Mr A Hassan v University Hospitals of Morecambe Bay NHS Foundation Trust: 2411028/2021
| Jurisdiction | England & Wales |
| Judgment Date | 08 December 2023 |
| Date | 08 December 2023 |
| Citation | 2411028/2021 |
| Court | Employment Tribunal |
| Published date | 29 December 2023 |
| Subject Matter | Disability Discrimination |
JUDGMENT
Case No. 2411028/2021
1
EMPLOYMENT TRIBUNALS
Claimant:
Mr A Hassan
Respondent:
University Hospitals of Morecambe Bay NHS Foundation Trust
Heard at:
Manchester (by CVP)
On: 2-6 October & 16-17
November 2023
Before:
Employment Judge Phil Allen
Mr B Rowen
Mr J Murdie
REPRESENTATION:
Claimant: In person
Respondent: Mr A Sugarman, counsel
JUDGMENT
The unanimous judgment of the Tribunal is that:
1. The claimant did make protected disclosures to the respondent, as alleged.
2. The principal reason for the claimant’s dismissal was not that he had made
protected disclosures. The claim for automatic unfair dismissal under section 103A of
the Employment Rights Act 1996 was not well-founded and is dismissed.
3. The claimant was fairly dismissed for some other substantial reason. The
claim for ordinary unfair dismissal was not well-founded and is dismissed.
4. The claimant was not treated less favourably because of his race. His claim
for direct race discrimination was not well-founded and is dismissed.
5. The claimant was not treated less favourably because of his religion. His
claim for direct discrimination on grounds of religion or belief was not well-founded
and is dismissed.
6. The claimant did not prove that he had a disability at the relevant time. The
claims for discrimination arising from disability and breach of the duty to make
reasonable adjustments were not well-founded and are dismissed.
JUDGMENT
Case No. 2411028/2021
2
REASONS
Introduction
1. The claimant worked for the respondent as a consultant ophthalmologist from
4 November 2013. He was dismissed in a letter dated 11 June 2021 (with the last
date of employment of 13 June). The claimant claimed that he was automatically
unfairly dismissed for having made public interest disclosures or that, in the
alternative, he was ordinarily unfairly dismissed. He also alleged that he was
discriminated against due to his race and religion. He contended that he had a
disability and that he was discriminated against because of something arising from
his disability and/or that the respondent breached its duty to make reasonable
adjustments. The respondent contended that the claimant was fairly dismissed for
some other substantial reason. It denied discrimination and did not admit that the
claimant had a disability at the relevant time.
Claims and Issues
2. A preliminary hearing (case management) was conducted in this case, on 17
February 2022. At that hearing the list of issues, as they had been identified at that
time, was appended to the case management order.
3. At the start of this hearing the respondent provided a document which it said
was the agreed list of issues. The respondent’s position was that the issues had
been amended following some further particulars from the claimant, after he
questioned some of the content of the previous list, and after the respondent’s own
amended grounds of response. The respondent contended that the list it provided
had been agreed by the claimant.
4. At the start of the hearing the claimant did not agree with the list of issues
provided by the respondent, as he was concerned that the issues were not set out in
the same order as they had been in the list appended to the previous case
management order. He emphasised that he had prepared his statement to follow
that order. He did not identify any substantive issues with the proposed list. He said
that he had not had time to check the list. The claimant was asked to review the list
of issues and inform the Tribunal, when it reconvened after reading, whether he
disagreed with anything in the list of issues. When the hearing reconvened on the
second day, the claimant confirmed that he agreed the list of issues which had been
provided by the respondent. That list was accordingly treated by the Tribunal as
containing the issues which it needed to determine as agreed by the parties (albeit
that the precise order of doing so was not agreed). The list is appended to this
Judgment.
5. On the first day of the hearing the Tribunal identified two amendments to the
list of issues with which the parties agreed.
6. On the second day of the hearing the respondent’s representative confirmed
that it had previously been agreed that the protected disclosures set out at issues
4(c) and (d) were accepted as having been protected disclosures. In addition, it was
JUDGMENT
Case No. 2411028/2021
3
accepted that part of what was alleged to be the protected disclosure at issue 4(b)
was also accepted by the respondent as having been a protected disclosure made
by the claimant. The respondent did not, however, accept that the second part of
issue 4(b), was a protected disclosure which had been made. As a result, it was
confirmed and accepted that the claimant had made protected disclosures as alleged
at 4(c) and (d), and the first part of 4(b) in the list of issues. The Tribunal would need
to determine whether what was alleged at 4(a), (d), (e) and the second half of 4(b)
were protected disclosures which the claimant had made.
7. Prior to the hearing, and as a result of an application made by the respondent,
it had been confirmed that this hearing would determine only liability issues and not
issues in relation to remedy. Accordingly, in this Judgment the Tribunal has
determined the liability issues only. The remedy issues were left to be determined
later, only if the claimant succeeded in his claim or parts of it. However, at the start of
the hearing it was agreed that the Tribunal would consider and determine the
following issues alongside the liability issues, even though they were issues of
remedy and recorded in the remedy section of the list of issues: 46 and 47 (ACAS
code); 50-51 (contributory fault); and 52-53 (the issue commonly known as Polkey).
Procedure
8. The claimant represented himself at the hearing. Mr Sugarman, counsel,
represented the respondent.
9. The hearing was conducted entirely by CVP remote video technology with
both parties and all witnesses attending remotely by video.
10. The Tribunal was very concerned on the first day of the hearing whether the
time listed and available would be sufficient time for the case to be heard in the light
of the size of the bundle and the number of witnesses (and the length of the witness
statements). The respondent had prepared and provided an agreed timetable. In
summary, that provided one day for reading (following initial discussions), one and a
half days for cross examination of the claimant and his witness, and one and a half
days for cross examination of the respondent’s witnesses. The respondent’s
representative believed that the case could be heard in the time allocated (or at least
it would be possible to hear the evidence and submissions). Whilst the claimant had
no experience of Tribunal proceedings, he believed that he would be able to cross-
examine the respondent’s witnesses in the time available because, whilst he
expected to have a more significant number of questions for Ms Glass which would
take two to three hours, he had fewer questions for the other witnesses and believed
the time proposed would be enough. In fact, the claimant’s cross-examination took
two full days, being longer than the time proposed (the Tribunal having emphasised
to the respondent’s representative that his cross-examination of the claimant had to
be completed by the end of the third day).
11. An agreed bundle of documents was prepared in advance of the hearing. The
bundle ran to 2294 pages. Where a number is referred to in brackets in this
Judgment, that is reference to the page number in the bundle. The bundle contained
repeat copies of the same documents and some parts of the bundle were not
referred to during the hearing. At the start of the hearing the claimant wanted to raise
a concern regarding the bundle because he said that the provision of documents had
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