IN FULL: THREATENING LETTER SENT TO PETER DUFFY

Read the full letter below...

WITHOUT PREJUDICE SAVE AS TO COSTS

10th April 2018
Your ref:
Our ref: SAH/112657/20605558
Your contact:
Sean Hick

Mr Peter Duffy v University Hospitals Of Morecambe Bay NHS Foundation Trust Case Numbers: 2404382/2016 and 2406078/2016

We act for the Respondent, University Hospitals of Morecambe Bay NHS Foundation Trust, in this matter.

Costs Warning
For the reasons set out below, and having had the opportunity to review the documentation disclosed in this matter and your client’s witness statements, we considerthat your client’s claims have no reasonable prospects of success and we invite your client to withdraw.
If your client does not withdraw his claim against our client and our client ultimately succeeds in defending the claims we will make an application to the Tribunal for an order that your client pays some or all of our client’s costs in defending the claim. We will make this application on the basis that your client’s claim is misconceived, has no reasonableprospects of success and its continued pursuit is unreasonable and vexatious.

New (and reinstated) allegations of detriment in your client’s statement
The parties have gone to great lengths on no less than five occasions to address those issues which your client states are acts or omissions of detriment resulting from yourclient’s protected disclosures and/or acts or omissions resulting in a breakdown of trustand confidence leading to your client’s resignation and purported constructed dismissal. Such clarification is required by Blackbay Ventures Ltd (t/a Chemistree) v Gahir (UKEAT/0449/12).
Your client first set out his claim in relation to detriment and constructive dismissal in his pleadings of 23 December 2016, that document covering issues stemming from 2000 to December 2016.

On the following occasions, the claim has been streamlined and better particularised by your client and the Tribunal (the numbers in brackets refer to the page numbers in the Tribunal bundle as of this date):

•   15 May 2017 – When your client confirmed he no longer pursued elements 60.1 and 60.2 of his pleadings but wished to continue with elements 60.3-60.14. Those paragraphs being set out on [59-60];
•   7 July 2017 – When you confirmed on your client’s behalf that paragraphs 2-37 of his pleadings [45-54] were “relevant background information” to hisconstructive dismissal claim and that paragraphs 38-55 [54-58] were thoseissues which “formed part of the breach of trust and confidence which caused the claimant to resign” [129];
•   Alleged detriments 60.5 and 60.13 were struck out as having no reasonable prospects of success by EJ Slater in her Judgment of 11 September 2017;
•   5 October 2017 – when your client confirmed that :

o His resignation, or the principal reason therefore, was the failure to pay
his “agreed salary” or the letter of 15 June 2016 was a “last straw”; and
o Paragraphs 60.3-60.4 (inclusive), 60.6-60.12 (inclusive) and 60.14 amounted to detriments stemming from protected disclosures.
 20 October 2017 – When our clients agreed the List of Issues for these proceedings.
As such, the List of Issues (“the List”) [143-146] reflects those issues that are to be determined by the Tribunal.
Having reviewed your client’s witness statement, we note that the following paragraphsdo not relate to those issues on the List and appear to be an attempt by your client to supplement his claim and/or reinstate elements of his claim that he has now withdrawn. In accordance with the principles set out in Chandhok and anor v Tirkey [2014] UKEAT 0190/14/KN, your client is not free to supplement his claim in his witness statement and his attempts to do so are unreasonable, disruptive behaviour and an abuse of process:

Para	Comment
18	This relates to the withdrawn paragraph 60.1.
19	This relates to an un-pleaded alleged detriment of refusal of compassionate leave which also pre-dates paragraph 38 of your client’s pleadings by several years.
20	This relates to the withdrawn paragraph 60.1.
21-27	This relates to the withdrawn paragraphs 60.1 and 60.2 and issues relating to the GMC which the Tribunal has already confirmed in its Judgment of 11 September 2017 is a quasi-Judicial body and therefore cannot be included in relation to this claim.

