England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
His Honour Judge McMullen QC, Professor S.R.Warby and Mr B.M. Warman
Appeal No: UKEAT/0099/10/DM, BAILII: [2010] UKEAT 0099_10_2904

		Royal Courts of Justice Strand, London, WC2A 2LL
		01/12/2011

Lord Justice Rimer :

1. This is a renewed application for permission. The order under challenge was made by the Employment Appeal Tribunal ('EAT') on 29 April 2010. By that order, and following a preliminary hearing (part of the EAT's sifting process directed at identifying whether an appeal discloses grounds with a sufficient prospect of success to merit a full hearing on notice to the respondent), the EAT dismissed the applicant's appeal against a judgment of an Employment Tribunal ('ET') sent, with written reasons, to the parties on 8 December 2009. The EAT panel comprised His Honour Judge McMullen QC, Professor S.R. Warby and Mr B.M. Warman. The ET panel comprised Employment Judge Prichard, Mr R, Edwards and Mr B.J. Banks. The ET heard the claims at the East London Hearing Centre.
2. The applicant is Adebola Oso, one of the two claimants before the ET. She and her co-claimant, Philomena Owoyemi, brought claims for race discrimination and unfair dismissal against the respondent, Newham University Hospital NHS Trust. The claimants are career nurses who worked in the respondent's neonatal unit ('NNU'). They had worked there since 2000 and were dismissed for gross misconduct, Ms Owoyemi on 28 April 2008 and the applicant on 1 May 2008. Their claims were heard by the ET over 13 days, followed by a fourteenth day when the ET considered the claims in chambers. Counsel, instructed by Nathaniel & Co, solicitors, represented both claimants. The outcome was that all claims were dismissed.
3. The respondent employed about 2,000 staff altogether, some 33 of whom were in the NNU. Of the 33, 15 were black British/African, four were black or black British Caribbean, and four had Asian backgrounds, one being Chinese. The claimants asserted that they had been discriminated against on the grounds that they were black Africans, or more specifically that they were Nigerians. At least seven staff members were Nigerian.
4. Having so summarised the staff in the NNU, the ET in its reasons set out the issues it had to decide, which had been identified at an earlier Case Management Discussion. The race discrimination claim was based on assertions that the claimants had been treated less favourably on race grounds by being suspended and dismissed. As to suspension, their case was that all seven staff members initially suspended (including the claimants) were Nigerian, whereas a further five staff members also investigated for bullying and harassment were of Asian or Caribbean origin and were not suspended. The claimants also invited the ET to draw inferences of racial discrimination from the fact that three white staff members the subject of another investigation for management or bullying concerns were not suspended, whereas a black Caribbean woman who was also investigated was suspended. As to dismissal, the claimants asserted that they were discriminated against by being dismissed, relying on the fact that the five others investigated for the same offence who were Asian and Caribbean were not dismissed. The claimants invited the like inference of discrimination by referring to the circumstances of the other investigation, asserting that the three white staff were not dismissed whereas the black Caribbean staff member was dismissed. It was apparently also the claimants' case that they had been the subject of direct race discrimination by the disciplinary investigation that had been made into the allegations against them, but they had been unable to identify the basis on which they sought to make good that case.
5. The ET turned to the unfair dismissal claim and identified the questions it had to answer, which included the tripartite Burchell inquiry (BHS Ltd v. Burchell [1980] ICR 303). Were the claimants dismissed for a reason relating to race? Were they, as the respondent asserted, dismissed on conduct grounds? If the latter, had there been a reasonable investigation into the complaints at the end of which the respondent reasonably believed that the claimants were guilty of the conduct alleged? If yes, was dismissal a reasonable response?
6. Having identified the issues, the ET turned to its fact-finding exercise and set out its findings, in full and careful detail, over some 71 paragraphs occupying some 14 single spaced pages. Its conclusions, which were relatively short, followed in nine paragraphs, over just under two single-spaced pages. The EAT, in the judgment delivered by Judge McMullen, summarised the bones of the factual story and findings but I shall not do likewise since to do so would be a work of supererogation. The facts found by the ET are there for the applicant to read and she has read them, as have I. My function is limited to ruling on whether she has identified any grounds meriting permission to appeal.
7. The EAT rightly recognised that the ET's reasons for its conclusions were brief. It also said that they did not include, as they ought to have done, a concise statement of the law applicable to the making good of a claim of direct discrimination on racial grounds or, therefore, an explanation of how they had applied the law to the facts they had found (see rule 30 in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004). Judge McMullen said, however, in paragraph 10 that:

'Nevertheless, a Tribunal which gives sufficient reasons in the body of its findings is not required to rehearse them in its conclusions. A judgment which is unarguably right, notwithstanding a misdirection or an imperfection in the reasons, will be upheld on appeal.'

