Employment Tribunal Rejects Whistleblower Protection Claims

OUTCOME: Dismissed

[NAME_1] No: 1308492/22 & 1308407/22

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EMPLOYMENT TRIBUNALS

Claimants: [redacted] Respondents: [redacted] Heard at: Birmingham

On: 2 June 2025 to 20 June 2025 and 5 January to 10 February 2026 Before: Employment Judge Meichen, [NAME_12], [NAME_14]: For the first claimant: [redacted] in January/February 2026 For the second claimant: [redacted] For the respondents: [redacted]

RESERVED JUDGMENT

The claimants’ claims for race and religious discrimination are dismissed following withdrawals of those claims by the claimants.

The claimants’ claims that they were automatically unfairly dismissed because they made protected disclosures fail and they are dismissed.

The claimants’ claims that they were unfairly dismissed fail and they are dismissed.

The claimants claims that they were subjected to detriments on the ground that they made protected disclosures fail and they are dismissed.

REASONS Introduction

1. This is the tribunal’s unanimous decision following the final hearing.

2. We should explain the issue which led to the hearing taking place over two separate periods. During the first hearing in June 2025 the [NAME_216], [NAME_16], was taken ill. We paused the hearing to see if [NAME_16] would be well enough to continue or if not could alternative representation be arranged. It became clear that neither alternative was viable. We decided to adjourn the [NAME_1] part heard and resume as soon as possible.

3. Luckily, we were able to resume relatively quickly. New dates were agreed starting in January 2026. Just before the hearing was due to restart however [NAME_16] was again taken ill and was unable to represent the first

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claimant. On this occasion the first claimant was able to arrange alternative representation and [NAME_18] stepped in to represent the first claimant. We allowed as much time as we could to enable [NAME_18] to get up to speed and we tried to be as flexible as possible, for example by allowing [NAME_18] to attend remotely on some days whereas the other advocates were always in person. We should also mention that [NAME_20] was able to undertake much of the cross examination and submissions on behalf of both claimants jointly.

4. We heard evidence from the claimants in June 2025. The claimants did not call any other witnesses. The first respondent’s first witness, [NAME_145], also gave evidence at the hearing in June. We heard evidence from the rest of the respondents’ witnesses in January/February 2026 ([NAME_167], [NAME_30], [NAME_9], [NAME_33] (‘[NAME_34]’) [NAME_35], [NAME_36], [NAME_38], [NAME_41]).

5. We were provided with a large amount of paperwork. This included a main bundle running to over 4000 pages and a witness statement bundle running to 427 pages (of which the claimants’ statements were 287 pages).

The issues

6. The tribunal was presented with an agreed list of issues which we have worked through.

7. Although they presented individual claim forms, they claimants are (save for three specific allegations – detriments 8, 11.3 and 12 in Schedule 3 in the agreed list of issues) pursuing identical claims, both legally and factually.

8. The legal claims are:

8.1 “Automatic” unfair dismissal for making protected disclosures – against the first respondent.

8.2 Detriments on the ground of making protected disclosures – against the first respondent, or against both respondents.

8.3 “Ordinary” unfair dismissal – against the first respondent.

8.4 Wrongful dismissal – against the first respondent.

9. On 23 January 2026, shortly before we were due to hear closing submissions the claimants withdrew their claims of direct race discrimination and direct discrimination because of religion or belief. The respondents point out that this was a very late withdrawal - over three years since the beginning of these proceedings. They invite the tribunal to draw an adverse inference from the late withdrawal as to the claimants’ credibility. We consider that as part of our conclusions.

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10. The agreed list of issues for us to determine is as follows. We have struck through rather than deleted the sections on discrimination in the list to avoid any confusion that might arise if the list is renumbered at this stage. We have deleted sections from the schedule about discrimination as they are no longer relevant, this didn’t affect the numbering and it would have been difficult to insert the schedule into the format of this judgment otherwise.

1. Time limits

1.1 Given the date the first claimant’s claim form was presented and the dates of early conciliation, any complaint by the first claimant about something that happened before 9 May 2022 may not have been brought in time.

1.2 Given the date the second claimant’s claim form was presented and the dates of early conciliation, any complaint by the second claimant about something that happened before 13 May 2022 may not have been brought in time.

1.3 Were the claimants’ claims under section 13 EqAct 2010 made within the time limit in section 123 of the EqAct2010? The Respondent says that all EqA claims are out of time.

1.4 Were the claimants’ claims under section 47B Employment Rights Act 1996 (“ERA”) made within the time limit in section 48ERA 1996? The Respondent say detriments 1-12 (including all sub sections of detriments 6 and 11) are out of time.

The Tribunal will decide:

1.4.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act complained of? 1.4.2 If not, was there a series of similar acts or failures and was the claim made to the Tribunal within three months (plus early conciliation extension) of the last one? 1.4.3 If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit? 1.4.4 If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable period?

2. Protected disclosure

2.1 Did the claimants make one or more qualifying disclosures as defined in section 43B ERA? The Tribunal will decide:

2.1.1 What did the claimants say or write? When? To whom? 2.1.2 Did they disclose information? 2.1.3 Did they believe the disclosure of information was made in the public interest?

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2.1.4 Was that belief reasonable? 2.1.5 Did they believe it tended to show that:

2.1.5.1 a person had failed, was failing or was likely to fail to comply with any legal obligation (namely a duty of care to patients and staff); 2.1.5.2 the health or safety of any individual (namely patients and staff) had been, was being or was likely to be endangered; 2.1.5.3 information tending to show any of these things had been, was being or was likely to be deliberately concealed.

2.1.6 Was that belief reasonable?

2.2 If the claimants made a qualifying disclosure, was it a protected disclosure because it was made to the claimant’s employer?

2.3 It is agreed that the first claimant made protected disclosures on the following occasions:

PID number Date Disclosure 1 10 April 2019 Email: new Tier 1 junior doctors being on the two-tier model did not meet the mandatory national recommended standard for new born resuscitation 2 18 April 2019 Re-sending of 10 April 2019 email

3 3 May 2019 Letter: concerns about patient safety and staff wellbeing including (but not limited to) Tier 1 doctors , the impact of an underresourced CAU on meeting national standards, lack of facilities, unsupportive radiology department, lack of capacity in clinics, lack of job plans, absence of clinical or safeguarding lead and lack of office space. 4 4 July 2019 Email: despite previous discussions about this issue, 2 new junior doctors ([NAME_44] & [NAME_46]) had been rota-ed to do continuous long days and this was a risk to patient safety and the doctors‘ wellbeing. 8 16 August 2019 Letter: detrimental impact of the two tier model on patient safety in addition to critical safety issues arising from understaffing, lack of support from management and allied specialities, insufficient/unsafe facilities and the absence of suitably qualified junior staff. 9 17 September 2019 Orally via [NAME_48] in meeting: as per 16 August 2019 letter (above). 17 21 April 2020 Orally in meeting: capability concerns about [NAME_53] and her attitude towards maintaining national standards with regard to patient management.

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18 7 May 2020 Email: collective concern about the safety of working out of hours with a junior doctor ([NAME_50] aka [NAME_217]) with inadequate paediatric experience. 20 4 June 2020 Email: clinical and team work concerns regarding [NAME_53]. 22 24 July 2020 Orally & Letter to FTSU Guardian: concerns about staffing issues causing service to be unsafe for patients 23 28 July 2020 Orally in meeting and handed FTSU letter: concerns about staffing issues causing service to be unsafe for patients 25 31 July 2020 Email: further incidents with [NAME_53] which compromised patient care and which placed undue stress on colleagues due to her late attendance, argumentative nature and makes working collaboratively difficult.

2.4 Did the first claimant also make protected disclosures on the following occasions:

PID number Date Disclosure 6b 19 July 2019 Email: supporting Second Claimant’s email of 18 July 2019 that 2 new junior doctors ([NAME_44] & [NAME_46])who had been placed on the rota to do long days and night shifts would compromise patient safety. 7 2 August 2019 Email: unanimous concern on behalf of consultant body that new junior doctor ([NAME_54]) continued to require extreme support and supervision and that she was not yet ready to do night shifts independently. 13 19 November 2019 Orally in meeting: issues with some [NAME_56] (including [NAME_53]) including poor clinical performance, not signing off or completing their own letters. 14 19 November 2019 Orally in meeting: lack of midwifery support for NIPE checks which meant consultants had to complete them. The SCBU already ran on minimal staff and if consultants had to leave the SCBU to go to the post- natal ward to do NIPE checks there would be no-one to do the regular work on SCBU compromising patient care. 15 17 March 2020 Email: junior doctors struggling with the number of baby checks on the weekend with no support from the midwives. Putting patients at risk with this arrangement. 16 17 March 2020 Orally in meeting: new junior doctors were not yet ready to be placed on rota alone but need to be supernumerary for a time. [NAME_50] was working out of hours shifts on the rota independently.

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24 30 July 2020 Email: concerns about [NAME_50]’s capability.

2.5 It is agreed that the second claimant made protected disclosures on the following occasions:

PID number Date Disclosure 3 3 May 2019 Letter: concerns about patient safety and staff wellbeing including (but not limited to) concerns about Tier 1 doctors , the impact of an underresourced CAU on meeting national standards, lack of facilities, unsupportive radiology department, lack of capacity in clinics, lack of job plans, absence of clinical or safeguarding lead and lack of office space. 6a 18 July 2019 Email: concerns about 2 new junior doctors ([NAME_44] & [NAME_46])who had been placed on the rota to do long days and night shifts and that this would compromise patient safety. 8 16 August 2019 Letter : concerns about the detrimental impact of the two tier model on patient safety in addition to critical safety issues arising from understaffing, lack of support from management and allied specialities, insufficient/unsafe facilities and the absence of suitably qualified junior staff. 9 17 September 2019 Orally in meeting: concerns as per 16 August 2019 letter. 10 25 September 2019 Email: highlighting inefficiencies with Tier 1 support. 11 16 & 17 October 2019 Email: highlighting issues for staff and patient safety. 15 16 March 2020 Email: junior doctors struggling with the number of baby checks on the weekend with no support from the midwives. 18 7 May 2020 Email: collective concern about the safety of working out of hours with a junior doctor ([NAME_50]) with inadequate paediatric experience. 20 4 June 2020 Email: clinical and team work concerns regarding [NAME_53]. 25 31 July 2020 Email: further incidents with [NAME_53] which compromised patient care and which placed undue stress on colleagues due to her late attendance, argumentative nature and makes working collaboratively difficult.

2.6 Did the second claimant also make protected disclosures on the following occasions:

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PID number Date Disclosure 5 16 July 2019 Orally in meeting: poor radiology support and inaccurate reporting 7 2 August 2019 Email: Unanimous concern on behalf of consultant body that new junior doctor ([NAME_54]) continued to require extreme support and supervision and that she was not yet ready to do night shifts independently. 12 19 November 2019 Orally in meeting: ongoing and unresolved issues with UCC referring patients back to CAU, lack of confidence in managing paediatric patients, patchy staffing and lack of consistency. 13 19 November 2019 Orally in meeting: issues with some [NAME_56] (including [NAME_53]) including poor clinical performance, not signing off or completing their own letters. 19 19 May 2020 Orally in meeting: lack of midwife cover over weekend and failure to complete NIPE checks. 21 29 June 2020 Email: concern regarding locum shift allocated to [NAME_50]. 23 28 July 2020 Orally in meeting: concerns about staffing issues causing service to be unsafe for patients

3. Detriment (ERA section 48)

3.1 In respect of the first claimant, did the respondents do the things set out in Schedule 3?

3.2 By doing so, did they subject the first claimant to detriment?

3.3 If so, was it done on the ground that the first claimant made a protected disclosure?

3.4 In respect of the second claimant, did the respondents do the things set out in Schedule 3?

3.5 By doing so, did they subject the second claimant to detriment?

3.6 If so, was it done on the ground that the second claimant made a protected disclosure?

4. Unfair dismissal

Automatic

4.1 Was the reason or principal reason for dismissal that the claimants made a protected disclosure?

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If so, the claimants will be regarded as unfairly dismissed.

Ordinary

4.2 What was the reason or principal reason for dismissal? The respondent says the reason was conduct.

4.3 Did the respondent genuinely believe the claimants had committed misconduct?

4.4 If the reason was misconduct, did the respondent act reasonably or unreasonably in all the circumstances, including the respondent’s size and administrative resources, in treating that as a sufficient reason to dismiss the claimant? The Tribunal’s determination whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the [NAME_1]. It will usually decide, in particular, whether:

4.4.1 there were reasonable grounds for that belief; 4.4.2 at the time the belief was formed the respondent had carried out a reasonable investigation; 4.4.3 the respondent otherwise acted in a procedurally fair manner; 4.4.4 dismissal was within the range of reasonable responses.

5. Wrongful dismissal / Notice pay

5.1 Were the claimants guilty of gross misconduct, such that the respondent was entitled to summarily dismiss them?

6. Direct race or religion discrimination (Equality Act 2010 section 13)

6.1 The claimants allege that they were discriminated against because of their Indian national or ethnic origin and/or their Hindu religion.

6.2 In respect of the first claimant, did the respondents do the things set out in Schedule 3:

6.3 Was that less favourable treatment?

6.4 If so, was it because of race and/or religion?

6.5 Did the respondents’ treatment amount to a detriment?

6.6 In respect of the second claimant, did the respondents do the things set out in Schedule 3?

6.7 Was that less favourable treatment?

6.8 If so, was it because of race and/or religion?

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6.9 Did the respondents’ treatment amount to a detriment?

Schedule 3

Alleged act/omission Whic h Clai mant ? Again st which R? Which PIDs? (C1 and [NAME_48] unless stated otherwise)

1. In September 2019, on receipt of complaints by [NAME_54] regarding the Claimants’ conduct, failing to include the Claimants in the ‘informal fact find’, failing to consider whether the matter could be resolved informally without recourse to formal disciplinary procedures and encouraging and assisting [NAME_54] to make a formal complaint. [NAME_228] 10 April 2019 (C1 only) (PID1): 18 April 2019 (C1 only) (PID 2): 3 May 2019 (PID3): 4 July 2019 (C1 only) (PID4): 16 July 2019 ([NAME_48] only): 18 July 2019 ([NAME_48] only) (PID6a): 19 July 2019 (C1 only) (PID6b): 2 August 2019 (PID7): 16 August 2019 (PID8): 17 September 2019 (PID9):

2. On 17/18 September 2019, threatening the Claimants that the service could be run with [NAME_56], that they would be dealt with appropriately and invoking an investigation [NAME_228] Same as detriment 1. above

3. Subjecting the Claimants to a formal investigation under the [NAME_57] procedure, in breach of [NAME_58], and carrying out a flawed and unreasonable investigation and producing a flawed investigation report. [NAME_228] Same as detriment 1. above plus:25 September 2019 ([NAME_48] only) (PID10): 16 &17 October 2019 ([NAME_48] only) (PID11): 19 November 2019 (PID12-14): 16 March 2020 ([NAME_48] only) (PID15): 17 March 2020 – oral and 17 March 2020 - email (C1 only) (PID16): 21 April 2020 (C1 only) (PID17): 7 May 2020

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(PID18): 19 May 2020 ([NAME_48] only) (PID19): 4 June 2020 (PID20): 29 June 2020 ([NAME_48] only) (PID21): 24 July 2020 (C1 only) (PID22): 28 July 2020 (PID23): 30 July 2020 (C1 only) (PID24): 31 July 2020 (PID25)

4. Subjecting the Claimants to a “service quality and safety” meeting with [NAME_59] on 28.07.20 (both Claimants) the focus of which was not to elicit the accuracy of the disclosures made by the Claimants and others and producing a flawed investigation report. [NAME_228] Same as detriment 1. above plus: 25 September 2019 ([NAME_48] only) (PID10): 16 &17 October 2019 ([NAME_48] only) (PID11): 19 November 2019 (PID12-14): 16 March 2020 ([NAME_48] only) (PID15): 17 March 2020 (C1 only) (PID15&16): 21 April 2020 (C1 only) (PID17): 7 May 2020 (PID18): 19 May 2020 ([NAME_48] only) (PID19): 4 June 2020 (PID20): 29 June 2020 ([NAME_48] only) (PID21): 24 July 2020 (C1 only) (PID22)

5. Suspending the Claimants without providing them with sight of the [NAME_57] report [NAME_228] Same as detriment 3. above.

6. Subjecting the Claimant to a flawed and unreasonable disciplinary investigation under the [NAME_58] and producing an investigation report which was flawed. This includes: 6.1 the appointment of the Second Respondent as [NAME_1] Manager; C1 & [NAME_48] R1 Same as detriment 3. above.

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6.2 taking what witnesses had to say at face value, not asking the most basic questions, not following up/probing sufficiently and not collating relevant documentary evidence; C1 & [NAME_48] R1 &R2 Same as detriment 3. above. 6.3 witness selection and interview not impartial; C1 & [NAME_48] R1 &R2 Same as detriment 3. above. 6.4 failing to distinguish between the conduct of each Claimant and the other consultants and unfairly attributing joint/collective responsibility; [NAME_228] Same as detriment 3. above. 6.5 unreasonable delay in the conduct of the investigation [NAME_228] Same as detriment 3. above. 6.6 the acts/omission set out at items 7 and 9 of this Schedule. [NAME_228] Same as detriment 3. above.

7. Failing to inform the Claimants that further allegations had been made about them in the course of the investigation and failing to provide particulars of those allegations to the Claimants until 26 August 2020. [NAME_228] Same as detriment 3. above.

8. On 4 March 2021, informing the Claimant that she was a ‘toxic influence’ and had concerns about staff safety because of the Claimant. Also telling the Claimant she would never recommend her for employment elsewhere and thereby prejudging the outcome of the disciplinary process. [NAME_48] only R1 & R2 Same as detriment 3. above.

9. Unreasonably delaying the disciplinary investigation process to search for more evidence against the Claimants. [NAME_228] Same as detriment 3. above.

10. Turning a blind eye to inappropriate [NAME_228] Same as detriment 3. above.

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derogatory and discriminatory comments/descriptions used about the Claimants by nursing staff which negatively influenced opinions/perceptions of the Claimants at the hospital.

11. Subjecting the Claimants to an unfair disciplinary hearing under the [NAME_58]. This includes: 11.1 compelling their cases to be heard at the same time, whilst simultaneously excluding another colleague from consideration once she had resigned; [NAME_228] Same as detriment 3. above. 11.2 in formulating the disciplinary charges against the Claimants ‘overloading the charge sheet’ by reframing/repeating allegations, pursuing allegations against the Claimants that were not supported by the evidence or had been withdrawn, attributing joint responsibility for allegations and raising allegations that did not form part of the original terms of reference for the investigation and were not put to them during the investigation interviews; [NAME_228] Same as detriment 3. above. 11.3 in the [NAME_1] of the First Claimant, resurrecting issues in formal disciplinary proceedings that had already been addressed informally/through other Trust processes; C1 only R1 & R2 Same as detriment 3. above. 11.4 unreasonably and inequitably refusing the Claimants representation by a privately instructed [NAME_25]. [NAME_228] Same as detriment 3. above.

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The First Respondent’s resistance to this resulted in a six-month delay to the process which could have been avoided and was prejudicial to the Claimants; 11.5 refusing to adjourn the [NAME_1] when the Claimants’ [NAME_25] was unavailable thereby causing immense prejudice to the Claimants; C1 & [NAME_48] R1 Same as detriment 3. above. 11.6 refusing the Claimants access to documents (including excessive redaction of the disciplinary hearing bundle). [NAME_228] Same as detriment 3. above.

12. Inexplicably deleting the First Claimant’s emails from 2020 from the [COMPANY_60]. C1 only R1 Same as detriment 3. above.

13. Excluding the Claimants from work and maintaining that exclusion unreasonably and in breach of the First Respondent’s own exclusion policy, from 6 August 2020 until the Claimants’ dismissal. [NAME_228] Same as detriment 3. above.

14. Issuing the First Claimant with a final written warning on 1 June 2022. C1 only R1 Same as detriment 3. above.

15. On 4 July 2022, referring the Claimant to the GMC. [NAME_228] Same as detriment 3. above.

The law

“Ordinary” unfair dismissal

11. The relevant parts of the ERA are as follows:

94 The right (1) An employee has the right not to be unfairly dismissed by his employer.

98 General (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show—

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(a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2) A reason falls within this subsection if it— (b) relates to the conduct of the employee (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the [NAME_1].

12. It is for the first respondent to show that the reason for dismissal was potentially fair. The potentially fair reasons for dismissal include conduct which is the reason relied on in this [NAME_1].

13. Guidance as to what constitutes reasonableness in the context of a dismissal for conduct was given in the [NAME_1] of BHS Ltd v Burchell [1980] ICR 393. The tribunal should consider whether the employer had a genuine belief in the misconduct alleged and whether that belief was held on reasonable grounds formed after a reasonable investigation.

14. The ultimate question is whether dismissal fell within the range of reasonable responses open to a reasonable employer. We have carefully reminded ourselves that we must not substitute our own view, but instead apply the range of reasonable responses test. The test applies to all aspects of the dismissal process including the procedure adopted and the investigation: Sainsburys Supermarkets Ltd v Hitt [2003] IRLR 23.

15. When considering whether there were any procedural flaws which caused unfairness the proper approach is for the tribunal to consider the whole of the disciplinary process. The purpose is to determine whether, due to the fairness or unfairness of the procedures adopted, the thoroughness or lack of it of the process and the open-mindedness (or not) of the decision-maker, the overall process was fair, notwithstanding any deficiencies at a particular stage. We should not consider the procedural process in isolation but should consider the procedural issues together with the reason for dismissal and decide whether, in all the circumstances of the [NAME_1], the employer acted reasonably in treating the reason it has found as a sufficient reason to dismiss (OCS v Taylor [2006] ICR 1602).

“Automatic” unfair dismissal

16. Section 103A ERA states:

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103A Protected disclosure An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.

Protected disclosures

17. Section 43B ERA states:

43B Disclosures qualifying for protection (1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following – (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed.

18. Section 43C ERA says that a qualifying disclosure is protected if the worker makes the disclosure to his employer.

19. The word ‘disclosure’ does not necessarily mean the revelation of information that was formerly unknown or secret. Section 43L(3) of the ERA provides that ‘any reference in this Part to the disclosure of information shall have effect, in relation to any [NAME_1] where the person receiving the information is already aware of it, as a reference to bringing the information to his attention’.

Accordingly, protection is not denied simply because the information being communicated was already known to the recipient. This was confirmed by the EAT in Parsons v Airplus International Ltd EAT 0111/17.

20. The worker’s reasonable belief must be that the information disclosed tends to show that a relevant failure has occurred, is occurring, or is likely to occur, rather than that the relevant failure has occurred, is occurring, or is likely to occur. In other words, the worker is not required to show that the information disclosed led him or her to believe that the relevant failure was established, and that that belief was reasonable — rather, the worker must establish only reasonable belief that the information tended to show the relevant failure.

21. This point was considered by the EAT in [NAME_61] v [COMPANY_62] of Science, Technology and Medicine EAT 0350/14. It was explained that there is a distinction between saying, ‘I believe X is true’ and ‘I believe that this information tends to show X is true’.

22. The EAT has stated that the test of ‘belief’ in section 43B establishes a low threshold. However, the reasonableness test clearly requires the belief to be

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based on some evidence — rumours, unfounded suspicions, uncorroborated allegations and the like will not be enough to establish a reasonable belief ([NAME_63] v [NAME_64] University Local Health Board [2012] IRLR 4).

23. If a claimant reasonably believed that the information tends to show a relevant failure there can be a qualifying disclosure of information even if they were later proved wrong. This was stressed by the EAT in [NAME_65] v University of Surrey 2003 ICR 615, EAT. The EAT held that the question of whether a worker had a reasonable belief must be decided on the facts as (reasonably) understood by the worker at the time the disclosure was made, not on the facts as subsequently found by the tribunal.

24. In [NAME_66] v London Borough of Wandsworth 2018 ICR 1850, the Court of Appeal held that ‘information’ in the context of S.43B is capable of covering statements which might also be characterised as allegations - ‘information’ and ‘allegation’ are not mutually exclusive categories of communication. The key principle is that in order to amount to a disclosure of information for the purposes of S.43B the disclosure must convey facts.

25. In [NAME_66] the Court of Appeal held:

(i) In order for a statement to be a qualifying disclosure, it had to have sufficient factual content and specificity such as it was capable of tending to show one of the matters listed in subsection (1).

(ii) Whether that was the [NAME_1] was a matter for the tribunal's evaluative judgement in the light of all the facts. It was a question which was closely aligned with the other requirement of s.43B(1), namely that the worker making the disclosure should have a reasonable belief that the information they disclosed tended to show one of the listed matters. If the worker subjectively believed that the information they disclosed tended to show one of the listed matters, and their disclosure had sufficient factual content and specificity such that it was capable of tending to show that matter, it was likely that their belief would be reasonable (see paras 30-36 of the judgment).

(iii) The context in which the statement is made is crucial. The measure of whether the information disclosed could in all the circumstances reasonably have sustained the belief that the information tended to show the relevant failure is the objective element of the test which calls for the evaluative judgment of the ET. Sales LJ emphasised the need for this to be assessed in the light of all the circumstances of the [NAME_1].

26. As explained by the Court of Appeal in [NAME_67] v [COMPANY_68] 2007 ICR 1026 a worker does not have to prove that the facts or allegations disclosed are true, or that they are capable in law of amounting to one of the categories of wrongdoing listed in the legislation. As long as the worker subjectively believes that the relevant failure has occurred or is likely to occur and their belief is, in the tribunal's view, objectively reasonable, it does not matter that the belief

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subsequently turns out to be wrong, or that the facts alleged would not amount in law to the relevant failure.

Protected disclosure detriment

27. Section 47B ERA states:

47B Protected disclosures (1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.

28. “Detriment” does not have a statutory definition. However in Jesudason v Alder Hay Children’s NHS Foundation Trust [2020] IRLR 374 the Court of Appeal accepted that the discrimination precedents are applicable and in particular applied two general principles: (1) 'detriment' is to be given a broad interpretation; and it is to be judged from the view point of the worker and (2) there is a detriment 'if a reasonable employee might consider the relevant treatment to constitute a detriment'.

29. No physical or economic consequences are necessary to establish detriment, and detriment can be found even if the detrimental action seems minor to an objective observer (Shamoon v RUC [2003] ICR 337). As a result, it is a low threshold (see [NAME_69] v [NAME_70] of [NAME_72] (2022) EAT 42).

30. In Ministry of [NAME_73] v [NAME_74] 1980 ICR 13, CA, Lord Justice Brandon said that detriment meant simply ‘putting under a disadvantage’.

Causation and the burden of proof in the whistleblowing claims

31. The leading authority on what is meant by the term “done on the ground that” is Fecitt and others v NHS Manchester (Public Concern at Work intervening) [2012] ICR 372. In that [NAME_1] the Court of Appeal stated that: “liability arises if the protected disclosure is a material factor in the employer’s decision to subject the claimant to a detrimental act.”

32. [NAME_75] 891/01 the EAT held that the words ‘on the ground that’ require a causal nexus between the fact of making a protected disclosure and the decision of the employer to subject the worker to the detriment. This mirrored the approach adopted in the context of victimisation by the House of Lords in [NAME_70] of [NAME_76] [NAME_77] v [NAME_35] 2001 ICR 1065. In that [NAME_1] it was held that the proper approach was not to ask whether ‘but for’ the protected act having taken place the treatment would have occurred, but rather what, consciously or unconsciously, was the employer’s reason or motive for the less favourable treatment. Where a tribunal finds a motive for the less favourable treatment, and is satisfied that this is not consciously or unconsciously related to the protected act, the less favourable treatment cannot be said to be ‘by reason’ of the protected act.

Accordingly, there is no victimisation. The EAT in [NAME_78] followed the approach in [NAME_35]

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when concluding that, ‘for there to be detriment under S.47B “on the ground that the worker has made a protected disclosure” the protected disclosure has to be causative in the sense of being “the real reason, the core reason, the causa causans, the motive for the treatment complained of”’.