Page 2

29-33 and 35-37	These relate to the withdrawn paragraph 60.2 relating to excessive and inequitable workload.
39	This relates to the un-pleaded allegation that your client’s concernswere ignored.
42	Again, this relates to GMC issues which your client has received Judgment confirming are inadmissible in these proceedings.
43-45	Relates to issues surrounding your client’s annual leave, the issueswith which are not pleaded as a detriment.
49	Part of this paragraph again relates to not receivingoutcomes/feedback and/or your client’s issues not being considered – which does not form part of your client’s pleaded case.
50	Relates to issues surrounding your client’s annual leave, the issues with which are not pleaded as a detriment.
54	This relates to the un-pleaded allegation that your client never received feedback on the issues he raised.
55	Part of this paragraph again relates to not receiving outcomes/feedback and/or your client’s issues not being considered – which does not form part of his pleaded case.
64	These relate to the withdrawn paragraph 60.2 relating to excessive and inequitable workload.
96	This relates to the un-pleaded allegation that your client never received feedback on the issues he raised.
103	Part of this paragraph again relates to not receivingoutcomes/feedback and/or your client’s issues not being considered – which does not form part of his pleaded case.
134	Part of this paragraph is an allegation that is either part of the withdrawn 60.2 relating to excessive workload or a newly allegeddetriment of being “punished” by being given an inequitable amountof the work on the RCS action plan. In either case, this is not pleaded as a detriment by your client.
139	This relates to the un-pleaded allegation that your client never received feedback on the issues he raised.
163	This is a new allegation that Dame Jackie Daniel “almost ran down the corridor in her anxiety to get away from [your client]”. It does notform part of your client’s pleaded case.
167	It is not part of your client’s pleaded case that his leaving party wasnot attended by his colleagues or management. Nor is anything akin to this allegation pleaded by your client.

Page 3

177	Again, the actions of Claire Largue in relation to further meetings, and/or any allegations that further meetings were not arranged, does not form part of your client’s pleaded case, nor can they form part of his constructive dismissal claim as they post-date his employment with the Trust.
179-180	It does not form part of your client’s pleaded case that he wasreplaced before he was given the opportunity to return.
182	The interactions in relation to your client’s Subject Access Request do not form part of the detriments he alleges, nor can they form part of his constructive dismissal claim as they post-date his employment with the Trust.
184-186	Your client has taken no issue with the handling of the review of the urology incidents that he provided to the Trust via Mr Butler.
188-189	Your client has not pleaded that a detriment in this case was that the Trust misled the CQC or NHSI post-termination.

Our client therefore requests that your client immediately redacts or remove those sections of his statement which are new and/or reinstated allegations in advance of the hearing and serves us with a revised version. In the event that your client does not do so, our client reserves the right to have this issue handled as a preliminary issue at the hearing and to claim for the associated wasted costs incurred by having to make that application.
The weaknesses in your client’s pleaded claims
Unlawful deductions from wages (annual leave on termination of employment)Firstly and foremost, your client’s last claim for AASs was made on 6 April 2016,
although your client suggests that this was “February/March 2016” [17 – para 16].
The documentation clearly demonstrates that your client knew he must submit requests for payment of AASs in order for them to be paid by the Trust. As such your client was not contractually entitled to any payments after this date as they were never claimed by your client. Your client submitted no further requests beyond 6 April 2016 and therefore limitation for presenting this claim expired, to the Trust’s understanding, on 5 July 2016,some 7 weeks before he sought Early Conciliation and 3.5 months before he presented his claim. Your client is time barred from presenting this claim.
Your client’s presentation of a grievance is no good reason for his delay in presenting the claim and we understand that he was in receipt of advice from the BMA in April 2016[1375]. As such, your client will not be able to show that it was not reasonably practicable for him to present the claim any earlier.
In any event, in relation to the substantive issues, the point from which your client is set to fail with this claim from the beginning is that there was no contractually binding agreement to pay your client an alleged £200,000.

