The Employment Tribunal will see you now doctor

How could I lose?

As a junior doctor if you rock up to an Employment Tribunal with 2 consultants and a former health minister backing you up and if your claim is that MPs and the press have been misled on life and death issues in an NHS whistleblowing case, you might expect to be listened to. And when your opponent decides to destroy an entire email archive midway through the hearing, admit to it in an unsigned statement, then refuse to be cross examined, you might even expect to win the case.

Employment Tribunals are like a box of chocolates

In the early stages of my 8 year long whistleblowing case, I use to think of Employment Tribunals like Forrest Gump thought of life, like a box of chocolates and a very expensive one at that, with the point being, that at each hearing you 'never know what you were gonna get'. This was in terms of many things but perhaps particularly, fairness, competence and the willingness of a judge to consider or even read evidence. Another variable was how prepared a Judge was (for whatever reason) to consider the position of me a junior doctor or certain clear documentary evidence if it contradicted the position of someone more powerful or senior (which includes virtually everyone when you are a junior doctor). This has of course become more of an issue in the later years of my case, as the number of powerful people that have got embroiled in it has started to grow, particularly from the legal profession.

A preliminary hearing that I had in February 2015 is an early yet powerful example of what I mean. The judge's failure at that hearing, to consider or even listen to what I or my solicitor had to say, whilst choosing to accept everything the NHS' lawyers said, resulted in the nation's junior doctors being argued out of whistleblowing protection for 4 years. 8 years on it is even more obvious that the NHS were misleading the tribunal that day and we now know were also hiding contracts for over 4 years, each worth tens of millions of pounds, that their law firm, Hill Dickinson also representing the NHS in my case, were paid to draft. The MP Justin Madders and former health minister Sir Norman Lamb, both former lawyers set this out in Parliament in 2019;

It has taken the Employment Tribunal until 2022, to look into how 54,000 doctors were argued out of whistleblowing protection in 2015. My wasted cost application that was lodged all the way back in 2019 is now finally moving in 2022. Our crowdfunded attempt at wasted costs began on Monday 5 December 2022 for two days. The hearing was covered in the press.

The June 2022 Final Hearing of My Whistleblowing Case

I and a virtual public gallery of 60 people were recently reminded of the reality of employment tribunals, when the London South Employment Tribunal served up its latest offering of justice to me and my family in their judgment of the recent June 2022 hearing of my whistleblowing case. The judgment, published in mid November, said we lost and also that we lost badly but that is not exactly how those observing the hearing in the public gallery seem to remember it, hence the recent press coverage.

I am hugely grateful to my trade union the British Medical Association for providing a top legal team for the June hearing. I had in my corner, Slater and Gordon's Head of Employment Edward Cooper, Andrew Allen KC and Elizabeth Grace who have been a class act. The press coverage that occurred during the the 16 day hearing can be read here.

My June 2022 Hearing - Maybe all that is wrong with the Employment Tribunal in one hearing

My June 2022 hearing chaired by Judge Martin of the London South Employment Tribunal was supposed to decide who was lying out of me and Lewisham and Greenwich NHS Trust (and their lawyers Capsticks) in what we told MPs and the press about my case. The focus was on statements made about the facts of my 2014 whistleblowing case and how the case suddenly settled in 2018 halfway through a 21 day hearing.

The sudden settlement of my whistleblowing case in 2018, involved me dropping all my allegations of whistleblowing detriment that I had maintained since 2014. Then it involved me indicating in a public statement that I believed the NHS had acted in good faith in my case. Lastly, it involved a clause protecting all lawyers on all sides from wasted costs arising from negligence or misconduct.

The fact the case settled just before I was due to cross examine the NHS' 14 witnesses surprised a lot of people, especially those observing the hearing in the public gallery including some journalists. I had been quite open in the national media, over several years, about the fact that my career had been destroyed by raising patient safety issues about an Intensive Care Unit. These safety issues were known to be linked to 2 avoidable deaths. People also knew from the media coverage, that I had been fighting for four years, to reverse attempts to undermine whistleblowing law for doctors. This was in order to have my case finally heard in 2018 but this fight clearly had wider significance.

