Mr Adil Mouti v Oxford University Hospitals NHS Foundation Trust — 2022

Mr Mouti was employed by Oxford University Hospitals NHS Foundation Trust as a Band 4 Research Co-Ordinator from 16 January 2017 until his resignation on 11 December 2017. He brought claims arising from probation management, sickness absence, his return to work, and events on 8 December 2017. All claims were dismissed.

For the whistleblowing constructive unfair dismissal claim, the tribunal found that Mr Mouti had complained on 30 May, 1 August to occupational health, 8 August, 15 September and 10 November 2017 that his workload was adversely affecting his health. Those communications disclosed information tending to show a possible health and safety or legal obligation issue, but the tribunal held they were not protected disclosures because it was not reasonable for him to believe they were made in the public interest. The tribunal found the complaints concerned his own workload and health, affected no wider group, and that the NHS context and Standard of Care work did not supply the missing public interest element. It also found the alleged detriments were not because of the disclosures, that the respondent had proper cause for its actions, and that there was no fundamental breach of contract. The constructive wrongful dismissal claim for notice pay was dismissed for the same absence of fundamental breach.

On disability, the respondent accepted that Mr Mouti was disabled by depression during the relevant period. The tribunal found the respondent did not know this at the start of employment, but had constructive knowledge by 15 June 2017 at the latest. Of the alleged PCPs, only the contractual 9am start and the practice of not providing information to staff on sick leave were accepted as PCPs, and only the 9am start placed Mr Mouti at a substantial disadvantage because of early morning brain fog. The respondent adjusted his hours to 10am to 6pm, which the tribunal found addressed that disadvantage. The requested sole discretion over starting at 9am or 10am, extra help with the Standard of Care work, sickness absence information about vacancies and training, grievance handling, and postponement of the December meeting were either not linked to an established PCP, not reasonable, or not required. The reasonable adjustments claim was dismissed. The direct disability discrimination claim was also dismissed because the pleaded comparators were said to have mental health disabilities themselves and the factual allegations did not establish direct disability discrimination.

The direct race and sex discrimination claims repeated many of the same factual matters, including the Standard of Care task, alleged monitoring of hours, access to the ORRA database, the 15 June 2017 meeting, the offer of a Band 3 return option, the sickness absence process, hot desking, copied emails, Christmas events, documents sent to the London address, the finance team meeting and being told to leave the building on 8 December. The tribunal found that several allegations were not proved or were mischaracterised, that the named comparators were not in materially comparable circumstances, and that the respondent had non-discriminatory business or practical reasons for the actions taken. It held that race and sex were not reasons for the treatment complained of.