Aileen McColgan QC For the v Katharine Newton QC — 2019

Ms A Yousefi had worked for HCA International Limited since 2001 and was, by the time of dismissal on 30 December 2019, CEO of several London hospitals. She brought claims for unfair dismissal, direct sex discrimination and whistleblowing detriment, relying in part on alleged patient-safety disclosures, alleged complaints about John Reay, and her treatment during disputes about her mother's disciplinary process and about consultant Dr R. The tribunal heard extensive evidence over many days and found the claimant generally to be an unreliable witness, while accepting that some working relationships in the case were difficult and that the respondent was a strong cost-focused organisation.

On the whistleblowing issues, the tribunal held that the claimant did not make any protected disclosures within s.43B ERA 1996. Many of the alleged disclosures were found to be ordinary operational or commercial communications, not disclosures of information tending to show a legal breach or danger to health and safety. Where the claimant did use the words "patient safety" in writing in April 2019 and orally in May 2019, the tribunal found that she was building a case to move medical oncology services back to The Harley Street Clinic and, separately, putting pressure on management over the grievance and absence of the Chief Nursing Officer, rather than genuinely disclosing a patient-safety concern. Because no protected disclosure was proved, the detriment claim under s.47B ERA 1996 failed. The tribunal also found that the suspension, the use of statutory sick pay while suspended, the continuation of the disciplinary process, and the alleged premature disclosure of dismissal were not shown to have been taken on the ground of any protected disclosure.

The sex discrimination claim also failed. The claimant relied on alleged sexist behaviour by John Reay and compared her treatment with that of Enda O'Meara, but the tribunal rejected the allegations of a pattern of sexist treatment and found no basis to infer that sex played any part in the decision to suspend, investigate or dismiss her. It held that Mr O'Meara was not in materially similar circumstances because the allegations against him were fewer, he was only named in one grievance, he was acting partly at the claimant's instigation as her subordinate and line manager of her mother, and he was not recommended for discipline by Mr Youngman. The tribunal further found that Dr Bucknall, who made the dismissal decision, was not motivated by sex and would have dismissed a man in materially similar circumstances.

On unfair dismissal, the tribunal accepted that HCA had a genuine conduct reason for dismissal and that Dr Bucknall carried out a reasonable investigation before dismissing the claimant for gross misconduct. It found that he genuinely believed she had interfered with the disciplinary process concerning her mother, had failed to take appropriate and timely action on concerns about Dr R, and had behaved in a way that amounted to bullying or undermining of Mrs Champion, Mr Topalovic and Ms Barker. The tribunal held that those findings were supported by reasonable grounds and that the procedure was fair overall, despite the claimant's criticisms about the detail and timing of the allegations, the role of Mr Youngman, and Dr Bucknall's independence. The tribunal therefore dismissed the unfair dismissal claim, including the automatic unfair dismissal allegation under s.103A ERA 1996.