Dr A Iqbal v Greater Glasgow Health Board: 8001073/2025

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8001073/2025

Venue Glasgow

Hearing 20, 21, 22, 23, 24, 27, 29 and 30 April; and 1 May 2026

Between

Dr A IqbalClaimant

Greater Glasgow Health BoardRespondent

Before

Employment Judge L Wiseman

Mr A Hardman (instructed by Advocate) for claimant

Ms A Stobart (instructed by Advocate) for respondent

Date 16 July 2026

JUDGMENT

The tribunal decided to dismiss the claim.

REASONS

[1]The claimant presented a claim to the Employment Tribunal on 1 May 2025 alleging he had been unfairly (constructively) dismissed. An updated paper apart to the claim was presented on 10 October 2025. This clarified the claimant relied on the implied term of trust and confidence being irreparably damaged by the way in which the respondent conducted its internal processes. Paragraph 69 included a list of the 13 actions relied upon by the claimant, including a last straw, being the addition of new allegations to the statement of case when referring to the Annex B process, without proper investigation and against policy.

[2]The respondent entered a response denying the claimant had been unfairly constructively dismissed.

[3]The tribunal heard evidence from:  the claimant;  Dr Jeremy Lynch, Consultant Interventional Neuroradiologist, who was called as an expert witness to speak to the procedures which were the subject of the two Datix reports;  Dr David Dodds, Chief of Medicine for Regional Services, which included the Interventional Neuroradiology unit where the claimant was based;  Dr Bryan Dawson, Clinical Director for Surgical Services and, from August 2022, this included the Institute of Neurosciences (including Interventional Neuroradiology);  Dr Susan Groom, Director of Regional Services which includes Interventional Neuroradiology;  Ms Catherine McLean, General Manager for Neurosciences (which includes Interventional Neuroradiology);  Ms Nicola Bailey, Head of HR for Regional Services and Diagnostics;  Dr Wesley Stuart, Chief of Medicine for the South sector;  Dr Peter Keston, Clinical Lead for Interventional Neuroradiology, who spoke to the two procedures which led to the two Datix reports;  Dr Ross MacDuff, Clinical Director for Imaging at the time of these events, who carried out a preliminary enquiry;  Ms Fiona Paterson, HR Manager;  Professor Alistair Leonard who, at the time of these events, was Chief of Medicine for Diagnostics and  Dr Fiona Roberts, Clinical Director for Laboratories, who carried out a formal investigation into concerns regarding the two Datix reports and concerns raised by Dr Wesley Stuart. (All of the doctors have clinical roles as well as management roles. The clinical roles are not referred to above, unless relevant to the evidence.)

[4]The tribunal was also referred to a large volume of documents produced in a main file and a supplementary file. The documents in the supplementary file are referred to in the Judgment with the prefix S before the page number.

[5]The tribunal, on the basis of the evidence before it, made the following material findings of fact. Material findings of fact are those facts which are relevant to determining the legal issues before the tribunal. Findings of fact

Background

[6]The claimant commenced employment with the respondent on the 1st October 2012 as a Consultant Neuroradiologist in Glasgow. Neuroradiology involves looking at scans of the brain and spine.

[7]The claimant asked the respondent if he could undertake training in Interventional Neuroradiology (INR) which involves using minimally invasive techniques to repair blood vessels when there is an aneurysm and removal of clots in patients with a stroke. The respondent and Dr Dodds agreed and supported the claimant in undertaking all training necessary to become a fully accredited part of the team.

[8]The INR service in Glasgow had been through many difficulties and the plan was for the claimant to return and be part of the team. However, before that happened, the INR service in Glasgow “imploded” and this resulted, in December 2019, in there being no Consultants to run the service in Glasgow.

[9]Dr Dodds met with the claimant in December 2019 (page 115) to explain there was no Glasgow based INR service. Dr Dodds noted the claimant had not followed a conventional training route and he referred to a letter dated 22 July 2019 from two doctors involved in the claimant’s training, where they stated “our collective view is that Dr Iqbal’s training will allow him to work within a collaborative and mutually supportive neurointerventional team.” The issue was that that team simply did not exist in Glasgow at the present time.

[10]Dr Dodds confirmed the respondent would co-operate with NHS Lothian to run and support the service in Glasgow, but noted those Consultants had expressed a view that they were unwilling to provide a mentoring or training role to any Glasgow practitioner. The respondent intended to advertise to recruit Consultant INR posts, and the claimant was told that an application from him would be welcome. However, until then, Dr Dodds explained the claimant would return to a role in Diagnostics because attempting to operate as a sole practitioner in INR would not be wise and there were concerns about bringing the claimant into an environment without Consultant-level peers and which had previously been described as a “toxic” environment (although all those involved in that environment had now left).

[11]Dr Dodds wrote to the claimant again in January 2020 to confirm his return to Diagnostics, but also to confirm they would welcome his application for an INR position when one became available.

[12]The claimant applied for a Consultant INR role in April 2020. Dr Dodds did not sit on the interview panel because he was of the opinion that the appointment of the claimant to the role would introduce a significant negative influence on the progress which had been made to develop the INR service. Dr Dodds’ opinion was based on the fact he had received clinical concerns regarding the claimant from staff within NHS Lothian, who had been involved in supporting the INR service.

[13]The claimant was interviewed for the position but was not successful. The successful applicant subsequently did not proceed with the appointment and the respondent gave further consideration to the claimant. Dr Keston, Mark Devlin and Jennifer Brown, who were on the interview panel, did not consider the claimant suitable for the role given his lack of experience. The respondent decided to address this by providing a further period of training and, on his return from this, the claimant was appointed to the role of Consultant INR in November 2020.

[14]The claimant was not successful in becoming Clinical Lead in 2021 and the role went to one of his colleagues Dr Wasim Izzath. In a subsequent investigation staff noted the claimant’s attitude towards Dr Izzath changed after this and the claimant became disruptive in meetings.

[15]In February 2022, Dr Izzath raised a written concern (page 164) regarding the claimant’s performance at work in relation to a patient case, involving the claimant not recognising when a procedure had gone wrong and refusing to take advice.

[16]In or about the same time, there were discussions within the department regarding the use of external proctors to assist with INR procedures. (Proctors are usually invited to attend a procedure to advise on the use of new equipment: they are not present to take over the medical procedure). Mr Mark Devlin, Consultant Cleft and Maxillofacial Surgeon and Clinical Director, met with the claimant and other Consultants, to raise concerns regarding the claimant’s use of proctors and on the 16 March 2022 (page 172) he confirmed that the use of proctors should stop until further discussion took place. Bullying allegations

[17]In March 2022 the claimant raised allegations of bullying against three colleagues, Mark Devlin (page 174); Oudwin Griffiths (page 178) and Wazim Izzath, page 182. The substance of the bullying allegations against Mark Devlin related to the issue of proctors.

[18]The claimant’s allegations against Oudwin Griffiths involved allegations of not being treated with dignity and respect. The allegations against Wazim Izzath involved allegations of belittling the claimant.

[19]Dr Dodds met with the claimant on the 17th March 2022 to discuss the concerns raised and explained that a Preliminary Enquiry would take place to look into the allegations. This was in accordance with the respondent’s Guidance for managing issues regarding the conduct and competence of Consultant and other career grade Doctors and Dentists. Dr Dodds asked the claimant to provide a statement for the enquiry and this was done.

[20]A preliminary enquiry is not a formal investigation: it is a brief exercise to assist the Chief of Medicine (or whomever) to determine the direction and scope of any subsequent course of action, which may include a decision to invoke a formal investigation. The preliminary investigation should be limited to gathering the basic information which will assist the Chief of Medicine in reaching the decision.

[21]Dr Mike Leach undertook the preliminary enquiry into the claimant’s bullying complaint and he produced a Report in June 2022. A separate report was produced in respect of each person complained of: the report in respect of Mark Devlin was produced at page 251; the report in respect of Wazim Izzath was produced at page 257 and the report in respect of Oudwin Griffiths was produced at page 264.

[22]Dr Leach prepared a preliminary enquiry feedback document (page 250) which was to be provided to the claimant. This document confirmed that in respect of all allegations against the three individuals, no evidence had been found to support the allegations.

[23]The feedback document was prepared because the claimant was not entitled to be provided with a copy of the preliminary enquiry record prepared in respect of the allegations made against the three individuals. The respondent’s preliminary enquiry guidance provides that a copy of the report is for the individual who has been the subject of the complaint: it is not for the person who made the complaint. This is in accordance with the respondent’s Information Sharing protocol.

[24]Dr Dodds and Ms Fiona Paterson, HR, invited the claimant to meet on 5 July 2022, to provide feedback on the preliminary enquiry process, not only in terms of the outcome of the enquiry into the bullying complaint but also in relation to the fact Dr Leach, who had conducted the preliminary enquiry into the claimant’s bullying complaint, had informed Dr Dodds that a large number of governance concerns regarding the claimant had been raised by those he had interviewed (see below). The meeting was postponed due to the claimant not being available. It was rearranged for the following day, but this had to be postponed because Dr Dodds had covid. The claimant was then on a three week period of annual leave and the meeting could not be re-arranged until 3 August 2022.

[25]Dr Dodds met with the claimant on 3 August and wrote to him following that meeting (page 287). Dr Dodds, in that letter, confirmed the outcome of the preliminary enquiry into the bullying complaint had been that no evidence of bullying behaviour towards the claimant had been found. Dr Dodds confirmed that as a result of this he did not intend to take any further action regarding the complaint, although the claimant had the right to take up the matter under the respondent’s Harassment and Bullying policy. Dr Dodds also advised the claimant that concerns had been raised with him regarding the claimant (see below – governance/patient safety concerns raised by Dr Leach to Dr Dodds).

[26]The claimant’s BMA representative, by email of 15 August 2022, informed the respondent that the claimant wished to proceed with a formal bullying complaint, and requested the respondent commence a formal investigation. The formal investigation was carried out in accordance with the respondent’s NHSScotland Workforce Policies Investigation Process. (See below – formal bullying investigation outcome) Governance/patient safety concerns regarding the claimant raised by Dr Leach to Dr Dodds

[27]Dr Dodds, at the meeting with the claimant on 3 August, confirmed that he had been advised there were concerns regarding the claimant’s work, relating to direct clinical care and indirect clinical care. Dr Dodds, in the letter sent after the meeting (page 287), summarised the nature of the concerns. For example, under direct clinical care, the following points were noted:  Clinical decision making is questionable;  A reluctance to accept advice or assistance from colleagues when you get into difficulty with a case/procedure;  Your communication is poor and you do not listen well;  You wish to undertake procedures your way, outwith agreed departmental policy and procedures;  You are not good at teamworking and  Your behaviour risks hindering the re-establishment of an independent service.

[28]Dr Dodds advised the claimant that the issues gave him serious cause for concern and he considered that he had two options available to him:(i) was to initiate a disciplinary process against the claimant to allow all of the matters to be fully investigated, during which time the claimant would be suspended from all clinical duties or

(ii) to initiate a supported improvement plan with a view to improving the claimant’s conduct and performance and re-integrating him fully into the department. This would be accompanied with a restriction on the claimant’s clinical duties, in that he would not undertake any elective procedures but could continue to undertake on call work and acute work only.

[29]Dr Dodds confirmed that his preference was option (ii). Dr Dodds was very keen to try to resolve the concerns through a supported improvement plan because he was keen to try to maintain the claimant within the service, and he viewed suspension as being a last resort. Dr Dodds had asked the claimant’s colleagues in the department whether they would co-operate with a supported improvement plan, and they had agreed. Dr Dodds told the claimant the supported improvement plan had been agreed with the department and he was looking for the claimant to co-operate with it.

[30]Dr Dodds acknowledged the claimant raised concerns that he [Dr Dodds] was acting on complaints raised by colleagues who had been under investigation in the bullying complaint, however Dr Dodds advised the claimant that he had a duty to act where there were clinical governance concerns in the department and where patient safety could be compromised. The claimant accepted that Dr Dodds was required to take action when concerns were raised with him: he had a duty to manage perceived risk. The claimant also accepted Dr Dodds wanted to resolve matters informally.

[31]There was agreement that the claimant be given time to consider what had been said and that there would be a further meeting early the following week.

[32]Dr Dodds had, in reaching the decision regarding restriction of the claimant’s duties, had regard to the letter from The Leeds Teaching Hospital NHS Trust (page 109) where the claimant had carried out training to improve his technical skills. The letter included the following statements: “… I have no reservations in recommending that Ahmed is suitable to work as a solo operator for acute intracranial aneurysm treatment. This comes with a caveat that an aneurysm can only be regarded as simple once you have finished treating it without complications! There are often situations as a neurointerventionist when what may appear to be a simple treatment is more difficult and complex than one initially perceives. This is not an issue of experience or training, this is the nature of the activity we engage in. Therefore, our collective view is that Dr Iqbal’s training will allow him to work within a collaborative and mutually supportive neurointerventional team – but within this team he is certainly competent to provide an acute aneurysm coiling service. He will need the support of his neurosurgical and neurointerventional colleagues …”

[33]Dr Dodds took from this letter, and discussions with the local team, that the main area of concern was elective work, but that the claimant could continue with acute work and on call duties.

[34]The claimant’s BMA (British Medical Association) representative, who had accompanied him to the meeting with Dr Dodds on 3 August, advised Dr Dodds, in an email dated 5 August (page 293) that they wished to escalate the bullying complaint to Dr Scott Davidson, Associate Medical Director, to instigate a formal investigation because they considered the preliminary enquiry had not been conducted appropriately and had been excessively lengthy.

[35]The email went on to say they were disappointed that no further detail had been forthcoming regarding the governance concerns, which would allow the claimant to consider and respond. The representative asked for these details to be provided to the claimant without delay.

[36]The representative also expressed concern about the restrictions which had been placed on the claimant which were described as “punitive and illogical” because if the claimant was competent to operate in an emergency scenario, it was to be expected that he would be competent to operate electively.

[37]The email concluded by asking that no restrictions be placed on the claimant until the full detail of the concerns were provided in writing and further steps had been taken to explore these.

[38]Dr Dodds replied to the email on 18 August (page 441) to confirm that he would progress the claimant’s request to initiate a formal investigation into the bullying complaint. Dr Dodds further confirmed that he would ask Dr Bryan Dawson, Clinical Director INS Surgical Services to assume line management responsibility for the claimant on an interim basis whilst the investigation took place.