I would respectfully agree with that observation. That is not, I emphasise, in any way to minimise the importance of compliance with the requirements of rule 30. The discipline of an express self-direction as to the law is of invaluable assistance in focusing a tribunal's eye on the relevant ball and so in reducing the chance of error. If, however, it is apparent that the ET has in fact applied the right facts to a correct understanding of the right law, then an omission formally to comply with rule 30 will not be fatal to its decision. In the present case, however, Ms Weekes QC has submitted that it is properly arguable that the ET's omission in this respect did lead it astray.

8. The EAT rejected that suggestion. So did Mummery LJ on the papers on 14 December 2010, his view being that there was no 'reasonably arguable error of law in the ET's decision'. It was part of the applicant's case in support of her proposed appeal that she should be entitled to adduce fresh evidence in the nature of a decision of the Nursing & Midwifery Council ('the NMC') of 16 November 2010. Mummery LJ also held that there were no grounds for that. The applicant renewed her permission applicant orally before Pill LJ on 9 June 2011, a hearing at which she was, as now, represented by Ms Weekes, who had very recently been instructed. Pill LJ delivered a judgment which reflected his misgivings as to whether the applicant had any properly arguable point that merited the giving of permission and his view that the NMC's decision did not by itself tip the balance towards giving permission. What, however, he did was to adjourn the application so as to enable the applicant's advisers to make inquiries into other matters leading up to that decision, although he cautioned her to recognise that it would be an uphill to seek to be permitted to rely on material that was not before the ET or the EAT.
9. The application was therefore adjourned. Ms Weekes told me that it came back for hearing before Mummery LJ earlier this term, who took the view that as he had expressed firm adverse views on the quality of the appeal on the papers, it ought to be adjourned to be heard by another Lord Justice. Thus it was that it came before me on 9 November 2011. No further written argument had been put before me for that hearing. Ms Weekes also made it plain that the applicant had abandoned any bid to adduce fresh evidence in support of the permission application, including the NMC decision. That, if I may say so, was a well-judged concession. The NMC decision was favourable to the applicant but the matters it was considering are obscure, at least to me, because the decision does not identify them. On the assumption, however, that it related to the matters the subject of the respondent's criticisms of the applicant that led to her dismissal, it is irrelevant to the correctness or otherwise of the ET's decision. The ET was concerned to decide the discrimination issues that I have referred to and subsequent events could not illuminate the soundness or otherwise of its decision in that respect. As for the unfair dismissal claim, the ET was concerned to decide whether the respondent had conducted a reasonable investigation into its criticisms of the claimants, had formed a genuine belief in them on reasonable grounds and had responded to that belief, if held, in a reasonable way. It was not concerned to decide the guilt or innocence of the applicant in relation to such criticisms. The subsequent views of the NMC on such criticisms are also irrelevant to an assessment of the soundness of the ET's views on the issues it had to decide.
10. Ms Weekes confined her submissions to the proposition that it is properly arguable that the ET's conclusions in paragraphs 80 and 81 on the direct race discrimination claim were, on their face, perverse; and that they were anyway insufficiently reasoned to explain to the applicant why that claim had failed. It is worth setting out both paragraphs verbatim:

'80. It might well be thought it was a remarkable statistic that all the 7 original suspects, all suspended, were all Nigerian until one realises the context of the case is about factions within the NNU. It seems that it may not have been a coincidence entirely.

81. It is noteworthy that there are no hypothetical comparators in this case. The claimants rely upon actual comparators. However, if there had been reliance on hypothetical comparators, the tribunal's conclusions would have been the same. The tribunal is quite satisfied that in terms of section 3(4) of the Race Relations Act 1976 none of the comparators are anywhere near being in "relevant circumstances" which were "not materially different" from the claimants. Indeed their positions were entirely different. The tribunal's analysis is that the burden has not shifted to the respondent. There is no evidence from which a tribunal could find that an act of discrimination has occurred here, despite the fact that the 7 people suspended originally were Nigerian. It is not enough to show different treatment to individuals of a different race. Further it must be shown that there is evidence that this difference could have been, at least in part on racial grounds. The tribunal literally finds no evidence of that. Thus on those grounds the claims fail to raise even a prima facie case of discrimination.'