33. Section 48 (2) ERA provides that “…. it is for the employer to show the ground on which any act, or deliberate failure to act, was done”. This does not mean that once a claimant asserts that he or she has been subjected to a detriment, the respondent must disprove the claim. Rather, it means that once all the other necessary elements of a claim have been proved on the balance of probabilities by the claimant — i.e. that there was a protected disclosure, there was a detriment, and the respondent subjected the claimant to that detriment — the burden will shift to the respondent to prove that the worker was not subjected to the detriment on the ground that he or she had made the protected disclosure.

34. In Kuzel v Roche Products Ltd [2008] ICR 799, the Court of Appeal considered the operation of the burden of proof as regards the reason for the dismissal in an unfair dismissal [NAME_1] brought by reference to section 103A which protects employees from dismissal for having made a protected disclosure. Mummery LJ explained that the tribunal should decide first whether it accepts the reason for the dismissal advanced by the employer before turning, if it does not find that reason to be proved, to consider whether the reason was the making of the protected disclosure.

35. In his judgment Lord Justice Mummery also rejected the contention that the burden of proof was on the claimant to prove that her making of protected disclosures was the reason for her dismissal. However, Mummery LJ was in agreement with the EAT that, once a tribunal has rejected the reason for dismissal advanced by the employer, it is not bound to accept the reason put forward by the claimant. He proposed a three-stage approach to s.103A ERA claims:

(i) First, the employee must produce some evidence to suggest that his or her dismissal was for the principal reason that he or she had made a protected disclosure, rather than the potentially fair reason advanced by the employer. This is not a question of placing the burden of proof on the employee, merely requiring the employee to challenge the evidence produced by the employer and to produce some evidence of a different reason.

(ii) Second, having heard the evidence of both sides, it will then be for the employment tribunal to consider the evidence as a whole and to make findings of primary fact on the basis of direct evidence or reasonable inferences.

(iii) Thirdly and finally, the tribunal must decide what was the reason or principal reason for the dismissal on the basis that it was for the employer to show what the reason was. If the employer does not show to the tribunal’s satisfaction that it was its asserted reason, then it is open

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to the tribunal to find that the reason was as asserted by the employee. However, this is not to say that the tribunal must accept the employee’s reason. That may often be the outcome in practice, but it is not necessarily so.

36. The EAT in Osipov v International Petroleum Ltd UKEAT/0058/17/DA explained the approach to be taken to drawing inferences and the burden of proof in detriment claims is analogous to the approach set out in Kuzel. The EAT described it as follows:

“Under s.48(2) ERA 1996 where a claim under s.47B is made, “it is for the employer to show the ground on which the act or deliberate failure to act was done”. In the absence of a satisfactory explanation from the employer which discharges that burden, tribunals may, but are not required to, draw an adverse inference: see by analogy Kuzel v. Roche Products Ltd [2008] IRLR 530 at paragraph 59 dealing with a claim under s.103A ERA 1996 relating to dismissal for making a protected disclosure. …. [NAME_79] submits and I agree that the proper approach to inference drawing and the burden of proof in a s.47B ERA 1996 [NAME_1] can be summarised as follows:

(a) the burden of proof lies on a claimant to show that a ground or reason (that is more than trivial) for detrimental treatment to which he or she is subjected is a protected disclosure he or she made.

(b) By virtue of s.48(2) ERA 1996 , the employer (or other respondent) must be prepared to show why the detrimental treatment was done. If they do not do so inferences may be drawn against them: see London Borough of [NAME_81] v. [NAME_82] at paragraph 20.

(c) However, as with inferences drawn in any discrimination [NAME_1], inferences drawn by tribunals in protected disclosure cases must be justified by the facts as found."

Wrongful dismissal

37. The claimants’ claim for notice turns on whether the first respondent was entitled to treat their actions as a breach of the contract of employment entitling them to dismiss without notice. We have to consider whether we are satisfied on the balance of probabilities that the claimants actually committed gross misconduct entitling the first respondent to summarily dismiss them.

Time limits – detriments claim

38. The time limits in relation to the detriments claim are in s. 48 ERA. The relevant parts of that section state: “(3)An employment tribunal shall not consider a complaint under this section unless it is presented—

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(a)before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or (b)within such further period as the tribunal considers reasonable in a [NAME_1] where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. (4)For the purposes of subsection (3)— (a)where an act extends over a period, the “date of the act” means the last day of that period, and (b)a deliberate failure to act shall be treated as done when it was decided on; and, in the absence of evidence establishing the contrary, an employer, a temporary work agency or a hirer shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done.” 39. As to what is meant by "not reasonably practicable" the most important [NAME_1] is Palmer v Southend Council [1984] ICR 372. In that [NAME_1] LJ made it clear that the issue is pre-eminently one of fact for the employment tribunal and that whether something is "reasonably practicable" is a concept which comes somewhere between whether it is reasonable and whether it is physically capable of being done. It was suggested that it means something like “reasonably feasible”. May LJ outlined various matters that may be relevant for an employment tribunal to consider. Among these are the question of what the substantial cause of the failure to present the claim within time was and also whether there was any "substantial fault" on the part of the claimant.

40. [NAME_83] in Asda Stores Ltd v Kauser EAT 0165/07 explained the test as follows: ‘the relevant test is not simply a matter of looking at what was possible but to ask whether, on the facts of the [NAME_1] as found, it was reasonable to expect that which was possible to have been done’.

41. The onus of proving that presentation in time was not reasonably practicable rests on the claimant and ‘That imposes a duty upon him to show precisely why it was that he did not present his complaint’ ([COMPANY_86] 1978 ICR 943).

42. Even if a claimant satisfies a tribunal that presentation in time was not reasonably practicable, the tribunal must then go on to decide whether the claim was presented within a further reasonable period. In University Hospitals Bristol NHS Foundation Trust v Williams EAT 0291/12 the EAT explained that this does not require the tribunal to be satisfied that the claimant presented the claim as soon as reasonably practicable after the

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expiry of the time limit in order to allow the claim to proceed. Rather, it requires the tribunal to apply the less stringent test of asking whether the claim was presented within a reasonable time after the time limit expired.

43. What amounts to a ‘further reasonable period’ is essentially a matter of fact for the employment tribunal to decide. There is no hard and fast rule about what period of delay is reasonable. In [NAME_88] v [COMPANY_218] and anor EAT 0537/10 it was suggested that the question of whether the period between expiry of the time limit and the eventual presentation of a claim is reasonable requires an objective consideration of the factors causing the delay and of what period should reasonably be allowed in those circumstances for proceedings to be instituted. Crucially, this assessment must always be made taking into account the primary time limit, the strong public interest in claims being brought promptly and the important general principle that litigation should be progressed efficiently and without delay. When deciding what would have been a reasonable time within which to present a late claim, tribunals should have regard to all the circumstances of a [NAME_1], including what the claimant did; what he or she knew, or reasonably ought to have known, about time limits; and why it was that the further delay occurred.

[NAME_58]

44. The Trust is required to act consistently with the national Maintaining High Professional Standards (“[NAME_58]”) framework when dealing with concerns about doctors and dentists. The parties referred us to numerous authorities about how [NAME_58] should be interpreted. We have read those and applied to them to our findings. Where we think it is appropriate to do so we refer to the principles we applied from the authorities we were referred to below. We have read and borne in mind the authorities that were brought to our attention and particularly relied upon by the claimants;

44.1 Kammath v Blackpool Teaching Hospitals NHS Foundation Trust [2021] EWHC 2811. This [NAME_1] shows that it is critical for the [NAME_1] manager to categorise the [NAME_1] correctly in an [NAME_58] procedure and that the role of an investigator and [NAME_1] manager are completely distinct, amongst other matters.

44.2 Lakshmi v Mid Cheshire Hospital NHS Trust (2008) IRLR 956. The claimants cited this [NAME_1] to demonstrate, among other matters, that [NAME_58] must be complied with. Even if a particular term is not apt for incorporation in and of itself, to act contrary to the published policy may amount to a breach of the implied term of trust and confidence: “The only appropriate way of looking at the policy [is] that it [will] be followed by the Trust unless the Trust [can] establish there is good reason not to do so.”

Findings

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45. We were provided with an agreed chronology. All parties confirmed during the hearing that the contents of the chronology were agreed. The chronology therefore informs parts of our findings.

46. The first claimant is [NAME_2]. The second claimant is [NAME_5]. The claimants are both consultant paediatricians.

47. The first respondent is [COMPANY_90] which serves a population of more than 300,000 in the Midlands. The hub of the trust is located at the [COMPANY_90] on the outskirts of Nuneaton. At all material times for the purposes of this claim the claimants worked at the [COMPANY_90].

48. The second respondent is [NAME_9]. [NAME_91] has a background as a consultant in respiratory medicine but since 2012 she has held senior clinical leadership roles within the NHS. In October 2017 she was appointed by the first respondent as Chief Medical Officer, and she held that role at all relevant times.

49. The claimants started their employment with the first respondent in March and April 2012 in the [NAME_92] department. The first claimant had previously worked at the first respondent as a locum.

50. The model of care which was operated in the first respondent’s [NAME_92] department was known as the two tier model. This model was established in consultation with the existing consultant body in 2011. It was implemented in 2013 following a review by the [COMPANY_93] of Paediatricians.

51. In many clinical teams there will be three tiers of doctors. Tier 1 are the most junior doctors and they are in the early stages of their career with limited experience in their specialist field. Tier 2 would be a middle grade consisting of registrar level doctors who have been practising in their specialism for a number of years. Some of these middle grade doctors would be on the route to becoming a consultant. Some would be doctors with many years experience but not yet on the training path to become a consultant. The third tier is the consultants, who are the most senior and have ultimate responsibility for the clinical activity in the department.

52. As the first respondent’s paediatric department operated a two tier system that meant that there was no middle grade or tier 2. This meant that there were a number of junior doctors in the department with consultants as their direct supervisors. Therefore the consultants were required to do more direct clinical supervision of junior doctors than might otherwise be the [NAME_1] if a middle grade had been in place.

53. The supervision of junior doctors was an important part of the claimants’ duties. They were obliged to help and develop junior colleagues within the team whether they were performing well or poorly.

54. A number of doctors who were recruited to tier 1 in the [NAME_92] department were international medical graduates who had either not worked in the NHS before or had only worked in the NHS for a short period of time. These doctors

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included [NAME_44], [NAME_46] and [NAME_54] who were recruited in February and April 2019. These doctors needed a lot of support and supervision and it was the responsibility of the consultants, including the claimants, to provide that.

55. The claimants’ employment was subject to the national NHS terms and conditions and the claimants had a local trust contract which reflected and incorporated the national terms.

56. An NHS consultant’s salary is paid according to the number of programmed activities (“PA”) that it is agreed they will perform per week. The PAs are set out in a schedule of activities known as a job plan. Job planning is how doctors working activity is agreed within the NHS.

57. Job plans describe the work which the consultant will undertake and how much time the consultant is expected to be available for work. The job plan consists of distributing the consultants PAs.

58. The claimants were contracted to work and were paid for 12 PA per week. Each PA is equivalent to 4 hours working time. A full-time job plan consists of 10 PAs but if the consultant has additional duties they may have more than 10 PAs. The 12 PAs which the claimants were working to was the maximum.

59. All consultants should be working to an agreed job plan. A schedule in the claimants’ contracts set out the job planning provisions. Their job plans should have been reviewed and agreed annually.

60. The process for annually agreeing job plans is that the consultants meet with their clinical director to reach agreement. It may be that agreement cannot be reached and in those circumstances there is a mediation and appeals process built into the consultants’ contracts and the first respondent’s job planning policy.

61. Since at least 2016 the claimants raised many concerns in the workplace. A number of their concerns related to the operation of the two tier model which the claimants were generally highly critical of.

62. Another feature of the claimants’ concerns was about the failure to agree job plans. Historically the first respondent had had a sporadic and inconsistent approach to job planning with only approximately 35% of doctors having formally agreed and signed off job plans. The claimants and other consultants in [NAME_92] were amongst those who did not have an agreed job plan.

63. When [NAME_91] first started in post one of her principal objectives was to improve the job planning process and get to the point where the majority of doctors had agreed job plans which were reviewed and agreed annually. As far as the claimants were concerned this objective was never achieved. The claimants never got to the stage where their job plans were agreed.

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64. A number of the concerns raised by the claimants also related to patient safety and clinical concerns. A particularly prevalent feature of those was concerns the claimants raised about the conduct and competence of their colleagues, including, but not limited to, the junior doctors who the claimants had the responsibility of supervising and supporting.

65. In addition to these key areas of concern the claimants also raised more minor concerns for example about access to a water fountain, the temperature of the office during hot weather, storage of notes in the consultants’ offices and access to IT equipment.

66. A number of the concerns raised by the claimants are relied upon as protected disclosures in this claim. The respondents accept that the claimants raised many protected disclosures. There are some which are not accepted. We will address this in more detail in our conclusions.

67. The first respondent invited the [COMPANY_93] of [NAME_92] and Child Health to review the paediatric service. They produced a report outlining the findings of their review in March 2016. The principal objective behind this review was to explore concerns about how the two tier model had been operating in practice and help to deliver vision and strategy for the future. This review found that the model had been difficult to implement, there had been clinical inconsistencies and the perceived workload for consultants had increased which made the service difficult to staff on a permanent basis. The report suggested that strong leadership was required and a number of practical recommendations were made.

68. We should add that the evidence that we heard supported the review’s finding that staff recruitment had been challenging within the [NAME_92] department. In particular it was a struggle to recruit permanently at consultant level and therefore there were lots of locum consultants who worked in the department over the period we were looking at alongside the permanent consultants such as the claimants. For much of the period we were looking at there was only a small group of permanent consultants, including the claimants. Sometimes it was only a group of three – the claimants and [NAME_94]. It seems clear to us that that group felt put upon because they had the supervisory responsibility towards junior doctors and had limited support from locum consultants by virtue of the fact that the [NAME_56] were temporary additions to the team.

69. In light of the recommendations from the [COMPANY_93] the first respondent’s then medical director put forward a paediatric improvement plan identifying areas for improvement and how they should be achieved. A particular priority was for the consultant body to engage more in the process of job planning.

70. Hot on the heels of the [COMPANY_93]’s review the first respondent commissioned [NAME_97] to conduct an investigation under its freedom to speak up policies. [NAME_98] was the Chief Nurse at the University Hospital Birmingham NHS Trust. Her report was commissioned because a number of

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individuals anonymously raised concerns about issues which were said to have had a direct impact on patient care in the paediatric service.

71. The issues which had been raised and which were investigated by [NAME_98] included the visibility of leadership, management of staff relationships, retention of medical staff, use of resources including locum support, lack of support provided by consultants, lack of responses following requests for support, capability and competency of team members, lack of transparency, consistency and equity in treatment of individual staff members, communication, attitudes and use of language other than English.

72. [NAME_98]’s report was produced in June 2017. As part of her review 27 interviews were undertaken with a range of staff members in the paediatric department. The [NAME_99] report highlighted several issues within the paediatric service. [NAME_100] found that it had been repeatedly reported that there was a lack of mentoring, support and training provided by the consultants to more junior staff, [NAME_56] and nurses. [NAME_98] found that the lack of effective permanent staff must be seen as a significant issue that may have been a reason for this. She noted that there had only been 3 full time substantive consultants in the department over the last year (the claimants and [NAME_101]).

73. [NAME_100] reported that the communication and attitude of the consultants was inadequate, inappropriate and could be interpreted as bullying. [NAME_100] specifically identified the second claimant as one of those whose behaviour fell into this category but she did not single out the first claimant in the same way.

74. A particular problem identified by [NAME_98] as flowing from the consultants’ behaviour was that the nurses felt apprehensive about approaching consultants and they therefore tried to find ways of working without going direct to the consultants. When interviewees had challenged the consultants (i.e. the claimants and [NAME_101]) that had resulted in arguments and tit for tat behaviours which had added to the difficult atmosphere in the department. The lack of a proper working relationship between doctors and nurses risked ineffective communication and decision making, which might impact on future patient care.

75. An important finding in the [NAME_99] report related to the culture within the paediatric service and its potential risk to patient safety. In [NAME_98]’s view the greatest concern in the paediatric service was the culture. She described the culture as posing a potential risk to patient safety and said that it was negative and acrimonious. [NAME_98]’s view was that the poor culture was created from the behaviours and attitudes of leaders and she said that this issue needed to be urgently addressed.

76. From the evidence that we saw and heard [NAME_100] was right to identify the culture problem within the paediatric service. We think she was correct to describe it in the way that she did. Regrettably, it also seemed to us that the culture did not improve in the period after the publication of [NAME_100]’s

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report. As will be seen, many of those who worked within the department or who reported on how the department worked described the culture in a similar way to [NAME_100] – “toxic”. Further, as leaders within the department the claimants were consistently identified as having caused or contributed to this toxic culture.

77. In November 2017 [NAME_91] had her first meeting with the consultant paediatricians including the claimants in her capacity as the newly appointed medical director. The consultant team explained to [NAME_91] at that meeting the challenges they were facing. At the time of this meeting the clinical lead for the [NAME_92] department was [NAME_101].

78. On 1 April 2018 a number of [NAME_102] including the claimants submitted a vote of no confidence in [NAME_101] and her ability to run the paediatric service. The consultants said that they had concerns regarding [NAME_101]’s leadership, including her lack of respect for colleagues and staff members. They said that she had displayed inconsistency in the application of rules especially with regard to rota management. The consultants said that their morale was low and it was “high time for a change at the helm”.

79. The vote of no confidence resulted in a review led by [NAME_103], who was the Interim General Manager for [NAME_106] from December 2017 to June 2018.

80. [NAME_107]’s report was finalised in July 2018. She found that there remained problems in providing a cohesive, stable and sustainable paediatric service. She made a number of recommendations including that the recommendations of the [NAME_99] report be implemented.

81. [NAME_107] found that there was a clear pattern in [NAME_101]’s behaviour that had led to the concerns being raised. This was that [NAME_101] would talk over others in meetings and take little account of the validity of their position. [NAME_107] said that [NAME_101]’s behaviour in meetings was on occasion unprofessional. [NAME_107] specifically pointed out that it was worthy of note that those same behaviours had been demonstrated in the same meetings by both of the claimants (and another doctor – [NAME_108]).

82. In her conclusions [NAME_107] explained that she had met with each of the consultants and that they had agreed to provide her with written statements of their concerns and provide specific dated examples. However only one person subsequently put any comments in writing and even that contained no specific examples just generalised statements. This obviously made [NAME_107]’s task more difficult but she did feel able to conclude that there was a lack of personal and professional respect between colleagues in the [NAME_92] department. [NAME_107] highlighted that on her findings this was not a position unique to [NAME_101] – it had also been documented against both of the claimants, [NAME_108] and on occasion [NAME_110].

83. On 17 July 2018 the second claimant was signed off with anxiety and stress. She began a phased return to work on 31 August 2018.

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84. [NAME_91] met with the [NAME_102] on 25 September 2018. It was agreed that an action plan would be implemented, that there would be a further review of the model of care and steps would be taken to address the workforce vacancies.

85. [NAME_101] announced in the meeting on 25 September 2018 that she was stepping down as clinical lead.

86. Following the meeting an action plan was created, a task and finish group was set up to implement the action plan (albeit there was no consultant representation in the group) and the progress of the plan was monitored by an executive group.

87. [NAME_91] also attempted to make progress on the job planning issue and to that end she met with the consultants’ [NAME_112] representative [NAME_113] on 28 September 2018 to discuss job planning. [NAME_91] met with [NAME_113] on several more occasions and she also met with the consultants on the issue of job planning around this time.

88. [NAME_91] was trying to get the job plans agreed by the end of October 2018, but that did not happen. By October 2018 the second claimant had formally requested to reduce to 10 PAs. The first claimant made a similar request in November 2018.

89. On 31 October 2018 [NAME_114] (deputy medical director) took on the task of trying to agree the claimants’ job plans. He arranged numerous meetings from 2018 to 2020. This included mediation in 2019 because agreement could not be reached. Even after that agreement was still not reached. The mediation in 2019 was conducted by [NAME_117] who was a consultant orthopaedic surgeon at another NHS trust. He made a proposal for a potential job plan which was agreed by the claimants but not accepted by the first respondent. Dr [NAME_119] considered that the consultants’ concerns were not really to do with job planning but with the model of care.

90. In November 2018 [NAME_120] undertook a review of the model of care. [NAME_219] was the Clinical Lead for [NAME_92] and Associate Medical Director from Wye Valley NHS Trust. She met with a number of people but not all the [NAME_102] and she did not meet the claimants.

91. [NAME_120] provided the first respondent with some practical advice on how job plans might be formulated within the context of the service model. She also gave some practical advice concerning how to improve recruitment.

92. The first respondent’s attempt to improve recruitment resulted in the appointments of [NAME_54], [NAME_46] and [NAME_44]. [NAME_102] were involved in their recruitment processes.

93. The second claimant was appointed as [NAME_54]’s supervisor. The second claimant had a number of grave concerns about [NAME_54]’s competence. Dr

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[NAME_55] was recruited in April 2019 but it was not until July 2019 that the second claimant supported [NAME_54] going on to the rota. Some other consultants – including the first claimant in particular - also held concerns about [NAME_54]’s competence and ability to work independently.

94. On 7 August 2019 [NAME_123], the clinical director for [NAME_106] services, met with the first claimant and others to discuss the capability concerns about [NAME_54]. At around the same time concerns were raised by nursing staff regarding the behaviour and attitude of the first claimant towards [NAME_54]. These concerns were looked into by [NAME_124] who was the operations manager for [NAME_106] services.

95. [NAME_126] attended the [NAME_92] department on 15 August 2019 due to the concerns that had been raised by the nursing staff. The concerns he was looking into included that the first claimant had critiqued [NAME_54] at every given opportunity to the point where [NAME_54] appeared emotionally shattered. The nurses had said that unless immediate action was taken they would need to put in a grievance on the grounds of bullying and harassment. The nurses said that the treatment of [NAME_54] was such that she had been reduced to tears and spoken of her wish to leave the service.

96. [NAME_126] was obviously concerned about the attitude of the consultants towards [NAME_54]. He spoke with both the claimants about [NAME_54]. In short he asked them to reconsider their approach towards [NAME_54]. He expressed the hope that the claimants would take what he had said on board and there would not be any need for the matter to be escalated further.

97. In June 2019 [NAME_127], an emergency department consultant who worked at another NHS trust, provided a culture and behaviours workshop. The second claimant attended this training session but the first claimant did not as she was on annual leave.

98. On 16 August 2019 eight [NAME_102] wrote to the first respondent’s chief executive, [NAME_129], about the impact of the two tier model on patient safety. Multiple other concerns were also raised including lack of facilities, lack of support, lack of job plans and the recruitment of inexperienced tier 1 doctors. This last point appears to have been a reference to the appointment of [NAME_54], [NAME_46] and [NAME_44].

99. [NAME_132] arranged a meeting with the [NAME_102] to discuss their concerns on 17 September 2019. The second claimant attended this meeting but the first claimant did not, as on 28 August 2019 the first claimant was signed off sick on stress leave until 23 September 2019.

100. On 1 September 2019 [NAME_54] became supernumerary. The second claimant continued to meet with [NAME_54] in her role as her supervisor. On 4 September 2019 she outlined a plan to support [NAME_54] to achieve the required competency to allow her to work safely and independently on the rota.

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101. [NAME_133]’s attempt to agree job plans with the claimants came to an unsuccessful end. On 6 September 2019 [NAME_133] made a final attempt to propose job plans to the claimants. The claimants did not agree to the proposed job plans and indicated that they wished to appeal.

102. On 15 November 2019 [NAME_91] wrote to the claimants to say that if they wished to appeal then they would need to write to her to provide their grounds of appeal in accordance with the procedure set out in the consultants’ terms and conditions. [NAME_91] set a deadline of 27 November 2019 for this to be done. Her email was sent directly to the claimants and also to [NAME_113], their [NAME_112] representative.

103. The claimants did not write to [NAME_91] to provide their grounds for appeal by 27 November 2019 or at all. No appeal was lodged at any time by either claimant or by the [NAME_112] on behalf of either claimant.

104. On 2 December 2019 the claimants, and four other consultants, wrote to [NAME_132] to say that they would not sign off on the proposed job plans but they would hold off on their appeals pending delivery on assurances and promises that had been made. They said that if the assurances had not been realised by 1 April 2020 they would submit an appeal. As we’ve mentioned however the claimants did not submit an appeal.

105. The net result of this situation was that it seemed as though the proposed job plans were in a form of limbo where the claimants did not agree to them but they did not appeal which should have been the next step according to the procedure.

106. On 14 September 2019 [NAME_54] emailed [NAME_41], who was the general manager of the [NAME_106] department. In her email [NAME_54] raised concerns about the treatment of her by some consultants in the paediatric department. She reported being unsupported and judged and said that things had been getting worse. She referenced her supervisor - the second claimant – as a particular perpetrator. She said that she had been asked by [NAME_56] who had witnessed what had been happening if she was suffering from harassment or bullying. [NAME_54] provided a list of occasions where she felt she had been mistreated by the consultants. [NAME_54] asked for [NAME_41]’s help as she didn’t know what else to do.

107. [NAME_41] escalated [NAME_54]’s email to [NAME_91] and commenced an informal fact find. The claimants were not spoken to as part of this informal fact find. Following her informal fact find [NAME_41] reported back to [NAME_91] that she had met with [NAME_54] and [NAME_46] (who by that stage had already left the trust). She said that both of those doctors had experienced unfair behaviours and attitudes from several of the consultants which had reduced them to tears. This treatment was the reason why [NAME_46] had left the trust. [NAME_41] pointed out that [NAME_46] was a 39 year old doctor from overseas who had been a consultant within her own country. [NAME_41]’s view was that the consultants’ behaviour towards these junior doctors may be

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classed as harassing and bullying. This was fed back to [NAME_91] by email dated 17 September 2019.

108. On 17 September 2019 [NAME_134] emailed [NAME_41] with more concerns about consultant behaviour in the [NAME_92] department. [NAME_134] was a paediatric nurse. She reported having found [NAME_54] in tears on a number of occasions due to her treatment by the consultants. She specifically named the first claimant as being one of those responsible but not the second claimant.

109. [NAME_134] also said that she had decided to leave the trust to go and work elsewhere. She said that the catalyst for that was the treatment of nurses by the consultants. She said she had worked in war zones and major trauma centres but had never been spoken to so badly or with such little respect previously.

110. [NAME_134] named the perpetrators of the behaviour which caused her to leave as both of the claimants and [NAME_101]. She said that those three people would not listen to nurses and they continually patronised and belittled them. She described the behaviour as consistent and said that there was little point in challenging it as it was clearly a historical issue. She felt the conduct was inexcusable.

111. [NAME_134]’s concerns were brought to [NAME_91]’s attention by [NAME_41].

112. In addition to raising her concerns to [NAME_41] [NAME_54] also complained to HR that she was being bullied by consultants. Consequently, HR wrote to [NAME_91] on 23 September 2019. They recommended that an investigation take place under the [NAME_57] (“DAW”) policies. [NAME_91] agreed with this proposal and she commissioned [NAME_137] to conduct a DAW investigation. [NAME_139] was the first respondent’s deputy chief operating officer.

113. On 23 September 2019 [NAME_54] again emailed [NAME_41] raising concerns about her treatment by consultants. In this email she specifically named the second claimant but not the first. [NAME_54] reported having been “scolded” by the second claimant. The feeling that [NAME_54] had was that the consultants had been looking for any mistake that she might make. She described herself as being affected by what was happening and she said she was sending the email to [NAME_41] in order to protect herself as the consultants were analysing everything she was doing. This was a clear example of the pressure that the consultants, and the second claimant in particular, were putting on their junior colleagues when they should have been supporting them.

