Unrepresented, in person For the v Ms C Van Den Berg Barrister — 2023

The claimant, an experienced obstetric and gynaecology consultant, was engaged through Medecho on a three-month fixed-term locum contract from 15 May 2021 to 3 August 2021. The respondent ended the engagement on 4 June 2021 after concerns arose about patient complaints, staff feedback, the claimant's clinical judgement, and his interactions with patients and colleagues. The tribunal accepted the evidence of Ms Deans and Mr Hay, and found that the claimant was at times dismissive, rude, and aggressive in his interactions, while also accepting that the respondent's concerns were based on a reasonable investigation of those complaints.

The wrongful dismissal and notice pay claim failed because the claimant had been engaged for less than one month, so no statutory notice pay was due under s.86 ERA 1996. The tribunal also rejected the contractual notice argument. It found that Ms Deans was entitled to terminate the engagement without notice in light of serious capability and behaviour concerns, including the complaints from 19 May 2021, the colposcopy clinic incident on 2 June 2021, the concerns about the claimant's handling of patients on 3 June 2021, and the material accepted by the tribunal about his failure to document patient care in one case.

The direct discrimination claims under s.13 EqA 2010, based on race and religion or belief, were dismissed because the claimant did not establish facts from which the tribunal could infer discrimination under s.136 EqA 2010. The tribunal found that the treatment complained of arose from clinical and conduct concerns, not from race or religion or belief. For the same reason, the harassment claim under s.26 EqA 2010 failed.

The fixed-term employee claim under the 2002 Regulations also failed. Applying Regulation 2 and Matthews v Kent and Medway Towns Fire Authority, the tribunal held that Ms Deans was not a comparable permanent employee because her role as head of service was not the same as or broadly similar to the claimant's locum consultant work. The tribunal also rejected the allegations about the 'AGENCY' badge, the grievance process, and the alleged failure to disclose notes, finding no actionable detriment or less favourable treatment. All claims were dismissed.