Mr A Hassan v University Hospitals Of Morecambe Bay NHS Foundation Trust — 2023

Mr Hassan was employed as a consultant ophthalmologist from 4 November 2013 and was dismissed by letter dated 11 June 2021, with employment ending on 13 June 2021. He alleged automatic unfair dismissal for protected disclosures, ordinary unfair dismissal, direct race discrimination, direct religion or belief discrimination, discrimination arising from disability, and failure to make reasonable adjustments. The tribunal found that he had made protected disclosures about patient safety and on-call arrangements, including emails and concerns raised between 2014 and 2021, but found that the principal reason for dismissal was not the disclosures.

The tribunal accepted the respondent's case that the dismissal was for some other substantial reason. It found that the reasons were the claimant not undertaking on-call duties which formed part of his contractual role and the breakdown in relations with the Clinical Lead, Ms Patil. The tribunal accepted Mr Norman's evidence as to his reasons for dismissal and found the dismissal and appeal process fair, including the SOSR hearing and the appeal before a panel including senior Trust members and a clinician. It held that the decision to dismiss fell within the range of reasonable responses.

The direct race and religion claims were dismissed. The claimant relied on the respondent's refusal to remove him from the on-call rota and on his dismissal. For the on-call issue, the tribunal found that C1, C2 and C3 were not valid comparators because each had occupational health advice supporting removal from on-call, unlike the claimant. For dismissal, it found that Mr Talbot and Mr Limitsios were not in materially the same circumstances because there was no evidence that they had not undertaken on-call for an extended period or had the same relationship issue with the Clinical Lead. The tribunal also found that a hypothetical comparator of a different race or religion would have been treated in the same way.

The disability claims were dismissed because the claimant did not prove that anxiety and/or depression had a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities at the relevant time. The tribunal relied principally on the medical records rather than the disability impact statement, which it found unreliable in relation to medical history. It also found that undertaking consultant ophthalmology on-call duties over a large geographic area was not a normal day-to-day activity for the disability test.

For discrimination arising from disability, the tribunal further found that the claimant's inability or unwillingness to undertake on-call arose from his view of the safety of the on-call arrangements, not from disability, and that the issues with Ms Patil did not arise from the pleaded something arising. For reasonable adjustments, it found that the requirement to carry out on-call duties did not place the claimant at the asserted substantial disadvantage because of disability, and that from March 2020 the respondent had offered the two-tier arrangement relied on by the claimant for six months. No remedy was awarded because all claims were dismissed.