Mr A Chandio v Grampian Health Board: 8001246/2024

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8001246/2024

Venue Aberdeen

Hearing 4, 5, 6 & 7 November & 17 & 18 December 2025

Between

Mr Ashfaq ChandioClaimant

Grampian Health BoardRespondent

Before

Employment Judge N M Hosie

Date 16 January 2026

JUDGMENT

The unanimous Judgment of the Tribunal is that the claim is dismissed.

REASONS

[1]Mr Ashfaq Chandio’s claim comprised complaints of unfair dismissal; breach of contract; discrimination in respect of the protected characteristics of race and religion or belief (direct discrimination in terms of s.13 of the Equality Act 2010; harassment, in terms of s.26; and victimisation, in terms of s.27). The respondent, Grampian Health Board (“GHB”), admitted the dismissal but claimed the reason was “some other substantial one”, namely, the termination of Mr Chandio’s fixed term contract on its expiry and that it was fair. So far as the other complaints were concerned, they were denied in their entirety.

The evidence

[2]On behalf GHB we heard evidence from:• Professor Duff Bruce, Clinical Director at Dr Gray’s Hospital, Elgin (“the Hospital”) at the relevant time;

• Laura Nicol, Consultant Surgeon, Clinical Lead and Mr Chandio’s immediate Line Manager, at the relevant time;

• Lynne Green, Administrative Support Manager, at the Hospital, at the relevant time;

• Abdul Qadir, Consultant Surgeon at Aberdeen Royal Infirmary (“ARI”) who conducted a Preliminary Enquiry, arranged by Professor Bruce, to address concerns about Mr Chandio’s clinical practice, arising from two clinical events in August and November 2023;

• Karen Bell, Operational Manager for Surgical Services, at the Hospital, at the relevant time. We then heard evidence from Mr Chandio.

[3]A Joint Bundle of documentary productions was submitted (“P”); Mr Chandio also submitted his own bundle (“P2/”). Helpfully, a “Table of Acronyms” was also produced.

[4]Having heard the evidence and parties’ submissions, the Tribunal reconvened, on its own, on 17 and 18 December 2025, to consider the issues, deliberate, and reach a decision. Observations on the evidence

[5]Each of GHB’s witnesses gave their evidence in a measured, consistent and convincing manner and presented as credible and reliable. Significantly, the Tribunal was of the unanimous view that there was no evidence to suggest that Mr Chandio’s race or religion were factors in the way they treated Mr Chandio.

[6]Mr Chandio conducted the hearing in a courteous manner and presented his case clearly. We remained mindful throughout that he was unrepresented and had no experience of Employment Tribunal proceedings; we made appropriate allowances, having regard to the “overriding objective” in the Tribunal Procedure Rules and the requirement to deal with cases “fairly and justly”. However, Mr Chandio had a tendency to draw conclusions that he was discriminated against by GHB which, when viewed objectively, were not justified. As we recorded above, we were of the unanimous view, on the evidence, that his treatment, in particular by Professor Bruce, the Clinical Lead at the relevant time, who was involved in recruiting Mr Chandio and in various aspects of his management, and others at GHB, involved in his management, was not motivated or influenced, in any way, by his race or religion.

The facts

[7]Having heard the evidence and considered the documentary productions, the Tribunal was able to make the following findings in fact, relevant to the issues with which we were concerned. Mr Chandio is a General Surgeon with many years’ experience, working worldwide. He is Pakistani and Muslim.

[8]In late 2021, GHB advertised the post of Locum Consultant General Surgeon at Dr. Gray’s Hospital, Elgin (“the Hospital”). The closing date for applications was 29 November 2021 (P.523-527). A Job Description was part of the advertisement:- “SURGICAL DEPARTMENT – DR. GRAY’S HOSPITAL STAFFING There is an establishment of five Consultant General Surgeons based at Dr. Gray’s Hospital. This appointment is for a Consultant General Surgeon to replace a Consultant who is doing a fellowship for one year. The primary requirement of this post is wide experience and competence across the spectrum of General Surgery and in particular emergency surgery. Any appointee will be encouraged to develop an area of interest which is appropriate to the needs of the department……………………………………. Activity Each Consultant will typically have two outpatient Clinics per week. One of these will be in a Community Hospital. This is complimented by three operating sessions (half days) of which two will be GA lists and one will be Endoscopy or minor( LA) surgery. The majority of minor surgery is carried out by the GP Minor Surgery Service. The surgical unit sees about 200 inpatients per month of which 30% are elective admissions, 27% are day cases and 42% are emergency admissions. At present, the Surgical Service meets all national targets for waiting times……………………………………. 7. MANAGEMENT The Consultant will be responsible to the Lead Consultant for day-to-day matters and report to Unit Clinical Director for professional clinical issues (including appraisals and job Reviews). The Lead Consultant and Consultant colleagues are accountable to the Assistant Chief Executive for budget, resource and service performance.”

[9]Professor Duff Bruce was the Clinical Director; Mohamed Bekheit was the Lead Consultant; Laura Nicol was the Clinical Lead.

[10]Mr Chandio applied for the position and was interviewed on 20 January 2022. The panel’s Notes of his interview were produced (P.555-558).

[11]Mr Chandio’s application was successful and in due course he was provided with a written statement of terms and conditions of employment which he accepted. (P.569-575). The contract was for a fixed term of 12 months with a start date on 4 April 2022 and an end date on 3 April 2023. Job Plan

[12]The provisions regarding a Consultant’s Job Plan were in the “Consultant Grade Terms & Conditions of Service” at Section 3 (P.254-258). Mr Chandio’s Job Plan was signed off and agreed on 3 June 2022 (P.584). Contamination and ventilation issues Allocation of Theatre Times

[13]In or about August/September 2022, there was a significant contamination and ventilation issue at the Hospital, caused by a sewage leak. This caused GHB to close Theatres and carry out a rapid review of which Theatres could remain open.

