Mr G Sheshappanavar v Milton Keynes University Hospital NHS Trust — 2021

The claimant had worked for the respondent since 2007 and was a BMA member and, for a period from July 2016, an accredited local representative. The tribunal accepted that he had done a protected act in 2011 by presenting race and sex discrimination claims. The case concerned two causes of action: trade union detriment under s.146 TULR(C)A 1992 and victimisation under s.27 EqA 2010, arising from a 2016 MHPS investigation, a 2018-2019 MHPS investigation and disciplinary process, and grievance handling relating to Dr Malik.

On the 2016 MHPS investigation, the tribunal found that Dr Reckless acted after a GP complaint and further concerns raised by colleagues, and that the concerns were serious and genuinely believed to warrant investigation. It accepted that the resulting investigation was thorough and balanced, and that the absence of NCAA/NCAS advice was not unusual in the circumstances. The tribunal did not accept that the decision to investigate, or the way the matter was pursued, was influenced by the claimant’s BMA activity or his earlier tribunal claim. For the trade union claim, the tribunal also found no basis for concluding that the investigation was pursued for the sole or main purpose of deterring or penalising trade union activity.

The later dispute arose from the night of 12 December 2018, when the claimant and Mr Malik disagreed over information requested and instructions given about patients on the ward. The tribunal preferred the respondent’s evidence, including Mr Alam’s account, and held that the claimant refused to provide information and refused instructions in a way that justified disciplinary action. Dr Reckless was entitled to treat the matter as misconduct and to issue a two-year final written warning on 8 August 2019. The tribunal accepted that there had been some lack of clarity in the grievance handling, because the claimant was not told clearly until later that his complaint against Mr Malik was being dealt with separately as a grievance, but it found that this was the result of poor HR advice rather than any victimising motive.

The tribunal also dealt with time points. It held that the trade union complaints relating to the first MHPS investigation were out of time and that it was not reasonably practicable for the claimant to have brought them in time, but the victimisation claim on that detriment was allowed to proceed on a just and equitable basis. Even so, each complaint failed on the merits because the relevant decision-makers acted for the reasons they gave, not because of the protected act. The grievance appeal and disciplinary appeal were also rejected for reasons the tribunal accepted as genuine and reasoned. The final outcome was that both claims were dismissed and no remedy was awarded.