Mrs H Zaitoun v The Newcastle-upon-Tyne NHS Hospitals Foundation Trust — 2021

Mrs H Zaitoun was a long-serving consultant healthcare scientist, aged 69 when dismissed on 24 May 2019. The respondent investigated her use of a personal Hotmail account for NHS business and later searched her room after concerns arose about confidential information and the contents of her locked filing cabinet. The search uncovered about £144,000 in cash and jewellery said by the respondent to be worth about £250,000, but the police later accepted that the items were the claimant's property and no criminal charges were brought.

The tribunal held that it was reasonable for the respondent to investigate the claimant's email use, suspend her and search her room and cabinet. It found, however, that the respondent's treatment of the claimant's storing her own money and jewellery as theft or dishonesty was wholly unreasonable, that the cabinet allegations were unsubstantiated, and that no reasonable employer would have treated them as gross misconduct. The tribunal also found that Ms Dragone was not an appropriate or impartial disciplinary chair because she had been involved from the outset, and that Mr Turner in HR had an influential role in the disciplinary and appeal decision-making.

The disciplinary process was found unfair because the claimant was not told in advance which witnesses would give evidence, her questions were not put to those witnesses, and she was not given an opportunity to sum up. The appeal was also found to have been conducted in a peremptory way and effectively amounted to a rubber-stamping of the original decision. Despite those procedural failings, the tribunal found that the principal reason for dismissal was the claimant's abuse of the IT and email policy and breach of the Caldicott Guidelines, not age discrimination or a vendetta, and it considered that those email breaches could have justified dismissal after a fair process.

The age discrimination claim failed because the tribunal found no facts from which it could infer that age played any part in the treatment complained of. On remedy, the judgment did not quantify any monetary award, but the tribunal found that there was a 50% chance the claimant would have been dismissed in any event for the email misconduct and that compensation would also fall to be reduced by 50% to reflect contributory conduct.