Page 4

There is no evidence of any such agreement other than your client’s mistaken recollection of a discussion with Mr Cutting, Ms Armstrong and Sr Winder. The Trust has no record or recollection of any such conversation. If such matters had been discussed with three individuals, it is inexplicable that no record of that conversation was made especially as such an agreed salary would be contrary to the NHS Terms and Conditions of Service Handbook and would clearly have been recorded.
Your client’s evidence in relation to others that allegedly heard reference to £200,000 per annum salary (namely Mr Rowbotham and Mr Dickinson) relates, it appears, to general conversations about the salary of Locum Consultants and not to your client specifically. We note that neither Mr Rowbotham nor Mr Dickinson have been called to give evidence that he heard the agreement, nor have any of the individuals who allegedly made the agreement with your client. Additionally, the email disclosed at the very end of these proceedings in which your client states to Anthony Thorpe of NHS Highlands that hisrejection of the post was based on salary actually states “...and given a substantial pay rise (they were talking £200K!)” is not evidence of an agreement, it is at best evidence of a speculative figure which was not agreed.
Finally, your client says in his statement (paragraph 71) that “It was agreed I would work a 12 PA job plan and be paid for 2 AAS sessions each week on top of this, with the idea being to review that after 6 months to check whether that arrangement was working todeliver me a £200,000 package”. This is also not evidence of an agreement to anything other than a 12 PA job plan. Your client will be aware of the nature of AAS sessions, which are only paid for time worked; otherwise the time would be built into the job plan as PAs.
Your client can adduce no evidence that there was a plan to review the salary to ensure it was on target to reach £200,000. The letter from Mrs Hadwin on 27 April 2015 [506- 507] clearly states that the agreement to increase your client’s PAs was for 12 monthswith no mention of any interim review. It is your client that instigates a review on 1 September 2015 [819] after 4 months and there is no formal review instigated by the Trust.
As your client will now also appreciate from reviewing Mrs Nic Philib’s statement, it wouldbe impossible for the proposed 12 PAs and 2 AASs, even if they were to be paid at £500, regardless as to whether or not your client worked those AASs, which is denied, to reach the level of £200,000 (by a significant margin).
As such there is no evidence, other than your client’s testimony, that he was ever offered a salary of £200,000.
In any event Mr Cutting, Ms Armstrong and Sr Winder did not have authority to agree any such sums on behalf of the Trust as is evidenced from the rejection of the job plans for anything more than 12 PAs. The NHS model consultant’s contract allows for 10 PAsas a standard full time role with a maximum of an additional 2 PAs.
Finally, it is clear from the manner in which your client allegedly “agreed” salary wasreviewed that the Trust had no knowledge of any agreement to pay a salary of £200,000 because there was no such agreement. The Trust has reviewed and paid your client the sums in respect of sessions worked at the appropriate and nationally agreed rates of pay and your client is therefore owed nothing further by way of salary in respect of his time working for the Trust.

Page 5

Less favourable treatment as a result of making a protected disclosure
Whilst it is accepted that your client made protected disclosures during his employment, arising as a consequence of his duty to report issues to the Trust through the Trust’sClinical Incident procedure and his professional obligations, the Trust denies that any ofyour client’s alleged detriments amount to detriments as alleged or at all and/or that they arose on the ground that your client made protected disclosure(s) on the following basis:
Allegation 60.3 - Submission of malicious Clinical Incident forms and Grievances
This claim is presented out of time. Your client has within his statement acknowledgedthat “It was, however, very noticeable during this period [period between return from sick leave around 3 August 2016 and his employment ending] that I was left alone and hostile confrontations, emails, MDT exchanges and fake Clinical Incidents ceased” (seeparagraph 164 of your client’s statement). As such, the latest that these could haveoccurred is 2 August 2016, meaning your client should have approached ACAS by 1 November 2016. Your client did not approach ACAS until 8 December 2016 and did not present his claim until 30 December 2016.
Your client had received advice from the BMA and had clearly instructed your firm in this matter by the point of presenting his first claim on 21 October 2016. Presumably you advised your client at that stage (if not in August – as we are aware that you were advising at that point) as to the disjointed nature of his alleged detriments (we would say that such disjoint stems from the fact that there was no link between them) and would have advised your client that he should immediately move to present all his claims, if he wished to seek to argue that it had not been reasonably practicable to present them earlier. Given your client had already presented his first claim on 21 October 2016, thereis no reason to suggest that it wasn’t reasonably practicable to present this latter claim atthe same time (and accordingly in time).
The nature of this alleged detriment means it is very clearly restricted to the allegations made about the submission of malicious incidents, complaints and grievances byMesser’s Jain, Madhra and Naseem and given the nebulous nature of the other issues(with the exception of 60.10 to which we will return later and discuss the reasons that that allegation is also presented out of time and has no merit) there is no “relevant connection” between this and any other potentially in time alleged detriments. There is only your client’s unwarranted and unreasonably held belief that there is a conspiracy between his Consultant colleagues and the higher echelons of management.
On the substantive merits of this issue, your client will see from the papers disclosed that the Trust has provided the Clinical Incident Forms produced both by and about your client. There is also a table of those reports made by each individual and about whom they were made.
The Trust is required to – and does - actively encourage the reporting of clinical incidents as it is from these reports that the Trust and those members of staff concerned can review and improve the services that are delivered at the Trust.
The Trust denies that there is any suggestion that the reports made about your client are malicious in nature or are in any way different in nature from those submitted by your