[14]There were 4 Theatres and an Endoscopy Suite at the Hospital. Following the contamination, elective operations were cancelled, there was only one Theatre operational, while 2 Theatres were being cleaned, and the fourth Theatre was used for Endoscopies.

[15]This had a dramatic effect on the operating elements of all the Consultant’s Job Plans, including that of Mr Chandio.

[16]We accepted the evidence of the respondent’s witnesses, and Professor Bruce in particular, that they tried to treat all Surgeons equally when it came to the allocation of Theatre times and that, “Teams met on at least a weekly basis and went through the list as best we could.”

[17]A summary of “General Surgical Theatre Activity April 2022 to April 2024” was produced (P.1289). Lynne Green the Administrative Support Manager, an impressive witness, credible and reliable, was involved in its preparation along with Lorna Stewart, Service Manager, Surgical Services. We were satisfied as to its accuracy. Mrs Green was responsible for the preparation of the Theatre Lists. In some months Mr Chandio had more Theatre work than other Consultants, in other months he had less. Overall, he did not have less. As Mrs Green put it, “if anything, it was more”. She denied that Mr Chandio was treated differently because of his race or religion.

[18]Mr Chandio was also offered “out of hours clinics”, in the same way as the other Consultants. However, his preference was for evening clinics which was more difficult to accommodate. In general, the other Consultants accepted the offer of out of hours clinics more readily than Mr Chandio. Clinic Sessions

[19]With the closure of Theatres, all Doctors at the Hospital were asked to use time freed up by this situation to undertake alternative work such as Clinics which were within their typical skillset. Mr Chandio was unhappy with this, in principle. In any event, a list of the Clinic Sessions at the Hospital from April 2022 to March 2024 was produced (P.1292). We were satisfied that it was accurate. Karen Bell, a very experienced “Unit Operation Manager” and another credible and reliable witness, gave evidence about these Sessions. She strongly denied Mr Chandio’s contention that he would only be allocated Theatre time if he did Clinics. She said that Consultants could refuse the offer of Clinics. We accepted her evidence. Mr Chandio did not do more Clinics than any of the other Consultants. Endoscopy work

[20]Mr Chandio had been doing Endoscopy work for his first few months at the Hospital as part of the “JAG Endoscopy Training System” (“JETS”). However, it stopped in late 2022. The reason for this was that on 29 September 2022 Dr. Emma Metcalfe, Gastroenterologist, brought to the attention of Dr Perminder Phull, the Clinical Lead for Endoscopy in the Grampian Region, and Aileen McKinley, General Surgical Clinical Lead in Aberdeen, a concern that Mr Chandio had “low numbers” and “low completion rates”, of Endoscopies (P.700-701).

[21]This was also brought to the attention of Professor Bruce at the Hospital (P.700). We accepted his evidence that, “105 in total was below what could reasonably be expected”; that a “68.4% completion rate is low, the expectation being a completion rate in excess of 90%”.

[22]The fact that Mr Chandio was also “scoping independently” was also a concern because of the low numbers and low completion rate.

[23]There were discussions concerning Mr Chandio being allowed to continue doing “scopes” and on 22 December 2022 Dr. Phull sent the following email to Professor Bruce and others (P.627):- “It would be useful to see Mr Chandio’s C.V. & evidence of previous scopes/KPIs. His latest completion rate is below 70% and the discomfort levels are on the high side. This is not quite a (straightforward) case of underperformance in an accredited independent endoscopist. My understanding is that Mr Chandio does not even have provisional JAG (Joint Advisory Group of Gastrointestinal Endoscopy) accreditation. There would be no issue with him performing OGDs (Oesophagoduodenal Endoscopy/ Upper GI Endoscopies – “UGIES”), but I would suggest Duff & Hew sit down with him and discuss his colonoscopy performance. It sounds like he should only be doing supervised colonoscopy lists for the time being.”

[24]Others had also expressed concerns about Mr Chandio’s Endoscopy work. On 23 November 2022, Karen Bell, Unit Operational Manager, sent an email to Laura Nicol, the Clinical Lead and Professor Bruce (P.617). She told them “We may have a problem” and referred to an email which she had received from Louise Webster, Senior Charge Nurse, that afternoon: - “I have completed some investigation regarding your request. The team that work in Endoscopy has on more than one occasion escalated Mr Chandio to the team leader (GW). He in turn has spoken to Dr. Hew about his performance and patient comfort with withdrawal of consent being a main issue on more than one occasion. As far as GW is aware Dr. Hew has spoken previously to Mr Chandio surrounding these issues. They do find him challenging to work as part of a team with him, but his behaviour has not changed even though Dr. Hew has presumably spoken to him. I am unaware of any gentleman complaint however on that Friday a patient withdrew consent and the (sic) continued the procedure even though the team told him to stop 3 times. I am awaiting a Datix (a risk management and reporting system for “adverse events”) regarding this as the comfort score was rated 5. If anything else arises I will let you know.”

[25]There were further discussions about this. Professor Bruce was no longer comfortable supporting Mr Chandio doing unsupervised Endoscopy work and a decision was taken that he would only be permitted to carry out Endoscopies under supervision (P.621, for example). Unfortunately, there was no one available at the Hospital to supervise him and this was why his Endoscopy work ended in November/December 2022. Mr Chandio carried on as a General Surgeon, but he was not doing Endoscopies. The majority of Consultants at the Hospital did not do Endoscopies.

