Dr G Warner v Royal Surrey County Hospital NHS Foundation Trust: 3303575/2019
| Judgment Date | 04 February 2021 |
| Published date | 18 February 2021 |
| Court | Employment Tribunal |
| Subject Matter | Public Interest Disclosure |
Case Number: 3303575/2019 (V)
1
MK
EMPLOYMENT TRIBUNALS
BETWEEN
Claimant Respondent
Dr G Warner and Royal Surrey County
Hospital NHS Foundation
Trust
Held by CVP on 10, 11, 12, 13 November 2020.
Representation Claimant: In Person
Respondent: Mr T Kirk, Counsel
Employment Judge Kurrein Members: Ms S Elizabeth
Mr R Eyre
JUDGMENT
The Claimant’s claims are not well founded and must be dismissed.
REASONS
Statement on behalf of the Senior President of Tribunals
This has been a remote hearing that has not objected to by the parties. A face to face
hearing was not held because it was not practicable and all issues could be
determined in a telephone hearing. The documents that were referred to are in a
bundle of 2,672 pages, the contents of which have been recorded.
1 On 31 January 2019 the Claimant, having completed early conciliation,
presented a claim to the tribunal alleging race discrimination, public interest
disclosure detriment and unpaid wages.
2 On 22 March 2019 the Respondent presented a response in which it denied
those claims.
3 On 7 May 2019 there was an order for further and better particulars, and on 16
December 2019 EJ Vowles conducted a preliminary hearing. A further
preliminary hearing took place on 16 June 2020, and the Respondent
presented amended grounds of resistance on 10 August 2020.
4 The issues were defined at the latter preliminary hearing as follows:-
Case Number: 3303575/2019 (V)
2
Time limits I limitation issues
8.1. Were all of the Claimant's complaints presented within the time limits set
out in sections 123(1)(a) & (b) of the Equality Act 2010 ("EQA"); and sections
23(2) to (4) and 48(3(a) & (b) of the Employment Rights Act 1996 ("ERA")?
Dealing with this issue may involve consideration of subsidiary issues
including: whether there was an act and/or conduct extending over a period,
and/or a series of similar acts or failures; whether it was not reasonably
practicable for a complaint to be presented within the primary time limit;
whether time should be extended on a "just and equitable" basis; and when the
treatment complained about occurred.
8.2. Given the date the claim form was presented and the dates of early
conciliation, any complaint about something that happened before 28 August
2018 is potentially out of time, so that the tribunal may not have jurisdiction to
deal with it, subject to questions of whether there was conduct extending over
a period, a series of similar acts or failures and whether time should be
extended for presentation of the claim. The Claimant's case is that it was not
until the publication of the Roddis report on 5 September 2018 that he had
knowledge that his race/religion may have had an influence on his alleged
mistreatment.
EQA, section 13: direct discrimination because of race/religion
8.3. Has the Respondent subjected the Claimant to the following treatment:
8.3.1. The failure in most years from 2004 to 2018/19 to carry out job planning
- the ultimate responsibility for this lay with Dr Christopher Tibbs;
8.3.2. The email dated 8 September 2016 by which Dr Tibbs stated that the
Claimant "should be aware that further allegations about a colleague may be
considered vexatious if they are found to be unfounded and the Trust reserves
the right to consider appropriate action in such circumstances". The Claimant
argues that the natural interpretation of that extract is that it was an implied
threat that the Respondent would not forget that he had made a report under
the whistleblowing policy and a statement to the effect that his card was marked
because of the protected disclosure he had made;
8.3.3. The failure of Dr Tibbs and his Deputy Medical Director, Dr Marion Illsley,
who was acting under Dr Tibbs' direction, to investigate the creation of a fake
email account to try to entrap the Claimant to do non-NHS work in NHS time
within a reasonable period of the Claimant reporting this in February 2017;
8.3.4. Dr Tibbs by email sent an 2 April 2017 to the Claimant threatening to
withhold his revalidation and license to practice.
8.4. Was that treatment "less favourable treatment', i.e. did the Respondent
treat the Claimant as alleged less favourably than it treated or would have
treated others ("comparators") in not materially different circumstances? The
Claimant relies on hypothetical comparators.
8.5 If so, was this because the Claimant is Jewish and/or because of the
protected characteristic of race or religion more generally? The Claimant made
clear that his allegation against Dr Illsley is not that his race/religion had a
material influence upon her actions but that she was acting under the direction
of Dr Tibbs. He alleges that race/religion had a material influence upon the
actions of Dr Tibbs.
To continue reading
Request your trial