Mr M Koh v Japan Green Medical Centre Ltd: 2202141/2020
| Jurisdiction | England & Wales |
| Judgment Date | 02 March 2023 |
| Date | 02 March 2023 |
| Court | Employment Tribunal |
| Published date | 26 January 2022 |
| Subject Matter | Public Interest Disclosure |
Case Number: 2202141/2020
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EMPLOYMENT TRIBUNALS
Claimant Respondents
Mr M. Koh
v
(1) Japan Green Medical
Centre Limited
Heard at: London Central On: 06, 07, 08 and 09
December 2021
(+ 10 & 30 December
2021 in chambers)
Before: Employment Judge B Beyzade
Ms N Sandler
Mr P Secher
Representation
For the Claimant: Mr G Anderson, Counsel
For the Respondent: Ms L Prince, Counsel
JUDGMENT OF THE EMPLOYMENT TRIBUNAL
The unanimous judgment of the tribunal is that:
1.1. the claimant was unfairly dismissed by the respondent, and any
matters relating to remedy for unfair dismissal shall be determined at
a 1-day hearing to be listed before the same Tribunal by way of a
Cloud Video Platform hearing on the first open date after 1 February
2022;
1.2. the claimant’s claim for unfair dismissal for the sole or principal
reason that the claimant made protected disclosures pursuant to
Case Number: 2202141/2020
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section 103A of the Employment Rights Act 1996 is not well-founded
and is dismissed;
1.3. the claimant’s claim for detriment on the ground that he made
protected disclosures is not well-founded and is dismissed.
REASONS
Introduction
2. On 06 April 2020, the claimant presented a complaint of unfair dismissal,
unfair dismissal for the reason or principal reason that he made protected
disclosures and detriment on the ground that he made protected
disclosures. The respondent admitted that the claimant had been dismissed,
but stated that the reason for dismissal was redundancy, which is a
potentially fair reason for dismissal. The respondent maintained that they
acted fairly and reasonably in treating redundancy as sufficient reason for
dismissal.
3. A final hearing was held on 06, 07, 08 and 09 December 2021. This was a
hearing held by Cloud Video Platform (“CVP”) pursuant to Rule 46. The
Tribunal was satisfied that the parties were content to proceed with a CVP
hearing, the parties did not raise any objections, that it was just and
equitable in all the circumstances, and that the participants in the hearing
(and the Tribunal itself) were able to see and hear the proceedings. There
were also fifth and sixth hearing dates listed on 10 and 30 December 2021
when the Tribunal met in chambers (in private) for deliberations and
judgment.
4. The parties filed an agreed Bundle of Documents consisting of 1148 pages
(initially 1148 pages, and an additional page [page 1089] were filed on the
first day of the hearing). The Tribunal also had in its possession a copy of
the Tribunal file which included the claimant’s Claim Form, the respondent’s
Response Form, Notice of Hearing and Case Management Orders dated 19
October 2020.
Case Number: 2202141/2020
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5. At the outset of the hearing the parties were advised that the Tribunal would
investigate and record the following issues as falling to be determined, the
parties being in agreement with these:
(6) …
Unfair dismissal
(i) What was the principal reason for dismissal and was it a potentially fair one in
accordance with sections 98(1) and (2) of the Employment Rights Act 1996
(“ERA”)? The respondent asserts that it was redundancy.
(ii) If so, was the dismissal fair or unfair in accordance with ERA section 98(4),
and, in particular, did the respondent in all respects act within the so-called ‘band
of reasonable responses’? Particular issues which arise are:
a) Whether the claimant should have been put in a pool for selection with the
other 11 doctors?
b) Whether the selection criteria adopted were fair and objective?
c) Whether the application of the selection criteria was fair?
d) Whether the resignation of Dr. Kashima, a part-time doctor and paediatrician in
December 2019 was a relevant consideration in terms of the selection of the
claimant and Dr. Kodani for redundancy?
e) Did the Respondent fail to offer the claimant alternative employment
instead of dismissing him?
Public interest disclosure claims
(iii) What did the claimant say or write which allegedly amounted to protected
disclosures? The claimant wrote to the GMC and CQC on 28 and 30
November 2019.
(iv) In either or both of these communications, was information disclosed
which in the claimant’s reasonable belief tended to show:
a) That the respondent was failing to comply with a legal obligation to
which it was subject, in the form of its duty regarding patient clinical
safety;
b) That the health and safety of patients was being or was likely to be
endangered, as a result of cancelling appointments;
c) That the above matters were being, or were likely to be deliberately
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