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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Ruby v Kings Lynn & Wisbech Hospitals NHS Trust [2001] EWCA Civ 1852 (22 November 2001)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1852.html
Cite as: [2001] EWCA Civ 1852
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN EMPLOYMENT APPEAL TRIBUNAL
(Mr Justice Charles)
Strand London WC2A 2LL Thursday, 22nd November 2001 |
||
B e f o r e :
____________________
| DR MOHAMMED A RUBY | ||
| Applicant | ||
| -v- | ||
| KINGS LYNN & WISBECH HOSPITALS NHS TRUST | ||
| Respondents |
____________________
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Official Shorthand Writers to the Court)
100 Old Hall Street, Liverpool L3 9TD) appeared on behalf of the Applicant.
The Respondents did not appear and were not represented.
____________________
Crown Copyright ©
- LORD JUSTICE PETER GIBSON: Dr Mohammed Ruby applies for permission to appeal out of time from the order of the EAT on 6th June 2001 which dismissed his appeal from a decision promulgated on 28th February 2000 of an Employment Tribunal sitting at Norwich. Thereby the Tribunal dismissed Dr Ruby's claims of unfair dismissal and breach of contract against the respondent, Kings Lynn & Wisbech Hospital NHS Trust ("the Trust"). The Tribunal had earlier on 8th October 1998 refused Dr Ruby's application to amend his originating application to claim racial discrimination. Dr Ruby sought permission to appeal that order. The EAT refused permission and that too is an order permission to appeal which is sought by Dr Ruby today.
- Dr Ruby was employed by the Trust in the Obstetrics and Gynaecology Department of the Queen Elizabeth Hospital, Kings Lynn as part of his general practice training programme under a six-month fixed term contract commencing in August 1997 and expiring in February 1998. At the end of that period he was assessed as not meeting the required standards. In accordance with the rules applicable to NHS Trusts where the prospect of a doctor continuing in unsupervised practice gives rise to a concern for patient safety, a letter (called an alert or grey letter) was sent by the Trust to the chief executives of the other Trusts advising them that if they were considering employing the doctor they should first get in touch with the Trust.
- On 2nd May 1998 Dr Ruby lodged his originating application complaining of unfair dismissal and breach of contract. On 11th August 1998 Dr Ruby applied to the Tribunal to amend the originating application by alleging a claim for racial discrimination. On 23rd September 1998 the Tribunal heard the application to amend, which it rejected as being out of time. The Chairman also indicated that he was of the view that Dr Ruby did not have sufficient qualifying service to bring a claim of unfair dismissal.
- Dr Ruby applied for a review of those decisions. There was a hearing on 11th March 1999 at which Dr Ruby through his then solicitors withdrew the unfair dismissal claim. The review was dismissed on 13th May 1999. On 5th October 1999 Dr Ruby's solicitors confirmed that the unfair dismissal claim had been withdrawn. On 18th and 19th October 1999 the Tribunal heard the breach of contract claim. By a decision with summary reasons promulgated on 17th November 1999, that claim was dismissed by the Tribunal and extended reasons for the dismissal were given on 28th February 2000. The decision also recorded what had happened to the unfair dismissal claim. After earlier inaccuracies, the decision was corrected to state that the application for unfair dismissal was dismissed on withdrawal of the claim by Dr Ruby's solicitors.
- Dr Ruby then lodged a notice of appeal to the EAT. I have not been supplied with a copy of that document. There were no less than three preliminary hearings of Dr Ruby's appeal to the EAT. He had leading counsel and solicitors appearing for him on the third hearing. I have not been provided with the judgments given by Charles J on the first two hearings, but I have the judgment given by that judge giving the reasons of the EAT for dismissing the appeal. That judgment, which runs to 43 pages, is a very full and careful statement of those reasons.
- Dr Ruby had until 27th June to lodge and serve his Appellant's Notice. Acting in person he did not lodge it until 3rd September. He is therefore over two months out of time. But he has explained that delay by reference to the lack of cooperation of his previous solicitors and the difficulty in obtaining other solicitors. He also says that he suffers from ill-health and had had a relapse in July. In all the circumstances I will not hold the delay against him if he has a real prospect of success on the application for permission to appeal.
