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‘Racist’ surgeon’s dismissal did not amount to discrimination, EAT finds

28 Feb 2018 By Emily Burt

But NHS trust subjected employee to ‘series of disciplinary procedures’ rather than one-off act

An NHS trust did not discriminate against a surgeon when it dismissed him after he had been recorded making a series of offensive comments against colleagues, the Employment Appeal Tribunal (EAT) has ruled.

In upholding part of the surgeon’s appeal, however, the EAT found that starting a disciplinary process for an employee can form part of continuing conduct in discrimination cases, from the start of the process until the end.

In Hale v Brighton & Sussex University Hospitals NHS Trust, Mr Peter Hale, an NHS consultant in general surgery, appealed against the 2015 decision of the London South Employment Tribunal to dismiss his claims for race discrimination and unfair and wrongful dismissal against Brighton and Sussex University Hospitals NHS Trust.

He also argued that the tribunal was wrong to treat his employers’ instigation of a Maintaining High Professional Standards (MHPS) procedure as a one-off act of discrimination, rather than a longer act extending over a period.

Hale had worked as a clinical director in general surgery at the trust between 1995 and 2015, when he was dismissed. His role included acting as a line manager for a number of junior doctors and clinical staff, including three Indian and one Pakistani doctors.

During this time, the four Asian doctors lodged a collective grievance of bullying and harassment against Hale, alleging unfair treatment, which led his employer to arrange for an external consultant to investigate the matter under a ‘dignity at work’ policy.

In December 2013, Hale chaired a meeting to discuss the introduction of a new department rota, which the four doctors attended and aired their grievances against him, while covertly recording the meeting.

Their behaviour was described as “inappropriate and aggressive; so much so that another attendee [...] lodged a grievance about their conduct", in the judgment.

An informal discussion followed between Hale and the other participants, in which Hale was recorded making racially offensive remarks.

These included: “Some of these sub-continent elements, what you end up is with long-term resentments and grievances and all sorts of stuff. They are their own worst enemies. You could see that today,” and: “They mix and match in their heads differently… they’re not clear thinkers.”

Both the junior doctors and Hale lodged formal grievances against each other over racial allegations. These included included the phrases “racism and slavery are gone”, “we are just used like slaves” and “I can prove how you have destroyed our careers”.

An independent investigation commissioned by Brighton and Sussex University Hospitals NHS Trust produced three separate reports on the grievances of the junior doctor, an MHPS report about Hale and the report into his grievance.

The first and third grievances were rejected, but the MHPS report concluded that Hale had a case to answer in respect of race discrimination “as his comments were overtly about race and/or referred to the ethnicity of the complainants when describing what he regarded as their unreasonable behaviour”.

Hale was subsequently dismissed for gross misconduct on 8 January 2015, a widely reported case at the time. Dominic Ford, NHS director of corporate affairs, said that Hale had made “racially offensive and derogatory” remarks attributed to the subjects’ “race, ethnicity and nationality”.

Hale appealed his dismissal at the London South Employment Tribunal in May 2015. The tribunal ruled that subjecting Hale to an MHPS procedure, but not the junior doctors, gave rise to some differences in treatment according to race – but this was not considered enough to shift the burden of proof, and was ruled to be a one-off act of discrimination.

The tribunal later concluded that although the decision to dismiss the claimant was harsh, given the provocation Hale had received from the junior doctors, the dismissal was fair.

The EAT upheld Hale’s appeal on grounds that the MHPS procedure subjected him to a series of disciplinary procedures culminating in his dismissal, rather than, as the tribunal found, a one-off act with continuing consequences.

“By taking the decision to instigate disciplinary procedures [...] the respondent created a state of affairs that would continue until the conclusion of the disciplinary process. This is not merely a one-off act with continuing consequences,” EAT judge Mr Justice Choudhury said.

“That much is evident from the fact that, once the process is initiated, the respondent would subject the claimant to further steps under it from time to time,” he said.

However, the EAT dismissed Hale’s allegations that the differences in treatment he faced compared to the junior doctors amounted to racial discrimination, rendering his dismissal unfair.

“I do not consider that there was any error in finding that there was such a difference rendering the complainants inappropriate comparators at the stage of dismissal [...] It is important to bear in mind that the allegation here is that the decision to dismiss was an act of direct race discrimination. That decision was taken by the director of corporate affairs at the NHS, Mr Ford, having concluded that the charges against the claimant were made out,” Choudhury said.

“There were, of course, no such conclusions in respect of the complainants. While it may be right that the reason for that was because of the failure to undertake a proper investigation, [...] Mr Ford’s decision was not tainted or potentially tainted in the same way… [as] Mr Ford conducted his own analysis of the charges and reached his own conclusions.”

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