[39]Dr Dodds also confirmed that it had always been his intention to meet with the claimant to discuss the concerns in detail. A brief outline of the concerns had been provided at the meeting on 3 August and he had made clear to the claimant that a further meeting would take place early the following week to explore the concerns and agree how to move forward. Dr Dodds advised that he was not withholding information from the claimant, but that the concerns would be fully discussed when they met.

[40]Dr Dodds concluded his response by reiterating his desire to work together to resolve any issues informally through a Supported Improvement Plan and to have the claimant return to full duties as soon as possible. The claimant accepted he had been told by Dr Dodds that once the supported improvement plan was in place, the details of the concerns would be shared with him. Dr Dodds asked the claimant and his representative to contact Dr Dodds’ secretary to discuss availability to meet.

[41]Dr Dodds met with the claimant and his representative again on 20 September: it had not been possible to meet any earlier due to various periods of annual leave from all parties required to attend. The purpose of the meeting was to explain to the claimant in detail each of the concerns brought forward by Dr Leach, who had led the preliminary enquiry.

[42]Dr Dodds followed up the meeting by writing to the claimant (page 320) to summarise what had happened. The letter included details of the concerns and confirmation from Dr Dodds that the concerns having been raised with him, it was essential for him, from a governance perspective, to take immediate action. This had led to the decision to restrict the claimant’s practice.

[43]Dr Dodds noted in the letter that the claimant’s representative had asked for details of the 7 patient cases referred to, to be shared. Dr Dodds, in reply, noted the cases were highly technical in nature and that he would need input from the team; however, the cases would be integral to any supported improvement plan as a means to highlight deficiencies and possible corrective action. The claimant’s representative sought details of all the concerns and made clear that he considered that would be necessary before the claimant could respond.

[44]Ms Paterson, HR representative in attendance at the meeting to support Dr Dodds, advised that it was not possible to share the detail from the preliminary enquiry.

[45]Dr Dodds subsequently confirmed that since they had first met in August, the claimant had decided to formally raise the bullying complaint. This had the consequence of frustrating the supported improvement plan because it would not be appropriate to ask the claimant’s colleagues to take forward a supported improvement plan whilst they were under investigation. The claimant agreed a supported improvement plan would not, in the circumstances, be appropriate, but he considered the imposition of the restrictions to be punitive. This left matters in a very difficult position because the concerns raised could not be ignored and in the meantime, pending the outcome of the formal investigation of the bullying complaint, the restrictions which had been placed on the claimant’s practice would continue. Formal bullying investigation outcome

[46]The claimant’s BMA representative advised the respondent, on 15 August 2022, that the claimant wished to proceed with a formal bullying complaint which meant the complaint would be formally investigated in accordance with the respondent’s NHSScotland Workforce Policies Investigation Process.

[47]Dr Dodds asked Dr Wesley Stuart to commission an investigation and receive a report. Dr Stuart appointed Dr Christopher Wilson to undertake the investigation. Dr Wilson interviewed a large number of witnesses (18 in total) and presented an investigation outcome report into the bullying allegations on the 8th March 2023. The report concluded there was no evidence to support the claimant’s allegations of bullying and harassment.

[48]Dr Wilson, in the report, highlighted concerns about the claimant’s behaviour with colleagues and a lack of insight. Dr Wilson believed the claimant was “a doctor in difficulty”. Dr Wilson raised his concerns with Dr Stuart (pages 691; 710 and 739).

[49]Dr Stuart read the report and all of the documents and he reached the conclusion that the claimant was potentially struggling. Dr Stuart, in particular, considered the information suggested the claimant was becoming isolated, which is always a red flag, and that he had no insight, which would make him very difficult to work with. Dr Stuart considered the claimant was a doctor who needed some support. The claimant accepted that a doctor must, if issues are raised in any forum, pass them on and so he accepted that Dr Stuart correctly escalated the concerns.

[50]Dr Stuart met with the claimant on 6 April 2023 to give him the outcome of the formal investigation, which was confirmed in writing on 12 April (page 768). The letter set out each allegation, the outcome and the reason for the outcome.

[51]Dr Stuart went on to inform the claimant that he had concerns, when reading testimony provided by witnesses, that the claimant may get himself and patients into trouble. Dr Stuart summarised an overall feeling that the claimant was struggling to cope and when colleagues had tried to help, he had either not recognised that he needed help or had not accepted it: this had led to decision-making before, during and after procedures that made him concerned. Dr Stuart confirmed that he could not ignore what he had read and he had a professional responsibility to protect patient safety by escalating the concerns: the claimant’s representative acknowledged this. Dr Stuart advised he would be submitting his concerns in writing to Ms Susan Groom, Director, Regional Services and that she would take forward any further process and discussions with the claimant.

[52]Dr Stuart sent an email to Ms Susan Groom on 2 May 2023 (page 810) advising that from reading the report and transcripts of the interviews, some patterns had emerged as follows:  He seems to see any questioning of his decisions as a threat, rather than constructive clinical discourse. This response occurred in MDTs (multi-disciplinary meetings) and during procedures.  The need for an external proctor to be present for a number of cases is worth noting, especially as there are colleagues on site and in Lothian who may have been able to help.  There appears to be a reluctance to seek help during a procedure, eg those that have become prolonged.  He appears isolated within the team.

[53]Dr Stuart went on to say that he did not get the feeling the claimant had much insight into his behaviour and how others consequently perceived him. Dr Stuart felt that the steps the claimant took to keep control of his own work, including seeking to distance local team members from various parts of patient management and frequently turning to external proctors, indicated a degree of understanding that all was not well. Dr Stuart confirmed his perception that the claimant was a doctor who was struggling in his role and unable to cope with comment or advice.

[54]Dr Groom would usually take such issues to her line manager, but as that was Dr Dodds, she decided to take the matter up with Dr Scott Davidson, Deputy Medical Director, Acute Services. Dr Groom forwarded the email from Dr Stuart to Dr Davidson and also referred to having a letter from Dr Mark Devlin raising similar concerns. Dr Davidson confirmed to Dr Groom that he would take matters forward from there. (See below – preliminary enquiry into concerns raised) Grievance against Dr Dodds

[55]The claimant raised a grievance against Dr Dodds on 1 March 2023. The first stage of the respondent’s policy is early resolution to see if it is possible to resolve matters. Dr Susan Groom was asked to undertake this stage of the procedure. She met with the claimant to understand his grievance and the resolution he wanted. She also received 80 pages of documents from the claimant.

[56]The claimant’s grievance focussed on two points: first, that he had not been given enough information to allow him to understand the concerns which had led to the restrictions being put in place and, second, his concern regarding the length of time the restriction would be in place and that it would lead to deskilling.

[57]Dr Groom met with Dr Dodds and understood he had provided information to the claimant, but could not go into the level of detail sought by the claimant because the documents from the preliminary enquiry were confidential. Dr Groom double checked this with the Deputy Director of HR who confirmed that was correct, and was particularly so given there was an ongoing procedure regarding that matter.

[58]Dr Groom confirmed to the claimant and his representative, at a meeting on 7 February 2023, that no further details of the concerns raised during the preliminary enquiry could be provided and the reason for this.

[59]There was no early resolution of the grievance and so a formal investigation into the grievance was conducted by Ms Ann Traquair-Smith (Director in Diagnostics). She produced a report on 20 July 2023 and recommended the stage 1 grievance panel reconvene to consider the investigation report and confirm the outcome.

[60]This duly happened and an outcome letter was sent to the claimant (page 1285). The letter set out each point raised in the grievance, information regarding the point and the decision reached. One of the points raised by the claimant was that Dr Dodds did not provide him with the precise details for the reason for the alleged governance concerns or commence an appropriate investigation. It was noted that Dr Dodds had provided evidence of concerns raised regarding the claimant’s practice: for example, in the letter of 4 August, a summary of concerns had been provided. Professor McKay noted that it was his view that the claimant should have been provided with additional detail to allow him to fully understand and respond appropriately and to make a decision regarding the options presented by Dr Dodds. Professor McKay also noted his view that Dr Dodds should have considered a preliminary enquiry as the next step rather than the option of a supported improvement plan, but he also believed Dr Dodds had taken the action that he believed was appropriate at the time and that he had sought HR advice on this. It was also noted that Dr Dodds was at the time committed to supporting the claimant to continue to remain within the department and to address the concerns raised. On that basis this point of the grievance was partially upheld.

[61]The claimant took the grievance to the next stage of the procedure and the stage 2 grievance hearing was heard on 5 March 2024. The claimant was notified of the outcome by letter (page 1625). The outcome of the stage 2 process was the same as the outcome of the stage 1 process. Suspension

[62]On 17 April 2023 a Datix Incident Form was submitted (page 777). The incident concerned an emergency thrombectomy procedure (being carried out by the claimant) and raised a number of concerns regarding what had, and had not, happened during that procedure.

[63]On 19 May 2023 a second Datix Incident form was submitted (page 826) concerning a procedure being carried out by the claimant.

[64]These matters were escalated by the Lead Radiographer in attendance during the procedures, to his line manager, Sam Atkinson, Clinical Services Manager, who in turn escalated them to Dr Dawson. Dr Dawson emailed his line manager, Dr Dodds (page 828) to provide some detail about what he had been told and his concern that the claimant had not sought help from one of his colleagues, which mirrored concerns which had already been expressed. Dr Dawson concluded by saying he thought they should meet with the claimant “to discuss these cases and why he fails to seek help from colleagues when in difficulty as this is a matter of serious concern for patient safety”. Dr Dodds did not respond to this email because he was involved in the grievance process and considered it not appropriate to reply.

[65]Dr Dawson’s concerns were escalated to senior management and the suggestion of meeting with the claimant was overtaken by the fact he received an instruction from Dr Scott Davidson, Deputy Medical Director, Acute Services, to carry out a Suspension Risk Assessment (page 851). Dr Dawson was provided with a copy of the relevant policy and documents for suspension. He and Cathy McLean, Interim General Manager, completed the risk assessment. The suspension risk assessment form provided outline details of the case for consideration and referred to the two clinical incidents reported through the Datix system, and to the fact the claimant’s clinical practice was currently restricted. The form went on to set out that there were three options to be considered: option 1 was to suspend due to the nature of the allegation, there being no alternative but to suspend; option 2 was not to suspend and to remain in current post/restrict duties in current post and option 3 was not to suspend and to move to an alternate area/site/post whilst investigation was ongoing.

[66]The form was completed with considerations under each option. In option 1, it was noted that suspension allowed for a full removal from site whilst an investigation took place, and whilst this may have an effect on the claimant’s personal wellbeing, it was the most immediate way to protect against patient harm. The risk arising from this option would be managed per the policy and the claimant would be assigned a point of contact to liaise within the service.

[67]In option 2, it was noted that the claimant’s practice could be further restricted to prevent operation cover, but the claimant’s practice was already restricted and this had not been sufficient to date. It was further noted that it was not clear that the claimant had the confidence of his peers to assume responsibilities on behalf of consultant colleagues. The risk of this option was that there was no confidence that if the claimant encountered further difficulty, he would seek help from a colleague.

[68]In option 3 it was noted that the claimant could be moved to an alternative department, but given the claimant’s relationships with colleagues in other available departments (INS radiology) it was judged that this would not lead to a constructive workplace culture whilst the investigation was ongoing. A vulnerable member of staff had already been moved from INR to Diagnostics and it would not have been appropriate to move the claimant to that department. It was noted that it had been judged that it was in the interests of patient safety that the claimant was moved off clinical duties. The risk in this option was that the claimant would still be resident on INS as his qualifications and competencies allowed him to report on matters relating to neuroradiology. Previous relationships that the claimant had would make this transition very difficult to manage. His presence on site would have had to be managed to ensure that the investigation was not compromised.

[69]The decision was made that option 1 was the most appropriate action because of the significant clinical concerns, the existing restrictions on his practice and the fact there were limited other options to allow the claimant to continue his work that did not detrimentally affect the safe running of the department. An option of “reporting only” was discussed by the senior management team but it was determined that the levels of trust within the department were so low that this would not be a workable option for the department.

[70]Dr Dawson does not have authority to suspend the claimant. He sent the risk assessment to Nicola Bailey, Head of HR. A decision to suspend is normally made by the Chief of Medicine, but because of the grievance against Dr Dodds, Dr Scott Davidson, Deputy Medical Director, became involved. Dr Davidson took the decision to suspend the claimant because of the concerns raised in the two Datix Incident forms, and the patient safety concerns raised by Dr Stuart.

[71]Dr Sam Atkinson was appointed, with the claimant’s agreement, to be the claimant’s designated contact person.

[72]The NHSScotland Guide to Suspension was produced at page 1832. The policy provides that suspension should be a last resort after consideration of how to mitigate risk during the course of a investigation. Examples of where suspension might be used included where there were allegations of clinical incompetence which posed a significant risk to patient safety.

[73]The policy also provided that suspension will always be for as short a period as is possible, although where ongoing suspension was appropriate, suspension must be reviewed on a regular basis in accordance with the suspension record. “Only in exceptional circumstances should an employee be suspended for more than four calendar weeks, and this must be discussed with the HR representative”.

[74]The respondent met with the claimant and his representative on 23 May 2023 to inform him of his suspension. This was confirmed in a letter (page 860). The claimant was also advised that the suspension would be for as short a period as possible, and that it would be reviewed on a regular basis. The letter also confirmed that a preliminary enquiry would be arranged regarding the two incidents reported via the datix system and the concerns raised by Dr Stuart.

[75]The claimant was suspended from 23 May 2023 until August 2024.

[76]The respondent is obliged to complete a Submission to the Scottish Government each month to record the suspension of a doctor and to update on the situation. The respondent complied with this obligation.

[77]The respondent also reviewed the claimant’s suspension: this is a management function and does not involve meeting with the claimant. The claimant’s suspension was reviewed regularly but until the preliminary enquiry had been completed there was nothing new to consider. The suspension was reviewed upon completion of the preliminary enquiry and discussed with Dr Scott Davidson. He was of the opinion that given the serious nature of the concerns, the claimant should remain suspended until the formal investigation had concluded.