By the time of the 2018 settlement, the facts of my case had already been reported from trusted sources such as the BBC Radio 4,  ITV News , Private Eye and several national newspapers such as The Mail on Sunday. It is common knowledge that such coverage would have been subject to robust fact checking and scrutiny by media lawyers. This made the settlement and public statement stating that I believed that the NHS had acted in good faith very difficult for people to believe. This was exacerbated by my silence about why I settled. Although, I was not formally gagged by the settlement, I was initially prevented, by the Without Prejudice Rule, from discussing how the settlement came about.

My silence continued until Lewisham and Greenwich NHS Trust and Health Education England started lying to the press and MPs about the case and how it settled. They did this by denying that cost threats were used to force me to settle my case and make an agreed statement. This effectively waived 'Without Prejudice Privilege' enabling me to also waive it and speak about what happened in order to set the record straight. I did so first in the Telegraph.

How did the Trust mislead the press and MPs on my case?

The NHS' false statements can be split into 2 main categories

• Lying about the facts of my 2014 whistleblowing case (safety concerns and investigations)

• Lying about how the case settled in 2018

Lying about the facts of the whistleblowing case

Following the settlement, Lewisham and Greenwich started to say that the whistleblowing disclosures in my case were actually just about a one-off staffing issue one night on the medical wards. The implication of this was that I was and had been lying when I said the disclosures in my case were about ongoing issues relating to an Intensive Care Unit. Essentially the NHS were trying to give the impression that my case was a fuss about nothing. They also stated that the external investigation commissioned into my case found that the Trust had responded in the right way to my whistleblowing disclosures. This implied that my whistleblowing case was vexatious. This false narrative about the case combined nicely with the false statements denying cost threats had occurred. I say that cost threats from the NHS forced the settlement of the case and an agreed public statement.

Were Lewisham and Greenwich NHS Trust lying when they told the press and MPs that my whistleblowing disclosures were just about medical ward cover one night?

My protected disclosures were clearly explained to the Tribunal not only by me but by 2 consultant anaesthetists, the former health minister Sir Norman Lamb and the former Health Secretary and current Chancellor of the Exchequer Jeremy Hunt. The Tribunal has no excuse for getting this so wrong. The tribunal's decision to agree as true what Lewisham and Greenwich NHS Trust told MPs and the press about my protected disclosures has clearly let the public interest down. As this case is about Intensive Care and with the recent pandemic, the significance of MPs and the press being so badly misled on such serious issues and an Employment Tribunal just going along with it should not be underestimated.

This is the evidence the Tribunal were given on my protected disclosures in this case.

Witness 1 - Dr Smith

Dr Smith is a senior consultant anaesthetist, a trained barrister, and an expert witness in medical negligence cases. She is mortality lead for the department of anaesthesia for a large London teaching hospital. You might think that means her professional opinion might carry some weight.

Dr Smith's view on my protected disclosures certainly did not go unnoticed by the journalists observing the hearing.

Dr Smith first set out to the Tribunal the scope of my protected disclosures in the case. Lewisham and Greenwich NHS accepted (after 4 years of fighting) that my protected disclosures were recognised by whistleblowing law. HEE caved in on this point after 6 years of resistance but when they did, crumbled further than the Trust, conceding that my protected disclosures showed not only patient safety issues, but also a reasonable belief in deliberate concealment.

Dr Smith made clear both verbally and in writing to the Tribunal how serious my protected disclosures were.

You can read the statement of Dr Smith and the press coverage of her evidence at the June 2022 hearing below.

"You would not find an anaesthetist or ICU doctor in the country who would accept those ratios. There was a clear and present danger to patient safety – no question about that.”

Witness 2 - Dr Hormaeche

Dr Hormaeche is a consultant anaesthetist that served on the executive committee of the British Medical Association known as BMA Council. Like Dr Smith, Dr Hormaeche clearly explained to the Tribunal in June what my protected disclosures were about.

Dr Hormaeche also made clear to the Tribunal how my protected disclosures have been misrepresented to the press and MPs.

Below you can read the press coverage of Dr Hormaeche's evidence and his Tribunal statement.

Witness 3 - Sir Norman Lamb - former health minister

Sir Norman Lamb is a former health minister and former lawyer and gave verbal and written evidence to the Tribunal in June 2022. Sir Norman left the Tribunal in no doubt what my case was about. This video is of a statement Sir Norman gave about my case in Parliament in 2019, which he repeated in his evidence at the Tribunal. It clearly exposes the Lewisham and Greenwich public statements for what they are.