[26]In light of these concerns, Professor Bruce was, “uncomfortable signing off his Performance Based Assessment” (“PBA”- a generic term for the assessment under supervision of practical procedures). Contract extension

[27]Mr Chandio’s contract was extended by letter dated 12 September 2023 to a period of 24 months. It was due to end on 3 April 2024 (P.782-788). The contract was subject to three calendar months’ notice on either side (P.784). Job Plan

[28]As Mr Chandio’s Job Plan had been signed off and agreed on 3 June 2022 (P. 584), it was due for annual review in June 2023, in terms of para. 3.3.1 of the Consultant Grade Terms and Conditions of Service (P.258) but this did not happen as Mr Chandio was not prepared to agree.

[29]In May 2023, Laura Nicol, Consultant Surgeon, Clinical Lead, and Mr Chandio’s direct Line Manager, was in discussions with him concerning a review of his Job Plan.

[30]Mr Chandio’s initial Job Plan had commenced on 4 April 2022 (P.584-596). However, it became impossible for GHB to adhere to the programmed operating sessions.

[31]There were two reasons for this. The first was the contamination and ventilation issues caused by the sewage leak in August/ September 2022 which reduced access to Theatre times and effectively closed off Theatres for Endoscopy, except for the most basic emergency procedures. The effect of this was to render it impossible for GHB to adhere to operating sessions for any of its Consultants, in terms of their Job Plans, including that for Mr Chandio.

[32]The second reason was that GHB was advised that Mr Chandio (and another locum Consultant Surgeon at the Hospital) had not completed a sufficient number, of Endoscopies of the required quality, or success rate to permit him to perform Endoscopies independently (P.698-701). There was nobody available at the Hospital to supervise Mr Chandio, despite considerable efforts by Ms Nicol to find someone. He could not possibly be permitted, therefore, to carry out Endoscopy operating sessions as provided for within his initial Job Plan.

[33]In these circumstances, it became necessary for Ms Nicol to seek to agree a revised Job Plan with Mr Chandio but he refused to do so. Ms Nicol attempted on a number of occasions to meet Mr Chandio in order to reach agreement and update his Plan. She explained to him that as he was no longer allowed to perform Endoscopy sessions he could not keep them in the Plan. A Job Plan which is incorrect cannot be submitted to the General Medical Council (“GMC”) for a Certificate of Eligibility for Specialist Registration (“CESR”). Ms Nicol declined, therefore, to sign off a Job Plan which was not correct and Mr Chandio declined to amend his Job Plan. There was also a Mediation but that did not resolve matters. Review process in respect of two “clinical events” of concern and resultant practice restriction

[34]On 1 December 2023, Professor Bruce and Lorna Stewart, Service Manager for Surgical Services at the Hospital, met Mr Chandio and explained that, as he had been involved in two “clinical event” cases of concern where “Level 1 Reviews” had been recommended, GHB intended to review his practice around those cases. Further, as there were concerns about Mr Chandio’s practice in emergency situations, while the Reviews took place his work pattern would be adjusted so that he did not participate in the emergency rota or in aspects of unscheduled care (P.806). Professor Bruce discussed this with the GHB Medical Director, Professor Nicholas Fluck, and he approved these restrictions. Professor Fluck was the only person who had such authority. The two clinical events

[35]The first involved a young patient with a twisted testicle. He was first referred to the surgical team at the Hospital by his G.P., Dr Gary Milne, on 17 August 2023. Dr Milne understood that Mr Chandio was the surgical Consultant on call for the day and he spoke with him on the telephone. He was critical of Mr Chandio who he described as, “obstructive on the phone and dismissive” (P.813-814).

[36]“Datix” is GHB’s risk management and reporting system. A Datix was completed following the complaint from Dr Milne, by way of email to Professor Bruce. Mr Chandio was advised of this complaint in an email from Karen Bell on 23 November 2023 (P.813-814).

[37]The second “Clinical Event” of concern involved Mr Chandio’s treatment of a patient with a “symptomatic abdominal wall hernia” on 18 November 2023, Level 1 Review

[38]There was a “Level 1 Review”. Not only did Professor Bruce and Laura Nicol have a discussion with Mr Chandio, they also spoke with Consultants at ARI who had knowledge of the two clinical events and Professor Fluck who approved the restrictions. Preliminary Enquiry

[39]Professor Bruce then wrote to Mr Chandio on 18 January 2024 to advise him that he had commissioned a Preliminary Enquiry to investigate his clinical practice during the two cases (P.859-860).

[40]On receipt of an email from Mr Chandio advising that he would be travelling to Pakistan in an emergency as his mother was seriously ill, Professor Bruce telephoned him early in the morning of 18 January to forewarn him that he would be receiving the formal letter. A screenshot of the telephone call was produced (P.861). It was accepted by GHB’s Counsel that while “well intentioned” this was “clumsy” and Professor Bruce apologised for it.

[41]The Preliminary Enquiry was carried out by Mr Abdul Qadir, Consultant Surgeon at Aberdeen Royal Infirmary and Unit Clinical Director. Mr Qadir was also an impressive witness. In the unanimous view of the Tribunal, his evidence was entirely credible and reliable. Investigation meeting on 4 June 2024

[42]For a variety of reasons, it was not possible to arrange an investigation meeting with Mr Chandio until 4 June 2024. We accepted Mr Qadir’s evidence that there was no deliberate attempt to delay the process. The main reasons for the delay were the unavailability of the parties; Mr Chandio’s initial objection to Mr Qadir’s involvement (subsequently withdrawn); and emergency and clinical commitments of those involved.

