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Case Number: 2200051/2018

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EMPLOYMENT TRIBUNALS

Claimant Respondents Mrs A West AND Great Ormond Street Hospital for Children NHS Foundation Trust Heard at: London Central On: 25 - 28 February 2019 Before: Employment Judge Brown Members: Mrs C Ihnatowicz Mr D Carter Representation: For the Claimant: In person For the Respondent: Ms A Beale, Counsel

JUDGMENT

The unanimous Judgment of the Tribunal is that: 1. The Respondent did not discriminate against the Claimant because of age when it dismissed her. 2. The Respondent did not unfairly dismiss the Claimant. 3. The provisional remedy hearing set for 17 June 2019 is vacated.

REASONS Preliminary 1. The Claimant brings complaints of unfair dismissal and direct age discrimination against the Respondent, her former employer. The issues to be


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decided in the case were set out in a Preliminary Hearing on 12 April 2018 in front of Employment Judge Clark. The issues were:

(1) Did the Respondent dismiss the Claimant for a potentially fair reason pursuant to section 98(2)(a) of the Employment Rights Act 1996, in this case, for a reason relating to her capability to perform work of the kind she was employed to do?

(2) If so, was the Respondent’s decision to dismiss the Claimant for this reason reasonable for the purposes of section 98(4) of the 1996 Act.

(3) Did the Respondent fail to follow the ACAS Code of Practice as alleged or at all?

(4) If the decision to dismiss is found to be procedurally unfair, should any compensation payable to the Claimant be reduced to reflect the fact that the Claimant would have been dismissed in any event?

(5) In dismissing the Claimant, did the Respondent treat the Claimant less favourably on the grounds of her age? The relevant age group on which reliance is placed is the over 55’s. The Claimant compares herself to a comparator in the under 55 age group.

(6) The facts from which the Tribunal is invited to infer that the Claimant’s treatment was on the grounds of age are: (6.1) In May or June 2016, the Claimant’s line manager, Ms Rait,

asked the Claimant’s colleagues, Catherine Scullard, in the course of a one to one meeting, whether the Claimant was planning to retire at 60.

(6.2) On 25 May 2017, in a meeting between the Claimant and Ms Rait, the latter alleged that the Claimant had a “mental block” about the contents of their previous meeting on 23 May 2017 and about the contents of a meeting on the 6 October 2017.

(6.3) At a return to work meeting with Ms Rait on 20 February 2017, Ms Rait stated to the Claimant, “you don’t even want to develop”.

(6.4) That the Claimant’s colleague, Tony Burrell, was managed out of the Respondent organisation by Ms Rait, due to his age (in the over 55 age group).

(7) To what remedy is the Claimant entitled if successful in her claim –

both as to injury to feelings and loss of income/pension, having regard to the Claimant’s duty of mitigate her losses (which was explained to her).

2. The Tribunal heard evidence from the Claimant. It heard evidence from David Chatterton, disciplinary hearing officer; Anthony Sullivan, Stage 3 Performance Management hearing officer; and Nicola Hewlett-Light, Human Resources support officer to the appeal hearing. 3. The Tribunal read the witness statement of Tony Burrell, a witness for the Claimant. Mr Burrell was employed by the Respondent as Admissions Coordinator for Catheter Procedures from October 2012 until June 2017 and


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worked in the Cardiac Booking Office team along with the Claimant. The Tribunal also read a witness statement of Manpreet Rait, the Claimant’s line manager between April 2016 and 11 August 2017 (the date on which the Claimant was dismissed). The parties agreed that the Tribunal should attach appropriate weight to those statements, given that both Mr Burrell and Ms Rait were unable to attend the Tribunal hearing to give evidence. Mr Burrell had to attend to a family emergency and Ms Rait was unwell. The Tribunal had refused the Respondent’s application to postpone the hearing until a time when Ms Rait would be well enough to attend. 4. There was a bundle of documents running to some 937 pages. The Respondent prepared a chronology and cast list. The Tribunal received written and oral submissions from both parties. It reserved its judgment and set a date for a provisional remedy hearing. Findings of Fact 5. The Claimant was employed by the Respondent as a Band 5 Pathway and Project Assistant Manager from 21 July 2014. In her job description, Bundle pages 432-433, the Claimant’s role had two Band 4 employees and one Band 3 employee directly reporting into it. The parties agreed at the Employment Tribunal hearing that, in fact, throughout her employment, the Claimant had one Band 3 employee directly reporting to her. 6. In her job description, the Claimant’s role was described as requiring the Claimant to “.. take full responsibility for actively managing all patients from referral to treatment within the 18 week timeline… To ensure that no patient experiences unnecessary delay in their journey, through closely working with the Clinical Team, Unit Management and Corporate functions to ensure that the child’s admission to hospital is well coordinated and that the pre-surgical investigations are planned in advance. To be able to show the efficacy of the Pathway Coordinator role through consistently accurate information on all patients within the specialty …. The post holder will have direct management responsibility for the cardiac-respiratory waiting list administration staff and will ensure the provision of comprehensive and effective administrative support service to all users … The post holder is responsible for scheduling patients for admission in line with the consultant’s specific requirements. This involves careful planning of the individual admissions whilst also being mindful of the theatre case mix for each consultant …”. 7. When the Claimant started in post, her line manager was Emily Trew. The Claimant worked within the Respondent’s cardiorespiratory service, in its Cardiac Booking Office. The service is the major referral center in the UK for children with complex heart and lung conditions, as well as those with congenital and acquired heart disease. The Cardiac Booking Office (“CABO”) within the service coordinates and books diagnostic and therapeutic appointments for cardiac and respiratory admissions to the cardiorespiratory service. The Trust receives referrals of patients from other NHS Trusts for more specialised treatment.


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8. When the Trust receives a referral for a patient who requires further treatment, this is considered at a weekly Joint Cardiac conference “JCC”. The Claimant was responsible for attending and administering the cardiac surgery JCC. Each JCC is attended by the booking coordinator (the Claimant in this case) and a team of specialised surgeons and consultant doctors. At each JCC, patients are discussed and the patient’s future journey is decided; that is, the medical practitioners review the patients’ medical records and decide the treatment plan for the patient, which includes specifying the clinical urgency to be attached to the patient. 9. As part of the Claimant’s role the Claimant would record the treatment plan for each cardiac surgery patient at the cardiac surgery JCC and would then book surgery slots for those patients recommended for surgery. Following the JCC, it was therefore the Claimant’s responsibility to enter the patients into the Trust’s Patient Information Management System (PIMS) within 24 hours, and then, having entered the patients onto the waiting list, to allocate patients to the Respondent’s cardiac surgery slots. The Claimant would have to take into account a number of factors in doing so, including the urgency of the patient’s need for surgery, the time a patient had spent on the waiting list, the capacity of the Respondent to conduct the surgery, private patients and availability of medical staff. 10. It was not in dispute that any mistake or delay in booking a patient for surgery - particularly beyond the date by which surgery was required to be carried out by the medical practitioners - could have very serious consequences for the relevant patient’s health. 11. Manpreet Rait started employment with the Respondent on 18 April 2016 as Patient Pathway Manager. She was the Claimant’s line manager from that date. Emily Trew had been promoted and became Ms Rait’s line manager. 12. It was not in dispute that, before Manpreet Rait came in to post, the Respondent recognised that it was not complying with Referral to Treatment (“RTT”) targets in relation to its cardiac surgical bookings. It was not in dispute that Manpreet Rait was given responsibility for ensuring that processes were implemented so that cardiac surgical bookings became Referral to Treatment (RTT) target-compliant. On taking up her post, Ms Rait reviewed the performance and processes of all employees in the Cardiac Booking Office. 13. Ms Rait believed that there was a backlog in booking patients for cardiac surgery and met with the Claimant on 10 May 2016, when she commenced an informal performance management process. Ms Rait asked the Claimant to reduce the backlog and gave guidance as to how she should go about this, page 107. Ms Rait met with the Claimant again on 16 May 2016 and agreed with her a new process for booking patients for cardiac surgery. This included all JCC patients being added to the waiting list within 24 hours, letters being sent to patients within 7 days of being added to the waiting list and/or patients being telephoned and having a date for hospital admission confirmed within 2 weeks of being added to the waiting list, page 108(a). The Claimant signed the new process to show her agreement with it.


