Consultant Peter Hale suing Brighton and Sussex University Hospitals NHS Trust for unfair dismissal

Peter Hale, an expert in digestive diseases at the Royal Sussex County Hospital says he was unfairly dismissed after being secretly recorded referring to four doctors of Asian origin as “sub-continent elements.”

But he maintains his comments were not racist and that the four doctors made discriminatory remarks against him at the same meeting but had no action taken against them.

Mr Hale is taking the Brighton and Sussex University Hospitals NHS Trust, which runs the hospital, to an industrial tribunal.

The move comes against a background of increasingly fractured relations between the trust leadership and members of the Black and Minority Ethnic Network at the hospital.

It has circulated a petition and called on trust leaders to stand down.

The Argus can reveal that the crisis further escalated this week after the four doctors had their own case for racial discrimination thrown out at an industrial tribunal after it sensationally emerged they had secretly taped a meeting of the trust’s lawyers.

Doctors Khawaja Zia, Ved Prakash, Vivek Kaul and Christi Swaminathan, had claimed they had been under-paid and under-promoted due to their race, over years of working for the trust. The trust strongly denied the claims, and last week Judge Gill Sage struck out their case after finding they had secretly recorded a private meeting in May during which the trust was given legal advice about their case. The doctors denied doing so.

The tribunal found they had then sent a transcript of the meeting to the then chief executive of the trust, Matthew Kershaw, to try and pressure him into settling the case.

Striking out the case, Judge Gill Sage said “the right to confidential discussions with one’s lawyer had to be protected, and the breach went “to the heart of the right to a fair hearing”.

She ordered the four doctors to pay the trust’s costs since May, which amounted to more than £17,000 each.

Mr Hale’s lawyer Fiona Martin told The Argus he is bringing proceedings against the trust for unfair dismissal, breach of contract and race discrimination.

Mr Hale will be claiming the doctors made racist remarks towards him in the meeting in which they had alleged he had made racist remarks.

Ms Martin said none of the remarks which were relied on by the trust when her client was dismissed amounted to race discrimination and/or race-related harassment. She said that a High Court judge had expressed his “difficulty in understanding” that the comments complained of were discriminatory and how they justified dismissal.

She said: “Furthermore our client was not treated equally or consistently according to the same standard as was applied to the four doctors.”

She claims the four doctors made offensive and racist remarks at the same meeting in which Mr Hale was accused of racial discrimination.

She said the comments they made about white consultants were calculated to cause offence, therefore they could easily be seen as racist.

She said: “Nonetheless the trust did not consider that these four doctors deserved to be disciplined at all. Therefore, his dismissal for gross misconduct is unfair and discriminatory.”

The doctors said they “completely deny” their comments were racist and plan to appeal the decision to dismiss their tribunal.

DISCRIMINATION CLAIMS, SECRET RECORDINGS, A SACKING – A HOSPITAL RIVEN BY A RACE CRISIS

Peter Hale was appointed as head of the digestive diseases department at the Royal Sussex County Hospital in 2011, to turn things around after the Royal College of Physicians raised concerns that the department was over-spending and under-performing.

Four years later the department finds itself torn apart by internal divisions with both Mr Hale and four doctors on his former team accusing each other of racist behaviour and also accusing the trust of racial discrimination.

The toxic row comes amid worsening relations between minority ethnic staff and leaders at the hospital, which unions fear may ultimately harm patient care.

The strained relations in the digestive diseases department, which were partly over proposed rota changes, came to a head when four trust-grade doctors recorded comments made by Mr Hale at a staff meeting after they had left, in which he referred to them as “sub-continent elements”.

Mr Hale was sacked and the doctors, Khawaja Zia, Ved Prakash, Vivek Kaul and Christi Swaminathan, took the trust to an employment tribunal.

They claimed that, due to their race, they were repeatedly given fixed-term contracts, overlooked for training opportunities and worked unpaid overtime, claims denied by the trust.

