Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

          CASE REF:     727/12

 

 

 

 

CLAIMANT:                      Dr Malgorzata Stadnik-Borowiec

 

 

RESPONDENTS:              1.       Southern Health and Social Care Trust

                                        2.       Health and Social Care Board

                                       

 

 

DECISION

 

The unanimous decision of the tribunal is that the claimant’s claims are dismissed.

 

 

Constitution of Tribunal:

 

Employment Judge:         Employment Judge Murray

 

Members:                        Mrs S Doran

                                        Mr P McKenna

 

Appearances:

 

The claimant represented herself but all questioning and submissions were put forward by her friend Dr De Havilland.

 

The respondents were represented by Mr M Potter, Barrister-at-Law, instructed by the Directorate of Legal Services.

 

Interpreters: Mr Skibinski and Ms Jeziorska.

 

 

THE CLAIMS

 

1.       The claimant alleged discrimination on grounds of race and sex, breach of contract, unlawful deduction from wages, unfair dismissal, detriment and dismissal on grounds of having made a protected disclosure.

 

SOURCES OF EVIDENCE

 

2.       The tribunal heard evidence from the claimant on her own behalf. 

 

3.       On behalf of the Trust the following witnesses gave evidence:

 

-                 Dr R Carlile, Clinical Lead in the Out Of Hours (OOH) Service;

-                 Ms J Johnston, Assistant Director of HR who chaired the grievance hearing;

-                 Dr P Beckett who chaired the disciplinary hearing in relation to the first dismissal;

-                 Mr K Donaghy, Director of HR who chaired the disciplinary appeal;

-                 Ms M Mallon, Assistant Director of HR who chaired the meeting relating to the GMC outcome and was a decision maker in relation to the second dismissal;

-                 Ms V Toal, Head of Employee Engagement and Relations who chaired the appeal against dismissal;

-                 Ms S Hynds of HR who made the decision to stop the claimant’s pay. 

 

4.       On behalf of the Board the following witnesses gave evidence:

 

-             Dr R Thompson, Senior Medical Advisor in Primary Care;

-             Dr K Booth who was responsible for managing serious concerns about GPs         and chaired LAIP.

 

5.       The tribunal took account of the witness statements, the oral evidence of the witnesses and all documentation to which it was referred.

 

GLOSSARY OF TERMS

 

6.       The parties agreed the following descriptions of terms referred to in this decision.

 

6.1     GP Out of Hours Service

 

This is an urgent care service for conditions that cannot wait until a person’s GP surgery is next opened.  There is one provider in each Trust area.  In the Southern Health and Social Care Trust the Out Of Hours (OOH) service is provided from five sites which are open overnight.  It was common case that there were no GP training practices within the Trust’s area or control.

 

6.2     GP Register

 

This is a General Medical Council (GMC) register of GPs.  All doctors working in general practice in the Health Service in the UK including locum doctors are required to be on that register.

 

6.3     LAIP – Local Advisory and Investigative Panel

 

          This was a panel chaired by Dr Booth and also comprised three senior GPs (from the Royal College of GPs, NIMTDA and the British Medical Association) together with three senior lay members (from the Patient and Client Council and others).

 

 

6.4     MHPS

 

This is a framework document entitled Maintaining High Professional Standards which was issued by the Department of Health in 2005 and sets out the process for the initial handling of concerns about doctors and dentists in the NHS.  The framework covers action to be taken when a concern first arises about a doctor and any subsequent action when deciding whether there needs to be any restriction or suspension placed on a doctor’s practice.  There are six sections as follows: action when a concern first arises; restriction of practice and exclusion from work; conduct hearings and disciplinary procedures; procedures for dealing with issues of clinical performance; handling concerns about a practitioner’s health and formal procedures and general principles.

 

It was agreed by the parties that the MHPS document formed part of the claimant’s contract and it was further agreed that it applied in conjunction with the Trust’s disciplinary procedure.

 

6.5     NCAS – National Clinical Assessment Service

 

          This is a UK-wide service established in 2001.  NCAS works to resolve concerns about the practice of doctors by providing Case Management Services to health care organisations and to individual practitioners.  Their aim is to work with all parties to clarify the concerns, understand what is leading to them and make recommendations to help practitioners return to safe practice.  They were established as an advisory body.  The employer still retains full responsibility for managing all concerns however they can provide independent external advice to ensure clinical managers deal with concerns appropriately.

 

6.6     NIMDTA – Northern Ireland Medical and Dental Training Agency

 

This body is responsible for funding, managing and supporting post-graduate medical and dental education within Northern Ireland.  

 

THE ISSUES

 

7.       The issues for the tribunal at hearing were as follows:

 

(1)           Was the claimant discriminated against or harassed on grounds of sex or race?       

 

(2)           Are any claims of discrimination out of time and if so should time be extended?

 

(3)       Was the claimant victimised on ground of sex or race?

 

(4)           Can the claimant recover damages for breach of contract?

 

(5)           Did the claimant suffer unlawful deduction from wages?

 

 

(6)           Did the claimant suffer detriment on grounds of having made a protected disclosure?

 

(7)           Was the claimant unfairly dismissed in 2009, and should time be extended for such a claim?

 

          (8)      Was the claimant unfairly dismissed in 2012?

 

THE LAW

 

8.       Discrimination and harassment on grounds of race and sex are outlawed by the Race Relations (Northern Ireland) Order 1997 as amended (RRO) and the Sex Discrimination (Northern Ireland) Order 1976 as amended (SDO) respectively.  Racial grounds is defined at Article 5 as meaning colour, race, nationality or ethnic or national origins.

 

9.       Direct discrimination is defined at Article 3(1)(a) of RRO and Article 3 of SDO.  It is unlawful for an employer to discriminate against an employee by dismissing him or subjecting him to any other detriment. (Article 6 RRO and Article 8 SDO).

 

10.           It is for the claimant to prove facts from which the tribunal could conclude that an act of less favourable treatment on grounds of sex and/or race occurred.  If the claimant proves such primary facts the burden of proof shifts to the employer to prove that any detrimental acts were in no sense whatsoever related to her sex or race.

 

11.           Provisions on unlawful victimisation are outlined in similar terms in both sets of legislation.  In this case it is for the claimant to prove facts from which the tribunal could conclude that she was treated less favourably than a hypothetical comparator who raised a grievance alleging sex and race discrimination or who lodged a claim to the tribunal alleging sex and race discrimination.

 

12.     Harassment is defined in similar terms in both sets of legislation (Article 4A RRO and Article 6A SDO).  The burden is on the claimant to prove facts from which the tribunal could conclude that she suffered such unwanted conduct on grounds of her race or sex, which had the required purpose or effect.  If the claimant proves such facts the burden shifts to the respondent to prove that the treatment was not related to race or sex or that it did not have the alleged purpose or effect.

 

13.           It is not enough for a claimant to show a difference in status and a difference in treatment but she must show something more in order that the tribunal could conclude that any detrimental acts were because of her race or sex.  This is the import of the Madarassy decision and the following appellate decisions illustrate how tribunals should approach the shifting of the burden of proof in these cases. 

 

14.           The Court of Appeal in the case of Nelson  v  Newry & Mourne District Council [2009] NICA -3 April 2009 dealt with the proper approach for a Tribunal to take when assessing whether discrimination has occurred and in applying the provisions relating to the shifting of the burden of proof.  The court stated:

 

“22     The Court of Appeal in Igen  v  Wong [2005] 3 ALL ER 812 considered the equivalent English provision and pointed to the need for a tribunal to go through a two-stage decision-making process.  The first stage requires the complainant to prove facts from which the tribunal could conclude in the absence of an adequate explanation that the respondent had committed the unlawful act of discrimination.  Once the tribunal has so concluded, the respondent has to prove that he did not commit the unlawful act of discrimination.  In an annex to its judgment, the Court of Appeal modified the guidance in Barton  v  Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 333.  It stated that in considering what inferences and conclusions can be drawn from the primary facts the tribunal must assume that there is no adequate explanation for those facts.  Where the claimant proves facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex then the burden of proof moves to the respondent.  To discharge that onus, the respondent must prove on the balance of probabilities that the treatment was in no sense whatever on the grounds of sex.  Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to be adduced to discharge the burden of proof.  In McDonagh  v  Royal Hotel Dungannon [2007] NICA 3 the Court of Appeal in Northern Ireland commended adherence to the Igen guidance.

 

 23     In the post-Igen decision in Madarassy  v  Nomura International PLC [2007] IRLR 247 the Court of Appeal provided further clarification of the Tribunal’s task in deciding whether the tribunal could properly conclude from the evidence that in the absence of an adequate explanation that the respondent had committed unlawful discrimination.  While the Court of Appeal stated that it was simply applying the Igen approach, the Madarassy decision is in fact an important gloss on Igen.  The court stated:-

 

‘The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment.  Those bare facts only indicate a possibility of discrimination.  They are not, without more, sufficient matter from which a tribunal could conclude that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination; ‘could conclude’ in Section 63A(2) must mean that ‘a reasonable tribunal could properly conclude’ from all the evidence before it.  This would include evidence adduced by the claimant in support of the allegations of sex discrimination, such as evidence of a difference in status, difference in treatment and the reason for the differential treatment.  It would also include evidence adduced by the respondent in contesting the complaint.  Subject only to the statutory ‘absence of an adequate explanation’ at this stage, the tribunal needs to consider all the evidence relevant to the discrimination complaint such as evidence as to whether the act complained of occurred at all, evidence as to the actual comparators relied on by the claimant to prove less favourable treatment, evidence as to whether the comparisons being made by the complainant were of like with like as required by Section 5(3) and available evidence of all the reasons for the differential treatment.’

