Mr J Deguara v Kingston Hospital NHS Foundation Trust — 2025

Mr Deguara, a consultant general surgeon at Kingston Hospital NHS Foundation Trust, was diagnosed with colorectal cancer in May 2020 and the tribunal accepted that he was disabled. After his return to work, the relationship between him and colleagues deteriorated amid disputes about shadowing, job planning, theatre lists and a series of Datix complaints. The tribunal accepted that a number of Datix reports raised patient-safety concerns and were protected disclosures, but others were personal or employment-related complaints.

The tribunal rejected the main harassment allegations based on comments said to have been made by Mr Sandhu and Mr Gerogiannis, and it rejected the claims that the respondent victimised him because he had made protected acts or protected disclosures. It found that the respondent's decisions were driven by concerns about the claimant's conduct, engagement with job planning and conduct during the MHPS process, not by his discrimination complaints or whistleblowing. The same reasoning led to dismissal of the automatic unfair dismissal claim under s103A ERA.

On ordinary unfair dismissal and wrongful dismissal, the tribunal held that the respondent genuinely believed misconduct had occurred, but the process was unfair. A June 2022 occupational health report said the claimant's personal stress from his serious illness made him less resilient to stressful work situations and had influenced his communication style and approach to work, and a later OH audit review stated there was no evidence that he had refused consent to release the report. The tribunal held that these points were not properly factored into the investigation, disciplinary hearing or appeal, and that the claimant was not formally given the opportunity to give evidence at the disciplinary hearing. Summary dismissal therefore fell outside the band of reasonable responses and was not justified without notice.

The section 15 disability discrimination claim succeeded only in relation to dismissal. The tribunal held that the behaviour relied on by the respondent arose from the claimant's cancer-related stress and reduced resilience, and that dismissal was not a proportionate means of achieving the respondent's legitimate aims. The same claim failed in relation to other matters, including the Clinical Governance role issue, which the tribunal found was justified. Holiday pay was upheld at 1.5 or 2 days, to be agreed between the parties or determined later. The tribunal left Polkey, contributory fault and quantum for a later stage.