England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN EMPLOYMENT APPEAL TRIBUNAL
(Mr Justice Lindsay: President))

		Royal Courts of Justice Strand London WC2 Tuesday, 15th January 2002

Tuesday, 15th January 2002

1. LORD JUSTICE PETER GIBSON: Agnes Sithole applies for permission to appeal from the order made on 6th August 2001 by the EAT dismissing her appeal from the decision of an employment tribunal sitting at Stratford. By that decision promulgated on 22nd December 1999 the Tribunal dismissed her claim for unfair dismissal, sex and race discrimination and declared that certain acts the subject of discrimination complaints by her were out of time.
2. The background to this case is this. On 5th August 1993 Miss Sithole, who is a registered nurse and had been working for some time for the respondent, City & Hackney Community Services NHS Trust, entered into a new contract of employment with the Trust. She was under that contract a team leader. The contract specifically stated:

"Activities undertaken by nursing staff resulting in `Back to Back' shift working, i.e. Night/Early or Late Night (unless at the specific individual request of the Manager is unacceptable professionally and will result in disciplinary action being taken."

3. The applicable disciplinary code provided examples of gross misconduct which might lead to summary dismissal and negligent behaviour, which was defined as any action or failure to act which seriously threatens the health and safety of a patient, employee or member of the public.
4. Miss Sithole worked at the Malpas Road Community Home for people with learning disabilities. In January 1996 Patrick Ababio was appointed head of the home. He was Miss Sithole's line manager. Unfortunately she did not like his management style. He invoked the disciplinary procedure against her and a first written warning was issued against her. On 14th August 1998 Benjamin Takavarasha, who has throughout represented Miss Sithole and was allowed by another Lord Justice to represent her at the hearing before me today even though he is not someone with a right of audience, wrote to the Trust complaining of harassment from Mr Ababio and race and sex discrimination.
5. Mr Ababio discovered that Miss Sithole while working at Malpas Road had also been working for the nurses bank known as One4One. By written terms of engagement by the Trust bank nurses had to agree not to work back to back shifts. An investigation within the Trust revealed that two members of staff at Malpas Road had worked back to back shifts. Only Miss Sithole's back to back work could be substantiated. Doreen McCollin was appointed to investigate and hold a disciplinary meeting. Miss Sithole accepted that on 9th and 10th April 1998 she did work a back to back shift, that on 15th and 16th April 1998 she worked two shifts with only a two and a half hour break between them. Miss McCollin decided that Miss Sithole's behaviour was negligent by putting herself and her patients and colleagues at unacceptable risk by working without adequate rest periods between shifts. Miss Sithole was therefore summarily dismissed for gross misconduct. Miss Sithole appealed and that appeal was heard by Jaqueline Clark, who dismissed the appeal.
6. Miss Sithole's dismissal from her employment was on 2nd December 1998. That day an IT1, which she had signed a few days earlier, was presented to the Tribunal. In it she complained of sex and race discrimination including victimisation. On 24th February 1999 she issued a second IT1 complaining of unfair dismissal. The Trust resisted both sets of proceedings. After an interim hearing on 26th July 1999 and some correspondence, Miss Sithole's complaint of discrimination through victimisation was limited to one protected act, namely the complaint made on her behalf on 14th August 1998 for which it was alleged by Miss Sithole that she was dismissed. The hearing took place over four days in November 1999. In the Tribunal's extended reasons running to 65 paragraphs her complaints were dealt with in detail but dismissed. Miss Sithole sought a review of that decision, but that application was dismissed on 8th March 2000. Miss Sithole appealed, as was her right. There was a preliminary hearing of the appeal in the EAT, Mr Recorder Langstaff QC presiding, on 15th June 2000. The EAT allowed the appeal to go ahead limited to two matters only:

(1) the Tribunal's finding that she had been fairly dismissed, the basis for the appeal, the Recorder stating expressly, being whether the penalty imposed was appropriate; and

(2) the question of victimisation, the question being spelt out again by the Recorder and being whether she was given a heavier penalty by reason of discrimination. No other ground was allowed to be taken on the appeal.

7. Thus, although she had complained that the Tribunal was biased and that the Trust had criminally tampered with documents, for example duty rosters, they were not grounds of appeal permitted to go ahead. Miss Sithole applied for a review of the EAT's decision. That was refused. She then sought to appeal the EAT's decision, but the application was refused by this court on 18th October 2000. Accordingly when the appeal went ahead to the full hearing before the EAT it was an appeal on the two limited grounds which had been allowed by the EAT at the preliminary hearing. The EAT, the President Mr Justice Lindsay presiding, dismissed the appeal.
8. Miss Sithole now seeks to appeal to this court. She has through her representative Mr Takavarasha listed a large number of grounds supported by a skeleton argument running to 77 paragraphs. Many of the grounds put forward go beyond the two grounds considered by the EAT. She cannot do that, as I have sought to explain to Mr Takavarasha. She cannot now complain, therefore, of bias or say that the Trust was guilty of criminality by doctoring documents, because she was not allowed to advance those grounds by the EAT at the preliminary hearing and it is impossible for this court to go behind the decision by this Court in October 2000.
9. Miss Sithole complains about other matters, such as the interlocutory hearing by the Tribunal. Again that is not a permitted ground. She raises other points, such as that the EAT was biased. Mr Takavarasha in the skeleton argument describes the EAT's judgment as surprising. I have to say that the full, careful and lucid judgment of the President does not surprise me. The alleged bias consists of the fact that the President referred to the Trust's evidence more than Miss Sithole's witness statement. That demonstrates, I am afraid, that what the President had been at pains to explain was not fully understood. The President said this:

