Mr M Kassem v North Tees and Hartlepool NHS Foundation Trust: 2502292/2019
| Judgment Date | 17 January 2021 |
| Citation | 2502292/2019 |
| Published date | 05 February 2021 |
| Court | Employment Tribunal |
| Subject Matter | Public Interest Disclosure |
Case Number: 2502292/2019
1
THE EMPLOYMENT TRIBUNALS
Claimant: Mr M Kassem
Respondent: North Tees and Hartlepool NHS Foundation Trust
Heard at: Teesside Justice Hearing Centre On: 1 to 18 September 2020
with deliberations on
21, 23, 24 and 25 September,
26 and 27 November 2020, and
14 January 2021
Before: Employment Judge Morris
Members: Mr S Moules
Mr S Wykes
Representation:
Claimant: in person
Respondent: Ms Levene of Counsel
RESERVED JUDGMENT ON LIABILITY ONLY
The unanimous judgment of the Employment Tribunal is as follows:
1. The claimant’s complaint that the respondent directly discriminated against him
on grounds of race contrary to sections 13 and 39 of the Equality Act 2010 is
well-founded to the extent set out in the Conclusion section of the Reasons
below.
2. The claimant’s complaint that the respondent harassed him contrary to sections
26 and 40 of the Equality Act 2010 is well-founded to the extent set out in the
Conclusion section of the Reasons below.
3. The claimant’s complaint that the respondent victimised him contrary to
sections 27 and 39 of the Equality Act 2010 is not well-founded and is
dismissed.
4. The claimant’s complaint that the respondent subjected him to detriment on the
ground that he had made a protected disclosure contrary to section 47B of the
Case Number: 2502292/2019
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Employment Rights Act 1996 is well-founded to the extent set out in the
Conclusion section of the Reasons below.
5. The claimant’s complaint that the respondent made an unauthorised deduction
from his wages contrary to section 13 of the Employment Rights Act 1996 is not
well-founded and is dismissed.
6. This case will now be listed for a private preliminary hearing at which
consideration will be given to the issues to be addressed at a future remedy
hearing in relation to those of the claimant’s complaints in respect of which he
has been successful as set out above.
REASONS
Representation and evidence
1. The claimant appeared in person, gave evidence and called Mr M Tabaqchali,
retired Consultant Surgeon at the respondent, to give evidence on his behalf.
The claimant also submitted a statement from Ms N Robinson, Colorectal
Clinical Manager at the respondent, which the Tribunal read but could not give
great weight to given that she was unable to attend the Hearing due to ill-health.
2. For personal reasons, which the Tribunal accepted, Mr Tabaqchali was unable
to attend the Hearing to give evidence in the usual way. In accordance with rule
46 of the Employment Tribunals Rules of Procedure 2013, by consent, Mr
Tabaqchali’s oral evidence (the parties and the Tribunal having read his witness
statement) was given over a speaker-telephone.
3. The respondent was represented by Ms R Levene, of Counsel, who called
eleven past or present employees of the respondent to give evidence on its
behalf: namely, Mr A Sheppard, Chief People Officer; Dr B Gopinath,
Consultant Surgeon; Ms S Thompson, retired but Associate Director,
Operations (Emergency and Anaesthetic Care Service) at the time material to
this case; Mr P Bhaskar, Consultant in General Surgery; Mr D Dwarakanath,
Medical Director, Deputy Chief Executive and Consultant Gastroenterologist;
Mr C Tulloch, Deputy Medical Director; Ms L Johnson, Workforce Business
Manager; Ms T Lynch, Workforce Business Partner at the time material to this
case; Mr M Shanmugam, retired Consultant Surgeon; Mr A Agarwal, Consultant
Surgeon and Clinical Director; Ms R Dean Care Group Manager for
Collaborative Care at the time material to this case.
4. The evidence in chief of or on behalf of the parties was given by way of written
witness statements, which had been exchanged between them. The Tribunal
also had before it a bundle of agreed documents comprising well-over 3616
pages, which was added to during the course of the Hearing; the Tribunal
accepting that certain additional documents upon which the claimant sought to
rely (as referred to in his email to the Employment Tribunal dated 25 August
2020) could be introduced as they were potentially relevant to the issues in this
case notwithstanding objections raised on behalf of the respondent. The
Case Number: 2502292/2019
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numbers shown in parenthesis below refer to page numbers (or the first page
number of a large document) in that bundle.
Anonymity
5. The Tribunal considered whether the identity of persons referred to in these
proceedings should not be disclosed to the public. In doing so, we had regard
to rule 50 of the above Rules of Procedure, Articles 6, 8 and 10 of the European
Convention on Human Rights, guidance given in decisions such as British
Broadcasting Corporation v Roden UKEAT/0385/14 and F v G [2012] ICR 246
(to which we were referred by Ms Levene), Fallows & Anor v News Group
Newspapers Ltd (Practice and Procedure: Restricted Reporting Order) [2016]
ICR 801 and Hill v Lloyds Bank Plc (Disability Discrimination) [2020] UKEAT
0173/19/0603. In line with that latter decision, we invited submissions from the
claimant and Ms Levene as to whether the identity of any person should not be
disclosed, which we brought into account in coming to our decision.
6. We decided, as indeed Ms Levene had submitted, that those persons who had
been witnesses in these proceedings should be named but those who had not
been witnesses but had been referred to by those witnesses should not be
named. We were minded to adopt Ms Levene’s proposal that such persons
should simply be referred to as, for example, “Surgeon 1, Surgeon 2, etc” but
in adopting that approach the initial draft of our reasons became extremely
difficult to follow. As such, with one exception we have referred to such persons
by their title and the first initial of their surname (or where more than one person
has the same initial for their surname, to use also the first initial of their first
name) albeit recognising that someone with sufficient knowledge of the
respondent might be able to form a view as to whom reference is being made.
The exception is in relation to the individual whom we have identified as Mr Q;
the reason for that will be apparent on reading our Reasons below.
The claimant’s complaints
7. The claimant’s complaints were as follows:
7.1 Direct discrimination on grounds of race contrary to sections 13 and
39(2)(d) of the Equality Act 2010 (“the 2010 Act”).
7.2 Harassment contrary to sections 26 and 40 of the 2010 Act.
7.3 Victimisation contrary to sections 27 and 39(4)(d) of the 2010 Act.
7.4 Having been subjected to detriment by the respondent on the ground
that he made a protected disclosure contrary to section 47B of the
Employment Rights Act 1996 (“the 1996 Act”) with reference to
sections 43A to 43C of that Act.
7.5 Unauthorised deduction from wages contrary to section 13 of the 1996
Act.
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