114. On 27 September 2019 [NAME_54] had a supervision meeting scheduled with the second claimant. [NAME_54] cancelled that meeting at short notice. [NAME_54] sought to rearrange the meeting but the second claimant declined to do so. The second claimant sent [NAME_54] an email in which she said that a further

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meeting would not be arranged as [NAME_54] had an appraiser who could support her.

115. [NAME_54] responded to the second claimant’s email and was highly apologetic. She said she was really sorry for having to cancel the meeting and if the second claimant just told her when she would be [NAME_11] she would be there.

116. The second claimant would not change her stance. She said she was already struggling with multiple roles. She stepped away from being [NAME_54]’s supervisor. With effect from 1 October 2019 the second claimant ceased to be [NAME_54]’s mentor.

117. The second claimant’s decision to stop being [NAME_54]’s mentor was one of the matters relied upon in the subsequent disciplinary [NAME_1] against the second claimant. We felt it was a particularly clear example of the second claimant’s poor conduct, even taking into account the second claimant’s contention that she was overworked. An appraiser was no substitute for the supervisor/mentor role that the second claimant was meant to be fulfilling. It was abundantly clear that [NAME_54] was struggling and in dire need of support and mentorship. The second claimant’s decision to withdraw her mentorship, which seems to have been done in a fit of pique because [NAME_54] cancelled one supervision meeting, left [NAME_54] in the lurch and would likely have contributed to her feelings of being unsupported which ultimately led to her decision to leave the first respondent. The second claimant’s actions towards [NAME_54] substantiated the general concern that she had been unsupportive towards junior colleagues.

118. The fact that there may have been concerns about an individual’s performance did not absolve the claimants from the requirement to maintain professional standards of behaviour and in particular their professional obligations to contribute to teaching and training doctors, to be willing to take on a mentoring role for juniors and to support colleagues with performance problems. We do not think that either claimant appropriately recognised this point.

119. On 15 October 2019 [NAME_139] interviewed [NAME_54] as part of his DAW investigation. On 11 November 2019 he wrote to the claimants outlining the allegations that had been made against them. On 3 December 2019 the claimants were both interviewed by [NAME_139]. [NAME_139] also conducted other interviews and these were completed by the end of February 2020.

120. The first respondent has an incident reporting system which involves the use of “datixes” to report concerns. On 22 May 2020 [NAME_140] the safeguarding lead nurse raised a datix regarding a clinical incident involving the first claimant. Ms [NAME_142] recorded that the first claimant had declined to do a child protection medical on the grounds that using “language line” (an interpretation service) was inappropriate. This became the clinical allegation against the first claimant in the subsequent disciplinary process. This allegation was first considered by [NAME_123] as a tabletop review in August 2020.

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121. On 21 April 2020 at a meeting with [NAME_123] the first claimant raised capability concerns about [NAME_143]. [NAME_53] had joined the first respondent as a locum paediatric consultant in September 2019.

122. On 27 May 2020 [NAME_53] sent an email to both of the claimants and [NAME_101] about her concerns over the way she was being treated by them. [NAME_53] specifically complained to these three consultants about their antagonising behaviour and condescending tone towards her, which she said was evident in all their forms of communication with her and even behind her back. She reported that a number of colleagues had commented on this and were concerned that she would leave. She said that these three consultants had engaged in passive aggressive behaviour and that she was considering leaving because of it.

123. [NAME_53] forwarded her email to [NAME_91]. She told [NAME_91] that she did not want any action to be taken at that stage. [NAME_53] was hoping that by raising her concerns directly to the perpetrators that would put a stop to the problem. But at the same time she was recording her concerns formally in writing as she was worried that the claimants and [NAME_101], in her words, would gang up on her and eliminate her. She felt there was a risk that as she was outnumbered she would be “framed” or “thrown under the bus” by the claimants and [NAME_101].

124. Like the issues reported by [NAME_54] and [NAME_134] [NAME_53]’s emails were a revealing insight into how the claimants’ behaviours made working life very difficult for their colleagues. As with [NAME_54] and [NAME_134] there is no cogent basis for any suggestion that [NAME_53] may have made these things up.

125. The respondents did not speak to the claimants about [NAME_53]’s concerns at the time they was raised. As we have mentioned [NAME_53] stated in her email to [NAME_91] that she did not want any action taken at that point. Plainly she was worried about what would happen if the claimants and [NAME_101] found out that she had reported her concerns to [NAME_91].

126. On 4 June 2020 the second claimant raised concerns to [NAME_123] about [NAME_53]. The first claimant, [NAME_101] and two other doctors were copied in to her email. The second claimant raised further concerns about [NAME_53] to [NAME_123] later in June and in July 2020.

127. On 24 July 2020 the first claimant raised concerns about staffing issues via the first respondent’s freedom to speak up process. The first claimant’s concerns related to the use of locum and junior doctors who required a lot of support and mentoring but there was not enough consultants to be able to provide safe and effective guidance. In addition the first claimant said that she was aware of concerns having been received about consultant behaviours and DAW issues and she said that she was worried that those concerns would mask the actual safety concerns. She used the words “witch hunt” and “scapegoat” to describe what she thought was going on. It therefore seemed to us that the first claimant’s freedom to speak up concerns were raised in part defensively –

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to guard against the criticisms that were gathering about consultant behaviours. As we shall explain when these criticisms came to be investigated and analysed in more detail it was clear that they were not in fact raised as part of a witch hunt and the claimants had not been scapegoated. The criticisms were genuine.

128. The first claimant’s freedom to speak up concerns were raised anonymously. [NAME_91] was advised that an anonymous complaint had been raised but she did not know who had made it. The first claimant did not disclose to [NAME_91] that she had raised the concern.

129. [NAME_145] was commissioned to investigate the anonymous freedom to speak up complaint. [NAME_59] was the Deputy Chief Medical Officer. [NAME_59] produced a report in September 2020 which was sent to [NAME_91].

130. [NAME_59] undertook a wide range of interviews. His questioning was open and non-specific. He based his interviews on the following question; “Some concerns have been raised about the safety of the paediatric service, have you any worries about the department?”.

131. One issue that came out of [NAME_147]’s investigation was that it was reported to him that the behaviour of three consultants was the reason why some doctors who had worked as [NAME_56] had elected not to work permanently for the first respondent. The three consultants were named as both of the claimants and [NAME_101].

132. A particular feature of the three consultants’ inappropriate behaviour which was reported was using datixes defensively i.e. if a valid concern was raised for example by a nurse a counteracting datix would then arrive a couple of days later.

133. [NAME_59] reported that the use of [NAME_56] had led to a loss of continuity and he identified a division between the [NAME_56] and the substantive staff. He recorded evidence of undermining comments made by substantive consultants such as “she is a locum, not a proper consultant”. These comments were attributed specifically to the first claimant and [NAME_101], but not the second claimant.

134. The claimants reported to [NAME_59] poor communication from management. The only specific example they identified was delay in the DAW investigation. The claimants also emphasised their concerns about the junior doctors not being sufficiently experienced or capable and the failure to agree job plans.

135. Other staff raised concerns about the [NAME_102]. In particular the nursing staff raised to [NAME_59] that they did not feel valued because certain consultants were rude and overbearing. The first claimant and [NAME_101] were identified as at fault in this respect.

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136. [NAME_59] reported that attempts had been made to encourage cooperation and collaboration between nurses and [NAME_102] but poor behaviour on the part of the consultants had continued. For example he described reports of rudeness by consultants in clinical situations including walking off in the midst of discussions about patient management, talking over and ignoring nursing contributions and criticising junior doctors in a destructive way. In respect of those examples both of the claimants were named along with [NAME_101] as those who were responsible.

137. [NAME_59] described the culture in the [NAME_92] department as unhealthy. He perceived division within the department and he said that there was a strong sense of us and them and a resulting tension between consultants, nurses and junior doctors. This appeared to us to be an accurate insight. [NAME_59] identified the two claimants, [NAME_110] and [NAME_101] as being the group who had exerted substantial influence over this culture.

138. [NAME_59] left it for [NAME_91] to decide on an appropriate way forward rather than making recommendations himself. [NAME_147]’s report was disclosed to the claimants on 15 October 2020.

139. On 10 July 2020 [NAME_139] produced the first draft of his report following his DAW investigation. On 5 August 2020 [NAME_139] emailed the final version of his report to [NAME_91].

140. [NAME_139]’ conclusion was that there was evidence to suggest that [NAME_54] was undermined within the workplace. He found that [NAME_54] had been made to feel undervalued and underconfident. [NAME_139] found that instead of support being provided to [NAME_54] she had been subjected to putdowns and behind the doors negative commentary. He found that from the evidence that he had gathered that it was clear that there had been instances where both of the claimants and [NAME_110] had treated [NAME_54] in a way that was unwarranted and that made her feel inadequate and it crushed her. He found that [NAME_54] had experienced bullying or harassment in the work environment at the [NAME_138] of both of the claimants and [NAME_110] and those doctors had done nothing to address her support and developmental needs. He identified specific behaviours such as throwing paper in the bin, shouting at her, making her cry on the phone and inconsistent and non-supportive communication from the second claimant.

141. [NAME_139] identified that there had been a difference of opinion within the consultant body as to [NAME_54]’s competence. Whilst both of the claimants and [NAME_110] felt that [NAME_54] wasn’t capable of working alone other colleagues felt that [NAME_54] was sufficiently competent.

142. [NAME_139] described what he saw as a divided culture within the [NAME_92] department. There were clear divisions between consultants, junior doctors and nurses. This division resulted in an atmosphere of stress and at times fear which had led to many employees leaving and making recruitment of new employees difficult. Again this appeared to us to be an accurate insight.

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143. [NAME_139] recognised that the absence of a middle tier had increased the pressure on the whole team in [NAME_92]. He observed that the lack of a middle tier seem to compound the problems, but he also pointed out that that difficulty did not justify the poor behaviour which had been revealed during his investigation. This was a fair observation. It demonstrates that from an early stage the claimants’ concerns about the system were taken into account but the respondents, quite reasonably in our judgement, took the view that the systemic problems could not excuse the claimants’ poor behaviour.

144. [NAME_139]’ observations as to the culture within the [NAME_92] department were reflected in the evidence that we saw and heard. We were struck by what appeared to be the very clear division between consultants, nurses and junior doctors which must have made the working environment very difficult indeed. It should be acknowledged that as leaders within the department the claimants were to a significant extent responsible for this unhealthy/toxic culture. The evidence which we saw and heard demonstrated that quite clearly.

145. [NAME_139] recommended that there was sufficient evidence of bullying and harassment to warrant consideration by a formal disciplinary panel. He considered that a letter of apology should be sent to [NAME_54] and that she should be thanked her for coming forward.

146. By the time [NAME_139] finalised his report [NAME_54] had already left the trust in order to become a GP trainee.

147. On 5 August 2020 the final version of [NAME_139]’ report was emailed to [NAME_91]. [NAME_91] had a meeting with [NAME_132] and the chief people officer [NAME_148] to discuss the exclusion of four consultant paediatricians including the claimants. The term “exclusion” was used to avoid confusion with “suspension” by the GMC but as far as we understood it exclusion had the same effect as suspension in the ordinary sense. [NAME_91] decided to exclude both of the claimants, [NAME_101] and [NAME_110]. There were meetings with the claimants and letters sent out to confirm the exclusions on 6 August 2020. The claimants were not provided with an opportunity to see or respond to [NAME_139]’ report prior to the exclusion.

148. The Trust is required to act consistently with the national Maintaining High Professional Standards (“[NAME_58]”) framework when dealing with concerns about doctors and dentists. [NAME_58] was issued by the Department of Health in 2003. It is incorporated into a doctors’ employment contract and is the framework for the handling of concerns about doctors and dentists in the NHS.

149. When a serious concern is raised about a doctor, [NAME_58] (which is incorporated into the Trust’s Disciplinary and Management of Performance Policy and Procedure for Medical Staff (“[NAME_58]”) requires that a [NAME_1] Manager be appointed who will determine how the concerns will be addressed.

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150. In summary, the options when a concern is raised are to respond informally (perhaps through discussion, coaching, additional training etc) or, if the nature of the concern warrants it, to appoint a [NAME_1] investigator to investigate the concerns and prepare a report for further consideration by the [NAME_1] Manager.

151. The trust [NAME_58] policy provides that the [NAME_1] investigator should complete the investigation within four weeks of appointment and submit their report to the [NAME_1] manager within a further five working days. [NAME_58], it is only after an investigation has been carried out, that the concern should be categorised as one of conduct, capability or ill health. If the [NAME_1] manager considers after an investigation that the concerns are matters of conduct and it is appropriate for those concerns to be considered further at a disciplinary hearing then the process reverts to the first respondent’s standard disciplinary policy.

152. [NAME_91] was asked by [NAME_132] to act as [NAME_1] manager in the [NAME_58] process involving the claimants. It is custom and practice for the chief medical officer to act as the [NAME_1] manager when dealing with concerns about consultants, if possible. [NAME_91] has [NAME_1] managed the majority of [NAME_58] cases since she has been appointed into post. The trust’s [NAME_58] provides that the medical director will act as the [NAME_1] manager in cases involving clinical directors and consultants. We therefore consider that [NAME_91] was appointed as [NAME_1] manager in line with trust policy and the usual practice. Although the claimants have now complained about the fact that [NAME_91] was appointed as [NAME_1] manager this was not a matter about which they complained at any point during the investigation process.

153. [NAME_58] provides that the purpose of exclusion is:

153.1 To protect the interests of patients or other staff; and or 153.2 To assist the investigative process when there is a clear risk that the practitioner’s presence would impede the gathering of evidence.

154. [NAME_58] provides that a formal exclusion must be reviewed every four weeks, and the doctor informed of the outcome.

155. The [NAME_58] framework builds in the requirement to seek an independent and external view of the process from Practitioner Performance Advice (PPA). PPA was established in 2001 and is a service providing expertise to the NHS on resolving concerns about practitioners fairly.

156. [NAME_58] requires consultation with PPA at various stages of a process involving concerns about a doctor. PPA must be consulted before a decision is made to exclude a doctor but should also be consulted throughout the process to ensure that the employer continues to get an experienced, independent view on their proposed actions.

157. [NAME_91] consulted PPA before excluding the claimants on 6 August 2020. She also consulted PPA during the exclusion and disciplinary process.

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Throughout the period of the claimants’ exclusion [NAME_91] conducted a large number of exclusion review meetings with the claimants to review on an ongoing basis whether exclusion remained appropriate.

158. In the letters dated 6 August 2020 the claimants were informed that the concerns which were to be investigated were:

158.1 their behaviour at work which may constitute inappropriate, undermining behaviour, bullying and/or harassment; 158.2 the impact of their behaviour on the culture, dynamics, staff and patient safety within the [NAME_151]; 158.3 the support they had provided to other colleagues including junior members of staff in need of training, peers and nurses.

159. Following their exclusion the claimants’ union representatives chased for a copy of the DAW investigation and the terms of reference for the new [NAME_58] investigation. On 26 August 2020 the claimants were sent the terms of reference for the [NAME_58] investigation, [NAME_139]’ DAW report and key evidence such as the email from [NAME_53] and file notes of meetings with [NAME_140]. An issue was raised by the second claimant that she had not initially received the appendices to the [NAME_139]’ report but she now accepts that she received them by 22 September 2020. The terms of reference said that the allegations as contained in the exclusion letters with those to be investigated.

160. [COMPANY_154] were instructed to undertake the [NAME_58] investigation into the claimants, [NAME_110] and [NAME_101]. [NAME_152] are an HR consultancy company specialising in workplace investigations and with experience of conducting them in the NHS. [NAME_156] was appointed as the investigating officer. [NAME_156] was not employed by [NAME_152] but she worked for them as a consultant. She was a [NAME_25] specialising in employment law.

161. On 15 September 2020 the claimants were informed of [NAME_159]’s appointment.

162. On 30 October 2020 [NAME_159] produced an interim investigation report. In her interim report [NAME_159] stated there was evidence of behaviours and practices which either impact or have the potential to impact patient safety. [NAME_159] specified that there was evidence of an undercurrent of hostile, rude undermining or aggressive behaviour which impacts negatively on the working environment and on the confidence of staff. She said that those issues had a bearing on staff being able to raise appropriate clinical questions or challenge the clinical decisions made leading to a lack of openness and accountability in the clinical environment. [NAME_159] also said there was evidence of a lack of engagement with and a lack of respect for the roles of other members of staff particularly nurses and junior doctors.

163. [NAME_159] identified evidence to support the clinical allegation dating to 22 May 2020 against the first claimant, in that the first claimant did not use the telephone interpretation service in circumstances where there was an emergency need for a child protection medical assessment. This resulted in an

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addition to the terms of reference adding the clinical allegation as a further allegation against the first claimant. [NAME_160] was appointed as expert witness for this clinical allegation. Dr [NAME_163] was a consultant paediatrician at Birmingham Children’s Hospital and she was appointed so that she could provide an expert opinion on the clinical allegation against the first claimant.

164. [NAME_110]’s exclusion was lifted around late October/early November 2020. On 5 February 2021 [NAME_91] decided not to proceed with a disciplinary [NAME_1] against [NAME_110] following receipt of his [NAME_1] investigation report. The disciplinary [NAME_1] proceeded against the claimants and [NAME_101] only.

165. The claimants were each interviewed twice by [NAME_156] in December 2020.

166. On 26 February 2021 the first [NAME_152] report concerning the second claimant was produced in draft and shared with [NAME_91]. On 2 March 2021 the first [NAME_152] report for the second claimant was finalised. It was sent to the second claimant on 4 March 2021, with the appendices being sent on 5 March 2021.

167. In her report concerning the second claimant [NAME_156] recorded that she had interviewed 21 witnesses representing a cross-section of staff within the paediatric department who had experience of working with the second claimant and sufficient insight into the behaviours alleged. There were a number of witnesses named who [NAME_156] did not consider it necessary to speak to, notably [NAME_54]. There were also a number of witnesses who [NAME_156] wished to interview but were not forthcoming.

168. [NAME_156] considered a number of documents and these were attached to her report in an appendix. [NAME_156] also considered and referenced the relevant policies, procedures and guidance. [NAME_156]’s conclusion was that there was overwhelming evidence of a negative culture within the [NAME_92] department. She said that the overall picture was of a hierarchical team where team members were undervalued and mistrusted. In particular there was evidence of a lack of support and a lack of development of junior doctors. Team members had felt undermined and undervalued and this had led in some [NAME_1] to departures from the department. There was evidence that the second claimant was in a group of three consultants (the other two being the first claimant and [NAME_101]) who significantly contributed to this negative culture and lack of support.

169. [NAME_159] referred to specific evidence that members of staff, namely [NAME_53], [NAME_140] and [NAME_164] had felt undermined in their communications with the second claimant. [NAME_156] fairly identified that there was also evidence that the second claimant did engage well with professional colleagues. But in [NAME_159]’s view this was only the [NAME_1] where the second claimant felt that her colleagues were not stepping over the hierarchical boundaries that were maintained between consultants and other staff.

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170. On 11 March 2021 [NAME_161] reported back to [NAME_156] regarding the clinical allegation against the first claimant. It was [NAME_161]’ opinion that the first claimant’s practice was not in keeping with the standard expected of a reasonable paediatrician. She said that her overarching reason for that assessment was that the well-being of the children involved did not appear to have been paramount.

171. On 23 March 2021 a draft version of the first [NAME_152] report concerning the first claimant was produced. A final version was sent to the first claimant on 13 April 2021, and the appendices to the first report were sent to the first claimant on 22 April 2021.

172. In her report concerning the first claimant [NAME_156] recorded that she had interviewed 21 witnesses representing a cross-section of staff within the paediatric department who had experience of working with the first claimant and sufficient insight into the behaviours alleged. Again, there were a number of witnesses who [NAME_159] did not consider it necessary to speak to, notably [NAME_54] and also a number of witnesses who [NAME_156] wished to interview but who were not forthcoming.

173. [NAME_156] reached the same conclusion that there was overwhelming evidence of a negative culture within the [NAME_92] department and a number of staff who felt undermined. The first claimant had contributed to that negative culture along with the second claimant and [NAME_101]. There was evidence of juniors feeling unsupported and she identified specific criticism of the first claimant in that she was described as having a critical and abrupt style of communication. [NAME_156] noted that this could be related to the pressures of her role but it also may have its roots in the dysfunctional culture.

174. [NAME_156]’s findings on the clinical incident were that it would have been in the children’s best interests for the first claimant to have conducted a child protection medical with the assistance of language line. She noted that the pressures that the first claimant was under could have impacted her decision-making. The first claimant had since reflected and acknowledged that she could have done things differently.

175. On 15 April 2021 [NAME_91] wrote to [NAME_156] regarding the reports. [NAME_91] set out a number of areas where she asked for clarification or further investigation in order to assist her in making a decision about any next steps. These included a number of queries about witnesses. [NAME_91] identified a number of individuals who had been referenced throughout the investigations but who had not been interviewed and so she asked for statements to be obtained from them or alternatively the reasons why that had not been possible. The list of witnesses who [NAME_91] requested be interviewed included [NAME_54].

176. Due to other commitments [NAME_156] was not able to conduct the further investigation work that had been requested by [NAME_91]. As a result [NAME_167] the co-founder and director of [NAME_152] stepped in as lead investigator. She agreed to attempt to obtain the further witness evidence requested by [NAME_91] and to provide clarification. [NAME_167] took over as

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lead investigator with effect from 19 April 2021. She informed the claimants that she was taking over as lead investigator.

177. On 25 May 2021 the second claimant requested that three additional witnesses were interviewed. On 27 May 2021 [NAME_167] responded to this request by querying what element of the investigation the additional witnesses would speak to. On 7 June 2021 [NAME_167] agreed to speak to two of the additional witnesses requested by the second claimant. On 8 June 2021 the second claimant’s representative emailed [NAME_167] to request that the third additional witness also be interviewed outlining reasons. On 9 June 2021 [NAME_167] agreed to speak to the second claimant’s third additional witness. On 23 June 2021 the first claimant asked for another additional witness, [NAME_168], to be interviewed. This was not done but he did give evidence at the subsequent disciplinary hearing.

178. In June 2021 [NAME_167] conducted further interviews with both the claimants. By 12 July 2021 she had completed all the witness interviews. On 9 August 2021 updated investigation reports for the claimants were sent in draft to [NAME_91] for comments. [NAME_91] provided comments on the reports before they were finalised.

179. In her report concerning the second claimant [NAME_167] recorded that she had interviewed an additional nine witnesses which brought the total number of witnesses in the second claimant’s investigation up to 30. The additional witnesses who [NAME_167] interviewed included [NAME_54].

180. [NAME_167]’ report repeated the finding that there was significant evidence of a toxic/negative culture within the [NAME_92] department and that the claimants and [NAME_101] had operated as a group to maintain this culture. [NAME_167] considered that the culture could be described as a diva culture. Diva behaviours include bullying, it is difficult to raise concerns about them and their behaviour has deleterious effects across the wider organisation. [NAME_167] found that there was evidence of disrespect towards colleagues, lack of support towards juniors and an imperviousness towards cooperative multidisciplinary team working. She also found that members of the team had felt undermined and undervalued which had led to some departures from the department. [NAME_167] fairly pointed out that there was evidence that the second claimant had had good working relationships with some immediate professional colleagues she also referred to significant evidence which could reasonably support the conclusion that [NAME_170] had contributed to the negative or diva like departmental culture.

181. We should explain that by the time [NAME_167] came to formulate her conclusions she was aware of a significant issue that had been raised by or on behalf of the claimants. This was that many of the concerns raised about behaviours were directed towards three consultants. The issue that had been identified is that these concerns did not always draw a distinction as to who specifically the complainant was referring to. Furthermore, complainants had not always been able to provide specific examples with details to support their views.

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182. [NAME_167] acknowledged this issue and she recognised that it had caused the second claimant in particular concern and made her ability to respond more challenging. However this issue did not mean that the evidence given was invalid and in [NAME_167]’ view it still required consideration. [NAME_167] tackled the issue by seeking to identify specific concerns which had been raised about the second claimant but also to examine the wider negative culture and in particular the evidence from other staff that suggested that the three consultants had created that culture. She identified evidence that [NAME_170] was in a group of three consultant paediatricians who significantly contributed to the negative culture and several members of staff had felt undermined in their communications with her. The evidence demonstrated that the three consultants had a collective responsibility for the difficult working environment or culture which had existed in the paediatric department for quite some time.

183. [NAME_167] also fairly acknowledged that [NAME_170] had pressure on her and she referenced in particular the difficulties associated with juggling multiple roles and capacity in the context of job plans not having been agreed.

184. [NAME_167]’ key conclusions about the second claimant were that there was evidence to indicate that she had impacted negatively on the culture and dynamics in the paediatric team with the potential to affect staff and patient safety, she had failed in the support she gave to [NAME_54] in particular by withdrawing from the role of supervisor and she had engaged in inappropriate and undermining behaviour of colleagues which had contributed to the negative culture in the department. These conclusions were in our view reasonably open to [NAME_167] and supported by a clear and compelling body of evidence which is detailed within her report.

185. In her report concerning the first claimant [NAME_167] recorded that she had interviewed an additional nine witnesses, including [NAME_54], which took the total number of witnesses interviewed in respect of the first claimant up to 30.

186. [NAME_167] explained the theme in the evidence that junior doctors had been unsupported and insufficiently supervised and that there was a negative or undermining attitude towards juniors. [NAME_167] found that there was evidence of a negative culture that had operated within the [NAME_92] department which could be described as toxic and that the claimants and [NAME_101] had operated as a group to maintain this culture. To that extent there was evidence that the first claimant’s behaviour had impacted negatively on the culture and dynamics of the paediatric team. There was limited evidence that this had affected patient safety however dysfunctional behaviours could cause a potential risk to patient safety. There was evidence that the first claimant’s behaviour may have affected staff well-being and retention. [NAME_167] found that the evidence pointed to the existence of a diva culture within the department. There was evidence of disrespect towards colleagues, a lack of support towards juniors and an imperviousness towards cooperative multidisciplinary team working.

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187. Specifically in respect of the first claimant [NAME_167] found that there was evidence “across the board” which raised themes of abrupt and negative communication from the first claimant towards other members of staff. There had been staff grievances concerning this behaviour. This had contributed towards the toxic and dysfunctional culture led by the two claimants and [NAME_101].

188. [NAME_167] fairly recorded that the first claimant had pressure in her role and had experienced stress. [NAME_167] said it was a matter for the [NAME_1] manager as to whether this could excuse or mitigate the conduct described in the evidence she had gathered.

189. As regards the clinical allegation against the first claimant [NAME_167] found evidence that it would have been in the children’s best interests for the first claimant to have conducted the child protection medical with the assistance of the telephone interpretation service. [NAME_167] again fairly recorded that the first claimant had reflected and acknowledged that she could have done things differently. She also said that the pressures the first claimant was under and the stress arising could have had an impact on her decision-making at the time.

190. [NAME_167] again sought to deal with the issue that many of the concerns raised about behaviours were directed towards three consultants rather than against specific individuals. [NAME_167] found that the failure to provide specifics did not mean that the evidence given was invalid and in [NAME_167]’ view it still required consideration. [NAME_167] again identified specific concerns which had been raised about the first claimant but also referred to the wider negative culture and in particular the evidence from other staff that suggested that the claimants and [NAME_101] had jointly created it. [NAME_167] identified evidence which indicated that the first claimant had significantly contributed to the negative culture and several members of staff had felt undermined by her.

191. [NAME_167]’ key conclusions about the first claimant were that there was evidence to indicate that her she behaved in an inappropriate and undermining way towards colleagues, her behaviour contributed to a negative culture and therefore impacted negatively on the dynamics of the paediatric team with the potential to affect staff and patient safety and that she communicated poorly with junior doctors.

192. In respect of the clinical allegation [NAME_29] referred to the expert opinion that the first claimant’s practice was not in keeping with the standard expected of a reasonable paediatrician. The overriding reason for that was that the well-being of children did not appear to have been paramount.

