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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Beatt v Croydon Health Services NHS Trust  EWCA Civ 401 (23 May 2017)
Cite as:  WLR(D) 374,  EWCA Civ 401,  ICR 1240,  IRLR 748
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ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HHJ PETER CLARK
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE UNDERHILL
LADY JUSTICE KING
| DR KEVIN BEATT
|- and -
|CROYDON HEALTH SERVICES NHS TRUST
Ms Jane McNeill QC and Mr Ian Scott (instructed by Capsticks Solicitors LLP) for the Respondent
Hearing dates: 4 and 5 April 2017
Crown Copyright ©
Lord Justice Underhill:
(1) Disclosure 8. At a meeting on 10 June, i.e. the day after GS's death, the Appellant told senior Trust managers that the suspension of Sister Jones had directly contributed to that outcome; that it had been reckless; that it called into question whether the Cath Lab was a safe working environment; and that there should be no further procedures performed until there had been a de-briefing involving the nursing staff.
(2) Disclosure 9. In an email to Gavin Marsh, the Medical Director, dated 13 June 2011, the Appellant said that he had grave doubts about the morale of the nursing staff following the events of 9 June.
(3) Disclosure 10. On 2 July 2011 the Appellant wrote a report for the Coroner about GS's death. In the course of his account he referred to the delay in obtaining a snare.
(4) Disclosure 14. On 8 July 2011 the Appellant was contacted by a GP from a local commissioning group, Dr Fernandes, asking why procedures booked for the Cath Lab had been cancelled. He told him in outline what had happened on and after 9 June.
(5) Disclosure 11. On 14 July 2011 the Appellant wrote to Nick Hulme, the CEO of the Trust, complaining about Dr Qasim and escalating his previously expressed concerns about patient safety.
(6) Disclosure 13. On 28 July 2011 the Appellant met Mr Hulme and Mr Marsh, and raised concerns about patient safety as a result of the unavailability of sufficient specialist staff.
(7) Disclosure 15. On 3 August 2011 the Appellant met Ms Riddle, Matron Lynch and Mark Kemp, the Trust's Associate Director of Operations, and explained his views about the absence of sufficient specialist nursing staff.
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.
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.
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."
He also said:
"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."
He made a "rule 43 recommendation" to the Trust to the effect that there should be a clearer process for considering the implications of the suspension of an employee with clinical duties.
"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."
THE BACKGROUND LAW
(1) The disclosure must be a "qualifying disclosure", as defined in section 43B. A disclosure qualifies if it discloses information which, in the reasonable belief of the worker making it, tends to show one or more of six specified matters. In the present case we are concerned with (d) – "that the health or safety of an individual has been, is being or is likely to be endangered".
(2) A qualifying disclosure will be a protected disclosure if it falls within the terms of any of sections 43C to 43H. These set out various conditions for protection, depending on the identity of the person to whom the disclosure is made. In this case we are concerned with disclosure to the employer (section 43C) and – as regards the Appellant's disclosures to Dr Fernandes and the Coroner – disclosure to a third party other than those identified in sections 43D-43F (section 43G).
(3) For most of the period with which we are concerned it was a requirement of both section 43C and 43G that the disclosure should have been made "in good faith": see sub-sections (1) and (1) (a) respectively.
(4) I need not set out in full the conditions required for a disclosure under sections 43C or 43G to be protected. But I should note, because it is relevant to one of the submissions made, that the conditions in section 43G are elaborate and prescriptive. Among other things, the employee must believe that the information disclosed is substantially true, he must not make the disclosure for the purpose of personal gain, it must be reasonable for him to make it, and he must show one of three specified reasons why it was not appropriate to make the disclosure to the employer rather than the third party.
PROTECTION OF WHISTLEBLOWERS AGAINST DISMISSAL
"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."
Secondly, the tribunal must then decide (without either party being subject to any burden of proof) whether in all the circumstances "the employer acted reasonably or unreasonably in treating [that reason] as a sufficient reason for dismissing the employee", determining that question "in accordance with equity and the substantial merits of the case" (sub-section (4)).
"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."
The effect of section 103A is that where the reason (or principal reason) for a dismissal is the making of a protected disclosure the dismissal is automatically unfair and there is no need to conduct the "second stage" exercise of assessing the reasonableness of the dismissal, as would be required under section 98.
"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."
As I observed in Hazel v Manchester College  EWCA Civ 72,  ICR 989, (see para. 23, at p. 1000 F-H), Cairns LJ's precise wording was directed to the particular issue before the Court, and it may not be perfectly apt in every case; but the essential point is that the "reason" for a dismissal connotes the factor or factors operating on the mind of the decision-maker which cause them to take the decision – or, as it is sometimes put, what "motivates" them to do so (see also The Co-Operative Group Ltd v Baddeley  EWCA Civ 658, at para. 41).
PROTECTION OF WHISTLEBLOWER AGAINST "DETRIMENTS"
"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 definition of "worker" in section 43K includes former employees.