 

That decision makes clear that the words ‘could conclude’ is not be read as equivalent to ‘might possibly conclude’.  The facts must lead to an inference of discrimination.  This approach bears out the wording of the Directive which refers to facts from which discrimination can be ‘presumed’. 

 

24      This approach makes clear that the complainant’s allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination.  The whole context of the surrounding evidence must be considered in deciding whether the tribunal could properly conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination.  In Curley  v  Chief Constable of the Police Service of Northern Ireland [2009] NICA 8, Coghlin LJ emphasised the need for a tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination.  The need for the tribunal to retain such a focus is particularly important when applying the provisions of Article 63A.  The tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination.”

 

15.     In S Deman  v  Commission for Equality and Human Rights & Others [2010] EWCA Civ 1279, the Court of Appeal referred to Madarassy and the statement in that decision that a difference in status and a difference in treatment ‘without more’ was not sufficient to shift the burden of proof. 

 

16.     In Laing  v  Manchester City Council [2006] IRLR 748, the EAT stated at Paragraphs 71 - 76:-

 

“(71)   There still seems to be much confusion created by the decision in Igen  v  Wong.  What must be borne in mind by a Tribunal faced with a race claim is that ultimately the issue is whether or not the employer has committed an act of race discrimination.  The shifting in the burden of proof simply recognises the fact that there are problems of proof facing an employee which it would be very difficult to overcome if the employee had at all stages to satisfy the Tribunal on the balance of probabilities that certain treatment had been by reason of race.

 

...

 

 (73)   No doubt in most cases it would be sensible for a Tribunal to formally analyse a case by reference to the two stages.  But it is not obligatory on them formally to go through each step in each case.  As I said in Network Road Infrastructure  v  Griffiths-Henry, it may be legitimate to infer he may have been discriminated against on grounds of race if he is equally qualified for a post which is given to a white person and there are only two candidates, but not necessarily legitimate to do so if there are many candidates and a substantial number of other white persons are also rejected.  But at what stage does the inference of possible discrimination become justifiable?  There is no single answer and Tribunals can waste much time and become embroiled in highly artificial distinctions if they always feel obliged to go through these two stages.

...

 

 (75)   The focus of the Tribunal’s analysis must at all times be the question whether they can properly and fairly infer race discrimination.  If they are satisfied that the reason given by an employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is an end of the matter.  It is not improper for a Tribunal to say, in effect, ‘there is a real question as to whether or not the burden has shifted, but we are satisfied here that even if it has, the employer has given a fully adequate explanation as to why he believed or he did and it has nothing to do with race’.

 

(76)   Whilst, as we have emphasised, it will usually be desirable for a tribunal to go through the two stages suggested in Igen, it is not necessarily an error of law to fail to do so.  There is no purpose in compelling tribunals in every case to go through each stage.”

 

Unfair Dismissal

 

17.     The right not to be unfairly dismissed is enshrined in Article 126 of the Employment Rights (Northern Ireland) Order 1996 (referred to as “ERO”).  At Article 130 of ERO it is stipulated that it is for the employer to show the reason for the dismissal and that the reason falls within one of the fair reasons outlined at Article 130(2).  If the tribunal finds that the employer has dismissed for a potentially fair reason, the tribunal must then go on to consider whether the dismissal was fair or unfair in accordance with Article 130(4).

 

18.    The three potentially fair reasons for dismissal relied upon in this case were:

         

          (1)      capability;

          (2)      some other substantial reason; and

          (3)      that the claimant could not continue to work in the position she held without contravention of a duty or restriction imposed by or under a statutory enactment (referred to below as “the statutory restriction point”).

 

Statutory disciplinary and dismissal procedures

 

19.           The statutory Disciplinary and Dismissal Procedures (SDP) are set out in the Employment (NI) Order 2003 (Dispute Resolution) Regulations 2004 and in the Employment (NI) Order 2003.  Essentially there are three steps in the minimum disciplinary and dismissal procedure.  Step one involves the employer writing to the employee setting out the grounds for the proposed action and inviting the employee to a disciplinary meeting to discuss the matter.  Step two involves holding a meeting and notifying the employee of the decision and the right of appeal.  Step three involves inviting the employee to an appeal meeting if the employee avails of the appeal process and notifying the employee of the appeal decision. 

 

Time Limits

 

20.     The time limit for presenting the discrimination claims is three months from the date the act complained of was done.  Where a claim is presented outside that time-limit a tribunal may consider it if, in all the circumstances of the case, it considers it just and equitable to do.

 

21.     Under ERO the claimant has the right not to be unfairly dismissed and provides at Article 145(2) that the claim must be presented:

 

                    “(a)       before the end of the period of three months beginning with the effective date of termination, or

 

                     (b)       within such further period as the tribunal considers reasonable in a case 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.”

 

Ongoing Acts

 

22.     The Hendricks v Metropolitan Police Commissioner [2003] IRLR 96 CA case establishes the principle that a series of acts can be linked together to establish whether there was:

 

                      “an ongoing situation or a continuing state of affairs in which the group discriminated against (be it defined by sex or race) and including the claimant was treated less favourably.”

 

23.     The claimant was held to be entitled to pursue her claim on the basis that the burden was on her to prove, either by direct evidence or inference, that the numerous alleged instances of discrimination were linked to one another and were evidence of a continuing discriminatory state of affairs covered by the concept of “an act extending over a period”.

 

Protected Disclosure         

 

24.     It is for the claimant to prove that any detriment was suffered by her on the ground of her having made a protected disclosure. (Article 70B ERO)

 

FINDINGS OF FACT AND CONCLUSIONS

 

25.     The claimant’s main focus for her allegations of discrimination was on Dr Carlile and Dr Booth.  We found the evidence of both of these witnesses to be measured, credible and convincing.  In contrast we found the evidence of the claimant at times to be vague on points which were not helpful to her case whereas she was extremely precise in her evidence on points which she felt were helpful to her case.  This damaged her credibility for us.

 

26.     It is important to note that this decision sets out our primary findings of fact and does not seek to set out all the evidence which we considered before finding relevant facts.

 

27.     The claimant is Polish and was employed as a GP in the out of hours (OOH) service for the Southern Health and Social Care Trust (the Trust).  During the time relevant to these proceedings the claimant also worked as a self-employed GP locum.

 

28.     The claimant worked for the Trust (or its predecessors) from 2006 until she was dismissed with effect from 23 January 2012.  The Trust was the claimant’s employer.  The three reasons relied upon in tribunal by the Trust were, in short, capability, some other substantial reason, and the statutory restriction point. 

 

29.     The responsibility of the Health and Social Care Board (the Board) was in relation to the maintenance of the “Performers List”.   A GP cannot practise in Northern Ireland unless he or she is on the Performers List. 

 

Incidents

 

30.     There were five incidents involving the claimant (set out below) which led the employer (and later the Board) to have serious misgivings about her ability to carry out her job.  Only one of them led to the misconduct charges against her in 2008 whilst others related to breaches of procedure or poor clinical judgement.  Whilst not all of the incidents led to misconduct, taken together they formed a picture for the Trust which led them to have concerns about her abilities generally in view of the possible implications for patient safety.  Given the claimant’s profession and the nature of the job we regard this as a wholly sensible approach for the employer to take.  We do not accept the thrust of the claimant’s case which was that the incidents should not at any stage have been viewed together because they were categorised in different ways.

 

Incident 1:  Tramadol Incident

 

31.     In July 2006 the claimant was found to have self-administered an injection of Tramadol whilst she was working on her own on an OOH shift at night.  The claimant readily admitted that she had done this and said it was for a severe headache.  The claimant also agreed that Tramadol can make one drowsy.

 

32.     The concern of the claimant's boss, Dr Carlile had two aspects:   firstly that the claimant had self-injected a very strong drug which could have impaired her ability to carry out her job; and, secondly, that she had self-administered a prescription-only drug without prescription when she could have, and should have, asked one of her doctor colleagues on the telephone to prescribe it for her or she could have gone home sick.

 

33.     The claimant was referred by Mr Ritson to Occupational Health (OH) over this incident and it appears from the documents that she volunteered for blood tests. One of the aims of this process was to ensure that she did not have a drug problem and as a result of the OH process she was not found to have any addiction problems.  The claimant said to the OH doctor at one point that administering Tramadol by injection was common practice in Poland.  This latter point has a bearing on the “cultural issues” referred to in later documentation and is also relevant to the references to the claimant’s nationality at different points (see below).

 

34.     At tribunal the claimant did not criticise the Trust for having a concern about this matter nor did she criticise the referral to Occupational Health.  Her criticism was focussed on the terminology used in various documents by her colleagues which, she believed, indicated that she had injected this drug on more than one occasion.  Her case was that this indicated that her colleagues had an animus towards her because of her sex and because she was Polish.

 

35.     Having considered the documents we do not accept the claimant’s case on this point.  The terminology used does not clearly indicate a suspicion that she was injecting on more than one occasion and even if it had, it was wholly justified for the respondent to look into this matter given the seriousness and strength of the drug and the serious circumstances which were admitted by the claimant.  The height of the claimant's case on this point was that there was a determination by a succession of her colleagues to give a misleading impression of her as a drug addict.  We do not accept that point and find this to be an example of the claimant’s and Dr De Havilland’s forensic approach to the use of language in different documents which meant that they lost sight of the “bigger picture” at key points in the case.