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14. By 26 May 2016 Ms Rait was very pleased with the Claimant’s progress and emailed her that day in glowing terms, praising her work and commitment, page 122. 15. On 10 June 2016 Ms Rait met with the Claimant again. She told the Claimant that she believed that the Claimant had turned over a new leaf and had done an excellent job over the preceding 4 weeks. Ms Rait sent a letter to the Claimant on 13 June 2016 arising out of their meeting. She said that, in order to meet the requirements and expectations of the Claimant’s role, the Claimant and Ms Rait had agreed objectives. Ms Rait enclosed the objectives with her letter. She said that, if there were no further concerns, then the informal process would be concluded; but if the same, or similar, performance concerns reoccurred within 12 months, the process would be reentered at the point that had been reached. In her letter, Ms Rait told the Claimant that she had a personal responsibility to ensure that she asked for assistance if she was struggling with any aspect of her work and that, if that were the case, Ms Rait could review the objectives again. She also said that she trusted that the letter accurately reflected their discussion. She invited the Claimant to contact her if she wished to clarify it, page 144b-144c. The Claimant did not challenge the letter. 16. On 23 June 2016 Manpreet Rait held a Standard Setting Meeting with the Claimant to discuss concerns about the Claimant’s behaviour towards a colleague, page 132-133. She sent a letter to the Claimant confirming the outcome. This was not a formal warning under the Respondent’s disciplinary policy. No further action was ever taken with regard to this. 17. The Claimant had yearly Personal Development Reviews, or appraisals, while employed by the Respondent. Her Personal Development Review for 2014-2015 graded her overall performance as “excellent”, page 851. 18. On 20 July 2016 Ms Rait conducted the Claimant’s personal development review for 2015-2016. She graded the Claimant’s overall performance as “good”; that is, “Performance consistently met expectations in all areas of responsibility. The quality of work overall was good”. Page 858. In the appraisal, Ms Rait said that she had discussed time management courses with the Claimant, but the Claimant had felt that they would not help. Ms Rait also assessed the Claimant’s behaviour as “good”. She set objectives for the Claimant. Ms Rait’s comments were, “Adrienne is a hard-working member of the team and sometimes needs to focus on the tasks set instead of always helping staff with questions and queries which takes a lot of time up as well as takes her away from bookings. We have discussed this at great length and as a result she has been set objectives which are specific to her role in the hope of improving the management of bookings. We have since started stage one performance management and have another review meeting set for 31 August 2016 …”. Page 860. 19. Also around 20 July 2016 Ms Rait held a Stage 1 informal meeting under the Trust Performance Management policy. Ms Rait had developed further concerns about the Claimant’s performance. She highlighted that 63% of patients on the waiting list had yet to have a date booked for surgery and that


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some patients were not being contacted for 5 to 6 weeks. Further, some patients who had had their surgical dates confirmed face to face had not had these dates entered into the Respondent’s computer system. Ms Rait gave the Claimant further objectives in the meeting and set a monitoring period of 6 weeks, pages 147-149. 20. On 27 July 2016 the Claimant raised concerns about Ms Rait’s treatment of her with Sherine Bryan, HR business partner, page 165-166. Towards the end of August 2016, the Claimant met with Emily Trew, Ms Rait’s manager, to discuss the Claimant’s concerns about Ms Rait. This meeting took place outside the 10 days specified in paragraph 7.1.4 of the informal stage of the Respondent’s Dignity at Work Policy, page 79. 21. On 2 September 2016 Ms Rait met with the Claimant at a further Stage 1 informal performance review meeting. Ms Rait told the Claimant that she accepted that booking surgical lists 6 weeks in advance been had difficult to achieve because of things outside the Claimant’s control, so that it was then agreed that the surgical slots should be booked 2 weeks in advance. Ms Rait acknowledged that there had been an improvement in surgery booking, with more patients being booked. Ms Rait said that she had therefore temporarily concluded the Claimant’s informal performance management, page 158-159. 22. The Claimant contended that, in reality, Manpreet Rait had not wished to end the informal performance management process and that she had been told to do so by Ms Trew. Ms Trew was interviewed later pursuant to a Claimant’s grievance against Ms Rait. Ms Trew said, with regard to the informal performance management process, that she had discussed the matter with Ms Rait; Ms Rait was “on the fence” about concluding the process, but had not said that she thought that the process should proceed. Ms Trew made clear that she did not instruct Ms Rait to conclude the process; Ms Trew said that it was a joint agreement between the two that the Stage 1 process should be ended, page 206. The Tribunal found that Ms Trew and Ms Rait agreed to conclude the process – it accepted Ms Trew’s account of their discussions. 23. The Claimant contended that, in May or June 2016, during a meeting with Catherine Scullard, the Respiratory Tracheal Thoracic and Cardiorespiratory Transplant Admission Coordinator, Ms Rait had asked Ms Scullard whether the Claimant was planning to retire at 60. The Claimant gave evidence about this to the Tribunal. She said that, after the one to one meeting, she had asked Ms Scullard how it had gone and Ms Scullard, unprompted, had told the Claimant that Ms Rait had made this comment. The Claimant told the Tribunal that Ms Scullard said that she had been embarrassed and was uncomfortable about being asked about the Claimant’s retirement plans by Ms Rait. 24. During an investigation meeting into the Claimant’s grievance about Ms Rait, Ms Scullard was asked about whether Ms Rait had said that she expected the Claimant to retire. Ms Scullard said that Ms Rait had asked how old the Claimant was and if Ms Scullard knew whether the Claimant had any plans to retire. She said that it was just a general question. Ms Scullard was also asked whether Ms Rait had made a comment about managing an older worker. Ms