[78]The claimant’s representative contacted the Chief Executive, Ms Jane Grant, on 21 June 2024 (page 1743) to voice concern at the delay. Ms Grant sent this to the Director of HR, who in turn asked Ms Bailey, to provide an update/timeline. Ms Bailey prepared a briefing note dated 24 June 2024 (page 1748) which set out the sequence of events and concerns. The briefing note advised that Dr Roberts had completed her investigation and reported to Professor Leonard, who had decided the matter should proceed under Annex B, and that in those circumstances the suspension could be lifted and arrangements would be made to support the claimant to return from suspension to an alternative role. Preliminary enquiry into the two datix incidents and other concerns raised

[79]Professor Alistair Leonard, Chief of Medicine, Diagnostics, was asked to commission a preliminary enquiry to ascertain whether there was sufficient information to decide if there was a case to answer, or if further information was needed. Professor Leonard asked Dr Ross MacDuff, Clinical Director, Imaging, to carry out the preliminary enquiry.

[80]Dr MacDuff emailed the claimant on 7 June 2023 (page 899) attaching an invitation to attend a preliminary enquiry meeting. Dr MacDuff did not receive a response to that email, and sent a chaser email on 13 June (page 899). Dr MacDuff had sent those emails to the claimant’s work email. Dr MacDuff was not aware the claimant did not have access to that email during the period of his suspension. Dr MacDuff was given an alternative email address to use for the claimant and he sent the invitation to attend a preliminary enquiry on the 4 July, to that address on 20 June (page 910).

[81]The claimant’s representative (Dr Rod McBain, Medicolegal Consultant) replied by email of 21 June (page 914) seeking further information regarding the datix and the other concerns. Dr MacDuff sought advice from HR and was advised that the level of detail being sought was not necessary for a preliminary enquiry. Dr MacDuff responded to the claimant’s representative on 26 June (page 921) to confirm that he was conducting a preliminary enquiry and providing a summary of the details of the two incidents reported through the datix system.

[82]Dr MacDuff’s response did not satisfy the claimant and his representative, who sent a further email on 3 July (page 929) confirming they could not attend the meeting the following day without further information being provided. The representative acknowledged this would mean a delay to the meeting in circumstances where Dr MacDuff was not available the following week, and thereafter the claimant would be on annual leave for three weeks, immediately followed by the representative’s period of two weeks’ annual leave. The earliest time they could meet would be the week commencing 21st August.

[83]Dr MacDuff responded on 4 July (page 934) to say that whilst he did not consider the detailed datix reports necessary for a preliminary enquiry, he had attached them, and confirmed the claimant’s access to patient systems had been reinstated. He also confirmed a meeting on 22 August.

[84]A preliminary enquiry meeting was held on 22 August where the claimant was asked to address the concerns regarding patient safety and escalation during INR procedures (the two Datix reports) and the concerns which had been raised by Dr Stuart.

[85]Dr MacDuff sent his preliminary enquiry report to Professor Leonard on the 25 August 2023 (page 1069).

[86]Professor Leonard considered insufficient information had been gathered during the preliminary enquiry to allow him to decide if there was a case to answer, and so he instructed a full investigation take place. Professor Leonard wrote to the claimant on 7 September (page 1076) to confirm the outcome of the preliminary enquiry. He confirmed his view that there was sufficient evidence to merit a further formal investigation. He also confirmed that the purpose of the investigation would be to gather evidence to understand what happened and to determine the seriousness of the matter, and depending on the outcome of the investigation he would then decide whether the matter needed to be considered further in line with Annex B for less serious allegations about professional conduct or competence or Annex C for allegations concerning serious professional conduct or competence. Professor Leonard confirmed he had appointed Dr Fiona Roberts, Clinical Director, Laboratories, to conduct the investigation. Formal investigation into concerns

[87]Professor Leonard emailed Dr Roberts on 5 September (page 1075) to ask if she would be willing to conduct the formal investigation. Dr Roberts agreed and was sent the terms of reference (page 1074) which referred to the two datix, where the area of concern was identified as being “decision making during procedures, competence to perform procedures, potential patient safety concerns”; and, more general concerns, which were working as part of the INS team and use of proctors for procedures.

[88]There was some delay in Dr Roberts commencing the investigation process because she had to wait for someone from HR to be appointed to support her in the process. The claimant’s representative emailed Dr Roberts on 2 October (page 1741) to seek an update. Dr Roberts responded on 4 October to say she was waiting for someone from HR to be appointed and once that happened there would be a planning meeting and she would then advise of next steps.

[89]Dr Roberts chased up this matter with HR and was advised by Ms Nicola Bailey, on 5 October, that Ms Ruth Campbell had been appointed to support her.

[90]Dr Roberts had regard to the Workforce Policies Investigation process (page 1838) which, although not applicable to medical staff, provided a helpful framework for the conduct of an investigation. Part of the policy provides for an “investigation planning meeting” and states that the investigation team will meet to plan the investigation. The investigation team is the person conducting the investigation and an HR representative: the employee who is the subject of the investigation is not party to the planning meeting.

[91]Dr Roberts met with Ms Ruth Campbell, HR representative appointed to support Dr Roberts, for a planning meeting towards the end of October, and they discussed the terms of reference, they read the datix reports and made a list of likely people to interview and they planned a meeting with the claimant. Dr Roberts then wrote to the claimant on 30 October (page 1239) to invite him to a meeting on 14 November.

[92]The claimant’s representative responded on 1 November (page 1244) to request a postponement of the meeting until early December.

[93]Dr Roberts agreed to the request and the meeting was re-arranged for 4 December. She also agreed to an extension of time for the claimant to submit his statement for the meeting.

[94]The claimant’s representative sent the claimant’s statement, bundle of supporting documents and further documents to Dr Roberts on 29 November (page 1307). Dr Roberts did not have time to read the significant volume of documents prior to meeting on the Monday and so she confirmed there would be a second meeting and all of the documents would be reviewed prior to that meeting.

[95]Dr Roberts met with the claimant and his representative on 4 December. Dr Roberts then undertook a series of interviews with the claimant; Dr Stuart, Chief of Medicine; Ms Taylor, Floor Nurse; Dr Werstler, Consultant Anaesthetic; Mr Buchanan, Neuroradiographer; Dr Izzath, Consultant INR; Dr Mohammed, Consultant INR; Dr Devlin, Consultant Cleft/Maxillofacial Surgeon; Dr Keston, Consultant INR; Dr Brown, Consultant Neurosurgeon; Mr Griffiths, Senior Clinical Nurse Specialist; Dr Christie, Consultant Radiologist; Dr Simpson, Consultant Anaesthetist; Mr Broadfoot, General Manager and Dr Dodds, Chief of Medicine.

[96]Dr Roberts had a period of annual leave in January 2024 and met with the claimant and his representative on 13 February. A note of that meeting was produced at page 514. The claimant was sent the notes to agree and, having made a number of changes to the notes, he signed them in March 2024. The purpose of the meeting was for Dr Roberts to discuss with the claimant some of the issues raised by witnesses during their interviews.

[97]Dr Roberts had to have surgery on 19 February, followed by a six week absence from work.

[98]One of the issues raised with Dr Roberts was the differing views from the claimant and Mr Buchanan regarding the department’s abandoned procedures rate for Consultants. The claimant advised he was within the national average, whereas Mr Buchanan spoke to a number of procedures abandoned by the claimant. In order to explore this further a review was undertaken of the department’s log book and it was noted that in the period from November 2000 to December 2023 there were 14 abandoned procedures in which the claimant was involved, whereas there were 9 for other clinicians. The reasons for the procedures, undertaken by other clinicians, being abandoned related in the main to patients improving and no longer requiring treatment.

[99]The claimant provided his log book to Dr Roberts and this was reviewed by Ms Campbell and Mr Buchanan on 20 March. It was noted that in relation to these procedures, and under the “complications” column in the log book, the claimant had recorded “none”. In addition to this, Dr Roberts was surprised to learn the log book did not include the two datix incidents.

[100]Dr Roberts considered it appropriate to ask two further questions of the claimant: firstly, where he would have kept a note of abandoned procedures, because these were not in the log book he had provided and, second, if he had any recollections of 25 February 2022, which had been classed by Mr Buchanan as a significant event (where the claimant hit a stent and had required a huge level of support) because the claimant had noted “no complication” against this date.

[101]The claimant’s representative responded to the two questions on 29 April, and advised the claimant’s log book was a record of cases kept for the claimant’s own personal development and for auditing purposes. The cases recorded were those in which intervention had been carried out in order to follow up the short and long term efficacy of treatment. Not every case was therefore included. The representative queried why the second question was being raised when it was not part of the investigation.

[102]Dr Roberts decided not to pursue this matter because she felt there was sufficient information in her report and that the case would be sent to Professor Leonard to decide which Annex process to follow, where the whole matter would be reviewed a clinical expert.

[103]One of the documents gathered during the investigation was the claimant’s appraisal for 2022/23 (page 462) and 2023/24 (page 1300). The appraisal comprises a Form 4, which is completed by the appraiser. Both appraisals had been completed by Dr Alexander Crighton.

[104]The first appraisal, under the heading Safety and Quality, noted the claimant was to “look to report Significant Events that may be Near Miss situations rather than just look for very serious incidents. In this way areas for service improvement can be found and other adverse events avoided”.

[105]Dr Roberts noted that in the second appraisal, where the appraisee is asked to indicate the number of significant events which had occurred in that year, the claimant had responded “zero”. Dr Roberts found this surprising given the fact of the two datix incidents and the fact of what had been stated in the previous appraisal.

[106]Dr Roberts asked the claimant about this during the second meeting and he responded that the comment in the appraisal had been in the context of underselling himself and the incidents were not significant enough. Dr Roberts did not consider this addressed why, having been told to include incidents regardless of severity, so he could reflect and learn from this, the claimant had not included the two datix incidents. Dr Roberts concluded the claimant, in this respect, had been economical with the truth.

[107]Dr Roberts did not interview Dr Crighton and did not see the letter from him which the claimant produced for this hearing.

[108]Dr Roberts emailed the claimant on 18 February (page 1660) to thank him for meeting with her on 13 February, and including the notes of the meeting (page 514) him to amend/agree and return within 14 days.

[109]The claimant’s representative responded to thank Dr Roberts for her prompt attention to this and to seek an extension to the time for returning the notes due to a period of annual leave for the claimant. Ms Campbell, in Dr Roberts’ absence, agreed to the requested extension until 18 March.

[110]The notes were returned with many corrections/amendments, most of which were minor. The claimant had, however, included a large amendment (page 525) which was additional information which had not been discussed in the meeting. He also attached a two page statement (page 526) which Dr Roberts did not recall having been read out.

[111]The notes of the first meeting with the claimant had also been sent to him for agreement (page 1493). The notes record at page 1502, that the discussion had moved on to the second datix incident. Dr Roberts was noted as asking “why do you think staff were unable to approach you?” and the claimant was noted as replying “I have always had staff approaching me and I am not unapproachable, I feel these incidents are malicious and I feel this would happen no matter what I had done”.

[112]Dr Roberts concluded her investigation report on 3 June 2024 (page 1694) and sent it to Professor Leonard on that date for him to determine the seriousness of the professional conduct or competence and whether the matter should be dealt with under Annex B or Annex C of NHS Circular No 1990 (PCS) 8.

[113]Dr Roberts, in her investigation report, set out each allegation and her findings and conclusions. In relation to the datix one incident, Dr Roberts noted the claimant, during his interview, advised that he did not consider the datix as an incident and he would not include it in his appraisal as it was not “significant enough”. He described the datix report as a “conspiracy” against him. Dr Roberts concluded the claimant’s initial attempt at vascular access was not performed in a way that would be considered best practice. The claimant’s actions following the complication were reasonable, but he did not fully explain his actions to the team in the room at that time and did not attempt to contact a fellow colleague which may have been a more time sensitive solution (although the claimant stated that none of his colleagues were available). There was evidence that the claimant did not reflect appropriately on this Datix, rather considering it as part of a “conspiracy” against him. Some of his comments also suggested a lack of regard for the non-medical team members.

[114]Dr Roberts concluded, in relation to the second Datix, that the claimant attempted a procedure he had not routinely undertaken and did not seek support from a colleague. She noted there was evidence to support that the claimant may abandon more procedures than his colleagues and, having regard to the first Datix, it raised issues of competency. Dr Roberts acknowledged the claimant took appropriate action following the complication, but the procedure was abandoned for a second time and the patient was subsequently treated successfully by Dr Keston. The claimant had not recorded this procedure in his log book.

[115]Dr Roberts concluded with regard to the concerns about the claimant working as part of the INS team that after the claimant was not appointed to Clinical Lead, there was a pattern of blatant disruptive behaviour and lack of willingness to work in a team with his consultant colleagues. The claimant appeared to have isolated himself from his colleagues and would not always seek their help when appropriate. This had resulted in some patients requiring additional attempts at procedures with the attendant risks of additional radiation and anaesthetic. There was also a general lack of respect to other professional groups of staff and it was clear many staff were fearful of the claimant, which makes for an unsafe environment for patients. The claimant did not reflect on his role in these interactions and instead relied on a conspiracy theory against him.

[116]The use of proctors was the second general concern and Dr Roberts noted it was clear the claimant used proctors more often than other INR consultants. The claimant stated this was because he wanted to train in more devices, but there was evidence to suggest that it had also been used as a means to avoid collaborative working with his colleagues and to provide support for him. The claimant’s behaviour was disruptive when a reasonable mechanism to agree a standard pathway for patient care and proctor use was introduced.

[117]There was also evidence that a proctor actively participated in the procedure on the majority of occasions. Dr Roberts noted that investigating the use of proctors had raised questions as to whether the claimant was competent to complete certain procedures independently.

[118]The report concluded with a section entitled Overall Summary and Findings and in that section Dr Roberts noted that the claimant had presented as a victim of circumstance and at no point considered he was responsible for any of the issues. Dr Roberts observed the claimant was either unaware of, or chose to remain unaware of, how he engaged with colleagues and how he is perceived. Dr Roberts noted she had concerns specifically in relation to competence, teamworking and probity: the last concern emanated from inconsistencies in the claimant’s information and the omission of the Datix incidents from the appraisal. The period leading to resignation

[119]Professor Leonard received Dr Roberts’ investigation report on 3 June, read it and considered it very clear that this was an Annex B matter (which involves investigation by external peers with specialist knowledge in the area of work the claimant was doing). Professor Leonard considered an Annex B procedure would provide clarity regarding the claimant’s competence: if, for example, the assessors confirmed the complications occurred regularly and there was no issue regarding competence, then that would be the end of the matter. If not, then further training may be required and the claimant would be supported through that. If there was dysfunction in the department then the Board would need to address that.