11. It was at the forefront of Ms Weekes' complaint that those conclusions were unsafely, and fatally, flawed by the ET's omission to refer expressly to the guidance provided in relation to discrimination claims by the Court of Appeal in Wong v. Igen Ltd and others [2005] 3 All ER 812. I accept that it might have been better if the ET had in terms referred either to the guidance in Wong or, perhaps more appropriately, to section 54A of the Race Relations Act 1976. In my view, however, it is obvious from the way in which the ET expressed itself in the quoted paragraphs that it both fully understood the burden of proof provisions imposed by section 54A and that it applied them to its findings of fact. That is apparent from its holding that the burden of proof had not shifted to the respondent and from its emphatic finding that there was no evidence from which 'a tribunal could find that an act of discrimination' had occurred and that the claimants had failed to raise even a prima facie case of discrimination. Had the ET not properly understood the law it was required to apply, it could not and would not have expressed itself as it did. There is, therefore, in my judgment no arguable point that the ET had misdirected itself as to the applicable law. It plainly had not.
12. This is not therefore a case in which the applicant can complain that she does not understand why her discrimination claims failed. The ET made it clear that its assessment was that the evidence did not get her to first base. It seems to me, therefore, that the only ground upon which the applicant could hope to progress an appeal against the rejection of her discrimination claim is that an objective analysis of the facts found by the ET showed unerringly that the applicant had discharged the relevant burden and that the ET's view to the contrary was irrational.
13. In my view, a consideration of the ET's findings dispels any basis for such a criticism of its overall conclusion. The ET described in paragraphs 14 and 15 how seven Nigerian nurses, including the two claimants, had been named as the subjects of allegations. In paragraphs 16 and 21, the ET described how and why they were all suspended in early November 2007, who made the decision in that respect, and how the fact that all seven were Nigerian was central to the claimants' discrimination claim. The ET, therefore, fully understood the claimants' point. It described the nature of the protracted investigation into the allegations that followed. It described how in early 2008 four more nurses were made the subject of investigation. It explained that none was either Nigerian, or even African, and I understand them to have been of Asian or Caribbean origin.
14. None of the additional four was suspended (at any rate initially) and the ET noted in paragraph 31 that this was also an important part of the discrimination claim. The ET explained in paragraph 32 the respondent's reason for the different treatment as regards suspension between the original seven and the subsequent four and found that it was 'true and logical'. It was this:

'32. … Firstly, the investigation at that stage was nearly complete. Secondly, concern about under-staffing on the unit after the removal from duty of the original 7, had become quite acute. The allegations against the later individuals were not of the same gravity, and in particular, Monica Rodney and Norma Rose were not accused of harassment and bullying in their own right. They were accused of mismanaging the ward, and of a disruptive working relationship. It is significant that after they had been identified then steps were taken to make sure that they never worked on the same shift as a way of dealing with that specific concern. Anna Vincent and Ruby Bhagwan had been present throughout most of the investigation and it had therefore been observed that they were no threat to any of their colleagues on the unit or to parents and thus it was thought no risks would arise from their continuing to work on the unit.

33. As it turned out, Norma Rose retired anyway soon after this. She was thus never made the subject of disciplinary proceedings. She was, in fact, approaching 60 years of age.'