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Scullard responded that she did not think Ms Rait had specified that her management experience had been of an older worker; she had simply had a conversation with everyone about staff that she had managed in the past, page 252. In her written witness statement, Ms Rait denied that she had ever asked Ms Scullard whether the Claimant was planning to retire at 60. 25. On the evidence, the Tribunal found that, in a one to one meeting in June 2016, Ms Rait did ask Ms Scullard how old the Claimant was and whether Ms Scullard knew whether the Claimant had plans to retire. Ms Scullard told the grievance investigation that this happened and she also mentioned the conversation to the Claimant immediately after it had occurred. The Tribunal preferred Ms Scullard’s account to the grievance investigation to Ms Rait’s written witness statement. 26. On 5 October 2016 Ms Rait spoke to Pauline Whitmore, the Respondent’s Operational Manager. Ms Whitmore raised the matter of two patients who had been discussed at a JCC on 22 September 2016 and identified as needing urgent surgery, but had not been booked into a surgical slot. Pauline Whitmore was angry as the patients were clinically deteriorating and should have been allocated a surgery slot urgently. Ms Rait and Ms Whitmore agreed that the Claimant should be temporarily removed from her cardiac surgical booking role, to undertake a different role within the office, to allow an investigation as to why this had occurred. Ms Whitmore considered that the matter was a serious incident and said that she had lost confidence in the booking service. 27. Ms Rait called the Claimant to a meeting on 6 October 2016. What was said in that meeting was in dispute between the parties; in particular, whether the details of these patients were discussed. However, it is clear that Ms Rait told the Claimant that she would be moved from her current role to a different role in the office and that there would be an investigation, page 162-164. 28. On 7 October 2016 the Claimant was signed off work sick, with stress. On the same day the Claimant emailed Sherine Bryan in Human Resources, saying that she wished to formalise her complaint about bullying and harassment by Manpreet Rait, page 165-166. On 1 November 2016 the Claimant submitted a complaint against Ms Rait under the Respondent’s Dignity at Work Policy, page 196-203. In her complaint, she said that Ms Rait would speak to the Claimant in an aggressive and belligerent manner. She complained about the performance management processes which had been undertaken and said that Ms Rait had not accepted the Claimant’s explanations in respect of the Claimant’s working practices. 29. Later in November 2016, the Respondent decided to progress the Claimant’s complaint about Ms Rait to the formal stage of the Respondent’s Dignity at Work Policy, so that a formal investigation would be undertaken, page 211-212. The Claimant had had a meeting about her Dignity at Work complaint on 16 November 2016. In the meeting, she explained her concerns were that, from the outset, Ms Rait had wanted to remove the Claimant from her job and had set the Claimant up to fail, that the way Ms Rait spoke to the Claimant was


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humiliating and that Ms Rait had treated the Claimant differently to the other members of the team and had singled her out. 30. Victoria Banks was appointed as investigating officer for the Claimant’s Dignity at Work complaint. She interviewed the Claimant; Ms Rait; Catherine Scullard; Emily Trew; Fiona Osei-Akoto, a Catheter Admissions Coordinator in Ms Rait’s team and Tony Burrell, who was also a Catheter Admissions Coordinator. Ms Banks produced an investigation report in January 2017, page 281-300 which addressed the Claimant’s four allegations: one, that Ms Rait had behaved in a very aggressive and belligerent manner towards the Claimant; two, that Ms Rait had harassed and bullied the Claimant; three, that Ms Rait had treated the Claimant differently to other members of the team regarding working practices; and four, that it had been Ms Rait’s intention, since she commenced in post, to remove the Claimant from her job role. The Claimant had suggested that Mr Burrell and Ms Osei-Akoto be interviewed as part of the investigation. 31. In her investigation report, Ms Banks noted that Mr Burrell and Ms Osei-Akoto did say that they had witnessed aggressive and belligerent behaviour from Ms Rait towards the Claimant and other team members. She also noted that Catherine Scullard said that all the team had been taken aback by Ms Rait’s approach, but that Ms Rait had not been aggressive or belligerent to anyone. Ms Trew had said that there had been “intense” meetings between Ms Rait and the Claimant, but that it was the Claimant who would invade Ms Rait’s personal space and get very angry. 32. Ms Banks said that she did not consider that allegation one should be upheld. With regard to allegation two, Ms Banks concluded that Ms Rait had handled performance issues in a fair and firm way and had employed the use of a log sheet technique to successfully address issues with performance. Ms Banks said that, according to the Respondent’s Dignity at Work Policy, managing performance would not be regarded as bullying and harassment. She therefore said that allegation three should not be upheld. Regarding allegation four, Ms Banks said that she had not been able to verify the Claimant’s version of events; a number of the witnesses had referred to Ms Scullard’s exemplary organisational skills and suggested that it would not be surprising that Ms Rait would have preferred Ms Scullard to help the Claimant. Ms Banks said that there was insufficient evidence to uphold allegation four. She therefore said that the case should not be considered at a formal disciplinary hearing against Ms Rait. However, Ms Banks made recommendations as to the future working of the team. She said that Ms Rait had not always acted in a manner that was befitting of a manager and that Ms Rait should undertake some form of management and leadership training, with particular focus on communicating and engaging with staff members, conflict resolution, coping under pressure and dealing with difficult employees. She also recommended that Ms Rait and the Claimant should engage in mediation. Lastly, she recommended that the Claimant undergo training on resilience to help her cope if she was subject to performance management processes in the future, page 300. 33. On 14 February 2017 Alexander Cox, Service Manager, wrote to the Claimant saying that the allegations against Ms Rait had not been upheld, but


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that it had been recommended that the Claimant and Ms Rait undertake mediation and that Ms Rait undertake management and leadership training. The Claimant did not appeal the outcome of her grievance. In his letter, Mr Cox told the Claimant that she had the right to request a review following the outcome of the investigation, within 10 working days. The Claimant did not ask for a review. She told the Tribunal that, if she had seen the notes of the investigation meetings, she would have done.

34. On 14 October 2016 Emily Trew wrote to the Claimant saying that there had been 3 patients who had not been actioned following JCC discussion. She said that there was a major concern that the patients had not been treated within timescales that were medically advised and could be at risk of clinical harm. Ms Trew said that she would compile a fact-finding document for a decision on what next steps were appropriate, page 190-192. Suzanne Cullen was appointed investigating officer and produced a report in December 2016, page 213-228. She recommended that two allegations against the Claimant be considered at a formal disciplinary hearing:

1. “Following the JCC meeting on 22 September 2016 3 patients were identified that you have failed to action their outcomes.”

2. ” You failed to action a number of patient outcomes within the required timeframe resulting in a delay to their surgical booking”.

35. The Claimant returned to work briefly on 28 December 2017, undertaking the respiratory admissions booking role, page 263, but was signed off work again for a further period on 16 January 2017, page 280. 36. The Claimant was invited to a disciplinary hearing on 8 February 2017. David Chatterton chaired the disciplinary hearing. At the hearing the Claimant was asked about the allegations and gave her account. She accepted that she sometimes made mistakes, but said that she had struggled to keep on top of her work after another member of staff had left. The Claimant said that she frequently worked beyond her contracted hours. 37. The outcome of the disciplinary hearing was that allegation 1 was partially upheld. The disciplinary found that the booking office had a process in place whereby surgical slots were allocated to urgent patients, but that the Claimant had not followed that process because there was a bed shortage. The Claimant did not know that the allocation of a surgical slot had a direct impact on the process of prioritising bed allocations to patients who were currently in outlying hospitals. The Claimant’s actions in not allocating surgical slots delayed the admissions of these patients for surgery. Allegation 1 was therefore upheld in relation to 2 patients. 38. With regard to allegation 2, Mr Chatterton’s panel found that patients had unnecessary delays in their pathways because the Claimant had failed to action outcomes that the Claimant had herself recorded. Mr Chatterton’s panel, however, were satisfied that this was not due to any intent to ignore protocol or


