United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 428_95_0103

Appeal No. EAT/428/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 1 March 1996

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MRS R CHAPMAN

MR D G DAVIES CBE

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DR J S PARMAR          APPELLANT

(1) DR R F HARRIS

(2) NORTH NOTTINGHAMSHIRE HEALTH AUTHORITY          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR R BOSTWICK

(Representative)

Civil Rights (U.K.)

The Legal Consultancy

Mandela Rooms

New Justice House

411A Brixton Road

London SW9 7DG

For the Respondents MS V GAY

(Of Counsel)

Messrs Bevan Ashford

Solicitors

35 Colston Avenue

Bristol

BS1 4TT


 


MR JUSTICE MUMMERY (PRESIDENT): This appeal is against the decision of the Industrial Tribunal held at Nottingham on 9 and 10 March 1995. The Tribunal unanimously decided that Dr J S Parmar, the Applicant, was not discriminated against on the grounds of his race. The Respondents to the complaint were Dr R F Harris, a Consultant Paediatrician at Kings Mill Hospital, Sutton-in-Ashfield, and the North Nottinghamshire Health Authority, who accepted that, if there was race discrimination, they are liable for it.

The extended reasons for the decision were sent to the parties on 20 March. A Notice of Appeal was served on behalf of Dr Parmar at the beginning of April. On the hearing of the appeal, Mr Bostwick argued the case for Dr Parmar. Ms Gay argued the case on behalf of the Respondents.

As both Counsel appreciate, this Tribunal only has jurisdiction to hear an appeal from a decision of an Industrial Tribunal on a question of law. There is no jurisdiction to disturb the facts found by the Tribunal on hearing the evidence. In this case the Tribunal heard a substantial amount of oral evidence given by Dr Parmar and Dr Harris and a number of doctors and administrators connected with the case. The Tribunal made findings of fact on the oral evidence and on the documents, some of which we have seen on this appeal.

The background facts were these: Dr Harris is the Senior Speciality Co-ordinator and Consultant Paediatrician at King's Mill Hospital. On 1 March 1993, Dr Parmar was appointed as Senior House Officer in paediatrics. This training post was to last for about six months. A Letter of Appointment dated 25 February was sent by the North Notts Health Authority to Dr Parmar. According to the terms of appointment he was appointed as a Senior House Officer in paediatrics at King's Mill Hospital for a period of six months, from 1 March 1993 until 31 August 1993. His appointment was subject to the terms and conditions of service of hospital, medical and dental staff in England and Wales, as amended from time to time. In paragraph 4 his duties were stated to be those as defined in the attached Job Description. The Job Description is specifically tailored to a Senior House Officer in the Paediatric Department. It is a detailed document. It provides in paragraph 3:

"The SHO's [Senior House Officers] participate in a 1-in-5 on-call duty rota for nights and weekends (a weekend being 9 am Saturday to 9 am Monday). Following a night or weekend on-call, SHO's are entitled to 24 hours off duty, unless in exceptional circumstances the service need requires them to be present. On other week days the SHO's work a normal 8.30 am to 5 pm. The total weekly hours averaged over each 4 week period of 67.2 hours. There is provision for prospective cover."

It is stated that the ADH assessment is an allowance for SHO's to cover the absence of colleagues on the first on-call rota when on annual leave, study leave, and examination leave. Locums will not be appointed to cover absence of this type, nor will extra payments be made in the form of locum ADH's.

Paragraph 6 states:

"6. EMERGENCY DUTIES

It is accepted that members of the non-consultant staff will also perform duties in occasional emergencies and unforseen circumstances at the request of the appropriate Consultant in consultation wherever practicable, with his or her colleagues both Senior and Junior. It has been agreed nationally that additional commitments in request of emergencies are exceptional and non-Consultant staff should not be required to undertake work of this kind for prolonged periods on a regular basis."

The Tribunal summarised the events of the beginning of June, which led Dr Parmar to present to the Industrial Tribunal, on 3 September 1993, a complaint of direct racial discrimination.