[120]Professor Leonard sent a letter to the claimant on 26 June (page 1753) enclosing a copy of Dr Roberts’ report. He confirmed he had determined the allegations against the claimant could be classified as less serious matters involving professional conduct and competence and that they were suitable for the Annex B procedure. The first step in that procedure was for the Board to write to the Scottish Royal Academy advising of the claimant’s specialty, with a very brief indication of concern and inviting them to nominate two independent assessors to investigate and make recommendations as to action. Professor Leonard confirmed that once the assessors had been appointed they would be provided with a copy of Dr Roberts’ report and would then undertake their own investigation. The Annex B procedure specified that as far as possible the investigation should be completed in 13 weeks.

[121]Professor Leonard also confirmed that he intended to review the claimant’s suspension from work and he invited the claimant to meet to discuss this. Professor Leonard had, prior to writing this letter, and recognising the claimant had been a neuro-radiologist, confirmed no concerns had been raised regarding the claimant whilst doing this work. He intended to ask the claimant to return to work in this capacity.

[122]Professor Leonard did not meet with the claimant until 28 August because the claimant had been on annual leave for a period of three weeks. Professor Leonard wrote to the claimant following this meeting (page 1767) to confirm it was appropriate to lift the suspension. He confirmed he had spoken to Dr MacDuff, Clinical Director and Dr Pollard, Lead Clinician, and they had agreed there was meaningful work the claimant could undertake within NeuroRadiology within Diagnostics on a temporary basis while the Annex B procedure took place. Professor Leonard confirmed that due to the concerns raised, it was not possible to return the claimant to his substantive role in INS.

[123]Professor Leonard concluded by inviting the claimant to meet with Dr MacDuff and Dr Pollard the following week to discuss a temporary job plan. The claimant’s representative asked for time to consider all of the information and Professor Leonard agreed to this.

[124]The claimant’s representative emailed Professor Leonard on 30 August (page 1785) seeking additional time for the claimant to evaluate the situation. Professor Leonard responded on 2 September to say that he did not think it unreasonable to ask that Dr Iqbal start discussions regarding a job plan with as short a timescale as is possible regardless of the duration of the suspension. Professor Leonard noted that if there were structural reasons why the claimant felt he could not engage in discussions, he would be happy to look at these and to help facilitate the process.

[125]The claimant’s representative responded on 19 September (page 1784) to confirm the claimant wished to engage in an interim job plan review to capture the full detail of his proposed return to work. The representative was going to be on annual leave until 7 October but could attend a meeting upon his return. Professor Leonard replied to confirm arrangements would be made to meet after 7 October.

[126]The claimant’s representative emailed on 11 October (page 1782) seeking clarification on two points before meeting with Dr Pollard. The representative wanted clarification that the claimant would remain suspended until the interim job plan was agreed; and whether any restrictions on his current duties would be enforced. Professor Leonard replied the same day to confirm(i) the claimant remained suspended but they wanted to conclude that as soon as was possible by providing an interim job plan and

(ii) Dr Iqbal would not be permitted to undertake any interventional work and that he would be reporting for Diagnostic Neuro -Radiology.

[127]Ms Nicola Bailey, HR, sent a chaser email on 17 October to the claimant and his representative (page 1781) asking them to confirm they had the information required to proceed with an interim job plan meeting. The claimant responded on 18 October to confirm he was currently on annual leave and was due to return on 28 October. Ms Bailey acknowledged this and asked Dr Pollard to arrange a meeting on the claimant’s return. Ms Bailey asked the claimant’s representative to confirm his availability in the week commencing 28th October. He replied to confirm the 4, 6, 7 and 8 November would be suitable.

[128]A meeting to discuss an interim job plan which would have allowed the claimant to return to work did not ever take place.

[129]Professor Leonard drafted the management statement of case for the Annex B procedure (page 1761). The document set out a short background, the allegations, a timeline and the annex B process. The assessors were asked to investigate the following allegations: “(1) It is alleged that Dr Iqbal is not up to the standard of a competent INR, that his decision making during procedures, competence to perform procedures result in a risk to patient safety. This is based on two incidents below and his use of specific proctors for procedures, one of whom scrubbed in and completed the procedure on several occasions; that Dr Iqbal has abandoned more procedures than his colleagues.(a) Improper insertion of guidewire during an emergency thrombectomy and subsequent actions and decision made consequent to this.

(b) Abandonment of a coiling procedure under GA following extravasation and decisions and actions prior and consequent to this. (2) It is alleged that Dr Iqbal’s behaviour is disruptive to team working. There are occasions of Dr Iqbal’s rhetoric giving concern to colleagues. It is alleged that Dr Iqbal does not show any self-reflection or awareness of others’ responsibilities and has taken every attempt to support him by senior management as an attack and has counteracted this with claims of bullying and harassment. It is alleged that Dr Iqbal has not reflected on his own practice or considered how or if it could be any better. (3) It is alleged that Dr Iqbal shows a lack of insight into his ability and considers his ability is well above how it is perceived by his colleagues. There are concerns about information presented by Dr Iqbal in the form of his two most recent appraisals. Both covered periods where there had been Datixes in relation to his practice but in neither appraisal was this recorded in the conversation and on both significant events and critical incidents were scored as 0 despite documentation in the first form 4 that near miss events should be recorded. Dr Iqbal did not think these Datix were “significant enough” to preset at appraisal.”

[130]Professor Leonard took all of this from the investigation: these were all issues which had been raised and discussed with the claimant and he did not consider any of the allegations were new.

[131]A member of HR wrote to the claimant on 23 October (page 1794) to advise she had met with the assessors for the Annex B procedure and they had asked if they could be provided with a copy of the investigation report. Ms Allen asked if there would be any objection to the report being shared with the assessors.

[132]The claimant did not return from annual leave until 28 October. Ms Allen sent a chaser email on 1 November.

[133]The claimant’s representative replied by email of 6 November (page 1791) to confirm that they had reached the conclusion that it would be prejudicial to the process, and to the claimant, to allow the assessors to have sight of the report. The representative also noted that there were new allegations which the assessors had been asked to review and which had not been raised as part of the preliminary enquiry. They sought an explanation why the new allegations were being taken forward.

[134]Ms Allen replied by email of 7 November (page 1790) to confirm the report would not be shared with the assessors. Ms Allen asked the claimant’s representative to identify the new allegations.

[135]The claimant’s representative replied on 14 November and in the email he made reference to the allegations to be investigated by Dr Roberts, and the allegations set out in the management statement of case. It was stated that within allegation 1, the allegations of Dr Iqbal not being up to the standard of a competent Consultant INR due to concerns about his decision-making; the reference to the use of proctors and the reference to abandoned procedures were not subject to the preliminary enquiry. It was further stated that neither allegation 2 or 3 were subject to the preliminary enquiry carried out by Dr MacDuff, and these allegations were not particularised in the investigation carried out by Dr Roberts. The email concluded with a statement that allegations to be considered at Annex B require to have undergone a preliminary enquiry and thus the process was already flawed.

[136]Ms Allen responded on 28 November (page 1788) and referred to the terms of the relevant NHS Circular and the fact the Chief of Medicine was required to provide a statement of case. She confirmed that the allegations had been framed around the concerns originally raised with Dr Iqbal at the preliminary enquiry meeting on 22 August 2023 and the discussions which took place. Ms Allen attached a copy of the preliminary enquiry report. Ms Allen made reference to the fact a preliminary enquiry is not an investigation and there was no requirement to formalise the allegations at that stage. Its purpose was to provide sufficient preliminary information to the Chief of Medicine to allow them to decide how to progress matters. In cases of professional conduct/competence the Board also carries out a more detailed investigation prior to determining whether the case should be dealt with under Annex B or Annex C.

[137]Ms Allen acknowledged they had accepted that it would be prejudicial for the Board to share a copy of the investigation report with the assessors, but stated Dr Iqbal should be fully aware of the concerns that the Board had with regards his practice which had now been raised with him at both the preliminary enquiry and the investigation. Ms Allen confirmed there were no new allegations.

[138]The claimant, by letter of 4 December 2024 (page 1802) formally resigned from his post with immediate effect. The claimant referred to a serious and ongoing breach of the implied term of trust and confidence. Specifically, he referred to the Annex B process and the actions of the respondent to include new allegations without first exploring these through the preliminary enquiry process. In addition, the workforce investigation undertaken by Dr Roberts was flawed, conducted with poor diligence, contradictory and lacked expert opinion and documentary evidence. The claimant was further concerned that the departmental rotas were designed in such a way that did not comply with his job plan. Credibility and notes on the evidence

[139]The tribunal did not find the claimant to be an entirely credible or reliable witness because his evidence was, at times, hard to follow and contradictory. For example, whilst the claimant agreed the respondent and Dr Dodds were supportive of him in terms of the training he undertook (he stated “Dr Dodds was in constant contact with the Leeds trainers – he wanted success for my training”), he also maintained Dr Dodds had a vendetta against him.

[140]A further example was in relation to the training route the claimant had followed. Dr Dodds and others had concerns regarding the route the claimant had followed and in particular around the ongoing need for support and mentoring. The claimant refused to accept this notwithstanding the trainers (Dr Goddard and Dr Patankar) at the Leeds Teaching hospital, had confirmed “….. our collective view is that Dr Iqbal’s training will allow him to work within a collaborative and mutually supportive neurointerventional team – but within this team he is certainly competent to provide an acute aneurysm coiling service. He will need the support of his neurosurgical and neurointerventional colleagues …”

[141]Another example was in relation to the issue of suspension when the claimant suggested the respondent could have suspended him but allowed him to do reporting. This demonstrated not only a misunderstanding of the process but also a lack of awareness given that reporting would have involved contact with the very people about whom he had made the bullying complaint.

[142]The claimant argued, at this hearing, that he could have worked in Diagnostics rather than being suspended, however when offered the opportunity to return to work in Diagnostics (once suspension was to be lifted) the claimant did not ever meet to agree the interim job plan. The tribunal took from the claimant’s prevarication regarding this matter and his responses to the Judge’s questions, that the reality was that the claimant did not want to go to a role in Diagnostics; and he did not want that at the time of suspension, during suspension or when suspension was to be lifted. The claimant did not want to go to a role in Diagnostics because, as he told the tribunal in evidence, that would not address deskilling in the INR role.

[143]The reliability of the claimant’s evidence was also impacted at times by giving responses which were disingenuous. For example, the claimant was asked why he did not accept the alternative role (when Professor Leonard was going to lift the suspension). The claimant replied “the job plan discussions were ongoing”. This response was wholly inaccurate because there were never any discussions regarding a job plan for the role in Diagnostics and this was due to the fact the claimant would not attend to engage in those discussions. Professor Leonard advised the claimant on the 28th August of the lifting of the suspension and an opportunity to return to a role in Diagnostics (pending the outcome of the Annex B process). Three months later no meeting had taken place to discuss a return to a role in Diagnostics due to the prevarication of

[144]A further example was when the claimant suggested that if he had been able to attend the planning meeting at the start of Dr Roberts’ investigation he would have been able to say what role could have been an alternative to suspension. The tribunal considered this evidence was simply made up to bolster the claimant’s case and I say this because if the claimant had seriously wanted to challenge suspension by identifying a role he would have been prepared to do, there were numerous avenues through which this could have been raised.

[145]The tribunal found all of the respondent’s witnesses to be both credible and reliable. They gave their evidence in a very clear and straightforward manner and they accepted points where it was appropriate to do so. All of the witnesses gave clear and considered explanations for the actions and decisions they had made.

[146]The claimant suggested that Dr Dodds had a vendetta against him. The tribunal found no evidence to support that assertion. Dr Dodds took on line management of the claimant in 2017/18 when he became Chief of Medicine. The claimant had been in Dublin undertaking training and Dr Dodds had understood that when the claimant returned he would be fully accredited in INR and ready to be offered a substantive post. He subsequently learned the training had been restricted and, when the claimant returned to work, he was not fully accredited. Dr Dodds took on the issue of the claimant’s training and took proactive steps to ensure the training the claimant undertook would lead to him being fully accredited.

[147]Dr Dodds understood from the Leeds Training hospital that the claimant required to join a supportive team environment, and the INR service in Glasgow could not, at that time, provide this. Dr Dodds could not, for that reason, support the claimant’s application for a Consultant INR post and it was for this reason that he recused from the claimant’s interview process.

[148]The tribunal considered that rather than Dr Dodds having a vendetta against the claimant, he was in fact supportive of him but subsequently, and as set out below, received concerns from a number of people regarding the claimant and, as Chief of Medicine, responsible for governance (which includes patient safety) he was duty bound to act.

[149]Dr Jeremy Lynch, Consultant Interventional and Diagnostic Neuroradiologist, was called as an expert witness to give evidence and provide a report, which he adopted, at page S1192. Dr Lynch, in that report, gave his view regarding the two Datix incidents and whether either described any act/s or omission/s that would raise concerns about patient safety or clinical competence. His view was that both cases involved recognised access-related complications of endovascular procedures, which were managed without resulting in permanent patient harm. He concluded the decisions taken by the claimant in each scenario fell within the range of responses expected when managing procedural complications and resulted ultimately in a good clinical outcome.

[150]Dr Lynch was asked if the Datix incidents warranted suspension and confirmed his view they did not.

[151]Dr Lynch, in cross examination, conceded that if the claimant failed to seek assistance from a colleague because of team dynamics, that would be a cause for concern. He also accepted that in giving his opinion regarding suspension, he had not been provided with information that the claimant was already on restricted duties.

[152]Dr Peter Keston, Clinical Lead INR, gave evidence and provided a statement at page 1200, which he adopted. He gave an opposing view to that of Dr Lynch and his concern was that the claimant had(i) failed to understand that he had not obtained arterial access and had

(ii) failed to recognise that there was not an arterial dissection but simply dye outside the blood vessel.

