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:  UKEAT 0099_10_2904
Strand, London, WC2A 2LL
B e f o r e :
| ADEBOLA OSO
|- and -
|NEWHAM UNIVERSITY HOSPITAL NHS TRUST
The Respondent was not represented
Hearing date: 9 November 2011
Crown Copyright ©
Lord Justice Rimer :
'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.
'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.'
'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.'
'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.'