Page 6

client (save for generally being shorter in length and less critical of technique than those Clinical Incidents reported by your client).
It is noticeable that the reports about your client are made by a wide variety of individuals across the Trust’s organisation into a variety of low to moderate risk incidents which as evidenced by Dr Walker are usual day-to-day issues raised as clinical incidents. There is no suggestion that any of the reports are malicious in nature, they contain standard issues regularly reported about various incidents. By contrast, the tone and content of several of the reports made by your client appear malicious in nature towards his colleagues. However, the content of these reports was still taken seriously by the Trust and actioned appropriately.
In relation to the presentation of “grievances”, your client will quite clearly see from the documentation that the two grievances presented about your client by Mr Naseem and Mr Madhra were held to be reasonable grievances stemming from personal differences and perceptions of interactions between individuals and not malicious, otherwise steps would have been taken to deal with the malicious nature of the grievances [1210-1211 and 1410-1411].
In any event, if they are deemed to be malicious, which is denied, they coincided with the applications for the Clinical Lead and could easily have arisen from a number of other reasons including the fact that Mr Naseem and Mr Jain wanted the role of Clinical Lead.Clearly there is no causal link to your client’s protected disclosures.
Allegation 60.4 - Submission of malicious reports to the police and employer alleging racism, and failure to disclose the same to the Claimant prior to 5 Oct 2016
Having now had the opportunity to review the documentation in full, our client takes issue with whether this matter was presented in time and at the same time takes issue with the substantive point of this issue.
Your client will have seen the references in Mrs Joshi’s statement (paragraphs 115 and139) to the two occasions prior to October 2016 on which your client made comment about the allegations raised with the police. These are in his email of 9 March 2016 in which your client expresses his disdain for the appointment of Mr Naseem to the Clinical Lead post [1180-1181] and again in the meeting held between your client, Mrs Joshi and Mr Walker in May 2016 [1378].
In fact your client also states in the October meeting that he was aware of the police allegations [1759 and 1775].
It is therefore impossible for your client to maintain that he was not told of the allegation to the police until the meeting in October 2016. That point on your client’s behalf is atbest misleading. It also follows that your client’s claim of detriment on this ground is presented significantly out of time. Your client cannot substantiate his claim that he was not told about it before October 2016.
In relation to the meeting taking place between Mr Jain, Madhra and Naseem and Colin Cutting in December 2014 [428-431] your client will note that whilst a number of the concerns raised in that meeting relate to your client, they go much wider and allege racism by your client, Mr Rowbotham, Dr Birtle and Stephen Douglas. There is no suggestion of malicious intent within those notes, in what was clearly a heated meeting.

Page 7

There is further no suggestion that the motivation is tied to your client’s protected disclosures.
Allegation 60.6 - Failure to pay agreed monies following his agreement to work from Furness General Hospital in March 15
For the reasons set out above in respect of the allegation of unlawful deduction from wages, the Trust denies that it failed to pay agreed monies. Your client’s agreed salarywas 12 PAs, which was paid. Any AASs are, by their very nature, optional on the part of the Trust as demand and capacity fluctuates and by your client, who has no obligation to undertake the AASs.
Your client brought upon himself any underpayment of AAS payment due to inaccurate submission of claim forms and the subsequent failure to submit those forms from April 2016. Your client has also claimed for sessions where no clinical activity has been found, clinical activity being a prerequisite of an AAS. Following a wholesale review ofyour client’s claims and working patterns, your client has now been paid for the hours that he has worked.
For the same reasons as above, given your client did not submit any claims for AASs from 6 April 2016, his claim is also time barred with the same comments as in relation to his unlawful deduction from wages claim on the point as to why the time limit cannot be extended.
In respect of your client’s allegation that any deduction found, none being admitted, stemmed from your client’s protected disclosures, your client should now clearly see that no such causal link can be drawn. The Trust quite clearly from its correspondence in this matter has no knowledge of any agreement to pay £200,000 to your client, the Trust is further confused by the amounts owed to your client and as can be seen from the correspondence from Katie Sharp, the reason those sums that were not paid (which have subsequently been paid) was the confusion as to the terms agreed regarding payment rates and AASs which were not being claimed by your client. Your client will also note the initial issues with payment stemming from an imminent audit, and it is clear from the review that your client did claim for sessions where he undertook no clinical activity, as mentioned above, clinical activity being a prerequisite of an AAS.
Allegation 60.7 - Failure to appoint to the role of Clinical Lead in 2016 and disingenuously persuading the Claimant to stand for the role on the false promise he would be appointed
As with many of the other alleged detriments in this claim, this relates to matters which are presented out of time, the appointment of Mr Naseem having taken place on 1 April 2016.
This issue alongside 60.8 (below) remains an individual issue with no connection to any of the other allegations and as such your client will not be able to show a course of conduct as there is no relevant connection from which he can tie this to his other, potentially in time, alleged detriments. We should also point out that those “in time”detriments are disputed on grounds of their merits and we will return to that point later in this letter.

