Claimant v Spire Healthcare Limited
Outcome
Individual claims
The tribunal concluded that the claimant did not make qualifying disclosures. The tribunal found that the claimant did not have a reasonable belief that the information disclosed tended to show the relevant failures under s.43B ERA 1996, and that even if disclosures were made, the detriments were not caused by those disclosures but by legitimate patient safety concerns and performance review processes.
The tribunal found that the burden of proof did not shift to the respondent. The claimant failed to establish facts from which the tribunal could conclude that race discrimination had occurred. The tribunal accepted the respondent's non-discriminatory explanations for the treatment complained of, which related to patient safety concerns and performance management, not the claimant's Pakistani/non-white ethnicity.
The complaint of harassment related to race was withdrawn by the claimant prior to the full merits hearing.
Facts
The claimant, a consultant spinal surgeon of Pakistani origin, worked at the respondent's Montefiore Hospital in Brighton from 2014 until his practising privileges were permanently withdrawn on 28 October 2022. The claimant alleged he made protected disclosures about a colleague, Mr Cass, concerning patient safety and compliance with NICE guidance on spinal surgery. Following patient safety incidents involving patients KW and MB in 2022, the respondent suspended and then permanently withdrew the claimant's practising privileges after a Professional Review Committee (PRC) process under the Managing Consultant Performance Concerns Policy (MED06). The claimant alleged 35 separate detriments related to whistleblowing and race discrimination, including that Mr Cass had instigated complaints against him, that the investigation was biased, and that Mr Cass was not held to the same standards despite similar or worse conduct.
Decision
The tribunal dismissed all claims. It found that the claimant had not made qualifying protected disclosures because he did not have a reasonable belief that the information disclosed tended to show the relevant statutory failures, and in any event the alleged detriments were not caused by any disclosures but by legitimate patient safety concerns. The race discrimination claims failed because the burden of proof did not shift to the respondent — the tribunal accepted the respondent's explanations that the claimant's treatment was due to clinical performance and patient safety issues, not his race. The tribunal found the claimant was an unreliable witness who had convinced himself of a narrative unsupported by the evidence.
Practical note
A surgeon's concerns about a colleague's compliance with clinical guidance will not amount to protected disclosures if the tribunal finds the claimant did not reasonably believe the information disclosed showed the alleged failures, and performance management processes will not be discriminatory where patient safety concerns are genuine and the comparator consultant's cases are materially different.
Legal authorities cited
Statutes
Case details
- Case number
- 2302046/2023
- Decision date
- 1 May 2025
- Hearing type
- full merits
- Hearing days
- 12
- Classification
- contested
Respondent
- Sector
- healthcare
- Represented
- Yes
- Rep type
- barrister
Employment details
- Role
- Consultant surgeon with practising privileges
- Service
- 9 years
Claimant representation
- Represented
- Yes
- Rep type
- barrister