England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
a decision of the Employment Appeal Tribunal (the EAT)
in a constitution chaired by His Honour Judge Birtles and
dated 14 November 2008
BAILII: [2008] UKEAT 0169_08_1411

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/07/2009

Lord Justice Wall:

1. This is a renewed application by Miss Pauline Kehinde George (the applicant) for permission to appeal against a decision of the Employment Appeal Tribunal (the EAT) in a constitution chaired by His Honour Judge Birtles and dated 14 November 2008 BAILII: [2008] UKEAT 0169_08_1411. The EAT refused permission to appeal, and on 12 March 2009 permission to appeal to this court was also refused on paper by Sedley LJ in the following terms:-

1. The EAT were plainly right to find that the issue on which you succeeded (victimisation by not considering reinstatement) had not formed any part of your case. They were also entitled to find that Allied Heathcare (UK) Ltd (the respondent) had been given no notice of the point by the ET.

2. None of the material which you submit should have been admitted by the EAT appears capable of having affected this conclusion.

3. While I am not convinced that this means the ET acted without jurisdiction, it nevertheless means, I regret to say, that the decision on victimisation cannot stand because it was not open to the ET to make it.

2. I heard the applicant's oral renewal of her application for permission to appeal on 29 June 2009, and reserved judgment.

The facts

3. I propose to take the relevant facts from the EAT's judgment. The Respondent owns and operates a chain of nursing agency outlets providing nursing agency services to hospitals, care homes and social services departments. The Applicant was a member of the Respondent's qualified members' scheme, engaged under various contracts for services offering midwifery services, being placed by the Respondent to bodies to whom they provided a service.
4. Complaints had been made about the competence and conduct of the applicant, and she had countered with accusations against a number of the bodies concerned. Like the EAT, it is not necessary for me to explore these, save to say that they culminated in complaints from, first, St.George's Hospital and, second, St. Helier's Hospital. Following the closure of a complaint from St. John and St. Elizabeth Hospital, Ms Wright, who was the Respondent's area manager, wrote to the Applicant on 28 September 2004. In that letter, Ms Wright explained the hospital's conclusion and stated and that they did not wish the Applicant to be allocated further work there. Ms Wright concluded her letter to the applicant by stating:-

I would also like to take this opportunity to remind (the applicant) that we have not as yet received any response from her regarding the complaint received from St Georges and Epsom and St Heliers. I would therefore appreciate a response to these complaints within the next 7 days.

5. The applicant's representative responded to this letter on 29 September. It was pointed out on the applicant's behalf that none of the relevant complaints had been discussed with the applicant at the time they were made, and that none had been handled properly. On 5 October 2004, Ms Wright wrote inviting the applicant and her representative to a meeting to discuss further complaints on 13 October 2004. The applicant, however, had left the country on 9 October to visit her sick mother in Nigeria, and it appears that the respondent did not receive notice of this fact until after the date fixed for the meeting on 13 October.
6. Because the applicant did not attend the meeting on 13 October, the respondent, through Ms Wright, resolved to remove the applicant's name from the respondent's register. On her return to England, the applicant, through solicitors, made the complaint that she had been unfairly dismissed and discriminated against. She then took proceedings against the respondent.

The applicant's proceedings against the respondent

7. In her form ET1, the applicant claimed race discrimination, victimisation, unfair dismissal and breach of contract. The originating application sets out the applicant's case in relation to the complaints made by the St John and St Elizabeth hospitals, and St George's and St Heliers. Her case was that "no reasonable employer would have dismissed the (applicant) in the circumstances". Further and in the alternative she alleged that she had suffered "race discrimination and / or been victimised contrary to the 1976 Act. In particular, she allege that following her complaint to the respondent that she had been racially discriminated against on 9 April 2004, the respondent had (inter alia) suspended her and, finally, dismissed her on 13 October 2004. She asserted reliance on a hypothetical comparator of a white midwife who had been the subject of such complaints, and sought declarations that she had been unfairly dismissed and discriminated against / victimised.
8. The applicant's originating application is a long document. It does not, however, raise the specific allegation that the respondent's failure to reinstate the applicant to the register, or to consider doing so, constituted victimisation. In paragraph 26, the applicant gives four reasons why her dismissal was "disproportionate and consequently unfair". The nearest the applicant comes to suggesting victimisation by failure to consider reinstatement is the suggestion that the respondent should have been warned before being dismissed. Nowhere does she plead victimisation consequent upon the refusal to reinstate.
9. In its response, the respondent asserted that its decision to remove the applicant from its register was a fair decision pursuant to the terms and conditions of the qualified members' handbook. The respondent denied that the applicant had been treated any differently from any hypothetical comparator.

