Beatt v Croydon Health Services NHS Trust [2017] EWCA Civ 401

“1. … 2. That on Thursday 4th August 2011, when paid and scheduled to be within the Trust, you failed to attend your scheduled place of work without management authorisation. 3. … 4. That following a Speak Up Policy Investigation conducted by Ms Sharon Jones, Executive Director of Operations (Community), it is alleged that you made various unsubstantiated and unproven allegations of an unsafe service within the interventional cardiology service at Croydon Health Services NHS Trust. This gives rise to three main concerns: i. This appears to have been part of a campaign to have Sister Lucy Jones reinstated after her suspension, rather than out of a genuine concern around patient safety. The Trust therefore asserts that this constitutes an abuse of position. ii. By raising these concerns under the Trust’s Speak Up Policy, the Trust believes that you were hampering the ability of the unit to run safely and effectively, and this appears to be vexatious and calculated. iii. That despite various attempts by members of the senior management team, including Ms Wendy Riddle, Mr Mark Kemp, Mr Gavin Marsh and Mr Nick Hulme, to elicit any satisfactory evidence to substantiate claims of poor patient safety, you failed to provide any. At times, you either ignored requests for such detail or did not respond in a timely manner. On the occasions that you did respond, it is alleged that you then failed to give prima facie examples to substantiate your repeated claims. 5. … 6. That on 10th June 2011 whilst reporting the death of GS to HM Coroner’s Office you made unsubstantiated and unproven allegations of an unsafe service and unsafe staffing levels within the interventional cardiology service at Croydon Health Services NHS Trust, implying that they may have contributed to GS’s death. 7. That at some time between the 9th June 2011 and the 8th July 2011 you made unsubstantiated and unproven allegations of an unsafe service and unsafe staffing levels within the interventional cardiology service at Croydon Health Services NHS Trust to a local GP Commissioner(s). This inaccurate and unproven disclosure resulted in the commissioners formally writing to the Chief Executive seeking assurance of safety within the CHS cardiology service, which the Chief Executive has been able to provide. It is alleged that the manner of the disclosure, to an outside body responsible for commissioning services from the Trust, demonstrates a complete breakdown in trust between you and the Trust. 8. That you failed to establish and maintain effective working relationships with various members of staff and/or demonstrated inappropriate behaviour towards members of staff with the following consequences: - Demonstrated behaviour towards Ms Wendy Riddle, Interim Service Manager for Cardiology, and Ms Sinead Lynch, Cardiology Matron, which is in breach of Trust standards, Dignity at Work Policy and Attitudes, Behaviour & Communication Policy - That at various times, your attitude, communication and behaviours towards Ms Wendy Riddle has amounted to bullying, harassment and intimidation which is clearly in breach of Trust standards, Dignity at Work Policy and Attitudes, Behaviour and Communication Policy - That your behaviour communication and attitudes towards various members of the Croydon Health Services NHS Trust staff, namely Ms Wendy Riddle, Ms Sinead Lynch, Dr Asif Qasim, Mr Mark Kemp, falls well below the standard that the Trust would expect from a senior member of staff. [Reference is then made to a GMC guidance document.] 9. You have made further serious, unsupported accusations against Wendy Riddle, Service Manager for Cardiology, in order to discredit her. Specifically, you have made persistent claims that the Cath Lab is unsafe due to her presence/management without providing robust evidence to substantiate this claim which could be considered a deliberate attempt to destabilise the department which she is seeking to manage.”

“What does trouble me was how it (the suspension) was carried into effect, and whether any adequate thought was given to the consequences of a decision immediately to suspend. There I do have a concern that not enough was done; indeed it has been conceded as much by Mr Burden [the Trust’s HR Director] and by Dr Kumar [who had since become lead cardiologist at the Trust] that the lead clinician ought really to have been told what was happening, and the lead clinician didn’t get to know until part way through the procedure.”

“I think in the end this is an impossible question to answer, but I think on the totality of the evidence I have heard the absence of Sister Jones did contribute in some way to the sequence of events that ended up in the death, in the sense that more things might have been done more quickly had she been present.”

“Inquest into [GS] Michael Burden, Director of Human Resources & OD at Croydon Health Services NHS Trust said: “We would like to offer our deepest sympathies to [GS’s] family. The Coroner found that [GS] died as a result of complications arising from a necessary medical procedure. Dr Beatt is no longer working for the hospital and following a disciplinary procedure on unrelated matters he has left the Trust. We do not accept Dr Beatt’s claims surrounding the actions of the Trust. We have already referred him to the General Medical Council for further investigation.”

