England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
Employment Appeal Tribunal (the EAT) dated 14 February 2008
in a constitution comprising Bean J, Mr R Lyons and Mr J R Rivers, CBE.

		Royal Courts of Justice Strand, London, WC2A 2LL
		06/11/2008

Lord Justice Wall :

1. This is a renewed application by Dr Mohammed Tariquez-Zaman (the applicant) for permission to appeal against the decision of the Employment Appeal Tribunal (the EAT) dated 14 February 2008, BAILII: [2008] UKEAT 0380_07_1402, in a constitution comprising Bean J, Mr R Lyons and Mr J R Rivers, CBE. The EAT dismissed the applicant's appeal against the decision of the Employment Tribunal at London Central (the Tribunal).
2. The order made by the Tribunal, which was sent to the parties on 8 May 2007, followed a remedies hearing, the same Tribunal having found in July 2006 that the respondent had victimised the applicant. The Tribunal's award, against which the applicant seeks permission to appeal was in the sum of £15,430.72, made up as to £7,500 for injury to feelings, £4,000 for psychiatric injury, £2,000 by way of aggravated damages and interest of £1,930.32.
3. At the same time as the EAT dismissed the applicant's appeal, it allowed a cross appeal by the London Deanery of Post Graduate Medical and Dental Education (the respondent). As I understand the matter, the cross-appeal was not designed to challenge the award made to the applicant, but sought to uphold it on grounds which, in some respects, departed from the Tribunal's reasoning. In the event, the EAT upheld the cross appeal but dismissed the applicant's appeal. It also refused the applicant permission to appeal to this court.
4. When, in accordance with this court's procedure, a single Lord Justice dealt with the applicant's application for permission to appeal on paper, he refused it, taking the view that the appellant's skeleton argument did not raise a point of law for the consideration of this court. I have to say that when I read the same document I formed a similar view. However, for the oral hearing on 21 October 2008, the applicant had the good fortune to secure the services of Mr Jason Galbraith-Marten of counsel, who not only produced a fresh submission in accordance with the Practice Direction to CPR 52 paragraph 4.14A, but spoke to it in a manner which required me to rethink the case and to reserve judgment.

The background

5. As I am sitting in an appellate capacity, I am bound by the findings of the Tribunal and the EAT, in so far as those findings were – as a matter of law - open to them to make. It is, I think, an important feature of this case, that whilst findings of fact are – in essence – for the Tribunal (and thus not either for the EAT or this court) the Tribunal can only find facts if there is material before it on which proper findings of fact can be made. For the Tribunal to find facts when on the material before it there is no basis for it to make findings is – or can be – an error of law. Such findings can then be challenged on appeal – usually on a perversity basis – as constituting errors of law.
6. The applicant qualified as a medical doctor in India, but at the date of the first Tribunal hearing had been working in England for over 10 years in various hospital posts. The EAT relates the background to the case in the following way:-

2. On 15 July 2002 the (applicant) applied for a place on the Respondent Deanery's General Practitioner Vocation Training Scheme to start in February 2003. He was rejected. In July 2003, he issued a claim for race and sex discrimination. That was ultimately dismissed at a hearing in October and November 2004. There was an appeal to the Employment Appeal Tribunal which was successful to the extent that the claim was remitted in part but it ultimately failed at the remitted hearing in October 2005.

3. Going back to 11 February 2004, the (applicant) applied for appointment to a GP Registrar post with the Respondent. Later that month, the Respondent's recruitment manager sent an email to colleagues advising them to "keep a close eye out" for the form of (the applicant). A member of the Respondent's staff, Dr Lintz, responded with an unfavourable reference to the (applicant) and his discrimination claim.

4. The (applicant) attended for interview on 23 April 2004 and came ninth out of ten applicants. He was unsuccessful and his application was rated as poor. The panel, who did not include Dr Lintz, expressed the view that he required an extended period of training and an experienced trainer and they would not be keen on doing the training themselves if it was down to them.