 

Incident 2:  Death Certification Procedures

 

36.     In December 2007 the claimant breached procedures in relation to the confirmation of a death which led to queries by the coroner and a proposal that a body be exhumed.  In the event the exhumation did not take place for various reasons but there were concerns about the claimant’s failure to adhere to an important procedure.  The claimant did not dispute the facts of this incident.  The point made by her in tribunal was that the problem was in relation to breach of policies and procedures and did not relate to performance issues and should not have been taken into account in assessing her at any point.

 

Incident 3:  Confidentiality

 

37.     In April 2008 there was a complaint by an adult patient who had attended a particular clinic about an alleged breach of confidentiality by the claimant when she spoke to the patient’s mother about him without his permission.

 

38.     At this stage, following discussions with the claimant, Dr Carlile agreed in June 2008 to arrange mentoring for her to remedy the perceived deficiencies in her actions in the three incidents referred to above.  However, before the mentoring could be finalised two more serious incidents occurred in July 2008.  We accept Dr Carlile’s evidence that he did not organise the mentoring because that was overtaken by events in that the more serious incidents (involving AB and GK) occurred as outlined below.  We accept that there was a good reason for Dr Carlile not to arrange the mentoring in these circumstances and in particular do not accept that this showed a desire on his part to proceed to “de-skill” her with a view to ensuring that she lost her job.

 

 

 

Incident 4:  Patient AB

 

39.     On 31 July 2008 there was a written complaint about the claimant’s treatment on 19 July 2009 of an elderly female patient named AB who was terminally ill.  The claimant had three times in one night refused to perform a home visit on AB whose family were concerned that her pain relief was inadequate.  The claimant, amongst other things, had advised the family to take AB to the hospital or to wait and contact AB's GP.  The patient died the following day.  This is the incident which underpinned the misconduct charge which led to the first dismissal.

 

40.     The claimant does not appear to have disputed at any stage that it was a breach of good medical practice to refuse to visit AB. Her concern was that she was dismissed for that (referred to below as the first dismissal) rather than given retraining and support.  That dismissal was later overturned and a Final Written Warning was substituted with conditions placed on the claimant following her reinstatement. (see below).

 

Incident 5:  Patient GK

 

41.     On 31 July 2008 the GK incident occurred.  The claimant gave a dose of a drug to GK, an elderly patient, who was taken to casualty.  The patient had to be given a rectifying dose of another drug to counteract the effects of the drug administered by the claimant. It was not disputed by the claimant that the drug she administered amounted to an overdose for a patient in GK’s circumstances.  This incident caused the consultant from the casualty department to ring OOH to indicate concern about what had happened.  The consultant went on to say that the patient had been at risk of death if she had had a respiratory episode in casualty.  When this was brought to Dr Carlile’s attention he requested that the consultant set out his concerns in writing.

 

42.     This matter was dealt with as an incident of “poor clinical judgement” and did not form part of the misconduct charges against the claimant.  The claimant’s only point of dispute on this incident was that she did not agree that the patient might have died.  The claimant agreed that she had given an overdose to the patient.

 

43.     The claimant alleged that Dr Carlile had prompted the consultant to make an adverse report and that this was part of Dr Carlile's campaign of discrimination against her.   The claimant's reason for making this allegation was that the consultant had stated:   “Hope this is ok for you Paul”, at the end of his email detailing the incident and that this showed that Dr Carlile elicited this criticism from a friend. 

 

44.     We find this allegation to be fanciful in circumstances where the claimant accepted that she had given an overdose.  We find it wholly believable, and accept, that concerns about such a serious matter led the consultant to raise this issue with OOH and we accept Dr Carlile's evidence that the consultant had rung OOH first with a verbal report, it was then brought to Dr Carlile’s attention and the consultant then followed it up in writing due to its seriousness.

 

45.     As the GK incident was considered to be an incident of poor clinical judgement it was decided that it would be dealt with through an assessment of the claimant by NCAS (an independent body) and through further training if appropriate.  The aim of this process was to correct any problems with performance and this would also involve NCAS.

 

First dismissal: January 2009

 

46.     This procedure complied with the SDP.  In particular the claimant was put on notice in the Step 1 letter that she was at risk of dismissal.

 

47.     Dr Carlile conducted an investigation into the AB incident and recommended that a charge of gross misconduct be levelled against the claimant.

 

48.     Dr Beckett chaired the disciplinary hearing and the investigation report was presented to the panel by Dr Carlile.  The outcome was that the claimant was dismissed with effect from 20 January 2009 for gross misconduct in relation to the AB incident.  The panel had taken into account the other four incidents in reaching their decision that dismissal should be the sanction. 

 

49.     The claimant appealed that decision and the appeal meetings took place on 23 March 2009 and 18 May 2009.  In the appeal hearing the claimant accepted that it would have been good to visit AB; that she could have done things better; and she accepted that she needed further training.

 

50.               The disciplinary appeal was conducted as a rehearing which took place on 18 May 2009.  The appeal panel agreed that the other incidents should not have been taken into account when they did not form part of the disciplinary charge and as a result the AB incident alone was considered by the appeal panel.

 

51.     The outcome of the appeal on 5 June 2009 was that the claimant was found guilty of very serious misconduct and the penalty was reduced to a final written warning in place for two years. 

 

52.     The appeal panel also placed conditions on her return to work and these were agreed by the claimant and her Medical Defence Union representative. At that point the claimant was also legally represented albeit not at the actual disciplinary hearing.  Given that the claimant had been out of work since April 2008 she was required to have a period of retraining and this was fully accepted by her and indeed had been suggested by her professional representative from the Medical Defence Union.  As a condition of her returning to work NCAS were to be involved in assessing her competence to ensure that training covered all necessary areas and the claimant again accepted this and that there would be a formal review six months after she started back to work.

 

53.     Any claim for unfair dismissal for the first dismissal is out of time.  On the time point we heard no evidence as to why it was not reasonably practicable for the claimant to lodge a claim for unfair dismissal within three months of the date of that dismissal.  The claimant has not persuaded us that time should be extended and we therefore reject it on the time point.  We would also have rejected it on the merits in any event.

 

54.     The claimant alleged that the first dismissal was unfair because the incidents constituted breach of Trust policies and she connected her actions to a failure to implement the mentoring one month before. As set out above we do not criticise the decision not to implement mentoring.   We assess the fairness or otherwise of any dismissal at the time of the outcome of the appeal.  The sanction imposed by the appeal panel was within the band of reasonable responses for a reasonable employer.    

 

55.     We also do not regard the first dismissal as an act of discrimination or harassment on grounds of gender or race. There was no evidence to suggest that Dr Beckett acted other than genuinely on the basis of the information before him.   He believed that he could take account of the other incidents to decide on the penalty of dismissal.   There was no evidence to suggest that a male or non-Polish OOH GP in similar circumstances would have been treated differently.  The claimant has failed to prove less favourable treatment.

 

Involvement of the Board

 

56.     The Trust dealt with the five incidents of concern according to their processes.  The Board procedures operated in parallel with the Trust’s and the two bodies kept in contact with each other and with NCAS throughout the relevant period.

 

57.     In line with practice and procedure the Trust had also informed the Board in 2008 of the Tramadol incident and of the AB and GK incidents. 

 

58.     Dr Thompson’s involvement was as the person responsible for the Performers List.  He regarded all the issues of concern about the claimant as issues of performance.  He was not concerned with labelling them as conduct or clinical performance issues as his primary focus was the clinical care of patients. He reasonably regarded the Tramodol issue as a clinical care issue because it was taken whilst the claimant was at work and taking this drug could impair judgement and meant that she was at risk of clinical error.  He found that that one incident alone was significant and there was no place for that in the medical workplace.  His concern was there was a potential clinical risk to patients.  He also viewed the clinical care of AB and GK as showing significant clinical shortcomings.  We accept that Dr Thompson’s view of these incidents was reasonable and find nothing untoward in his view that they related to clinical issues.

 

59.     Dr Thompson wrote to the claimant on 6 February 2009 (after the first dismissal) to ask her to refrain from work as a locum following his previous request of 21 August 2008 (after he had learned of the AB and GK incidents). The rationale for asking her to refrain from work was in relation to safeguarding patient safety because of the seriousness of the matters under investigation.  Dr Thompson wrote to the claimant on 27 February 2009 to ask her to meet him and NCAS to see if training or support was necessary and to see if conditions on her registration were necessary.

 

60.     NCAS is an independent organisation which acted essentially as a source of advice and guidance for the Trust and Board in relation to the concerns which arose regarding the claimant.  It also later provided independent assessment services by agreement with the claimant.

 

61.     The claimant met Dr Thompson and NCAS on 13 March 2009 and it was agreed that the Board would organise placement in a GP training practice under supervision with a view to assessment by NCAS.  That training practice was outside the Trust’s area and control.     The outcome of that meeting was that the claimant could only work in a supervised environment in a GP practice approved by the Board and that this would be funded by the Board.  Dr Thompson organised through NIMDTA to have the claimant placed with Dr Harney’s GP training surgery for the NCAS assessment with a view to assessing training if necessary.

 

62.     The claimant was subject to “contingent removal” from the Performers List from 26 March 2009 and this was ultimately extended to 31 March 2010.  This meant that there were conditions on her practice formally imposed by the Board.  Those conditions were that she confine her practice to working in a GP training practice under supervision.