[153]Dr Keston spoke to the use of proctors and confirmed that he considered it “almost unheard of” for the proctor to do/finish the procedure. He also voiced serious concerns (in relation to the first Datix) that Dr Izzath had been available close by for the claimant to call upon for assistance, but he had chosen not to do so and had instead called upon a general team, who were much further away, to attend. Submissions

[154]The parties provided an agreed list of relevant cases as follows:  Malik v BCCI (in liquidation) 1998 AC 20, the House of Lords endorsed the principle “the employer shall not without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between the employer and the employee”.  Lewis v Motorworld Garages Ltd

1986 ICR 157

where it was established that it is permissible for employees to rely upon a series of acts or incidents which either separately, or when considered cumulatively, constitute a breach of the implied term.  Omilaju v Waltham Forest LBC (No 2) 20024 EWCA Civ 1493 where it was said the last incident need not be blameworthy or necessarily reprehensible, but must contribute something towards the antecedent series of incidents; and  Kaur v Leeds Teaching Hospitals NHS Trust

2018 EWCA Civ 978

where the Court of Appeal provided guidance for tribunals dealing with last straw cases: “(1) what was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation; (2) Has s/he affirmed the contract since that act; (3) If not, was that act (or omission) by itself a repudiatory breach of contract; (4) If not, was it nevertheless a part (applying the approach in Omilaju) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a repudiatory breach of the Malik term.” The representatives each provided an outline submission which they spoke to. Claimant’s submissions

[155]Mr Hardman acknowledged the facts of this case were complex. He summarised the alleged breaches of contract by grouping them into five categories: 1. The claimant was not presented with any detail of allegations against him which arose from his bullying and harassment complaint against his colleagues, sufficient to enable him to challenge those allegations (updated paper apart to the ET 1 paragraph 69 (ii) and (iv). 2. The claimant was restricted in his duties unfairly because of a failure by Dr Dodds to investigate those allegations and then put appropriate support in place. (paragraph 69 (iii) and (v)). 3. The claimant was unnecessarily suspended rather than removed to another area, and then remained on suspension for nine months, without any sensible reason. (paragraph 69 (vii), (viii) and (ix)). 4. The investigation by Dr Roberts was unnecessarily lengthy, wide ranging and one-sided. (paragraph 69 (xii)). 5. This investigation led to an inappropriate expansion of the allegations against the claimant. (paragraph 69 (xiii).

[156]It was submitted that the cumulative effect of these unfair actions was to fundamentally breach the implied term of trust and confidence in response to which the claimant resigned.

[157]Mr Hardman took each of the above points and expanded on them. In relation to the first point, he referred the tribunal to the letter from the claimant’s representative to Dr Dodds, dated 18 October 2022 (page 334) which provided a good summary of the points. The evidence of Fiona Paterson, HR Manager, was that the reason for this was simply that the respondent’s Information Sharing protocol forbade sharing of statements by those accused of bullying with the accuser. This, it was submitted, breached a principle of natural justice to the effect that an accused person is entitled to know what he is accused of. The allegations could have been intimated without prejudicing any reference to a response to the bullying allegations. The respondent, in their approach, denied the claimant natural justice and this was so unreasonable as to amount to, or at least substantially contribute to, a cumulative breach of the implied term of trust and confidence.

[158]Mr Hardman submitted that it was clear from the evidence of the claimant and Dr Dodds (and Dr Dodds’ letter to the claimant on 4 August at page 291) that the allegations referred to at point 1 above, informed the threat of full suspension of the claimant or a restriction of the claimant’s practice while a supported improvement plan was put in place. The tribunal was invited to have regard to the grievance outcome (page 1286) where it was said that this threat and this restriction were inappropriate without a prior investigation and clarification of the allegations made. The restriction contributed to the deskilling of the claimant. The actions of Dr Dodds were unreasonable and contributed substantially to a cumulative breach of the implied term of trust and confidence.

[159]The claimant was suspended from work on 23 May 2023 and Ms McLean had given evidence regarding the reasons for suspension and in particular why the option of redeployment had not been possible. Mr Hardman submitted the explanation given by Ms McLean had been disingenuous in circumstances where she was aware considerable deskilling would result from the claimant’s suspension; she had not investigated the matter to ascertain whether the alleged risk with the vulnerable colleague was genuine or not; she had not considered whether the claimant could work in radiology from home and come into the department one day a week (as the other member of staff did) and she did not approach management in Radiology to ask for their view.

[160]The decision to suspend rather than redeploy in those circumstances was so unreasonable as to amount to a breach of the implied term of trust and confidence of itself, and certainly to contribute to a cumulative breach. Thereafter, from 23 May 2023 until 28 August 2024 there was no meaningful attempt to reconsider the matter of the claimant’s redeployment to Radiology. The decision not to reconsider redeployment as an alternative to suspension during this period was so unreasonable as to amount to a breach of the implied term of trust and confidence or to contribute to a cumulative breach.

[161]Mr Hardman submitted that it was clear from the evidence of Dr Roberts that the period taken for her investigation was excessive, particularly bearing in mind the claimant’s suspension. The scope of the investigation also expanded substantially beyond the two datix incidents and the concerns expressed by Dr Stuart, to include consideration of the claimant’s probity and matters such as incomplete cases.

[162]It was further submitted that the report was based in part on information which was inaccurate: for example, her comments regarding the claimant’s truthfulness (page 1734). In addition to this, the language adopted by Dr Roberts (“blatant disruptive behaviour”; “economical with the truth”) inferred a mindset which was not open to a balanced view. In the circumstances, it was submitted that the tenor of the report contributed to a cumulative breach of the implied term of trust and confidence.

[163]The claimant decided to resign following the correspondence between his representative and Ms Allen (pages 1788 – 1797) regarding new matters being brought into the statement of case for the assessors to consider. The claimant’s evidence was that he considered the changes in the statement of case (page 1789) to be material additions to the allegations against him. The claimant took advice from his representatives and decided to resign because his trust and confidence had been breached. The claimant in his evidence said he considered there had been a lack of expert opinion because there was no independent INR expert to provide any expert opinion on the two Datix incidents. Dr Roberts was a pathologist and the claimant felt expert opinion was required to determine whether or not management of the patients was correct.

[164]Mr Hardman submitted that the reason for resignation was not simply the matters set out in the email of resignation, or simply the new allegations in the statement of case: they included the whole of the matters set out above. The tribunal was invited to find for the claimant. Respondent’s submissions

[165]Ms Stobart responded to the broad categories as defined by Mr Hardman. The respondent accepted the claimant had asked for details of the preliminary enquiry on a number of occasions. Dr Dodds, in August 2022, provided a broad outline of the concerns and confirmed the concerns would be shared in detail with him as part of a supported improvement plan. The claimant, who could not accept there was any merit in the concerns, and believed they had been raised as retaliation for the bullying complaint, decided to formally pursue the bullying complaint against the members of staff who would have been instrumental in the supported improvement plan. The consequence of the claimant’s action was that the respondent could not implement the supported improvement plan. The claimant accepted in cross examination that it would not have been appropriate for them to participate in a supported improvement plan if they were under investigation. The claimant was represented and could have taken advice: his attitude throughout, however, had been that any criticism of his practice was malicious and made up.

[166]Dr Doods provided the concerns in writing and then expanded on them in a subsequent meeting and letter dated 20 September 2022. The claimant was aware the concerns were around his clinical decision-making, an unwillingness to accept advice when he got into difficulty, poor communication, team working and disruptive behaviours in MDT meetings amongst other things.

[167]Ms Stobart submitted that for good reason, and based on the NHSScotland Information Sharing Protocol (page 1825) the preliminary enquiry records that pertain to the person the claimant had complained about are not shared with the complainer. Fiona Paterson gave Dr Dodds advice about this and she also took further advice from Angela Cooper who worked in clinical staffing. The claimant later asked Nicola Bailey for the preliminary enquiry reports. She considered the matter but for the same reasons she did not think it appropriate to give the claimant copies. There were data protection issues as well as the policy. There was no breach of contract in not providing the claimant with the preliminary enquiry records and, in any event, the claimant was given the full report from Dr Roberts in advance of the Annex B procedure and would have been aware of any concerns raised by colleagues as part of that process.

[168]The second broad heading was that Dr Dodds restricted the claimant’s duties unfairly. Dr Dodds is the Chief of Medicine, Regional Services and is responsible for clinical governance across Regional Services. Concerns regarding the claimant were brought to Dr Dodds over a number of years. The first concern was when Dr Devlin, Dr Keston and Dr Brown, who sat on the appointment panel, told him that they were concerned because they did not think the claimant was appointable to the position of INR Consultant (at the time when no team existed). Subsequent concerns were raised by the nursing staff and, after the preliminary enquiry into the bullying complaint brought by the claimant, Dr Leach raised concerns with Dr Dodds regarding the claimant’s practice and patient safety.

[169]Ms Stobart submitted that Dr Dodds had no choice but to take Dr Leach’s concerns seriously. A meeting took place on 3 August, which was the first available opportunity to meet.

[170]Dr Dodds did not want to suspend the claimant: his preference was to offer the claimant two options but at the same time making it clear his preference was for a supported improvement plan. The reason for restricting the claimant’s elective practice rather than his emergency practice was because the concerns raised had occurred during his elective practice, and other concerns were around the claimant’s use of proctors when undertaking elective procedures. Dr Dodds also had regard to the letter from the Leeds hospital which had said the claimant could undertake acute intra cranial aneurysms as a solo operator. MDTs had been problematic and acute work, by its nature, did not go through the MDT. Further, acute work made up 80% of the work, so the restriction applied only to a small part of the claimant’s work.

[171]Ms Stobart submitted that Dr Dodds had a duty to protect patient safety and he took reasonable decisions on the basis of the information he had before him. His actions were not in breach of contract.

[172]The next issue related to the claimant’s suspension. The respondent received two Datix concerns involving similar issues. Cathy McLean, General Manager, gave evidence that she was concerned when she saw the first Datix. She was then informed of the second Datix by Dr Dawson and Dr Atkinson, who were both concerned about the fact of there being two Datix. Ms McLean was also aware of the Dr Stuart concerns and the fact Dr Dodds had put the claimant on restricted duties following concerns raised by Dr Leach.

[173]Dr Dawson was concerned about the actions of the claimant and his concerns were similar in nature to the concerns detailed by Dr Keston to the tribunal. It was submitted there was sufficient concern about patient safety that suspension needed to be considered.

[174]Dr Dawson and Ms McLean completed the suspension risk assessment: they carried out a thorough process and their reason for suspension was that there were patient safety issues and the restricted duties had not prevented those issues from arising. They did consider moving the claimant to other duties in another department but discounted this due to issues in the team and the fact he was already on restricted duties. They considered moving him to Diagnostics but discounted that as a vulnerable member of staff, who had previously been in INR had been moved to Diagnostics. It was submitted the decision-making was rational and reasonable.

[175]The respondent had been criticised for not moving the claimant during his suspension, but Nicola Bailey gave evidence that after the outcome of the preliminary enquiry by Dr MacDuff there had been a decision to move the matter to full investigation and she did not think it would be appropriate to lift the suspension until the full investigation was completed.

[176]The respondent was also criticised for not moving the claimant to a reporting role in Diagnostics during the period of the investigation. It was submitted the respondent did consider matters but decided it was appropriate for the suspension to continue until the outcome of the investigation. That was a reasonable decision in the absence of any pushback from the claimant who clearly did not want to do reporting for Diagnostics.

[177]Ms Stobart submitted the claimant was represented and if he had wanted to go to Diagnostics to undertake reporting of imaging he could have suggested that but did not. Ms Stobart invited the tribunal to have regard to the fact that when Professor Leonard attempted to lift the suspension and get the claimant back to work, the claimant did all he could to delay and he chose not to go back to Diagnostics. It was submitted the claimant did not suggest a move to Diagnostics as an alternative to suspension on full pay because he did not want to do that.

[178]Ms Stobart submitted there was no breach of contract in reasonably suspending someone pending the outcome of an investigation when there are patient safety concerns.

[179]The next issue concerned Dr Roberts’ investigation. The respondent accepted there was a one month delay between Professor Leonard drafting the terms of reference on 7 September and the HR representative being appointed on 5 October. However, once the HR representative had been appointed, a planning meeting took place and a letter was sent to the claimant on 30 October inviting him to attend a meeting on 14 November. The claimant’s representative sought a postponement of that meeting and it was rearranged for 4 December. The claimant’s representative also sought a postponement of the second meeting, sought an extension of time for return of the notes of the meeting; there were periods of annual leave for both the claimant and Dr Roberts and surgery for Dr Roberts with a six week recovery period: these were the reasons for delay and were all out of the control of Dr Roberts.

[180]Ms Stobart submitted Dr Roberts had had to carry out a complex investigation into many aspects of the claimant’s work and this involved interviewing a wide range of people, including those the claimant wished spoken to. Mr Buchanan referred to the log book, and the claimant lodged his log book, all of which had to be investigated. The claimant lodged a large number of documents, all of which had to be considered. She then collated all of the information and produced her report. It was submitted that given the complexity of the investigation Dr Roberts did not delay and in any event did not delay unreasonably.

[181]Dr Roberts was criticised as carrying out a one sided investigation and being biased in her comments regarding the claimant. It was submitted Dr Roberts formed her conclusion based on the evidence presented to her and a weighing of that evidence. She was not biased and had not met the claimant prior to these events. Dr Roberts was entitled to find the claimant lacked insight based on his position that he considered the patient safety concerns were “malicious”. He had not, at that time, reflected that concerns might have been raised because he was struggling.

[182]Dr Roberts was entitled to find the claimant had not raised the two Datix in his appraisal. He told Dr Roberts that he did not think the Datix were significant enough to be in the appraisal, notwithstanding the previous appraisal had told him to report less significant matters. Also, Dr Keston gave evidence that the events of both Datix were significant. It was submitted it had been reasonable for Dr Roberts to form the conclusion that he had not reported the Datix to his appraiser.

[183]The claimant considered Dr Roberts went outside the scope of her remit. Her remit was to look at the two Datix incidents and the areas of concern raised by Dr Stuart which were listed as decision-making during procedures, competence to perform procedures, potential patient safety issues. Dr Roberts was presented with a statement by Mr Buchanan that listed what he considered to be adverse incidents. She was also presented with the claimant’s log book reflecting what he thought of various procedures. There were discrepancies between the two especially in relation the incident raised by Dr Izzath relating to 25 February 2022. It was submitted that given the matter had been raised and was potentially a matter of patient safety if the claimant did not report incidents, it would have been remiss if Dr Roberts had not included it in the investigation report. She noted that she did not investigate fully and it was clear that if this matter had proceeded to Annex B procedure then the claimant could have given full explanations as to any discrepancy. It was submitted there was no unfairness and Dr Roberts took a reasonable and frank approach to the matter of the log book.

[184]Ms Stobart submitted that all of the criticisms of Dr Roberts’ investigation became otiose as the respondent agreed with the claimant not to share the content of the investigation report with the Annex B assessors. In those circumstances it was difficult to understand in what way it could be said the respondent was in breach of contract when they had agreed not to give the Dr Roberts report to the Annex B assessors.