5. On 7 May 2004, the (applicant) was informed by the London Deanery that no post was available with them but he could apply to the National Clearing System. That system invites applicants to express an order of preference for Deaneries other than what is generally referred to as "the host Deanery" (the one that has conducted the interview in the first place but not appointed the candidate). The (applicant) gave the Eastern Deanery as his first preference and the North Western as his second and he also expressed willingness to be appointed to a number of other Deaneries including the one covering Kent, Sussex and Surrey.

6. On 15 June 2004, the manager of the National Recruitment Office, Ms Gai Evans, wrote to say that his training requirements could not be matched with any vacancies in the National Clearing System.

8. On 6 August 2004, he issued the claim against the London Deanery for victimisation which is the subject of the present appeal. The liability hearing took place over five days in April and May 2006. On 18 July 2006, the (applicant) was successful. The Tribunal found that he had been victimised, that is treated less favourably by reason of the previous discrimination claim which he had made against the London Deanery and which was known to relevant decision makers in the Respondent, even if not necessarily the interview panel. The form the victimisation took was that unfavourable comments were made about him by reference to the litigation; these led to the form submitted to the National Recruitment Office including reference to the panel's concerns that an experienced trainer would be required and the panel members would not be comfortable with the idea of doing the training themselves. The London Deanery had not forwarded such comments on any other candidate.

The remedies hearing

7. At the remedies hearing, the Tribunal recorded the basis upon which it had found victimisation established, and then, under the heading "Issues" posed a series of questions as follows: -

2.1 Did the (applicant) lose a thing of value namely the chance to qualify as a Medical General Practitioner as a result of the discrimination practised by the Respondent?

2.2 If so, what was the value of that lost chance? This involved the Tribunal answering the following matters - as agreed by the parties at the outset of the hearing:

2.2.1 Would the (applicant) have succeeded in obtaining a General Practitioner Registrar post?

2.2.2 Would the (applicant) have passed a summative assessment?

2.2.3 Would the (applicant) have secured a substantive General Practitioner post at the end of his training?

2.2.4 What type of substantive post would he have obtained (for example as partner, salaried partner, equity or salaried or locum?

2.3 Did the (applicant) fail to mitigate his loss (for example by himself applying for erasure from the GMC's register?

2.4 What is the prognosis for his future employment?

2.5 When considering injuries what is the appropriate sum to award regarding injury to feelings; should there be an award having regard to psychiatric injury; is it appropriate to award aggravated damages?

8. As to question 2.1, the Tribunal commented that it was confronted with an unusual basis of claim, namely that it was being asked to award damages against the Respondent for doing the right thing, namely bringing "the (applicant's) exceptional training needs to the attention of those who might consider clearing him for employment through the Deanery system." On this basis, the Tribunal answered the questions set out above as follows (in each case I provide a summary):-

2.2.1 In relation to the North West Deanery, the Tribunal was satisfied that he would have been disqualified from consideration. This was because had he passed clearing, he would have undergone an interview "and prior thereto the Deanery would have called for his interview score sheets" (paragraphs 29 and 30 of the decision).

The position was less clear in regard to the Eastern Deanery. Its conclusion (paragraph 31) was that whilst the Tribunal could not rule out the possibility that the applicant might have gained a GPR appointment had he passed clearance, it was of the opinion that the chance was "very low". This was because the lowest score achieved by an appointed candidate was 57% whereas the applicant's interview score equated to 36.6%.

2.2.2 The Tribunal concluded that there was an 80% likelihood that the applicant would have passed a summative assessment. This is a figure upon which Mr. Galbraith-Marten placed considerable reliance.

2.2.3 Despite what it describes as "a number of question marks", the Tribunal was satisfied that there was "a better than even chance that (the applicant) would have obtained a salaried GP post if he had successfully completed his training". Later the Tribunal assessed the applicant's chances of securing a salaried post as a GP at 55%.

