Mr N Matar v Imperial College Healthcare NHS Trust and 1 other — 2018

Mr Matar was employed by Imperial College Healthcare NHS Trust as a salaried Locum Consultant from April 2014 until he resigned on 23 May 2018. At termination he was 59 and not on the GMC Specialist Register. The tribunal found that the initial escalation of clinical concerns after cases involving patients GF, JM, BK and FW, the initial restriction to non-clinical duties, and several extensions before late 2017 were based on genuinely held patient-safety concerns and were not because of age.

The MHPS investigations ultimately found communication issues but did not uphold allegations that the claimant's clinical decision-making caused patient harm. The tribunal found the Trust breached MHPS by extending the restriction on 3 October 2017 for an undefined period and not reviewing it, and that from January to April 2018 the ongoing restriction, which was tantamount to exclusion, had no reasonable and proper cause. It also found unreasonable delay in conveying the GF findings, delay and sanctions threatened in the disciplinary process, obstruction of his return to his substantive duties, and failure to support his appraisal.

Those matters cumulatively breached the implied term of mutual trust and confidence, and the claimant resigned in response to that repudiatory conduct and a final straw relating to the continuing disciplinary process and obstruction of his return as Locum Consultant. The tribunal held he was constructively and unfairly dismissed, and that the Trust had not established either potentially fair reason it relied on. The breach of contract complaint also succeeded because the dismissal breached the implied term of mutual trust and confidence.

The direct age discrimination complaint succeeded in part. The tribunal compared the claimant with Mr Sherif Hakky, a younger Locum Consultant who was also not on the Specialist Register, and found materially more favourable treatment: Mr Hakky was consulted earlier, encouraged and supported to pursue CESR or specialist registration, reassured about status, responsibilities and finances, supported to keep the same duties, and retained in the Locum Consultant role pending specialist registration. By contrast, the claimant was not warned between May and December 2017 about proposed termination for the regulatory issue, was not offered comparable support for an application, was told he would move to a Speciality Doctor role, and was given a revised plan involving work in other consultants' clinics.

The tribunal found that issues (n), (t) and (x) from January 2018, issue (y), and issues (ee) to (jj) were less favourable treatment because of age, and that the discriminatory conduct materially formed part of the repudiatory conduct relied on in the resignation, so the dismissal was a discriminatory dismissal. It dismissed the remaining direct age discrimination allegations, the age-related harassment complaint, and the victimisation complaint, including the pension-related allegations, finding the NHS Pensions query and pensionable-pay decisions were not because of age or protected acts.