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cause harm and, therefore, allegation 2 was not upheld under the Respondent’s Disciplinary policy. 39. The panel decided that the appropriate disciplinary outcome was to issue the Claimant with a first written warning in respect of allegation 1, which would be held on her file for 12 months. However, the panel also decided that the facts relation to allegation 2 reflected similar concerns to those dealt with at Stage 1 of the Performance Management policy by Manpreet Rait in 2016. It therefore recommended that the Claimant be escalated to Stage 2 of the Performance Management Policy. 40. The disciplinary panel also made a number of recommendations for management: that the current booking processes should be reviewed and revised, to be developed into Standard Operating Procedures; that there should be regular booking office team meetings; and that documentation on the JCC front cover sheet needed to be improved, amongst other things, page 398-401. 41. The Claimant did not appeal the outcome of the disciplinary hearing. In the letter advising her of the outcome, she was told that she had the right to appeal and should do so within 10 days, page 401. The Claimant told the Tribunal that she had not appealed because she was simply happy to be returning to work. 42. On 20 February 2017 the Claimant returned to work, following her sickness absence. 43. The Claimant told the Tribunal that, at her return to work meeting with Ms Rait on 20 February 2017, Ms Rait said to her, “You don’t even want to develop”. She told the Tribunal that no one else was present. The Claimant gave a detailed account of meetings she had on 20 February 2017 in paragraphs 67-71 of her witness statement. She did not mention Ms Rait saying, “You don’t even want to develop,” in any meeting. Later in the Claimant’s witness statement, at paragraphs 103-108, she gave evidence about her age discrimination complaints. At paragraph 105, she said, in general, that Ms Rait would accuse both Tony Burrell and the Claimant of not being interested in developing in order to progress their careers in the NHS. 44. In Manpreet Rait’s witness statement she denied having used those words, paragraphs 96.2 and 96.3. Laura Walters attended one of the Claimant and Ms Rait’s meetings on 20 February 2017 and sent a detailed note of it to Ms Rait and the Claimant the following day. There was no record in that note of Ms Rait questioning the Claimant’s willingness to develop. 45. Given that the Claimant’s evidence about Ms Rait saying that the Claimant “did not even want to develop” was expressed in very general terms and that the Claimant omitted any mention of this alleged comment in her detailed account of the meetings on 20 February 2017, the Tribunal did not accept the Claimant’s evidence that Ms Rait used those words. The Claimant’s evidence was vague and insubstantial.


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46. The Claimant met with Ms Rait and Laura Walters, Deputy General Manager, on 20 February 2017. At the meeting, all agreed that the Claimant’s performance management would restart after the Claimant had settled back into her role, about two weeks later. They discussed the recommendations from the disciplinary hearing and agreed that, either these had already been carried out, or that Ms Rait would take action regarding them, pages 484-485. 47. The Claimant and Ms Rait attended mediation on 27 February 2017, pages 500-501. The mediation was successful and the Claimant told the Tribunal that she felt hopeful after it. 48. On 10 March 2017 Ms Rait supplied the Claimant with the Standard Operating Procedures developed to ensure that proper processes were followed in the booking office. The Claimant responded with comments on them on 13 March 2017, page 505-506. Laura Walters asked Emily Trew to have a meeting with Ms Rait and the Claimant, to go through the Claimant’s feedback on the Standard Operating Procedures, because she believed that some of the points raised by the Claimant were valid. Ms Walters said, in an email to Human Resources, that Formal Performance Management was yet to commence and would be subject to the Standard Operating Procedures being finalised, page 514a. 49. On 21 March 2017 Manpreet Rait emailed Laura Walters and Emily Trew, saying that she had met with the Claimant that morning and had started her Stage 2 Performance Management Procedure. She said she had gone through the Standard Operating Procedures and SMART objectives with the Claimant, who was happy with what she was shown. She said that the Claimant had raised some concerns about timeframes because the department was short staffed and Manpreet Rait had assured the Claimant that she would make reasonable adjustments in such situations. 50. At the Stage 2 Formal Meeting with Ms Rait on 21 March 2017, the Claimant and Ms Rait agreed SMART objectives for the Claimant to achieve. Ms Rait told the Claimant that there would be a further monitoring period of 5 weeks and that she would meet the Claimant again on 25 April 2017, for a first formal review, to review the Claimant’s progress. If the objectives were met in full and there were no further concerns, Ms Rait told the Claimant that the process would be concluded. 51. Ms Rait sent the Claimant a letter on 28 March 2017, confirming the Claimant’s objectives and the date of the review meeting, pages 516-521. In the letter Ms Rait said, as she had stated in other letters, that it was the Claimant’s responsibility to ensure that the Claimant asked for assistance if she was struggling with any aspect of her work and that the objectives could be reviewed. She also said that, if the Claimant had further reflected on the meeting and felt that she required further support to be given, or that there were factors which would prevent her from achieving any of her objectives, then the Claimant should let Ms Rait know at the earliest possible opportunity.


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52. The Claimant did not reply saying that the objectives were unachievable or that she needed additional support. 53. Ms Rait arranged weekly “catch up” meetings with the Claimant, to monitor her progress. 54. Ms Rait held a performance review meeting with the Claimant on 12 May 2017. The Claimant’s objectives had been:

i. to adhere to the surgical booking SOP in order to meet Trust-wide and national requirements for patient access;

ii. to ensure appropriate and transparent management of patient records; and

iii. to maximise theatre capacity.

55. In cross examination at the Tribunal, the Claimant conceded that objectives (i) and (iii) were essentially the same as the objectives which had been reviewed in the 2016 Stage 1 informal performance management process. She also agreed that maintaining appropriate and transparent management of patient records was something which would be expected in her role, in any event. 56. At the 12 May meeting, Ms Rait told the Claimant that she believed that the Claimant had failed to demonstrate any consistent progress in adhering to the surgical Standard Operating Procedure. She said that this had been evident in her spot checks of the Claimant on 28 March, 12 April, 24 April and 4 May, when Ms Rait found that there was evidence that urgent patients were not being called at the correct intervals and were, in some cases, booked for surgical procedures by giving parents only 1 week’s notice, when the Claimant had been aware of the relevant patient for 8 weeks. She said that, with routine patients, there was also evidence to suggest that patients had not been booked in a timely fashion as specified in the SOP, and were not contacted 3 days apart. She also said that the Claimant had not been booking 4 weeks ahead according to the agreed SOP because the surgical pump list had only been booked 1.5 weeks ahead; some patients had reappeared and remained unbooked over the course of the 4-week review. Ms Rait said that, while there had been a significant reduction in the paperwork kept in and around the Claimant’s desk, and the Claimant had shown improvement overall, the Claimant had nevertheless failed to file paperwork consistently, which resulted in patient queries being held or stored in plastic wallets. With regard to objective (iii), Ms Rait said the Claimant had failed consistently to demonstrate over a 4-week period any progress towards maximising theatre capacity. She said that the surgical pump list used on a weekly basis highlighted prospective patients which should have been contacted and booked but were not. She said, “On a weekly basis there were a number of patients that would remain unbooked even when we had agreed that you would priorities this”. 57. Ms Rait told the Claimant that she had met with Human Resources and had been advised to extend the management review period for 2 weeks, to give the Claimant a further opportunity to achieve the objectives. The Claimant said that the objectives were unachievable.


