Mr M Kassem v North Tees and Hartlepool NHS Foundation Trust — 2021

Mr Kassem, an associate specialist surgeon of Iraqi origin, brought claims of direct race discrimination, harassment, victimisation, protected-disclosure detriment and unauthorised deduction from wages against North Tees and Hartlepool NHS Foundation Trust. The tribunal found that a series of management and consultant actions connected with his patient-safety complaints, job-planning disputes and later formal processes formed a continuing state of affairs from 6 June 2018 to 16 July 2019, so the relevant claims were in time. It applied the Barton/Igen burden-shifting approach, Shamoon on detriment, and the whistleblowing authorities including Kilraine, Babula, Fecitt, Jhuti, Hendricks and Hale.

The tribunal upheld direct race discrimination in relation to the 21 September 2018 decision to start a disciplinary investigation, the immediate removal of the claimant from the emergency on-call rota, and the 2 January 2019 job-plan decision to keep him off on-call duties. It also held that the respondent breached its disciplinary policy by not using informal resolution and by allowing the investigation to run for an inordinate period, and those breaches supported the race discrimination finding. Other alleged acts of race discrimination were dismissed, but the tribunal accepted that the claimant had been treated differently from Mr Q in a number of respects and that race was a cause of the challenged treatment.

On harassment, the tribunal upheld the complaint in relation to the 4 September 2018 email exchange and the related decision to remove the claimant from on-call work, and it also found harassment in the disciplinary-policy breaches at the formal investigation stage. The reasons section additionally records findings about the 28 July 2017 M&M meeting and about Mr Agarwal's conduct there, but the limitation discussion is not fully consistent on the issue numbering, so the final conclusion has been treated as the operative result. The victimisation claim was dismissed.

The whistleblowing claim succeeded on the protected disclosures about 25 patients and on later steps taken against the claimant, including the Datix-based removal efforts by Mr Shanmugam and Mr Bhaskar, the 4 September 2018 management emails, the formal investigation, suspension from on-call, Dr Dwarakanath's 13 December 2018 letter, his proposed role as disciplinary chair, and the 2 January 2019 job-plan outcome. The tribunal rejected the separate complaints about the expert statement and the first revalidation deferment, and treated the second deferment as neutral. The wages claim failed: the appraiser-allowance point was rejected on the merits and the additional 1 PA claim was time-barred. Liability only was decided; remedy was left for a later private preliminary hearing.