during the internal appeal process (CB222) and in his NMC correspondence (CB283), to the allegation having been “dropped”.

[47]The fact that the allegation was summarised in the written outcome letter does not alter this conclusion. We accept Ms Kiss’ evidence that the reference was no more than a record of matters discussed during the meeting and does not indicate that the allegation formed part of the reasoning. While the letter might have been more clearly expressed in this respect, there is nothing inherently implausible in that explanation, which was not contradicted by any other evidence. Although the drafting might therefore have been clearer, there is nothing in the evidence to suggest that the Respondent treated the allegation as substantiated or relied upon it in reaching its decision.

[48]We accordingly bring these findings together and accept that, at the time the decision to dismiss was taken by Mr Norris and Ms Kiss, the Respondent had clear evidence before it of significant clinical concerns in a previous role, which had led to an NMC referral and restrictions on the Claimant’s practice; that there had been a number of reports of similar poor practice while at the Respondent, each of which the Claimant had accepted in full or at least in part; that the consistent view of his line manager was that these concerns were such that he would not pass probation; and that, even when these issues were highlighted and an improvement plan was put in place, the Claimant did not appear to recognise the seriousness of the concerns.

[49]In such circumstances we find that the decision to dismiss, rather than to further extend the Claimant’s probation, was objectively reasonable, and accordingly reject the suggestion that it gives rise, in and of itself, to an inference that it must have been taken for a discriminatory reason. We additionally reject any suggestion that the Respondent was seeking to justify a pre-determined decision to dismiss the Claimant; such an allegation is entirely contrary to the fact that they had employed him in the first place, notwithstanding the past clinical concerns, and had given him a further chance by extending his probation period, notwithstanding the concerns that already existed.

[50]The Claimant then sought to challenge his dismissal by way of appeal. He does not, however, particularise any suggested flaws in that process, other than that it did not overturn the dismissal. Given that we have found, however, that the dismissal would be justified on the grounds of the performance concerns, we do not find any merit in that assertion. In any event, we note that he was represented during that appeal process and again accepted many of the allegations that had been made. We accordingly find nothing in the appeal process that itself suggests discrimination.

[51]We end our findings of fact by noting that reference was made in the evidence to a comment of Ms Kiss that things were not done a certain way in the UK. The list of issues shows, however, that the Claimant does not rely on this as an alleged incident of discrimination. Furthermore, the context of this comment was not clear, with none of the witnesses able to provide any significant detail as to the circumstances in which it was said. Accordingly, we make no findings on it beyond noting that, even if relied upon, it could not reasonably be interpreted as related to race or sexual orientation.

RELEVANT LAW

[52]Section 13(1) of the Equality Act 2010 provides that a person(a) (A) discriminates against another

(b) (B) if A treats B less favourably than A treats or would treat others, because of a protected characteristic. Race and sexual orientation are protected characteristics under sections 9 and 12 respectively.

[53]The question whether there has been less favourable treatment is an objective one. It ordinarily requires a comparison between the treatment of the Claimant and that of an actual or hypothetical comparator whose circumstances are not materially different, save for the protected characteristic relied upon.

[54]In determining whether less favourable treatment has occurred, the Tribunal must identify the reason, or operative cause, for the treatment complained of. The protected characteristic need not be the sole or even the main reason for the treatment; it is sufficient if it had a significant influence on the decision.

[55]The allocation of the burden of proof is governed by section 136 of the Equality Act 2010. The Tribunal must first consider whether the Claimant has proved facts from which it could conclude, in the absence of an adequate explanation, that the Respondent committed an act of discrimination. Mere assertion or speculation is insufficient; there must be a proper evidential basis for drawing such an inference.

[56]If such facts are established the burden shifts to the Respondent to prove that the treatment complained of was in no sense whatsoever because of the protected characteristic. If the Respondent provides a clear and credible explanation for the treatment, untainted by discrimination, the claim must fail.

[57]In applying these principles, the Tribunal must consider the evidence as a whole and determine whether the facts, taken cumulatively, are capable of supporting an inference of discrimination.

[58]A claim for wrongful dismissal is concerned with whether the employer has breached the contract of employment, and does not require the Tribunal to assess the fairness of the dismissal. The Tribunal’s jurisdiction is confined to determining whether the contractual entitlement existed and, if so, whether it has been satisfied.

[59]Where an employee has been paid a sum equivalent to their contractual notice entitlement, the question is whether that payment satisfies the contractual obligation. The fact that payment is made late does not of itself alter its character as notice pay, nor does it give rise to a further contractual entitlement, though it may have other legal consequences outside the Tribunal’s jurisdiction.

