Mr C Echendu – Non-practising Barrister For v Respondent — 2018

This was the remitted unfair dismissal claim only. The tribunal accepted that the Trust had genuine and substantial concerns about the claimant's capability, including his complication rates, patient selection, note keeping, engagement with the MDT and receptiveness to colleagues. It found the RCS invited review to be thorough and rejected the claimant's case that the data or reports were fabricated or the product of a conspiracy.

The tribunal nevertheless held that the dismissal was unfair because of the material placed before the capability panel. It found that matters which had already been investigated and not pursued, or which were otherwise unrelated to the capability decision, were included in the papers and risked creating a preconception about the claimant. The judge was concerned in particular by the way the 13 August 2013 incident was presented, and by references to other probity matters such as the Milan trip, driving penalty points, private practice, the Dr Bhaskar issue and the Overbeck incident.

The judge did not treat the delay in arranging the appeal as making the dismissal unfair. His conclusion was that the unfairness arose at the capability hearing stage because the panel was distracted by and exposed to irrelevant or prejudicial material. On remedy, he awarded only a basic award of £2,850, reduced by 50% under section 122(2) of the Employment Rights Act 1996 because the claimant was also responsible for the panel being inundated with unnecessary material. He made a 100% reduction to any compensatory award, so no compensatory sum was payable, and noted that the Recoupment Regulations did not apply.