193. These conclusions were in our view reasonably open to [NAME_167] and supported by a clear and compelling body of evidence which is detailed within her report.

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194. [NAME_167] commented in both of the reports about the claimants that rebuilding relationships in the department was only likely to work if there was full engagement from the claimants, acceptance from them that the cultural issues exist and some ownership of the part that they have played in creating them.

195. We note that in our view the claimants have never taken ownership of the part that they played in creating the negative culture within the department, despite the overwhelming evidence of the existence of such a culture and their contribution to it. As per [NAME_167]’ observation that made it difficult to see how relationships could have been rebuilt without some acceptance on the part of the claimants. It seems clear to us that that matter, reasonably, fed into the ultimate decision to dismiss the claimants.

196. On 20 September 2021 [NAME_91] produced reports which concluded that the [NAME_1] against the claimants should proceed to a disciplinary hearing. [NAME_91] sent those reports to the claimants on 21 September 2021.

197. [NAME_171], who was the first respondent’s chief finance officer, was appointed as chair of the disciplinary hearing panel. He was sent the detailed allegations to be considered at the disciplinary by [NAME_91]. The other members of the panel who heard the disciplinary were [NAME_172], Operational Director of People and Workforce (HR support) and [NAME_175], Consultant Paediatrician at Royal Wolverhampton NHS Trust (independent medical member).

198. [NAME_177] wrote to the claimants on 17 November 2021. He said that the matter was proceeding to a disciplinary hearing and he provided the detailed allegations against the claimants. The claimants were informed that the dates for the disciplinary hearing would be 13 to 17 December 2021.

199. On 18 November 2021 the first claimant wrote to [NAME_177] raising some concerns about the disciplinary hearing. One of the concerns raised was that the first claimant wished to privately instruct a [NAME_25] to represent her at the hearing.

200. The claimants’ union representative had also corresponded with the first respondent’s HR department on this issue of legal representation. They received a response from HR to the effect that the claimants could instruct private legal representation. This was at odds with [NAME_177]’s position because his response was to say that the claimants could instruct legal counsel but only via their trade union or [NAME_73] representative.

201. On 29 November 2021 the first respondent provided their statement of [NAME_1] against the claimants. There was also a 2274 page bundle of documents which was intended to be used jointly in the [NAME_1] against all three consultants i.e. the claimants and [NAME_101]. The first respondent’s intention was to hold a joint disciplinary hearing in respect of those three individuals.

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202. On 30 November 2021 the first claimants’ union representative wrote to [NAME_177] raising concerns about the forthcoming disciplinary hearing. The concerns included that: hearing the three cases together was a potential breach of GDPR and detrimental to each individual’s right to present their own [NAME_1], there was a procedural irregularity in that some of the allegations had not been put to [NAME_178] and the claimants had been given conflicting information concerning legal representation.

203. [NAME_177] responded to the first claimant’s representative on 1 December 2021. He put forward a proposal that the clinical allegation regarding the first claimant should be heard separately but the remainder of the [NAME_1] should be heard collectively on the basis that the rest of the matters were interrelated and concerned all three doctors. He asked for the specific allegations which it was suggested had not been put to the first claimant. He considered that the first claimant had been advised in error that she was entitled to private legal representation but he decided to allow private legal representation for all parties due to the confusion that had arisen.

204. In or around November 2021 the claimants instructed solicitors.

205. On 1 December 2021 the solicitor instructed by the second claimant asked for the disciplinary hearing to be postponed. She referred to the second claimant having found the process overwhelming, in particular dealing with tight deadlines and also the confusion over the right to legal representation. The solicitor said that the second claimant had attended her GP who had prescribed her medication to deal with symptoms of anxiety and insomnia.

206. On 2 December 2021 the solicitor acting for the first claimant also wrote to [NAME_177] requesting a postponement. She referred in particular to difficulties that the first claimant would face due to the fact it had only been confirmed recently that she would be permitted to instruct a lawyer privately. It was suggested that proceeding in those circumstances would be prejudicial to the first claimant.

207. At or around this time [NAME_101] resigned and exited the trust. The claimants were informed that as a result she would not be taking part in the disciplinary process. The statements of [NAME_1] and bundles were amended to redact or remove information which related to [NAME_101]. This included the evidence she had given to [NAME_152].

208. [NAME_91] objected to the claimants’ postponement requests and she made representations to [NAME_177] explaining her objection. [NAME_91] emphasised in particular the large number of witnesses who were anxious to attend and that a postponement was likely to cause them significant stress. [NAME_177] sought to reach a compromise with part of the [NAME_1] being heard in December and parts being heard in March 2022. This was objected to by the first claimant. In the end [NAME_177] agreed that the hearing would be postponed in full and he rearranged it to take place on 7 to 11 March 2022. This decision was communicated to the claimants on 8 December 2021.

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209. By that time the claimants had decided to instruct a [NAME_25] jointly. [NAME_177] was made aware that the claimant’s chosen counsel was not available in the period 7 to 11 March 2022. [NAME_177] then found out that if the hearing did not go ahead in that week it would not be able to be relisted before June 2022. [NAME_177] therefore decided that it was reasonable to require the claimants to appoint an alternative counsel so that the hearing could go ahead on 7 March 2022. [NAME_177] agreed on the first respondent’s behalf to reimburse the claimants for the costs of changing counsel.

210. [NAME_177] also put forward a number of practical proposals to deal with various procedural concerns which had been raised by the claimants. In particular [NAME_177] proposed a process for the claimants to identify and then respond to any allegations which they contended had not been put to them during the investigation. On 22 December 2021 the claimants each sent documents to [NAME_177] setting out their responses to the allegations that they considered had not been put to them during the investigation.

211. On 31 January 2022 the claimants provided their statements of [NAME_1] for the disciplinary hearing.

212. In her statement of [NAME_1] the second claimant asked for a wider context to be taken into account. The wider context referred to was that between 2013 and 2020 the claimant along with some of her colleagues had repeatedly raised concerns relating to safety and quality of service, especially concerning the two tier system. The second claimant complained that these concerns had not been adequately addressed. The second claimant referenced in particular the complaint which had been made by [NAME_102] including herself on 16 August 2019 to [NAME_132]. The second claimant complained that these concerns were not investigated. The second claimant suggested that both [NAME_132] and [NAME_91] were frustrated that the consultants had raised a number of critical safety issues that they could not resolve. The suggestion she made was that the disciplinary had been used as a punishment for having raised these issues (or as the second claimant put it a “vengeful retaliation”).

213. The second claimant alleged that [NAME_54] had been encouraged by [NAME_41] to make complaints against her

214. The second claimant also pointed to the lengthy investigation process which had led to an excessive exclusion from work and she said this had been detrimental to her physical and mental health.

215. The second claimant said that the investigation had not been balanced and that she had not been treated as an individual but rather as part of the three consultants. Consequently there was a lack of specific evidence against her - she had been “tarred with the same brush”.

216. The second claimant suggested that the [NAME_1] against her had come about because of a bias in favour of Christians and against the claimants who were both women of Indian ethnic origin. Had the claimants pursued their claims of race and religious discrimination we would have had to consider this

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point in our conclusions. As all of the claims of discrimination have been withdrawn we do not need to do so. We will say simply that we did not see any evidence of bias against the second claimant, either on racial/religious grounds or at all.

217. In summary the second claimant characterised the disciplinary [NAME_1] against her as follows:

“I believe that the ongoing disciplinary process is vengeful retaliation to silence substantive consultants, who have consistently raised concerns regarding patient and staff safety and regarding the quality of care afforded to patients treated in our unit. There are underlying themes of misogyny and discrimination on the grounds of race, religion, and age and a blame culture in our Trust, which targets and seeks to suppress individuals like us from raising safety concerns. Although patient safety should be of paramount consideration as set out in GMC best practice, the hospital management has repeatedly failed to ensure that our patients can be guaranteed optimal care and has chosen instead to target us and remove us from our posts”.

218. The second claimant went on to give a detailed response to the allegations she faced including those allegations which she considered to be new allegations. The overall theme of the second claimant’s response was that she denied the allegations - describing them for example as ”baseless”.

219. The claimant described herself as an extremely diligent and conscientious doctor who knew of the GMC guidelines related to promoting and encouraging a culture that allows staff to raise concerns openly and safely, and the importance of working collaboratively with colleagues, respecting their skills and contributions and treating them fairly with dignity and respect.

220. The second claimant simply did not accept the evidence that suggested that rather than adhering to these guidelines she had contributed to a negative culture. On the contrary, the second claimant said:

“these guidelines are fundamental to how I work on a daily basis. I live and breathe them”,

“my communication with all staff colleagues has always been respectful in all forms”,

“I have always been constructive and supported my juniors never being critical even when they make errors”,

“I am a compassionate person and treat everyone with the utmost dignity and respect”.

221. The second claimant’s characterisation of those who had come forward to speak up against her included the following: “It has been extremely painful to see trust witnesses with a vested interest supporting the management; their

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thoughtless comments and false accusations which are destroying a committed clinician’s career and life”.

222. We have not read these quotes in isolation but in conjunction with the entire statement of [NAME_1] submitted by the second claimant. They are a fair representation of the gist of the [NAME_1] which she chose to adopt. It was an uncompromising approach. The second claimant portrayed herself as having been the victim of false allegations which had been concocted against her due to prejudices and vested interests. There was little acceptance of any wrongdoing on her part and instead she suggested that she had “always” behaved in an exemplary fashion.

223. The first claimant submitted two separate statements of [NAME_1] - one regarding the clinical allegation and one regarding the other allegations. In respect of the clinical allegation the first claimant gave a detailed account of the circumstances in which the incident arose and explained why at the time she thought what she was doing was right based on the information she had. She again emphasised that following the incident she had reflected on her practice and learnt from it. She accepted and had taken on board the recommendations which had been made in the tabletop review which included that the telephone interpretation service should have been used so that the child protection medical could take place.

224. In her statement of [NAME_1] concerning the other allegations the first claimant first set out what she described as relevant factual background. Again this essentially comprised a description of the two tier model and the difficulties associated with working within that model. The first claimant also emphasised problems associated with the use of [NAME_56] and the appointment of junior doctors who were insufficiently experienced. The first claimant said that the two tier model had placed a lot of pressure on herself and her consultant colleagues. She explained that since 2013 she had along with a number of colleagues raised a number of concerns with management about the limitations of the two tier model, the inexperience of [NAME_56] and juniors and the impact this was having on quality of care. She too said that those concerns had not been properly addressed. The first claimant referred to the failure to agree her job plan. The first claimant described the nature of the concerns she had about how the department had been run in considerable detail.

225. The first claimant went on to provide a detailed response to the allegations, including those which she considered were new. Like the second claimant the theme of the first claimant’s response was that she completely denied the [NAME_1] against her and she did not accept that her behaviour had contributed to a negative culture. For example the first claimant said “I deny that I engaged in behaviour that impacted negatively on the culture and dynamics in the [NAME_151] as alleged or at all”. Instead she described herself as having “always” been a “team player”. She described the suggestion of a diva culture within the [NAME_92] department as “grossly misplaced”. She said that she was being unfairly targeted because she had spoken out about her concerns. She said she felt scapegoated and the real issues had not been addressed. She denied that she had failed to provide support to colleagues and

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instead asserted that she had “always” supported her colleagues including junior members of staff and nurses.

226. The first claimant specifically alleged that “there was a private agenda to punish the consultants as we had written to the CEO raising concerns about the Department”. She too suggested that there was evidence indicating a bias against her on the grounds of race or religion - she queried whether the claimants would have been treated the same if they were white men. Had the claimants pursued their claims of race and religious discrimination we would have had to consider this point in our conclusions. As all of the claims of discrimination have been withdrawn we do not need to do so. We will say simply that we did not see any evidence of bias against the first claimant, either on racial/religious grounds or at all.

227. The first claimant did accept that she had high standards and expectations and went so far as to acknowledge that communications with colleagues may have been abrupt in some instances. She said this was not to be misconstrued as bullying or harassment and was instead robust management of issues under a lot of pressure. She said she was open to feedback and training with regard to her communication skills going forward. Arguably then the [NAME_1] presented by the first claimant was slightly softer than that presented by the second. But overall it was a similar approach in that the first claimant too focused on an absolute denial of the allegations and the suggestion that the [NAME_1] had come about as punishment for having raised concerns and/or prejudice on race/religious grounds.

228. As we have mentioned the claimants decided to be jointly represented by a [NAME_25] at the disciplinary hearing. Their chosen [NAME_25] was [NAME_16] who also represented the first claimant in the first part of this hearing. On 11 February 2022 the solicitor for the second claimant wrote to the first respondent to request that one afternoon of the five day hearing, on Tuesday 8 March 2022, be left clear as [NAME_16] had another commitment. [NAME_177] refused this request on 17 February 2022. His reasons were that the date for the hearing had been agreed in advance, the claimants had not previously indicated that their counsel would not be available and the timescale was already very tight.

229. On 25 February 2022 [NAME_91] provided the claimants with a further witness statement and supporting documents in response to the allegations that they had made in their statements of [NAME_1] submitted on 31 January 2022

230. The disciplinary hearing started on 7 March 2022 and lasted for five days. The management side was represented by [NAME_22] KC who also represented the respondents in the hearing before us. The claimants were jointly represented by [NAME_16].

231. A transcript of the hearing was provided to us which we have read. The transcript was provided by an external transcription agency. There was an omission in the transcript as on days one and two the transcription commenced at a slightly later time at the point when witness evidence commenced. This meant part of the hearing was not transcribed. This point was dealt with as part

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of the claimants’ appeals and notes from an internal note taker in the legal team were provided in order to fill in the gaps.

232. During the disciplinary hearing the claimants repeated their request for an adjournment on Tuesday afternoon and this was again refused. This meant that the claimants were represented by their solicitors rather than by their [NAME_25] from 3 PM onwards on day two of the hearing.

233. On 11 March 2023, which was supposed to be the fifth and final day of the disciplinary hearing, the claimants’ [NAME_25] [NAME_16] was taken ill. The hearing was therefore vacated on that day and the final day of the hearing took place instead on 28 April 2022.

234. The panel heard from 14 witnesses on the management side. The claimants had the opportunity to ask each of those witnesses questions through [NAME_16]. The claimants gave evidence on their own behalf and were each questioned by [NAME_22]. The claimants called three additional witnesses. There was in depth examination of the evidence with both sides testing the other side’s [NAME_1] with the assistance of very senior and highly skilled barristers. In our view the evidence which the panel heard painted a compelling picture of the negative culture within the [NAME_92] department and that the claimants had contributed significantly to that, in particularly through undermining and unsupportive treatment of colleagues. The evidence substantiating the [NAME_1] raised by the claimants that they had been targeted because they had raised concerns and/or because of their race or religion was thin at best.

235. The evidence presented to the disciplinary panel properly and fairly took into account the difficulties faced by the claimants caused by the two tier system and the working environment generally. We refer to the following exchange between [NAME_22] and [NAME_41] which we think demonstrates that:

“[NAME_22]: Now you've spoken, [NAME_179], about your experiences within [NAME_92], within Women's and Children, and your experiences elsewhere. When you came to leave Women's and Children's, which I think you told us was in July 2020, what was the reason for going? [NAME_179]: I'd come - I think I'd had a battering. Luckily I was in the position where I could retire and return, so I made the decision to retire and return. I'd actually came to the [NAME_8] from Leicestershire. All my career had been in Leicestershire and I made the decision at 55 that I wasn't going to retire because I wasn't on the pension, and look for another job and came across. I was worn out. It felt that it was a continual battering. I wanted a better work-life balance than I'd got. I didn't sleep at night. Regularly would be awake at 3.00 in the morning, waiting to come to work to see the barrage - not from [NAME_170] or not from [NAME_178], but from another consultant, of emails that - with expectations of what management was and what their - that person's expectations were. I'd also gone through quite a couple of personal crises with some of the consultants as well, and supported them through those crises, and I just thought, 'I need to do something. I need to re-address how I'm going to work' and I didn't want to be in general management anymore if it meant that I've got

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to come into work and put up with what I was putting up with every day. It absolutely battered me. I'd never been in a position where I didn't know how I was going to move things towards. I've always been able - I've been successful over my career to go and manage extremely difficult teams, and within this team the nursing team was quite fractured when I took over the post, and I acted down as the matron to support them and to get them in a more cohesive position so it was where people would want to come and work and would enjoy working, and move the service forward, which I think, with the nursing team, we've done. We've moved that on and we've successfully gone on to recruit into that team. But no, I was absolutely battered. Emotionally battered. [NAME_22]: And what you've just described there quite vividly is the battering - the emotional battering. Was the behaviour of [NAME_170] and [NAME_178] a feature of that battering or not? [NAME_179]: It was a feature, but it was - as we've spoken before, it's - I find it extremely difficult because, as individuals, both of the doctors are - can be very compassionate, very caring and supportive. But within the culture that they were working with, it's brought out the worst. And you didn't know which way they would come - which combination would come back at you, and it felt like you were being undermined all the time. You couldn't move anything forward. You would have a - we regularly had service meetings. We'd put an agenda into the service meeting where we'll go back and back and over, and they were frustrated. Absolutely, I can understand why they were frustrated because nothing seemed to be moving on. They'd had a rota inflicted on them. It was not the best rota for them. It took a lot of time that they had to either be onsite or they had to be second on course or they were offsite. They got no middle tier to do some of the teaching towards the junior doctors. We struggled enormously to recruit junior doctors and that wasn't helpful. So it meant that the onus was on the consultants to take up a lot of the tasks, which you wouldn't normally expect. [NAME_22]: Those things that you just described, the rota, the lack of middle tier, the struggle to recruit junior doctors, what is your view, [NAME_179], about whether or not those things effectively excuse or explain the behaviours that you saw? [NAME_179]: I don't think there is any excuse for poor behaviour. It's not going to help people to come and work for us. Obviously I attended the meetings - the local maternity meetings, it's across all three sites, so Cov and Warwick, [NAME_220] [NAME_8]. And it was - you felt like you were being sniggered at when you said, 'I'm the General Manager for [NAME_8]' because the reputation went before us. And it's a shame because it should be a fantastic service. The opportunities for here to improve and improve the care for the children within this area is there, and for the ladies - women who are delivering. [NAME_22]: And what do you think the [NAME_8]'s reputation is in tens of [NAME_92]? [NAME_179]: Outside of the Trust it's not good- or it wasn't good….”

236. In our judgment this sort of evidence was appropriately balanced and fair. It was not somebody sticking the boot in. Specifically, the points about the extra pressures created by lack of recruitment and the two tier system were acknowledged and recognised. They were not ignored, but it was felt, reasonably, that they did not provide any excuse or justification for the way the

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claimants had behaved. This was the theme of the respondents’ response to the points about context raised by the claimants.

237. The second claimant gave evidence at the end of day 4 of the disciplinary hearing. By that stage all the other witnesses had given their evidence, with the exception of the first claimant and [NAME_140]. In her questioning of the second claimant [NAME_22] began by clarifying the second claimant’s [NAME_1]. [NAME_22] was obviously keen to establish whether there was any acceptance of wrongdoing by the second claimant or whether, even after having heard the evidence, she maintained a complete denial of the allegations. We emphasise that we have read all the evidence which the second claimant gave and therefore have not taken anything out of context. We think that it is fair to say that the second claimant was initially equivocal but when pushed by [NAME_22] she came firmly down on the side of maintaining a complete denial of all the allegations.

238. The second claimant also confirmed to [NAME_22] that she was maintaining her arguments that the allegations had come about because of discrimination and/or to suppress individuals who had raised safety concerns, and she accepted that those were in effect allegations of serious professional misconduct against [NAME_91].

239. We would note in particular that [NAME_22] gave the second claimant the opportunity even after she had reaffirmed her denial of the allegations to indicate whether there was any acceptance on her part for the behaviours which others had given evidence about:

“[NAME_22]: Having listened to the evidence, [NAME_170], from everybody who the panel has heard from, has any of that caused you to reflect and think, 'Hang on, I do recognise that behaviour by myself'? [NAME_170]: No. Specifically I would mention [NAME_46]….”

240. The second claimant went on to say that she was not the person described by [NAME_46] and that what [NAME_46] had told the panel in her evidence was not true.

241. This demonstrates that the second claimant maintained her uncompromising approach at the disciplinary hearing.

242. On day 5 of the hearing [NAME_22] began her questioning of the first claimant in the same way. The first claimant unequivocally said that she denied all of the allegations that had been made against her.

243. [NAME_22] also clarified with the first claimant that she was still alleging that her colleagues had raised concerns about her because she had raised concerns about others in particular [NAME_54]. The first claimant confirmed that that was correct. She agreed that her [NAME_1] was that the things that had been said about her were not true and the reason why they had been raised was because she raised concerns about others.

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244. The first claimant was specifically asked by [NAME_181] about the section in her statement of [NAME_1] where she had alleged that there was a private agenda to punish consultants as they had written to the CEO raising concerns about the department and that as a result of this the respondents were looking for a reason to remove the claimants. The first claimant confirmed that she stood by that. She agreed that what she was saying was that [NAME_91] had chosen to pursue the allegations against her because she actually wanted to punish the claimant for raising concerns. Similarly, the first claimant confirmed that she was continuing with her allegations that she had been the victim of race/religious discrimination. Like the second claimant then the first claimant maintained an uncompromising approach.

245. [NAME_91] gave evidence on the third day of the disciplinary hearing. When the time came for [NAME_16] to question her he announced instead that the claimants had made a decision which took everyone by surprise. [NAME_16] explained was that the claimants had decided not to ask [NAME_91] any questions. This meant that they did not put their [NAME_1] to [NAME_91] that they had been targeted by her because they had raised concerns and/or because of religious or racial bias. [NAME_91] herself made the point in the disciplinary hearing that the claimants had made very serious allegations against her in their statements of [NAME_1] and she was there to deny those. She was obviously concerned that serious allegations had been made against her but not put to her in the hearing.

246. [NAME_22] described the claimants’ decision to the disciplinary panel as “a 360-degree about turn compared to what we were expecting from the statements of [NAME_1]”. She pointed out that the claimants were still maintaining their [NAME_1] that they had not done the things alleged and they were only there because they had raised concerns and/or because of racial or religious discrimination. She said therefore the panel had to decide not only whether the allegations happened but also whether there was an improper motivation for the allegations having been brought.

247. In contrast [NAME_16] said to the disciplinary panel that he did not see the relevance of why management brought these allegations in the first place and that would not be an issue for the panel to determine. During questioning from the panel however he accepted that the information the claimants had presented in their statements of [NAME_1] remained before the panel and he was not suggesting that it ought to be excluded.

248. [NAME_177]’s view was that the panel was obliged to take into account all of the information which had been presented to it. This would include the information within the claimants’ statements of [NAME_1] (which was on any view an important part of the evidence which they had chosen to present to the panel).

249. The effect of the claimants’ decision not to question [NAME_91] was that the claimants did not take the opportunity to put to [NAME_91] any evidence which could have supported their cases that they had been unfairly targeted due to having raised concerns or because of race or religious bias. The fact that they chose to allege in their statements of [NAME_1] for the disciplinary that they had

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been unfairly targeted by [NAME_91] for those reasons suggested that that was the finding which they invited the disciplinary panel to make. However, it is difficult to see how the panel could fairly or reasonably have reached that conclusion when the claimants then chose not to put their [NAME_1] to [NAME_91], especially when [NAME_91] was quite understandably concerned about the allegations made against her and made it clear that she was there to answer them.

250. The disciplinary outcomes were provided to the claimants on 1 June 2022.

251. In the outcome letter which was sent to the second claimant [NAME_177] acknowledged that some allegations had not been put to her during the investigation interview, but the detailed management statement of [NAME_1] had explained the [NAME_1] against the second claimant and she had responded to that.

252. The findings as to the specific allegations that had been made against the second claimant were set out in the appendix to the outcome letter. Some of the specific allegations were upheld and some were not.

253. Examples of allegations that were upheld were:

253.1 The panel found that the second claimant criticised and got angry with [NAME_54] for asking questions, shouted at her and made her feel too scared to ask questions The panel found [NAME_54] to be a credible witness and noted that there were a number of witnesses who corroborated her evidence that she was reduced to tears by the behaviour of the second claimant. The panel concluded that this behaviour was both inappropriate and undermining and constituted bullying.

253.2 The panel concluded it was more likely than not that the second claimant highlighted [NAME_54]'s individual mistake in front of colleagues in the manner described by [NAME_54]. It concluded that this behaviour was inappropriate, undermining and bullying. Overall the panel did not accept that the second claimant was supportive of [NAME_54] as she had alleged. The panel found that the second claimant withdrew in September 2019 from being [NAME_54]'s mentor without making any arrangements for [NAME_54] to be provided with alternative support. It found that in her treatment of [NAME_221] the second claimant had behaved in an inappropriate and undermining way and that this constituted bullying.

253.3 [NAME_170] also criticised [NAME_50] in a way which constituted inappropriate and undermining behaviour and bullying.

253.4 [NAME_170] had belittled [NAME_46] and this behaviour was inappropriate and undermining and amounted to bullying. The panel found that [NAME_46] was a very credible witness who had clearly been impacted by the behaviour of [NAME_170] and [NAME_178]. The panel noted that the second claimant continued to maintain that there was no fault on her part, but they did not accept her evidence to that effect. They were unconvinced by the particular point made on her behalf by [NAME_16] that at a speech that Dr

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[NAME_47] gave at a leaving party she thanked all present for their support. The panel did not consider that this could reasonably be used as evidence of there not being a concern about the behaviour of [NAME_170].

253.5 [NAME_170] had made comments to [NAME_140] such as “no offence. but you're a nurse and I'm more accountable than you". The panel noted there were other witnesses who supported the assertion that [NAME_170] and [NAME_178] were dismissive of nurses' opinions. The panel found [NAME_140] to be a very credible witness and the panel determined it was more likely than not that [NAME_170] made the comment as alleged and this was inappropriate, undermining and bullying behaviour.

253.6 The second claimant ignored contributions made by [NAME_53], locum consultant paediatrician in respect of patient care and/or interrupted her when she was speaking. The evidence indicated this behaviour was repeated and regular and it amounted to inappropriate and undermining behaviour.

254. We should also note that the panel was alive to the issue about a lack of specific allegations against the second claimant in circumstances where witnesses had identified the three consultants as perpetrators. This was particularly the [NAME_1] in relation to [NAME_53]. The panel explained its belief that [NAME_170] and [NAME_178] acted together and supported each other in their poor behaviour towards colleagues, including [NAME_53]. The panel was satisfied on the basis of the evidence in the investigation and heard during the disciplinary hearing that [NAME_170] and [NAME_178] had joint responsibility. The panel found that both [NAME_170] and [NAME_178] were dismissive of the contribution of junior colleagues, [NAME_56] and nurses. It was not possible to identify which of the two of them made specific comments to [NAME_53] but the panel found that, collectively, they created the impression that they held the same views and supported each other in their negative views and behaviour. As such, they were both accountable and their behaviour was inappropriate, undermining and intimidating and it amounted to bullying.

255. Examples of allegations that were not upheld were:

255.1 The panel did not believe there was sufficiently robust evidence to establish that [NAME_170] had spoken to or behaved towards [NAME_183] in a manner which would constitute inappropriate or undermining behaviour or would constitute bullying or harassment.

255.2 The panel was not satisfied that the second claimant’s alleged dismissive behaviour to [NAME_186] was such as to constitute inappropriate or undermining behaviour or bullying or harassment by [NAME_170].

255.3 The panel found that the second claimant did not tell [NAME_54] that she did not know anything about medicine as she had trained in another country.

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255.4 The panel did not find that the second claimant failed to listen to or value [NAME_140]’s contribution to a safeguarding incident about how to obtain consent to a child undergoing a child protection medical. The panel did not consider that what took place was an example of inappropriate or undermining behaviour by the second claimant

256. The panel then applied its specific factual findings to the three broad allegations that it had to determine.

257. In relation to allegation 1 the panel had to decide whether any behavior it found to have occurred amounted to inappropriate, undermining behaviour, bullying and/or harassment.