2.2.4 The Tribunal was satisfied that the applicant would likely have been appointed as a locum.

9. At this point, the Tribunal did not specifically answer questions 2.3 and 2.4. Instead, it asked itself an omnibus question: "So did the (applicant) lose a thing of value namely the chance to qualify as a Medical General Practitioner as a result of the discrimination practised by the respondent? The Tribunal's answer, which plainly goes to the heart of the case, was that there was in any event "only the smallest chance that he would have been selected" and paragraph 35 of the Tribunal's reasons stated:-

In our view the (applicant) failed to demonstrate by a long way that there was a real or substantial rather than a highly speculative chance that any Deanery and in particular those we have identified would have acted so as to confer on him the benefit of appointment to a GPR post. The burden of doing so lay firmly on the (applicant) and since his prospects of success were no more than negligible there were no prospects of success for the Tribunal to assess.

The appeal to the EAT and the cross-appeal

10. The applicant's notice of appeal to the EAT is "home made"; that is to say it was prepared by the applicant himself, and not by counsel who had represented him before the Tribunal. It is, accordingly, overlong and diffuse. It is, however, as I read it, an attack on the Tribunal's findings of fact. In paragraph 16, for example, the applicant says:-

For reasons explained below, it will be averred that the Tribunal erred in its assessment, misunderstood the evidence of Gai Evans (the national GP Recruitment Manager for GP Training); and / or failed to attach any or any adequate weight to her oral evidence as expanded upon during cross-examination.

11. It is not, I think, unduly simplistic to characterise the applicant's challenge to the Tribunal's decision as a "perversity" challenge. Much the same can be said of the cross-appeal, although this has the advantage of being drafted by a lawyer. The document appears at pp 278-9 of the bundle of documents prepared for this application, and Mr. Galbraith-Marten points to the fact that in paragraph 6 the relief sought by the respondent is that "the matter be remitted to the same tribunal for further determination of these issues".
12. In essence, however, as I read it, the cross-appeal sought to challenge as perverse three findings of the Tribunal, namely that:-

(a) the Eastern Deanery did not call for amplification of material received from the originating Deanery (paragraph 7.30). This is without prejudice to the contention that the Tribunal found that Mr Reed of the Eastern Deanery would have asked for the scores of candidates for remaining vacancies;

(b) there was an 80% chance that the (applicant) would have passed Summative Assessment (paragraph 32 of the judgment);

(c) there was a 55% likelihood that the (applicant) would have secured a substantive GP post at the end of his training (paragraph 33 of the judgment).

The hearing in the EAT

13. I have already set out the EAT's recitation of the background. It needs, I think, to be noted that the EAT was also aware of the fact that the PCC of the GMC had held a fitness to practice hearing, as a result of which a reprimand had been issued. It points out that the Tribunal had found, as it was entitled to, that once such an adjudication had been made by the GMC, the doctor in question was obliged to disclose it in every job application which he made. The EAT was also aware that the applicant had asked to be removed from the Register, an application which had been granted. The EAT was also aware of other proceedings brought by the applicant.
14. Having set out the guidelines for candidates applying for general practice training, and having given particulars of the National Clearing System, the EAT then sets out extracts from the witness statement of Kate Reed, who was the recruitment manager for the Eastern Deanery. The EAT also looked at the Chairman's notes of Ms Reed's evidence, as well as the notes of her evidence taken by both sides. It then sets out what it describes as "the crucial part" of the Tribunal's judgment – an extract which I think I need to reproduce:-

7.28 The Tribunal has already found that the inclusion by the London Deanery of the qualifications made by the interview panel regarding the Claimant's need for extended training and a special tutor constituted discrimination. The fact of the inclusion of that material stopped his application progressing beyond the NRO. That was entirely as it ought to have been and would similarly have stopped any application bearing that information regarding any other doctor. It was a requirement of the Deanery that information be included either on the forms summarising the outcome of the interviews or by the inclusion of the forms themselves. Such remarks were an absolute bar to a doctor in those circumstances being offered for clearing.

