Mr S Colbert v Royal United Hospitals Bath Foundation Trust — 2020

The claimant, a consultant in oral and maxillofacial surgery, brought claims arising from alleged protected disclosures, alleged victimisation, ordinary and automatic unfair dismissal, wrongful dismissal, and race-related harassment. The tribunal heard the first and third claims together. It accepted that some disclosures were made and were protected, including the October 2017 concerns about Mr Vardon-Odonkor, the 30 June 2020 meeting with Louisa Hopkins, and the 4 November 2020 meeting with Louisa Hopkins and Dr Bernie Marden. It also found that the claimant had made a protected act on 4 November 2020 when he complained of race and sex discrimination. However, it rejected a number of other alleged disclosures or found that they did not meet the statutory test.

The tribunal found that several alleged disclosures were not proved or were not qualifying disclosures, including the alleged December 2017 verbal disclosure to Jon McFarlane, the alleged February 2020 disclosure about Ceri Hughes, the alleged verbal disclosures to Mr Ireland, Mr Handel, Ms Lindegaard and Mr Simpson, the 29 January 2021 staffing concerns disclosure, and the May and June 2023 communications to the MP and CQC inspector. It also found that the 4 February 2021 email to Andrew Felstead did not amount to a protected disclosure. The claimant's allegation of race harassment was withdrawn during the hearing.

On detriments, the tribunal accepted that some of the acts relied on were detriments in law, including removal from the clinical lead role, aspects of the Simon Atkinson review, the Graeme Tremblett-Willis outcome, exclusion from work, continuation of that exclusion, the move to MHPS and disciplinary proceedings, the hearing in the claimant's absence, the appeal correspondence, and the internal communication sent after the claimant appeared on Newsnight. It nevertheless found that these steps were taken because of the respondent's concerns about the claimant's conduct and the outcomes of the investigations, not because he had made protected disclosures or done the protected act. The tribunal also found that the respondent had investigated the concerns raised in the department and had not engaged in a cover-up.

For ordinary unfair dismissal, the tribunal held that the respondent genuinely believed the claimant had committed misconduct, that there were reasonable grounds for that belief, and that the investigation and disciplinary process were reasonable overall. It noted that the claimant did not attend the disciplinary hearing or submit appeal grounds despite repeated opportunities. The wrong GMC code was referred to in parts of the paperwork, but the tribunal held this did not make the dismissal unfair because the claimant had notice of the allegations, the investigation was based on Miss Cunningham's report rather than the earlier Atkinson review, and the procedural issues did not materially affect the fairness of the outcome. The tribunal added that, even if there had been procedural defects, it would have made a 100% Polkey deduction.