258. The panel found that there was a pattern of the second claimant criticising and dismissing the contributions of colleagues, often in a public way in front of colleagues and patients. This was particularly evidenced in her treatment of [NAME_54] and [NAME_53], although there were also other examples. The panel found there was also repeated evidence of the second claimant undermining the role and value of locum consultants and nursing staff within the department. The panel found it was clear that many of the witnesses felt undermined by the second claimant’s behaviour.

259. The panel was not satisfied that any of the behaviour it found to have occurred related to a protected characteristic of the recipient. As such, it found that it did not amount to harassment.

260. The panel was satisfied, however, that the behaviour it found to have occurred was offensive, intimidating and insulting and therefore it constituted bullying.

261. In relation to allegation 2 the panel had to decide whether any behaviour it found to have occurred impacted negatively on the culture and dynamics in the [NAME_151] with the potential to affect staff and patient safety.

262. The panel concluded that the behaviour of the second claimant which it found occurred impacted negatively on the culture and dynamics in the [NAME_151]. The panel found this to be so because the behaviour caused colleagues to be upset, to feel negatively about the prospect of working shifts with the second claimant, to be fearful of asking questions and to be fearful of treating patients in a way that could lead to unfair criticism.

263. In the panel’s view the above fear amongst members of the [NAME_151] caused communication to breakdown and caused people to leave the department. It also prevented junior doctors and nurses from asking questions when they were unsure about something and from asking for assistance when they felt they needed it. The breakdown in communication, fear amongst staff and people leaving the department all had the potential to affect staff and patient safety.

264. The panel highlighted that it had found in relation to allegation two:

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264.1 That there were a number of occasions in which the second claimant behaved in a hierarchical and undermining way and that the second claimant referred to locum doctors in a derogatory and demeaning manner (e.g. referring to both [NAME_53] and [NAME_188] as "just [NAME_56]".)

264.2 The second claimant did not value the opinion of nurses as highly as the opinion of doctors. It accepted the evidence given by witnesses that the second claimant had little or no regard for nurses' opinions and that consequently nurses felt dismissed, devalued and disrespected.

264.3 The second claimant was not open to learning and constructive criticism. The panel accepted evidence that the second claimant tended to react defensively to suggestions about change and interpreted them as a personal slight or criticism and therefore would not engage in a professional discussion about such matters. Examples were given. The panel found that there were both specific instances and also a general impression created that the second claimant was not open to learning and constructive criticism.

264.4 The second claimant was critical of junior doctors who asked for help. The panel accepted evidence about a number of instances of the claimant being critical of junior doctors and found that she was sometimes irritated by junior doctors when they asked for help. The panel concluded that the second claimant’s criticism of junior doctors who asked for help was behaviour which created an environment in which junior doctors were fearful of asking for assistance and afraid to speak up – it described this as a “culture of fear”.

264.5 The panel acknowledged the lack of a middle tier of seniority/experience in the department, but it found it was still a reasonable expectation that the second claimant would closely supervise junior doctors. There was no justification for her to be critical of or irritated by those who asked for help.

We should note an important matter here which is that in our view this acknowledgement made it clear that the panel had appropriately taken into account the point about the systemic issues in the department, but reasonably found that they could not excuse or justify the second claimants behaviour.

264.6 The panel found that the second claimant’s behaviour had impacted negatively on the culture and dynamics in the [NAME_151], with the potential to affect staff and patient safety. The investigation’s finding that there was evidence of a toxic culture which the second claimant had contributed to was supported by the evidence in the disciplinary hearing.

265. In relation to allegation 3 the panel found that there were numerous occasions when the second claimant had failed to provide support to other colleagues. It cited examples of the second claimant being resistant to requests for assistance and not making herself available to assist colleagues. It further

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found credible evidence of doctors feeling unsupported and having left the department as a result. The panel therefore found allegation 3 proven.

266. In the conclusions section of the outcome letter [NAME_177] acknowledged that for a number of the alleged incidents, it was not possible to attribute the alleged behaviour to [NAME_170] or to [NAME_178] specifically and the panel had therefore considered whether it was possible to make a finding in relation to those allegations.

267. [NAME_177] described how the panel had read and heard evidence about how [NAME_170] and [NAME_178] had acted together to create the hostile environment complained of. In instances where the actions could not be attributed to one individual, the panel had considered whether there was nevertheless joint responsibility. The panel accepted that [NAME_170] and [NAME_178] were responsible both individually and collectively for the toxic culture which had developed in the department. The panel relied on the evidence in the [NAME_152] investigation, and the findings in the appendix as specific examples.

268. [NAME_177] also dealt with the [NAME_1] which the second claimant had presented in her statement of [NAME_1]. He correctly described how in her statement of [NAME_1] and in her evidence to the hearing the second claimant had asserted that the instances of poor behaviour had not occurred and that the allegations were a result of collusion amongst management in retaliation for her having raised concerns and/or that she was targeted as a non-Christian or on the grounds of sex, race or age.

269. The panel did not accept those arguments. It found that the individual employees who gave evidence and who had expressed concerns about the second claimant would not, in most cases, have known about the concerns she had raised with management.

270. The panel considered, but did not accept, the second claimant’s contention that doctors, and [NAME_54] in particular, had made complaints about her because she had raised concerns about her performance. There was robust and credible evidence that the issues raised by [NAME_54] and others were a genuine expression of how they felt unsupported and badly treated by the second claimant.

271. The panel found that the decisions of [NAME_91] to commission an investigation and have the issues considered by a disciplinary panel were appropriate and essentially inevitable. They found that [NAME_91] was not influenced in her decision making by the fact that the second claimant had raised concerns.

272. The panel found that very little evidence was provided to support the second claimant’s contention that she had been discriminated against on the grounds of sex, race, religion or age and this was not upheld by the panel.

273. Therefore the panel upheld all three allegations and it found that the second claimant had not been targeted for unacceptable reasons (i.e. speaking

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up or protected characteristics). The panel then moved on to consider whether the second claimant’s actions amounted to gross misconduct.

274. The panel concluded that the behaviours of the second claimant constituted bullying, wilful, careless, inappropriate behaviour likely to compromise standards of care or patient safety or create serious dysfunction to the effective running of the service. It found there were instances of the second claimant failing to give proper support to other employees and the impact of her behaviour, which caused doctors to leave, was likely to bring the paediatric department. and possibly the Trust as a whole into disrepute. The panel further found that there was strong evidence that the second claimant had breached GMC standards and it set out the relevant guidelines reflecting those standards. These included guidelines related to working collaboratively, treating colleagues with fairness and respect and supporting and mentoring junior doctors.

275. The panel therefore found that the claimant’s actions amounted to gross misconduct.

276. As to the claimant’s insight into her behaviour the panel noted the following in particular:

“… your clear position in relation to the allegations of misconduct is that no misconduct on your part had occurred. Throughout the investigation and the disciplinary hearing, you have not indicated any acceptance that, whether or not it was intended, your behaviour has caused harm to others. Instead, you maintain the position that the allegations are untrue (and created or encouraged in retaliation for you having raised concerns), that the specific incidents did not occur or that the conduct (such as criticising a doctor in front of colleagues) is an acceptable part of clinical handover.”

277. This was a fair summary of the second claimant’s position.

278. In reaching its decision on sanction the panel also took into account the following in particular:

278.1 The conduct found went to the root of the relationship of trust and confidence, it amounted to gross misconduct and was such that the first respondent could not reasonably retain confidence in the second claimant as a clinician or an employee.

278.2 The second claimant had shown no insight or remorse for her actions and had argued instead that she had done nothing wrong but the Trust was at fault.

279. Having regard to these findings, the panel was unanimously of the view that the appropriate sanction was summary dismissal.

280. The outcome letter sent by [NAME_189] to the first claimant followed a similar pattern. The findings as to the specific allegations that had been made

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against the first claimant were set out in the appendix to the outcome letter. Again some allegations were upheld and some were not.

281. Examples of allegations that were upheld were:

281.1 The first claimant behaved in a rude and abrupt way towards clinic administration staff and [NAME_54] including in front of patients. The panel noted the evidence given by [NAME_190] in which she described witnessing [NAME_178] being rude and abrupt towards administration staff and that [NAME_178] acted inappropriately towards [NAME_54] in front of patients. This evidence was supported by [NAME_54] herself who described the poor behaviour of [NAME_178] towards her in front of other staff and patients. The panel felt that the evidence given by [NAME_54] was very credible and accepted that she experienced instances of [NAME_178] being rude and abrupt to her. The panel therefore upheld this allegation and found that it amounted to inappropriate and undermining behaviour and bullying.

281.2 The first claimant criticised and got angry with [NAME_54] for asking questions, shouted at her and made her feel too scared to ask questions and this amounted to inappropriate and undermining behaviour and bullying. The panel found that [NAME_54] gave very persuasive evidence about how she had been shouted down by [NAME_178] and [NAME_170], describing [NAME_178] as the more difficult of the two. The panel referred to evidence it heard from [NAME_46] who confirmed that [NAME_54] would often be found in tears, complaining about having been shouted down by the consultants. This corroborated [NAME_54]'s evidence. The panel did not dispute that the absence of a middle tier of doctors may have caused [NAME_54] to have to ask questions to the consultants rather than registrars and expectations of the first claimant may have been greater. However, that did not make it appropriate for a consultant to shout a junior doctor down, making her feel too scared to ask questions.

Again we note here that the above analysis further demonstrated that the disciplinary panel had appropriately taken into account the claimants’ point about the systemic issues in the department but reasonably found it did not provide any excuse or justification for the behavior it found occurred.

281.3 The first claimant behaved in an unsupportive and critical manner towards [NAME_54] to such an extent that nursing staff raised concerns with management and this amounted to inappropriate and undermining behaviour and bullying. The panel noted that [NAME_178] felt that she had been targeted because she had raised performance concerns about [NAME_54]. However, the panel saw no evidence of this being the [NAME_1].

281.4 [NAME_178] also criticized [NAME_50] in a way which constituted inappropriate and undermining behaviour and bullying.

281.5 The first claimant had behaved in a contradictory and undermining way towards [NAME_46], criticising her for being proactive when she took action, criticising her for not being proactive when she asked for support and

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shouted at [NAME_46] in front of people and belittled her. The panel found that [NAME_46] was a very credible witness and gave clear and consistent evidence about the criticism she was subjected to by [NAME_170] and [NAME_178]. She was clear that [NAME_178] caused more stress to her than [NAME_170] and described how confusing working with her was. [NAME_46] described very clearly how [NAME_178] would tell her she had to run simple matters by her (e.g. checking blood sugar levels of patients) but then criticised her in front of colleagues for asking the questions she had been directed to ask. The panel noted in particular that [NAME_46] described [NAME_178] as trying to put fear into her rather than training and guiding her. The panel referred to supporting evidence from a witness who recalled [NAME_46] being in tears and reporting that she had been made to feel like a silly girl. The panel did not agree with the first claimant’s contention that the allegation was vague and unspecific. The panel found that the first claimant’s behaviour towards [NAME_46] was inappropriate and undermining and amounted to bullying.

282. We should also note that the panel was again alive to the issue about a lack of specific allegations against the first claimant in circumstances where witnesses had identified the three consultants as perpetrators. The panel acknowledged that in relation to [NAME_53] an allegation was not made against [NAME_178] in isolation and specific examples were not given. However, the panel was satisfied that either individually, or collective with [NAME_170], [NAME_178] ignored [NAME_53]'s contribution and interrupted her when speaking. Such behaviour was repeated or regular and it amounted to inappropriate and undermining behaviour. The panel referred to evidence which indicated that [NAME_170] and [NAME_178] were either threatened or frustrated by [NAME_53] The panel accepted the evidence given by [NAME_53] that she was ignored by [NAME_170] and [NAME_178] when she tried to make suggestions to improve the department. The panel found her to be a very credible witness. Her evidence was supported by other witnesses who said that [NAME_170] and [NAME_178] were trying to undermine [NAME_53] to stop her getting the Clinical Lead role and unpicking her practice.

283. The panel referred to examples of undermining behaviour towards [NAME_53] including referring to her as “a very junior [doctor] who thinks she knows it all'. The panel held a genuine belief that [NAME_170] and [NAME_178] acted together and supported each other in their poor behaviour towards colleagues, including [NAME_53]. The panel was satisfied on the basis of the evidence in the investigation and heard during the disciplinary hearing that [NAME_170] and [NAME_178] had joint responsibility. Whilst it might not have been possible to identify which of the two of them made specific comments (such as referring to [NAME_53] as a very junior doctor who thinks she knows it all) the panel found that, collectively, they created the impression that they held the same views and supported each other in their negative views and behaviour. As such, they were both accountable.

284. Examples of allegations that were not upheld were:

284.1 The first claimant did not admonish [NAME_54] on 2 August 2019 to the effect that she had misdiagnosed a child in front of the patients.

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284.2 The first claimant did not tell [NAME_54] that she had misinterpreted an x-ray in front of [NAME_192] and [NAME_194], members of the nursing team.

284.3 The first claimant did not tell [NAME_54] on the phone that she was just coming to see a patient with a non-blanching rash to reassure her and made her cry.

285. The panel then applied the specific factual findings it had made to the broad allegations that it had to determine.

286. In relation to allegation 1 the panel had to decide whether any behaviour it found to have occurred amounted to inappropriate, undermining behaviour, bullying and/or harassment.

287. The panel found that there was a pattern of the first claimant criticising and dismissing the contributions of colleagues, often in a public way in front of colleagues and patients. This was particularly evidenced in her treatment of [NAME_54] and [NAME_53], and in the behaviour towards nursing staff whose opinions the panel found the first claimant was dismissive of. The panel found there was also repeated evidence of the first claimant undermining the role and value of locum consultants. The panel found it was clear that many of the witnesses felt undermined by the first claimant’s behaviour.

288. The panel was not satisfied that any of the behaviour it found to have occurred related to a protected characteristic of the recipient. As such, it found that it did not therefore amount to harassment.

289. The panel was satisfied, however, that the behaviour it found to have occurred was offensive, intimidating and insulting and therefore it constituted bullying.

290. In relation to allegation 2 the panel had to decide whether any behaviour it found to have occurred had impacted negatively on the culture and dynamics in the [NAME_151] with the potential to affect staff and patient safety.

291. The panel concluded that the behaviour of the first claimant which it found occurred impacted negatively on the culture and dynamics in the [NAME_151]. The panel found this to be so because the behaviour caused colleagues to be upset, to feel negatively about the prospect of working shifts with the first claimant, to be fearful of asking questions and to be fearful of treating patients in a way that could lead to unfair criticism.

292. In the panel’s view the above fear amongst members of the [NAME_151] caused communication to breakdown and caused people to leave the department. It also prevented junior doctors and nurses from asking questions when they were unsure about something and from asking for assistance when they felt they needed it. The breakdown in communication, fear amongst staff

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and people leaving the department all had the potential to affect staff and patient safety.

293. The panel further found in relation to allegation two:

293.1 That there were a number of occasions in which the first claimant behaved in a hierarchical and undermining way and that the first claimant referred to locum doctors in a derogatory and demeaning manner (e.g. referring to both [NAME_53] and [NAME_188] as "just [NAME_56]".)

293.2 The first claimant did not value the opinion of nurses as highly as the opinion of doctors. It accepted the evidence given by witnesses that the first claimant had little or no regard for nurses' opinions and that consequently nurses felt dismissed, devalued and disrespected. The panel accepted witness evidence of specific incidents in which nurses complained that the first claimant had dismissed their contribution and/or expertise.

293.3 The first claimant was not open to learning and constructive criticism. The panel accepted evidence that the first claimant tended to react defensively to suggestions about change and interpreted them as a personal slight or criticism and therefore would not engage in a professional discussion about such matters. Examples were given. The panel found that there were both specific instances and also a general impression created that the first claimant was not open to learning and constructive criticism.

293.4 The first claimant was critical of junior doctors who asked for help. The panel accepted evidence of a number of instances of the first claimant being critical of junior doctors and found that she was sometimes irritated by junior doctors when they asked for help. The panel concluded that the first claimant’s criticism of junior doctors who asked for help was behaviour which created an environment in which junior doctors were fearful of asking for assistance and afraid to speak up – it described this as a “culture of fear”.

293.5 The panel acknowledged the lack of a middle tier of seniority/experience in the department, but it found it was still a reasonable expectation that the first claimant would closely supervise junior doctors and there was no justification for her to be critical of or irritated by those who asked for help.

We should note again here the important point that in our view this acknowledgement made it clear that the panel had appropriately taken into account the systemic issues in the department, but reasonably found that they could not excuse or justify the first claimant’s behaviour.

293.6 The allegation that the first claimant had adopted an undermining tone in e-mails was not proven.

293.7 The first claimant had criticised colleagues in front of others at handover. The panel cited an example of where the first claimant, along with [NAME_170], shouted at and belittled [NAME_46] (although it was not specifically stated

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that this was done during handover). By this criticism of colleagues in front of others the panel found that a fear of speaking freely developed.

293.8 The following conclusion of the investigation was supported by the evidence given during the hearing and upheld:

"There is significant evidence of a negative culture that operated within the department which could be described as toxic. Witnesses gave evidence that the three female consultant paediatricians operated as a group to maintain this culture. To that extent there is evidence that [NAME_178]'s behaviour has impacted negatively on the culture and dynamics of the paediatric team."

294. The panel found that through the above findings the first claimant’s behaviour had impacted negatively on the culture and dynamics in the [NAME_151], with the potential to affect staff and patient safety.

295. In relation to allegation 3 the panel found that there were numerous occasions on which the first claimant had failed to provide support to other colleagues. It cited examples of the first claimant being resistant to requests for assistance and not making herself available to assist colleagues. It further found credible evidence of doctors feeling unsupported and having left the department as a result. The panel therefore found allegation 3 proven.

296. In relation to allegation 4 the panel explained that the guidance and expertise of [NAME_197] had been important to their conclusion on this issue. The panel found the following:

296.1 On 22 May 2020, the first claimant was asked to perform a child protection medical on two children (aged 9 and 13) who had phoned [NAME_198] to report abuse by their father. 296.2 The children were accompanied by their Polish mother who did not sufficiently understand and speak English and would require an interpreter to enable her to give consent to the medical. 296.3 22 May 2020 was in the height of the Covid-19 pandemic when third parties were not able to come onto to Trust premises. It would not have been possible to arrange for an interpreter to attend in person. 296.4 This was also a Friday of a bank holiday weekend further limiting the availability of an interpreter and increasing the risk of returning the children to their home without an assessment. 296.5 The first claimant refused to carry out the medical without the in-person attendance of an interpreter. The children were sent away from the hospital. 296.6 The first claimant did not conduct a risk assessment before sending the children away. 296.7 The first claimant was advised by a social worker that interpretation services could be provided by telephone via Language Line, a service used by the [COMPANY_199]. 296.8 The CCG Designated Doctor made contact with the first claimant and advised that it was appropriate to use telephone interpreting services and that she should carry out the medicals.

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296.9 This advice was repeated by [NAME_140], [NAME_200] lead who offered to support the first claimant to use the telephone interpretation service. The first claimant refused this offer and maintained that she would not conduct the medicals. 296.10 [NAME_140] arranged for the medicals to be conducted at [COMPANY_201]. The assessment was conducted with the support of a Language Line interpreter.

297. The panel took into account the expert opinion of [NAME_160] that the first claimant’s practice was not in keeping with the standards expected of a reasonable paediatrician as the wellbeing of the children did not appear to have been paramount. [NAME_197] agreed with this assessment and advised the panel that there was no reasonable excuse for the first claimant not to conduct the assessment. Collectively, the panel reached the same view.

298. In the conclusions section of the outcome letter [NAME_177] again recognised the issue that for a number of the alleged incidents, it was not possible to attribute the alleged behaviour to [NAME_170] or to [NAME_178] specifically and the panel had therefore considered whether it was therefore possible to make a finding in relation to those allegations.

299. [NAME_177] described how the panel had read and heard evidence about how [NAME_170] and [NAME_178] had acted together to create the hostile environment complained of. In instances where the actions could not be attributed to one individual, the panel considered whether there was nevertheless joint responsibility. The panel accepted the evidence identified in the [NAME_152] investigation that [NAME_170] and [NAME_178] were responsible both individually and collectively for the toxic culture which had developed in the department. The panel relied on the findings set out in the appendix as specific examples.

300. [NAME_177] also dealt with the [NAME_1] which the first claimant had presented to the panel in her statement of [NAME_1]. He correctly described how in her statement of [NAME_1] and in her evidence to the hearing the first claimant had asserted that the instances of poor behaviour had not occurred and that the allegations were a result of collusion amongst management in retaliation for her having raised concerns and/or that she were targeted as a non-Christian or on the grounds of sex, race or age.

301. The panel did not accept those arguments. It found that the individual employees who gave evidence and who had expressed concerns about the first claimant would not, in most cases, have known about the concerns the first claimant had raised with management.

302. The panel considered, but did not accept, the first claimant’s contention that the complainants, and [NAME_54] in particular, had made complaints because she had raised concerns about their performance. There was robust and credible evidence that the issues raised by [NAME_54] and others were a genuine expression of how they felt unsupported and badly treated by the first claimant.

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303. The panel found that the decisions of [NAME_91] to commission an investigation and then proceed to a disciplinary were appropriate and essentially inevitable. They found that [NAME_91] was not influenced in her decision making by the fact that the first claimant had raised concerns.

304. The panel found that very little evidence was provided to support the first claimant’s contention that she had been discriminated against on the grounds of sex, race. religion or age and this was not upheld by the panel.

305. Therefore the panel upheld allegations 1 to 3 as described above and it found that the first claimant had not been targeted for unacceptable reasons (i.e. speaking up or protected characteristics). The panel then moved on to consider whether the first claimant’s actions amounted to gross misconduct.

306. The panel concluded that the behaviours of the first claimant it had found as summarised above constituted bullying, wilful, careless, inappropriate behaviour likely to compromise standards of care or patient safety or create serious dysfunction to the effective running of the service. It found there were instances of the first claimant failing to give proper support to other employees and the impact of her behaviour, which caused doctors to leave, was likely to bring the paediatric department. and possibly the Trust as a whole into disrepute. The panel further found that there was strong evidence that the first claimant had breached GMC standards of behaviour and it set out the relevant guidelines. These included guidelines related to working collaboratively, treating colleagues with fairness and respect and supporting and mentoring junior doctors.

307. The unanimous decision of the panel was therefore that the allegations it found proved amounted to gross misconduct.

308. In respect of allegation 4 the panel concluded that the first claimant had wilfully failed to conduct the child protection medicals on 22 May 2020 when she knew that the child protection medicals could and should have taken place in all the circumstances. The panel considered that the first claimant’s actions in this regard amounted to serious neglect of duties and wilful, careless. inappropriate and unethical behaviour likely to compromise standards of care or patient safety.

309. The panel decided to consider allegation 4 as a discrete and separate allegation. While the panel considered this to be a very serious issue, it was satisfied that the first claimant was now very clear on her obligations, the appropriate use of interpreter services and that her behaviour would be very different if a similar situation arose in the future. While the panel would have expected more remorse, it was satisfied that, looking at this matter in isolation, the first claimant’s actions did not destroy trust and confidence. As such, the panel determined that the appropriate sanction in relation to allegation 4 was a Final Written Warning, for a period of 12 months.

310. The panel then moved on to consider the appropriate sanction for allegations 1-3. The panel noted the following in particular:

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“…your clear position in relation to the allegations of misconduct is that no misconduct had occurred. Throughout the investigation and the disciplinary hearing, you have not indicated any acceptance that, whether or not it was intended, your behaviour has caused harm to others Instead, you maintain the position that the allegations are untrue (and created or encouraged in retaliation for you having raised concerns), that the specific incidents did not occur or that the conduct (such as criticising a doctor in front of colleagues) is an acceptable part of clinical supervision.”

311. This was a fair summary of the first claimant’s position.

312. In reaching its decision on sanction the panel then took into account the following in particular:

312.1 The conduct found went to the root of the relationship of trust and confidence, it amounted to gross misconduct and was such that the first respondent could not reasonably retain confidence in the first claimant as a clinician or an employee: 312.2 The first claimant had shown no insight or remorse for her actions and had argued instead that she had done nothing wrong but the Trust was at fault.

313. Having regard to these findings, the panel was unanimously of the view that the appropriate sanction was summary dismissal.

314. On 10 June 2022 the claimants both appealed against the decision to dismiss and the first claimant also appealed the final warning. In their letters of appeal the claimants both alleged that they had been dismissed because they had raised protected disclosures and/or because of protected characteristics (religion, sex, race and/or age).

315. On 24 June 2022 the claimants’ solicitors each requested that the claimants’ appeals be dealt with on the papers and heard separately. The first respondent accommodated both of these requests.

316. On 4 July 2022 both claimants were referred by the second respondent to the GMC following discussions with the GMC employment liaison adviser.

317. On 29 July 2022 the appeal panel was confirmed to the claimants. The appeal was to be heard by [NAME_202] who was the first respondent’s chief operating officer and [NAME_203] who was the chief people officer.

318. On 11 August 2022 the claimants were provided with a copy of the management response to their appeals. The appeal panel met twice on 8 September 2022 and 6 October 2022. On 8 November 2022 the appeal outcomes were sent to both claimants. The decisions to dismiss and to issue the final warning were upheld.

319. The claimants submitted their ET1 claim forms in October 2022.

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320. In September 2023 the GMC concluded that they would take no further action in respect of the second claimant.

321. In December 2023 the GMC concluded that they would take no further action in respect of the first claimant.

Conclusions

The submissions

322. The parties provided substantial oral and written submissions. The respondents’ written closing submissions were 31 pages. The claimants’ written closing submissions were 128 pages. The oral submissions took nearly a day. We have taken into account absolutely every point which was made to us either orally or in writing. It is not practical or proportionate to summarise such extensive submissions but we have considered them very carefully. Indeed, considering the claimants’ submissions in particular took up a large part of the available time for deliberations and judgment preparation. It would be impossible to mention every single point raised by the parties in their submissions but we have considered everything, even if we do not specifically mention it in these reasons.

The importance of treating the claimants separately

323. Notwithstanding that the claimants jointly presented written submissions we were invited to treat their positions separately. We agree it is important to do this and we have done so.

324. The point about the importance of treating the claimants separately was particularly emphasised by the second claimant who argued that the consolidation of her [NAME_1] with that of the first claimant at the disciplinary stage had led to an impermissible conflating of evidence, such that she was improperly tarred with the same brush as others.

325. With this in mind we were careful within our findings to explain the evidence and disciplinary outcome against the claimants separately. With those findings in mind we consider that there was no basis for the suggestion by the second claimant that the evidence against her had been conflated and she had been improperly tarred with the same brush. In fact, there was a clear and compelling body of evidence against the second claimant, and the first claimant.

The context

326. The claimants have for a long time sought to respond to the [NAME_1] against them by placing the allegations in context. The particular context which they have referred to is the two tier system and the additional pressure that working within that system brought with it. Notably, the first claimant’s solicitors described the ‘heart’ of the situation as the ‘product of a system of work which was not fit for purpose’ – rather than a whistleblowing [NAME_1]. The claimants have

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also highlighted other important points of context including the failure to agree job plans and the difficulties with recruitment which also caused additional pressure and difficulties.

327. We accept that the allegations came about in the context which the claimants describe - specifically the two tier system, failure to agree job plans and difficulties with recruitment all created additional pressures for the claimants. One of the curious things about this [NAME_1] is that this is an uncontroversial finding. Reviewing the evidence that we saw and heard we did not see that anybody had sought to argue that the claimants were wrong in identifying the flaws which they did in the two tier system. We noted that the respondents accepted that the claimants made many protected disclosures including about the two tier system, and in doing so they accepted that the claimants had a reasonable belief that they were raising concerns about health and safety. Everyone seemed to agree that the two tier system had drawbacks including in particular the additional pressure placed on consultants by the absence of a middle tier especially in terms of supervising the junior tier. We note that the first respondent eventually replaced the two tier system and presumably it would not have done that unless it considered the system to be imperfect. Likewise, everyone seems to have agreed that a lack of agreed job plans and a lack of recruitment increased pressure and made working life more difficult. This was all on top of the basic facts, which we have no difficulty accepting as a matter of common sense, that being a consultant in the NHS is a very demanding job and working in a [NAME_92] department in an NHS hospital can be very challenging.