“Two inquests into patients have been covered by the media. One was [GS], who died during an angioplasty operation in June 2011. The inquest heard from Trust staff and former cardiology consultant Dr Kevin Beatt. The coroner ruled that [GS] died as a result of complications from a necessary medical procedure. During the inquest he heard claims that [GS’s] death was exacerbated by the suspension of Sister Lucy Jones, who was scheduled to assist in the procedure. The Coroner has exercised his discretion under Rule 43 to write to the Trust inviting us to consider amendments or additions to aspects of our policies concerning the suspension of staff. The Trust’s response to this inquest when approached by the media, highlighted that Dr Beatt is no longer working for the hospital and following a disciplinary procedure on unrelated matters he has left the Trust. We refuted Dr Beatt’s claims surrounding the actions of the Trust and have already referred him to the General Medical Council for further investigation.”

“A reason falls within this subsection if it— (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.”

“An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.”

“A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee.”

“A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.”

“The Tribunal therefore conclude on all the evidence before us that the Respondent has not shown that the reason for dismissal was misconduct. We refer to the vague wording of the allegations against the Claimant and Mr Parker’s vague and unconvincing evidence as to why he found the allegations well founded and on what evidence. Mr Parker preferred the evidence against the Claimant, even where there was little consistent evidence to support this decision and could not show to the Tribunal the basis on which he rejected the evidence in the Claimant’s favour, especially where that evidence was consistent and credible and supported by other doctors who worked in the lab. The Tribunal also noted that allegation 1, 2, 3, 8 and 9 all involved or arose around the Claimant’s relationship with Ms Riddle, who was on an interim contract of short term duration and was to leave the Respondent after about 1 year. There was no evidence that any other member of staff had raised a grievance against the Claimant or had complained about his conduct (apart from Dr Qasim but his complaints against the Claimant had never been formally escalated) and there had been no concern about the Claimant’s clinical competency apart from the unconvincing evidence produced by Ms Riddle to the Speak Up policy. All other allegations (4, 5, 6 and 7) were directly related to the Claimant’s concerns about the events of the 9 June and the state of affairs that prevailed after that date for the Claimant to conclude that there was an unsafe service.”

“Turning to the fairness of the appeal. The tribunal have made detailed findings of fact about the conduct of the appeal hearing and especially that of Mr Goulston. The tribunal was struck as to how little understanding he had of the facts and of the issues before him and of the evidence that had been present by the Claimant or of his role as appeals manager. Although the Respondent referred to the quasi judicial nature of the appeal hearing, this appeared to be true of the presentation of evidence but not of the approach of Mr Goulston to the evidence before him. It was noted that Professor Beedham had conceded that the Claimant had raised genuine concerns about patient safety however this view appeared to carry very little weight at the appeal. Mr Goulston again appeared to focus exclusively on the evidence against the Claimant and was not seen to be even handed in his consideration of the considerable weight of facts and evidence before him. The Tribunal have concluded that the appeals process was incapable of addressing the obvious shortfalls in the disciplinary process and the appeals process in itself was unfair and showed very little understanding or analysis of any of the evidence. Mr Goulston also confirmed in answers to cross-examination and to questions posed by the tribunal that the Claimant was dismissed for reasons relating to the incident on the 9 June and the death of the patient. This in itself confirmed that the Claimant had been dismissed for raising concerns about patient safety and reporting those matters to the coroner as he was obliged to do and to the GP Commissioner, which the Trust was obliged to do. The Tribunal therefore conclude that on all the evidence before us Mr Parker and Mr Goulston failed to carry out a fair process. The Tribunal conclude that there was no consistent evidence before the Tribunal that the Claimant had committed an act of misconduct entitling the Respondent to dismiss the Claimant and dismissal was not within the band of reasonable responses.”

“The Tribunal therefore conclude that on all the evidence before us that the Respondent has failed to show that they dismissed for misconduct. There was insufficient evidence to show that the Claimant had committed an act of misconduct or that the charges upheld had, on the facts before the Respondent, been proven. Allegation 4 related directly to the Claimant’s concerns of an unsafe service and Mr Parker reached conclusions that were not supported on the evidence before him. Allegation 6 was in relation to the telephone conversation with the coroner but Mr Parker relied on the written protected disclosure to the Coroner to find the allegation well founded, even though it was not part of the charge. Allegation 7 relied on a protected disclosure and allegations 8 and 9 have been found to have been unsupported by the evidence before the Respondent. The Tribunal therefore conclude that the dismissal was unfair and not for misconduct. Even though allegation 2 was upheld, which was said to be a failure by the Claimant to seek management authorisation to be absent on the 4 August, there was no credible and consistent evidence before the Tribunal that this was a requirement of all consultants or that it was an offence of gross misconduct had the allegations been well founded on the facts.”

