That was the ruling of the Employment Appeal Tribunal (EAT) in a case involving Mr Peter Hale, an experienced surgeon who worked for Brighton & Sussex University Hospitals NHS Trust.
Mr Hale was dismissed in 2015 following a series of disputes with some of his staff.
Four of the junior doctors working under him were Asian. They lodged a collective grievance of bullying and harassment against him.
The issues were heatedly discussed during a meeting chaired by Mr Hale. The conduct of the doctors was described as “inappropriate and aggressive” by another person in attendance, who felt compelled to lodge a grievance.
However, in the discussions that followed Mr Hale was recorded making racist comments.
These included: “Some of these sub-continent elements…they are their own worst enemies. They mix and match in their heads differently… they’re not clear thinkers.”
Both parties lodged formal complaints about each other and an independent investigation was carried out.
The investigation found that the doctors had no case to answer, but Mr Hale was subsequently dismissed for gross misconduct because he had made “racially offensive and derogatory” remarks relating to “race, ethnicity and nationality”.
The Employment Tribunal dismissed his claim of unfair dismissal and race discrimination. He appealed the decision on the basis that his disciplinary treatment went much further than that of his colleagues.
The Employment Appeal Tribunal ruled against him. It held that subjecting Mr Hale to different disciplinary procedures to those of the junior doctors gave rise to some differences in treatment according to race – but this was not considered enough to affect the case.
The EAT concluded that the decision to dismiss Mr Hale was harsh, given the provocation he had received from the junior doctors, but it was still fair.
For further advice on any of the issues raised in this article, or for employment law advice more generally, please contact JPP Law on 020 3468 3064 or email [email protected]