THE PROCEEDINGS IN THE EMPLOYMENT TRIBUNAL
(3) the Trust's press release of 5 July 2013 following the inquest – see para. 21 above;
(4) the letter to the GMC of the same date – see para. 22;
(5) Mr Goulston's report to the Board – see para. 23.
THE ET's DECISION AND REASONS
(1) The claim of unfair dismissal was upheld. The Tribunal's primary finding was that the Appellant had been dismissed for making protected disclosures; but it made it clear that it considered his dismissal also to be "ordinarily" unfair.
(2) It held that there should be no reduction to the Appellant's compensatory award on the basis either of Polkey or of any contributory fault on his part.
(3) The claims under section 47B in respect of the pre-dismissal detriments were dismissed but the claim in relation to three post-termination detriments was upheld.
(4) The claim for unlawful deduction of wages was dismissed on the basis that it was out of time.
Directions were given for a remedy hearing. None has yet occurred.
(a) an introductory section with paragraphs numbered 1-28, which largely reproduces/summarises the contents of the ET1 and ET3;
(b) a number of pages without numbered paragraphs which list the issues, the evidence heard and other such matters;
(c) a section headed "The Findings of Fact" with paragraphs numbered 1-418;
(d) two pages headed "The Law", which set out the relevant statutory provisions and a list of authorities, followed by a reference to the fact that the parties had filed written closing submissions;
(e) a final section headed "Decision", which sets out the Tribunal's reasoning in paragraphs numbered 1-59.
The lack of sequential paragraphing is not a model which I would encourage others to follow because it makes navigation and cross-referencing rather difficult. I will preface paragraph numbers from the "Findings" section with a 2/ and from the "Decision" section with a 3/.
"Credibility Issues" (paras. 3/1-11)
"The Protected Disclosures" (paras. 3/12-30)
"Detriments prior to Dismissal" (paras. 3/31-34)
"The Dismissal" (paras. 3/35-54)
"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 ..."
The ET continues by detailing with some particularity the "escalation" of the Appellant's expression of his concerns from their first ventilation internally to their communication to the Coroner and Dr Fernandes; but I need not set out the detail. The point being made is that the principal factor operating on Mr Parker's mind was that the Appellant had not merely raised his concerns initially but continued to do so in an escalating manner.
"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."
That is accordingly a re-statement, on a more particularised basis, of the conclusion already reached in the previous paragraph.
"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."
"55. Having found that the Claimant's oral evidence to the Coroner was a protected disclosure, the tribunal have concluded that the press release issued by Mr Burden on 4 July 2013 was a detriment because the decision to refer to the Claimant in the press release was materially influenced by the Claimant's protected disclosure in his written and oral communications to the coroner. The Claimant raised these concerns in the public interest and we have found as a fact that what he was said in both the written report and in the hearing was substantially true. The Press release contained an untrue statement of fact as we have found as a fact above … and therefore it was incorrect to state in the press release that the dismissal was for matters that were unrelated to the death. The tribunal heard no evidence from the Respondent as to why Mr Burden chose to issue a press release straight after the coroner's inquest. The tribunal have concluded that the Respondent did so in order to subject the Claimant to a detriment and was materially influenced by the evidence he gave to the coroner's hearing which was consistent with the concerns that he had raised with the Respondent and which had been categorised by the Respondent as being "unproven" "misleading" and "inaccurate" ….
56. The tribunal have also made extensive findings of fact about the Respondent's referral of the Claimant to the GMC on 5 July. The tribunal conclude that the timing of that referral was no coincidence and was reported in the press release. The tribunal were not wholly convinced that the Claimant had been reported to the GMC in October 2012 as the GMC appeared to have no record of the letter and the Respondent did not chase the matter up until the day after the coroner's hearing. Mr Goulston similarly, when he heard the appeal, felt no compulsion or obligation to report the outcome of the appeal to the GMC even though this is what the October letter was purported to have said. The tribunal were not wholly convinced by the Respondent's evidence that, even if there were a letter of October 2012, the tribunal did not find the evidence of the Respondent as to the reason why the press release should refer to the GMC referral or as to why the GMC were informed on 5 July. The tribunal concluded therefore that the referral to the GMC itself was a detriment because it resulted in the Claimant facing a further investigation into his professional conduct, we conclude that Mr Burden's decision to make the referral that day was materially influenced by the Claimant's evidence of an unsafe service and his version of the events of the 9 June to the coroner's inquest which was a protected disclosure. We also concluded that reference to the GMC referral in the press release resulted in a detriment.
57. The tribunal similarly concluded that the report produced to the Board Meeting containing a full reference to the wording of the press release also amounted to a detriment as it represented a further publication of the misleading press release to a wider medical audience. This would again subject the Claimant to a detriment and would be a further personal and professional embarrassment to the Claimant and this would impact the claimant detrimentally in the eyes of his professional colleagues."