"It does not assist the Appellant to say that there was some evidence, usually hers, to the contrary. If the Employment Tribunal has some evidence to support its conclusions then it is entitled to have preferred that particular evidence and hence to have come to that conclusion."

10. That is an obvious proposition given that the sole arbiter of fact as appointed by Parliament is the Tribunal. It is not for an appeal tribunal or an appeal court like this to substitute findings of fact for those of the Tribunal, which has to choose between the evidence which is presented to it if the evidence of a witness is inconsistent with that of another witness. Also in paragraph 44 the EAT had referred to what Miss Clark had said:

"Had other members of staff been found to have worked back to back shifts exactly the same level action would have been taken."

11. The EAT's comment was this:

"That was evidence which the Tribunal received and was entitled, if it chose, to accept."

12. I can see therefore no evidence of bias.
13. As for the two grounds of appeal which were permitted to go ahead to the full hearing before the EAT, I can see nothing in the criticisms made by Mr Takavarasha which satisfies me that Miss Sithole has a real prospect of success on those grounds. I agree with the EAT, for the reasons which it gave, in saying that there was evidence which the Tribunal received and which it was entitled to accept in reaching the conclusions which it did. Thus there was evidence on which the Tribunal could properly conclude that the dismissal was an appropriate penalty for the admitted back to back working which could reasonably be treated by the Trust as amounting to gross misconduct. There was evidence - and I have quoted what Miss Clark has said - on which the Tribunal could properly conclude that any other member of staff working under the same contract of employment would have been dismissed and there was also evidence that when Miss Sithole was dismissed it was not known by Miss McCollin that she had made sex and race discrimination allegations against the Trust.
14. The other matter which was raised by Mr Takavarasha in his skeleton argument related to new evidence which it was sought to adduce. That new evidence was in three parts:

(1) that the majority of the Trust's employees who played a part in the material events had, since the tribunal hearing, left the employment of the Trust;

(2) that Mr Ababio had a criminal record of violence, including grievous bodily harm, (that appears to relate to events before the tribunal hearing);

(3) since the tribunal hearing a new comparator had emerged as a result of the very recent treatment of somebody called Dauda.

15. There are several difficulties with the admission of this evidence. First, the actual evidence sought to be adduced, that is to say a witness statement or affidavit or document, for example a copy of the record of Mr Ababio's conviction if that is what is alleged, has not been produced. Only a generalised indication of the evidence has been put before me. It is quite impossible to assess the credibility of the suggested new evidence. Second, insofar as the new evidence relates to events occurring after the tribunal hearing, because of the importance of the principle of finality of litigation, it is not evidence of a kind which this court would normally allow. For example, how can Dauda, by reason of what occurred only recently, be a relevant comparator to prove that at the time of the allegedly discriminatory treatment in 1998 Miss Sithole was less favourably treated than others in the same situation? Third, insofar as the new evidence relates to events which have occurred before the Tribunal hearing, this court has repeatedly said since the introduction of the Civil Procedure Rules that the guidance given by this court in Ladd v Marshall [1954] 1 WLR 1489 continues to be relevant. So far as Mr Ababio's alleged criminal record is concerned, it is hard to see how that would have had an important influence on the outcome of the proceedings on the only two points in the Tribunal's decision which were allowed to go to the full appeal before the EAT and thus the only two points which are relevant.
16. Mr Takavarasha has addressed me with courtesy and clarity, but I am afraid that he has sought to go back to points which I have no jurisdiction to consider, such as the alleged criminality of the behaviour of the Trust in the alleged doctoring of duty rosters. As I have already tried to explain, he would have had to obtain the permission of the EAT to take that point on appeal, but he was not able to do so and the matter is now dead. Of course no court likes to think of criminally doctored evidence being admitted, but that has not been proved. If convincing evidence had been put before the EAT in June 2000 then he would surely have been able to obtain the permission of the EAT to advance that point on appeal.
17. There is no real prospect of an appeal succeeding on any of the grounds sought to be advanced, and no other compelling reason has been put forward for allowing the appeal to go ahead. This application will therefore be dismissed.
Order: Application dismissed.