[43]A Note of the meeting was produced (P.998-1008). Preliminary Enquiry Report

[44]Mr Qadir’s Preliminary Enquiry Report was not issued until 30 July 2024 (P.1061-1083) which was after Mr Chandio’s employment had ended (see below)

[45]The conclusion in the Report was not to restrict Mr Chandio’s practice but to recommend, “learning outcomes” (P.1082).

[46]So far as the recommendations were concerned, Mr Qadir said this (P.1082- 1083):- “Mr Chandio is no longer employed by NHS Grampian however if he was, the Preliminary Enquiry Panel are of the opinion that the evidence gathered from this case justifies learning outcomes which may be covered by standard(s) setting as described within NHS Grampian’s Framework for Support for Medical & Dental Employees. The Commissioning Manager will, of course, have the final say and the option to decide if further action including standard setting is required.”

[47]On 12 August 2024, Professor Bruce wrote to Mr Chandio (P.1084-1085). He said this in his letter:- “As you are no longer employed by NHS Grampian you are required to take the findings of the report to your next appraisal and the report will also be shared with your current Responsible Officer.”

[48]He also went on in his letter to apologise, “for the significant delays in concluding the Preliminary Enquiry.” Termination of Mr Chandio’s employment

[49]On 18 December 2023, Professor Bruce had written to Mr Chandio to invite him to a meeting on 5 January 2024 concerning the “Proposed Termination of Contract on Grounds of Expiry of Fixed-Term Contract (Non-Disciplinary Dismissal Procedure)” (P.817-818).

[50]This was a standard procedure and was unrelated to the Review process and the Preliminary Enquiry. “Situation Summary”

[51]On 18 December 2023, a “Situation Summary” of Mr Chandio’s employment had been prepared by Karen Bell, Unit Operational Manager. We heard evidence from Ms Bell at the Tribunal Hearing and she, like the other respondent’s witnesses, presented as entirely credible and reliable. Her “Situation Summary” was in the following terms (P.819):- “Dr Ashfaq Chandio has been employed by NHS Grampian as a Locum Consultant General Surgeon since 4 April 2022. Dr. Chandio was initially engaged on a fixed term contract until 3 April 2023 and this was extended to 3 April 2024. Dr. Chandio is not on the GMC Specialist Register which is an essential requirement for a substantive consultant appointment post. As a service we need substantive consultant vacancies in order to have a sustainable general surgery service in Dr. Grays. Dr. Chandio’s contract therefore needs to be terminated so that funds are released to recruit a substantive consultant. This Non Disciplinary Dismissal Procedure Hearing has therefore been arranged in line with the NHS Grampian Framework for Support policy to consider termination of contract of employment on the grounds of expiry and non-renewal of fixed term contract and in line with the Fixed Term Contracts Policy. We would also ask the panel to confirm the right to the redeployment register for a period of 3 months as per the Redeployment Policy.”

[52]Mr Chandio’s medical defence solicitor, Ms Eram Malik, got involved at that stage (P.846-850). Termination of contract meeting on 5 January 2024

[53]At a meeting on 5 January 2024, chaired by Professor Bruce, Mr Chandio was given 3 months’ notice of the termination of his contract of employment.

[54]On 12 January 2024, Professor Bruce wrote to Mr Chandio to confirm the termination of his contract (P.851-852). The following are excerpts from his letter:- “During the meeting Karen explained that you had initially been engaged on a fixed term contract until 3 April 2023 and this was then extended to 3 April 2024. It was explained that the service are looking to recruit a substantive consultant appointment and as you are not on the GMC Specialist Register you are not eligible to be considered for the substantive appointment. You did not have any questions for Karen and confirmed you did not have anything further to add when asked. You did query the redeployment process and Claire confirmed that the redeployment was an entitlement for staff members who had been employed on a fixed term contract and that they would be placed on the redeployment register for a period of time prior to the end of their fixed term contract, which runs concurrently with the notice period. During this time staff are afforded preferential consideration for all posts for which they fulfill the essential requirements. There was then an adjournment for the panel to consider the information available and make a decision. When we reconvened, I confirmed the decision I’d taken as Chair, was that your contract of employment as a Locum Consultant be terminated on the ground of the expiry and non-renewal of the fixed term contract. As your fixed term contract will come to an end on 5 April 2023 (sic) and as discussed earlier in our meeting you are also entitled to 3 months on the NHS Grampian Redeployment Register, in line with the NHS Grampian Redeployment Policy. It was agreed that Claire will contact your representative and yourself outwith the meeting to arrange a meeting as soon as possible. Karen will also join this meeting from management.”

[55]Mr Chandio was also advised of his right of appeal.

[56]Mr Chandio did not appeal and he declined the offer of going on the Redeployment Register.

[57]Mr Chandio continued to work at the Hospital until 4 March 2024 when he took leave. He did not return to work thereafter. However, he was still paid until 3 April 2024 (P.288).

[58]We were satisfied that it was a specific requirement of GHB that only Consultants on the “Specialist Register” could be appointed to a substantive post at the Hospital. As it transpired, despite advertisements GHB were unable to appoint a Consultant to a substantive post at the Hospital. Instead, following a Ms Monaghan’s resignation there were two vacancies and Mr Sandip Halder and Mr Jo Jo James were appointed “Specialist Doctors” which enabled them to be included on the rota. Mr Chandio’s Grievance

[59]On 20 March 2024, during his notice period, Mr Chandio submitted a grievance (P.888-893). “Early resolution meeting” on 3 April 2024

[60]A Note of the meeting was produced (P.906-912).