The decision of the ET

10. The ET dismissed the majority of the applicant's claims. However, in relation to the removal of the applicant from the respondent's register the ET expressed itself as follows:-

11.14 The Tribunal finds that it was the practice of the Respondent to remove staff following the 1996 Patient Charter from their register in circumstances where a member of the nursing staff failed to provide a statement in respect of a complaint against them. The Tribunal is satisfied that when Ms Wright took the decision to remove the Applicant from the Respondent's register this was in line with the Respondent's policy and practice and was not on the ground of the Applicant having raised her complaint of race discrimination.

11.15 Whilst this ostensibly brought to an end the relationship between the Applicant and the Respondent, the Tribunal has considered to what extent the Respondent, having received information as to the reason for the Applicant's absence in attending the meeting on 13 October, the Respondent was obliged to act thereon, and if they were so obliged to act did they not so act because the Applicant had done a Protected Act.

11.16 The Applicant here submits that there was such a duty, which the Respondent failed to satisfy because she (the Applicant) was pressing her complaint of discrimination.

11.17 The Tribunal having heard from Mrs Pompilis that in similar circumstances, where she had removed a member of the nursing staff from the Respondent's register for not attending a meeting, on finding out the reason for that member of staff's failure to attend the meeting, not having remit to reinstate them herself, she prepared a bundle for consideration by her superior to reinstate that member of staff, and on which, that member of staff was then reinstated to the register. This Tribunal finds that when Ms Wright became aware of the reason for the Applicant's non-attendance at the meeting of 13 October, for her not to review her decision and consider reinstating the Applicant to the register, was to treat the Applicant less favourably than the member of staff considered by Mrs Pompilis.

11.18 This Tribunal, not having heard from Ms Wright and no other witness being able to address this point, questions Ms Wright having a duty to act, why did she not do so? This Tribunal not having heard from the Respondent on this point, the Applicant having advanced that it was because she had presented a complaint of discrimination and would not let it lie, and that it was expedient for the Respondent to maintain the status quo and not review the position. The Tribunal is satisfied that there is evidence to suggest that Ms Wright was becoming frustrated by the Applicant's persistence with regards to her complaint of discrimination by the Respondent and their clients. In the absence of any evidence to the contrary, this Tribunal finds that the Applicant was victimised by the Respondent, in not reconsidering the decision to remove her from their register, for her non-attendance at the meeting on 13 October.

11.19 The Tribunal accordingly finds that for this reason the Applicant was victimised by the Respondent in being removed from the Respondent's register.

(Emphasis supplied)

The appeal to the EAT

11. The respondent appealed to the EAT, which allowed the appeal, and refused permission to appeal to this court. Its summary of the appeal is in the following terms: -

The Employment Tribunal found that the Appellant had discriminated against the Respondent by failing to consider reinstatement to their register of nurses or to actually reinstate her to the register of nurses or to actually reinstate her to the register . The EAT allowed an appeal on the grounds that (a) the point has not been pleaded or argued before the ET and (b) if the ET considered the issue to be a live one it should have clearly alerted the parties to it and given them the opportunity of dealing with it. Observations on amendment in a race discrimination case made following Ministry of Defence v Hay (UKEAT/0571/07/CEA).

12. . The EAT's reasoning is found in paragraphs 17 to 33 of its decision. It cited the decision of this court in Chapman v Simon [1994] IRLR 42, and gave five reasons for reaching its conclusion to allow the appeal. In summary, these were: -

1. the claim had not been pleaded;

2. the issue had not been identified at the case management conference;

3. the issue was not identified in the applicant's witness statement;

4. the matter had not been particularised at the beginning of the ET hearing in the normal way; and

5. the evidence before the ET had been limited to the fact that another nurse who had been suspended for failing to attend an interview had been reinstated when it had been discovered that they had been a valid reason for her not attending the interview.