Page 8

This matter is of course split into two separate issues (1) an alleged failure to appoint your client to the role; and (2) allegedly disingenuously persuading your client to stand for the role.
The Trust engaged in an open competitive appointment process to the role of Clinical Lead. That appointment process involved an interview panel comprising Dr Walker and Ms Ajayi, with Mrs Joshi also having an input into the decision.
The interview panel felt that your client did not perform as well as Mr Naseem at interview and accordingly appointed Mr Naseem to the role. Your client will inevitably have seen, and should have already been aware from his meetings with Mrs Joshi and Dr Walker that Mr Naseem attended interview with a plan for uniting and moving the department forward and was the only individual willing to work with a colleague from the other side of the fractured team to unite the two halves of the team. It has never been denied by the Trust that your client is a good clinician (this is acknowledged by your client in paragraph 127 of his statement). The Trust has acknowledged that your client’sinterview was a good interview, but on the day the best interviewee was appointed to the role.
Your client was not disingenuously persuaded to apply for the role. The Trust felt that your client could have potentially been a good fit for the role and as such encouraged your client, together with several of his colleagues, to apply for the role. There was nothing disingenuous about this. You will see from the papers disclosed and from the statements of Mr Walker and Mrs Joshi that your client was never promised the role, nor was this intimated in any correspondence. As your client will appreciate, any such promise would be wholly inappropriate and would go against the principles of the open competitive appointment process.
Allegation 60.8 - Appointing Mr Naseem to the Clinical Lead role who was demonstrably not well equipped for the role and who had a history of seeking to intimidate and bully the Claimant and had made malicious allegations against PD
As above, this allegation is presented out of time with no justification to extend the time limit and no connection to any potentially “in time” alleged detriments, those detriments being denied in any event.
For the reasons set out above, Mr Naseem was considered a better match to the role and performed much better in interview than your client.
Your client will now have seen the evidence of Mrs Joshi as to the personality of MrNaseem (paragraph 117 of her statement), that Mr Naseem is “...a mild mannered and quite insular person, not at all the type to respond aggressively”. Additionally, you willnote our comments above about the grievance raised by Mr Naseem and the Trust’sposition that this was a difference of opinion. Your client’s perception of Mr Naseem asinappropriate for the role is unfounded and clearly stems from the personal relationship breakdown between your client and Mr Naseem.
In any event, your client will have seen the Trust’s evidence that the personalrelationship points (other than the aim to reunite a fractured team) had no impact on theTrust’s appointment of Mr Naseem to the Clinical Lead Role.

Page 9

Allegation 60.9 - Telling the Claimant his base hospital would be moved from Lancasterto Barrow which would further erode the Claimant’s earnings by about 20% with no consultation or agreement with the Claimant
Your client did not work after 23 August 2016 and his employment ended on 26September 2016. To that point no amendments were made to your client’s base hospitaland your client has been unable to adduce any evidence other than his testimony to substantiate that his base hospital was moved.
In any event, your client will have seen the testimony of Mrs Joshi (paragraphs 170-171), which is aligned with her comments in the meeting in October 2016 [1762 and 1781- 1782]. Your client never sought confirmation as to what that may mean for him andclearly misunderstood what was being discussed, as is evidenced by Mrs Joshi’s comments. Mr Cutting’s alleged corroboration is a vague statement and doesn’t corroborate that he understood anything about the implications to your client’s salary.
In fact, what your client was told was that there would be a review, which is, as you will appreciate, the consultation he says that he never had.
Your client will also appreciate the context of the meeting at which he was present at the time of the alleged “announcement”. This was a job planning meeting which by its nature would discuss such issues. There is no link between this and your client’sprotected disclosures.
Allegation 60.10 - Failing to take steps to prevent malicious reporting of clinical incidents involving the Claimant and failing to take steps to stop the hostile and intimidating environment in which the Claimant had to work including baseless grievances and allegations of racism against the Claimant
This argument is also firstly, presented out of time, and secondly, untenable on itssubstantive merits. Your client has suggested that the Trust “failed to take steps”. However, by your client’s own statement there were no further issues from his return onor around 3 August 2016 (paragraph 164). As such, from this point there were no issues that the Trust would be required to remedy.
In any event, it is quite clear that the Trust has “taken steps”, in fact quite significant andcostly ones, to resolve the differences within the department. These have included, but are not limited to:

1. Asking your client and his colleagues to engage in mediation – your client did not engage in this process when offered;
2. Arranging an Occupational Psychologist to work with the department;
3. Arranging a review of the department by the Royal College of Surgeons (RCS);
4. Implementing an action plan following the RCS review and involving your client in implementing that action plan;
5. Dealing with the grievances of Mr Jain and Mr Naseem informally in the first instance and taking comment from both your client and the complainants to ensure that the matters were properly investigated before coming to a conclusion;
6. Arranging for your client’s annual leave to be arranged by Belinda Pharoah (your client’s statement para 50);

Page 10

7. Allowing your client to move to Furness General Hospital instead of working at the Royal Lancaster Infirmary; and
8. Taking action to restrict the clinical work on Mr Madhra and review his performance on two separate occasions.
Your client’s argument that the Trust failed to “take steps” to resolve the departmentalissues is clearly untenable. Your client should also now be able to see that much of the above positive action was taken as a consequence of his whistleblowing and not in spite of it.
Allegation 60.11 - Rebuking Claimant in respect of the protected disclosure made in relation to the matter explained at paragraphs 45 and 46 (of the pleadings)
The meeting to which your client refers was one which took place in May 2016 between Mr Walker, Mrs Joshi and your client. As such, again, this matter is presented out of time by several months, with no suggestion of a relevant connection between that meeting and any alleged detriment which may have occurred “in time”. For the reasonsset out previously, your client was in receipt of BMA advice by that point and advice of your firm in August 2016.
In any event, your client must also accept that his actions, which were not authorised by the Trust, in speaking to two patients with whom he had no previous contact and at an inappropriate time of the day was a significant breach which needed to be addressed bythe Trust. Your client’s actions impacted on the Trust’s ability to determine the factsthrough its official (authorised) investigation.
Your client’s assumption that the statement of Alison Nelson, Trust HQ PA: MedicalDirector, that the meeting was purely “regarding the concerns [he] raised via email to them both” [1413] doesn’t hold weight. Had he enquired of Dr Walker or Mrs Joshi, who were to conduct the meeting, he would have been told the full reason. Your client wouldinevitably have been less impressed had Dr Walker’s PA known the full reason for themeeting. It is further evident that the meeting was an informal meeting in which a number of topics were covered, including the issues that your client raised relating to the appointment of Mr Naseem amongst other issues led by your client in that meeting. All the notes from [1383-1390] relate to issues other than Mr Jain’s two patients. This isreflected in the notes of the meeting and your client’s comment that “the meeting was nothing to do with [his] emails” is wholly inaccurate and misleading.
In any event, no formal process was commenced with your client, despite the fact that his actions constituted a significant governance breach and a breach of his regulatory obligations.
The comments made in that meeting relating to the contacting of patients were notbecause of your client’s whistleblowing, they were because of your client’s demonstrablyinappropriate approach to patient data. As your client’s own witness statement makesclear, he is a senior and experienced practitioner. As such, he is going to struggle to persuade a Tribunal that in the event of such a serious and inappropriate approach to patient data, it would be inappropriate for the Trust to address those issues with him. It also follows that it is less than credible for your client to argue that such a meeting would not have been conducted with a doctor who had committed similarly serious breaches but who had not made protected disclosures.