[61]On 8 April, Professor Bruce wrote to Mr Chandio with the outcome (P.913- 915). It was agreed that Mr Chandio should have been paid at the higher 8% rate for his on-call work (P.907). The difference was paid in due course to him.

[62]In response to Mr Chandio’s complaint that his Job Plan was not followed, Professor Bruce said this in his letter:- “You expressed concern that your job plan did not reflect the actual work that you were being asked to undertake and that the distribution of theatre lists was not carried out fairly. You also stated that you felt that you had been intentionally excluded from email correspondence with regards theatre sessions. Karen (Bell) and I offered assurance that attempts were made to ensure a fair distribution of theatre sessions and that if a staff member was on AL or on call then they would not be included in an email. You did not accept this to be accurate and suggested that a review of theatre activity over a 2 year period would support your view………………………………………… You expressed disappointment that you had been offered support with JAG (Joint Advisory Group on Gastrointestinal Endoscopy) accreditation at your interview and this did not materialise despite you repeatedly contacting colleagues across NHS Grampian to seek support. I acknowledge your frustration and confirmed that this had been our intention. Unfortunately, we were unable to provide the necessary training within NHS Grampian as there are insufficient accredited trainers so it is not permitted. This is something we are looking to address and I apologise that we are not in a position to resolve this during your employment with us……………………………………. I have previously acknowledged that there were delays in communicating the commissioning of the Preliminary Enquiry and offer sincere apologise (sic) for the impact this delay had on you. From our discussion it was clear that there was a lack of clarity about the different processes underway. I confirmed that the two Level 1 investigations and the Level 2 investigations were carried out in line with the NHS Grampian Management of & Learning from Adverse Event Review Policy. Their purpose is to ensure that any organisational learning training from adverse reviews is identified and taken forward. The Preliminary Enquiry (PE) is separate to an AER review (Adverse Event Review) as they relate to an individual member of staff. The purpose of a PE is to fully identify the nature of a potential problem, form a view as to whether it is of a serious nature and report findings based on the concerns and subsequent investigation. During our discussions you also raised concern that the restrictions to your practice that were put in place in December 2023 whilst you were working in NHS Grampian would impact on your ability to find new employment given the requirement to advise any prospective employers of these. The decision that you would not participate in the emergency rota or any aspect of unscheduled care in Dr. Gray’s Hospital was due to the concern I had about the two clinical events that are being considered as part of the PE. This decision was made to safeguard both patients and you. As you are no longer employed by NHS Grampian I cannot restrict your scope of practice nor am I restricting you from applying for posts; although there is a requirement for you to declare any open investigations with prospective employers. Unfortunately, for a variety of reasons, it has not been possible to conclude the PE before your employment with NHS Grampian came to an end. I’ve contacted the PE Panel to seek an update as to the progress of the investigation and they have confirmed that you are the final person they need to meet with. Due to planned annual leave commitments of your representative and a member of the PE Panel it is likely that your meeting with them will take place after 22 April 2024 and they will be in contact with you to arrange this. I hope you feel you’ve had an opportunity to fully explore your concerns. However, if these remain unresolved you have the option to proceed to the formal stages of the Grievance Policy.”

[63]Mr Chandio chose to proceed to the next stage which was conducted by way of a “Paper Review” by Alasdair Pattinson, Hospital General Manager. Mr Pattinson wrote to Mr Chandio on 24 June 2024 with the outcome (P.1038- 1042). The following is an excerpt:- “Summary of Findings The review team shared the following summary of their findings from the paper review of the information gathered:• Because of reduced access to Theatre time, your job description is potentially misleading.

• For the same reason, your job plan was unrealistic in a way that should have been anticipated by your line manager.

• Your training needs in relation to Endoscopy should have been recognised but were not, and could not be supported.

• Your ambition in relation to a CESR (Certificate of Eligibility for Specialist Registration) application was recognised but your training needs, including Endoscopy supervision and adequate Theatre time, could not be delivered.

• Theatre time is allocated fairly between surgeons, but did not match up to what you had been led to expect.

• There have been some delays in the Preliminary Enquiry but there is now a plan for this to be concluded.

• Your professional standing, and your requirements in relation to future employment, will require clarification once the Preliminary Enquiry concludes.” Respondent’s submissions

[64]Counsel for GHB made written submissions which are referred to for their terms. The following is a brief summary. Direct discrimination and/or harassment

[65]Counsel submitted there was no evidence to support any “link” between the treatment of Mr Chandio, in terms of the s.13 direct discrimination complaint, or of unwanted conduct, in terms of the s.26 harassment complaint and the protected characteristic of race or religion.

[66]Counsel also said this in his submissions in this regard:- “It is clear that the claimant was upset by the telephone call he received from Professor Duff on 18th January 2024 (P.861). There is no evidence to suggest that such a telephone call was by itself, or was motivated by, or was linked in any other way, to the race or religion of the claimant. Similarly, none of the events described by the witnesses relating to distribution of theatre time, implement of the claimant’s Job Plan or the investigation carried out into his clinical practice, could on any view be described as motivated by, or linked in any other way, to the race or religion of the claimant. This part of the claim is unsustainable and must be dismissed.” Breach of contract