Sir Norman's evidence to the Tribunal can be read below

Witness 4 - Rt Hon Jeremy Hunt

It is not every day a junior doctor turns up to an employment tribunal with a witness statement in support of their case from a previous Secretary of State for Health and the current Chancellor of the Exchequer. Jeremy Hunt clearly wanted the Tribunal to know that my protected disclosures were about serious and valid issues to do with an Intensive Care Unit. This is in the face of Lewisham and Greenwich NHS Trust misleading the press and MPs on my protected disclosures by saying that they were just about medical ward cover one night. The Tribunal claims in their Judgment not to know why Jeremy Hunt gave such a statement.

My evidence to the Tribunal on my protected disclosures

I spent a great deal of time preparing tribunal evidence on the protected disclosures that I raised in back in 2013 -2014. The Tribunal has just ignored it. Below is where I clearly described a Serious Untoward Incident involving the death of a patient. Both Dr Smith and Dr Hormaeche also explore this incident in their evidence. This was also ignored by the Tribunal.

My evidence on my protected disclosures in this case can be read below

Did the Trust's external investigation criticise the way my protected disclosures were dealt with by the Trust or did it conclude they responded in the right way?

The Tribunal were taken to the following criticisms made of the Trust by their external investigation in 2014. These were also put to the NHS Trust CEO Ben Travis at the June hearing and he was asked whether these serious issues amount to responding in the right way to my patient safety issues. The Judgment completely ignores this exchange.

Dr Hormaeche in his evidence focused on the significance of the external investigation's criticism of the way my Datix report was handled for one of my protected disclosures.

It is a betrayal of the public interest for an employment tribunal to have concluded that the above findings from the NHS Trust's external investigation amount to a NHS Trust handling my protected disclosures about patient safety in the right way. For the Tribunal to be content for the press and MPs to be told this as well is even worse.

I gave evidence to the Tribunal on the various investigations that occurred in my case and how they have been consistently misrepresented for several years.

The evidence that Lewisham and Greenwich misled the press and MPs about how my settlement came about

The Trust made clear publicly that I was not paid off, which is true, but then in addition started to claim that no cost threats were made in my case either to encourage me to settle or at all. They also stated any suggestion that cost threats occurred was simply untrue - effectively calling me a liar to MPs and the press when I claimed they were. All I was doing was simply reporting what my former barrister had said and written. This extended further to the Trust claiming that they made clear before I decided to settle that they would not pursue me for costs.

I provided clear evidence to the Tribunal including from my former barrister that costs threats were used to induce me to settle and force the wording of an agreed statement. In addition, by using the wasted cost rule, the Trust and HEE threatened my former lawyers with wasted cost threats that they were personally liable for. Below is part of a letter that I sent to the Solicitor Regulation Authority. It highlights in red the evidence of cost threats that I provided to the Tribunal in June, that the Tribunal has simply ignored without reason in their judgment.

Below is the evidence in full that I submitted to the Tribunal on the cost threats that have occurred in my case.

The Trust's position on costs in late 2018 then shambolically evolved a few months later into a wild account of both my former solicitor and barrister approaching the Trust's legal team, whilst I was giving evidence, with the stated impression that they thought the evidence I was giving in my case was untruthful. The NHS sold this to the press and MPs as the real reason for me suddenly settling the case and withdrawing, as it was asserted that I clearly must have agreed. The Tribunal have chosen to accept (without reason) this change of account contrary to evidence from 3 separate sources.

This account from Lewisham and Greenwich NHS Trust was categorically denied by my former barrister. The Tribunal ignored this evidence without comment.

The Tribunal also ignored the categorical denial on this from my former solicitor.

Neither Chris Milsom or my solicitor's evidence on the above was challenged by the NHS legal teams at the June 2022 hearing, yet the Tribunal found the below clearly false statement from Lewisham and Greenwich NHS Trust to be true.

In contrast to the Employment Tribunal who found nothing wrong with the constant changing position of Lewisham and Greenwich on the cost threats, the Second Respondent in my case, Health Education England, started to privately mock Lewisham and Greenwich for their evolving public position on costs.