 

63.     The Board had organised the placement with Dr Harney which began on 1 June 2009.  During that period the Board paid the claimant’s wages and paid a fee to Dr Harney. The estimated costs for this were £35,000. Dr Harney reported that the claimant had little insight and little acceptance of her problems and she also had concerns in relation to the level of supervision the claimant required.  Dr Harney asked for an independent review of video of the claimant at work and, when Dr Wales undertook this, it showed a wide ranging number of concerns.  Dr Thompson decided to reduce the pressure on Dr Harney by reducing the claimant’s placement from five to two days per week and he tried to organise extra OOH sessions with a trainer.  This did not come to pass (apart from one OOH session with Dr Wales) due to difficulties in contacting the claimant.  We accept the Board’s evidence on this.

 

64.     There was a case conference and a meeting with the claimant on 21 August 2009 when the claimant confirmed that she was willing to go through the NCAS assessment and made no complaint that the reduction in sessions with Dr Harney was a problem.

 

65.     Dr Wales did a second assessment of the claimant at a supervised placement in July 2009 at OOH.  The aim of that report was to establish the level of supervision required if the claimant was to get more OOH placements.  His report identified very serious shortcomings in her practice and he said that the claimant could only practise in OOH with a “supernumerary supervisor.”

 

Involvement of NCAS

 

66.     The NCAS agreement was signed in September 2009 by the claimant, the Trust and the Board as both the Trust and Board were the referring bodies.  Whilst the referral was triggered by the incidents of concern that had arisen with the claimant, the NCAS assessment involved a wider assessment of the claimant as a GP in practice.  The Trust gave an undertaking on 21 August 2009 to assist with reasonable funding to assist with any remediation that resulted from the NCAS assessment.  We do not find this to have been an unlimited undertaking to fund remediation as the claimant contended.

 

67.     The NCAS referral involved being placed in Dr Harney’s training practice again for assessment and the outcome of that assessment could have been retraining.

 

68.     In the NCAS report of March 2010, the assessors found serious deficiencies in the claimant’s practice and suggested a lack of insight by her into those deficiencies.  The NCAS assessment was in keeping with the previously expressed concerns of Dr Harney and Dr Wales. The NCAS assessors also stated in their recommendations as follows:

 

“Given the scope of the concerns identified in relation to Stadnik-Borowiec’s performance the referring bodies should, in the interests of patient safety, ensure that appropriate safeguards are in place with regard to Dr Stadnik-Borowiec’s practice.  In particular, the referring bodies should ensure that appropriate restrictions are in place until such time that the referring bodies are satisfied that she is able to practise safely in an unsupervised environment. 

 

The referring bodies will need to consider the feasibility and appropriateness of developing a remediation programme for Dr Stadnik-Borowiec to address the concerns highlighted in this report.  If the referring bodies consider that such a programme is impracticable or if Dr Stadnik-Borowiec’s progress is unsatisfactory then alternative steps including referral to the GMC will need to be considered”.

 

69.     The claimant’s response through her solicitor’s letter of 12 March 2010 states:

         

“In broad terms however Dr Stadnik-Borowiec does not take issue with the content of the draft report and acknowledges the areas in which the NCAS assessment team suggest her performance requires development and considers it of great assistance that these have been clearly identified by NCAS”.

 

70.     The claimant made criticisms of the placement with Dr Harney as set out below and alleged that Dr Harney was involved in the unlawful discrimination against her.  We reject that claim as set out below.

 

(1)            Reduction of sessions

 

                    (a)    The initial number of sessions reduced and the claimant’s point on this was essentially that she was “set up to fail” the NCAS assessment because her number of sessions was deliberately reduced and this was because of her sex and race. We reject that point for the following principal reasons.  The number of sessions reduced because Dr Harney found that the level of supervision required for the claimant exceeded that required for students in training and she was unable to commit to that amount of supervision because of that and because of other changes in her circumstances.  The NCAS agreement flagged up that if there were issues with placement they might not be able to do the assessment yet NCAS felt able to do the assessment in the knowledge that the sessions had been reduced for various reasons.  The claimant also did not raise any issue about the previous reduction in sessions when she signed up to the NCAS assessment. 

 

                    (b)    It is also clear from the NCAS report that NCAS noted the reduced number of sessions and they were not therefore misled about the number of sessions as alleged by the claimant in tribunal. 

 

                    (c)    At that stage (ie following the NCAS report of March 2010 assessment) the claimant was focussed on complying with any requirements for retraining.      At no point did the claimant criticise either the NCAS assessors or their process at the time or in tribunal.  Indeed, the claimant, through her lawyers, accepted the outcome of the NCAS assessment and indicated that she welcomed the identification of areas where she needed to improve.  They did not allege that the assessment was flawed nor did they raise any issue about the reduction in sessions having an effect on the NCAS outcome.

 

                    (d)    We therefore find that the reduction in the number of sessions was not relevant to the issues before us.  In view of our findings above, we find that there was nothing to suggest that the reduction of sessions amounted to a detriment at all. There was also no evidence to suggest that the claimant’s comparators would have been treated differently.  We therefore do not find the reduction in sessions to be a fact from which we could conclude that any alleged act of discrimination occurred.

 

          (2)      Dr Harney did a report on her abilities without telling her and this was unfair

 

                    We do not accept the claimant’s point on this as she was clearly involved in an assessment process with a view to identifying training needs and was under the supervision of Dr Harney.  We find nothing untoward or detrimental in the fact that Dr Harney did a report on her which was not shared with the      claimant especially as it was quickly apparent that the claimant was so deficient in her practice.  Dr Harney's concerns were entirely consistent with the later NCAS and GMC assessments which the claimant accepted.

 

          (3)      Dr Harney made reference to the fact that the Claimant is Polish in her report

 

(a)       The claimant's point was that this was evidence of Dr Harney's animus towards her because she was Polish.  We do not accept this.  It is clear from the NCAS report that a detailed assessment on the claimant’s ability to communicate in English was undertaken and that deficiencies in her applied use of English were found.  It was clearly relevant to Dr Harney's report for reference to be made to the fact that the claimant is from a non-English speaking country. 

 

(b)       In addition the claimant had previously made reference to the different prescribing culture in Poland when explaining her self-injection of Tramadol. Issues of different practices in Poland as compared with the UK were therefore clearly relevant in assessing whether the claimant needed to be familiarised with policies and procedures in the UK. 

 

          (c)    We therefore find that the claimant's national origin and her use of language were relevant to the assessment process and any such references do not amount to facts from which we could conclude that acts of less favourable treatment occurred.  We find that a non-Polish GP with similar difficulties with communication in English or with a similar background in prescribing in a non-UK country would have been treated the same.  The claimant has therefore failed to show less favourable treatment.

 

Post-NCAS Assessment: Remediation

 

71.     Upon receipt of the NCAS report, including its proposals for remediation, the Board took steps to consider the cost and feasibility of implementing the remediation and also considered whether GMC referral was necessary because of the large number of areas of concern. We note Dr Booth’s assessment of the NCAS report which was that it was the worst she had ever seen in terms of clinical and professional performance of a GP. 

 

72.     We regard it as reasonable of the Board to assess whether it would be too costly to pay for the extensive remediation required. The Board had made no undertaking to fund any such costs.  The Trust’s undertaking of 21 August 2009 was to cover reasonable remediation costs following NCAS assessment so this did not mean that they would cover those costs no matter how high.

 

73.   The claimant criticised the lack of a detailed costing exercise.  Essentially the claimant was the equivalent of a medical student in terms of the level of training and supervision required. Dr Booth’s evidence was that no detailed costing of the remediation programme was done because the point was that the range and nature of concerns were so great.  In circumstances where sizeable funds had already been expended, and the claimant’s deficiencies were so serious and wide-ranging, we do not criticise this approach.  We do not find lack of detailed costings to amount to evidence from which we could conclude discrimination.  

 

74.     We reject the claimant’s case that it was for the Board and Trust to pay to remedy her deficiencies come what may.  The Board had already financed the period of assessment for NCAS and had explored as many options as was reasonable in the circumstances.

 

75.     The claimant has not shown less favourable treatment as we find that a male GP or a non-Polish GP would have been treated the same in similar circumstances.

 

Post-NCAS Assessment: Board

 

76.     The NCAS report outlined so many shortcomings of such a serious nature that the Board decided to refer the claimant’s case to the Local Advisory and Investigative Panel (LAIP). The Board convened a meeting of LAIP on 13 April 2010.  This was a panel chaired by Dr Booth and also comprised three senior GPs (from the Royal College of GPs, NIMTDA and the British Medical Association) together with three senior lay members (from the Patient and Client Council and others).

 

77.     The LAIP members were “gravely concerned” about the contents of the NCAS report and one of those concerns related to the claimant’s lack of insight into her own deficiencies.  Their decision was that remediation would be impracticable. 

 

78.     The process was that it was LAIP which decided unanimously to refer the claimant’s case to the Board’s Referral Committee (comprising one Board executive member and two lay members) based on LAIP’s consideration of the NCAS report.   LAIP recommended that referral be made to the GMC under Fitness to Practice procedures with a recommendation that a full performance assessment be undertaken by the GMC.

 

79.     The Board’s Referral Committee, on 20 May 2010, referred the claimant to the GMC Interim Orders Panel (IOP) to consider precautionary suspension pending GMC performance assessment of the claimant.  The GMC then requested extensive information and statistics on the claimant and these were collated by the Trust as employer. It was not therefore the case that the Trust did this of their own volition to ensure that the claimant was viewed unfavourably by the GMC as alleged by the claimant.