328. It might have been thought therefore that the claimants’ point about the context in which the allegations arose could be covered fairly quickly in the evidence and submissions. This did not turn out to be the [NAME_1] however. A great deal of time and energy was spent explaining the context and in particular the claimants’ critique of the two tier system. So much time was spent on this issue that we felt compelled to observe during the course of evidence that it is not our role to determine whether the respondents’ decisions about how to structure its paediatric provision or its management of staff delivering the paediatric service were appropriate or not. We asked [NAME_20] who was taking the lead in the questioning about this to explain how expanding in great detail on the claimants’ critique of the system was relevant to the issues that we have to determine. In our view, we did not receive a clear answer to that question.

329. It seemed to us that the roots of the problem here lay in a fundamental disconnect between the way in which the claimants’ [NAME_1] seemed to be being presented on their behalf to us and the claimants’ own [NAME_1] to the disciplinary hearing, which they themselves repeated to us. The claimants’ [NAME_1] is not that the behaviours complained of happened but were the product of a difficult working environment. The claimants’ [NAME_1] is that the behaviours did not happen and they therefore denied all the allegations against them. They accused the witnesses of lying. The claimants confirmed in their evidence before us that they maintained that position (indeed the second claimant went so far as to say that all the allegations made to the disciplinary investigation were malicious in

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the sense that people that had made things up which were not true). [NAME_22]’s observation that the claimants had adopted a “scorched earth [NAME_73]” was accurate. It was as we have described an uncompromising approach in the sense that it left little room for any acknowledgement or acceptance of the behaviours which were so widely complained of.

330. Had the claimants’ position at the disciplinary been that they accepted the behaviours alleged but sought to rely on the difficult working environment as mitigation then this would have been a very different type of [NAME_1]. Indeed it is tempting to think that if they had presented that [NAME_1] then we might not have ended up where we are now. We think it is important to recognise that the claimants did not present that [NAME_1], even though it might have been thought to have been a realistic way forward based on the evidence that was put to them.

331. One particular way in which that point is relevant is when we come to assess the reasonableness of the first respondent’s decision to dismiss. The first respondent’s decision can only be judged in the context of the [NAME_1] which the claimants actually chose to present, not a [NAME_1] which they or their current representatives may feel with hindsight that they ought to have presented. The reality was that the disciplinary panel had very little evidence to the effect that the claimants had any acceptance of or insight into the behaviours about which so many of their colleagues had complained.

332. We should mention that when we returned to discussing this issue with [NAME_20] in closing submissions he very helpfully confirmed that the claimants’ position remained that they did not admit any of the allegations but he pointed out some parts of the evidence which indicated an acknowledgement of or an insight into at least some of the behaviours complained of, in particular by his client, the second claimant. We acknowledge these and we have taken them into account, including pages 3274 and 3252. However we think [NAME_22] was right to warn us against taking a few quotes out of context and without looking at the [NAME_1] that the claimants put front and centre of their evidence. We found it odd that we were being asked on behalf of the claimants to strain to find a [NAME_1] that might have been hinted at.

333. We refer to our findings on the claimants’ statements of [NAME_1] as to the nature of the [NAME_1] that they actually presented to the disciplinary. We felt that if the claimants had really been putting forward the [NAME_1] that they were accepting what others said about them then that would have been made clear, especially since the claimants are highly intelligent people who were represented by highly experienced solicitors and a [NAME_25]. Overall we remained of the view that the claimants’ [NAME_1] had remained overwhelmingly focused on a denial of the allegations rather than taking responsibility and mitigating.

Credibility

334. In her closing submissions on behalf of the respondents [NAME_22] asked us to find that the claimants generally lacked credibility. She pointed out a number of factors which she said supported that conclusion, including the

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very late withdrawal of the claimants’ discrimination claims. We carefully considered the points raised by [NAME_22] but we decline to make any finding of a general lack of credibility.

335. In one specific respect however we have found the claimants’ positions to be wholly incredible. They told the tribunal in response to panel questions that they did not recognise the description of the [NAME_92] department as ‘toxic’ despite the extensive evidence that showed that it was. [NAME_178] went as far as to describe the department as a ‘family’. In our view the claimants’ position in this respect lacks any credibility whatsoever, particularly given the [NAME_1] seemingly put on their behalf that their behaviours were the product of a difficult working environment.

Protected disclosures

336. The claimants’ submissions on the disputed disclosures were limited to the submission at paragraph 83 that the disclosures “self evidently satisfy the requirements for qualifying disclosures”. We have taken into account their submissions as a whole, the documentary evidence of the disclosures and what the claimants said about them in their witness statements. The respondents produced a table summarising their position on all the disclosures and we took that into account too.

337. The respondents agreed, we find correctly, that the first claimant made protected disclosures on the occasions set out in the list of issues above.

338. We find that the first claimant also made protected disclosures on the following occasions:

19 July 2019 Email: supporting Second Claimant’s email of 18 July 2019 that 2 new junior doctors ([NAME_44] & [NAME_46])who had been placed on the rota to do long days and night shifts would compromise patient safety. (PID number 6b).

339. On 19 July 2029 the first claimant wrote to [NAME_41] and others by email. She stated her agreement with an email from the second claimant sent the previous day in which the second claimant said she was really concerned and worried about the long days and night shifts the new tier 1 doctors had been allocated. The second claimant said that this would compromise patient safety. The respondents accept that the email sent by the second claimant was making a protected disclosure. By her email the first claimant was reiterating this concern. The first claimant also suggested that the new doctors should follow their scheduled rotas and the new junior doctor rota guidance on the intranet needed to be followed.

340. We find this was a disclosure of information. The information was that new doctors were working long days and night shifts in contravention of their scheduled rotas and the guidance. We find the first claimant reasonably believed the disclosure of this information was in the public interest as this was an NHS hospital and it was a matter going to patient safety within that hospital. We find that the first claimant reasonably believed the information tended to

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show that the health and safety of patients was likely to be endangered, as the information tended to show that junior doctors were being overworked when they were inexperienced and this created a risk to patients’ health and safety.

341. We find that the disclosure was made to the first claimant’s employer. The email was sent to [NAME_41], who was at the time the General Manager for the [NAME_106] Department. We acknowledge that the first claimant was a consultant and therefore a very senior member of medical staff. However we think that raising the disclosure to a senior member of managerial staff constituted a disclosure to her employer in the hospital context. In our view [NAME_41], and other senior managers, were in a position of authority. They had the power to take action in response to the claimants’ various concerns and that was why the claimants were raising their concerns to them in the first place.

2 August 2019 Email : unanimous concern on behalf of consultant body that new junior doctor ([NAME_54]) continued to require extreme support and supervision and that she was not yet ready to do night shifts independently. (PID number 7).

342. On 2 August 2029 the first claimant sent an email to [NAME_41], [NAME_123] and others concerning [NAME_54]. The first claimant raised a concern that [NAME_54] continued to require extreme support and supervision and was not yet able to take independent decisions even on simple cases. She said [NAME_54] was not yet ready to do night shifts. She emphasised the concern that [NAME_54] had been rostered to do nights next week but she felt she needed more time to be able to do those shifts. The first claimant asked for the shifts to be sorted out as a matter of urgency.

343. We find this was a disclosure of information – in particular that [NAME_54] still needed extreme support, was not able to take independent decisions and she was not ready to do nights yet had been rostered to do them the following week. We find the first claimant reasonably believed the disclosure of this information was in the public interest – a junior doctor was about to go on night shifts in an NHS hospital when her supervising consultants felt she was not ready to do so. We find the first claimant reasonably believed this information tended to show the health and safety of patients was likely to be endangered. If a doctor worked on the night shift before she was ready to do so that created a clear risk to patients in her care.

344. We find that the disclosure was made to the first claimant’s employer. The email was sent to [NAME_41], and [NAME_123] who was the Clinical Director for [NAME_106]. As we have explained we think that raising the disclosure to senior members of managerial staff constituted a disclosure to the first claimant’s employer.

19 November 2019 Orally in meeting : lack of midwifery support for NIPE checks which meant consultants had to complete them. The SCBU already ran on minimal staff and if consultants had to leave the SCBU to go to the post-natal ward to do NIPE checks there would be no-one to do the regular work on SCBU compromising patient care. (PID number 14).

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345. On 19 November 2019 the first claimant attended a paediatric service meeting. The meeting was chaired by [NAME_41] who was at the time the [NAME_106] Manager. The meeting was also attended by other senior managers such as [NAME_30] who was at the time the [NAME_106] Manager and shortly after the meeting she took over from [NAME_41] as the General Manager.

346. We find that the first claimant disclosed information, in particular about a lack of midwifery support for NIPE (Newborn and Infant Physical Examination) checks. The first claimant said there was not enough NIPE trained midwives and as a result consultants had to complete the checks. This meant consultants had to leave their regular work which could compromise patient care.

347. We find that the claimant reasonably believed that this disclosure of information was in the public interest, because she was raising concerns about a lack of appropriately trained staff in an NHS hospital.

348. We find that the claimant reasonably believed that the disclosure of information tended to show that the health and safety of patients was likely to be endangered, because the point the claimant was making was that consultants were having to do tasks which ordinarily should be done by midwives which meant they could not do their consultant duties and this could lead to risks to patients.

349. We find that the disclosure was made to the claimant’s employer, because it was made to senior managerial staff including [NAME_41] and [NAME_30].

350. We do not accept the respondents’ point that because the claimant was a consultant that meant she was senior even to the General Manager. Managerial staff and medical staff were not in the same hierarchy. A disclosure by a consultant to a senior manager was in effect escalating the concern and was in practice a disclosure to the employer. The nature of the practical hierarchy at the paediatric service meetings is indicated by the fact that they were chaired by [NAME_41] or [NAME_30], and not one of the consultants.

17 March 2020 Email: junior doctors struggling with the number of baby checks on the weekend with no support from the midwives. Putting patients at risk with this arrangement. (PID number 15).

351. On 16 March 2020 the second claimant wrote to [NAME_30] and others to point out that junior doctors were struggling with the number of baby checks on the weekend as they had no support form midwives. She said these were safety concerns. On 17 March 2020 the first claimant wrote to [NAME_30] and [NAME_41] repeating this concern. She also referenced a specific incident when a doctor had had to do a baby check but he was tired. She said: “I am afraid we are putting patients at risk with this arrangement”.

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352. Rather strangely the respondents accept that the second claimant made a protected disclosure but not the first claimant. We think there is no logical basis for that. If anything the first claimant’s disclosure is more clearly protected because she escalated it to [NAME_41] in addition to [NAME_30].

353. We find that the first claimant disclosed information, in particular that junior doctors were struggling doing baby checks at the weekend and had no support from midwives, and that a specific doctor had had to do a baby check when tired as a result.

354. We find that the claimant reasonably believed that the disclosure of information was in the public interest because the claimant was referring to a situation in which baby checks may not be carried out correctly in an NHS hospital.

355. We find that the claimant reasonably believed that the disclosure of information tended to show that the health and safety of patients was likely to be endangered, because patients, in particular babies, were at risk if the checks were not carried out correctly.

356. We find that the disclosure was made to the claimant’s employer, because it was made to [NAME_41] and [NAME_205]. We have already explained our reasoning for that.

357. We find that the first claimant did not make protected disclosures on the following occasions:

19 November 2019. Orally in meeting: issues with some [NAME_56] (including [NAME_53]) including poor clinical performance, not signing off or completing their own letters. (PID number 13).

358. On 19 November 2019 the first claimant attended a paediatric service meeting. The meeting was chaired by [NAME_41] and attended by other senior managers such as [NAME_30].

359. Issues about poorly performing locum consultants were raised. [NAME_56] were good and some not so good. It was said that “some [NAME_56] have better clinical skills than others”. [NAME_41] explained how the first respondent was trying to ensure that the more poorly performing [NAME_56] were not booked again.

360. The specific point that the first claimant, and others, raised as a concern, was that [NAME_56] were not signing off or completing their own letters and leaving this to the other consultants. We find that the first claimant did not reasonably believe that this was a disclosure of information that was in the public interest or that it tended to show a person had failed, was failing or was likely to fail to comply with any legal obligation, the health or safety of any individual (namely patients and staff) had been, was being or was likely to be endangered or that

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information tending to show any of these things had been, was being or was likely to be deliberately concealed.

361. In our judgement this was a general discussion about trying to make sure the better performing [NAME_56] were rebooked. It was not suggested that this would not be done or had not been done. The specific point the first claimant and others made about [NAME_56] not signing off on their letters was a relatively minor point which did not indicate something that was in the public interest or a risk to patient safety. What the first claimant had in her mind was that the [NAME_56] not signing off on their own letters was inconvenient for others.

17 March 2020. Orally in meeting: new junior doctors were not yet ready to be placed on rota alone but need to be supernumerary for a time. [NAME_50] was working out of hours shifts on the rota independently. (PID number 16).

362. On 17 March 2020 the first claimant attended a paediatric service meeting. On this occasion the meeting was chaired by [NAME_30].

363. [NAME_207] were discussed. What was raised by the first claimant was that they were not ready to be placed on the rota alone but the plan was for them to be supernumerary for 6 weeks and then they would be placed on the rota from April. There does not appear to have been any opposition to that proposal.

364. We find that the first claimant did not reasonably believe that this was a disclosure of information that was in the public interest or that it tended to show a person had failed, was failing or was likely to fail to comply with any legal obligation, the health or safety of any individual (namely patients and staff) had been, was being or was likely to be endangered or that information tending to show any of these things had been, was being or was likely to be deliberately concealed.

365. In our judgement this was a general discussion about whether the junior doctors were ready to be placed on the rota and how that would be managed. There was no pushback on the suggestion that they were not yet ready and it was agreed they could work on a supernumerary basis until they were ready in about 6 weeks time. This was simply a practical discussion about managing junior doctors transition into independent working.

30 July 2020. Email : concerns about [NAME_50]’s capability. (PID number 24).

366. On 30 July 2020 the first claimant emailed the second claimant. She copied in a number of other consultant colleagues. She raised concerns about a particular junior doctor, [NAME_50]. She said that he had not progressed, his history taking was incomplete and there were issues with his patient assessment and management. She identified specific examples.

367. We find that the first claimant did not reasonably believe that this was a disclosure of information that was in the public interest or that it tended to show a person had failed, was failing or was likely to fail to comply with any legal

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obligation, the health or safety of any individual (namely patients and staff) had been, was being or was likely to be endangered or that information tending to show any of these things had been, was being or was likely to be deliberately concealed.

368. In our judgement this was a general discussion about the capability of a junior doctor. The first claimant was critical of [NAME_50]’s progress but as a consultant in the two tier system it was to be expected that the first claimant, and her colleagues, would monitor his capability and the email is part of that. It was to be expected that junior doctors in the two tier system would make mistakes and require supervision from consultants and this email reflected that. The claimant was identifying in the email that [NAME_50] was making mistakes but there was nothing to suggest that he was not being supervised appropriately. In fact, the point of the first claimant’s email appears to have been to remind her colleagues that [NAME_50] would continue to require a high level of supervision. There was therefore nothing to suggest that he was posing a risk to patients, because he would continue working with a high level of supervision.

369. Furthermore we find that the first claimant did not make a disclosure to her employer. The email was to the second claimant and other consultant colleagues. These were people on the same level as the claimant. She was not in any sense escalating a concern. We therefore find this alleged disclosure was not protected in any event.

370. The respondents agreed, we find correctly, that the second claimant made protected disclosures on the occasions set out in the list of issues above.

371. We find that the second claimant also made protected disclosures on the following occasions:

16 July 2019. Orally in meeting: poor radiology support and inaccurate reporting. (PID number 5).

372. On 16 July 2019 the second claimant attended a paediatric service meeting. The meeting was chaired by [NAME_41] and other senior managers attended including [NAME_123], the Clinical Director and [NAME_124], Operations Manager.

373. We find that the claimant disclosed information, in particular she described how there was a lack of paediatric experience in the radiology team. She said that [NAME_92] were having difficulty in arranging radiology investigations, particularly for under 2s. She said the hospital should have paediatric radiology support to provide general investigations. She also raised concerns around scans being carried out but not being reported correctly so the consultants were unable to determine the results. The claimant gave a credible account about having raised these concerns and their important nature at paragraph 45 of her witness statement and we accepted that part of her evidence.

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374. We find that the claimant reasonably believed that the disclosure of the information was in the public interest, because the claimant was raising concerns about a lack of sufficient experience within an NHS hospital, a lack of ability to conduct necessary investigations on young patients and that consultants were unable to understand the results of scans, which was an important part of their job in terms of treating patients.

375. We find that the claimant reasonably believed that the disclosure of information tended to show that the health and safety of patients was likely to be endangered, because the lack of experience and the issue with the scans not being reported created a clear risk to patients in particular because it suggested that investigations in radiology could not be carried out correctly and consultants were not able to treat patients properly as they could not determine the results of scans.

376. We find that the disclosure was made to the claimant’s employer, because it was made to senior managers. We have applied the same rationale here as we did for the first claimant. Although the claimant was a senior member of medical staff we consider that by raising concerns to senior management she was in practice escalating them to her employer.

2 August 2019. Email: Unanimous concern on behalf of consultant body that new junior doctor ([NAME_54]) continued to require extreme support and supervision and that she was not yet ready to do night shifts independently. (PID number 7).

377. We have found that on 2 August 2029 the first claimant sent an email to [NAME_41], [NAME_123] and others concerning [NAME_54]. We have explained the contents of that email and why we consider it was a protected disclosure.

378. As we mentioned, the first claimant was not just raising a concern held by her. She was raising a concern that was held by other members of the consultant body in the paediatric department. It is clear from the contents of the email that these consultants had had a discussion and the first claimant was in effect acting as their spokesperson in raising the concern. It was a group concern not an individual one and this can be seen from the language used – “We unanimously felt…”.

379. The second claimant is copied into the email and in that sense she was raising it and putting her name to it. Moreover the second claimant is also specifically named within the email as holding the concerns identified as she was [NAME_54]’s mentor at the time. We therefore felt it was appropriate to read the disclosure as having being made by the second claimant as well as the first.

380. We considered that this was consistent with the approach taken to other disclosures which were made jointly by the claimants. For example the second claimant wrote an email on 7 May 2020 raising concerns on behalf both of herself and the first claimant who was copied into the email. The respondents have accepted that this was a protected disclosure by each of the claimants.

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381. We find that the second claimant disclosed information in particular that [NAME_54] still needed extreme support, was not able to take independent decisions and was not ready to do nights. We find the second claimant reasonably believed the disclosure of this information was in the public interest – because a junior doctor was about to go on night shifts in an NHS hospital when her supervising consultants felt she was not ready to do so. We find the second claimant reasonably believed this information tended to show the health and safety of patients was likely to be endangered because if a doctor worked on the night shift before she was ready to do so that created a clear risk to patients in her care.

382. We find that the disclosure was made to the second claimant’s employer. The email was sent to [NAME_41] and [NAME_123]. We have already explained why we think raising a disclosure to these senior managers was in the circumstances a disclosure to the second claimant’s employer.

19 November 2019. Orally in meeting: ongoing and unresolved issues with UCC referring patients back to CAU, lack of confidence in managing paediatric patients, patchy staffing and lack of consistency. (PID number 12).

383. On 19 November 2019 the second claimant attended a paediatric service meeting. The meeting was chaired by [NAME_41]. The meeting was also attended by other senior managers such as [NAME_30].

384. We find that the claimant disclosed information, in particular that patients were being referred but there was insufficient staff to see the patients. It is clear that this was the nature of the disclosure from the note of the meeting on page 560 of the bundle. The disclosure was raised in the context of wider concerns about staffing which are mentioned in the allegation.

385. We find that the claimant reasonably believed that the disclosure of information was in the public interest, because it was about insufficient staff to treat patients in an NHS hospital.

386. We find that the claimant reasonably believed that the disclosure of information tended to show that the health and safety of patients was likely to be endangered, because if there was insufficient staff to treat patients that led to a clear risk for patients.

387. We find that the disclosure was made to the claimant’s employer, because it was made to senior managers. We have already explained our rationale.

19 May 2020. Orally in meeting: lack of midwife cover over weekend and failure to complete NIPE checks. (PID number 19).

388. On 19 May 2020 the second claimant attended a paediatric service meeting. This meeting was chaired by [NAME_30]. Other senior mangers were also in attendance, including [NAME_208] who was the Associate Director for [NAME_106].

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389. In the meeting the second claimant raised concerns around midwives not completing NIPE checks as there was no cover available at the weekends. This led to a wider discussion about how to ensure the rota was arranged so that there were sufficient staff available to do the checks, especially at weekends.

390. We find that the second claimant disclosed information, in particular she raised the point that there was extra junior support available but they could not work out of hours at present as the rota providing for them to do so had not been approved by [NAME_123]. The second claimant was therefore suggesting that the rotas should be approved so that extra support could be made available and then the checks could be carried out. This disclosure was in the context of the concerns about a lack of cover at the weekends and the consequent failure to do NIPE checks which is mentioned in the allegation. The nature of the second claimant’s specific disclosure is clear from the note of the meeting on page 702.

391. We find that the second claimant reasonably believed that the disclosure of information was in the public interest, because the claimant was raising a point about sufficient staffing in an NHS hospital to ensure that appropriate checks be carried out on newborns.

392. We find that the claimant reasonably believed that the disclosure of information tended to show that the health and safety of patients was likely to be endangered, because if the support was not made available then there would be a clear risk to patients namely the newborns as there may not be sufficient staff to carry out the necessary checks.

393. We find that the disclosure was made to the claimant’s employer, because it was made to senior managers. We have already explained or rationale for that.

394. We find that the second claimant did not make protected disclosures on the following occasions:

395. On 19 November 2019 the second claimant attended a paediatric service meeting. The meeting was chaired by [NAME_41] and other senior managers such as [NAME_30] also attended. Issues about poorly performing consultants were raised – some were good and some not so good. It was said that “some [NAME_56] have better clinical skills than others”. [NAME_41] explained how the first respondent was trying to ensure that the more poorly performing [NAME_56] were not booked again.

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396. The point that the second claimant, and others, raised in particular as a concern, was that [NAME_56] were not signing off or completing their own letters and leaving this to the other consultants.

397. We find that the second claimant did not reasonably believe that this was a disclosure of information that was in the public interest or that tended to show a person had failed, was failing or was likely to fail to comply with any legal obligation, the health or safety of any individual (namely patients and staff) had been, was being or was likely to be endangered or that information tending to show any of these things had been, was being or was likely to be deliberately concealed.

398. In our judgement this was a general discussion about trying to make sure the better performing [NAME_56] were rebooked. It was not suggested that this would not be done or had not been done. The specific point the second claimant and others made about [NAME_56] not signing off on their letters was a relatively minor point which did not indicate something that was in the public interest or a risk to patient safety. What was in the second claimant’s mind was that the [NAME_56] not signing off on their own letters created an inconvenience for the substantive consultants.

29 June 2020. Email: concern regarding locum shift allocated to [NAME_50]. (PID number 21).

399. On 29 June 2020 the second claimant wrote to [NAME_30], [NAME_123] and others. In this email the second claimant said that [NAME_50] had been allocated a locum shift on 4 July 2020. The second claimant said it would be better to wait until the concerns raised about [NAME_50] had been dealt with. This was a reference to the fact that on 7 May 2020 the second claimant had raised concerns about [NAME_50]’s competence and the safety of [NAME_50] working out of hours as he had inadequate experience. The 7 May concern is agreed to be a protected disclosure.

400. In our judgement the only information in the 29 June email was that [NAME_222] had been allocated a locum shift, and the second claimant then presented her opinion that it would be better to wait longer before doing that. We find that the second claimant did not reasonably believe that the disclosure of that information was in the public interest or that it tended to show a person had failed, was failing or was likely to fail to comply with any legal obligation, the health or safety of any individual (namely patients and staff) had been, was being or was likely to be endangered or that information tending to show any of these things had been, was being or was likely to be deliberately concealed.

401. In our judgement this was simply the second claimant presenting her professional opinion that a junior doctor should not be given a locum shift. There was no pushback on the suggestion that he was not yet ready. The email was simply part of an ordinary practical discussion about managing a junior doctor’s transition into independent working.

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402. The claimant had concerns about [NAME_50] but they were not explained to any extent within the email (probably because they were already set out in the 7 May email which we will take into account as a protected disclosure made by the second claimant). There was no information in the 29 June email to indicate that it might be unsafe for [NAME_50] to work the shift.

28 July 2020. Orally in meeting: concerns about staffing issues causing service to be unsafe for patients. (PID number 23).

403. We think the date in this allegation is wrong and it should be 29 July 2020. We find that on 29 July 2020 the second claimant attended a meeting with [NAME_146]. There was a note of that meeting on page 800 in the bundle. In our view the note is the best evidence as to what was said at the meeting. There is no record in the note of the second claimant having raised concerns about staffing issues causing the service to be unsafe for patients. We considered that if the second claimant had said that it would be in the note. We find the disclosure was not made as alleged and therefore there was no protected disclosure on this date by the second claimant.

Detriments

404. We will now consider each detriment in turn. We will consider whether the respondents did what was alleged and whether by doing so they subjected the claimants to detriment on the ground that they had made a protected disclosure.

405. The claimants pursue their complaints of detriments on the ground of making protected disclosures against the Trust, or against the [NAME_91]. The claimants have specified in the list of issues which complaints are pursued against which respondents. Both claimants accepted in terms in cross- examination that any allegation labelled as being against the [NAME_91] is a complaint by them about an act by [NAME_91] for which the Trust is responsible as her employer.

In September 2019, on receipt of complaints by [NAME_54] regarding the Claimants’ conduct, failing to include the Claimants in the ‘informal fact find’, failing to consider whether the matter could be resolved informally without recourse to formal disciplinary procedures and encouraging and assisting [NAME_54] to make a formal complaint.

406. [NAME_54]’s email of 14 [NAME_41] commenced an informal fact find and the claimants were not spoken to as part of that. [NAME_41] explained in her statement, and the tribunal accepted this evidence, that she had been asked what evidence she had for the concerns about the claimants. Because of this and because of the severity of the concerns and because she was the General Manager [NAME_41] conducted the informal fact find. We accept this was [NAME_41]’s genuine rationale for conducting the informal fact find and we find that she was not influenced to any extent by the protected disclosures either in her decision to initiate the fact find or the way in which she went about it including her decision not to speak to the claimants. We also find that [NAME_91] did not influence [NAME_41] to any extent as to how

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she conducted the fact find, including in particular her decision not to speak to the claimants.

407. We understand that the focus of the claimants’ allegation here is that [NAME_91] was responsible for in effect depriving them of the opportunity to address the issues raised by [NAME_54] informally before subjecting them to a formal procedure. Looking at the matter in that broad sense we consider there was a detriment to the claimants in [NAME_91]’s decision to initiate a formal DAW investigation rather than deal with the issues raised informally.

408. [NAME_41] reported her findings back to [NAME_91] on 17 September 2019. Following that, on 23 September 2019, [NAME_91] agreed to a suggestion made by HR that the matter should be investigated as a DAW investigation. This was after HR had met with [NAME_54]. We acknowledge the suggestion was made by HR but it was still [NAME_91] who decided on that way forward. [NAME_91] agreed that this was an appropriate way forward as opposed to more informal management of the issues because of their serious nature and the impact [NAME_54] reported the behaviours had had on her. She explained in her witness statement, and we accepted, that she took that view because the Trust had tried for many years to stamp out inappropriate behaviours (for example through the [NAME_99] review and the training from [NAME_212]) and the complaint from [NAME_54] suggested those processes had not worked and the issues were continuing. As such, she felt it was necessary that the specific allegations raised by [NAME_54] were investigated more formally.