13. The EAT also records its exchange of correspondence with the ET Judge in which the latter was asked to comment on the respondent's grounds of appeal and to explain why the ET considered that "it was properly charged with the question of determining whether the failure to review the decision to remove the (applicant) from the register constituted victimisation discrimination". The ET Judge firstly makes a reference to the case management conference on 20 May 2005 and the identification of issues at the beginning of the ET hearing. The EAT then cites the following extract from the ET Judge's letter (in which, of course, the applicant is referred to as "the claimant"):-

"4. The Tribunal was accordingly charged to determine, to what extent the removal of the Claimant from the Respondent's register of nurses was connected to her having done the protected act, in this instance raising complaints of discrimination against both the Respondent and the Respondent's clients.

5. The evidence of the Claimant, in respect of her removal from the Respondent's register of nurses, was that because she was persisting in her complaints of discrimination, it became expedient to remove her from the register rather than to address her concerns; the Claimant reluctant to let the issue lie. The Claimant here maintained that the Respondent was well aware of her unavailability to attend the hearing arranged for 13 October, but nevertheless persisted to make a finding against her in her absence, substantiating her assertion of victimisation.

6. It was the finding of the Tribunal that when the initial decision to remove the Claimant from the register was taken, the particular hearing officer, Ms Wright, had not had sight of the letter, although the letter had been received by the Respondent and, therefore, the action of the hearing officer, Ms Wright, was not done in the knowledge that the Claimant was unable to attend. That having been said, the Tribunal heard evidence that shortly after Ms Wright had made her determination, but before taking any further action in communicating this fact to the Claimant, she was presented with the correspondence from the Claimant, notifying the Respondent of her inability to attend the meeting, as arranged, which fact she (Ms Wright) then communicated to Ms McCulloch, making comment that that explained the Claimant's absence. However, now in receipt of that information, the officer did not appear on the evidence before the Tribunal to reconsider her reasons but proceeded to have correspondence sent to the Claimant informing of her decision (I will refer to that in a moment).

7. In these circumstances, in addressing the question why the Claimant was removed from the register, the actions of Ms Wright and why, in the light of the information received before she communicated her decision to the Claimant, she did not review the decision became, in the Tribunal's view, intricately entwined with the decision of removing the Claimant from the register. (The Respondent in the hearing was reminded that this was an issue that would have to be addressed and would be assessed by the Tribunal.) [I will revert to that point in a moment].

8. In the light of the further evidence received from the Respondent's witness, Mrs Pompilis, in respect of previous incidents where an officer had failed to attend a scheduled meeting and the course of action then taken it was, in this Tribunal's view, sufficient reason to have an explanation from the Respondent as to whether they did or did not reconsider the decision to remove the Claimant from the register, particularly observing that that decision had not been communicated to the Claimant at the point they received the Claimant's letter explaining her absence. In light of the Claimant's assertions, there was, in the Tribunal's view, sufficient evidence without further explanation from the Respondent for which the Tribunal could conclude that the decision of removing the Claimant from the register was on account of her raising the complaint of discrimination. Accordingly, in the absence of any evidence to this fact from the Respondent, the Tribunal was bound in its finding."

14. Following receipt of this letter, the EAT called for the ET Judge's notes of evidence relating, in particular, to whether the ET had raised the issue of reinstatement to the register with the parties at the hearing. After some delay, the notes were produced, and the EAT cites a number of extracts from them, notably of the applicant's cross-examination of Mrs. McCulloch, one of the Respondent's witnesses –

"On day three of the Tribunal Hearing, on cross-examination of Mrs McCulloch the Tribunal received the following evidence. "Yes, Ms Wright did come to me and say that she had a letter saying that she had received a letter from you - saying that that is the reason why you could not attend the meeting on the 13 October.

The letter to you had already been sent to you.

Following the conclusion of evidence on day 3 of the case then being adjourned to the 26 June 2006 the Tribunal was informed that a witness who had not been able to attend could now attend the resumed hearing it being determined to hear that witness first at the resumed hearing. It was then raised by the Chairman whether Ms Wright would be called to give evidence as Ms Wright was the dismissing officer. The Tribunal was informed that Ms Wright had left the Respondent's employment and Ms Wright would not be called as a witness. The Chairman stated that this gave rise to a situation where the Tribunal would be called on to draw an inference in respect of discrimination and harassment and was an issue that the Tribunal will have to decide."