 

Post-NCAS Assessment: Trust

 

80.     The Trust as employer took the following action following receipt of the NCAS report.   

 

81.     On 13 April 2010 the Trust and Board met the claimant and her representative and an NCAS representative to consider the NCAS report and the next steps. 

 

82.     In September 2010 the Trust decided to deal formally with the claimant under MHPS in relation to clinical performance concerns.  This action was in response to the NCAS report.  The aim of this was to look at issues of concern and possible remediation.

 

83.     On 17 November 2010 Dr Carlile asked NCAS for advice on a possible way forward under MHPS if the practitioner’s performance is so fundamentally flawed that no remediation plan had a realistic chance of success.  This was a reasonable request in view of the seriousness of the claimant’s deficiencies and we do not find it to amount to less favourable treatment nor was it tainted by discrimination.

 

84.     On 1 December 2010 the NCAS response was that the Trust could see if NIMDTA could organise a retraining placement but noted that remediation would be extremely expensive and resource-intensive and stated as follows:

 

“Given the difficulties outlined above and the depth and range of the concerns expressed by NCAS’s assessors it seems unlikely that an action plan has a realistic chance of success”.

 

85.     As part of the MHPS procedure in this regard, the view of Dr Fitzpatrick of NCAS was sought and he stated as follows:

 

“Following the assessment by NCAS it is clear that Dr Stadnik-Borowiec is not competent to work as a GP and it is questionable if she could perform at the required level of a qualified doctor at all without substantial retraining.  Given this the action plan required is therefore not reasonable to implement even if it were possible”.

 

86.     There was a meeting on 6 January 2011 under MHPS.  Dr Carlile had contacted NIMDTA regarding the feasibility of arranging a placement aside from the issue of GMC registration.

 

87.     Dr Beckett dealt with the formal consideration of NCAS and remediation under MHPS.  The claimant criticised the involvement of Dr Carlile and Dr Beckett at this point.  For the Trust, Mr Donaghy’s answer to that point was that these were the senior managers who would be involved in this and he could not see any difficulty with them dealing with this. 

 

88.     The issue for us is whether the involvement of these two doctors at this point is a fact from which we could conclude that there was essentially a discriminatory conspiracy to get rid of the claimant.  We do not find that there was such a conspiracy by them and find nothing untoward in their involvement at this point.  It is clear that serious deficiencies were found by the independent NCAS and GMC assessors which were extensive and serious and it was these deficiencies which ultimately led to the claimant’s departure from the organisation.  We do not find that either doctor had an animus towards the claimant and find that, on the contrary, their concern was about the NCAS and GMC findings about the claimant’s serious deficiencies as a GP.  They were, as a consequence, motivated to make the decisions they made because of their concerns about patient safety based on the NCAS and GMC assessments.

 

89.     The Trust made it clear that they would not fund the remediation for the following reasons: it would be resource intensive, the cost would be too high, it was not clear if it would be feasible or whether it would be successful and it was also clear that it would take well over a year for the remediation programme to be completed.  We find this to be a reasonable conclusion.  We found no evidence of less favourable treatment.

 

GMC - Fitness To Practise process

 

90.     The GMC assessors used various methods to assess the claimant over a period from June 2010.  The GMC assessors’ report stated as follows:

 

“In our assessment we found Dr Stadnik-Borowiec’s levels of performance and competence were so low her response to efforts at remediation so poor and her insight into her learning needs and the ability to address them so limited that in our view to hope for successful remediation would be unrealistic.  We saw that she lacked the ability to reflect, learn or improve.  The team considers that Dr Stadnik-Borowiec is unsuitable for remedial training.”

 

91.     The GMC assessors presented their report to the GMC Fitness to Practice panel at a hearing and ultimately that panel issued a decision in October 2011.  

 

92.     The GMC decision noted that the claimant had admitted the facts in the case and that she did not contest that her fitness to practice was impaired.  The claimant had also stated that she accepted Dr Harney’s criticism of her performance. 

 

93.     The GMC decision stated as follows:

 

“The GMC performance assessment report identifies several areas of good medical practice in which your performance was unacceptable.  These include fundamental tenets of the profession such as the provision of good clinical care and good communication.  The panel determined that as a result of your deficient professional performance you currently present a risk to patients”.

 

94.     The GMC assessor who presented the assessors’ report at the Fitness to Practice hearing, asked that the claimant be struck off the GMC register in view of the seriousness of the deficiencies.  The Fitness to Practice panel declined to strike the doctor off the register but placed 19 restrictions on her practice.

 

95.     At no point did the claimant criticise the GMC decision nor did she allege that there was any discrimination perpetrated by them on her.  It was common case that the GMC assessors conducted an independent assessment of her abilities as a GP.  It is clear from the decision of the GMC Fitness to Practice panel that there were very serious shortcomings in her ability to practise and this led to the imposition of numerous conditions as an alternative to striking her off the list of registered doctors.

 

96.     The GMC report described the sanction imposed as “conditional registration” in that her registration would be made subject to conditions.  They then set out 19 conditions which were to be in place for two years and the two conditions of most concern to the Trust were numbers 14 and 15 which state as follows:

 

“14.  You must confine your medical practice to general practice posts as a GP, in a GP training practice where your work will be supervised by a named GP trainer.

 

15.  You must not undertake any out of hours work or on call duties unless approved by your educational supervisor and with the prior agreement of the GMC”.

 

Post-GMC decision

 

97.     The successor to LAIP was the Regional Professional Panel (RPP) and they wrote to the Council for Health Care Regulatory Excellence (the CHCRE) following the GMC decision to ask for action to be taken by them because their view was that the GMC Fitness to Practice panel had been unduly lenient in their decision.  The CHCRE rejected that application.  The issue for us is whether this is evidence of a campaign by the Board (and Dr Booth in particular) to get rid of the claimant because of her sex or race.  We reject that claim in view of the serious shortcomings identified by the independent GMC assessors (which the claimant accepted) and in view of the fact that the GMC’s own assessors at the Fitness to Practice hearing had recommended that the claimant be struck off.

 

Second dismissal

 

98.     On 9 November 2011 the Trust sent a letter to invite the claimant to a meeting to discuss the implications of the GMC conditions.  The meeting took place on 13 December 2011 and following that the Trust wrote to the claimant on 23 January 2012 to dismiss her.  The claimant appealed and that appeal was dismissed. (see below). The process complied with the SDP. 

 

99.     The reasons given for dismissal were that the claimant had had restrictions placed on her ability to practise by the GMC following their independent assessment of her abilities as a GP which meant that:

 

(1)           she could not perform her contractual duties;

 

(2)           the GMC conditions could not be accommodated; and

 

(3)           there was no suitable alternative employment available. 

 

100.   We find that it was reasonable for the employer to conclude that there were no suitable vacancies for the claimant as the Trust did not have a training practice in their area or control in which to place her.  Given the nature of the claimant’s job, an administrative post would not have been suitable even if there had been one available.  Being placed in an administrative post would not have contributed in any event to compliance with the GMC conditions which is what the claimant professed was her aim.

 

101.   The claimant appealed the dismissal and the outcome was dated 10 September 2012.  The statutory restriction point was not relied upon by management on her appeal but in the appeal outcome letter, the Trust outlined to the claimant that they could not be in a position where they could allow her to breach conditions placed by the GMC against her registration because of the significant risk to patients.      

 

Statutory restriction point

 

102.   At tribunal, the respondents’ argument was that a further fair reason for dismissal was that the claimant could not continue to work in the position she held without contravention (either on her part or on the Trust’s part) of a duty or restriction imposed by or under a statutory provision.  (see Article 130(2) (d) ERO).  The statute relied upon by the respondent in this regard was the Medical Act, the relevant sections of which provide as set out below.

 

103.   It was accepted by Mr Potter that at all relevant times the doctor was fully registered with the GMC but that Article 130(2)(d) of ERO applied as her registration had conditions placed on it under the Medical Act. Essentially Mr Potter's point was that the claimant had conditional registration.

 

104.    The claimant's argument essentially was that the legislation provides that registration is a concept distinct from the ability to practise, with or without conditions or restrictions. The claimant’s argument was that the claimant continued to be fully registered in compliance with her contract.  We do not accept that matters are as clear cut as that and accept Mr Potter's argument that A130(2)(d) of ERO applies in this case as set out below.

 

105.       The Medical Act 1983 provides for the maintenance of registration of doctors and gives various powers to the General Medical Council.  The sections relevant in this case are s2, s47 and s35D.

 

106.       Under s2(3) a doctor is either fully registered or provisionally registered.  It was agreed by the parties in this case that provisional registration did not apply in this case. 

 

107.    The effect of s47(1), (3), and (4)(c) is as follows:

 

(1)           That only someone fully registered holding a licence to practise can hold an appointment as a GP.

 

(2)           That an Interim Suspension Order of the GMC Interim Orders Panel (IOP) does not operate to terminate appointment as a GP but a doctor cannot perform his duties of appointment during suspension.

 

108.    Section 35D outlines the functions and powers of the Fitness To Practice panel.  It stipulates at 35D(2)(c) as follows:

 

“Where the panel finds that the person’s fitness to practice is impaired they may, if they think fit - ...

 

(c)        Direct that his registration shall be conditional on his compliance, during such period not exceeding three years as may be specified in the direction, with such requirements so specified as the panel think fit to impose for the protection of members of the public or in his interests.”

