Claimant v Lewisham and Greenwich NHS Trust

The tribunal found the dismissal unfair because: (1) the investigation was not reasonable and failed to explore key lines of enquiry such as speaking to other staff, securing CCTV and body-worn camera evidence, and considering medical explanations for the patient's allegations; (2) the dismissal decision was infected by reliance on a previous unproven complaint which should have been disregarded; (3) crucial errors in the investigation report (e.g., misrepresenting the claimant's evidence about the outer jacket) were used to undermine his credibility; (4) procedural deficiencies including failing to provide the claimant access to CCTV and ambushing him with medical evidence at the hearing. The appeal unreasonably failed to remedy these fundamental flaws despite recognising the previous complaint should not have been considered.

The tribunal found the claimant did not establish the 'something more' required to shift the burden of proof. There was no evidence presented to indicate that sex played any part in the decisions made. The claimant did not challenge respondent witnesses about whether different decisions would have been made if he had been female. The absence of any contextual evidence or indication that gender influenced the treatment meant facts were not established from which discrimination could be inferred.

The tribunal found insufficient evidence to shift the burden of proof to the respondent. The claimant's perceived heterosexuality was known (he had mentioned a 'girlfriend' in March 2021) but there was no evidence that this protected characteristic influenced any decisions. The claimant did not challenge witnesses about whether outcomes would have differed if he had been perceived as gay. Without contextual evidence or indication that sexual orientation played any part, the claim could not succeed.

Part-time workers discrimination claim failed because Dr Nigel Harrison (the proposed comparator) was not appropriate. Dr Harrison worked at a more senior level with managerial responsibilities and different duties despite occasionally working in the same department. He was a consultant with supervision responsibilities, working at a different level even if the role was occasionally similar. Without an appropriate comparator doing the same work on a full-time basis, the claim could not succeed.