[60]A claim for breach of contract requires the Claimant to establish the existence of a contractual term relied upon, a breach of that term by the Respondent, and loss flowing from that breach. Where the claim concerns an alleged entitlement to reimbursement, the Tribunal must consider the terms and whether the contractual conditions for payment have been met.

[61]The burden of proof rests on the Claimant to establish both contractual entitlement and loss. In the absence of evidence that the contractual conditions were satisfied, or that the loss claimed was incurred, a claim for breach of contract cannot succeed.

CONCLUSIONS

[62]We accordingly apply the facts as we have found them to the relevant law. Direct race discrimination

[63]The Claimant’s case is that the Respondent treated him less favourably because of his race by: terminating his employment; providing inaccurate performance reports; alleging that he wanted a white girlfriend; rejecting his appeal; and taking into account an allegation which he says was not investigated. The burden rests initially on the Claimant to establish facts from which the Tribunal could conclude, in the absence of an adequate explanation, that race was an operative cause of any of the matters complained of.

[64]Having considered each of these matters individually and cumulatively, we do not find that the Claimant has established any factual basis from which an inference of discrimination could properly arise. The decision to dismiss was grounded in extensive and serious concerns about his clinical performance, many of which he accepted in whole or in part. Those concerns were documented consistently over a number of months, pre‑dated the meeting of 21 February 2024, and were recognised by the Claimant’s line manager as sufficiently serious that he would not pass his probation. We have found that those concerns were genuinely held and objectively serious, and that nothing in the surrounding circumstances suggests that race played any part in the decision making.

[65]We reject the submission that the alleged inaccuracy of the performance reports gives rise to any inference of discrimination. We have found that the documents were accurate reflections of contemporaneous concerns, and that the duplication of the date on two reports was no more than an administrative error. The Claimant’s case in this respect was confused and inconsistent, and he relied selectively upon the same documents as evidence of his improvement.

[66]We further reject any suggestion that the raising of the “white girlfriend” allegation provides a basis for an inference of race discrimination. We have found that any such reference was no more than Ms Kiss reading out the content of a colleague’s statement in order to ask the Claimant for his account, and that it was not pursued thereafter. Nothing about the manner in which it was raised, nor the context in which it was asked, supports the contention that it was motivated by race.

[67]We do recognise that a reference to a “white girlfriend” is, in isolation, racial language. However, the question is not whether the words are capable of having racial content, but whether they were used as a vehicle for less favourable treatment because of the Claimant’s race. Having assessed the evidence in detail, we find that the reference was raised solely for the purpose of putting to the Claimant the substance of a colleague’s reported remark, which was said to have made that person feel uncomfortable. The question was phrased neutrally, and was not advanced as any form of criticism or suspicion directed at him. The manner, context, and purpose of the questioning do not support an inference that the Respondent was motivated by the Claimant’s race, or that a hypothetical comparator of a different race would have been treated any differently.

[68]The fact that the appeal did not overturn the dismissal does not assist the Claimant. He identified no procedural failing in the appeal process, was represented throughout it, and again accepted many of the matters relied upon. There is nothing in the appeal officer’s reasoning that could properly give rise to an inference of discriminatory treatment.

[69]We also observe that the Claimant did not identify any actual comparator who was treated more favourably. In those circumstances, the Tribunal must consider whether a hypothetical comparator, namely, an employee of a different race or a different sexual orientation, but in materially the same circumstances, including the same clinical concerns and probationary performance record, would have been treated differently.

[70]Having regard to our findings of fact, we are satisfied that such a hypothetical comparator would have been treated in precisely the same manner. The dismissal decision was grounded in significant and credible concerns about clinical competence, patient safety and professional conduct, all of which would have applied irrespective of race or sexual orientation. There is accordingly no basis upon which the Tribunal could properly infer differential treatment of a comparator of another race or sexual orientation.

[71]We have considered whether the matters relied upon by the Claimant, including the administrative errors in the dating of the performance documents, the internal confusion about whether one or two allegations had been raised, and the reference to him allegedly wanting a “white girlfriend,” could cumulatively give rise to the initial burden. We conclude that they could not. Each of these matters was either neutrally explained, unrelated to any protected characteristic, or incapable of supporting an inference of differential treatment when viewed in its full factual context. None of them, whether individually or cumulatively, is capable of establishing facts from which the Tribunal could properly infer that race or sexual orientation played any part in the Respondent’s decision making.

[72]No other aspect of the Respondent’s conduct, taken at its highest, is capable of supporting an inference of discrimination on either ground, whether viewed individually or together.