7.29 In any event the position so far as the North West Deanery was that irrespective of the material included by the originating Deanery or passed on by the NRO the Deanery itself would firstly interview candidates arriving by that route and secondly would require to see the score sheets — they were not content to rely upon summaries. In those circumstances it is quite clear that had (the applicant's) application been passed through national clearing to the North West Deanery it would have progressed no further and he would neither have been interviewed nor offered a job.

7.30 The position regarding the Eastern Deanery was somewhat different given that the London Deanery provided only the summary sheets and not score sheets unless specifically requested. The evidence from Kate Reed was that her Deanery did not seek amplification of the material received from the originating Deanery. Accordingly she would have received only the summary sheets relating to the Claimant. The question therefore for the Tribunal was what would the position have been had she received no sheets but there was no endorsement (a necessary condition to her receipt of them as otherwise they would have been intercepted by the NRO) that is no discrimination. The Eastern Deanery had not produced any documents relevant to this particular exercise. It seems in any event the Deanery kept only documents relating to successful applicants and that these were in store in Bristol. The evidence received from Kate Reed was that there was a minimum lower interview score below which they would not appoint. The position of the score on the spectrum will depend upon the overall level of scores set against the number of vacancies they wish to fill. The Eastern Deanery in August 2004 exercised a reasonable degree of caution in its approach to candidates appearing through the clearing system. The Deanery had experienced difficulties in the past with candidates received from clearing due to the fact that standards applied by different Deaneries were not consistent. To avoid experiencing again similar problems they endeavoured to ensure that any candidate accepted was of a sufficiently high level of competence. Where they had comments such as those indicating the need for training etc they would take those into account. In a case such as this where they did not, they would seek to ensure competence by setting a minimum level of interview score. In August 2004 no candidates achieving lower than 56% at interview were appointed by the Deanery. The Claimant at his interview achieved 36.6%.

7.31 One point on clearing is the position which would have obtained or perhaps should have obtained with each rejection of a candidate for a place with the Deanery. According to the NROs policy a rejected candidate should have been offered to other Deaneries. In practice candidates were not. Once rejected by a Deanery it was seen by those at the NRO as futile to continue to offer failed candidates to other Deaneries. No candidates therefore were so offered once having been rejected."

15. The EAT then gives a commentary on these paragraphs which, once again, I think I need to set out:

27. Both sides attack different parts of paragraph 7.30 on perversity grounds, in particular, the sentence which states:

"The evidence from Kate Reed was that her Deanery did not seek amplification of the material received from the originating Deanery."

It is difficult to see how this finding from the second sentence can stand alongside the finding later in the same paragraph that:

"The evidence received from Kate Reed was that there was a minimum lower interview score below which they would not appoint."

This can be coupled with the finding at the end of the same paragraph, which is not in dispute, that in August 2004, no candidate achieving lower than 56 per cent at interview was appointed by the Eastern Deanery whereas the Claimant, in interview at the London Deanery, had achieved 36.6 per cent.

28. The evidence of Ms Reed in her witness statement was, as we see it, absolutely clear that the Eastern Deanery regarded the candidates' percentage score as crucial and that they had a policy of not diluting standards by accepting candidates in clearing whose score was lower than the candidates they had appointed from their own first preference applicants. Ms Reed was not shaken on this point in cross-examination and indeed we, for our part, cannot see how else a selection process could have been made. The Eastern Deanery did not conduct interviews of clearing candidates themselves. That was not the general system of National Clearing. The summary sheet gives next to no information about the candidate. It is hardly surprising that a Deanery, which was not the host Deanery, faced with numbers of applicants about which the receiving Deanery knew nothing except that their preferences included the Eastern Deanery, should have wanted to know whether the relevant candidate was a near miss or a long way from achieving appointment at the host Deanery.