What did the Employment Tribunal actually have to do to decide in the June case?

To deal with this situation, the Tribunal had 5 core tasks to find out whether the press and MPs had been misled.

• To make findings on what the actual whistleblowing disclosures in my case were about.

• To make findings on whether the external investigation actually criticised the NHS' response to my whistleblowing disclosures and whether it was false for the NHS and their lawyers to deny this.

• To make findings on what the Critical Care Peer Review found in 2017. The Tribunal then needed to see if there is overlap with my case and then assess how reasonable it is for the Trust to say it was not relevant on the basis of the false statement that my safety disclosures were just about medical ward cover one night.

• To make findings on whether the NHS were lying to MPs, the press and public when they said it was simply untrue for me to claim that cost threats were made in my case or to claim that the NHS made clear to me that they would NOT pursue me for costs before I settled my case. The Tribunal had to engage in fact finding on evidence from me, Sir Norman Lamb, my wife, and my former Barrister Chris Milsom. The Tribunal needed to make findings on whether cost threats were used to firstly, induce the settlement of my whistleblowing case, secondly, to force the wording of an agreed statement and then thirdly, using the wasted costs rule, to pressure my former legal team.

• To make findings on whether my former solicitor and or barrister actually did approach the Trust's lawyers, behind my back, with the stated impression that my evidence was untruthful and whether the Trust are lying when they said this happened.

The evidence from multiple sources puts me on the right side of all the above points, so how on earth could I lose the June hearing?

The Tribunal decided to avoid making findings on virtually all of the above and ignored astonishing amounts of evidence before deciding Lewisham and Greenwich had won the case.

Evidence was not the only thing this employment tribunal ignored in order to give Lewisham and Greenwich the victory. The Tribunal also had to explain away several instances of deliberate destruction and concealment of evidence.

The most blatant was an NHS Director claiming to have permanently destroyed an entire email archive during my hearing and then admitting this in an unsigned statement. This untested story, had no IT or medical evidence to back it up and does not make sense but was accepted by the Tribunal. If that was not bad enough, the relevant Director then claimed to be unfit to be cross examined (with the Director's GP disagreeing). This was followed by a recovery just at the right time for the NHS Barrister to use it to hinder my strike out application to have the NHS position thrown out. Mr Tatton-Brown KC contacted the Judge with this update on the Director's recovery during the judicial deliberation on our strike out application. Once the strike out application was safely lost, cue the Director to then go off sick yet again. The finale was the Director instructing the law firm Kingsley Napley, mid-hearing to protect his interests. Dismissing all this as the usual twists and turns of litigation you would hope would be quite a tough sell for an employment tribunal but it wasn't for Judge Martin and her team.

Believe it or not that was just one of several examples of destruction and concealment of evidence that was explained away by the Tribunal in their judgment. Here are the others;

• Permanently deleting the email account for Janet Lynch, the NHS Director that acted as instructing client for the NHS Trust, communicating with the lawyers during the life of my whistleblowing case from 2014-2019.

• Denying the existence of the record of the Board meeting that discussed and approved the settlement in my case. This false denial was made to a judge as part of a disclosure application. It was then produced on the final days of the16 day June hearing. Have a read of what the Board discussed in that meeting that the Trust hid for 4 years here.

• Falsely denying there was a record of a key meeting with Sir Norman Lamb and then producing it on the final days of a hearing.  (see details)

• Claiming that large numbers of emails from the 3 senior doctors involved with my protected disclosures, that allegedly caused me detriment were now unavailable (with no IT evidence) see NHS lawyer’s statement

• Hiding from disclosure 18 letters to local MPs and stakeholders and then disclosing them late when HEE let slip about them, whilst keeping 4 further letters hidden until after the hearing. This had already been criticised by another Judge.

Our strike out application sets out all the conduct explained away by the Tribunal that we argued made a fair hearing impossible. However, if you want something more visual this is Dr Bob Gill, a local South London GP challenging the Board of Lewisham and Greenwich on their antics in the June 2022 Tribunal.