 

109.   We find that s2 must be read in conjunction with s35D which outlines the powers of the GMC Fitness to Practise Panel.  Under s35D(2)(c) the Panel can direct that registration is conditional upon the doctor's compliance with requirements specified by the Panel for the protection of members of the public or in the doctor's interests.  In this case the claimant’s registration was suspended and restored conditionally and the conditions were due for review in a specified period, presumably to ensure that they had been fulfilled.  In effect therefore full registration can be subject to conditions and we find that this was the position in the claimant’s case.

 

110.    We therefore find that the effect of the provisions of the Medical Act is that the claimant’s registration was not unrestricted registration. 

 

Some Other Substantial Reason (SOSR)

 

111.   In the case of Klusova v London Borough of Hounslow 2007 EWCA Civ 1127 the claimant lost the right to work in the UK when leave to remain expired.  The employer believed that it would have been an offence under the relevant immigration legislation to continue to employ her.  In the alternative the employer argued that on the information they had from the Immigration Authorities they reasonably believed that they could not continue to employer her without contravening a statutory enactment.  They therefore relied on both the statutory enactment part of the Employment Rights Act (the equivalent of the ERO) and on “some other substantial reason” (SOSR).  This case establishes the principle that if the employer reasonably believes that the relevant statutory enactment is applicable and acts on the basis of that reasonable belief (which may be mistaken) this can amount to some other substantial reason as a fair reason for dismissal.

 

112.       We accept the evidence of the witnesses for the Trust that at the time of the dismissal they genuinely believed that the Medical Act provisions were at play in this scenario and that they genuinely believed that they could not continue to employ her without contravening the legislation relating to the GMC and registration.  We can understand why they believed that given the way the legislation is structured.  We accept that this amounted to SOSR in this case in line with the reasoning in the Klusova case referred to above.

 

Contract of employment

 

113.    As the particular restrictions imposed by the GMC required the claimant to be supervised and prohibited her from working in an OOH service, they went to the heart of the contract she had with the Trust.  As there were no suitable alternative roles for her and as she could not fulfil the terms of her contract, it was reasonable for the Trust to terminate her employment.  We find that this constituted dismissal for a reason related to capability because she was incapable of fulfilling the terms of her contract.

 

114.    We also find that the effect of the GMC decision was that the claimant was not registered with GMC in accordance with the legislation sufficient to comply with the contractual term.  Having considered the contract as a whole, we find that the contractual term:  “You are required to be fully registered with the GMC”, can only be meaningful and workable in practice if it is implicit in that term that the doctor in question is actually able to practise as a GP in her job as she possesses unrestricted or unconditional registration with the GMC.  We therefore find that the GMC restrictions, which meant that she could not actually practise in her job as an OOH GP, meant that that term of the contract could not be fulfilled. 

 

“De-skilling”

 

115.   The claimant argued that the second dismissal was following a period when the claimant was “de-skilled” and there was a failure to honour the commitment to the claimant following the NCAS assessment in relation to remediation.  We reject that argument for the following reasons:

 

(1)            The claimant has failed to prove the primary fact that de-skilling actually occurred because she was out of the workplace and/or that being out of the workplace materially contributed to the outcome of the NCAS and GMC assessments.

 

(2)            Dismissal was as a consequence of the following chain of events: the claimant’s own acts in relation to the AB incident in particular; the consequent exclusion from work which was reasonable; her dismissal and reinstatement with conditions on retraining, which the claimant had agreed, before she could return to her former duties.

 

Dr Meyer Complaint

 

116.    The claimant claimed that the way her complaint about Dr Meyer was dealt with, amounted to harassment on grounds of race and sex.  She also relied on that complaint as a protected disclosure and as a protected act which led to victimisation on grounds of sex and race.

 

117.   The claimant’s complaint was dated 4 August 2006 shortly after Dr Meyer was asked to investigate the Tramadol incident.  She specifically denied that this grievance was sent because of the investigation against her.  In particular the claimant’s primary concern was that she had been told by others that Dr Meyer had said that her career would be “finished” which was an apparent reference to the Tramodol incident.  We find that the claimant unreasonably characterised this in tribunal as a threat made by Dr Meyer to her. 

 

118.   Given the content of the letter we find that it was reasonable for Dr Carlile to regard the issue raised by the claimant as a clash between two professional colleagues. We therefore accept Dr Carlile and Mrs Johnston’s evidence that the Dr Meyer issue was dealt with informally as an issue of professional colleagues working together rather than as any issue of harassment.  In these circumstances it was reasonable that neither Dr Carlile nor Mrs Johnston spoke to other staff.

 

119.   The informal process was that he and Mrs Johnston met the claimant and then spoke separately to Dr Meyer and then spoke to the claimant again. The outcome was that Dr Meyer was removed from line management responsibility for the claimant and Dr Carlile took that over instead. Whilst there was a suggestion that the matter would be reviewed a few months later and this did not take place, we do not regard that as untoward as we accept Mrs Johnston’s evidence that there was no meeting in November as they believed the issue had been settled to the claimant’s satisfaction.     

 

120.   We do not accept the claimant’s account to us that she was so uncomfortable with, and intimidated by, Dr Meyer as she alleged in tribunal as, if that had been the case she would have followed up the lack of formal action.  If the claimant had had such problems with Dr Meyer we also find it very surprising that she did not raise the issue again with Dr Carlile.  We therefore infer that she was satisfied with the steps that Dr Carlile took in that he spoke to Dr Meyer, removed him from line management of the claimant and spoke to the claimant after speaking to Dr Meyer.

 

121.   We find that the way Dr Carlile dealt with this was reasonable in the circumstances and that he and Mrs Johnston reasonably understood that the claimant was content with the action that had been taken.  We do not find this to amount to evidence from which we could conclude that the claimant was treated adversely because of sex or race.

 

Protected Disclosure and Victimisation claims

 

122.  The protected disclosure relied upon was the grievance in relation to Dr Meyer which was received by the Trust on 7 August 2006. 

 

123.   That complaint in August 2006 about Dr Meyer was also one of the protected acts relied upon in relation to victimisation.  The other protected act relied upon was the tribunal claim lodged on 23 April 2012.

 

124.   The detrimental acts alleged to be connected to a protected discloure and victimisation on grounds of sex and race were:

 

          (i)      rejecting the grievance about pay in September 2012;

 

          (ii)      rejecting the appeal against the decision on the grievance about pay in October 2012;

 

          (iii)      the rejection of the appeal against the second dismissal in August 2012.

 

125.   These 3 acts post-date the claim form but by Mr Potter's agreement were included as issues to be determined by us.  We therefore amend the claimant’s claim to include these issues so that we can determine them. 

 

126.  We reject the claimant’s protected disclosure case for the following principal reasons:

 

(1)            Too great a time period elapsed between the alleged protected disclosure in August 2006 and the alleged detrimental acts in 2012.  We therefore do not find that any detrimental acts in 2012 were on grounds of any protected disclosure as there was no evidence that any protected disclosure had any influence whatsoever on the impugned decisions;

 

(2)            We accept that the reason for the rejection of the grievance about pay was the genuine and reasonable belief that the claimant was not contractually or legally entitled to the pay she claimed;

 

(3)            We note that, contrary to her obligations, the claimant did not inform her employer that she had had her registration suspended by the GMC.  When the employer became aware of this some months later, they could have backdated the stoppage of pay but decided in their discretion not to do so.  We find this to be compelling evidence which detracts from the claimant’s case that the employer sought to victimise her over pay.

 

127.   The rejection of the grievance about pay and the rejection of the appeal of that grievance outcome, did not amount to less favourable treatment and was untainted by unlawful discrimination.

 

128.   The rejection of the appeal against the second dismissal was reasonable, did not amount to less favourable treatment and was untainted by unlawful discrimination.

 

Criticism of Dr Carlile

 

129.   The claimant claimed that Dr Carlile discriminated against and harassed her and that his actions were motivated by a desire to end her career.

 

130.   Dr Carlile had two roles firstly as Clinical Manager responsible for dealing with under-performance concerns during the claimant’s employment and as the Case Investigator formally appointed under MHPS who completed the investigation into concerns relating to two individuals namely AB and GK in 2008.

 

131.   We reject the criticisms of Dr Carlile as set out below.

 

132.   The claimant said that Dr Carlile threatened her in relation to the breach of confidentiality complaint (incident 3 outlined above) by advising her she should get legal advice.   We do not accept this point and accept Dr Carlile’s evidence that this was no more than reasonable advice to a colleague facing such a complaint.

 

133.   We do not accept that Dr Carlile misled the claimant and that a decision had been taken to send her for a disciplinary action before she had commented on the allegations.  She had given her comments to Dr Loughran before he wrote to her with his decision to refer to the disciplinary process.  We therefore reject the claimant’s case that there was a predetermined decision to dismiss her in relation to the first dismissal. 

 

134.   We do not accept the claimant’s criticism that Dr Carlile engaged a “fishing expedition” to find evidence of her incompetence following the GMC referral.  On the contrary the GMC prompted the collation of statistics and information for their own assessment process. 

 

135.   It was the claimant who wanted regular review by Occupational Health and we find nothing untoward in the contact between Dr Carlile and Occupational Health.  The claimant did not criticise the referral to Occupational Health and said that Dr Carlile was right to refer her to them.  From our assessment of the documents we do not accept the claimant’s case that Dr Carlile was seeking Occupational Health support to terminate her employment.  On the contrary he acted as a concerned and supportive manager by seeking OH advice on whether there were issues that he could help the claimant with.

