Ms M Mohammad v Kings College Hospital NHS Trust and 3 others — 2022

The tribunal rejected all claims brought by Ms M Mohammad against Kings College Hospital NHS Trust and the individual respondents. It found that the claimant had made only three qualifying protected disclosures that were known to the respondents for the purposes of the whistleblowing detriment claim: the 19 December 2017 email to Dr Penna about staffing and risk, the part of the 12 March 2018 dignity at work complaint alleging she had been rostered to cover three clinical areas at once, and the 30 May 2018 email about staff shortages. Most of the other matters relied on were characterised as workplace disputes, personal grievances, or allegations the tribunal found were not reasonably believed to show a relevant failure. The tribunal also recorded that the claimant withdrew detriments L and M.

On section 47B, the tribunal found that none of the pleaded detriments was materially influenced by those protected disclosures. It held that several matters were not detriments at all, and that in relation to the others there was either no sufficient link to the disclosures or no evidence that the relevant decision-makers knew of them. The tribunal also found that disclosures made to external bodies such as the CQC, NHS Improvement, the GMC, the Secretary of State, and the Freedom to Speak Up guardians were not shown to have been known to the respondents at the material times.

The dismissal claims failed because the tribunal found that the claimant was dismissed on 6 December 2019 for capability arising from long-term ill-health, not because she had made protected disclosures. It accepted that the claimant had been absent for a prolonged period, that her medical evidence showed no foreseeable return to work, that the absence was affecting the department, and that the respondent had tried to engage with her through occupational health, sickness review meetings, and an appeal. The tribunal rejected the suggestion that the case was a Jhuti scenario and upheld the appeal decision made on 5 May 2020.

The disability discrimination claims also failed. The tribunal accepted that the claimant was disabled and that the respondent knew this. It found that proceeding with the final sickness review in her absence, dismissing her, and not redeploying her were unfavourable treatment arising in consequence of disability, but held that each was justified as a proportionate means of pursuing the legitimate aim of managing long-term sickness, service pressures, and patient care. On reasonable adjustments, the tribunal accepted that the attendance and capability requirements were PCPs that triggered the duty, but held that the adjustments proposed by the claimant were not reasonable or would not have been effective. It also found no direct disability discrimination because a hypothetical comparator with the same absence and prognosis would have been treated in the same way.