[67]Counsel accepted that Clause 4 of Mr Chandio’s contract of employment (P.783) incorporated the original Job Plan (P.584-596). However, Counsel went on to make the following submissions:- “It became impossible to adhere to that Job Plan because of the major contamination incident described at proposed findings in fact 10 to 19 above. The Job Plan agreed at commencement of the claimant’s employment was subject to review on an annual or interim basis (P.783 s.4). The claimant refused to agree a review of the Job Plan. The effect of his failure to reach agreement on a revised Job Plan, coupled with the events described at proposed findings in fact 16-18 above, was to render performance of that part of the contract of employment which related to theatre time and endoscopy operations impossible. In these circumstances, the doctrine of frustration of the adventure falls to be applied to void the contact of employment. However, the further principle of severability permits the contract of employment to continue under severance of the part of the Job Plan which, following events described above, it was impossible for the respondent to perform, provided that could be done without doing harm to the remainder of the contract. This was, in fact, what happened. The claimant continued to work under the remainder of his contract of employment and to be paid by the respondent for doing so. He did not carry out endoscopy operations. The contractual terms upon which he relies (the entries in the original Job Plan, which he refused to amend), are void because of the changes of circumstances which render performance of those terms impossible. That part of the Job Plan, and thus of the contract of employment, is severable, without doing harm to the remainder of the contract of employment. In these circumstances, there is no claim for damages open to the claimant for the breaches of contract which he alleges. This part of the claim is also unsustainable and must be dismissed.”

[68]So far as the period of employment was concerned, Counsel conceded, after discussion, that the effective date of termination of Mr Chandio’s employment was 5 April 2024 (P.851/2). This meant that Mr Chandio had 2 years’ continuous employment with GHB and the Tribunal had jurisdiction to consider his unfair dismissal complaint.

[69]In that event, Counsel submitted that the reason for the dismissal, “falls within the catch-all category of Some Other Substantial Reason……. The Locum contract had reached its natural end and the respondents sought to recruit a substantive Consultant appointment to follow thereon.”

[70]Finally, Counsel also submitted, with reference to s.98(4) of the Employment Rights Act 1996, that GHB had acted reasonably and that Mr Chandio’s dismissal was fair. Claimant’s submissions

[71]Mr Chandio also made written submissions which are referred to for their terms. The following is a brief summary. “Breach of contract and job plan”

[72]Mr Chandio submitted that his job plans were contractual and that although he was entitled to an annual job plan review this was not carried out during his employment despite his request.

[73]Nor was the job plan followed. He claimed that there was a “unilateral variation”, “altering agreed activities” and access to Theatre sessions was made conditional on him re-arranging clinics which was “a condition not imposed on others”.

[74]With reference to Bournemouth University v. Buckland [2010] EWCA Civ121, Mr Chandio submitted that these changes were all imposed unilaterally, despite guidance that they had to be agreed.

[75]Mr Chandio also referred, in respect of his breach of contract complaint, to the “underpayment of on-call supplement”. He further submitted that there was an “obstruction of CESR progression and clinical opportunities” which included an exclusion from endoscopy and theatre and WLI opportunities. Discrimination and harassment

[76]Mr Chandio submitted that at the relevant time there were no other Pakistani or Muslim consultants in the department.

[77]Mr Chandio submitted that his termination letter stated that his contract was ended because he was not on the Specialist Register. However, other locum consultants were also not on the Specialist Register and they were retained; nor was his replacement.

[78]Mr Chandio further submitted that the “GP complaint and exclusion” (P.808- 811), “recorded a complaint which, on its face, did not identify any breach of GMC standards.” “Restrictions before investigations”

[79]Mr Chandio complained that these restrictions on his clinical practice were imposed on 1 December 2023, “without any written explanation, without formal notification of grounds and without reference to any policy permitting such a step at that stage”: further restrictions were imposed on 18 January 2024, prohibiting any outside work.

[80]Further, the Preliminary Enquiry outcome only imposed “learning” on Mr Chandio, but left the restrictions in place. Nor was any action taken against the Anaesthetists both of whom were non-Muslim. “Contradictory instructions”

[81]Mr Chandio was instructed to undertake Mr Habib’s theatre list on 18 January 2024, despite being informed he was not to undertake unscheduled activity. He submitted that, “this direct contraction demonstrates how arbitrary the restrictions were and undermines any suggestion that they were genuinely risk-based.”

[82]In terms of s.26 of the 2010 Act, Mr Chandio alleged harassment on a number of occasions:• Initiating and pressing ahead without a preliminary enquiry whilst I was on bereavement;

• Multiple overlapping investigations;

• Repeated rota changes, loss of theatre and endoscopy sessions and underpayment of on-call;

• Exclusion from key clinical and departmental communications;

• Failure to provide CESR support and ignoring GMC correspondence;

• Continuing investigations and restrictions after my employment ended.

[83]In terms of s.27 of the 2010 Act, Mr Chandio alleged a number of protected acts including:• “Raising concerns and grievances about discrimination, theatre and WLI allocations, job plan breaches, underpayment and rota changes;

• Requesting equal access to endoscopy and support for CESR;

• Challenging unfair restrictions and investigations.”

[84]He alleged that he was subjected to a number of detriments because of these protected acts including:• Persistent and expanding investigations and restrictions, some continuing post-employment;

• Withdrawal or severe curtailment of clinical opportunities (theatre, endoscopy, WLI);

• Exclusion from communications;

• Ongoing refusal to support my CESR even when the GMC requested information.

[85]Mr Chandio challenged the reason for dismissal which was stated to be “not on the Specialist Register”. He submitted that:-• “The respondent continued to employ consultants not on the Specialist Register, including my replacement;

• No objective requirement was applied consistently;

• There was no consultation or fair selection process and no procedure compatible with the ACAS Code.”

[86]He further submitted, with reference to s.98(4) of the 1996 Act, that “no reasonable employer, acting fairly, would:• “Dismiss a Consultant without any performance or conduct process;

• Rely on a reason (specialist register status) which plainly did not apply to others;

• Continue to pursue investigations and restrictions post-employment as a way of justifying earlier decisions”.

[87]He submitted that his dismissal was both substantively and procedurally unfair.