 

136.   We find that Dr Carlile acted at all times reasonably and genuinely.  There was no evidence to suggest that he would have treated a comparator differently and no evidence to suggest that the claimant’s race or sex were factors affecting his decisions.

 

Exclusion from work

 

137.  The claimant alleged that there were breaches of MHPS which amounted to breach of contract and constituted evidence from which we could conclude that discrimination occurred.   We reject that case as set out below as we do not find contravention of the MHPS.

 

138.   On 10 August 2008 the claimant was excluded from work because she was asked to go home.  On 14 August 2008 Dr Beckett, Dr Carlile, Dr Thompson and Zoe Parks met the claimant and gave reasons for her exclusion.  The reason for the exclusion was to ensure public protection as this could not be dealt with by supervision or restriction of duties due to the nature of the work in the Out of Hours service.  That work required a doctor to work on his or her own dealing with telephone enquiries and home visits and referrals to hospital as appropriate.  We accept that the exclusion was reasonable in these circumstances.

 

139.   The claimant alleged that the decision to exclude her was not authorised by Dr Loughran as required by MHPS. Dr Carlile's evidence was that Dr Loughran authorised all exclusions and that letters from Zoe Parks would not have been sent without his authorisation.  We accept that evidence especially as Zoe Parks had previously been involved.  We also infer from a reading of all the relevant documents (in particular Dr Loughran’s letter of 29 September 2008) that Dr Loughran reviewed the decision to exclude the claimant and that he authorised them. 

 

140.   The claimant alleged that the decision was not reviewed in writing every four weeks until her eventual dismissal in January 2012 in contravention of MHPS.

 

141.   The dismissal in January 2009 meant that the claimant was out of work because she was dismissed and this overrode the requirement to review exclusion every four weeks.  The appeal process then took place and the outcome of that was reinstatement subject to conditions and NCAS assessment.  This also overrode any requirement to review exclusion every four weeks as reinstatement lifted the exclusion and by that stage the reason for her not being in work was that the claimant agreed that she had conditions to fulfil in order to be reinstated to her former duties. 

 

142.   The suspension of the claimant’s registration by GMC IOP took place on 25 June 2010.   The GMC suspension meant that she could not work as a GP anywhere in the UK and thus effectively superseded any exclusion. 

 

143.   Once the suspension was lifted by the GMC in October 2011 and replaced with registration subject to conditions, the second dismissal process proceeded.  The claimant was at that stage out of the workplace because she was effectively prohibited from resuming her duties (in law and under her contract) by the GMC conditions.  She was not excluded at this stage under MHPS.

 

144.   It is clear that exclusion under MHPS was kept under review and was to be kept in place until the outcome of the disciplinary process.  Whilst exclusion was usually for 6 months it could under MHPS be for longer. The process was delayed for various legitimate reasons including the requirement to await the outcome of a High Court case which had a bearing on whether legal representation should be allowed at the disciplinary hearing and because of the claimant’s absence on holiday.  Ultimately the disciplinary hearing took place on 13 January 2009 which was within the 6 months of the claimant’s absence from work in August 2008.  We therefore find no contravention of MHPS nor do we find any undue delay. 

 

145.             Even if we are wrong and the MHPS exclusion continued beyond the initial 6-month period, the employer was entitled under that policy to extend exclusion in exceptional circumstances and we find that the circumstances in this case would have justified such an extension.

 

146.   The claimant alleged that the exclusion should have been lifted and if not her skills should have been maintained during the period of exclusion.  We reject that case.  As the claimant was validly out of the workplace and there was no suitable alternative post available, it was not possible for the employer to maintain the claimant's skills in those circumstances, even if they had been obliged to do so.

 

147.   The issue for us is whether exclusion amounted to a breach of contract and also whether it amounted to evidence from which we could conclude that discrimination on grounds of sex or race occurred.  We do not find either of these things occurred.  There was no evidence to suggest that a hypothetical comparator in the same position would have been treated differently and the claimant has therefore not shown less favourable treatment.

 

Pay

 

148.   Following the first dismissal the claimant was put back on the payroll with effect from January 2009.    From 18 May 2009 her pay did not include allowances for ad hoc shifts as she was not going to work them.  From that point she received her basic salary only because she had been reinstated on the agreed condition that she undergo assessment with NCAS and was therefore not doing those shifts.  We had no evidence that the claimant was contractually entitled to be paid an allowance for ad hoc shifts that she did not work.  We regard the Trust’s action on pay in this regard to be reasonable and was not in breach of contract.  It did not amount to an unlawful deduction from wages.  We also do not find this to amount to less favourable treatment than a hypothetical comparator.

 

149.   On 28 July 2010 the Trust learned that the claimant had been suspended from the register by the GMC from 25 June 2010.  In the employer’s discretion the stoppage of pay was not backdated to the date of suspension in June 2010.  The reason she was not paid was because the GMC IOP had suspended her registration. We find that this was in accordance with the contract she had with the Trust and it was also in compliance with the MHPS procedure.  There was therefore no breach of contraft and no unlawful deduction from wages and no less favourable treatment.

 

150.   The claimant raised a grievance on 12 April 2012 about the withholding of her pay. The grievance on pay was in relation to non-payment between 13 August 2010 (the date of GMC suspension of registration) and 23 January 2012 (the date of the second dismissal). 

 

151.   On 12 September 2012 the outcome letter rejecting the grievance was sent to the claimant.  The reason given was, firstly, that due to suspension by the GMC she could not fulfil parts 4, 6 and 7 of her contract and, secondly, that there was no alternative employment which could be provided given that her employment was as a GP. 

 

152.   The claimant had not queried the alternative employment point between August 2010 and January 2012.  The claimant as part of her grievance had asked the employer to consider alternative employment without direct clinical care.  The claimant did not question the decision of Mrs Hynds that there was no suitable alternative employment at that point (ie when her grievance was not upheld).

 

153.   The grievance appeal hearing was on 8 October 2012 and the outcome was that the grievance was not upheld.

 

154.   The claimant’s claim at tribunal was for full pay during the entire period of her “exclusion” ie from August 2008 to January 2012.  It was her case that non-payment of wages was deliberate and intentional and that the change in her GMC registration status was not the real reason for her pay being withheld.    She alleged that the aim of stopping her pay was to harass her and cause extreme financial hardship so that she would resign. It was also her case that following instructions from her line manager she refrained from clinical duties and these were her new duties ie to stay off and be disciplined. The claimant argued that the GMC registration suspension did not change anything in her situation because she had been excluded under MHPS from August 2008 and had complied with the management direction to stay away from work and be disciplined.

 

155.   We reject the argument that her new duties were to stay at home and be disciplined.  The suspension of registration by the GMC took things to a new level in that the claimant's ability to perform her job was fundamentally affected by this decision of the independent professional body.  The claimant at no point criticised the GMC decision to suspend her.  Exclusion was replaced by the first dismissal, then reinstatement subject to conditions, then GMC suspension of registration, then GMC registration subject to conditions.  It is clear from MHPS that the employer reserves the right in exceptional circumstances to stop pay. 

 

156.             We are satisfied from our assessment of all the evidence that these were exceptional circumstances and that the employer’s actions in relation to pay were reasonable and were compliant with MHPS.  The actions in relation to pay did not amount to breach of contract, did not constitute unlawful deduction from wages and did not constitute less favourable treatment. We reject the allegation that the changes in pay amounted to harassment.

 

157.   We were referred by the parties to the following authorities in relation to pay and set out below our conclusions on the legal points made.

 

158.   In the case of Burns v Santander UK PLC 2011 UKEAT/0500/10/RN Mr Burns was charged with sex offences and was remanded in custody pending his trial.  During the period in custody his employer stopped his pay.  The EAT found that under the common law an employer is permitted to stop pay if the employee is unable to perform his duties because of an “avoidable impediment”.  In this case it was found that the inability to work was due to an act of the employee and was therefore an avoidable impediment.

 

159.   The relevant parts of Harvey on Industrial Relations and Employment Law are at Division B1 at paragraphs 8 to 8.05 where Harvey states in relation to Burns: 

 

              “the issue is therefore to what extent the employee’s actions contributed to getting himself into a position where he was unable to work”.

 

160.   The claimant was unable to perform her duties due firstly to the GMC suspension and secondly due to the GMC registration subject to conditions following the GMC decision.  It was the claimant's deficiencies in relation to the five incidents which ultimately got the claimant into a position where she was unable to work.  We therefore find that it was due to an avoidable impediment that the claimant was unable to work.  No matter how ready and willing the claimant was to perform her duties, the fact was that she was not able to do so because of the effect of the GMC rulings.

 

161.   In the case of Beveridge v KLM Ltd [2000] EAT/1044/99 the EAT awarded the claimant six weeks’ pay.  In that case the claimant had been off on long-term sick-leave and had asked to return to work with a supporting letter from her doctor saying she was fit to do so.  The employer refused to allow her to return to work until their own doctor certified her fit and this took six weeks to arrange.  In that six-week period she was not paid.  The claimant’s point was that she was ready, willing and able to work and was refused by her employer and therefore should have been paid.  The EAT found in the claimant’s favour and stated that it is for the respondent to show an express term in the contract to support its case that no pay is payable if the claimant is ready, willing and able to work. 

 

162.   In Dr Stadnik-Borowiec’s case her situation was different to that in the Beveridge case in that she could not offer her services as an OOH GP because she had been suspended from registration and then her registration was subject to conditions which were incompatible with the work that she carried out for her employer. She was therefore ready and willing but unable to perform her duties as an OOH GP.