409. The tribunal accepted that these were [NAME_91]’s genuine reasons for progressing to a DAW investigation rather than a more informal step. The tribunal accepts this was a detriment to the claimants. It was not a disciplinary investigation but from the claimants’ view point they had missed out on the chance to give their side of the story in an informal process. The DAW investigation did not lead directly to the disciplinary [NAME_1] but it was part of the reason why the [NAME_58] investigation was initiated which then led to the disciplinary [NAME_1].

410. The detriment we have identified was not done on the ground that the claimants had made any protected disclosures. [NAME_91]’s rationale was as we have just summarised and she was not influenced to any extent by the claimants’ disclosures. She was influenced by the advice she received from HR and her (reasonable) view that previous informal attempts to stamp out inappropriate behaviours had not worked, and not the disclosures. Disclosures were not a material factor in [NAME_91]’s decision to progress to a DAW investigation rather than a more informal step.

411. We do not find that [NAME_41], or anyone else, encouraged or assisted [NAME_54] to make a complaint. That part of this allegation fails on the facts. It was quite clear on the evidence that [NAME_54] was making genuine complaints about the claimants and she had been very adversely affected by their behaviour. It was fanciful to suggest that [NAME_54], a junior doctor on a work visa, would have raised concerns about consultants if she did not have those concerns. Moreover there were a number of other individuals who were

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concerned about the claimants’ behaviour towards [NAME_54] – it was not just [NAME_54]. For example [NAME_194] and [NAME_134] also raised concerns. [NAME_41] acted entirely appropriately to respond to and deal with the serious concerns raised by [NAME_54]. The attempt on behalf of the claimants to show that [NAME_41] had been formulating a kind of “secret dossier” about the claimants failed and was far fetched. [NAME_41] simply kept an appropriate record of what she had been told about the claimants. This was best practice.

412. Finally we should note that the sense of this allegation is that [NAME_41] was assisting [NAME_91] to formalise a complaint by [NAME_54]. The claimants rely in particular on their letter to [NAME_132] as being the disclosure which led to this detriment. However, although [NAME_91] was aware of the claimants’ letter to [NAME_132] [NAME_41] was not. [NAME_41] cannot have assisted [NAME_91] to formalise a complaint by [NAME_54] based on a letter of which she was unaware.

On 17/18 September 2019, threatening the Claimants that the service could be run with [NAME_56], that they would be dealt with appropriately and invoking an investigation.

413. On 17 September 2019 there was a meeting arranged with the claimants, [NAME_132] and [NAME_91] to discuss the letter of concern which the claimants had written to [NAME_132] on 16 August 2019. In the event the meeting was attended by the second claimant but not the first claimant as she was off sick at the time. The meeting was also attended by [NAME_123], [NAME_41], [NAME_101], [NAME_110] and [NAME_214]. The claimants allege that at the meeting [NAME_91] said that she could run the service with [NAME_56] rather than substantive consultants, and also that they would be dealt with appropriately, invoking an investigation. [NAME_91] denies this.

414. We consider that the suggestion that [NAME_91] would have made the comment about [NAME_56] is fundamentally illogical because [NAME_91] did not wish to increase reliance on [NAME_56] – they were expensive and problematic due to the mixed performance of [NAME_56].

415. We thought it was inherently unlikely that [NAME_91] would have made these potentially incriminating comments in the context of a meeting attended by lots of people.

416. We have also noted that the comments were not referred to in any of the correspondence following the meeting and they were not raised by the [NAME_112] who the claimants were at the time in regular contact with. In fact the first time the claimants raised these alleged comments was in the second claimant’s statement of [NAME_1] for the disciplinary hearing 15 months later (it was not raised by the first claimant). We found this to be a striking delay, particularly in the context of claimants who were extremely quick to raise complaints and concerns. We think that had the comments really been made on 17 September 2019 then the claimants would have raised a complaint about them soon afterwards.

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417. In respect of this allegation the claimants relied heavily on a statement provided by [NAME_110] (who attended the meeting). We were asked to read his statement in full and we have done so. There is some support for the claimants’ [NAME_1] but his evidence is not altogether clear. At paragraph 5 he said that “on one occasion” [NAME_91] had said she knew how to run the department with [NAME_56]. However this seems to relate to a different occasion as in the next sentence he implies that happened before April 2019. When [NAME_110] comes to explain the events of 17 September 2019, at paragraph 10, he does not mention [NAME_91]’s alleged comments. Overall, we felt that [NAME_110] had been inconsistent n his evidence – at one stage he suggested he had left due to the behaviour of the claimants and then at another stage he was going to come to the disciplinary to give evidence to support them. Moreover, [NAME_110] has never been called as a witness by the claimants to substantiate their complaints and be tested by cross examination – he did not attend the disciplinary hearing (although at one stage at least it was intended that he do so) and he did not attend this hearing either (or even provide a witness statement). For those reasons we think that we cannot attach much weight to the evidence provided by [NAME_110].

418. For the above reasons we find that that [NAME_91] did not say at the meeting on 17 September 2019 that she could run the service with [NAME_56] rather than substantive consultants, or that the claimants would be dealt with appropriately, invoking an investigation.

Subjecting the Claimants to a formal investigation under the DAW procedure, in breach of [NAME_58], and carrying out a flawed and unreasonable investigation and producing a flawed investigation report.

419. We have already explained how the claimants came to be subject to a formal DAW investigation without giving the claimants the opportunity to address the issues informally and why we think that was a detriment but not on the ground that they made protected disclosures.

420. We do not think the DAW investigation was in breach of [NAME_58]. The claimants did not establish that it was. The claimants’ submissions on this allegation took over 5 pages starting on page 32 of their written submissions but they did not address the point about a breach of [NAME_58] in much detail.

421. We do not think the investigation or the report were flawed and unreasonable. It was a reasonable attempt to look into the claimants’ treatment of [NAME_54].

422. We do not think there was any further detriment to the claimants other than the initial decision to proceed on a formal rather than informal basis. The investigation gave the claimants the opportunity to respond to the complaints made by [NAME_54]. The investigation did not result in a disciplinary hearing being arranged even though that was [NAME_139]’ recommendation. Instead the next step by [NAME_91] was to commission the [NAME_58] investigation and she appointed an external body to do that.

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423. The conduct of the investigation and the contents of the investigation report were not influenced to any extent by the claimants’ disclosures. The DAW investigation was not conducted by [NAME_91]. [NAME_91] did not exert any kind of undue influence as to how [NAME_139] went about his investigation or as to the contents of his report. [NAME_139] was an independent and unmanipulated investigator.

424. We should mention at this juncture that an attempt was made on behalf of the claimants during this hearing to make heavy weather of the fact that there was at least one (and possibly two) draft versions of [NAME_139]’ report before the final version. The first draft which was available and which was in the bundle took a more lenient view of the claimants’ conduct and did not recommend a disciplinary. To that extent the claimants established that [NAME_139] changed his mind. But they did not establish that there was anything untoward about that. Decision makers often change their minds before finalising their decisions. Often it can be a good sign because it demonstrates that the decision maker has an open mind. There was no evidence that [NAME_91] or anybody else improperly influenced [NAME_139] to change his mind and this suggestion was fanciful. There were question marks in the first draft of [NAME_139]’ report which indicated that the conclusions he had in his mind at that stage were provisional or tentative. The claimants criticised the respondents for not having called [NAME_139] to deal with this issue but it was not a matter which had been expressly relied upon in the list of issues and so we did not feel that criticism was justified.

For these reasons we consider that the point about the draft(s) of [NAME_139]’ report did not take the claimants’ [NAME_1] any further forward.

Subjecting the Claimants to a “service quality and safety” meeting with [NAME_59] on 28.07.20 (both Claimants) the focus of which was not to elicit the accuracy of the disclosures made by the Claimants and others and producing a flawed investigation report

425. The claimants both met with [NAME_59] on 28 July 2020. They each raised concerns about staffing issues which they considered caused the service to be unsafe for patients. We have found, and this was accepted by the respondents, that in doing so the claimants made protected disclosures.

426. The background to this meeting taking place was that following the freedom to speak up complaint [NAME_91] had asked [NAME_59] to look into it. [NAME_59]’s approach – which he decided upon himself – was to have a series of meetings asking people within [NAME_92] if they had any concerns about the department. He then reported back what people had said. [NAME_59]’s focus in the meeting with the claimants and in his investigation generally was to elicit any concerns about the [NAME_92] department.

427. We don’t see any detriment to the claimants in this meeting, this focus or this process. They had the opportunity to air their concerns. Their concerns were fed back along with other people’s concerns. The claimants were not restricted in talking about their disclosures and their concerns. It was a broad brush approach but not detrimental to the claimants. Among the themes which [NAME_59] reported back on was that people had raised concerns about

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consultant behaviour but that was simply as a result of the fact that people had raised concerns about consultant behaviour. [NAME_59] could not be expected to ignore that and it would have been inappropriate for him to do so. The report was then referred to in the [NAME_58] process. We would agree with [NAME_91]’s evidence to the effect that it was right and fair for that to happen as the report was relevant not only to the disciplinary allegations but also to matters of potential mitigation for the claimants.

428. We do not think the investigation report was flawed. The process had its limitations but it was an effective way of identifying what concerns there were. [NAME_59] then set out his own analysis of the concerns in his report. We do not see any detriment to the claimants in the way [NAME_59] reported. It was a fair and accurate report.

429. [NAME_59] was not inappropriately influenced by [NAME_91] or anyone else as to how he went about his investigation or how he reported back. He was an independent and unmanipulated investigator. The process that he adopted was not done on the ground that the claimants had made protected disclosures – it was because [NAME_59] considered that was the best way to elicit information about any concerns in the department.

Suspending the Claimants without providing them with sight of the DAW report

430. The claimants were suspended (excluded) on 6 August 2020, before they had been given an opportunity to see the DAW report. But:

430.1 The claimants saw the report shortly after suspension when it was sent to them on 26 August 2020. They then had the opportunity to respond to it during the [NAME_58] investigation which took place during their suspension.

430.2 The [NAME_58] policy does not provide for a right to see the evidence on which a decision to exclude is based. In short, this was why the claimants were suspended without showing them the DAW report. It was not because they made protected disclosures.

430.3 There was, in our view, sufficient evidence to justify the exclusion of the claimants and it was appropriate to disclose that and allow them to challenge it through the investigation process which took place during suspension. This was what happened in relation to the DAW report, along with other evidence relied upon.

431. In these circumstances we do not consider that the claimants were subject to detriment. In any event the decision to suspend was not on the ground that the claimants made protected disclosures. We accepted [NAME_91]’s evidence that she was influenced by the DAW report, [NAME_59]’s report and the complaints that had been made by [NAME_140] and [NAME_53]. She was not influenced by any disclosures by the claimants.

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Subjecting the Claimant to a flawed and unreasonable disciplinary investigation under the [NAME_58] and producing an investigation report which was flawed. This includes: the appointment of the Second Respondent as [NAME_1] Manager;

432. The first respondent did appoint the second respondent as [NAME_1] manager.

433. As the claimants are consultants the first respondent’s policy required [NAME_91], as Medical Director, to be the [NAME_1] manager. The claimants did not object to that at the time and they would have objected if they really considered her appointment to be a detriment. It was not a detriment to the claimants and it was not done on the ground that they had made protected disclosures – it was done because that is what the policy stipulates.

434. [NAME_58] the role of the [NAME_1] Manager must be fulfilled by the Medical Director when the person being investigated is a consultant: MN v NHS Foundation Trust L [2025] EWHC 2023 (KB), per Sheldon J [93-104]. We therefore do not consider that the appointment of [NAME_91] indicated any flaw or unreasonableness.

taking what witnesses had to say at face value, not asking the most basic questions, not following up/probing sufficiently and not collating relevant documentary evidence;

435. We do not consider that this is a fair or accurate criticism of what was in our view a thorough and detailed investigation. This allegation therefore fails on the facts.

witness selection and interview not impartial;

436. We consider there was no partiality in relation to witness selection and interview, or at all. The approach to witness selection and interview was fair and reasonable. This allegation therefore fails on the facts.

437. A particular point of complaint was made on behalf of the claimants before us that they were asked to explain the relevance of their proposed witnesses before they were interviewed. We saw no unfairness in that and it did not indicate partiality. It was necessary for the investigators to understand witnesses’ relevance before they made a decision on whether they should be interviewed and the claimants’ explanation of their relevance would also help with formulating the right questions to ask them.

failing to distinguish between the conduct of each Claimant and the other consultants and unfairly attributing joint/collective responsibility;

438. We do not consider that this is a fair or accurate criticism. This allegation therefore fails on the facts. The investigation could only record the evidence which it received. The evidence was to a large extent to the effect that the claimants had acted as part of a group, along with [NAME_101]. [NAME_167] in particular was alive to the risk that this may create unfairness in that it made it

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difficult to identify specific allegations against each claimant individually. In our view the investigation and disciplinary process took a reasonable and fair approach to this potential issue and analysed the evidence in order to see if joint/collective responsibility could fairly be attributed to each claimant or if more specific allegations could be formulated against them as individuals.

unreasonable delay in the conduct of the investigation.

439. We consider that this is a fair criticism. It took around a year for the [NAME_58] investigation to be concluded. Even taking account of the facts that this was a complicated and detailed investigation and the issues associated with dealing with busy people in a hospital around the time of the covid pandemic this was an unreasonable delay. The claimants were excluded and had the matter hanging over them for all of that period. We think that in these circumstances the delay was a detriment.

440. However the delay was not done on the ground that the claimants made protected disclosures. [NAME_91] did not cause the delay. It was a procedural flaw and no more than that.

441. We should also note that we did not identify any specific prejudice to the claimants caused by the delay, other than a sort of general prejudice caused by the fact that the process took so long and it was hanging over them. Crucially, the delay did not impact on the claimants’ ability to respond to the [NAME_1] against them. The claimants had a full and fair opportunity to respond to the [NAME_1] against them. In our judgement, the delay was not so lengthy that it rendered the process overall unfair.

the acts/omission set out at items 7 and 9 of this Schedule

442. Since the claimants rely on items 7 and 9 as part of this allegation we will take those out of order and deal with them now so that we can consider the totality of this allegation before reaching our conclusion.

Item 7 - Failing to inform the Claimants that further allegations had been made about them in the course of the investigation and failing to provide particulars of those allegations to the Claimants until 26 August 2020.

443. After they were suspended on 6 August 2020 the claimants were sent a terms of reference for the investigation on 26 August 2020. The terms of reference identified the three broad allegations that the investigation would consider. The investigation then proceeded. On 11 November 2021 [NAME_91] wrote to [NAME_177] to provide him with the specific allegations that she had formulated which should be sent to the claimants by [NAME_177] as part of the disciplinary procedure. [NAME_177] then wrote to the claimants setting out the particulars of the allegations on 17 November 2021, more than 15 months after they had been suspended.

444. Reading the claimants’ submissions on this allegation at page 43 to 50 of their written submissions we do not think that they addressed this point in

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any detail. It seemed clear to us however that the date of 26 August 2020 was incorrect and in fact the particulars of the allegations had not been provided to the claimants until 17 November 2021.

445. Consistent with our finding that we think the investigation took too long and that was a detriment we think the delay in providing particulars of the allegations to the claimants was also too long and was a detriment to the claimants. The two matters were essentially linked; there was an unreasonable delay in providing the particulars of the allegations because of the unreasonable delay in completing the investigation. We think the delay in informing the claimants of the particulars was a detriment. Again the claimants had the matter hanging over them for a long time and it was not until the particulars were provided that they knew the detail of the allegations which they faced. We think the first respondent could and should have acted more promptly to inform the claimants (i.e. by completing the investigation sooner). However the delay was not done on the ground that the claimants made protected disclosures. It was part of the procedural flaw around delay but again no more than that. It was also not something that [NAME_91] was responsible for – she could only formulate the particulars once the investigation had concluded.

446. We do not think there was any separate detriment to the claimants in relation to failing to inform them that further allegations had been made in the course of the investigation. The claimants were advised by [NAME_91] that she would formulate the allegations which should proceed to the hearing on the basis of the evidence contained in the investigation report. That is what happened. The process worked as it should but it just took too long.

Item 9 - Unreasonably delaying the disciplinary investigation process to search for more evidence against the Claimants.

447. Although we have been critical of the delay in the investigation process we do not think this was done to search for more evidence against the claimants. This allegation therefore fails on the facts.

448. It is right that further investigation was asked for in April 2021 but we consider that this was consistent with [NAME_91]’s role to ensure she had sufficient information to make a decision. It was not done to search for more evidence against the claimants. There were obvious gaps in the investigation which had been undertaken to date – in particular because witnesses (notably [NAME_54]) who were central to the allegations had not been interviewed. It was right and fair that these gaps be filled by way of further investigation. This was not to ensure there was more evidence against the claimants but simply to ensure that the evidential picture was complete. [NAME_91] gave evidence in her witness statement at paragraph 140 that she had requested further evidence “to seek clarity”. We accepted this explanation. Clarification was in the interests of all parties. It was not a detriment

449. Although it was not specifically identified in the list of issues the claimants sought to rely on a submission (see in particular paragraph 120(c)(ix) of their written submissions) that [NAME_91] edited the reports of [NAME_156] in

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order to “stiffen” the findings against the claimants. We found that [NAME_91] had provided some comments for [NAME_156] to consider, but no more than that. The argument developed by the claimants was exaggerated. The comments provided by [NAME_91] did not reveal any flaw in the process or create any unfairness. There were only 4 comments which did not amount to any kind of manipulation of the process by [NAME_91]. [NAME_91] did not stiffen or attempt to stiffen the findings against the claimants. We find that the roles of [NAME_1] manager and investigator were kept distinct, as [NAME_1] law emphasises they should be. [NAME_156] and [NAME_167] were independent and unmanipulated investigators.

450. In summary we have found that the disciplinary investigation was overall fair and reasonable. We have identified specific flaws which relate to delay. Because we thought the delay was excessive and unreasonable we have found that this was detrimental. We found that the delay was not done on the grounds that the claimant made protected disclosures. The disclosures were not a material factor in the delay.

451. We should also mention at this stage a fundamental problem in the claimants’ complaints about the investigation. The claimants alleged that it was [NAME_91] who was responsible for the detriments, including this one. [NAME_91] was not responsible for the conduct of the investigation such as the selection and questioning of witnesses. That was down to [NAME_156] and then [NAME_167]. They are both external to the first respondent and are qualified employment lawyers. It would have been far fetched to suggest that they conducted the investigation as they did because the claimants had made protected disclosures, but in fact the claimants conceded that they were not alleging that. It seems to us therefore that the allegations about the investigation must fail for that reason also.

452. It is notable that the claimants have not made any complaint about the decision to commission the [NAME_58] investigation, which was a decision taken by [NAME_91]. There was contemporaneous evidence (bundle pages 916 – 919) which showed why [NAME_91] decided to commission the investigation. This showed that [NAME_91] carefully analysed the evidence before she came to her decision. We considered that [NAME_91] undertook a similar process when she came to decide to progress to a disciplinary. In our view at all times [NAME_91] was acting in response to the evidence which emerged rather than on the ground that the claimants had made protected disclosures.

On 4 March 2021, informing the Claimant that she was a ‘toxic influence’ and had concerns about staff safety because of the Claimant. Also telling the Claimant she would never recommend her for employment elsewhere and thereby prejudging the outcome of the disciplinary process.

453. This is an allegation made by the second claimant only. On 4 March 2021 the second claimant attended her 7th exclusion review meeting with [NAME_91]. The meeting was also attended by the first respondent’s acting Head of HR and the second claimant’s [NAME_112] representative.

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454. We considered it was highly unlikely that [NAME_91] would make such comments in front of both the Head of HR and the [NAME_112] representative. Following the meeting [NAME_91] sent the second claimant a letter outlining what had been discussed at the meeting and there was no mention of these comments. The second claimant has not provided us with any notes that she or her representative took of the meeting. She has not called her representative to back up what she now says happened at the meeting.

455. There is no evidence of any complaint being made about these comments at the time. Again bearing in mind that the second claimant was somebody who had shown little hesitation in complaining we think that had such comments been made they would have been complained about at the time. However, the allegation was not raised until around 9 months later.

456. The parties were discussing [NAME_156]’s report which referred to a toxic environment and it is most likely that the second claimant has misremembered or misinterpreted a comment about that finding. [NAME_91] gave an explanation to that effect in her witness statement at paragraph 138 and we accepted her evidence on this point.

457. For the above reasons we find that [NAME_91] did not say what is alleged. Therefore this allegation fails on the facts.

Turning a blind eye to inappropriate derogatory and discriminatory comments/descriptions used about the Claimants by nursing staff which negatively influenced opinions/perceptions of the Claimants at the hospital.

458. We agree with the central point in the claimants’ submissions on this issue. During the course of the [NAME_152] investigation the claimants were described by witnesses in inappropriate terms, in particular [NAME_192] said that the claimants and [NAME_101] were described as the “three witches” and other witnesses confirmed they had heard this too. The respondents say that it was not clear who had made the comment as opposed to saying it had been made. However there was no evidence of any investigation into this and it seems to us that if there had been an investigation they could have been able to get to the bottom of who had made the comment.

459. This was an obviously inappropriate comment and we therefore think the failure to investigate it was a detriment. We think the first respondent could and should have investigated who made this comment. However the failure was not done on the ground that the claimants made protected disclosures. It was an oversight because they were focused on what was a detailed, important and lengthy investigation into the claimants. Disclosures were not a material factor in the oversight – they were not any part of it.

460. We also agree with the respondents’ submission that it was very difficult to see how this could succeed as an allegation of detriment for having made protected disclosures when the claimants had not identified any individual who was responsible. We did not see how it could be said to be a failure that was attributable to [NAME_91].

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461. We disagree with the claimants’ contention that this comment, or any other used by the nursing staff, negatively influenced opinions/perceptions of the claimants at the hospital. Negative opinions existed about the claimants because of their own behaviour. The claimants were solely responsible for the negative perceptions others held about them.

462. We did not think that this failure indicated that there was a pre determined conclusion to dismiss the claimants. The difficult working relationships between nurses and consultants was part of the relevant context and taken into account as part of the investigation and disciplinary process.

463. The claimants’ written submissions on this issue (paragraphs 126 to 130) did not develop an argument that any discriminatory comments were made. This is probably because the discrimination [NAME_1] was withdrawn. We therefore think we can simply say that we did not see any evidence of any discriminatory comments which could have supported the [NAME_1] of race/religious discrimination that the claimants brought but then withdrew.

Subjecting the Claimants to an unfair disciplinary hearing under the [NAME_58]. This includes: compelling their cases to be heard at the same time, whilst simultaneously excluding another colleague from consideration once she had resigned;

464. There was a joint hearing. We considered this was a reasonable and fair decision. It was not a detriment. The allegations were obviously interrelated – the essential evidence from the investigation which had prompted the disciplinary was that the claimants and [NAME_101] had worked together to create a negative culture. The claimants effectively presented joint positions on many of the issues – there was no conflict between their positions and they chose to jointly instruct the same counsel. The claimants initially objected to a joint hearing but they did not pursue this by the time the hearing was relisted in March 2022. The first claimant rejected the suggestion of hearing the clinical allegation separately.

465. The reason why a joint hearing was held was not on the ground that the claimants made protected disclosures. It was because of the common and related issues in the cases which the claimants faced.

466. The second claimant developed an argument in the hearing before us that she had been prejudiced by the joint hearing because she had been tarred with the same brush and the issues against her were “low level”. We do not agree. We have spent some time explaining how at both the investigation and disciplinary stage careful consideration was given to deciding the extent to which joint and specific responsibility could be attributed to each claimant. The second claimant was not tarred with the same brush and in our view the allegations against her, as we have already summarised them above, could not aptly be described as “low level”. This was another example of the tendency of the second claimant in particular to minimise the seriousness of the [NAME_1] that she faced.

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467. We note that in relation to this issue the claimants submitted, at paragraph 134 of their written submissions, that it was relevant that by 2020 every signatory to the 16 August 2019 letter had either resigned or was excluded from work. We did not think that was particularly relevant. There was a high turnover of staff and the claimants did not establish that anybody’s departure or exclusion was linked to the disclosure. They did not call a single witness to back that suggestion up.

468. It is not right to say that the respondents excluded [NAME_101] from consideration once she resigned. [NAME_101] chose to resign and this meant she was not within the Trust’s disciplinary jurisdiction. The respondents appropriately reported the issues concerning [NAME_101] to her next Responsible Officer and it was up to them to decide what to do about them.

469. It is striking that the claimants complain about more favourable treatment of [NAME_101] when [NAME_101] also made protected disclosures, including the key one of the complaint to [NAME_132]. In our view this undermines rather than strengthens the claimants’ [NAME_1]. It demonstrates that the respondents were not simply seeking to punish those who had raised disclosures. It supports our view that the respondents were reacting to the evidence which emerged rather than being influenced by the disclosures.

in formulating the disciplinary charges against the Claimants ‘overloading the charge sheet’ by reframing/repeating allegations, pursuing allegations against the Claimants that were not supported by the evidence or had been withdrawn, attributing joint responsibility for allegations and raising allegations that did not form part of the original terms of reference for the investigation and were not put to them during the investigation interviews;

470. This was one of the allegations which necessitated particularly lengthy and careful deliberations on our part. On analysis it has several important elements to it. We will break our findings down.

471. We do not find that the respondents “overloaded the charge sheet” as that implies there was some deliberate attempt to exaggerate the [NAME_1] against the claimants. We do not think that is what happened.

472. We do not think that the allegations went beyond the terms of reference for the investigation. We think they were particulars of the broad charges that were identified in the terms of reference.

473. The particular allegations were properly based on evidence gathered during the investigation and they were fairly identified in advance of the hearing. We therefore find that the allegations were not unsupported by the evidence. In their submissions, at paragraph 135 to 139, the claimants did not identify any allegation that had been withdrawn. We do not find that the respondents relied on withdrawn allegations. We therefore find that allegations were not pursued that were not supported by the evidence or had been withdrawn. In fact, we

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found that the allegations were supported by a very substantial body of supporting evidence.

474. Joint responsibility was attributed for some of the allegations. That issue was reasonably and fairly considered as part of the investigation and disciplinary process. We found that where joint responsibility was attributed to both claimants that was a fair and reasonable finding based on the evidence – in which the claimants were repeatedly identified as having worked together with [NAME_101] to create the difficult working environment and culture. We therefore did not think that this issue created any unfairness and it was not a detriment. It was not done on the ground that the claimants had made protected disclosures – it was done because that was what the evidence gathered in the investigation indicated.

475. The claimants did identify a number of allegations that had not been put to them directly during the investigation interviews. We did not understand the respondents to dispute this. It was not done on the ground that the claimants made protected disclosures; it was procedural flaw and no more than that. The claimants identified the new allegations in advance of the disciplinary hearing. As we explained in our findings the claimants were then given the opportunity to respond to the new allegations in writing in advance of the disciplinary hearing and they could also ask questions or give evidence about them in the hearing itself. We considered that was a fair and reasonable approach. Therefore this issue did not create any unfairness and it was not a detriment.

476. We think that the lack of any unfairness/detriment in relation to new allegations is demonstrated by the fact that the only complaint made by the claimants at the hearing was that the e-mails that were the subject of allegation 2(e) had not been identified. The references to e-mails in witness evidence were identified but the allegation was not upheld against either claimant in the absence of the e-mails themselves. We agreed with the respondents that that is not unfair or detrimental – it is the process working as it should to judge the sufficiency of the evidence.

477. Analysing this allegation carefully in the context of the claimants’ submissions we did consider there was an element of repetition as the claimants alleged in their submissions. It seemed to us that the [NAME_1] against the claimants could and should have been refined. For example in relation to [NAME_54] there were 8 separate allegations, some of which related to the same event and the allegations were then given additional labels under charges two and three. Although we did not consider that to have been done deliberately to exaggerate the [NAME_1] against the claimants we did find it to be repetitive.