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58. In the meeting on 12 May, Ms Rait noted that the Claimant had not previously said that they were unachievable and had agreed the objectives on the commencement of the monitoring period. Ms Rait asked the Claimant whether there were any factors effecting her performance, or whether further support or training that could be provided. The Claimant said that it was not a matter of support or training, but that day to day events prevented the Claimant from achieving her objectives. The Claimant confirmed, in evidence to the Tribunal, that she and Ms Rait had agreed to disagree on that. 59. The Claimant and Ms Rait agreed that, given that the Claimant was going on annual leave, the 2-week further monitoring period would start on Monday 22 May 2017. 60. Ms Rait confirmed what had been said in the meeting by letter to the Claimant on 24 May 201, page 532-5357. 61. The Claimant attended a further review meeting with Ms Rait on 16 June 2017. The Claimant was accompanied by her Unison union representative. At this meeting, Ms Rait told the Claimant that the Claimant’s objectives had not been met in full and that Ms Rait would be escalating her concerns with the Claimant’s performance to a Stage 3 Final Formal Hearing by an independent manager. Ms Rait told the Claimant that a possible outcome of that hearing could be the termination of the Claimant’s employment on the grounds of capability, pages 575-576. 62. On 20 June 2017 Ms Rait sent a letter to the Claimant confirming the outcome of the Stage 2 Formal Review meeting, pages 575-576. 63. The Claimant told the Tribunal that, on 25 May 2017, in a meeting between the Claimant and Ms Rait, Ms Rait said that the Claimant had a mental block about the contents of a previous meeting on 23 May 2017 and also about a meeting on 6 October 2016. In her witness statement to the Tribunal, Ms Rait denied using the phrase “mental block” and said that she had never said the Claimant had forgotten anything at work. The Claimant gave no detailed evidence about this in her witness statement; she said generally that Ms Rait would accuse Mr Burrell and the Claimant of forgetting things. Again, the Claimant’s evidence on this was vague and unconvincing. It gave no details at all about the meeting on 25 May 2017, or the context in which Ms Rait was alleged to have used the words. The Tribunal did not accept that Ms Rait alleged that the Claimant had a mental block. 64. Ms Rait commenced maternity leave on 21 July 2017. Before she went on maternity leave, Ms Rait prepared the Management Report for the Stage 3 Final Hearing, Emily Trew amended it, producing a final version on 16 July 2017, pages 684-749. 65. The Management Report set out each of the performance management meetings which Manpreet Rait had conducted with the Claimant, including weekly review meetings on 28 March, 12 April, 24 April, 4 May and 12 May 2017. It recorded that particular patients had been discussed in each meeting and that,


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in the majority of cases, the patients had not been treated in accordance with objectives (i), (ii) and (iii). The details of the patients were attached in appendices 9, 10,11 and 12 of the Management Report. It also stated that further patients were discussed at a 1 June 2017 review meeting and a 16 June review meeting. Details of those patients were attached in appendices 14 and 16. Once more, the Management Report said that the majority of patients discussed in those meetings did not meet at least one of the objectives. The patient numbers of the relevant patients were included in the appendices, so that the Claimant was able to identify which patients were being referred to. 66. The Claimant accepted, in cross examination at the Employment Tribunal, that patients had been discussed during weekly review meetings, but said that she had no way of establishing whether the patients referred to in the Management Report were the same as the patients who had been referred to in the review meetings. She said she had not received the appendices during the weekly review meetings, but had only received the appendices when they were attached to the Management Report. 67. The Management Report said, for example, of the 28 March 2017 review meeting, “During this meeting 20 patients were discussed. 18 patients did not meet objective 1 in that they were not booked in line with the Trust’s Standard Operating Procedures. 9 patients did not meet objective 2, to have appropriate and transparent management of their patient record and 17 patients did not meet objective 3 as the surgical list was not booked four weeks in advance. Full details of these patients can be found in appendix 9”, page 867. 68. Mr Sullivan, who chaired the Stage 3 meeting, told the Tribunal that the patients who were mentioned in the appendices to the report were the same patients who had been discussed in the meetings, albeit he agreed that he was not in the review meetings and so could not personally confirm this. 69. The Tribunal found that the Management Report was a detailed account of the meetings undertaken with the Claimant and that the appendices attached to the management report corresponded with the numbers of patients which were identified as having been discussed at the weekly meetings. It therefore found that the patients mentioned in the appendices were the same patients who had been discussed with the Claimant during the performance management process and that the Claimant had sufficient information in order to provide her response on those patients; she knew the patients’ numbers and could identify the patients from those. 70. On 18 July 2017 David Chatterton, who had, at that time, been appointed to chair the Stage 3 Final Formal Hearing, invited the Claimant to the Final Hearing. The Claimant was also provided with a copy of the Management Report, page 680. On 19 July 2017 the Claimant asked for the Stage 3 Hearing to be rescheduled because she would be on leave on the date set, page 680. On 21 July 2017, the Claimant objected to Mr Chatterton chairing the hearing because he had conducted her disciplinary hearing the previous year. Pursuant to the Claimant’s request, the Respondent substituted Anthony Sullivan, who had not previously been involved in the Claimant’s disciplinary or management


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processes, as the hearing manager and invited her to a rescheduled hearing to be held on 2 August 2017, pages 681-682. 71. On 27 July 2017 the Claimant asked for the hearing to be further rescheduled to allow her to fully prepare her case, page 750. On 28 July 2017 the Respondent emailed the Claimant, saying that the hearing would be rescheduled on one further occasion and, on 1 August 2017, the Claimant was invited to the rescheduled Stage 3 Final Formal Hearing to be held on 9 August, pages 752-753. 72. On 7 August the Claimant sent a detailed rebuttal statement to the Respondent in preparation for the Stage 3 Hearing, pages 755-768. In her rebuttal statement she questioned the details and dates given for patients included in appendices 9, 10, 11, 12, 14, 16, 18 and 19. She set out explanations for why relevant patients should not have been included as examples of the Claimant failing to achieve her objectives. 73. The Claimant attended the Stage 3 Final Formal Hearing on 9 August 2017. The Hearing was conducted by Anthony Sullivan, with Joanne Davey as HR support. The Claimant attended with her union representative, Ben Levy. Emily Trew presented the management case. 74. During the meeting, the Claimant felt that Mr Sullivan was not interested in going into the detail of patients, or exploring the Claimant’s explanations about patients included in her rebuttal document. She challenged Mr Sullivan about this, page 792. 75. The Claimant was asked during the Stage 3 Hearing whether she thought that she had a performance issue; she said that she did not and that no one had narrowed it down for her. She said that she worked hard, was dedicated and committed. She said she had taken steps to improve, for example with transparency of records, page 800. 76. During the hearing, Joanne Davey said to the Claimant that, whilst Mr Sullivan and Ms Davey acknowledged that the Claimant had provided some examples in her paper where she disagreed with the management case, management had still provided significantly more examples of concerns with the Claimant’s performance. Mr Sullivan said that, for example, when 18 out of 20 patients had not been booked correctly and the Claimant had questioned only some of the examples, the meeting wanted to get the Claimant’s case about the ones which were not in dispute. The Claimant responded that there were no records of the relevant meetings, so that she could not confirm or deny that the patients were the ones that were discussed in the meetings, page 802. The Claimant was questioned on this; Ms Davey asked the Claimant whether Ms Rait had provided examples of patients at each meeting and the Claimant responded that they went through the theatre pump list (that is, the list of patients scheduled or surgical procedures). The Claimant did not deny that the appendices were an accurate record of what was discussed; she simply said that she could not confirm that they were. Page 803.