 

Immigration status

 

163.   One of the claimant’s issues was that the Trust inappropriately checked her immigration status with the Home Office and this amounted to discrimination.

 

164.   There is no doubt that a form was completed and sent to the Home Office which prompted them to issue a certificate.  Mrs Johnston completely denied that she contacted the Home Office in relation to the worker registration scheme and stated that any such application would be done by the worker concerned.  The claimant’s evidence was that she could not recall if she had completed such a document and, despite her efforts under FOI requests to the Home Office she could not establish if she or someone else had applied for the relevant certificate. 

 

165.   It is for the claimant to prove the fact that someone, other than herself, applied for this certificate.  She has failed to prove that fact as:  the documentation does not bear out her allegation; Mrs Johnston emphatically denies it; and the claimant herself cannot recall what happened.  We reject the claimant’s case on this point entirely.

 

Additional Issues

 

166.   During the tribunal hearing, Mrs Johnston produced handwritten notes of the meetings she and Dr Carlile had had with Dr Meyer and the claimant in relation to the claimant’s complaint in 2006.  As a result of the additional information in that documentation Dr De Havilland and Mr Potter agreed that the claimant be permitted to include the following issues:

 

(1)           That there was a difference in treatment between the claimant and Dr Meyer on grounds of gender.  Dr De Havilland stated that the allegation by Dr Meyer was that the claimant was self-injecting Tramodol and this ultimately led to a complaint to two external institutions.  Dr De Havilland further stated that, in contrast the allegation by the claimant in her grievance that Dr Meyer made a threat to the claimant because she was told that he had said to others that she would never work again, was dealt with informally. 

 

We do not accept the claimant’s point on this.  It is not a valid comparison as the two sets of circumstances are completely different, given that the claimant admitted the Tramadol incident, agreed that a referral to OH was warranted and given that that incident had a bearing on her practice.  The claimant has therefore failed to establish less favourable treatment.

 

(2)           Dr De Havilland submitted that Dr Meyer was believed when he denied the allegation by the claimant in the grievance that he had said her career was over even though no witnesses were interviewed about this.  Dr De Havilland further submitted that, in contrast the claimant denied the allegation of self-injection of Tramodol and she was not believed.  We do not accept the point made in this regard as it is factually inaccurate.  The fact is the claimant at all stages did admit one incident of self-injection of Tramodol and she agreed that a referral to Occupational Health was justified.  We do not therefore accept that it is a valid comparison to make and the claimant has therefore failed to establish less favourable treatment.

 

(3)      Dr De Havilland submitted that there was a widening of scope in that there was a “fishing expedition” relating to the claimant to see if a pattern emerged about the claimant and her practice.  In contrast the same was not done with Dr Meyer in that staff were not spoken to about a pattern in relation to his behaviour.  We do not accept the claimant’s point on this.  Wider information was sought about the claimant because of the GMC request as part of their process.  This did not apply in the Dr Meyer situation.    We accept Dr Carlile’s categorisation of the latter as a dispute between two colleagues whereas the claimant’s issues were about clinical concerns which ultimately led to the GMC.  It is not therefore a valid comparison and the claimant has failed to establish less favourable treatment.

 

SUMMARY

 

167.   The claimant’s case was that there were 15 breaches of contract which constituted facts from which the tribunal could conclude that acts of discrimination by the Trust occurred.  After careful analysis of the facts and documents we reject the claim that there were any material breaches of policies or procedures amounting to breach of contract. 

 

168.   The harassment alleged related to the actions of Dr Carlile, Dr Booth and the termination of the claimant’s employment and the end of her career.  We reject that claim as both doctors’ actions were reasonable and were motivated by concerns for patient safety following NCAS and GMC assessments. 

 

169.   The discrimination on grounds of gender concerned both the actual comparator (Dr Meyer) and a hypothetical comparator.  The claimant pointed to the repeated breach of policies and procedure and breaches of the contract and employment and departures from practice as evidence from which we conclude discrimination.  As set out above we do not accept that there were any material breaches.  We also find that the claimant has failed to show less favourable treatment than the actual or hypothetical comparator. 

 

170.   The claim for discrimination on grounds of race relies on a hypothetical comparator and relates to the above allegations which we similarly reject.  The race claim also rested on the allegation that Dr Meyer was critical about the claimant speaking Polish and that unnecessary comments were made about the claimant being Polish by Mr Ritson, Dr Thompson, Dr Harney and Mr Compton on various documents.  It was the claimant who raised with Occupational Health issues about difficulties adjusting to the new country with a second language and she also raised the issue of different practices about injection of Tramodol between Poland and the UK.   We find that references to the claimant’s ability to speak English and differences in working practice in Poland were entirely appropriate in the context of this case as they were relevant to her abilities at work and were also relevant to the assessment processes which ultimately involved specific assessment of her ability to communicate in English. 

 

171.   The hypothetical comparator in relation to the sex and race claims is a non-Polish OOH GP and a male OOH GP. We find that the hypothetical comparator would have been treated the same as the claimant in similar circumstances being circumstances where his or her competence and abilities as a GP were so deficient.

 

172.  In relation to the victimisation claims the hypothetical comparator is an OOH GP who has not done the protected acts.  We find that the claimant has failed to show less favourable treatment in that such a comparator who was unable to perform his duties in contract and/or by operation of law would have been treated the same as regards pay and the second dismissal.

 

173.   We reject the claim for breach of contract and unlawful deduction from wages as set out above.

 

174.   We reject the claim of unfair dismissal for the first dismissal on the time point.

 

175.   We reject the claim for unfair dismissal for the second dismissal.  The claimant was fairly dismissed on all three grounds relied upon.  The actions of the employer as regards procedure and penalty were within the band of reasonable response for a reasonable employer in the circumstances.

 

176.   We reject the claimant’s case that there was a widespread conspiracy to end her career and lose her job.  We do not find there to have been a continuing state of affairs whereby women and/or Polish doctors, including the claimant, were treated less favourably.  Time therefore runs from the date of each allegation.  We decline to extend time for those acts which occurred more than 3 months before presentation of the claim form.  The claimant came across to us as an intelligent person who had had the benefit of advice and assistance from the Medical Defence Union and her solicitors.  We were given no reason by the claimant for any delay in launching proceedings.  The claimant has therefore failed to discharge the burden of persuading us to extend time on just and equitable grounds or on the basis that it was not reasonably practicable for her to have lodged her claims in time.

 

177.   There was no apparent claim for whistleblowing in the claim form and we also reject that claim on the merits in any event.  We find that any impugned decisions, which occurred 6 years after the Dr Meyer complaint, were not connected to any alleged disclosure in that they were made for valid unconnected reasons so we reject any claim that the claimant suffered detriment on grounds of having made a protected disclosure.

.        

178.   The catalysts for the assessment processes and the second dismissal were the AB and GK incidents.  The full extent of the claimant’s deficiencies was then unveiled by the independent NCAS and GMC assessments.

 

179.   Throughout the case Dr De Havilland sought to categorise the claimant’s shortcomings as breaches of policies and procedures which required remediation by training.  The claimant's side also sought to separate the different incidents of concern and appeared to dispute that a holistic view of her competence could be considered. 

 

180.   The GMC’s own assessors said that remediation was unlikely to be successful and they applied to the Fitness to Practice Panel for her to be struck-off.  This shows the depth of concern about the claimant’s abilities.  We note that the claimant was noted not to have insight into her shortcomings by Dr Beckett, NCAS and GMC assessors.  This was of relevance when assessing the chances of remediation.

 

181.   We therefore reject the claimant’s characterisation of the respondents’ actions as misleading and setting her up to fail.  We also reject the claim that there was an attempt to de-skill and isolate her and that individuals were putting forward a misleading picture of her relating to her competence and in particular the use of Tramodol.  The claimant admitted key actions in relation to AB, GK and Tramadol, these were legitimate areas of concern, they occurred before any exclusion from the workplace and it was reasonable for them to be pursued, in the way that they were, by both the Trust and the Board.

 

182.   At no point did the claimant criticise NCAS or GMC nor their assessment of her abilities. The claimant sought to make distinction between breach of policies and performance issues and clinical performance issues.  Dr Thompson’s evidence was that the adverse incidents had raised issues of clinical competence.  NCAS and the GMC report concurred with this.  We reject the claimant’s point that any such distinction had a bearing in this case.

 

183.   It is clear on any reading of the documentation that the claimant’s abilities and performance as a GP fell far short of the required standard and required substantial remediation which would have involved a substantial investment of time, resources and money without any guarantee of success given the lack of insight by the claimant into her deficiencies.

 

184.   The claimant’s situation was by any measure exceptional as regards the depth of her deficiencies which were confirmed by two independent assessments.  These serious shortcomings were accepted by the claimant during the process and these were the drivers which led ultimately to her dismissal. 

 

185.   We reject the claimant’s case that Dr Carlile and Dr Booth in particular and that all other individuals involved in the Trust and Board processes acted in a discriminating way to manoeuvre her out of the organisation and out of practice as a GP because of her gender and/or race.  After careful consideration of the documents and all points made by the claimant and her representative we find no evidence of such a conspiracy.  An important thread running through this case was the importance of patient safety and we find that this consideration underpinned the decisions taken by managers.  We find patient safety to be an extremely important principle given the job in question. 

 

186.    The claimant’s claims are therefore dismissed in their entirety.

 

 

Employment Judge:       

 

Date and place of hearing:         1, 2, 3, 4, 5, 8, 9 and 11 December 2014, Belfast.                 

Date decision recorded in register and issued to parties: