A trainee surgeon who claimed his supervisor likened him “to the doctors who carried out the terrorist attack in Glasgow airport” should have his claims reheard, the Employment Appeal Tribunal (EAT) has ruled.
Southampton Employment Tribunal previously dismissed Mr R A Saad’s claims as being dishonestly motivated as he had failed his training and wanted to rescue his career.
Saad began training to be a consultant cardiothoracic surgeon at Southampton University Hospitals NHS Trust in 2003. He undertook a series of rotations with various consultants at the hospital’s Wessex Cardiothoracic Unit (CTU).
In 2006, his supervisor Mr Tsang noted Saad was not making sufficient progress and referred him to the professional support unit. Saad was assigned Ms Lusznat as a case manager. He raised concerns about unfair treatment with her but, at the time, took it no further.
Saad completed successful rotations elsewhere before returning to the Wessex CTU in 2009, and passed his exams in 2010.
In 2011, Saad again told Lusznat he felt bullied by Tsang but did not want to file a complaint. He said he had overheard a conversation between Tsang and training programme director Mr Ohri suggesting he would not complete his training.
In July 2011, Ohri handed down Saad’s final report. Ohri said he could not award Saad a pass mark, meaning he would fail his training.
Saad later acknowledged he had made some serious mistakes while operating during his training.
But that month, Saad made a series of complaints against Tsang. He claimed Tsang had described him as “a terrorist-looking person” and likened him “to the doctors who carried out the terrorist attack in Glasgow airport in 2007”.
Saad felt unable to carry out his clinical duties and went on sick leave. In August 2011, he was diagnosed with work-related stress and never returned to the unit.
In a meeting in September that year, Saad said he was willing to withdraw his complaints if he could be transferred to a different unit.
In October 2011, he claimed race discrimination and detrimental treatment for making a public interest disclosure.
The original tribunal found the claims were made in bad faith, as the trainee had wanted to delay his final assessment, be transferred to a different unit and rescue his career prospects. “[The] predominant purpose was his personal interest,” the tribunal judgment stated.
But at the EAT, judge Eady held the first tribunal had erred in its judgement of bad faith. She said: “In raising an allegation of discrimination... the employee might well be seeking to deflect the criticism they face but that does not mean they are acting in bad faith.”
The initial tribunal was found to have wrongly assumed Saad’s dishonesty – a key component to establishing bad faith. His case will return to employment tribunal to be reconsidered.
Andrew Willis, head of legal at CIPD HR-inform, said the case reinforces the elements necessary to establishing a claim for victimisation has been made in bad faith.
“As the judge points out, the employee will only need to prove that they have been honest when making a victimisation complaint, even if the original motivations for making the claim, such as avoiding a career-changing assessment, could potentially be an act of bad faith in other statutory areas,” he said
Willis added employers should thoroughly investigate all complaints of victimisation, harassment or discrimination as soon as they are made aware of the situation.