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77. The Stage 3 meeting lasted for two and a half hours. The Claimant confirmed, in evidence to the Tribunal, that she had had an opportunity to say everything that she wanted to say in response to questions. 78. The Claimant cross examined Mr Sullivan at the Employment Tribunal and said that the panel had not taken into account the discrepancies she raised, nor had it put the Claimant’s case to Ms Trew. Mr Sullivan said that he had taken the Claimant’s statement for the Stage 3 Hearing into account, but considered that, while the Claimant had questioned about 31 of the 117 patients listed in the management case, there remained a large majority of patients in respect of whom the Claimant had not provided an explanation. 79. The Claimant was invited to a reconvened Stage 3 Final Formal Hearing on 11 August 2017. Mr Sullivan had taken time after 9 August 2017 to consider his decision. On 11 August 2017 he told the Claimant that he had decided to dismiss her for her performance. This was confirmed in writing by letter of 17 August 2017, pages 841-846. 80. In the letter of dismissal, Mr Sullivan said that the Claimant was only performing about 60/70% of her role because 30/40% of her role was line management. He said that, in relation to support, education and training opportunities, the Claimant had clarified that she had been previously offered time management training but had declined it; that it had been suggested that the Claimant work for half a day in a separate office without the interruptions of phones, but the Claimant had not pursued this opportunity as she had not wanted to appear to be treated differently to colleagues. Mr Sullivan recorded that, when asked in the Stage 3 Meeting what support the Claimant felt she needed, the Claimant said that she needed admin support, a sounding board and positivity. Mr Sullivan recorded that, whilst the Claimant could not specifically recall whether the examples of poor performance detailed in the management report corresponded to those discussed with her as part of the performance management process, the Claimant did agree that weekly meetings took place between herself and Ms Rait, at which examples relating to poor performance and objectives were discussed. In his conclusions, Mr Sullivan said that he was satisfied that the Trust’s Performance Management Policy had been correctly applied. He said that the Claimant lacked insight and ownership, in that she tried to explain poor performance, rather than acknowledging, as a Band 5 manager, that it was her responsibility to identify issues and solutions and to escalate them. He said that the Claimant’s performance was impacting on the department and the service provided to patients and that, while there had been extended monitoring periods, there had been no significant or sustained improvement in performance across the 3 objectives. He said that the panel had been provided with a large number of examples of poor performance, including recent examples, across all 3 objectives. He said that he believed that there were many examples of the Claimant’s poor performance and he did not believe that an extension to the monitoring period would result in a dramatic improvement in the immediate future. He said that, even if this were achievable, it would still only result in the Claimant performing 60/70% of her contracted job role. He therefore felt that continuing the Claimant in the role of the Pathway and Project Assistant Manager was not appropriate.


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81. Mr Sullivan said that he had considered demotion and redeployment; however, given that the Claimant’s booking tasks, which she was not performing, would equate to a Band 4 role within the team, demotion to a Band 4 post would not be appropriate. He said that, therefore, dismissal with notice was the most appropriate outcome. 82. Mr Sullivan told the Tribunal that he had considered redeployment elsewhere, but that every other booking role in the hospital would require the Claimant to perform booking and administrative tasks and that, therefore, redeployment to another booking role would not be appropriate because she was failing to undertake those tasks according to objectives. 83. After the Stage 3 Hearing the Claimant sent Mr Sullivan further evidence in an email. The Claimant had been asked about the backlog in the sending out letters during the hearing. Her response had been, “Yes I whole heartedly accept that and I will admit that”. Her email contradicted that response. Mr Sullivan said, in the dismissal letter, that the Claimant’s email providing further evidence was received on 10 August 2017, after the conclusion of the hearing. He said that, at that stage, the decision-making process had commenced. He said that, in the interest of fairness to both sides, the new evidence could not be taken into consideration, page 845. 84. In his witness statement, Mr Sullivan criticised the way in which the Claimant had reacted on receiving the news of her dismissal. The Tribunal finds that dismissal can be a devastating blow for an employee and that different employees express distress at such news in different ways. 85. The Claimant appealed against her dismissal on 31 August 2017, page 849. She said the dismissal was unjust and unreasonable and that Ms Rait’s absence from the hearing seriously hampered a fair and honest investigation and disadvantaged the Claimant’s case because she was unable to question her directly on the contents of the report. The Claimant said that the allegations in the management report were unsubstantiated but were accepted by the panel as true and accurate and that the panel had ignored her evidence in rebuttal when determining the outcome. 86. The appeal was held on 25 October 2017, after being rescheduled. It was conducted by Sarah James, Divisional Director of Operations, with HR support from Nicola Hewlett-Light, pages 881-930. 87. On 30 October 2017 Ms James wrote to the Claimant, telling her that her appeal had not been upheld, page 932-937. In the appeal outcome letter, Ms James said that she was satisfied that the Respondent’s Performance Management Policy had been followed and that the original panel fully considered alternatives to dismissal before reaching the decision to dismiss. Ms James said she was satisfied that the reasoning in the outcome letter was fair and reasonable. Ms James also said that the Claimant had not raised her concerns regarding Ms Rait’s absence at the original hearing, even though the Claimant had had the opportunity to do so. Ms James observed that, in any


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event, Ms Rait was away on maternity leave and was unable to attend. She said that it had been fair and reasonable for the panel hearing to base their decision on the Management Statement and discussions at the hearing. Ms James stated that the original panel had confirmed that they had received and considered the Claimant’s statement ahead of the hearing date. In conclusion, Ms James said that the original hearing panel had considered all the information before it and had made a reasonable decision.

88. The Claimant’s colleague Toney Burrell was aged over 55 when Ms Rait commenced employment with the Respondent. Ms Rait commenced performance management in respect of Mr Burrell and continued the process for 10 months. It was not in dispute that Mr Burrell resigned from his employment with the Respondent. The Claimant contended that he had done so because Ms Rait was intending to escalate his performance management to Stage 2. Mr Burrell’s witness statement did not say that. The Tribunal did not find that the reason Mr Burrell resigned from his employment with the Respondent was that Ms Rait was intending to escalate his performance management to Stage 2 Relevant Law Age Discrimination 89. By s39(2)(c)&(d) Equality Act 2010, an employer must not discriminate against an employee by dismissing her or subjecting her to a detriment. 90. Direct discrimination is defined in s13 EqA 2010 as follows: “(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. (2) If the protected characteristic is age, A does not discriminate against B if A can show A’s treatment of B to be a proportionate means of achieving a legitimate aim.” 91. By s5 EqA 2010, age is a protected characteristic. A reference to a person who has a particular protected characteristic is a reference to a person of a particular age group. A reference to an age group is a reference to a group of persons defined by reference to age, whether by reference to a particular age or to a range of ages. 92. In case of direct discrimination, on the comparison made between the employee and others, “there must be no material difference relating to each case,” s23 Eq A 2010. 93. Accordingly, for a Claimant to succeed in a direct age discrimination complaint, it must be found that: (a) A Respondent has treated the Claimant less favourably than a comparator in the same relevant circumstances; ( b) The less favourable treatment was because of age as defined in s5 EqA - causation; ( c) that the treatment in question constitutes an unlawful act such as dismissal.