Page 11

Allegation 60.12 - Ignoring for 6-8 weeks after submission of resignation by failing to acknowledge it or otherwise engage with the Claimant following its submission
This allegation is completely unfounded. It is at best misleading and as an allegation is misconceived, and is unreasonable and vexatious in the face of the independent and contemporaneous evidence. David Walker, Medical Director, to whom your client had written and resigned on 7 July 2016, wrote to your client by letter of 8 July 2016 [1662- 1664] inviting your client to arrange an informal discussion with the Trust in the first instance to try and resolve the issues. Your client asked not to be contacted further until after his annual leave.
Following that annual leave, Mrs Joshi confirmed that she had tried to contact your clienton at least three occasions, however, your client’s phone was faulty at the time, which could not have been known to Mrs Joshi.
Your client was not “ignored” for a period of 6 to 8 weeks and such an assertion is whollyunsubstantiated. The opportunity for such a conversation with left with your client and that discussion took place on 5 October 2016 once your client had taken the opportunity to arrange this with the Trust.
Finally, as we have set out in previous open correspondence on 28 February 2018 and 9 March 2018, any reference to which does not render this correspondence open, your client was engaging with the Trust at least four weeks after his resignation (two weeks after his return from annual leave) and attended a return to work meeting as noted in correspondence with your firm [1721-1722] and in the notes of that meeting [1717(1)- 1717(34)]. Your client’s assertion that the Trust failed to “otherwise engage with the Claimant” is completely unfounded and your client (and your firm) maintaining this pointhaving had this point brought to your attention on two occasions now, is unreasonable –and potentially tantamount to vexatious – behaviour.
Allegation 60.14 - Misleading the Chairman of the Respondent as to the true factsrelating to the Claimant’s employment history and resignation as evidenced by the whollyinaccurate correspondence from the Chairman of the Respondent to the Claimant in December 2016
It is impossible to see how your client’s allegation that the Trust misled the Chair of theTrust as to the “true facts relating to his employment history and resignation” couldamount to a detriment. In any event, it is denied that the Trust misled the Chair of the Trust.
Your client will recall that he set out to the Trust’s Chair the reasons he considered he had resigned in an email of 13 December 2016. However, your client’s email is itself not completely accurate. As an initial point your client suggested that the Chair of the Trust may have heard of your client’s “recent resignation”. Your client resigned some five and a half months prior to his correspondence with the Chair and his employment ended two and a half months before his email. Your client’s motive for writing when he did is hard tounderstand, given that he chose to wait almost 6 months before raising this issue with the Trust’s Chair and only raising its 2 weeks before submitting his claim.

Page 12

Your client went on to suggest that he had been “summons[ed] to Carlisle Court on Monday to strike out [his] claim for ~£35,000”. For the reasons set out above, the Trust denies that your client is owed any further sums by the Trust. The Trust had the legitimate position that your client’s claims for alleged unpaid wages were out of time and that this matter needed handling as a preliminary point. Your client was not“summonsed” and the preliminary hearing to which he refers was a part of theproceedings which he instituted. We can only assume that as his legal advisor you informed your client of the nature of the preliminary hearing and that he was free not to attend if he did not wish to do so and to send a representative in his stead, as such he was not summonsed to attend.
We can only assume that this inflammatory language was intended to prompt an unwarranted urgent response from the Trust’s Chair which is suggestive of your client’sunwarranted sense of grievance in this matter.
As you are aware, the Trust’s Chair responded to your client on 20 December 2016 setting out the steps that had been taken to try and address the patient safety concerns. Your client cannot deny from the evidence that:

1. The issues were discussed with him on various occasions – there is a significant amount of documented email correspondence and meeting notes included in the bundle about the issues your client raises. In the event that your client is allegingthat he didn’t receive the outcomes (which does not form part of his pleaded case), he should appreciate as a professional that it is not always appropriate to provide the outcome of an investigation into a colleague to an individual, this also forms a significant principle of whistleblower protection;
2. Investigations were conducted into the concerns that he raised – this cannot be in dispute as each issue has been investigated, and your client seems to suggest that those investigations led to detriments, those detriments in any event being denied for the reasons set out above;
3. The Royal College of Surgeons conducted an independent review and produced a report on the Urology Department – that report has been disclosed and your client was one of the core individuals involved in giving evidence to that report;
4. Steps were taken as a consequence of that review – your client has acknowledged that he was involved in the follow up from the RCS review;
5. Steps were taken with his colleague Mr Madhra to restrict and supervise his practice and that your client was not required to undertake that supervision; and
6. He met with Mrs Joshi and Dr Walker to discuss concerns in both May and October 2016.

Notwithstanding that accurate and evidenced understanding of the situation, the Trust’sChair gave your client the opportunity to contact him with any further concerns he had. Your client highlighted those concerns in an email and attachment of 21 December 2016[1889-1895], which appears reflective of your client’s resignation letter and this claim and these were considered by the Trust as part of a review, the outcome to which was sent to your client in March 2017.