"… 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."
THE APPEAL TO THE EAT
"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  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."
UNFAIR DISMISSAL: LIABILITY
There are of course the other two charges, to which I will return presently; but if they are put to one side for the moment the Trust is, Mr Stilitz submitted, straightforwardly saying "we are dismissing you because you made these disclosures". That submission is entirely consonant with the reasoning of the ET: see para. 63 above.
"… 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."
I do not believe that that observation advances the argument in our case. In the first place, the Court in Fecitt was concerned with a different and lesser anomaly than that which would arise if "protected disclosure" were interpreted objectively for the purpose of section 47B but subjectively for the purpose of section 103A. But, more fundamentally, the anomaly recognised in Fecitt followed inevitably from the language and structure of the statutory provisions. That is not the case here. For the reasons already given, there is no reason to construe section 103A in the way contended for by Ms McNeill.
THE RESPONDENT'S NOTICE
CONCLUSION ON LIABILITY FOR UNFAIR DISMISSAL
UNFAIR DISMISSAL: COMPENSATION
"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."
(1) He was refusing to return to work unless and until Ms Riddle and Matron Lynch were "removed". That was a wholly unreasonable stance and one which put the Trust in an impossible position.
(2) On 16 June 2011, when e-mailing to Dr Asif about a forthcoming meeting, he referred to the agreement between them which had been reached as a result of the mediation the previous year. That was confidential, but he copied the e-mail to a number of people who were unaware of it. He was informed on 19 August that he would face disciplinary action in that regard; but as I understand it no further action was taken pending the outcome of Mr Hayward's investigation.
"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."
(1) THE REFERRAL TO THE GMC
(2) THE PRESS RELEASE
(3) THE REPORT TO THE BOARD
CONCLUSION ON LIABILITY FOR DETRIMENT
Lady Justice King:
Sir Terence Etherton, MR:
Note 1 The numbers start at 8 and are discontinuous because the Appellant relied in the ET on certain other disclosures which were held not to be protected.
[Back] Note 2 It appears from the parties’ closing submissions that it had been agreed that the Tribunal should decide these two issues at this stage rather than at the subsequent remedy hearing. This is usually the sensible course. But I have seen several cases where it has resulted in the tribunal not giving the reasoning as regards the remedy issues the same degree of attention as that going to liability: there is a tendency to treat those issues as add-ons of secondary importance. The Tribunal in this case may have erred in this way: see para. 100 below. [Back] Note 3 The Tribunal’s language is not quite right because it says that the Trust “has shown a potentially fair reason to dismiss”. It is pleaded in the Trust’s Respondent’s Notice that that statement was inconsistent with its subsequent findings. But it is clear that the Tribunal meant “shown” only to mean “identified”. Ms McNeill did not press the point. [Back] Note 4 This must, I think, mean “the Respondent’s evidence that conduct was the reason for the dismissal”. [Back] Note 5 Something seems to have gone wrong with the language here, but the overall sense is clear enough.
[Back] Note 6 The reasoning of the industrial tribunal which was disapproved in that case in fact bears a striking similarity to Ms McNeill’s submissions before us. (I should say that Bouchaala was not cited to us, but since it is not central to my reasoning I have not thought it necessary to seek the parties’ submissions on it.) [Back] Note 7 From 25 June 2013 the absence of good faith is of course no longer a defence: see para. 25 above. [Back]
Note 1 The numbers start at 8 and are discontinuous because the Appellant relied in the ET on certain other disclosures which were held not to be protected. [Back]
Note 2 It appears from the parties’ closing submissions that it had been agreed that the Tribunal should decide these two issues at this stage rather than at the subsequent remedy hearing. This is usually the sensible course. But I have seen several cases where it has resulted in the tribunal not giving the reasoning as regards the remedy issues the same degree of attention as that going to liability: there is a tendency to treat those issues as add-ons of secondary importance. The Tribunal in this case may have erred in this way: see para. 100 below. [Back]
Note 3 The Tribunal’s language is not quite right because it says that the Trust “has shown a potentially fair reason to dismiss”. It is pleaded in the Trust’s Respondent’s Notice that that statement was inconsistent with its subsequent findings. But it is clear that the Tribunal meant “shown” only to mean “identified”. Ms McNeill did not press the point. [Back]
Note 4 This must, I think, mean “the Respondent’s evidence that conduct was the reason for the dismissal”. [Back]
Note 5 Something seems to have gone wrong with the language here, but the overall sense is clear enough. [Back]
Note 6 The reasoning of the industrial tribunal which was disapproved in that case in fact bears a striking similarity to Ms McNeill’s submissions before us. (I should say that Bouchaala was not cited to us, but since it is not central to my reasoning I have not thought it necessary to seek the parties’ submissions on it.) [Back]
Note 7 From 25 June 2013 the absence of good faith is of course no longer a defence: see para. 25 above. [Back]