Mr G Anderson, Counsel For the v Respondent — 2022

Mr M. Koh was employed by Japan Green Medical Centre Limited from 1 October 2017 until 11 December 2019. In November 2019 the respondent began a redundancy exercise affecting eleven doctors, saying that anticipated business decline linked to Brexit and reduced demand meant it planned to reduce the number of doctors. The claimant was included in the pool, scored against eight criteria, and was provisionally selected for redundancy together with Dr Kodani. He was then placed on paid leave and dismissed for redundancy on 11 December 2019.

The tribunal found that the claimant's letters to the GMC on 28 November 2019, to the CQC on 30 November 2019, and his email to the respondent on 2 December 2019 were qualifying disclosures. It accepted that he reasonably believed the disclosures tended to show failures concerning patient clinical safety and the health and safety of patients, and that he reasonably believed the disclosures were in the public interest. It also found that the GMC and CQC were prescribed persons and that the 2 December 2019 email brought the same matters to the employer's attention.

The whistleblowing dismissal claim under s.103A ERA 1996 failed because the tribunal accepted the respondent's evidence that the reason for dismissal was redundancy, not the protected disclosures. It also rejected the contention that the claimant's paid leave was a detriment caused by disclosure: the leave was imposed before the disclosures, the tribunal accepted the respondent's explanation for it, and it found no causal link between the disclosures and any later decision to keep him on leave.

On ordinary unfair dismissal, the tribunal held that there was a genuine redundancy situation within s.139(1) ERA 1996 because the respondent's requirement for doctors carrying out general medical work had diminished. It accepted that the claimant could properly be included in a pool of eleven doctors. However, it found the process unfair because consultation was too limited, the claimant was not given enough detail about the pool, the selection criteria, the staff and patient complaints relied on, or the teamwork scoring, and he was not given a right of appeal. The tribunal also found that the respondent did not properly consider whether the process could be adjusted to take account of Dr Kashima's departure. Liability for unfair dismissal was therefore upheld, and remedy was adjourned to a later hearing.