29. If the second sentence of paragraph 7.30 saying the Eastern Deanery "did not seek amplification of the material received from the originating Deanery" was meant to apply even if that material did not include the interview panel comments and scoring, then it seems to us there is no evidence upon which the Tribunal could make such a finding and it is wholly inconsistent with the later findings in the same paragraph. Accordingly, Ms Romney's cross-appeal on this point succeeds.

30. It follows that the finding which the Tribunal make which is the subject of the Claimant's appeal that:-

"There was only a very low chance that the Eastern Deanery would have accepted the Claimant."

is neither perverse nor inadequately reasoned. It seems to us to follow inexorably from the evidence that Ms Reed gave about the minimum score which was required.

31. Ms Monaghan's next ground of appeal argues that the finding in paragraph 7.31 that a candidate rejected by one Deanery was in practice not offered to other Deaneries (whatever the written guidelines might say) is perverse as being inadequately reasoned and indeed, incorrect. We agree that, as expressed, this finding is inadequately reasoned. As Ms Monaghan rightly submits, there was no evidence to the effect that there was a general rule of, "One choice and you are out". Indeed, the whole concept of a national clearing system, with candidates allowed to express more than one preference on the form, indicates the complete contrary. However, we do not think that this point leads the Claimant anywhere. The evidence of Ms Evans of the National Recruitment Office was that if a candidate was rejected by one Deanery on the grounds that he or she was considered to have exceptional training needs, whether for the longer than usual training programme or an experienced trainer or some other "non-standard" training, then that candidate's details would not be passed on to other Deaneries. After all, the guidelines made it clear that such a candidate should not be in national clearing at all.

32. Supposing the victimisation had not been carried out, (the applicant's) summary form would have been sent by London to the National Recruitment Office without the adverse comments about his training requirements. As we have already found, and as we believe the Tribunal on a proper interpretation of their judgment found, the Eastern Deanery would have rejected him, not on the basis of his special training requirements but simply because his score was too low. His application would then have remained in play and gone to the next Deanery on the list, the North West Deanery. As to that, the finding of the Tribunal in paragraph 7.29, which Ms Monaghan realistically accepts are not open to challenge, is that the North West Deanery, irrespective of the material included or not included by the host Deanery, would require to see the score sheets. They were not content to rely on the summary form. (They would also have carried out some form of interview, though we doubt, having looked at the evidence, that this would have been an interview on the merits as opposed to an interview on the practicability of the candidate relocating to the North West). But on the score sheets point, the Tribunal expressed the opinion that it was quite clear that had (the applicant's application progressed to the North West Deanery, it would have progressed no further. He would neither have been interviewed nor offered a job.

33. The North West Deanery would then have notified the National Recruitment Office of their rejection as they were obliged to do under the system, but this would have been a rejection for cause: that is, they would have discovered from the score sheets, which also included the host Deanery's interview comments, that (the applicant) had special training requirements. At that point, according to the evidence of Ms Evans, which the Tribunal evidently accepted, his application would not have been passed down the line because, in Ms Romney's graphic phrase, "he would have been rumbled". The exclusion in the national clearing system guidelines from national clearing of candidates who are considered to require special training would have come into effect. So although we think the criticism of paragraph 7.31 on its literal construction is well founded, it could not have made any difference to the result.

16. So what is the EAT doing? It has detected an error of law in one of the findings of the Tribunal. It hears both an appeal and a cross appeal on what it describes in terms as 'perversity' grounds, and it comes to the conclusion that the Tribunal had no evidence upon which it could properly make a finding that "the Eastern Deanery did not seek amplification of the material received from the originating Deanery". On this basis it upholds the Tribunal's decision that the applicant - in effect – would not have been selected for training – in other words, he would not have crossed the first hurdle. On this basis, it dismissed the applicant's appeal. Can this conclusion be attacked?

