Mr T Reuser v University Hospitals Birmingham NHS Foundation Trust — 2018

The tribunal found that the claimant acted wrongly in allowing an untrained non-clinical manager to assist during an urgent operation in May 2016 and also failed to put adequate consultant supervision in place when leaving a senior trainee to continue cataract operations in September 2016. It accepted that both incidents exposed patients to avoidable risk, but also found important context had been missed, including the urgency of the first patient's surgery and the limited seriousness of the second incident when properly understood.

The unfair dismissal claim succeeded because the respondent's process contained a catalogue of material failings. The tribunal found that the claimant was never warned before the disciplinary hearing that dismissal was a possible outcome, that the respondent did not obtain the independent professional advice required by MHPS, that Dr Rosser was not sufficiently independent to chair the disciplinary panel, and that the respondent had proceeded on incorrect assumptions including that the first operation should have been postponed and that the claimant's exclusion in October 2016 was justified on grounds senior management knew or ought to have known were false. The tribunal concluded that, absent those failings, dismissal would not have occurred.

The tribunal nonetheless held that the claimant's own conduct significantly contributed to his dismissal and reduced any award by 50 per cent. The automatic unfair dismissal claim failed because, despite material from which adverse inferences could be considered, the tribunal found the principal reason for dismissal was the claimant's conduct and perceived lack of insight rather than his protected disclosure. The wrongful dismissal claim succeeded because, viewed in all the circumstances, the conduct did not amount to gross misconduct or repudiatory breach.