Mr Calvert (Counsel) For the v Respondent — 2024

The claimant was employed as a Speciality Doctor in obstetrics and gynaecology from 6 August 2008 and resigned on 23 December 2022 while MHPS and capability processes were ongoing. The tribunal held that most complaints against the Trust were out of time and, for claims against the individual respondents, complaints before 11 November 2022 were out of time unless they formed part of a continuing act. It refused to extend time on just and equitable grounds.

On the annual leave and rota complaints, the tribunal accepted that the department’s leave booking system was complicated and restrictive, and that the claimant did lose accrued leave because she did not book within the required window. It found that the failure to grant the full leave claimed, and the related complaints about the leave process, were explained by the booking system and the claimant’s failure to use it in time, not by race, sex or age. The EXCEL award complaint also failed: the tribunal found the claimant was omitted because she was not part of the theatre team and that the decision was not taken because of any protected characteristic.

The tribunal found one instance of bullying when Dr Navaneetham publicly challenged the claimant over a clinical episiotomy decision in front of junior doctors, but it held that this conduct was not motivated by race, sex or age. It also found that concerns raised in Datix reports about the claimant’s clinical practice were prompted by patient safety concerns rather than bullying or discrimination. The race harassment claim was withdrawn and dismissed on that basis.

In relation to the later MHPS process, the tribunal accepted that the Trust had legitimate patient safety concerns and that the restrictions imposed from August 2020 onwards, the behavioural assessment, the sharing of reports with a prospective placement trust, and the decision to proceed with the capability process after resignation were justified by those concerns. It did find that the January 2021 investigation report was late and that the selection of witnesses was unfair, and it considered the later use of the behavioural assessment in the case manager’s report to be one-sided, but it still rejected discrimination because those steps were taken for patient safety and case management reasons.

The tribunal found two protected acts: the grievance appeal hearing on 10 December 2021 and the claimant’s 13 December 2022 response to the capability report. The victimisation claim nevertheless failed because the claimant did not prove that any later detriments were caused by those protected acts. The constructive unfair dismissal claim also failed: the tribunal held that the respondent’s conduct did not amount to a fundamental breach of contract and that the claimant resigned before the capability hearing because she anticipated the outcome, rather than because the employment relationship had already been repudiated.