[73]Taking these matters together, we find that the Claimant has not established facts from which we could conclude, in the absence of an explanation, that the Respondent treated him less favourably because of his race.

[74]Alternatively, in the event that we are wrong in concluding that the Claimant failed to establish a prima facie case, we are satisfied that the Respondent has, in any event, discharged the burden and has demonstrated, by clear and cogent evidence, that the treatment complained of was in no sense whatsoever because of the Claimant’s race or his sexual orientation. Its actions were grounded exclusively in the extensive and serious concerns regarding the Claimant’s clinical competence, patient safety, awareness of sterile practice, and conduct within the theatre environment. These concerns were documented contemporaneously, accepted in whole or in part by the Claimant himself, and were consistent with issues previously identified by the NMC. We are satisfied that these matters formed the real and operative reason for the decisions taken, and that race played no part in the Respondent’s decision making. Sexual orientation

[75]The Claimant also brings a complaint of direct discrimination because of sexual orientation. His case, as advanced in his witness statement and at the hearing, was that he was subjected to inappropriate questioning about wanting a “white girlfriend” during the meeting of 21 February 2024. However, the Tribunal remained unclear as to how this allegation was said to relate to the protected characteristic of sexual orientation.

[76]In particular, the Claimant did not articulate how the questioning he complained of related to whether he was straight. He did not contend that a person of a different sexual orientation would have been treated any differently, nor did he advance any factual basis from which such an inference could properly be drawn. His submissions instead appeared to conflate questions about relationships or personal preferences with sexual orientation. There was no evidence that any comment was made by any witness referring to, or enquiring into, whether he was straight or otherwise.

[77]We also note that the Claimant repeatedly used the language of “sexual preference” rather than sexual orientation. While we recognise that litigants in person may adopt imprecise terminology, his case never developed beyond a general assertion that questions about wanting a “white girlfriend” must somehow be linked to his sexual orientation. In the absence of any indication as to how this could amount to less favourable treatment because he is straight, the Tribunal cannot infer a connection with the protected characteristic.

[78]We therefore find that the Claimant has not established facts from which we could conclude that he was treated less favourably because of his sexual orientation. In any event, the Respondent has demonstrated that the questions raised were limited to exploring the context of the reported conversation and were not pursued thereafter. We are satisfied that sexual orientation played no part in the Respondent’s treatment of the Claimant. Wrongful dismissal – notice pay

[79]The claim for wrongful dismissal relates solely to the Claimant’s entitlement to notice pay. There is no dispute that a payment equivalent to the Claimant’s contractual notice entitlement has been made (CB302). The Claimant did not dispute the accuracy of the sums paid, nor did he contend that he was contractually entitled to a greater amount.

[80]The Claimant’s position was instead that the payment should not be treated as notice pay because it was made some sixteen months after his dismissal. However, there is no basis for treating a payment of the correct contractual sum as anything other than notice pay merely because it was paid late. There was no evidence before us suggesting that the payment represented anything else, and nothing in the dismissal documentation indicated that he had been denied notice pay.

[81]As of the date of the hearing, the Claimant has accordingly been paid his contractual notice pay in full. The claim for wrongful dismissal is therefore not made out. Breach of contract – visa reimbursement

[82]The Claimant also seeks £280 in respect of visa costs. His case was that the Respondent had agreed to reimburse such costs.

[83]The relevant agreement governing reimbursement (CB148) makes clear that visa costs are only repayable by the Respondent if the employee remains employed for a minimum period of three years. There is no dispute that the Claimant’s employment terminated well before the expiry of that period.

[84]The Claimant appeared at times to misunderstand this provision, implying that because he did not resign, the clause did not apply. However, the contractual requirement relates to the duration of employment, not the manner in which it ended. The only exception relates to compulsory redundancy, which was not what occurred. The fact that he was dismissed rather than resigning does not alter the contractual position.

[85]Furthermore, the Claimant did not provide evidence that he had in fact incurred the specific visa costs claimed, nor that any claim for reimbursement had been approved or processed prior to his dismissal. In the absence of evidence of both contractual entitlement and loss, the breach of contract claim cannot succeed. Final Conclusion

[86]Having regard to all the evidence before us, and for the reasons we have set out, we are satisfied that none of the treatment complained of by the Claimant was because of his race or his sexual orientation. The Respondent has provided clear and credible explanations for its actions, grounded in the serious capability concerns that we have found were genuinely held and supported by contemporaneous evidence. We further find that the Claimant’s contractual notice pay has been paid in full, and that he has not established any contractual entitlement to reimbursement of visa costs. Each of the Claimant’s claims are therefore not well‑founded and are dismissed. J Le Grys