Cross-examining Mr Prakash when their case started in June, the trust’s lawyer, Ben Cooper, suggested their treatment had nothing to do with their race, noting there were “at least 23 other doctors on non-standard terms and conditions similar to yours”.

No ruling has been made on whether the four were subject to racial discrimination, because their case was thrown out last week after they were found to have secretly recorded a private meeting between the trust and its lawyers.

What was said at that meeting is and will remain secret, after the hospital got an injunction at the High Court under breach of confidence rules to prevent it being shared.

Nonetheless, at the tribunal the trust strongly denied the doctors’ claim that it shows the trust lied about their tribunal case. Judge Sage noted the doctors were “specifically asked” by the judge who granted the injunction “to provide evidence of what they described as ‘iniquity’”, so this could be addressed if needed, and they had not. She concluded no evidence was provided to suggest the trust was “misusing the cloak of privilege” to hide something.

The doctors said they could not afford the legal battle over the injunction, and have strongly denied recording the meeting themselves, saying the transcript was also given to them anonymously. They did not give evidence on this point to the tribunal.

Their lawyer, Ayoade Elesinnla, told the court: “They find themselves in a position where they have recorded impeccable service to an employer for many years and have asked for their basic right, which is to be remunerated for their work, progressed their complaint in the employment tribunal, made it very clear that the evidence, putting it at its lowest, has been deceitful.

“They likely face a potential bill of £26,000. This sort of nonsense is likely to bring the administration of justice into disrepute.”

The trust strongly denies its evidence was deceitful.

The doctors were ultimately ordered to pay more than £17,000 each to cover the trust’s legal costs since May, more than half the trust’s total bill for the tribunal of £130,057, amid spiralling costs for similar tribunals.

The Black and Minority Ethnic Network at the trust has launched a petition calling on trust leaders to stand down, adding: “BME people are being subjected to unprecedented levels of racial discrimination, harassment and victimisation”. Chief executive Matthew Kershaw’s resignation last week was not connected to this.

The trust has strongly refuted the claims , saying it is “confident that policies relating to discrimination issues are fairly applied” and it “commits substantial resources to positive and proactive race equality initiatives, including significant support to the BME Network itself”.

It is understood the trust has spent more than £1.4 million defending employment tribunals involving race relations over the past decade. It is believed the vast majority of these involve a small number of repeat claimants and the trust has lost one.

Gary Palmer, from the GMB union for NHS staff, which has backed the BME Network petition, said he wanted the Equality and Human Rights Commission to come in and investigate whether the trust was complying with NHS standards.

He said having unhappy staff “of course” risked having an impact on patient care, but noted “NHS workers do their best despite terrible conditions”.

A spokesperson for Brighton and Sussex University Hospitals NHS Trust said employment tribunal cases relating to race-discrimination accounted for a disproportionate total of its overall spend on legal costs “despite being low in number”.

She added: “We estimate that more than 90 per cent of that expenditure has been on claims brought by a small number of people who have lodged multiple claims.

"This is a significant cost against our finite resources and in each case every effort is made to not start a legal process as this has time, cost and other adverse impacts.

"We also make every effort to act fairly and proportionately in all cases where an individual’s conduct falls short of expectations, including investigating and taking the appropriate action in cases where misconduct or discrimination is alleged against BME staff, and we will continue to do so. 

“The Trust believes that the purported facts which are being used to justify the petition being circulated have been selectively assembled to create an inaccurate impression.”

CONSULTANT’S CAREER HISTORY

Peter Hale started working for the then Brighton Healthcare NHS Trust in 1995.

His profile on the General Medical Council shows he qualified from the University of London in 1984.

His main areas of surgery are upper gastrointestinal with emphasis on the oesophagus and bile duct.

He was appointed head of the digestive diseases department at the Royal Sussex County Hospital in order to try and turn things around after concerns were raised about over-spending.

A professional profile states he was educated at Cambridge and St Bartholomew’s Medical College, London, and trained in general surgery at St Thomas’ and Guy’s hospitals in London.