15. In paragraph 34, the ET explained how and why one of the original seven, Ms Nsa, who had been suspended was taken off suspension and returned to work. In short, the reason appears to have been that the levelling of the allegations against her in the first place was an obvious mistake. That reduced the 11 suspects to ten. The ET noted that it was in fact Ms Nsa who provided a good deal of evidence against the claimants during the investigation. In paragraph 37, the ET provided further reasons why Ms Vincent and Ms Bhagwan (two of the four) had not been suspended, although in paragraph 38 the ET explained how Ms Bhagwan was then suspended, because of her involvement in a particular incident. She was the subject of a disciplinary hearing on 29 May 2008, the outcome of which was that the panel held that she had no case to answer. The claimants did not challenge the panel's findings in relation to Ms Bhagwan, but it remains the case that the allegations against her had, by February 2008, been regarded as sufficiently serious to merit suspension and a disciplinary hearing; and she was not Nigerian. The ET explained that the outcome of her story was different from that of the claimants, in part because she had shown an insight into her own conduct of a nature 'notably lacking in either of the claimants', which the ET regarded as reflecting an important distinction between them.
16. The ET explained in paragraph 40 the thoroughness of the investigation that the respondent carried out. In paragraph 42 and following, it moved to the disciplinary hearings that the claimants were asked to attend and the allegations levelled against them. The applicant's hearing was conducted by a panel of two, Mrs Pidgeon (white British) and Ms Ndunagum (of Nigerian origin). The ET discussed the panel's procedure, dealt with the applicant's complaint that it was unjust, rejected them and described the procedure as 'conspicuously fair'. It explained how, following the disciplinary hearing, both claimants were summarily dismissed for gross misconduct. The claimants both appealed and the ET dealt with the applicant's appeal in paragraphs 72 to 77. The panel of three was chaired by Ms Basoah, a black African, and the appeal was dismissed, the panel being of the view, despite its sympathy for the applicant, that dismissal was in line with the respondent's policy generally. The ET explained how the applicant raised what it regarded as an unfounded objection to the inclusion on the panel of Rosemary Heed.
17. Standing back from that summary of the events, this is a case in which the ET was immersed for some 13 days. The ET was the fact finding body and it made full and conscientious findings in relation to the whole story. Whilst not expressly spelling out the direction as to the law that it had to apply, I have explained why it obviously understood the applicable principles. Its firm rejection of the claim that the applicant had established a case to answer on direct discrimination was built on its consideration of the whole of the evidence, on the primary findings it had made as to the course of events and as to why such course of events was what it was. In my judgment, there is no properly arguable basis on which the applicant can hope to persuade the Court of Appeal that, contrary to its finding, the ET ought in fact to have concluded that she had established a prima facie case of race discrimination.
18. An additional point that Ms Weekes asked me to consider was the ET's omission to refer to a race relation questionnaire which I understand was raised and answered in this case, although Ms Weekes did not refer me to it with a view to making good any point that might be made from it. It appears that the parties' representatives did not refer the ET to the questionnaire either; and, unsurprisingly, the ET made no reference to it in its reasons. It was suggested to me that the ET had a duty of its own motion to identify the questionnaire and consider it, such suggestion being an undeveloped one based on section 65 of the Race Relations Act 1976. I do not so read section 65. This further point provides no assistance to the applicant.
19. In my judgment, the applicant has no real prospect on appeal of a successful challenge to the dismissal of her race discrimination claim or, therefore, to the rejection of her claim that her dismissal was founded on a ground relating to race.
20. Ms Weekes also invoked, although without elaborating it orally, the written ground of appeal identified in paragraphs 67 to 75 of the original skeleton argument for the proposed appeal prepared by the applicant's solicitors. This is a criticism of the EAT's conclusion in paragraph 42 of Judge McMullen's judgment:

'An aspect of the unfair dismissal claim is a claim for automatic unfair dismissal under section 98A(2) [of the Employment Rights Act 1996], that is that the Respondent failed to carry out the statutory disciplinary procedure. This was not an issue identified at the CMD but the matter must fail in the light of the express findings about what happened on the ground. We have no doubt the Tribunal, if this were squarely put in front of it, would have used its findings in paragraphs 42, 43, 45, 46 and 48 to dispose of that allegation. There can be no doubt that the Claimants were given notice of what was put against them, were invited to a meeting and conducted an appeal. So there is no basis as a matter of fact for this point to be taken.'

21. As I follow it, this issue formed no part of the applicant's case before the ET. It had not been identified as an issue by the earlier CMD. It was apparently referred to, for the first and only time, in a list of issues included in the applicant's solicitors' closing submissions but was not further explained either in writing or orally. The paragraphs of the ET's judgment to which Judge McMullen referred went to the apparent fairness of the disciplinary procedure to which the applicant was subjected, being to the essential effect that the applicant was provided in advance with details of the allegations against her. In my judgment, this point not having been taken (or properly taken) before the ET, it was not properly open to be taken before the EAT, let alone now before the Court of Appeal. The point was a fact-based one that, if it was to be explored at all, required a proper investigation by the ET, which did not happen. The EAT explained how there is anyway probably no substance in it. I am not persuaded that this is a ground that justifies the giving to the applicant of permission to appeal.
22. I refuse permission to appeal.