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94. According to the heritage caselaw, the test for causation in the discrimination legislation is a narrow one. The ET must establish whether or not the alleged discriminator’s reason for the impugned action was the relevant protected characteristic. In Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830, Lord Nicholls said that the phrase “by reason that” requires the ET to determine why the alleged discriminator acted as he did? What, consciously or unconsciously, was his reason?.” Para [29] Lord Scott said that the real reason, the core reason, for the treatment must be identified, Para [77]. 95. If the Tribunal is satisfied that the prohibited ground is one of the reasons for the treatment, that is sufficient to establish discrimination. It need not be the only or even the main reason. It is sufficient that it is significant in the sense of being more than trivial, per Lord Nicholls in Nagarajan v London Regional Transport [1999] IRLR 572, 576. 96. In the case of a dismissal, the person whose motivation falls to be examined is the person who made the decision to dismiss, or who upheld the decision on appeal. It is not legitimate to conflate that person’s motivation with the motivation of another individual, such as the person who has supplied information as part of the dismissal process, Reynolds v CLFIS (UK) Ltd and ors [2015] ICR 1010: “ In my view the composite approach is unacceptable in principle. I believe that it is fundamental to the scheme of the legislation that liability can only attach to an employer where an individual employee or agent for whose act he is responsible has done an act which satisfies the definition of discrimination. That means that the individual who did the act complained of must himself have been motivated by the protected characteristic.” 97. The shifting burden of proof applies to claims under the Equality Act 2010, s136 EqA 2010. 98. In approaching the evidence in a case, in making its findings regarding treatment and the reason for it, the ET should observe the guidance given by the Court of Appeal in Igen v Wong [2005] ICR 931 at para 76 and the Annex to the judgment. 99. In Madarassy v Nomura International plc. Court of Appeal, 2007 EWCA Civ 33, [2007] ICR 867, Mummery LJ and confirmed that the burden of proof does not simply shift where M proves a difference in sex (or age) and a difference in treatment. This would only indicate a possibility of discrimination, which is not sufficient, para 56 – 58. Unfair Dismissal 100. By s94 Employment Rights Act 1996, an employee has the right not to be unfairly dismissed by his employer 101. s98 Employment Rights Act 1996 provides it is for the employer to show the reason for a dismissal and that such a reason is a potentially fair reason under s


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98(2) ERA, or some other substantial reason justifying the dismissal of the employee. 102. Capability is a potentially fair reason for dismissal. 103. If the employer satisfies the Employment Tribunal that the reason for dismissal was a potentially fair reason, then the Employment Tribunal goes on to consider whether the dismissal was in fact fair under s98(4) Employment Rights Act 1996. 104. In doing so, the Employment Tribunal applies a neutral burden of proof and allows the employer a broad band of reasonable responses. It is not for the Employment Tribunal to substitute its own decision for that of the employer. 105. Where a responsible employer has genuinely come to the conclusion over a reasonable period of time that an employee is not competent, that amounts to some evidence that he is, indeed, incompetent, Cook v Thomas Linnell & Sons [1977] ICR 770. 106. In general, an employer is entitled to rely on warnings previously given, and/or on earlier stages of a performance process. In Carranza v General Dynamics Information Technology Ltd [2015] ICR 169 the ETA held, at paragraph [51], “Although this reasoning was provided in the context of a conduct dismissal, I consider that it applies to formal procedures relating to other types of dismissal. The key point is that there are limits to the extent to which an employer can be expected to revisit what took place at an earlier stage of a process. If an issue of the kind set out in Sandwell is raised (i.e. if the earlier warning was allegedly issued in bad faith, manifestly improper or issued without any prima facie grounds) an earlier stage of a process may require revisiting; but otherwise an employer is entitled to proceed on the basis of what has already been decided.” Discussion and Decision Direct Age Discrimination 107. Applying the law to all the facts, the Tribunal found as follows. 108. The Claimant contended that the Respondent subjected her to age discrimination when it dismissed her. She relied on being in the over 55 age group. She relied on a number of alleged previous incidents as providing evidence of a discriminatory motive for the dismissal. 109. The Tribunal has not accepted the Claimant’s evidence that Ms Rait said that the Claimant “had a mental block” or told the Claimant that she “did not even want to develop”. It did not accept the Claimant’s contention that Mr Burrell, who was also aged over 55, was managed out of the Respondent’s organisation by Ms Rait; Mr Burrell’s witness statement did not say this. It was not in dispute that he resigned, rather than being dismissed.


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110. The Tribunal has found that, during a meeting in May or June 2016, Ms Rait asked the Claimant’s colleague how old the Claimant was and whether she had plans to retire. On one occasion in May or June 2016, Ms Rait mentioned the Claimant’s age and the possibility of her retiring. 111. The Claimant contended that the performance management process undertaken by Ms Rait was influenced by age discriminatory motives on the part of Ms Rait. She contended that this meant that the decision to dismiss was also tainted by age discrimination. 112. The Tribunal noted that performance concerns had been raised in respect of the Claimant, not only by Ms Rait, but also by Emily Trew at the dismissal hearing. The Claimant did not contend Emily Trew discriminated against her because of age. Mr Chatterton’s disciplinary hearing found that there were performance concerns in relation to the Claimant and he recommended that the performance management process should be restarted. That was Mr Chatterton’s decision and not Ms Rait’s. The Claimant did not contend that Mr Chatterton discriminated against her because of age. 113. Ms Rait did conduct a number of meetings with the Claimant under the performance management process. She set out SMART objectives for the Claimant to meet and she monitored the Claimant’s performance against those. She discussed the Claimant’s performance in review meetings and pointed out to the Claimant where she considered that the Claimant was not meeting the objectives. There is no evidence that Ms Rait ever mentioned, or referred to the Claimant’s age, or the possibility of her retirement, during that performance management process in 2017. 114. On the evidence, the Tribunal concluded that Ms Rait had genuine performance management concerns about the Claimant because the Claimant was not meeting the objectives that the Claimant had agreed with Ms Rait at the start of the Stage 2 process in 2017. There is no evidence that Ms Rait would have treated another employee, who was failing to meet objectives agreed at the start of Stage 2 process, any differently to the way in which she treated the Claimant. Accordingly, the Tribunal found that there is no evidence of less favourable treatment of the Claimant than a comparator in the same material circumstances and, therefore, no evidence of age discrimination by Ms Rait towards the Claimant in conduct of the management process. 115. In any event, it was Mr Sullivan who made the decision to dismiss. The Claimant does not contend that Mr Sullivan was himself motivated by age discrimination. 116. Applying, Reynolds v CLFIS (UK) Ltd and ors [2015] ICR 1010, the decision to dismiss could not have been affected by age discrimination in any event, because the Claimant did not contend that Mr Sullivan, who took the decision, did so because of age. 117. The Claimant’s complaint of age discrimination failed.