Page 13

By contrast to some of the information expressly or impliedly provided by your client to the Trust Chair, the Trust did not (contrary to the pleaded case) provide the Chair with any inaccurate or misleading information and your client’s allegations, having been reviewed, were seen by the Trust to have been concluded (as set out in the initial briefing). The Trust therefore denies that the Chair was misled in any manner and the Trust will have no difficulty in evidencing this at the hearing.
Even if your client could show that the Trust had misled its Chair, which is denied, the Trust disagrees that this can amount to a detriment to him personally. He suffered no direct or indirect loss as a consequence; this has not impacted on his relationship with the Trust which he alleges was already damaged beyond repair– a breakdown which the Trust denies. He was afforded the opportunity for his subsequent concerns to be investigated and chose to take that opportunity.
Your client’s case in this regard is wholly without substance.
Constructive Unfair Dismissal and Automatically Unfair Dismissal
Your client’s claim in relating to this element of his claim requires your client to show thatobjectively the Trust conducted itself in a manner which was calculated or likely to breach the relationship of trust and confidence between the parties. For the reasons set out above, and the following reasons, we submit that your client will be incapable of proving such an assertion and that your client indeed agrees that there was no such breakdown. We note that your client relies only on those issues between paragraphs 38 and 55 of his Grounds of Claim [54-58] as those issues resulting in a breach of trust and confidence.
For the reasons set out above, the actions of the Trust have been to assist your client and the department generally in resolving the relationship issues, none of which stemfrom your client’s protected disclosures. As such, your client will find it impossible to show that the actions of the Trust were objectively intended or likely to have the effect of destroying or seriously damaging the relationship of trust and confidence.
The actions of your client’s colleagues in raising malicious grievances, complaints, allegations of racism and clinical incidents, none being admitted, cannot be a fundamental breach by the Trust as if they were malicious; the individuals were not acting on the instructions of the Trust in making them. The Trust has, for the reasons set out above, taken significant steps to resolve these issues and acted in such a way as to try and maintain trust and confidence throughout.
In relation to the appointment of Mr Naseem to the role of Clinical Lead, subjectively the Trust can understand why your client may feel aggrieved at not having been appointed (because he wanted the role).However, objectively this cannot have been a breach as Mr Naseem was best placed for the role and performed best at interview.
The meeting between Dr Walker, Mrs Joshi and your client is again an example of an objectively justified meeting and whilst your client may have been upset at having not known the full extent of the reason for that meeting, the issues he wished to raise in the meeting were raised, the meeting’s content was objectively necessary as your client hadbreached professional obligations but no formal action was taken as a consequence.

Page 14

For the reasons set out above, your client’s base hospital was not moved anddiscussions surrounding the base hospital were objectively reasonable given the nature of the meeting (which related to job planning).
Finally, your client says he resigned, or the principal reason for his resignation, was that he received a note calculating the figures owed to him. He did not question those figures or adduce any evidence in response at the time. Had he done so he may have been able to expedite the payment of the correct sums, which our client recalculated and latterly paid to your client in late 2016 / early 2017. That is not the action of an employer that objectively wishes to or was acting to destroy the relationship of trust and confidence.
In relation to an actual breakdown, you will see from your client’s own statement that he says:

Para 172 Para 173 Para 174 Para 176

“I was tentatively offered the chance to withdraw my resignation. I said that I would think about it”.
“unless UHMB came up with something truly exceptional, my career in the NHS was over”
“I still dream even now from time to time that I’m back working inUHMB”
“I continued to make clear my availability for further meetings in the hope-against-hope that UHMB could somehow come up with some kind of package that might enable me to resume work for them”

It is apparent from each of these statements that your client did not consider any breach as a fundamental breach. Your client for several months after his resignation and beyond was clearly considering that he could return to employment with the Trust.
Your client has an unjustified sense of grievance in relation to personality clashes that he has sought, but to our reading of the evidence that is to be presented, failed to attributeto his whistleblowing. In relation to the alleged causal link of your client’s whistleblowing,we refer you to our points above as to why there is no such link in relation to the issues he raises as those causing a breakdown in trust and confidence, those issues in any event being denied as set out above.
Your client should now be able to see that he has no prospect of demonstrating that he was constructively dismissed.
Our client’s offer
For the reasons set out above, we consider that your client’s claims are misconceived, that none of your client’s claims have any reasonable prospect of success and that their continued pursuit is unreasonable (and in some instances, vexatious).
We therefore invite your client to enter into a legally binding COT3 whereby your client withdraws his claim and each party bears its own costs and agrees not to make application for an order for costs against the other party. This will be on the standard COT3 terms that the deal done is without admission of liability, that neither party or its agents will make derogatory comments about the other, that the fact and terms will remain confidential, and that there will be the usual carve out as required by the

Page 15

Department of Health regarding the ongoing ability to raise issues of patient concern. This offer remains open until 4pm on Thursday 12 April 2018.
This is the only offer that our client is willing to make.
For your information, my client’s current legal fees expenditure on this matter is circa£65,000 plus VAT. It is estimated that this will be in the region of £90,000 plus VAT if this matter progresses to the 10 day final hearing.
We reserve the right to bring this letter to the attention of the Tribunal in support of any application for a costs order against your client if our client’s offer is not accepted.
We look forward to hearing from you. Yours faithfully
Capsticks Solicitors LLP