15. The EAT's analysis of the notes is that they are internally contradictory. The first question was whether Ms Wright had dismissed the applicant despite knowing that she had been unable (for good reason) to attend the meeting. The note of the cross-examination of Mrs. McCulloch demonstrated that "the letter (of dismissal) "had already been sent to you". In other words, Ms Wright had not dismissed the applicant despite knowing that she had good reason for not attending the meeting.
16. The second point made by the EAT on the notes is that they undermine the assertion made by the ET judge that the ET had reminded the respondent at the hearing that the issue of the claimant's reinstatement to the register would have to be addressed by the respondent at the hearing. The EAT thus concluded that the issue of the applicant's reinstatement to the register had not been flagged up for the respondent to deal with in closing submissions. They pointed out that there was no reference to the issue of reinstatement to the register in the "very careful closing submissions" of counsel for the respondent. The EAT thus expressed its conclusion in paragraph 33:-

It follows that the issue of reinstatement to the register was never before the Employment Tribunal but when they retired they clearly thought that it should be decided. It was an error of law to do so without alerting the parties to the point and giving them the opportunity of dealing with it, and they should not have made the finding that they did in paragraphs 11.15 to 11.19 of its decision.

17. The EAT then went on to consider the question of amendment. It deal with this shortly in paragraph 34, and then stated its overall conclusion in paragraph 35:-

34. I turn to the second ground of appeal. Ms Beecham accepts that the question is if an amendment had been sought by the Respondent should it have been raised. It was not raised. We think that the correct procedure in this case was to follow what Langstaff J described at paragraph 43 of Ministry of Defence v Hay. In a race discrimination case, it is essential that the Respondent knows the case it has to meet. If the Respondent had wished to raise the issue of reinstatement, then she should have done so by an amendment to the originating application and flagged up the issue at the beginning or, at least, during the hearing as an issue. It never was.

35. For these reasons we allow the appeal. There has been a material error at law on the part of the Employment Tribunal. It acted without jurisdiction. We have considered what course of action to take. We have looked at the authorities that we have been referred to and the approach of HHJ Peter Clarke in Manchester Metropolitan University v De Silva and the approach of HHJ Reid QC in Bradford Hospitals NHS Trust v Al-Shabib. It seems to us clear that the only course of action we can take where a Tribunal is acting without jurisdiction in making a finding of race discrimination against a Claimant on a point not pleaded or raised as an issue in the proceedings is to say that the Tribunal acted without jurisdiction. It follows that the Tribunal having acted without jurisdiction there is nothing for us to remit to the Employment Tribunal. The appeal will therefore be allowed.

The application for permission to appeal to this court

18. It is, of course, trite law that it is for this court to determine whether or not the ET has made an error of law which the EAT has either corrected or failed to correct. In her skeleton argument for this court, the applicant submits that there have been serious procedural irregularities by the EAT, and that, in particular, her case has been seriously prejudiced because her notes of Mrs McCulloch's cross-examination were not admitted at the EAT hearing. (The applicant talks of Ms Kate McCullock: I assume this is the same person) The applicant also complains that her note of Ms M's cross examination was not admitted by the EAT.
19. In paragraphs 4 and 5 of her skeleton argument, the applicant further complains that she had applied for these documents to be included in the EAT bundles and had been told that copies had "been placed on the judge and members bundle for the forthcoming hearing. She says she subsequently wrote to the EAT asking for confirmation that the documents would be included in the hearing bundle and received that assurance both on 28 August 2008 and 9 September 2008. No objection to the admission of these documents had been taken by the respondent, and the applicant asserts that their exclusion prevented her from receiving a fair hearing under ECHR Article 6.
20. The applicant also complains that the EAT's refusal to adjourn to allow the note of evidence given by a further witness to be adduced also seriously prejudiced her case.
21. When refusing permission to appeal to this court, Judge Birtles wrote: "The application for an adjournment to obtain notes of evidence of a witness was made during the respondent's submissions. She had had many months to make the application."
22. It is apparent from the EAT's judgment, that it declined to look at the applicant's note and the notes taken by the Respondent's counsel. The reasons it declined to do so, as well as its reasons for refusing to look at "without prejudice" correspondence, and the witness statement of Ms Abejide are set out in the first three paragraphs of the EAT's judgment. These read as follows:-

Preliminary Matters

1. In respect of Ms George's notes and in respect of the Appellant's counsel's notes and Appellant's solicitor's notes, we are not going to look at them because the procedure provided for in the EAT order, putting this case through to a full hearing, has not been complied with and if there are difficulties with time then the EAT Registrar will always consider an order. In other words, the correct procedure is to agree notes if possible. If it is not possible then the procedure is to make an application to the EAT and, as a matter of practice, the EAT is quite liberal about extending time for making applications for Judge's notes. So we are not going to look at the notes on either side. We will look only at the Judge's notes.

