Claimant v Kingston Hospital NHS Foundation Trust

The tribunal found the dismissal fell outside the range of reasonable responses. The respondent failed to have regard to occupational health evidence suggesting the claimant's communication issues arose from stress related to his cancer. The investigation and disciplinary process were flawed, and dismissal was not a proportionate response in the circumstances.

The tribunal found the claimant was not guilty of gross misconduct. His behaviours arose from reduced resilience to stress caused by his cancer treatment. The respondent was therefore not entitled to dismiss without notice, and the claimant is owed 12 weeks' notice pay.

The tribunal found the claimant's dismissal was unfavourable treatment because of something (impacted communication skills and susceptibility to workplace stress) arising from his disability (colorectal cancer). The respondent failed to justify this treatment, as it ignored occupational health evidence about the link between his cancer and his behaviours. However, other complaints of discrimination arising from disability (stress risk assessment, disciplinary investigation, removal of governance role) were not upheld.

The tribunal did not find that the alleged comments by Mr Sandhu and others were made as stated by the claimant. The tribunal found it more likely that innocent remarks were misconstrued by the claimant and exaggerated into a negative narrative, given his professional insecurity and anxiety following his cancer treatment.

The tribunal found that while the claimant had done protected acts (complaints of discrimination), the various detriments alleged (disciplinary process, dismissal, appeal handling) were not because of those protected acts. The respondent's actions were motivated by concerns about the claimant's conduct and workplace relationships, not his discrimination complaints.

The tribunal found that while some of the claimant's Datix reports and complaints were protected disclosures, the various detriments alleged (disciplinary investigation, dismissal, appeal process) were not because he had made protected disclosures. The respondent's actions were motivated by concerns about the claimant's conduct, not his whistleblowing.

The tribunal found that the principal reason for dismissal was not that the claimant had made protected disclosures. The respondent dismissed him because of concerns about his conduct and workplace relationships, not because of his whistleblowing about patient safety or health and safety concerns.

The tribunal upheld the claimant's claim for accrued but untaken holiday pay in the leave year of dismissal (2023/24) in the amount of 1.5 or 2 days to be agreed or determined. The tribunal rejected the claim for rolled-over leave from previous years, finding insufficient evidence that it was not reasonably practicable for the claimant to have taken such leave.