[185]It was suggested to Dr Roberts in cross examination that she should have considered an independent expert to make findings on the two Datix incidents. Dr Roberts considered she had sufficient expertise in house and that in any event the issues were broader than simply whether the claimant was competent in those two Datix. Further, it was not for her to make final findings about competency on the two Datix because that would be for the independent assessors to determine. It was submitted this was the correct approach and that it would have been unreasonable at that stage to have done a full enquiry into the competency of the claimant’s actions during the two Datix incidents because this only happens when and if the matter results in Annex B or Annex C.

[186]Ms Stobart submitted Dr Roberts carried out a fair and reasonable investigation and based her conclusions on the evidence before her.

[187]The final issue related to the last straw. Professor Leonard drafted the statement of case based on the investigation carried out by Dr Roberts as per the policy. There were no new allegations: all of the allegations had been discussed. The log book issue had been discussed but not in detail. There was no breach of natural justice; no unfairness and no breach of trust and confidence.

[188]Ms Stobart, with reference to the Malik case, submitted the respondent had not acted without reasonable and proper cause in reaching its decision and in acting as it did. None of the alleged acts of the respondent amounted to a breach of any express or implied term of the claimant’s contract of employment. If the tribunal found there was a breach of contract, it was submitted that any breach was not sufficiently serious or material as to constitute a repudiatory breach giving rise to an entitlement to treat the contract as terminated. In any event Professor Leonard’s actions in drafting the statement of case did not contribute in any way to any previous act in any sense of the term as described in Omilaju. There was no final straw.

[189]Ms Stobart invited the tribunal to find there was no fundamental breach of contract and that the claimant was not entitled to treat the contract as having been terminated by the respondent. The tribunal should dismiss the claim.

[190]Ms Stobart had, at the end of her submission, set out the terms of paragraph 69 from the updated paper apart, where each of the acts relied upon by the claimant had been listed. It was agreed at the conclusion of both submissions that only the following points remained and these were the points which had been addressed in the submissions and were to be determined by the tribunal:- (ii) the persistent refusal by the respondent to provide the particulars of the concerns of the preliminary enquiry concluded in June 2022; (iii) Dr Dodds partially suspending the claimant on 3 August 2022 in breach of the suspension policy and without justification; (iv) the persistent refusal by the respondent to provide the particulars of the governance concerns; (vii) the claimant’s suspension from work in May 2023; (viii) the unreasonable delay in reviewing the suspension and/or returning the claimant to work; (ix) the claimant’s suspension was unduly lengthy which caused the claimant great detriment including deskilling, which was also a breach of the respondent’s suspension policy. (xii) a biased and/or unreasonable approach to Workforce Policies Investigation –  Unreasonable delay;  Investigation was flawed contradictory, lacked documentary evidence and was conducted with poor due diligence and without expert opinion, specifically points 1, 2, 3, 4 and 16;  he conclusion reached by Dr Roberts in respect of the investigation was biased and unreasonable. (xiii) The addition of new allegations to the statement of case when referring to Annex B process, without proper investigation and against policy. Discussion and Decision

[191]The tribunal firstly had regard to the terms of section 95 Employment Rights Act which provides that for the purposes of this Part, an employee is dismissed by his employer if “( c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct”.

[192]The tribunal next noted that in a constructive dismissal claim, the employee must establish that:  there was a fundamental breach of contract on the part of the employer;  the employer’s breach caused the employee to resign and  the employee did not delay too long before resigning, thus affirming the contract and losing the right to claim constructive dismissal.

[193]The tribunal next had regard to the case of Courtaulds Northern Textiles Ltd v Andrew

1979 IRLR 84

where it was said that it would be a fundamental breach of contract for the employer, without reasonable and proper cause, to conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the parties.

[194]In Woods v WM Car Services (Peterborough) Ltd

1981 ICR 666

it was said that the tribunal’s function is to look at the employer’s conduct as a whole and determine whether it is such that its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it.

[195]The House of Lords, in the case of Malik v Bank of Credit and Commerce SA (in compulsory liquidation)

1997 ICR 606

, held that the questions to be determined by a tribunal are(i) was there reasonable and proper cause for the conduct and

(ii) if not, was the conduct calculated or likely to destroy or seriously damage the trust and confidence between the parties.

[196]The tribunal also had regard to the cases of Lewis v Motorworld Garages Ltd

1986 ICR 157

and Omilaju v Waltham Forest London Borough Council

2005 ICR 481

where the Court of Appeal firstly held that a breach of the implied term of trust and confidence may consist of a series of actions on the part of the employer that cumulatively amount to a repudiation of the contract. The last straw does not of itself have to amount to a breach of contract. In the latter case, it was said that the last straw does not have to be of the same character as the earlier acts, and nor does it necessarily have to constitute unreasonable or blameworthy conduct. It must, however, contribute, however slightly, to the breach of the implied term. An entirely innocuous act on the part of the respondent cannot be a final straw.

[197]The tribunal also had regard to the case of Kaur v Leeds Teaching Hospital NHS Trust

2018 IRLR 883

regarding the approach to be taken by tribunals in last straw cases (as set out above).

[198]The tribunal then turned to consider each of the themes relied upon by the claimant which, it was said, constituted a breach of the implied term of trust and confidence individually or cumulatively. The first theme was that the claimant was not provided with any detail of allegations against him which arose from his bullying complaint against his colleagues, sufficient to enable him to challenge those allegations. Mr Hardman referred the tribunal to the letter sent by the claimant’s representative to Dr Dodds dated 18 October 2022, which summarised this issue. In that letter it was said: “We remain profoundly disappointed and bemused that the full details of the concerns raised by Dr Mike Leach were not forthcoming despite your letter dated 10th August, you had stated that the full extent of the concerns would be explored with Dr Iqbal. Dr Iqbal would wish to reflect upon any concerns that are brought to his attention so he can consider any changes that may improve his personal practice. In the absence of specific details, he is unable to do so. We are particularly concerned that in our last meeting you had claimed that other colleagues across the UK don’t want to operate with Dr Iqbal. You were also unable to provide any examples, when asked, of rude behaviour displayed by Dr Iqbal.”

[199]The tribunal, in considering this issue, had regard firstly to the fact Dr Dodds did not provide the claimant with a copy of the preliminary enquiry records in respect of Mark Devlin, Oudwin Griffiths and Wazim Izzath. Dr Dodds made that decision based on advice from HR, which was based on the respondent’s Information Sharing protocol. The Information Sharing protocol is part of the respondent’s Workforce Policies Investigation process (page 1823) and provides that “Complainants should be provided with sufficient feedback to allow them to understand why their complaint was upheld or otherwise. This should not, however, include statements and notes of meetings which essentially relate to the employee under investigation rather than the complainant.”

[200]The tribunal next had regard to what information was provided by Dr Dodds to the claimant. Dr Dodds met with the claimant on 3 August to not only inform him of the outcome of the preliminary enquiry into the bullying complaint, but also to discuss the concerns which had been raised by Dr Leach, who had conducted the preliminary enquiry. Dr Dodds then summarised the concerns in his letter to the claimant dated 4 August (page 287) under the headings of Direct Clinical Care and Indirect Clinical Care.

[201]Dr Dodds followed this up with a further letter on 10 August (page 299) where he acknowledged a summary of the concerns had been provided and reiterated that “It is my intention that the full extent of these concerns be explored with Dr Iqbal in the next step of the process. As you know, I have advised that my preference is to undertake a Supported Improvement process with Dr Iqbal, and this will be led by an independent medical manager who will meet with Dr Iqbal to go over the details of the concerns and to identify actions to be taken to address these”.

[202]Dr Dodds provided further information regarding the concerns in his meeting with the claimant and letter dated 20 September (page 320).

[203]I accepted Dr Dodds’ evidence that once he was in receipt of the concerns from Dr Leach, he had to take action. I also understood, and accepted, that Dr Dodds had two options: he could take matters down a formal route which would involve suspension of the claimant whilst a formal investigation took place; or, he could go down an informal route using a Supported Improvement Plan accompanied by a restriction on clinical duties. I accepted Dr Dodds preferred to go down an informal route which he considered was in everyone’s interests because the claimant would remain a member of the team/department and the issues would be discussed with him and actions taken to address them and provide support.

[204]There were two key points the tribunal took from Dr Dodds’ evidence. The first was that whilst a summary of the concerns was provided initially to the claimant in order to explain why a Supported Improvement plan was being proposed, Dr Dodds made it clear to the claimant and his representative that the claimant would be given the full details of the concerns as part of the process and they would be discussed with him. The tribunal acknowledged the claimant was entitled to know what the concerns were and he would have been told of this as part of the Supported Improvement plan. The issue was essentially one of timing: the claimant wanted the details when he was told there were concerns, whereas the respondent told him there were concerns, gave him a summary of them and explained he would get the details as part of the Supported Improvement plan.

[205]The second point was that Dr Dodds wanted the claimant to engage with the Supported Improvement plan because by doing so the likelihood of concerns being resolved and support being provided was significantly improved. (This is addressed below).

[206]Mr Hardman submitted that the allegations could have been intimated without prejudicing any reference to a response to the bullying allegations. The tribunal considered this is what the respondent intended to do once the Supported Improvement plan was in place. It was, as stated above, a question of timing.

[207]The tribunal acknowledged the claimant wished to challenge the concerns and that he would need details of the concerns in order to do so. The issue was, as stated above, one of timing. This was not a case where the respondent intended to deny the claimant details of the concerns: it was a case where the claimant would be given the details at the appropriate stage in the process. The tribunal considered the situation to be akin to an employee being advised of alleged misconduct but having to wait until the investigation to obtain full details of what was being alleged.

[208]The tribunal further acknowledged that what the claimant wanted to do was argue that the concerns were without foundation and therefore no action should be taken against him. The tribunal however considered that given the nature of the concerns raised, this was a situation whereby there would either have to be a formal route involving investigation (with resultant suspension of the claimant) or an informal route, (restrictions and a supported improvement plan). The claimant would have an opportunity to learn fully of the concerns and respond to them, but it was not a situation, given the nature of the concerns, where the claimant could avoid a formal or informal process from happening.

[209]The tribunal, in respect of this issue, asked itself whether the respondent had reasonable and proper cause to take the action it did. The tribunal was entirely satisfied that the respondent did have reasonable and proper cause to act as it did and I say that because the respondent could not have made it clearer to the claimant that a summary of the concerns had been provided and the full extent of the concerns would be discussed with him in the next steps of the process. There was never any doubt the claimant would be given details of the concerns and he would have an opportunity to respond to them.

[210]The tribunal concluded for all of the above reasons that there was no breach of the implied term of trust and confidence.

[211]The second theme was the claimant was restricted in his duties unfairly because of a failure by Dr Dodds to investigate those allegations and then put appropriate support in place. There was no dispute regarding the fact that Dr Dodds received concerns from Dr Leach and, having discussed those matters with Dr Leach, he decided to take action. The tribunal accepted that Dr Dodds, as Chief of Medicine, is responsible for overseeing governance, which includes patient safety (and quality of service). The tribunal also accepted that Dr Dodds, upon receiving concerns regarding patient safety, had to take action.

[212]There was no dispute regarding the fact Dr Dodds told the claimant at the meeting on 3 August, that having received the concerns he had two options: one being the formal route of suspension and investigation and the second being the informal route of a supported improvement plan accompanied by a restriction on clinical duties. Dr Dodds stated his preference was for a supported improvement plan and the tribunal accepted his reasons for this were because it would keep the claimant in the team/department, allow for full discussion of the concerns, allow the concerns to be addressed and allow for support to be put into place. Furthermore, the supported improvement plan would allow the department to move forward because the other members of the department had confirmed their support for and co-operation with the plan. The tribunal considered and accepted that all of the reasons for wishing to use a supported improvement plan were positive and in the best interests of

[213]The claimant took issue with this because he argued the imposition of a restriction on duties was inappropriate without a prior investigation into the allegations. The claimant made reference to this as part of this grievance.

[214]The claimant was advised by letter from Professor Colin McKay, Deputy Director of Medicine, who heard the stage 1 grievance, that this aspect of his grievance had been partially upheld. The letter provided “I am also of the view that Dr Dodds should have considered a preliminary enquiry the next reasonable step rather than providing you with the option of a supported improvement plan or a full suspension and investigation however I believe that Dr Dodds took the action that he believed was appropriate at the time and that he sought HR advice on this. The evidence suggests that Dr Dodds was, at that time, committed to supporting you to continue to remain within the department and to address the concerns raised.”

[215]Ms Nicola Bailey, in cross examination, agreed that her view and that of Professor McKay had been that there should have been a preliminary enquiry and, following the outcome of that, a decision regarding the appropriate route to deal with the matter. Ms Bailey did not accept the suggestion that the supported improvement plan had been punitive in nature because it was understood that Dr Dodds had been motivated to keep the claimant at work, address the concerns and support the claimant with a framework in place to monitor his work.

[216]The tribunal, in considering this matter, had regard on the one hand to the fact that Dr Dodds took action to restrict the claimant’s practice and propose a supported improvement plan without having investigated the concerns which had been raised with him. The claimant saw this as punitive action being taken against him on the basis of concerns which had not been fully explained to him and about which he had not yet had the opportunity to comment. The tribunal acknowledged that Professor McKay and Ms Bailey considered there should have been a preliminary enquiry prior to any decision being made. The tribunal accepted this was a view they were entitled to hold, but also noted there was no suggestion a preliminary enquiry was mandatory.

[217]The tribunal next had regard, on the other hand, to the fact Dr Dodds had a duty to act when patient concerns were raised with him. The concerns were serious and included the opinions of Dr Wilson and Dr Stuart that the claimant was “a doctor in difficulty”; that he was “potentially struggling” and that there were “red flags”. The opinions of Dr Wilson and Dr Stuart were not complaints about the claimant, but rather concerns; and these concerns were voiced by people who had no allegations of bullying or grievances against them.

[218]The tribunal accepted the decision of Dr Dodds to address the concerns through an informal route and to restrict the claimant’s clinical duties was taken for reasons of patient safety and to protect the claimant. The tribunal accepted there was good reason for the restriction of elective duties based on the letter from Leeds Teaching hospital and the concerns which had been raised. The tribunal also accepted the restriction was not punitive action: it was a question of patient safety and the tribunal understood from the evidence that whatever route was used to investigate/address the concerns, the claimant’s duties would have had to be suspended or restricted because of the patient safety concerns. The tribunal further accepted that the restriction which was put in place affected a small percentage of the claimant’s work (in the region of 20%).

