KB-2025-BHM-000174 - [2025] EWHC 2263 (KB)

The factual background is complex, but in summary, in February 2021, an external investigation was commissioned by the Defendant to review the working relationships amongst Consultants in the Ophthalmology Department at Queen’s Hospital, Burton and to investigate various cross-grievances raised there. That investigation was conducted by an external solicitor, Mr Hodge, who reached the conclusion in 2022 there were difficulties with working relationships, but he did not attribute blame solely to the Claimant. However, Mr Hodge did say the Claimant’s communication style was damaging and that he was ‘weaponising’ the Defendant’s clinical governance reporting process, called ‘Datix’.

The outcome of the investigation was then shared with the Claimant in July 2021 by his Deputy Medical Director, Dr Crampton. The Claimant formally appealed against the Hodge Report findings and asked for his response to it and his complaints relating to patient safety to be considered as ‘protected disclosures’ under the Defendant’s ‘Whistleblowing Policy’, which as I understand it was done. The Claimant’s appeal against the Hodge report was dismissed in December 2021, but he remained aggrieved.

The General Manager of the Claimant’s unit was Mr Littler and in October 2022, he raised a wider concern raising concerns about relationships within the team involving various Consultants, in particular the Claimant. Mr Littler alleged the Claimant’s behaviour posed a ‘substantial risk to both patient care and department reputation’ and he felt that the Claimant was trying to undermine the conclusions of the Hodge report and had not learned the lesson of the need for more constructive working relationships with his colleagues.

Dr Crampton, who by then was the Executive Medical Director, then sought advice in November 2022 and initiated the Maintaining High Professional Standards in the Modern NHS (‘MHPS’) disciplinary policy. He appointed the-then Deputy Medical Director, Dr Gisella Robinson, as case manager of the Claimant’s MHPS investigation in January 2023.

In May 2023, the Claimant’s clinical practice was temporarily restricted, but those were then lifted in June 2023. The investigation continued, but in August 2023 the Claimant raised further concerns about various matters with NHS England, including patient safety and alleged conflicts of interest amongst some of his colleagues. NHS England recommended in September 2023 separate investigation of the Claimant’s grievance and MHPS investigations. It also recommended that Dr Robinson be replaced as case manager under the MHPS process given the Claimant’s allegations against her. This led to the appointment of Dr Arne Rose, the new Deputy Medical Director of the Defendant Trust.

At that stage, in November 2023, the Claimant issued Employment Tribunal proceedings alleging he had been subjected to detriments for raising protected disclosures and alleging race and disability discrimination (which are ‘protected acts’ under the Equality Act 2010). During initial Employment Tribunal proceedings, the MHPS process continued, which in turn generated further concerns for the Claimant. In September 2024, he presented a second Employment Tribunal claim alleging further whistleblowing detriments which he alleged were in retaliation for his initial Employment Tribunal claim, but also referring to the protected disclosures that he had continued to make in relation to various clinical matters.

In Autumn 2024, the Claimant also initiated proceedings in Nottingham County Court and sought an injunction restraining the Defendant from continuing its MHPS investigation until the conclusion of his Employment Tribunal proceedings. There was some delay, but the Claimant eventually produced self-drafted Particulars of Claim. They alleged breach of contract both of express and implied terms in relation to many of the matters that I have already summarised. Most relevantly, at paragraph 14 of his Particulars he pleaded:

“In breach of the express term of mutual trust and confidence at clause 3 of the contract of employment and further and alternatively implied terms of mutual trust and confidence, the respondent had already subjected the Claimant to detrimental treatment either because of his protected disclosures and/or because he has done acts protected by the Equality Act 2010. These are being litigated to the Employment Tribunal, and the Claimant has submitted two Employment Tribunal claims, and a final hearing has been listed in December 2025.

At paragraph 15 of his Particulars of Claim, the Claimant pleaded:

“In further breach of clause 3 of the Claimant’s contract of employment, and/or the implied term of mutual trust and confidence, the Defendant subjected the Claimant to an MHPS investigation purely on the basis of Daniel Littler’s complaint…..