[88]Mr Chandio also made submissions that he had been constructively and unfairly dismissed. However, such a claim is predicated on Mr Chandio having resigned and we found, in fact, that he was dismissed.

[89]Mr Chandio then went on in his submissions to allege procedural unfairness; conflict of interest; lack of clear allegations and disclosures; selective and inconsistent treatment in PE and Level 1 reviews; prohibition and outside work – no basis, no review; continuation post-employment and contradictions by TBQR (Team Based Quality Review). Discussion and Decision

[90]In every unfair dismissal case, where dismissal is admitted, s.98(1) of the Employment Rights Act 1996 (“the 1996 Act”) requires the employer to show the reason for the dismissal and that it is an admissible reason, in terms of s.98(2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

[91]We were of the unanimous view that the reason for Mr Chandio’s dismissal was “some other substantial one”, namely the expiry of his fixed-term contract.

[92]There was clear evidence about this from Professor Bruce and Karen Bell, both credible and reliable witnesses. Their evidence was also consistent with the letter which Professor Bruce sent to Mr Chandio on 12 January 2024 confirming the termination of his employment (P.851-852).

[93]It was explained to Mr Chandio that GHB was “looking to recruit a substantive consultant appointment and as you are not on the GMC Specialist Register you’re not eligible to be considered for the substantive appointment.”

[94]This reason was also consistent with the “Situation Summary” which Karen Bell prepared on 18 December 2023 (P.819). Professor Bruce also gave evidence that an extension beyond 2 years was not GHB’s practice at the time. As it transpired, GHB’s endeavours to recruit a substantive Consultant in due course proved unsuccessful but there was no doubt that was their intention at the time the decision was taken to dismiss Mr Chandio with 3 months’ notice.

[95]The remaining question which we had to determine, under s.98(4) of the 1996 Act, therefore, was whether GHB had acted reasonably in treating that reason for dismissing Mr Chandio as a sufficient reason and that question had to be determined in accordance with equity and the substantial merits of the case.

[96]We had little difficulty in arriving at the unanimous view that GHB had acted reasonably, in terms of this section.

[97]As a matter of fact, Mr Chandio’s fixed term contract was due to come to an end, something which he was well aware of. Indeed, it was only because of an error in the letter which Professor Bruce sent to him on 12 January 2024 when he advised that it would come to an end on 5 April 2023 and we decided that Mr Chandio had the required two years’ continuous service to bring an unfair dismissal claim.

[98]In any event, at the meeting on 5 January 2024 which was chaired by Professor Bruce at which Mr Chandio was accompanied by his trade union representative, the termination of his contract was discussed.

[99]Mr Chandio did not challenge the reason for his dismissal and nor did he appeal the decision.

[100]He continued to work thereafter, although he declined the offer to go on the Redeployment Register.

[101]We had little difficulty, in these circumstances, arriving at the unanimous view that GHB had acted reasonably in treating the reason for dismissal as sufficient for dismissing him in all the circumstances.

[102]We were of the unanimous view, therefore, that Mr Chandio’s dismissal was fair and his complaint of unfair dismissal is dismissed. Breach of contract

Relevant law

[103]The contractual jurisdiction of Employment Tribunals is governed by the Employment Tribunals Act 1996 together with the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994. A contractual claim can only be heard by a Tribunal under these provisions where the claim arises or is outstanding on the termination of the employee’s employment.

[104]We accepted the submissions by GHB’s Counsel at pages 5 and 6 that, “the principles known as frustration of the adventure, rei interitus and severability of contractual terms, all apply to the circumstances of this case.” These are to be found at pages and 5 and 6 of Counsel’s submissions. By and large, we accepted Counsel’s submissions regarding not only the relevant law but also the relevant facts which were consistent with our own findings in fact.

[105]It was not disputed that Mr Chandio’s contract of employment (P.783, Clause 4) incorporated the original Job Plan (P.584-596).

[106]However, it was not possible to adhere to the terms of the Job Plan due to the major contamination incident which substantially reduced the availability of operating Theatre times at the Hospital. Theatres available for Endoscopies were also much reduced. However, there was no contractual requirement for GHB to assist Mr Chandio achieving a qualification in Endoscopy.

[107]The Tribunal was of the unanimous view that Counsel’s following submissions were well-founded:- “The Job Plan agreed at commencement of the claimant’s employment was subject to review on an annual or interim basis (P.783, s.4). The claimant refused to agree a review of the Job Plan. The effect of this failure to reach an agreement on a revised Job Plan, coupled with the events described at proposed findings in fact 16-18 above, was to render performance of that part of the contract of employment which related to theatre time and endoscopy operations impossible. In these circumstances, the doctrine of frustration of the adventure falls to be applied to void the contract of employment. However, the further principle of severability permits the contract of employment to continue under severance of the part of the Job Plan which, following events described above, it was impossible for the respondent to perform, provided that could be done without doing harm to the remainder of the contract. This was, in fact, what happened. The claimant continued to work under the remainder of the contract of employment and to be paid by the respondent for doing so. He did not carry out endoscopy operations. The contractual terms upon which he relies (the entries in the original Job Plan, which he refused to amend) are void because of two changes of circumstances which rendered performance of those terms impossible. That part of the Job Plan, and thus of the contract of employment is severable, without doing harm to the remainer of the contract of employment. In these circumstances there is no claim for damages open to the claimant for the breaches of contract which he alleges. This part of the claim is also unsustainable and must be dismissed.”

[108]In his submissions, Mr Chandio also claimed that GHB was also in breach of contract in respect of the underpayment of an on-call supplement. However, that issue has now been resolved as GHB have paid the percentage difference.