[219]The tribunal acknowledged that on the face of it, and generally, it may be unreasonable to take action against an employee for reasons which have not been investigated. However, the circumstances in which that happens are of great relevance and the circumstances in this case involved patient safety and “red flags” indicating the claimant was, or may be, a doctor in difficulty. The tribunal considered that in the particular circumstances of this case, Dr Dodds had reasonable and proper cause to act as he did, which was to try to resolve the concerns through an informal route with a proposed supported improvement plan and a restriction on duties which would address the issues of patient safety, rather than suspension and a formal investigation.

[220]The tribunal, having decided the respondent had reasonable and proper cause to act as it did, concluded there was no breach of the implied term of trust and confidence.

[221]The third theme was that the claimant was unnecessarily suspended rather than removed to another area, and then remained suspended for nine months, without any sensible reason.

[222]The tribunal, in considering these points, had regard to the background leading up to the decision to suspend. There was no dispute regarding the fact that Dr Leach had raised concerns with Dr Dodds (as above); the claimant was placed on restricted duties; Dr Dawson had raised concerns with Dr Dodds which he escalated; the first Datix incident occurred and then a second Datix incident occurred. The majority of these concerns related to similar issues.

[223]The respondent went through a process of carrying out a suspension risk assessment, prior to reaching the decision to suspend the claimant. The risk assessment was carried out by Dr Dawson and Ms McLean. The risk assessment completed by them invited them to identify the risks in respect of three options – option 1 being to suspend; option 2 being to keep in post/restrict duties and option 3 being to move to alternate post (and restrict duties if required). They then had to indicate how the risk would be managed in respect of each option and give reasons for the decision reached.

[224]The criticism made of Ms McLean was that she did not investigate whether the risk of moving the claimant to an alternative post was genuine and she did not consider whether the claimant could have moved to that department (radiology) and work from home four days a week, visiting the department one day each week.

[225]The tribunal, in considering this, firstly had regard to the risk assessment form and under option 3 it was stated “Dr Iqbal could be moved to an alternative department. Given Dr Iqbal’s relationships with colleagues in the other available departments (INS radiology) it is judged that this would not lead to a constructive work-place culture whilst the investigation is ongoing. It has been judged that it is in the interests of patient safety that Dr Iqbal is moved off clinical duties.”

[226]Ms Cathy McLean in her evidence provided further information regarding the thinking behind the decisions made. She told the tribunal that her first consideration had been option 3 (that is, moving the claimant to an alternative post) and consideration had been given to whether reporting could be done. This sits on the radiology side of things: the department of neuro-radiology is not a big department. Ms McLean accepted she had not spoken to anyone in radiology about the possibility of the claimant going there because she was made aware of previous difficulties with a member of INR moving there. She had spoken to Sam Atkinson about whether a reporting role could be done by the claimant and whether the claimant could be separated from the team. He had confirmed this would need to be outwith the department and although this had been considered, it had not been possible due to an issue with another member of staff.

[227]Ms McLean advised that the key issue why the claimant could not be moved to an alternative post was because of previous relationships. Ms Bailey told the tribunal that a female doctor had been moved from INR due to ongoing relationship difficulties with all INR Consultants. Ms Bailey had had many conversations with the doctor, whom she described as being very vulnerable, and understood she had many concerns and issues with the INR Consultants, and that she had made mention of the claimant. Ms Bailey acknowledged this doctor carried out reporting duties from home four out of five days each week, and confirmed consideration had been given to the claimant doing this, but it had been ruled out for the reasons set out in the risk assessment.

[228]Ms McLean and Ms Bailey were, rightly, reluctant to provide details of what had happened to cause the doctor to move/have to move department, but they both described the doctor as being very vulnerable. The tribunal, on the basis of their evidence, accepted the doctor had had issues with all INR Consultants including the claimant and further accepted that it would not have been appropriate to move the claimant into the same department as the doctor even if they were both working from home. The tribunal acknowledged that whilst working from home may appear to put distance between the claimant and the other doctor, the tribunal inferred from the evidence that given the vulnerability of the other doctor, even this was not deemed appropriate.

[229]The tribunal accepted the respondent had given real and proper consideration to moving the claimant to an alternative post but concluded, for the reasons set out and referred to above, that this was not appropriate.

[230]The tribunal further accepted that consideration was given to further restricting the claimant’s duties, but this was considered to be not appropriate in circumstances where the restrictions already in place had not been sufficient in terms of patient safety.

[231]The tribunal accepted that the respondent, having decided against restricting the claimant’s duties further or moving him to alternative post, were left with the remaining option of suspension. It was submitted that suspension had been unnecessary, but in considering this submission the tribunal had regard to the reasons of Dr Dawson and Ms McLean as set out in the risk assessment where it was stated: “There are significant clinical concerns with regard to Dr Iqbal’s communication levels with his team members, specifically in relation to certain individuals. These incidents infer that Dr Iqbal is not able to identify when assistance is required and seek the appropriate and most immediate help. This apparent unwillingness to consult colleagues in times of need is an allegation of clinical incompetence which poses a significant risk to patient safety. Dr Iqbal already has restrictions placed on his medical practice, including a suspension from elective operating. Until an investigation into both incidents has taken place, the senior clinical management team are not satisfied that the current restrictions are sufficient in maintaining robust patient safety levels. There are also limited other options open to the Department that would allow Dr Iqbal to continue to work that do not detrimentally affect the safe running of the department. An option of “reporting only” was discussed by the senior management team. It was determined that the levels of trust within the department are so low that this would not be a workable option for the Department. It has been judged that the most appropriate option is that Dr Iqbal is off site while the preliminary enquiry takes place. This is in the interests of the emotional, physical and mental well-being of all involved, whilst maintaining a safe and effective service to patients.”

[232]The tribunal, having regard to the above conclusions, and having regard to the reasons set out on the risk assessment, concluded the respondent had reasonable and proper cause to suspend the claimant. I say that because the respondent had given real and proper consideration to moving the claimant to an alternative role or restricting his duties, but given neither of those options were possible, and in light of the nature of the concerns and the two datix incidents, the risk to patient safety was a critical factor which underpinned the decision to suspend.

[233]The claimant further submitted that he had remained suspended for nine months, without any sensible reason. The tribunal noted there was no dispute regarding the fact the claimant was suspended for a period of nine months and suspension was not lifted until the formal investigation by Dr Roberts had concluded and Professor Leonard made the decision the matter could move forward under the Annex B procedure.

[234]The length of time taken for Dr Roberts’ investigation is a separate theme and is dealt with below.

[235]The tribunal, in considering this submission, noted the respondent did undertake reviews of the claimant’s suspension and there were two key points which emerged from this: the first was that nothing changed during the course of the preliminary enquiry and investigation which would have impacted on the decision made to suspend the claimant. The reasons for not moving the claimant to a different role/department still existed. The second was that a decision was made that the claimant was to remain suspended pending the investigation carried out by Dr Roberts.

[236]The tribunal could not, for these reasons, accept the submission that the claimant’s suspension continued without sensible reason. The tribunal concluded (above) that the respondent had reasonable and proper cause to suspend the claimant and, having done so, they had reasonable and proper cause to continue that suspension pending the conclusion of Dr Roberts’ investigation. There was a “sensible reason” for continuing the suspension and that was the fact nothing had changed in relation to moving the claimant to another role and nothing had changed regarding the fact there were patient safety concerns.

[237]The respondent’s witnesses were challenged regarding why they had not moved the claimant to a reporting role in Diagnostics. The tribunal accepted this was considered during the review of the claimant’s suspension but was considered not appropriate for all the reasons already set out above. In addition to this the tribunal noted and accepted Dr Dawson’s evidence that there was no vacancy in such a role in Diagnostics.

[238]The tribunal concluded the respondent had reasonable and proper cause to suspend the claimant and to continue that suspension until the conclusion of Dr Roberts’ investigation. There was no breach of the implied duty of trust and confidence.

[239]The fourth theme was that the investigation by Dr Roberts was unnecessarily lengthy, wide ranging and one-sided. The tribunal firstly dealt with the submission that Dr Roberts’ investigation had been unnecessarily lengthy and noted there was no dispute that the terms of reference for the investigation were prepared on 7 September 2023 and the investigation report was produced on 3 June 2024.

[240]The tribunal noted there was an initial delay of approximately one month before Dr Roberts was appointed an HR representative to support her in the investigation. There was no real explanation for this but the tribunal accepted this had been a delay outwith Dr Roberts’ control and that Dr Roberts had pressed HR to progress this matter. The tribunal further noted that once Ms Campbell, HR, had been appointed, matters moved quickly to the planning meeting and thereafter to inviting the claimant to attend a meeting. The claimant had to be given 14 days’ notice of the meeting proposed for 14 November. This meeting was postponed at the request of the claimant’s representative and was rearranged for 14 December.

[241]Dr Roberts met with the claimant twice during the course of the investigation and she interviewed 14 witnesses. The claimant also provided a statement and a very large number (over 1500 pages) of supporting documents, including the appraisal form 4 for 2022/2023. There was no dispute regarding the fact the investigation was complex and involved issues which were complicated.

[242]The tribunal noted there were several factors which contributed to the length of time the investigation took, and they were:(i) the claimant’s representative sought a postponement of the first meeting, which meant that rather than the investigation starting on 14 November, it did not start until 4 December;

(ii) the Christmas holiday period;

(iii) Dr Roberts’ surgery and 6 week recovery time;

(iv) periods of annual leave;

(v) extensions of time for meeting notes to be agreed/varied and

(vi) additional issues which arose and required investigation.

[243]The tribunal acknowledged that on the face of it an investigation taking nine months may appear unnecessarily lengthy, but having regard to the various factors outwith Dr Roberts’ control which contributed to the length of time and the fact the investigation was complex, the tribunal concluded the length of time which the investigation took was not unreasonable. Dr Roberts had reasonable and proper cause to take that length of time to complete the investigation. There were no periods of delay which could have been avoided, added to which Dr Roberts took a very reasonable approach in granting postponements and extensions of time sought by the claimant’s representative.

[244]The next submission was that Dr Roberts’ investigation was too wide ranging and expanded to include matters such as the claimant’s probity and abandoned cases. The remit of Dr Roberts’ investigation was the two Datix incidents and the other concerns which had been raised regarding working as part of the INS team and use of proctors for procedures. The tribunal accepted that during the course of investigating those matters Dr Roberts had regard to the claimant’s appraisals, the log books of the department and the claimant and abandoned procedures.

[245]The claimant, in the documents provided to Dr Roberts’ together with his statement, included the appraisal form 4 for 2022/2023. Dr Roberts noted from this that the appraiser had recorded that Dr Iqbal was to look to report significant events that may be near miss situations rather than just looking for very serious incidents. Dr Roberts also noted that in the following year’s appraisal the claimant had not included or referred to the two Datix incidents and she considered this surprising. Dr Roberts, for these reasons, raised this for discussion with the claimant, because it was not only surprising that he had not included them given what had been noted in the previous appraisal, but it was also of concern that he had not done so because he considered them not to be significant events.

[246]The tribunal was satisfied that Dr Roberts, in carrying out this part of the investigation, was not off on a frolic of her own, but rather was following up a point which arose from the documentation which the claimant had provided and asked her to consider. The point related to the two Datix incidents which were under investigation and was therefore relevant and informative in terms of how the claimant viewed those incidents.

[247]The claimant, at this hearing, produced a letter from the appraiser, confirming that although the two Datix had not been written into the appraisal, they had been raised by the claimant for discussion with the appraiser. The claimant did not produce that letter for Dr Roberts and did not suggest she interview the appraiser. In the circumstances Dr Roberts only had the information, as set out above, to inform her view and the conclusions she reached.

[248]One of the witnesses interviewed by Dr Roberts was Shaun Buchanan and during the course of the interview, he made reference to the department logbook. Dr Roberts was not clear in her evidence to the tribunal whether the claimant first raised the issue of the logbook or Mr Buchanan, but notwithstanding this, the tribunal accepted reference was made to a logbook and as a result of this she looked at both the claimant’s logbook and the department logbook. Dr Roberts noted there were discrepancies between the two and incidents had not been included in the claimant’s logbook. Dr Roberts initially asked for further information regarding this matter but when the claimant’s representative replied with questions why this information was being looked into, Dr Roberts decided not to investigate further because any issues arising would be covered in the Annex B procedure.

[249]The tribunal considered that in all fairness to a party, when the logbook was referred to, it was only right to inform the other party and accept their logbook. The tribunal further considered that Dr Roberts adopted a pragmatic approach to the issues arising from the logbook and when the claimant’s representative questioned why this was being raised and where it was leading, she accepted this and did not pursue it any further.

[250]The tribunal next had regard to the fact Dr Roberts looked at abandoned procedures and accepted that Dr Roberts did so following on from the concerns voiced by Dr Stuart, where he made reference to the fact abandoned procedures could be an indicator of a doctor in difficulty. There are many reasons why a procedure may be abandoned, for example, a patient no longer needing the procedure (the vast majority of cases) or a patient not keeping sufficiently still for the procedure to be performed. Dr Roberts had regard to information provided regarding the number of cases abandoned by the claimant compared to others in the department. The number of cases abandoned by the claimant was almost double those of the others in the department. Dr Roberts next had regard to the reasons for abandoning cases to see whether anything could be drawn from that information.

[251]The tribunal was satisfied that Dr Roberts did not introduce the issue of abandoned cases of her own accord: there was a basis, and a reason, for her looking into that matter.

[252]The tribunal, having had regard to these points, concluded Dr Roberts’ investigation was not too wide-ranging because each of the above points had a bearing on the matters being investigated. The tribunal further concluded Dr Roberts had reasonable and proper cause to include investigation of those matters for that reason.

[253]The next submission was that Dr Roberts’ investigation was one-sided. The claimant, in making that submission, challenged a number of the conclusions reached by Dr Roberts. The first was Dr Roberts statement that the claimant had “at the very least, [been] economical with the truth”.