When the extent of the NHS' destruction and concealment of evidence started to emerge during the June hearing, the Judge made an Order for disclosure against the Trust. The order required disclosure of certain classes of documents and for a statement from Capsticks Solicitors to account for the destructions and concealment of evidence in the case. The highlighted text in green on the below order was supposed to be disclosed but mid-hearing it was found to have been destroyed, concealed or otherwise made unavailable. Clearly, the Judge thought she needed this evidence as she me made the order for it but she must have changed her mind when writing her Judgment in November.

The significance of the Trust's main witness destroying evidence and then avoiding being cross examined

So this case is about multiple false briefing documents in a whistleblowing case, sent by an NHS Trust, to the press and to MPs about extremely serious patient safety and governance issues linked to two deaths. We have established that the briefings that were sent to MPs were hidden from Tribunal disclosure and also that other senior people had input into the MP and press briefings. The Trust refused to name these individuals right up until the June hearing and the judge refused our application for the Trust to be ordered to. This is yet another surprising decision from this Tribunal.

The closest thing we got to cross examining the author of the statements at the centre of the case was Andrew Allen KC putting what he would have asked the relevant NHS director in his closing submissions. The director that authored the public statements at the centre of the case happened to also be the person that destroyed the evidence mid-hearing and was also the person that withdrew as a witness. Below is what my barrister, Andrew Allen KC planned to ask that elusive Director.

You can read the full proposed cross examination below.

This Tribunal ignored this content in the Judgment, which was yet another example of evidence that we were deprived of in this case.

Covering up the cover up and a key Board meeting note

The Tribunal did find one of the detriments in my favour. However, they also ruled that the protected disclosures in my case or my whistleblowing had nothing to do with why it happened. This deprived me of any compensation for it. The Tribunal vaguely concludes that the NHS' actions are a result of my so-called campaigning activities as a crowdfunder and not the big cover up that was clearly visible from the evidence put before the Tribunal. My crowdfunding activities have offered valuable access to justice for litigation that at times even my opponents have accepted served the public interest.

The documentary evidence shows quite clearly that it was the live evidence at the 2018 hearing of my whistleblowing case, observed by a packed public gallery that was the real worry and what really motivated the Trust's subsequent actions. The reality of my protected disclosures and how they were handled was made plain to a public gallery of NHS staff, the public and journalists that observed my cross examination in October 2018. It is obviously this that has caused the NHS' extraordinary actions both in 2018 and their more recent antics in 2022.

In June, it took until the last day of the hearing for evidence to be disclosed that exposed the way my protected disclosures were handled being explored in open tribunal, as the driving force for the Trust's actions. The Trust were clearly worried about what people observed during my 6 days of cross examination at the 2018 hearing and what might transpire when the NHS witnesses were cross examined. This worry is confirmed by a record of a Lewisham and Greenwich Board meeting that approved the settlement of my case on the evening of Sunday 14 October 2018.

The NHS denied this record existed to the Tribunal, to me and to journalists for over 4 years. They did this even after an order. They only disclosed this record on the last day of the 16 day hearing in June. This should have been an extremely serious matter but like so many things in this case and with this Tribunal, it wasn't. The significance of hiding the record of this Board meeting was spelt out to the Tribunal.

The reality of my protected disclosures and the way they were investigated was made painfully obvious to the Tribunal both in October 2018 and at the June 2022 hearing. The evidence that I provided in June on the 4 NHS investigations into my whistleblowing case can be read below. This is clearly scandalous.

The consultant anaesthetist, Dr Hormaeche also spelt out the cover up in my case in his evidence to the June Tribunal;

Firstly on airway support for the ICU;

Secondly, on the Serious Untoward Incidents;

Dr Hormaeche provides other objective examples of the cover up in my case in his evidence to the Tribunal in June.

A weak whistleblowing about ward cover one night

So the NHS wanted the public, the press and the MPs to think that my whistleblowing case was a weak one about medical ward cover one night. They wanted them to also think that the external investigation performed at the time in 2014 found that the Trust handled things in the right way. Lastly, they wanted MPs and the Press to believe that a subsequent Peer Review in 2017 did not in any way suggest serious issues had been ignored or covered up for years. The tribunal has not found anything wrong with those assertions even in the face of the evidence that was put before it that I have explored in this article.

The Tribunal has also ignored all the concessions that I have obtained from my opponents over the last 8 years. There is clearly an arguable whistleblowing case on these concessions alone.

