Mr E Smo v Hywel Dda University Health Board Heard: by video — 2022

Mr E Smo, who had been born and brought up in Syria, was appointed by Hywel Dda University Health Board as a consultant colorectal surgeon on a 10 PA contract. The tribunal rejected his case that a handwritten January 2016 timetable created a binding agreement for 11.5 PAs, finding that it was only a discussion document and that his contract and actual working pattern were based on 10 PAs. It also found that the 9 May 2016 request to escalate the job-plan issue was not ignored unlawfully, because the matter was still being discussed locally and no referral to the Medical Director was then required. The tribunal accepted that he wanted to compress his working week because he commuted from Plymouth, but it found that did not establish race discrimination.

The tribunal held that the 18 May 2016 email alleging clear discrimination and referring to Joy Singh did not amount to a protected act for victimisation purposes because the allegation was false and made in bad faith. Although the claimant later forwarded the email to Dr Kloer on 19 May 2016, the tribunal treated that as part of the same complaint rather than a separate protected act. On the discrimination and victimisation claims, it found that the later steps under UPSW, the exclusion, the lengthy investigation process, the separate working-relationships investigation, and the dismissal were driven by conduct, patient-safety and relationship-breakdown concerns rather than by race or retaliation for complaints. It accepted that the process took a long time and that there was an unjustified six-month lull between November 2018 and May 2019, but it did not treat that as evidence of unlawful discrimination or victimisation.

On unfair dismissal, the tribunal held that the reason for dismissal was conduct within s.98(2)(b) ERA 1996 and applied the Burchell approach and the range of reasonable responses test under s.98(4). It found that the employer had undertaken a comprehensive investigation, had reasonable grounds for its belief, and genuinely believed the claimant had committed the misconduct relied on. On wrongful dismissal, the tribunal found on the balance of probabilities that allegations 4, 6, 9 and 10 were proved, but held that allegation 10 alone would not have justified summary dismissal. It concluded that allegations 4, 6 and 9 amounted to gross misconduct and, taken together, the conduct was a repudiatory breach entitling the respondent to summarily dismiss. All claims were dismissed and no remedy was awarded.