2. So far as the "without prejudice" correspondence is concerned, we are going to not look at that on the basis of the normal rule that a court does not look at "without prejudice" correspondence and there is a long line of authority which binds us, including the House of Lords case in Rush & Tompkins Ltd v Greater London Council [1989] AC 1280. None of the exceptions to the "without prejudice" rule apply in this case. Courts do not look at "without prejudice" correspondence except in the most unusual circumstances and that is to protect the parties' contractual negotiations or negotiations about settlement.

3. The third point is the witness statement of Ms Abejide. We are not going to look at that. This is a witness statement dated 7 August which purports to give evidence about what Ms Abejide heard at the tribunal hearings in 2006 and 2007 when she was a witness for Ms George. We have the Judge's notes and the usual rule applies, which is that if we look at any evidence that was heard at the Tribunal then we look first at the judgment and the findings of fact of the Tribunal and, secondly, on the disputed point, if it becomes necessary we look at the Judge's notes. But we are not prepared to depart from the usual rule and look at any extraneous material. So that deals with that. So, Ms George, the position is that we are not going to look at your notes and we are not going to look at their notes.

Discussion

23. The question for me, therefore, is whether or not an appeal by the applicant arguably stands a real prospect of success (see Civil Procedure rules 1998, rule 52.3(5)(a)) or there is some other compelling reason why the appeal should be heard (ibid rule 53.3(5)(b)).
24. The applicant's case is that the question of the refusal to consider the restoration of her name to the register, and her allegation that this constituted victimisation was properly before the ET, and that in the absence of evidence from the dismissing officer (Ms Wright) the ET made it clear to the respondent that it would be called upon to drawn an inference against the respondent. Indeed, she says that the ET placed the respondent on notice that the failure to review / consider reinstatement would be treated as an actionable complaint. She also argues that the respondent called evidence which included under cross-examination one other person having been reinstated after having missed a disciplinary hearing. The applicant also relied in the EAT on Hay v. Ministry of Defence.
25. Included in my bundle is a letter from the applicant to the EAT dated 14 September 2008, and the EAT's reply dated 15 September. The latter refers to paragraph 8 of the EAT Practice Direction and Practice Statement contains the following three sentences in bold type:-

The EAT letters dated 21 and 28 August 2008 stated that the documents had been placed on the judge and members bundles. Please note this had been an administration error on behalf of the EAT. I would like to apologies for this error and the inconvenience caused.

26. Also in my bundle is the statement of Ms Abejide dated 7 August 2008 on which the applicant relies, and the notes of the cross-examination to which the applicant refers, which I have read. I have also read the correspondence contained in the bundle.
27. From these documents, a number of points emerge. One is that the note of the applicant's cross-examination were, as I have already stated, notes made by the applicant by way of preparation, and do not purport to represent what was said by the witness. The second point, as noted by the EAT, is that Ms Abejide's statement is indeed dated 7 August 2008.

Summary and conclusion

28. I have come to the conclusion that an appeal by the applicant against the EAT's decision would not stand a real prospect of success. It is plain that the victimisation of which the applicant complains was not part of her pleaded case. There was no amendment to include it. It did not form part of the case management discussion, nor was it particularised at any point.
29. In my judgment, the EAT did not act unlawfully when refusing to admit the documents which the applicant sought to adduce. The without prejudice correspondence was plainly inadmissible. The notes of cross-examination do not purport to represent what the witness said. The EAT was entitled to refuse to look at statement made long after the hearing, particularly in the light of the strict rules relating to the admissibility of what occurred at the ET hearing.
30. Whilst I agree with Sedley LJ in not being convinced that the ET acted without jurisdiction, I agree with him that its decision on victimisation was wrong, and constituted an error of law, which the EAT was entitled to correct. Even were this court to admit the documents identified by the applicant, I do not think that it would affect the result. I therefore find myself in complete agreement with Sedley LJ that it was not open to the ET to make its finding on victimisation, and that the application for permission to appeal must be refused.