The attack on the judgment

17. Mr. Galbraith-Marten's essential submission, as I understood it, was that the EAT was engaged in an impermissible exercise. It is not for the EAT, he submitted, to substitute its findings of fact for those of the Tribunal. That was not what the respondent was asking it to do. The respondent had asked for the matter to be remitted for further determination.
18. It followed, Mr. Galbraith-Marten argued that the EAT's principal findings could not stand. These were; (1) that the applicant's chances of being appointed to the Eastern Deanery through the national clearing scheme were very low; and (2) that the applicant would not have been put forward to other Deaneries having been once rejected.
19. Mr. Galbraith-Marten submitted that the EAT had no jurisdiction to review a Tribunal's finding of fact, absent a challenge to the correctness of its decision. The Tribunal's findings of fact in paragraph 7.30 were inconsistent, and the proper course was remission, not for the EAT to substitute its own view. It was, Mr. Galbraith-Marten submitted, a basic requirement of any appeal to the EAT that the appellant should seek to set aside the actual decision or order of the Tribunal. An appeal should not be entertained when its sole purpose is to challenge reasons or a particular finding of fact.
20. Mr. Galbraith-Marten also pointed to paragraph 4 of the order of the EAT dated 23 November 2007, which invited the Tribunal to answer a specific question in relation to paragraphs 7.30 and 31 of its reasons, and to a letter dated 13 February 2008 from the Chairman of the Tribunal in which he stated in terms:

The Tribunal's recollection is that we did not find that the ED would definitely have obtained or become aware of the results. Gai Evans could not say for certain if she had them because she had lost the papers.

21. Mr. Galbraith-Marten points out that there is no reference to this letter in the EAT's decision. This, he submits, reinforces the inappropriateness of what the EAT was doing, and that the applicant has, as a consequence, made out an arguable case for permission to appeal.

Discussion

22. Mr. Galbraith-Marten puts the case both attractively and persuasively. I have, however, come to the clear conclusion that an appeal against the EAT's decision in this case would not stand a reasonable prospect of success and that the application for permission to appeal must, accordingly, be refused.
23. I reach that conclusion for the following reasons. This is, of course, fundamentally an appeal about quantum, and before the EAT counsel realistically accepted that on the Tribunal's findings – as upheld by the EAT, the sums awarded by the Tribunal could not be challenged. I agree, and I did not understand Mr. Galbraith-Marten to argue otherwise
24. The EAT is, I think, entitled to entertain a perversity challenge by way of cross-appeal, and thus entitled to address issues of fact which go directly to the Tribunal's conclusion. The critical question in the instant case was whether or not the applicant would have been selected for GP training or a GP post by one of the Deaneries, and the critical paragraphs of the EAT's reasoning are those, which I have set out at paragraph 15 above.
25. In my judgment, and on the particular facts of this case, the EAT was entitled as a matter of law to dismiss the applicant's appeal. It detected an error of law in the Tribunal's decision, and felt able to correct it without the need to remit the matter to the Tribunal. It might have been better had the EAT spelled this out, but in my judgment its reasoning process is clear enough.
26. The EAT did not adjudicate on the balance of the respondent's cross-appeal and did not need to do so. The attractive fact, relied upon by Mr. Galbraith-Marten that there was an 80% chance that the applicant would have passed summative assessment, and the finding that there was a 55% chance of him obtaining a salaried post both become irrelevant in the light of the EAT's finding – I put it in shorthand - that the applicant would not have got through the first stage.
27. It follows that although the applicant's case has been argued as well as it could have been, it seems to me that the EAT was entitled to take the course it did, and not to remit the case to the Tribunal for further consideration.
28. I am also influenced by the fact that were there a successful appeal to this court and a remission as sought, the outcome is likely to be the same, and that the only consequence of giving permission would be further cost and stress.
29. For all these reasons, the application for permission to appeal will be refused.