[109]For all these reasons, therefore, the Tribunal was of the unanimous view that this complaint is not well-founded and it is dismissed.

[110]The breach of contract complaint, therefore, is dismissed in its entirety. Discrimination

[111]In his submissions, Mr Chandio relied upon complaints of direct discrimination and harassment. He also advanced a complaint of victimisation. This particular complaint did not appear to have been pled and it was not addressed in the submissions by GHB’s Counsel. Nevertheless, it was clear that this complaint was without merit and it is addressed below. Relevant law

[112]S.13 of the Equality Act 2010 is in the following terms:- “13. Direct Discrimination (1) A person (A) discriminates against another (B) if, because of a protected characteristic, (A) treats (B) less favourably than (A) treats or would treat others.”

[113]S.26 of the 2010 Act is in the following terms:- “26. Harassment (1) A person (a) harasses another (b) if – (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) The conduct has the purpose or effect of – (i) Violating B’s dignity, or (ii) Creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

[114]S.27 of the 2010 Act is in the following terms:- “27. Victimisation(1) A person (A) victimises another person (B) if (A) subjects (B) to a detriment because – (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act – (a) Bringing proceedings under this Act; (b) Giving evidence or information in connection with proceedings under this Act; (c) Doing any other thing for the purposes of or in connection with this Act; (d) Making an allegation (whether or not express) that A or another person has contravened this Act……..”

[115]Mr Chandio failed to prove the facts he relied upon in support of this complaint. As we recorded above, Mr Chandio’s employment was terminated because his fixed term contract had come to an end. He was not treated less favourably than other Locum Consultants on fixed term contracts.

[116]Further, as Counsel submitted there was no evidence to suggest that Mr Chandio received any fewer theatre sessions than his colleagues during the period following the major contamination incident; there was no evidence that Mr Chandio was required to carry out clinical sessions in order to be granted theatre sessions; there was no evidence to suggest that Mr Chandio’s colleagues were favoured by better work opportunities during his employment with GHB; his role was only restricted so that he did not participate in the emergency rota or in any aspects of unscheduled care because he had been involved in two cases where level 1 reviews had been recommended and the respondent intended to review his practice around those cases.

[117]GHB had a genuine concern about Dr Chandio’s performance. It was Professor Fluck who authorised the restrictions on Mr Chandio’s clinical practice, not Professor Duff against whom Mr Chandio levelled most of his criticisms. The decision was made to protect patients and Mr Chandio, as Professor Duff explained (P.915). While we were not unsympathetic to the position in which Mr Chandio found himself when seeking new employment, it was understandable and entirely reasonable in the circumstances for GHB to put in place these restrictions and to direct Mr Chandio to advise any prospective employer of this and then, in due course, of the outcome of the PE when it was issued. GHB could not impose these restrictions after he had left their employment but it was reasonable to expect him to disclose at first the restrictions and then the findings of the PE to prospective employers. It would then be for the new employer to decide whether or not any restrictions were required.

[118]It was unfortunate that it took so long for Mr Qadir to issue the outcome of the PE. However, there were good reasons for this, not the least of which were the clinical commitments of those concerned; Mr Chandio’s initial challenge at Mr Qadir’s involvement; and annual leave. In any event, there was nothing to suggest that the delay was deliberate or that Mr Chandio’s race or religion was a factor.

[119]Some time after Mr Chandio’s dismissal, Mr Halder and Mr James were kept on as “Specialist Doctors” after their fixed term contracts had expired but this was because GHB had been unable to recruit a substantive Consultant which was their preference. This was not evidence of Mr Chandio being treated less favourably.

[120]Further, and in any event as we recorded above, all of the respondent’s witnesses presented as credible and reliable and there was no suggestion whatsoever, that the manner in which GHB dealt with the claimant was motivated in any way by his race or religion. Nor did the fact that his original fixed term contract was extended and he was offered a place on the Redeployment Register which carried with it certain preferential treatment when it came to job vacancies, suggest that GBH was not favourably disposed towards him or treated him less favourably, in any way, let alone because of his race or religion.

[121]For all these reasons, therefore, the Tribunal was of the unanimous view that the complaint of direct discrimination was not well-founded and it is dismissed.

[122]This stand-alone complaint does not require a comparative approach and there are subjective and objective elements to the statutory test. The Tribunal is required to examine the alleged conduct from the claimant’s perspective – did he or she regard it as violating his or her dignity or creating the prescribed environment?

[123]The objective aspect of the statutory test requires the Tribunal to consider whether it was reasonable for the conduct to have the effect on that particular claimant.

[124]On the evidence, the only aspect of GHB’s conduct which upset Mr Chandio was the telephone call he received from Professor Bruce on 18 January 2024 (P.861). However, there was no evidence whatsoever to suggest that this telephone call was by itself, or was motivated by, or was linked, in any other way, to Mr Chandio’s race or religion.

[125]The evidence of GHB’s witnesses was such that there was no indication whatsoever that their conduct was motivated by or linked in any other way to Mr Chandio’s race or religion.

[126]For all these reasons, therefore, this complaint is also dismissed.

[127]As we recorded above, this complaint was not pled and it was not addressed in Counsel’s submissions.

[128]In any event, we had no difficulty arriving at the unanimous view that this complaint was not well-founded.

[129]The principal reason for this, once again, was that there was no evidence that the way in which GHB treated Mr Chandio was motivated by any of the alleged protected acts. There were good reasons why he was treated in that way. He was not subjected to any detriments because he had made protected acts.

[130]For all these reasons, therefore, the Tribunal was of the unanimous view that Mr Chandio’s claim was not well-founded and it is dismissed.