“The Tribunal have considered the guidance in the case of Kuzel v Roche above where it stated that it will be for the tribunal to make ‘primary findings of fact on the basis of direct evidence or by reasonable inferences from primary facts established by the evidence’ and ‘if the employer does not show to the satisfaction of the employment tribunal that the reason was what he asserted it was, it is open to the employment tribunal to find that the reason was what the employee asserted it was’. Having considered that case and the guidance stated above, we have concluded that the Respondent’s evidence of conduct be rejected. The Tribunal also conclude that the reason put forward by the Claimant, that he was dismissed for making protected disclosures, was the principal factor operating on the decision maker’s mind. The Tribunal reach this conclusion on the basis of the consistency of the Claimant’s evidence in respect of the events of the 9 June and his concerns expressed about patient safety after that date. We conclude that the Claimant was dismissed for escalating his concerns about health and safety concerns ...”

“We conclude on the evidence before us that the Claimant’s disclosure 14 (to the GP Commissioner) and disclosure 10 (written report to the Coroner) were directly related to allegation 6 and 7. We conclude that disclosures 8, 9, 11, 13 and 15 in respect of the Claimant’s concerns about an unsafe service were relied upon to find allegations 4, 8 and 9 well founded. These disclosures were therefore the reason the Respondent dismissed the Claimant. The Tribunal saw a direct causal and evidential connection between the disclosures and the dismissal and it was those reasons that operated on the mind of Mr Parker and Mr Goulston. The Tribunal conclude that Claimant was dismissed for escalating his concerns of an unsafe service to the Respondent and to the GP Commissioner and to the Coroner. It was conceded by Mr Goulston that the Claimant was dismissed for reasons relating to the death on the 9 June and he accepted that the incident on that day was evidence that supported the Claimant’s view of an unsafe service. We therefore conclude that the Claimant was dismissed for making the protected disclosure and not for misconduct. The dismissal is therefore automatically unfair.”

“Although the Tribunal do not need to consider the issue of ordinary unfair dismissal, for completeness we confirm that on the facts before us we also find the dismissal to be ordinarily unfair on the ground that the allegations were not supported by the evidence before the Respondent and Mr Parker failed to consider the facts before him and reach a conclusion on all the facts. … The Tribunal have concluded that dismissal was not within the band of reasonable responses as we have concluded that there was insufficient evidence for the Respondent to conclude that the Claimant had committed an act of misconduct, he was dismissed for raising his concerns about the events of the 9 June and of an unsafe service.”

“… the press release was an inaccurate statement of fact as it was conceded by [Mr Goulston in cross-examination] that the Claimant was dismissed for reasons that related to the death of the patient in that he was dismissed for the contents of the written report to the coroner and for discussion he had with the GP Commissioner (allegation 6 and 7) and for matters in relation to allegation 4 and 8. It cannot be said that these matter were ‘unrelated to the death’, they were inextricably linked to the death.”

“19. The flaw in the Employment Tribunal’s reasoning, in my judgment, is that instead of determining ‘the set of facts known to the employer, or it may be beliefs held by him, which cause him to dismiss the employee’, to adopt the timeless definition of the reason for dismissal formulated by Cairns LJ in Abernethy v Mott, Hay and Anderson [1974] ICR 323, the Employment Tribunal has embarked on its own assessment of the conduct charges upheld, first by the Parker panel and then by the appeal panel chaired by Mr Goulston; found them less than compelling and then moved to the conclusion that conduct was not the reason for dismissal but the protected disclosures. What is signally missing from these extensive Reasons is an analysis leading to the conclusion that the evidence of both Mr Parker and Mr Goulston, representing their respective panels, was false and a deliberate attempt to mislead the Employment Tribunal as to the true reason for dismissal. 20. This error in approach was further compounded by the Employment Tribunal linking, factually, disclosures 8, 9, 11, 13 and 15 to allegations 4, 8 and 9 in the dismissal letter. I accept the submission of Ms McNeill … that at paragraph 53 … the Employment Tribunal wrongly thought that the fact that these disciplinary charges were ‘related to’ the substance of the disclosures referred to was sufficient to decide the reason question. That is not the correct causation test. 21. Separately, I can discern no clear reasoning leading to the expressed conclusion that Mr Goulston and his panel members determined the appeal on the basis of the protected disclosures found by the Employment Tribunal, as opposed to the conduct grounds put forward.”

“… it seems to me that that is simply the result of placing dismissal for this particular reason into the general run of unfair dismissal law.”

“The Tribunal also make no deduction for Polkey or for contribution as on the facts before us we have seen no consistent evidence that, had a fair procedure been followed, dismissal would have been a likely outcome. As we have found the Claimant’s evidence consistent, we do not conclude that he has contributed to the dismissal so no deduction will be made for contribution.”

“The Respondents also respectfully submit that if, contrary to the Respondent’s submissions, the claimant is found to have been unfairly dismissed his conduct was such that he contributed substantially to and brought about his own dismissal and any losses should thus be reduced by a very high percentage.”