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Unfair Dismissal 118. The Tribunal was satisfied that the Respondent had shown that the reason for dismissal was capability. The Respondent had conducted a performance management process and the reasons given for dismissal all related to the Claimant’s incapability of performing her job according to agreed standards. 119. The Tribunal considered whether the Respondent had conducted a reasonable process before dismissing the Claimant. 120. The performance management process, which eventually led to the Claimant’s dismissal, was instigated by the outcome of the disciplinary process. The Claimant did not appeal against the outcome of that disciplinary process. The performance management process therefore started at Stage 2, as Mr Chatterton’s panel had recommended. 121. The Claimant contended that the Respondent’s Performance Management Policy required the objectives which had not been met at Stage 1 should be same objectives as those to be investigated under Stage 2; paragraph 8.4.1 page 64 of the Policy. The Respondent contended that that Policy envisaged that Stage 2 would follow seamlessly from Stage 1, but that, in this case, the Stage 2 process was recommended by the disciplinary panel and did not follow seamlessly from Stage 1. The Tribunal accepted that it was within the range of reasonable responses for the objectives at the Claimant’s Stage 2 Performance Management process not to be exactly the same as the Stage 1 objectives, in the circumstances that the Stage 2 process did not arise out of the Claimant’s failure to achieve objectives at Stage 1. 122. Moreover, the Claimant agreed, in evidence at the Tribunal, that objectives i. and iii. in the Stage 2 performance process were similar to those which had been set at the original Stage 1. She also agreed that objective ii, relating to filing, was a reasonable objective because she ought to have been doing that as a normal part of her job. The Tribunal found, therefore, that the objectives set at Stage 2 were very similar the Stage 1 objectives and, in any event, were reasonable because they related to the Claimant’s job performance. Furthermore, the Claimant agreed these objectives in her meeting with Ms Rait on 21 March 2017. That being so, it was eminently reasonable for Ms Rait to measure the Claimant’s performance against the agreed objectives. 123. The Claimant contended that Ms Rait wanted to remove the Claimant from her job and was unreasonable in pursuing performance management against her. The Tribunal has concluded that Ms Rait undertook a painstaking performance management and review process, including weekly review meetings, at which the Claimant’s performance was reviewed against agreed objectives. The Claimant was given an extra 2 weeks, beyond the agreed review period, in order to achieve the objectives, but she failed to achieve them. 124. As set out in the dismissal letter, the Claimant had been offered a time management course and half a day’s protected time to work without disturbances, but she had declined both. Those were reasonable measures


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offered to support the Claimant and were not indicative of a fixed desire to dismiss her. 125. The Claimant contended at the Tribunal that she was not provided with support during the process, but in each of Ms Rait’s letters to the Claimant, Ms Rait asked the Claimant to tell her if she needed extra support, or was having difficulty achieving her objectives. Accordingly, the Tribunal found that Ms Rait acted reasonably in the way that she conducted the process and in offering the Claimant support and reminding the Claimant that she should ask for assistance if it was required. 126. The Claimant contended that, at the dismissal hearing, she was not permitted to go into the details of the cases/patients in the appendices to the Management Report and that the panel failed to take into account her detailed explanation. The Tribunal concluded, as a matter of fact, that the panel did take into account the Claimant’s detailed explanations in her rebuttal document; the panel, including Mr Sullivan, had clearly read the document. Mr Sullivan pointed out during the Stage 3 hearing that there was still a large number of cases which remained unexplained. The Tribunal concluded that Mr Sullivan had taken into account the Claimant’s rebuttal document, but was reasonable in asking the Claimant about the patients for whom she had not given an explanation. 127. The Claimant contended that the panel acted unfairly in not taking in to account evidence she had forwarded after the hearing. The Claimant had been asked about the backlog in the sending out letters during the hearing. Her response had been, “Yes I whole heartedly accept that and I will admit that”. Mr Sullivan said, in the dismissal letter, that the Claimant’s email providing further evidence was received on 10 August 2017, after the conclusion of the hearing. He said that, at that stage, the decision-making process had commenced. He said that, in the interest of fairness to both sides, the new evidence could not be taken into consideration, page 845. The Tribunal concluded that, given that the hearing had finished, it was reasonable for the Respondent not to take into account further evidence submitted by either side, as the other side would not have an opportunity to comment on it before a decision was reached. 128. The Claimant contended, at the Tribunal hearing, that she had not had sufficient time to go through the Management Report and to provide answers on every one of the patients. The Tribunal concluded that the Respondent had acted reasonably in postponing the Stage 3 hearing on two occasions at the Claimant’s request. She did not ask for a further postponement. The Respondent also gave the Claimant half a day out of her work time to prepare for the Stage 3 hearing. The Tribunal concluded that the Respondent acted within the band of reasonable responses in responding to the Claimant’s requests for further time and in allowing her time in work to prepare. 129. The Claimant complained that Mr Sullivan ignored the fact that the Claimant issued a grievance against Ms Rait. The Tribunal concluded, however, that it was reasonable for Mr Sullivan to consider that the Claimant had not made any justified complaints about Ms Rait, in the circumstances that her grievance had


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not been upheld and the Claimant had not appealed, or sought to review, that outcome. 130. The Tribunal also considered whether the Respondent had reasonable evidence before it of the Claimant’s incapability of carrying out her role. 131. The Claimant argued that the Respondent acted unreasonably in considering that she was only undertaking 60/70% of her role. She said that she had produced a job description for one of the Grade 4 team members, which indicated that they reported directly to the Band 5 manager, rather than to the Claimant as the Band 5 manager. However, the Tribunal concluded that it was reasonable for Mr Sullivan to decide that the Claimant was not undertaking her management functions because the Claimant’s job description clearly set out that she had management responsibility for two Band 4 employees and it was not in dispute that the Claimant had only ever assumed management responsibility for one Band 3 employee. Given that the Claimant was being paid as a Band 5 employee with management responsibilities, it was reasonable for Mr Sullivan to conclude that she ought to have been carrying out the Band 5 management responsibilities set out in her job description and that, therefore, she was failing to carry out 30/40% of her role. 132. The Tribunal concluded that the Respondent had reasonable evidence of the Claimant’s failure to carry out her booking role from the Management Report, which set, in respect of 117 patients, the way in which the Claimant had failed to adhere to the objectives agreed at the start of the process. The Claimant only explained 31 of those patients and that meant, as Mr Sullivan told the Tribunal, that the vast majority of the patients set out in the management report remained unexplained by the Claimant and that there were significant performance failures by the Claimant in respect of the remaining patients. 133. The Respondent had reasonable evidence of the Claimant’s incapability in her role. 134. The Tribunal also considered whether dismissal was a reasonable sanction. 135. It was clear from Mr Sullivan’s evidence that he had carefully considered alternatives to dismissal. It was reasonable for him to conclude that it would not have been appropriate to demote the Claimant to a Band 4 booking role because the Claimant was essentially carrying out a Band 4 booking role already. It would therefore not have been appropriate to demote her to Band 4 because she would not have been able to do that role. Furthermore, it would not have been appropriate to redeploy her to another booking role in the hospital because the skills required for those roles were the same, or very similar, to the ones required for the role that she was not performing adequately. 136. The Tribunal found that the Claimant had been given a reasonable period of time over which to improve, but there had been performance concerns in relation to her from 2016, over a year before the decision to dismiss.


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137. It was reasonable for Mr Sullivan to conclude that there was no evidence that the Claimant’s performance was likely to improve. Furthermore, it was reasonable to dismiss when the Claimant had been offered training and protected time, but had declined those offers and had not identified other assistance which might help her to improve in her task. 138. Furthermore, it was reasonable to dismiss where the Claimant’s role involved booking surgery for very sick children. If the Claimant failed to perform her role properly in accordance with objectives, there was a risk of serious harm to some very ill children. 139. The Respondent held meetings with the Claimant before her dismissal, where she was invited to explain her performance. The Claimant was provided with evidence in advance. She was given an appeal. There was no breach of the ACAS Code of Practice. 140. The Claimant’s claims for unfair dismissal and age discrimination therefore failed. 141. The provisional remedy hearing set for 17 June 2019 is vacated.

_______________________________________ Employment Judge Brown

Dated: 19 March 2019 Judgment and Reasons sent to the parties on: 19 March 2019 ………...................................................................... For the Tribunal Office

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