A dishonest and underhand doctor with an obsessive belief in his own victimhood

All through this case, I have had my credibility and integrity smeared by people that have never met me. These people have largely been in NHS management and NHS lawyers. I made this clear to the June 2022 Tribunal in my evidence. I also made clear that virtually all evidence from those that actually worked with me and supervised me at Lewisham and Greenwich NHS Trust and HEE was excluded from formal investigations into my case and has now also been ignored by the Tribunal.

The London South Tribunal has had the following evidence before it on my credibility and performance as a doctor.

The Tribunal has chosen to ignore the above evidence from over 30 people that worked with me at Lewisham and Greenwich NHS Trust. The only reference to my credibility or how other people view me are quotes from lawyers including Ben Cooper KC who was the Trust former barrister. This is in the context of his view of me and my case. The Judge does not record my stated view on Ben Cooper or my clear basis for such a view.

You would think if Mr Cooper was going to write something like the above in a Tribunal statement, that as a KC, he would have some rock solid examples to back him up on such bold claims. Mr Cooper failed to provide one example of something dishonest written in my statement of some 44 pages for the October 2018 hearing. His examples came from what I regard as a demonstrably false account of my verbal evidence.

I did not have the same problem finding things that Mr Cooper had written down in his statement that were not true or misleading. I produced a supplementary statement for the Tribunal devoted to this purpose that exposed Ben Cooper KC's claims of dishonesty against me for what they were. Interestingly, the NHS fought very hard to stop me placing my 'Ben Cooper statement' before the Tribunal. They clearly didn't want to challenge me on it and it is not hard to see why.

My statement forced Mr Cooper to change his Tribunal statement in material ways just as he was swearing in to be cross examined by Andrew Allen KC. This is surprising to say the least for a KC. The Tribunal chose to leave this key detail out of the Judgment whilst quoting Mr Cooper's fairly venomous description of me and my case.

During the June hearing, Judge Martin then intervened to stop the cross examination of Mr Cooper by my barrister Andrew Allen KC. We strongly objected to this in the hearing and the judge promised to provide clarification in the judgment on her justification for this. This has not been included in the Judgment. We therefore only got to cross examine Ben Cooper on less than a third of the supplementary statement. This was perhaps the most shambolic part of the hearing.

The impact of the case on our family

Both my wife and I gave evidence to the Tribunal on how this case has affected us as a family.

My wife stated in her evidence;

I stated the following to the Tribunal in my statement about the effect this case has had me and my family;

A final word

If the employment tribunal is to be believed then MPs and the press were right to be told that my whistleblowing case was fuss about a minor ward cover issue one night (and not serious issues on an Intensive Care Unit linked to 2 deaths). The Tribunal also endorsed the Trust stating that their external investigation found that the NHS responded in the right way to my protected disclosures when the investigation quite clearly made 12 serious criticisms.

As for me, if you believe Judge Martin and team, I am to be regarded as dishonest, underhand with an obsessive belief in my own victimhood. This is despite me being an A&E doctor that has worked through a pandemic whilst litigating a whistleblowing case and supporting my family. In addition, and perhaps more importantly, you are asked by the Tribunal to believe that I withdrew my whistleblowing case, made a surprising public statement and decided to protect all lawyers on all sides from wasted costs all freely.

Lastly, you are asked to accept that I then just made up a story about cost threats to justify my surprising decisions.

I will let others decide who is telling the truth about all of this - it seems to me it is pretty obvious.

Today, I publish this article after a 2 day wasted costs hearing in the Employment Tribunal against the law firm Hill Dickinson. I felt it was conducted by the Judge properly and fairly. I considered not publishing this article as a result but then decided that one fair hearing does not change what we have been through as a family over the last 8 years. It is a story that needs to be told.

I would respectfully suggest that the legal profession and the judiciary need to reflect on this box of chocolates that is the employment tribunal and ask themselves whether it is the right place for public interest whistleblowing cases. Perhaps they also need to reflect on the damage my case has done and continues to do to how NHS staff view lawyers, judges and their chances of being treated fairly and properly if they raise important safety or governance concerns.

Below you can read the Judgment on the June hearing of my whistleblowing case and the Lewisham and Greenwich Trust's press release welcoming it.