- Dr Ruby instructed his present solicitors on 8th November 2001. Mr Seabrook of counsel appears before me today. Although solicitors had been instructed for a fortnight, the state of the papers before me is highly unsatisfactory. Three bundles had been put in by Dr Ruby, not containing all the relevant documents. The solicitors, on Dr Ruby's instructions, sent a fourth bundle recently. It has no index and is only partially paginated. Mr Seabrook's skeleton was only faxed to the court on Tuesday afternoon in an incomplete state. He has supplied a complete copy of that skeleton as well as two tribunal decisions of relevance to this appeal. I do not blame Mr Seabrook. He was no doubt instructed rather late in the day.
- The grounds of appeal on which permission to appeal was originally sought were drafted by Dr Ruby. They are extensive. Mr Seabrook in his skeleton also takes a number of points. They do not entirely coincide with the grounds of appeal in the Appellant's Notice. The other grounds in the Appellant's Notice, Mr Seabrook has made clear to me, are not abandoned, but he did not address me on points other than those mentioned in his skeleton argument.
- His first point relates to the race discrimination claim. He says that the grey letter issued on 10th March 1998 constituted a continuing act of discrimination, the effect of it being on-going at least until the letter's revocation, and so the amended originating application was within time. There is no ground of appeal to which this point relates. The point was not raised before the Tribunal and so there is no reference to it in the Tribunal's decision, the Tribunal saying that the application was "manifestly out of time". The Tribunal applied the ordinary test of whether it was just and equitable to extend time in circumstances in which Dr Ruby had had the advice of solicitors and of a lawyer in the employment of the Medical Protection Society and advice from the British Medical Association, and yet no claim of racial discrimination was raised in his originating application and only emerged, as I have indicated, on 11th August 1998.
- The Tribunal's decision refusing the amendment was not the subject of an appeal within the 42-day period. One and a half years later the notice of appeal from the decision promulgated on 28th February 2000 was lodged. I do not know to what extent the race discrimination point was then raised and, if so, how it was put in that notice of appeal, as I do not have it. The argument that the application to the Tribunal to take the point was not out of time was tentatively raised as a "possibility" in the skeleton argument of leading counsel appearing for Dr Ruby before the EAT. The fact that the EAT, despite the length of its judgment, does not even refer to it indicates perhaps how little it featured before the EAT.
- In my judgment it is far too late to take the point in all the circumstances. Not merely was there delay in raising the racial discrimination point by the amended originating application, the gross delay after the Tribunal gave its decision and until the raising of the point before the EAT is effectively unexplained. I would add that, in any event, the point is of very dubious merit. It seems to me to be very surprising that, if an act of discrimination has some on-going effect, that in itself would justify allowing the time limits laid down in section 68 of the Race Discrimination Act 1976 to be extended indefinitely until the effect of the act is nullified by some further act. No authority has been cited to me on the point. The authorities which are familiar to me to my mind indicate the contrary. Delay is always regarded as being significant in employment cases, and a strict attitude has always been adopted in relation to time limits.
- Mr Seabrook's further argument relating to racial discrimination is that the Tribunal's decision was perverse having regard to the reasons for delay. But the tribunal considered all the circumstances and held that it was not just and equitable to extend time. I do not think that Dr Ruby comes anywhere near overcoming the high hurdle of establishing that no reasonable tribunal properly instructed could have held that it was not just and equitable to extend time.
- The second point taken by Mr Seabrook relates to the claim of breach of contract. He argues this point under a number of headings. The first is that the Tribunal, he alleges, failed to issue witness summonses against witnesses whose evidence would have had a crucial bearing on the outcome of the proceedings. As I understand the position, Dr Ruby had written a number of letters in September asking the Tribunal to make witness orders, but on 30th September a Tribunal Chairman by letter refused the request. He suggested that Dr Ruby should explain what was the evidence that the witnesses would be giving which was relevant. The Tribunal Chairman also said that in any event witness orders would not be issued in respect of expert witnesses.
