Dr A Roy v Calderdale and Huddersfield NHS Foundation Trust — 2023

Dr Roy worked for the respondent from 2009 as a speciality doctor in emergency medicine. The tribunal found that concerns about his clinical performance, communication, teamwork and decision-making had been raised repeatedly from 2010 onwards, leading to retraining, supervision restrictions, GMC involvement and a lengthy NCAS/PPA remediation process. The respondent preserved his pay for years, provided supervision and coaching, and ultimately dismissed him for capability by letter of 23 July 2021, with the appeal outcome confirming the dismissal on 4 February 2022.

On the discrimination arising from disability complaint, the tribunal accepted that Dr Roy was disabled by reason of stress, anxiety and depression, but found that the respondent was only on notice of that disability from 26 May 2021, when he referred to taking medication and needing mental health support. It held that his capability problems and inability to work at ST4-6 level did not arise from his disability. The tribunal found that the performance concerns substantially pre-dated any proven mental health impairment, there was no evidential basis linking the two, and the s.15 claim therefore failed.

On the reasonable adjustments complaint, the tribunal accepted that the respondent operated a clinical supervision and improvement plan within a required period, but found that Dr Roy had not shown the necessary disability-related disadvantage. It also held that the adjustments sought, namely transfer back to Calderdale Royal Hospital and/or a change of clinical supervisor, would not have removed the difficulty because the same capability concerns would have remained and the claimant's problems were not caused by Dr Davies' involvement. The tribunal noted that the claimant had already been given an extended period of support, supervision and assessment, so the s.20 claim failed.

On ordinary unfair dismissal, the tribunal held that the respondent had a genuine and reasonable belief that Dr Roy was incapable of performing safely at the level required. It found that the respondent had carried out a detailed investigation, relied on contemporaneous concerns from a wide range of colleagues, gave the claimant repeated opportunities to improve and to answer the allegations, and reached a decision within the band of reasonable responses under s.98(4) ERA 1996. The tribunal rejected the arguments that more time, a transfer, a different supervisor or his length of service made the dismissal unfair. It also said that, if the s.15 claim had succeeded, dismissal would in any event have been proportionate to the respondent's legitimate aims of patient safety, efficient emergency medicine and reducing the burden on colleagues.