478. We think the repetition in the charge sheet was detrimental. Although we did not think it had been done deliberately it made the [NAME_1] against the claimants appear larger than it was and the allegations came across as cumbersome. We think the respondents could and should have refined the [NAME_1] and produced a narrower and shorter list of allegations which would have been easier to manage.

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479. However this was not done on the ground that the claimants made protected disclosures. It was a procedural flaw only. We think its most likely that in seeking to particularise the [NAME_1] against the claimant the respondents went too far and went into too much detail. Protected disclosures were not a material factor in the repetition in the allegations – the disclosures were not any part of the reason why this was done.

480. We found that other than the point about repetition there was no further detriment to the claimants in relation to this allegation. In any event, the respondents’ approach to all of the matters complained of was not done on the ground that the claimants made protected disclosures.

in the [NAME_1] of the First Claimant, resurrecting issues in formal disciplinary proceedings that had already been addressed informally/through other Trust processes;

481. This point is pursued by the first claimant only. We do not agree that it can be said that any issues against the first claimant were “resurrected”. This allegation therefore fails on the facts.

482. In the written closing submissions (paragraph 140 to 148) the first claimant identified two strands to this argument. The first strand concerned the clinical incident, which it is said was dealt with through a table top review and then a serious incident process. The second concerned [NAME_54] where it is said that her complaints had already been addressed through managerial oversight. We do think that any of the matters relied upon by the first claimant that took place before the [NAME_58] investigation can sensibly be said to have precluded disciplinary action. The disciplinary [NAME_1], including the allegations concerning [NAME_54] and the clinical allegation, was justified on the evidence available. Those were serious allegations and the first claimant could not reasonably have understood that they had been in any sense brought to an end given the ongoing concerns about her behaviour.

483. In any event the progression of the disciplinary [NAME_1] against the first claimant was not on the ground that she made protected disclosures. It was done because of the very substantial evidence which indicated that the first claimant was guilty of serious misconduct.

unreasonably and inequitably refusing the Claimants representation by a privately instructed [NAME_25]. The First Respondent’s resistance to this resulted in a six-month delay to the process which could have been avoided and was prejudicial to the Claimants;

484. The claimants were not refused representation by a privately instructed [NAME_25]. In fact they were represented by a privately instructed [NAME_25] ([NAME_16]) at the disciplinary hearing. This allegation must fail for that reason.

485. As to delay in confirming that the claimants could be represented by a [NAME_25] we agree with the respondents that the claimants did not have the right to private legal representation under the terms of the Trust’s [NAME_58] policy and therefore the initial request was rightly refused for that reason. Due to conflicting

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advice the claimants had been given however [NAME_177] made an exception and allowed the claimants to be represented by a [NAME_25]. This was obviously fair and evidence of the claimants being treated favourably. The confusion over whether the claimants would be allowed a privately instructed [NAME_25] did not result in a six month delay and we did not find that the claimants were prejudiced as a result of the delay/confusion.

486. Overall the tribunal did not see any detriment in relation to this allegation and in any event the approach was not done on the ground that the claimants made protected disclosures. [NAME_177]’s initial resistance was because he was following the policy. [NAME_91] was not responsible for the initial resistance.

487. The extent of the right under [NAME_58] to legal representation is to representation by a lawyer employed or retained by a [NAME_73] organisation and that is the same right at all hearings, whether conduct, capability or health. There is no right to private legal representation: [NAME_215] v [COMPANY_224] per [NAME_84] LJ. We consider therefore that the Trust’s [NAME_58] policy is consistent with [NAME_58] on the right to representation and the approach initially taken in the claimants’ [NAME_1] by [NAME_177] did not indicate any unfairness or breach of [NAME_58].

refusing to adjourn the [NAME_1] when the Claimants’ [NAME_25] was unavailable thereby causing immense prejudice to the Claimants;

488. On 11 February 2022 the claimants requested that the afternoon of day 2 of the disciplinary hearing on 8 March 2022 be non sitting as their [NAME_25] was not available. This request was opposed by [NAME_91] and refused by [NAME_177].

489. We do not think there is any reasonable basis to criticise either [NAME_91] or [NAME_177] in relation to this issue and their positions were not unfair to the claimants. The hearing dates had been fixed since 8 December 2021 following extensive correspondence between the parties. The Trust paid the brief fee for the claimants’ counsel who had been instructed for the December hearing which would have enabled them to have a [NAME_11] choice of counsel for the March dates. The claimants did not say before 11 February that their [NAME_25] was unavailable for any part of the hearing. It was incumbent on the claimants to instruct a [NAME_25] who was available to represent them. There had already been one postponement of the hearing and any further delay was extremely undesirable. In view of the number of witnesses and the amount of evidence it was entirely right and reasonable for the respondents to consider that there was a risk of not concluding the hearing if an afternoon was lost. We note that in the end the hearing took the full 5 days so had the claimants’ request been accommodated then there would have been a risk of the disciplinary hearing going part heard.

490. [NAME_177] attempted to minimise the impact of the decision to proceed by shifting the lunch break on that day. This was obviously fair and helpful to the claimants. The claimants were still professionally legally represented by their solicitors in the relatively short period when their counsel was unavailable. Their

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solicitors were able to ask appropriate questions of the witnesses who appeared when their counsel was not available. This issue did not create any unfairness for the claimants.

491. We noted that the evidence overall did not support the contention that the panel was generally acting to the claimant’s detriment in relation to adjournments because when the claimants’ [NAME_25] was unexpectedly taken ill overnight the panel adjourned the last day of the hearing and it was rescheduled for when the claimants’ [NAME_25] could attend.

492. In these circumstances we did not feel there was any detriment to the claimants in relation to this issue. They were not caused “immense prejudice” as alleged. In any event the respondents’ approach was not on the ground that the claimants had made protected disclosures. [NAME_177] (and [NAME_91]’s) approach was informed simply and solely by the fact that they wanted to ensure the [NAME_1] was heard in the time available.

refusing the Claimants access to documents (including excessive redaction of the disciplinary hearing bundle).

493. We did not find that the claimants were refused access to documents. A number of documents were requested in advance of the hearing. These requests were appropriately responded to. A number of documents were provided. The respondents also made the point, in our view correctly and fairly, that a number of documents requested were ones which the claimants themselves could provide as they were party to them (such as emails). The claimants had been given the opportunity during the process to visit the first respondent and access email or request other documents on two separate occasions. As we have mentioned the only request that was pursued as outstanding at the hearing was the issue of the emails that were the subject of allegation 2(e) and that issue was dealt with fairly and in the claimants’ favour. We did not think there was any issue in relation to documents that created unfairness.

494. The claimants’ submissions argued that there was a disclosure failure which was so serious that it indicated that the respondents had failed to conduct a reasonable investigation and that it was predetermined that they be dismissed. We do not think the claimants have come close to substantiating those arguments. The respondents engaged appropriately and fairly with the claimants’ requests for documents, there was a huge amount of evidence available for the disciplinary hearing some of which supported the claimants and the claimants did not demonstrate that there was any disclosure failure which restricted their ability to present their defences.

495. We don’t think much was said about the redaction of the bundle during the hearing before us but in their closing submissions, in particular paragraphs 162 to 164, the claimants said that their complaint was about references to [NAME_110] and [NAME_101] being redacted. The claimants said that these redactions prevented them from demonstrating that conduct attributed solely to

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them was in fact shared, systemic, or consistent with how other consultants acted in similar circumstances.

496. We were of the firm view that the claimants had not been prevented from making the point about systemic behaviour and other consultants having acted in a similar manner. In fact they had argued that point in some detail. It was not right to say that the disciplinary panel had been presented with a “partial and distorted evidential picture”, as alleged in the claimants’ written submissions at paragraph 163. The evidential picture presented was full and accurate and the panel made a reasonable and fair interpretation of it based on all the available evidence.

497. The fundamental point here is that the claimants were able to and did put forward the [NAME_73] which they wanted to. There was nothing in relation to disclosure or redaction which in any way prevented or impeded them from doing so. We see nothing in relation to disclosure or redaction which created unfairness.

498. In these circumstances we did not feel there was any detriment to the claimants in relation to this issue. In any event the respondents’ approach was not on the ground that the claimants had made protected disclosures. The disclosures were not a material factor in the respondents’ approach – the disclosures were not any part of the reason for the respondents’ approach.

499. Stepping back and reviewing our findings as whole we have identified some limited flaws, in particular delay and repetition of allegations, which we have found were detriments but not on the ground of protected disclosures. We have not identified any breach of [NAME_58]. We have not upheld the vast majority of the claimants’ allegations as to unfairness and we are very far from finding that the disciplinary process overall was unfair.

Inexplicably deleting the First Claimant’s emails from 2020 from the [COMPANY_229]. This complaint was pursued by the first claimant only. We agree with the respondents that this complaint must fail because the first claimant accepted in cross-examination that her e-mails were not deleted by the Trust because she had made protected disclosures. The first claimant was plainly right to make that concession. We do not find as the first claimant invited us to at paragraph 165 of the written submissions that the deletion of her emails amounted to a detriment materially caused by her protected disclosures. The first claimant did not establish that her emails were deliberately deleted rather than lost and in any event disclosures were not a material factor in any deletion/loss of the first claimant’s emails.

Excluding the Claimants from work and maintaining that exclusion unreasonably and in breach of the First Respondent’s own exclusion policy, from 6 August 2020 until the Claimants’ dismissal.

501. The claimants were excluded from work from 6 August 2020 until their dismissals. We find that:

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a. The exclusion decision was made because of the serious nature of the concerns, the risk to the investigation process of the claimants’ presence at work and the need to protect the interests of patients and staff. b. The decision was in accordance with the Trust’s [NAME_58].

502. The continuation of the exclusion was regularly and reasonably reviewed in accordance with policy. [NAME_91] obtained interim reports to inform her review decisions. The exclusions were reasonably maintained based on a proper review analysis.

503. It was only in December 2021 that the exclusions were challenged on behalf of the claimants and only then because the investigation had concluded. We agree with the respondents that this strongly suggests that the claimants and the [NAME_112] knew at the time that the ongoing exclusions could not sensibly be challenged.

504. In those circumstances we do not accept that the claimants’ exclusions or the maintenance of their exclusions was done unreasonably or in breach of the first respondent’s exclusion policy. In any event the respondents’ approach to exclusion was not done on the ground that the claimants had made protected disclosures. We refer to our findings above as to why the exclusion decision was made and maintained.

505. In considering our approach to the exclusion of the claimants we have read and considered the authority of Crawford v Suffolk Mental Health Partnership NHS Trust (2012) EWCA Civ 138 which was relied upon by the claimants. This [NAME_1] emphasises the need to ensure that an exclusion/suspension is fully justified as it is likely to cause lingering damage. We found that the exclusion of the claimants was fully justified and we considered that the respondents took a reasonable approach to maintaining the exclusion in the knowledge of the impact that it was likely to have on the claimants; this was demonstrated in particular by the review process.

Issuing the First Claimant with a final written warning on 1 June 2022.

506. This allegation is pursued by the first claimant only. The first claimant was issued with a final written warning on 1 June 2022. This was a detriment.

507. The reason why a final warning was issued was because the panel reasonably and fairly on the evidence concluded that [NAME_178]’s conduct had fallen seriously below standard. This conclusion was supported by the opinion of the expert witnesses and even the GMC’s own clinical expert. In reaching this conclusion the panel were not influenced to any extent by the fact that the first claimant had made protected disclosures. The disclosures were not a material factor in the decision to issue a final warning.

508. Accordingly the detriment was not done on the ground that the first claimant had made protected disclosures. That had nothing to do with the

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decision. It was made on the basis of the evidence that the panel received as to the clinical allegation.

509. We note that the panel’s decision to impose a warning took account of the first claimant’s insight and reflection into the clinical incident. This influenced them to impose a sanction short of dismissal. That option was not realistically open to the panel in relation to the conduct allegations because both claimants’ insight and reflection into those matters was limited to non existent.

On 4 July 2022, referring the Claimants to the GMC.

510. The claimants were both referred to the GMC following the disciplinary decisions. That was a detriment. It was not done on the ground that the claimants had made protected disclosures. We accept that in making the referrals [NAME_91] acted in accordance with the advice she was given by the GMC’s Employment Liaison Advisor. Referral to the GMC was the consequence of the disciplinary decisions. Those were the reasons why [NAME_91] made the referrals. It had nothing to do with the fact that the claimants had made protected disclosures. The disclosures were not a material factor in the decision to refer the claimants to the GMC.

Overall findings on whether the claimants were subjected to detriment because they made protected disclosures

511. In their submissions on the detriments claim the claimants invited us not to compartmentalise each act relied upon, but instead assess the evidence in the round and consider the cumulative impact of the respondents’ conduct. The claimants submitted that the question we should consider is whether, taken together, the sequence of acts and omissions amounted to treatment that a reasonable worker would regard as detrimental, and whether the protected disclosures materially influenced that treatment. We agree to adopt that approach, and that is the approach we have taken. We therefore step back at this stage in light of our findings above and consider the cumulative impact of the treatment which we found took place.

512. We find that overall the treatment of the claimants was not detrimental. There were some missteps by the respondents and we have, where appropriate, upheld those as individual allegations of detriment. Overall though the claimants were treated reasonably and fairly and they were in effect authors of their own misfortune in that there was very significant and compelling evidence from their colleagues that they treated people badly and caused them to be upset.

513. We have found that the first claimant made protected disclosures on 16 different occasions and the second claimant made protected disclosures on 14 different occasions. We have taken into account the possible cumulative effect of the claimants raising a large number of disclosures when reaching our conclusions. We have assessed the point made on behalf of the claimants that the tribunal must consider whether the cumulative weight of protected

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disclosures has provoked the employer to lose patience with the employee and retaliate.

514. We have found however that there was no evidence that the claimants were viewed negatively because they raised a large number of disclosures.

515. This was a hospital in which raising concerns, especially about patient safety, was commonplace and indeed expected. We accepted [NAME_91]’s evidence to the effect that doctors are expected to raise concerns as a matter of professional obligation. We noted that a document was put to the claimants in cross examination that showed that 165 datix reports were made in [NAME_92] between September 2019 and August 2020. The first claimant did not claim responsibility over any of these whilst the second claimant thought that two were hers. Many of these datixes are potential whistleblowing disclosures. The extent to which others raised concerns and potential disclosures but were not subject to action in the same way as the claimants undermines the claimants’ [NAME_1] theory that they were targeted because they raised concerns/disclosures.

516. We have already mentioned in our findings above that we found that the respondents’ differential treatment of [NAME_101] undermined the claimants’ [NAME_1]. We should also mention that in our view the respondents’ differential treatment of [NAME_110] also undermined the claimants’ [NAME_1]. [NAME_110] was a signatory to the letter to [NAME_132] of 16 August 2019 which was one of the key disclosures relied upon by the claimants. As we recorded in our findings however the disciplinary [NAME_1] against [NAME_110] was discontinued. We felt this demonstrated that the respondents were deciding what to do based on the evidence obtained, rather than acting because of the protected disclosures. This underscores the lack of any causal connection between the events complained of by the claimants and their protected disclosures.

517. We acknowledge that the claimants’ concerns were not dealt with to their satisfaction but we think the respondents engaged with them and tried to resolve them. This is clear, for example, from the notes of the paediatric service meetings in which managers did their best to deal with the extensive concerns the claimants were raising. We should also note that a [NAME_92] oversight action plan was created in October 2018 and regular meetings took place to ensure that the action points were taken forward. The culmination of that process was that the Trust (via the actions of [NAME_91]) did the very thing that the claimants said they wanted to happen, namely a change to the model of care in [NAME_92] from a two-tier model to a three-tier model. This change happened after the claimants had been dismissed but there is evidence that the claimants were positive about the process that led up to this change being implemented. Overall we did not agree with the thrust of the claimants’ complaints about how the respondents responded to their disclosures and concerns which appeared to be that the respondents did nothing. In our view that was just not borne out by the evidence.

518. We accepted the point made by the respondents that the protection against detriment does not create a duty on the employer to respond to specific

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disclosures in a particular way, or at all. Nevertheless, where the claimants argued that defects in a particular process were because of the disclosures they made we carefully analysed that argument applying the principles as to causation and the burden of proof which we have already summarised. We found that any defects in the process were not on the ground that the claimants made protected disclosures.

519. Therefore, we did not think that the claimants’ dissatisfaction over how their concerns were dealt with progressed their [NAME_1] any further forward.

520. Finally, we should also mention that we agreed with the respondents that there were significant issues as to knowledge of the disclosures with which the claimants failed to grapple.

521. The majority of the protected disclosures were made in e-mails and at service meetings within the [NAME_92] department, which do not involve [NAME_91]. The claimants did not explore in evidence whether [NAME_91] knew about the specific protected disclosures which are the subject of their claims. It was incumbent upon them to do so. Moreover, the freedom to speak up complaint was not made by the second claimant (and therefore cannot found the basis of a claim by her) and [NAME_91] did not know that it was made by the first claimant at any relevant time - her evidence at the disciplinary hearing confirmed that.

522. For all of the above reasons we found that the claimants were not subjected to detriment because they made protected disclosures. None of the alleged detriments were done on the ground of any of the actual or alleged protected disclosures. The protected disclosures did not materially influence the treatment complained of by the claimants.

Automatic unfair dismissal

523. We have again taken into account the fact that the claimants made multiple disclosures and considered the effect of the disclosures as a whole. The claimants were not dismissed because they had made protected disclosures. The disclosures were not the reason or principal reason for dismissal. The disclosures were no part of the reason for dismissal.

524. We find that the evidence shows that the panel acted independently in making decisions, a number of which benefited the claimants (such as allowing privately instructed lawyers, postponing the hearing in December 2021 and paying the brief fee for the claimants’ [NAME_25] instructed in December 2021).

525. None of the disciplinary panel had ever met the claimants before. The panel did not have a pre determined desire to dismiss the claimants based on them having made protected disclosures.

526. We find that the panel decided to dismiss the claimants because they had a genuine and reasonable belief that the claimants had committed gross misconduct. This was not a false or invented reason.

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527. The panel’s belief was based on ample supporting evidence which the panel saw and heard over the 5 day hearing. We consider that the panel made its decision based on the evidence that it saw and heard rather than on a preconceived basis because the claimants had made protected disclosures. We think that conclusion is supported in particular by the following:

527.1 The panel did not uphold disciplinary allegations where they did not consider that they were substantiated by the evidence.

527.2 The panel issued [NAME_178] with a final written warning in respect of the clinical allegation essentially on the basis of crediting her with reflection and insight: see above.

528. A large number of people from different backgrounds gave evidence against the claimants at the disciplinary hearing. There is no basis for any suggestion that the witnesses were lying because the claimants had made protected disclosures. As the disciplinary panel found, most of the witnesses would not even have known about the claimants’ disclosures. The claimants have not established that the panels’ finding in that respect was wrong. The claimants were dismissed because the panel found that the evidence it received from the witnesses as to the claimants’ conduct was compelling.

529. In both of the dismissal claims we have carefully examined the reasoning process of the panel on the basis that the reasoning process of [NAME_177], as chair, properly evidences that of the panel. We found that [NAME_177] made his decision independently and in good faith and he was not manipulated to any extent by [NAME_91] or anybody else. These were not dismissals that were engineered by [NAME_91] or anybody else.

530. We noted that the conclusion of the DAW investigation was for there to be a disciplinary. [NAME_91] decided not to do that and instead commissioned a further investigation by [NAME_152], an independent organisation run by employment lawyers. We would agree with the submission made by the respondents that this is fundamentally inconsistent with the claimants’ [NAME_1]. If [NAME_91] was out to get the claimants because they had made disclosures she would have jumped at the chance to follow [NAME_139]’ recommendation rather than opt to commission a further, more detailed external investigation which could quite possibly have reached a different conclusion.

Ordinary unfair dismissal

531. The reason for the claimants’ dismissal was their conduct. The first respondent has proved this reason for dismissal. This was the reason which operated on the mind of [NAME_177]. [NAME_177] was independent and he was not manipulated by [NAME_91] or anybody else. The decision was his own and he based it on the evidence which he saw and heard.

532. The first respondent acted reasonably in all the circumstances, including the first respondent’s size and administrative resources, in treating that as a sufficient reason to dismiss the claimants.

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533. The first respondent genuinely believed the claimants had committed misconduct and there were reasonable grounds for that belief.

534. The claimants’ submissions on substantive unfairness were extremely long and detailed, running from page 94 to page 121 in the written submissions. The majority of the argument focused on submissions designed to show that the first respondent did not have reasonable grounds for the belief in the claimants’ misconduct. We do not accept that argument. We have already said on a few occasions that the reality of this [NAME_1] is that the claimants faced an extensive body of evidence from a variety of witnesses who spoke to their misconduct. The evidence provided the panel with reasonable grounds for their conclusions. There were some limitations to the evidence against the claimants in the sense that it often spoke of matters in general terms – identifying the claimants along with [NAME_101] as having created a toxic working culture. As we have already said we found the panel was aware of that issue and they engaged reasonably with it. There were reasonable grounds for the panel to make the findings which they did both in terms of collective responsibility and individual allegations.

535. At the time the belief was formed the first respondent had carried out a reasonable investigation.

536. Considering the investigation reports provided by [NAME_152] as a whole we find that they were detailed and thorough. They were appropriately balanced; evidence was identified which tended to support the allegations but equally evidence was identified which could potentially undermine them. The authors of the reports also included evidence which could have gone towards mitigation such as referencing the pressure and stress which the claimants were under. The decision to undertake more investigation following the first reports was in our judgement a reasonable one. In particular because the failure to interview witnesses such as [NAME_54] created a gap in the evidence that was filled by the second reports.

537. Importantly and as we have explained by the time of the second report the investigator was aware of the potential problem about a lack of specific evidence against each of the claimants rather than evidence which tended to group the three consultants together. We find that she addressed this in a reasonable way. She explained how the grouping of the consultants together did not necessarily mean the evidence against them was invalid. She clearly particularised the evidence against each of the claimants as far as was possible and also identified evidence which could support a finding of collective responsibility. It was an overall fair and reasonable approach.

538. We find that the first respondent acted in a procedurally fair manner.

539. We reflected carefully on the findings we have made already, especially where we made findings of detriment in relation to the disciplinary/investigation process. At this juncture we should not treat those matters in isolation but instead look at whether the process overall was fair. The context is that this was

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a [NAME_1] of serious misconduct by senior leaders which had a detrimental impact on their junior colleagues, for example [NAME_54]. It was on any view a serious [NAME_1]. On the other hand the procedural imperfections which we identified were of a relatively minor nature and we did not consider that they had seriously impacted the fairness of the process overall. We were satisfied that it was an overall fair procedure.

540. In making this assessment we took full account of the claimants’ submissions as to procedural unfairness (which were lengthy and detailed – see pages 78 to 93 of the written submissions). We also found it helpful to remind ourselves of the fundamental requirements as to procedural fairness in the context of a dismissal for misconduct. It was clear that the claimants knew the nature of the accusations against them, they had a full and fair opportunity to state their [NAME_1] in response and the decision maker acted in good faith.

541. We noted that the disciplinary hearing in this [NAME_1] was unusually detailed and thorough. Both sides were represented by experienced barristers and there was a real deep dive into the evidence. The claimants and their [NAME_25] knew all the allegations against them inside out and their [NAME_1] in response was presented in considerable detail.

542. There was also a full right of appeal. The claimants had the opportunity to present their appeals to a panel which acted in good faith in determining them. We were not satisfied that there was any cause to criticise the appeal panel. It was the claimants’ request to have the appeals dealt with on the papers. If the claimants wished to make other points which they say the panel should have considered, it was incumbent on them to attend a hearing to make them. The appeal was reasonable and part of the overall fair process.

543. We should also mention that we have already dealt with a number of the procedural complaints advanced by the claimants as allegations of detriment and we found that the matters complained of either did not happen as alleged or did not create any unfairness. We applied those findings as well when reaching our overall assessment.

544. It was argued on behalf of the second claimant at the hearing before us that the [NAME_1] against her should have been treated as one of capability rather than conduct. We agree with the respondents that this appears to have been a late addition to the second claimant’s [NAME_1]. Nevertheless we decided to consider the argument in full. We found that the classification of the [NAME_1] against the second claimant as one of conduct was reasonable. She faced allegations about her behaviour. It was not suggested by [NAME_170] that she had struggled to meet standards of care or management because of lack of knowledge, ability or consistently poor performance. We find that the [NAME_1] against both the claimants was categorised correctly.

545. Also during the hearing before us criticism was made of the fact that the panel deliberated jointly to make a decision. In our judgement this was not a matter which led to any unfairness. We also agreed with the respondents’ submission that it is also hard to square with the suggestion that the [NAME_1]

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should have been treated as one of capability in which there would also have been a panel of three, including an external doctor. That is exactly what was done in this [NAME_1].

546. We find that dismissal was within the range of reasonable responses.

547. We find that in deciding to dismiss the panel took into account to a reasonable extent the claimants’ arguments about context and in particular the system of work. As we have explained the evidence about the pressures created by the system of work were before the panel. It was acknowledged within the evidence that the systemic issues had made working life more difficult. We are satisfied that the panel took that into account but reached the conclusion, which was plainly and obviously reasonably open to it, that the systemic issues could not excuse the claimants’ poor behaviour. We think a reasonable level of attention had been given to this and other potential mitigation factors taking into account the important point that neither claimant had presented a [NAME_1] based on acceptance and mitigation. The claimants’ misconduct was clearly separable from their concerns about the system of working and the first respondent was reasonably entitled to treat it as separate.

548. We emphasise that in considering the reasonableness of the decision to dismiss we have been careful to consider the claimants’ cases separately. We have taken into account the arguments raised by both claimants but focused on particularly by the second claimant that there was a lack of specificity in the allegations and that collective responsibility was unfairly attributed. We have already found that the panel dealt in a reasonable way with the issues about lack of specific allegations and collective responsibility. We have also considered the further arguments developed by the second claimant that she had been tarred with the same brush and in reality the allegations against her were low level. We have found that the allegations against the second claimant were not low level and she had not been tarred with the same brush. The second claimant’s attempt to dissociate herself from the misconduct which she was part of was unconvincing.

549. As [NAME_197], an external clinician, observed in her evidence before us the reality of this [NAME_1] is that the disciplinary panel was presented with ‘very, very powerful evidence’ from a wide range of witnesses that was ‘really hard’ to hear concerning the examples of behaviour that the claimants had engaged in. Faced with that ‘robust and credible’ evidence from a variety of sources, the claimants failed to demonstrate any real insight or remorse for their actions. The first respondent was plainly reasonably entitled in those circumstances to dismiss.

Wrongful dismissal

550. We could not see that the claimants had said much about wrongful dismissal in their submissions. We took into account all the evidence and submissions as whole.

[NAME_1] No: 1308492/22 & 1308407/22

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551. We find that the claimants were guilty of gross misconduct, such that the first respondent was entitled to summarily dismiss them.

552. The evidence supports that the claimants had done those acts which were upheld at the disciplinary hearing and those in their totality amounted to gross misconduct.

Time limits: s.47B ERA 1996 claim only

553. Except for the decision to apply a final written warning and the referral to the GMC, all the detriment allegations are out of time as they pre-date 9 May 2022 (in the [NAME_1] of the first claimant) and 13 May 2022 (in the [NAME_1] of the second claimant).

554. We have not found that there was a series of similar acts or failures.

555. There is no evidence on which the claimants rely to show that it was not reasonably practicable for them to present their claims in time. It was reasonably practicable for the claimants to present their claims in time, particularly since they are intelligent people and they have been represented by their union or their lawyers throughout.

556. Therefore in addition to failing on their merits all of the detriment allegations except for the decision to apply a final written warning and the referral to the GMC fail for the additional reason that they are out of time and we do not have jurisdiction over them.

Result

557. For all the above reasons the extant claims fail and they are dismissed.

Employment Judge Meichen Approved on 28.04.2026