Further or alternatively, the trust has not acted rationally or with reasonable and proper cause in instigating this investigation or for the improper purpose of marginalising or discrediting or attempting to discredit a whistleblower in concealing actions not conducive to patient wellbeing and safety. That is reinforced by the Defendant’s actions before and since implementing the investigation.

(1)

The Claimant is the only Consultant to be subjected to investigation, despite not being singled out for criticism in the Hodge report.

(2)

The Defendant has failed to satisfactorily investigate the Claimant ’s grievances and/or protected disclosures.

(3)

The Defendant has accused the Claimant of not adhering to a new behavioural code resulting from recommendations of the Hodge report, but no such code has been agreed.

(4)

The Claimant was criticised for his continued use of Datix despite its use being encouraged by the Hodge report and was told his Datix reports would not be investigated or accepted.

(5)

The Claimant has not been interviewed as part of the MHPS investigation.

(6)

The Defendant has repeatedly ignored occupational health advice. [in respect of the Claimant’s health concerns]

(7)

“The Defendant appointed a Dr Robinson as case manager, despite the close connection between her and against those the Claimant made complaints and protected disclosures.

(8)

The Defendant has corresponded with the Claimant at times the Claimant believes to have been designed to cause distress and exacerbate his ongoing health issues.

(9)

The Defendant refused to rescind the appointment of Dr Robinson for a period of nine months despite the clear conflict of interest in named as a respondent to Tribunal proceedings.

(10)

The Defendant then replaced Dr Robinson as case manager with someone who reports to a Dr Rose Arne [sic] who has a chequered disciplinary past, apparent history of having to be moved out from another trust due to behavioural issues not declared by the trust; therefore is vulnerable to pressure from superiors, and has made personal relationships with those against whom the Claimant has made complaints besides now being a respondent to the Employment Tribunal claim.

(11)

The Defendant has resolutely refused to rescind Dr Arne Rose’s appointment as case manager, despite a conflict of interest and/or the appointment giving rise to a perception of bias, as if deliberately to retain control.

(12)

Even in these proceedings, the Defendant has incorrectly asserted that the MHPS investigation had concluded when it had not and cannot be trusted to act in a fair and truthful way.”

The MHPS process involved the appointment of an independent investigator, who issued a report on 7 November 2024. I have not seen that report because it is not in the bundle, but I am told by the Claimant that it made two recommendations: the first for him to have further communications training, to which he has agreed; and the second for him to be the subject of a verbal warning, which he hotly contests. Dr Rose has invited him to a meeting to implement the recommendations of the MHPS report, but the Claimant has declined as he does not accept he should receive a verbal warning. Instead, he has sought, initially through the County Court proceedings and latterly, as I shall explain, through these High Court proceedings, to seek an injunction he described in his County Court Particulars:

“The Claimant therefore seeks an injunction restraining the Defendant from continuing with his MHPS investigation in the alternative until the claims in the Employment Tribunal have been determined.”

That said, as I have said, the only uncompleted step in the MHPS process is a meeting between the Claimant and Dr Rose, who wishes to implement the two recommendations: the further training which is agreed and the verbal warning which is not. So, in reality the real nub of the injunction application is to restrain the verbal warning until the Employment Tribunal proceedings, which the Claimant clearly hopes will prevent it from being imposed.

In March 2025, the Claimant amended his Particulars of Claim in the County Court to include damages for loss. He has limited his claim for financial loss to the Employment Tribunal, but in the County Court also seeks losses for reputational damage, which the Claimant contends he continues to suffer and is the focus of his desire for an injunction.

The Claimant also applied in the County Court for the case to be transferred to the High Court, which prompted a hearing to determine whether the County Court had jurisdiction to deal with the claim, the interim injunction and case management. The Defendant’s position in its Defence is that the County Court (and now the High Court) do not have jurisdiction to adjudicate the claim, essentially because it is effectively a reiteration of the claim currently in the Employment Tribunal for whistleblowing and discrimination.