Surgeon wins age discrimination battle
A WORLD-RENOWNED spinal surgeon has won claims of age discrimination and unfair dismissal against the Newcastle Hospitals trust as a judge slammed the “considerable amount of public money” spent on the case.
Orthopaedic consultant Michael Gibson took the NHS trust, which runs the Royal Victoria Infirmary and Freeman hospitals, to tribunal over a longrunning contract dispute that started with his decision to “retire and return” in 2013.
Mr Gibson told the tribunal that the then-chief executive Sir Leonard Fenwick had said he could work part-time “as long as he wished” but then “two new clinical directors came into post, found him difficult to work with and forced him out”.
The tribunal found that Mr Gibson’s claims of direct age discrimination, harassment related to age, victimisation and unfair dismissal were well founded. They dismissed his claims of indirect age discrimination and wrongful dismissal.
But employment judge Andrew Buchanan criticised the amount of taxpayers’ money spent in the dispute – which he found was a result of “pride, stubbornness and dysfunctional working relationships”.
In the panel’s reserved judgement, Judge Buchanan wrote: “It seems to us that it is a very great pity that this matter ever reached the tribunal.
“The matter was eminently suited to resolution at an early stage. There were many missed opportunities to resolve this matter and at the heart of it lay entrenched positions borne out of a mixture of pride, stubbornness and poor, not to say dysfunctional, working relationships.
“A very considerable amount of public money has been spent on this matter without any appreciable benefit to anyone – least of all the users of the service provided by [the trust].”
The tribunal heard that Mr Gibson was 60 years old when he applied to retire and return in October 2013.
A report of the hearing said: “He wished to take his NHS pension and return to work on reduced hours – it was a common strategy amongst consultant and managers to take their pension before it exceeded lifetime limits and then to return to work on reduced hours but with no appreciable drop in earnings.”
The panel found that Mr Gibson “had been led to believe he could continue to work part-time for as long as he wished and nothing to the contrary was agreed with him or indeed mentioned until 2016”, when two new consultants were in post in the spinal unit.
By this time clinical director Nigel Brewster had been replaced by David Deehan and Craig Gerrand.
The panel wrote that the relationship between Mr Deehan and Mr Gibson “was very poor at best and dysfunctional at worst”.
Their report described a long-running dispute over Mr Gibson’s contract being extended which led to “an unseemly spectacle of two consultant surgeons losing their tempers with each other” during a meeting in April 2016 – after Mr Gibson had been told his contract would only be extended for six months.
The panel heard that on September 30, 2016 Mr Gibson was handed a letter informing him of his right to appeal the decision not to renew his contract.
Mr Gibson was then not allowed to work during the appeals process, which ultimately lasted 12 months, and was paid full salary.
The report said: “There were no competence or disciplinary issues of any kind alleged against the claimant at this or any point in time and there was no reason why he could not have been allowed to work.
“There were large waiting lists in the Spinal Unit and patients could have benefitted from the presence of the claimant in the workplace.”
Mr Gibson appealed the decision to dismiss him but was turned down.
The trust claimed that Mr Gibson had been given a fixed-term contract “to allow a smooth transition” as two new consultants were hired to replace him. But the tribunal found that this had never been agreed with Mr Gibson, and that the assumption that he would retire permanently after new consultants were in post was “tainted with age discrimination”.
They concluded: “No reasonable employer would have acted in that way. Judged from the standpoint of any reasonable employer, the decision to dismiss the claimant was comprehensively unfair.”
A remedy hearing date has been set to determine how much compensation Mr Gibson should be awarded.