[254]Dr Roberts made this statement in relation to the issue of not including the two Datix incidents in the appraisal. Dr Roberts wrote in her report at page 1734 that “In his 2023/24 appraisal it is noteworthy that despite the two Datix incidents which were linked to this enquiry, and part of the reason for this suspension, the score for significant events was again 0 and no tangible reason is documented for his suspension. This would again suggest that Dr Iqbal had not discussed these events. He appears to lack insight into the purpose of documenting near miss events at appraisal (suspected ruptured femoral artery would certainly count as this) as a way of improving patient safety and has been, at the very least, economical with the truth.”

[255]Dr Roberts was challenged about this in cross examination and about the claimant’s position that it had been discussed with the appraiser. Dr Roberts said that surprised her and that it did not explain why significant events were recorded as zero. She went on to say that the Form 4 of the appraisal (completed by the appraiser) was sent to the claimant in draft so that the appraisee could suggest amendments, and if there had been a discussion about the datix incidents as significant events, she would certainly have suggested it should be included and reflected on the form.

[256]Dr Roberts was referred to the letter from the appraiser confirming the incidents had been discussed. She confirmed she had not seen the letter before and found its content “very surprising”. She did not doubt what was written but still considered that the claimant, having been told the previous year to record significant events, should have done so and that there were inconsistencies in the documents.

[257]It was suggested to Dr Roberts that her statement that the claimant had been economical with the truth should be revised. Dr Roberts acknowledged it could be, but maintained there were still inconsistencies between the Form 4 and what the claimant had said. She did not accept that her view regarding the claimant’s probity was wrong: she reiterated there were still inconsistencies.

[258]Dr Roberts was also challenged regarding her comments in the report (page 1727) that the claimant had presented a view that he had been “head-hunted” to help “save” the service in Glasgow, in short that the claimant had sought to inflate his own importance. Dr Roberts confirmed that the views reflected in the paragraph entitled “General Behaviour” were based on the views presented by the claimant and that many of his statements had suggested that he had been sought out to bring the service back to Glasgow.

[259]Dr Roberts was challenged regarding her conclusion (page 1732) that after the claimant was not appointed Clinical Lead, there was a pattern of “blatant disruptive behaviour and lack of willingness to work in a team with his consultant colleagues.” Dr Roberts explained that she had been aware the department had been very dysfunctional and that all members of that dysfunctional team had left. The claimant had come in, together with Dr Izzath and another doctor and relationships had been good. It was only after the appointment of the Clinical Lead that things deteriorated and the claimant’s behaviour became an issue and he was disruptive at multi-disciplinary meetings. Dr Roberts observed that following the claimant’s suspension, the team had returned to functioning well. Dr Roberts had based all of this on the evidence gathered from multiple witnesses.

[260]Dr Roberts was also challenged regarding a statement in her Overall Summary and Findings (page 1734) where it was stated that “throughout the interview Dr Iqbal presented as a victim of circumstances and at no point considered that he was responsible for any of the presented issues. He continually presented information (emails from Dr Davidson and Mr Williams) on how people in “top” positions wanted him and how various members of senior management teams (Dr Devlin and Dr Dodds) had sought to undermine this. When asked why the information provided was at such odds he presented a conspiracy theory against him and at no time reflected that his own actions may have some role.”

[261]Dr Roberts explained she had tried to reflect that when asked about the two datix incidents the claimant suggested they were not incidents and further suggested that the person submitting one of the datix was not expert enough to do so: at no time had the claimant reflected on patient safety and outcomes. The claimant linked what had happened to the bullying claims which he had made and maintained people did not want him in the department, rather than ever considering the events which had led to the concerns.

[262]There was a dispute between the parties regarding whether the claimant had used the term “malicious”. The notes of Dr Roberts’ meeting with the claimant (page 1504) record that when Dr Roberts asked the claimant why he thought staff were unable to approach him, he replied “I have always had staff approaching me and I am not unapproachable. I feel these incidents are malicious and I feel this would happen no matter what I had done.” The tribunal preferred the evidence of Dr Roberts regarding this matter and did so because the term “malicious” reflects what the claimant thought of the concerns which had been raised including the two datix incidents: he thought there was no basis to any of these matters and that they had been raised because he had made the bullying complaint. This however ignored the fact that concerns had been raised prior to the bullying complaint being made.

[263]The tribunal concluded, for all the reasons set out above that Dr Roberts was entitled to reach the conclusions which she did, based on the information before her at the time.

[264]The tribunal noted that it was suggested to Dr Roberts during cross examination that she should have considered inviting an independent expert to make findings on the two datix incidents. Dr Roberts, in response to this suggestion, replied that she had sufficient expertise in-house and that the two datix incidents were not the only issues to be investigated. Further, and in the opinion of the tribunal, crucially, it was not for Dr Roberts to make final findings regarding competency on the two datix incidents, because that would be for the independent assessors to do.

[265]The tribunal considered that Dr Roberts’ replies detailed the correct approach: this was an investigation into the matters as set out in the terms of reference and it was not for Dr Roberts to make any determination regarding competency. Further, there was no evidence either led by the claimant or asked of the respondent’s witnesses, whether, under the respondent’s policies and procedures, Dr Roberts had authority to appoint an independent expert as part of her investigation.

[266]The tribunal, having concluded the investigation was not unnecessarily lengthy, wide-ranging or one-sided, decided Dr Roberts carried out a thorough and reasonable investigation. Dr Roberts had reasonable and proper cause to act as she did in carrying out that investigation. The tribunal noted in any event there was no dispute regarding the fact the respondent agreed to the claimant’s request not to share Dr Roberts’ investigation report with the independent assessors: accordingly no reliance would have been placed on any of her findings by those assessors. There was no breach of the implied duty of trust and confidence.

[267]The fifth theme was that the investigation led to an inappropriate expansion of the allegations against the claimant. Mr Hardman, in his submission, referred the tribunal to the letter from the claimant’s representative to Ms Allen at page 1788. The letter, which was sent on 14 November 2024, where reference was made to the letter sent by Dr Roberts to the claimant inviting him to attend an investigatory meeting. The letter had set out the allegations as being the two datix incidents with the areas of concern being decisionmaking during procedures, competence to perform procedures, potential patient safety issues and secondly, more general concerns, being working as part of the INS team and use of proctors for procedures.

[268]The letter went on to say that at the conclusion of the investigation into those allegations, the management statement of case for Annex B contained the following: “1. It is alleged that Dr Iqbal is not up to the standard of a competent Consultant Neuroradiologist, due to concerns about his decisionmaking during procedures and competence to perform procedures, resulting in a potential risk to patient safety. This is evidenced by the 2 incidents below, his use of specific proctors for procedures (one of whom scrubbed in and completed the procedure on several occasions) and that he has more abandoned procedures than his colleagues.a. Datix 1

b. Datix 2 2. It is alleged that Dr Iqbal’s behaviour is disruptive to team working. It is alleged that Dr Iqbal does not show any self-reflection or awareness of others responsibilities and had taken every attempt to support him by senior management as an attack. It is alleged that Dr Iqbal has not reflected on his own practice or considered how or if it could be any better. 3. It is alleged that Dr Iqbal shows a lack of insight into his ability and considers his ability to be well above how it is perceived by his colleagues. There are concerns about information presented by Dr Iqbal in the form of his two most recent appraisals. Both covered periods where there had been Datixes in relation to his practice but in neither appraisal was this recorded in the conversation and on both significant events and critical incidents were scored as 0 despite documentation in the first form 4 that near miss events should be recorded. Dr Iqbal did not think these Datix were “significant enough” to present at appraisal.”

[269]The letter went on to say that part of allegation 1 and allegations 2 and 3 were not part of the preliminary enquiry and it was stated that for allegations to be considered at Annex B they were required to have undergone a preliminary enquiry.

[270]Ms Carol Allen, HR Advisor, responded to that letter (page 1788) and attached a copy of the preliminary enquiry record which stated that “Dr Iqbal had been asked to address concerns regarding patient safety and escalation during neuro-interventional procedures. These concerns resulted in two Datix reports being submitted. In addition concerns were also raised by Mr Wesley Stuart, Chief of Medicine for South sector.” The record also noted “We discussed the Datix reports in turn and then discussed the wides concerns raised in Mr Stuart’s emails”.

[271]Ms Allen also confirmed a preliminary enquiry was not an investigation and that there was no requirement at that stage to formalise the allegations. Ms Allen concluded by stating she believed allegations 1, 2 and 3 had been subject to discussion with Dr Iqbal and as such were not new allegations.

[272]Mr Hardman also referred to the claimant’s evidence in chief regarding the reasons for resignation, where the claimant had said he resigned because his trust and confidence had been breached. He considered there should have been an independent INR expert to provide expert opinion regarding the two datix incidents to the investigation, he considered there had been delay in investigating the concerns, a lack of particulars regarding the allegations, issues with job plans and new allegations in the statement of case for the annex B procedure.

[273]All of the points referred to by the claimant have been dealt with above, with the exception of the last two. In relation to the penultimate point, the tribunal heard little evidence regarding the issue of job plans and, because of that, had no real understanding of the point/s the claimant was seeking to make. There was reference to rotas not matching the job plan, but there was a suggestion this was because of restricted duties. The tribunal was not able to make any findings in fact or decisions regarding this matter due to a lack of evidence.

[274]The tribunal next turned to consider the claimant’s position that there were new allegations in the statement of case. The tribunal acknowledged the statement of management case did not simply reflect the allegations as they had been set out in the letter inviting the claimant to an investigation meeting.

[275]The tribunal had regard to the evidence of Professor Leonard who had drafted the statement of case. In his evidence Professor Leonard confirmed the allegations all came out of the investigation and each of the matters listed could affect patient safety. He further confirmed that the whole point of the process was to be satisfied the claimant was up to the competency expected and that there were no patient safety concerns. Professor Leonard echoed the evidence of Dr Stuart regarding abandoned procedures and confirmed that if the rate was high it raised a question of whether you can do the job. The tribunal took from this evidence that it was therefore a very helpful indicator to consider.

[276]Professor Leonard, stated in cross examination, that the datix were part of a safety system which captured things outwith the norm. The concern was clinical safety and inherent in that was that there was an issue to be addressed, that is a competence issue. Professor Leonard accepted the issue of the appraisal had not been raised during the preliminary enquiry, but confirmed it had been raised during the full investigation and the claimant had had an opportunity to have his say regarding this matter.

[277]The tribunal was satisfied, having regard to the relevant documents (above) and to the evidence of the claimant and Professor Leonard, that there were no new allegations raised in the statement of management case. The concerns of the respondent may have been set out differently and the general concerns broken down to be more specific with further details, but there was nothing in the statement of management case which had not been raised and discussed with the claimant during the investigation.

[278]The first allegation set out in the statement of management case alleged that the claimant was not up to the standard of a competent Consultant Interventional Neuroradiologist. The tribunal accepted the concerns had not been stated in this way previously, but the competency of the claimant was the core issue in the two datix incidents and the claimant knew there were concerns about his decision-making during procedures and competence to perform procedures, resulting in a potential risk to patient safety. The claimant also knew that his use of specific proctors was an issue and the subject of abandoned procedures had been discussed with him during the investigation. There were no new matters.

[279]The second allegation concerned the claimant’s behaviour which was disruptive to team working. This was part of the general concerns which had been raised under the heading of “working as part of the INS team” and had been discussed fully with the claimant during the investigation.

[280]The third allegation was that the claimant showed a lack of insight into his ability and there was concern regarding the information presented by him in the appraisals. The tribunal acknowledged that the allegations had not previously included a discrete reference to the appraisals, but this was a matter which arose during the investigation and was a matter the claimant had had an opportunity to consider and discuss.

[281]The claimant’s representative suggested that as certain matters had not been subject to the preliminary enquiry, they could not proceed to the annex B procedure. The tribunal noted the representative did not provide any basis for his assertion and none of the respondent’s witnesses were asked about this. In any event Ms Allen dealt with this in her response to the representative when she clarified the preliminary enquiry was not an investigation and there was no requirement to formalise the allegations at that stage. She went on to say that the purpose of the preliminary enquiry was to provide sufficient information to the Chief of Medicine to enable them to decide how best to progress in terms of NHS Circular NO 1990 (PCS) 8. Further, for professional conduct/competence cases the Board also carried out a more detailed preliminary investigation prior to determining whether the case should be dealt with under Annex B or Annex C.

[282]The tribunal took from this that there was no requirement for every allegation to have been through the preliminary enquiry before it went to the Annex procedure. The tribunal considered that must be correct when the purpose of the preliminary enquiry is only to have a preliminary look at matters in order to decide how best to proceed. Further, and in addition to this, the tribunal understood there is the underlying duty on doctors to raise issues which may impact on patient safety and therefore it would have been remiss of Dr Roberts not to have made mention of this when it arose as an issue in the investigation.

[283]The tribunal, having had regard to all of the above points, concluded no new allegations were added to the statement of management case and the respondent had reasonable and proper cause to act as it did in preparing the statement of management case. There was no breach of the implied duty of trust and confidence.

[284]The tribunal has addressed each of the five themes identified by the claimant in submissions (and which incorporated the remaining points in paragraph 69 of the updated paper apart to the claim). The tribunal has decided, in respect of each of the themes, and for the reasons which are set out above, that the respondent acted with reasonable and proper cause in reaching its decisions and in acting as it did.

[285]The tribunal next stood back to have regard to the totality of the issues in this case. The tribunal acknowledged there had been a complex and lengthy procedure which had been dealt with in accordance with the respondent’s applicable policies and procedures. The tribunal further acknowledged the claimant wanted an opportunity to have experts review the allegations and concerns regarding his competence: it was unfortunate the claimant resigned prior to the Annex B procedure, which would have provided the claimant with this opportunity. The tribunal decided (above) that none of the five themes either individually or cumulatively breached the implied duty of trust and confidence. The tribunal, having regard to the totality of the issues and the Malik case, concluded the respondent had reasonable and proper cause for its conduct and further concluded, for all the reasons set out above, that the respondent did not conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between it and

[286]The tribunal finally addressed the questions set out in the Kaur case (above). The most recent act on the part of the employer which the employee said caused or triggered his resignation was the (alleged) inappropriate expansion of the allegations against the claimant. The claimant did not affirm the contract since that (alleged) act. That (alleged) act was not by itself (for the reasons set out above) a repudiatory breach of contract. Further, it was not (for the reasons set out above) part of a course of conduct comprising several acts and omissions which, viewed cumulatively amounted to a repudiatory breach of the Malik term.

[287]The tribunal decided, for all of the reasons set out above, there was no breach of the implied term of trust and confidence entitling the claimant to resign and claim constructive dismissal. The tribunal decided to dismiss the claim.