- Dr Ruby had asked for a number of distinguished people to attend as experts. He wanted the President of the General Medical Council, the President of the Royal College of General Practitioners, the President of the Royal College of Obstetricians and Gynaecologists and the Chairman of the Joint Committee for Post Graduate Training in General Practice to be called as experts. He also asked that a number of people who were present or past employees of the Trust should be called. They included a Mr Nooh and a Mr Al Taher. But, although no witness summons was issued, Mr Nooh did give evidence for Dr Ruby and Mr Al Taher gave evidence for the Trust and was available to be cross-examined by Dr Ruby.
- No appeal was launched by Dr Ruby against the decision of the Tribunal refusing to make the witness orders sought. It was simply a point that was raised by him before the EAT. It should, of course, have been the subject of an appeal, but such an appeal would have been long out of time.
- In my judgment the decision by the Tribunal not to issue witness summonses was one which was well within the proper exercise of discretion by the Tribunal Chairman exercising his case-management powers. The lateness of the application for witness summonses is to be noted. Of course I appreciate that Dr Ruby was acting in person, but it would be quite wrong for the Tribunal to be issuing witness summonses unless fully satisfied that evidence was likely to be given which was relevant to the hearing before the Tribunal. The Tribunal Chairman was entitled, on the evidence put before him, to reach the conclusion that he did. I see no real prospect of success on that point.
- Then it is said that the Tribunal failed to give adequate consideration to the allegation of breach of the implied term of trust and confidence in the contract of employment. It is said that this particularly related to the allegation of sexual impropriety raised against Dr Ruby. The Tribunal gave full consideration to this point. It had been alleged by Dr Ruby that he was accused by Mr Al Taher, the consultant in charge of the department where Dr Ruby worked, in the presence of two female members of staff of masturbating a patient while undertaking a clinical examination. On this point the Tribunal accepted Mr Al Taher's evidence and said that Dr Ruby took the criticism the wrong way and there was no breach of contract. The Tribunal said it had taken that allegation particularly seriously. I cannot see that the Tribunal, as the tribunal of fact, can be faulted for holding as it did.
- As for the allegation of a breach of the implied term of trust and confidence through Mr Bone and Mr Abu-Khalil (consultants to whose teams Dr Ruby was attached for training) not giving Dr Ruby support, the Tribunal found that there was no evidence of any breach of the implied term and that the trainers were fully entitled to conclude from their own professional expertise that Dr Ruby was not fit for the job. Again I cannot see how an appellate court could find fault with what the Tribunal found.
- Third, Mr Seabrook said that the Tribunal made further findings on matters about which the Tribunal should have had expert evidence or evidence from professional bodies. This generalised complaint is one which, in my judgment, is impossible to sustain. The Tribunal found that there was a conflict of evidence between Dr Ruby and witnesses for the Trust. It preferred the Trust witnesses. The Tribunal as the sole arbiter of fact was entitled to do that. The EAT rejected the criticism that the Tribunal had not had proper evidence upon which it could determine clinical and medical issues. It pointed out that Dr Ruby had expert evidence from Mr Nooh on his behalf and that Dr Ruby himself was medically qualified and so was Mr Al Taher. I agree with the EAT that the Tribunal had evidence on which it could reach the conclusion which it did. There is no prospect of success on that point either.
- Finally, Mr Seabrook says that the Tribunal reached findings of fact which no reasonable Tribunal could have reached. Again I reject that submission, which is a perversity argument, for the reasons which I have already given.
- I have considered the other grounds of appeal which are raised by Dr Ruby himself. They include a complaint about the Tribunal finding that the unfair dismissal claim had been withdrawn. That is quite hopeless in view of the facts which I have already recited. Nor is there any other sustainable ground.
- I appreciate that Dr Ruby is intensely upset by what has occurred to him. He feels that there has been a grave injustice to him. He is naturally worried that he has been prevented from carrying on medical practice unsupervised. He feels that he needs to regain his reputation and professional credibility. I can sympathise with a doctor in Dr Ruby's position, but I am afraid that, for the reasons which I have given, there is no real prospect of success on any of the grounds advanced, nor is there any other compelling reason why this appeal should be allowed to go ahead. I must therefore dismiss this application.
- Order:Application dismissed.
Thursday, 22nd November 2001