At the beginning of June, Dr Parmar refused to undertake extra duties. He refused to stand in and cover for an absent colleague on 2 and 3 June. The reasons for his refusal, were that on one evening he had a social engagement and that in any event providing cover was not within his contract and he was not obliged to do it. The request was made by a Dr Harris. It was his job to ensure a twenty-four hour service and cover in the paediatric unit. He requested a white Senior House Officer, Dr Henry, to cover for the 2 and 3 June. He refused. His reason was that no-one was available to look after his children. Dr Harris was annoyed at both refusals. All House Officers' contracts provide for flexibility. It was an unwritten law that cover would always be available. Dr Harris was particularly annoyed by Dr Parmar putting a social engagement before a request to do extra duty and by denying a contractual commitment for both occasions.

The Tribunal stated:

"5. ... One has to realise that the obligations of doctors in hospitals are totally different from the obligations of ordinary workers in an industrial setting."

They repeated the same point in paragraph 12 of their decision:

"At the end of the day this is a hospital environment and the applicant and the other House Officers are qualified doctors. This makes it a different set-up to an ordinary commercial or industrial workplace."

Those were not just casual observations by the Tribunal about the hospital environment. The Tribunal rightly treated that context as something which coloured the whole perspective of this dispute.

After the refusal, Dr Parmar was summoned to a meeting. That meeting took place on 7 June. It was attended by Dr Harris and also by Mrs Helen Williams, the unit General Manager of the Medical Services Unit. The purpose of the meeting was to remind Dr Parmar of his obligations, as a House Officer, in relation to extra duties. At the meeting, Dr Harris, who was found by the Tribunal to be a thoroughly competent and reliable consultant, and whose only interest in relation to the hospital was the care of his young patients, laid down to Dr Parmar what was expected of him on extra duties. Dr Parmar left the meeting summarily. The Tribunal said that he was resentful of criticism and was determined to stand on his rights. He was requested to return to continue the discussion. He refused. He was told that he was suspended. That was the decision of Mrs Williams. She wrote a letter to him the same day confirming her decision to suspend him from duty with effect from 7 June. The letter of suspension is an important part of the arguments on this appeal:

"Dear Dr Parmar

I am writing to confirm my decision to suspend you from duty with effect from today 7 June, 1993.

An investigation is being undertaken of the complaints made about your work performance and in particular your duties concerning clerking of patients and record keeping.

Your suspension will continue until this investigation is completed and a decision is made as to what action to take.

Throughout this period of suspension, you will continue to receive your normal pay."

The Tribunal found that the letter contained a reason for the suspension which did not reflect reality. There was no doubt, in the Tribunal's view, that Dr Parmar's refusal to do extra duties was the reason for the meeting. His walking out of the meeting was the reason for his suspension. They added, however, that Dr Harris was not satisfied with Dr Parmar's general performance during his training period. There had been general concern about the two matters mentioned in the letter, clerking of patients and record keeping.

In his helpful submissions, Mr Bostwick made a valid legal point when he said that the essence of a complaint of race discrimination involves the making of comparisons of treatment. We now consider the comparisons that the Tribunal made. The Tribunal were asked to make two comparisons. The first was the difference in treatment of Dr Parmar and a white house doctor, Dr Henry, in two respects: first, Dr Parmar was summoned to a meeting, whereas Dr Henry, who had also refused to do extra duties on Dr Harris's request, did not receive a summons to a meeting. Secondly, Dr Parmar had been counselled in April 1993 about his attitude and performance. No record was kept of the counselling. Dr Henry had also been counselled to deal with a written specific complaint by a patient. That counselling had been properly recorded.

The general point on these comparisons is this: was there less favourable treatment of Dr Parmar in relation to the summons to the meeting and in respect of the counselling? If so, was the reason for that less favourable treatment racial, or was it a non-racial reason? The Tribunal dealt carefully in their findings of fact with both of these comparisons. On the first comparison, they were satisfied that the circumstances surrounding Dr Henry's refusal to do the extra duties were entirely different from those of Dr Parmar. He had a justifiable reason for refusing; there was no-one available to look after his children. It is implicit in paragraph 7 of the reasons that Dr Henry did not, like Dr Parmar, rely upon his contract of employment as a reason for refusing to perform the extra duties. The Tribunal found this:

"7. ... it must have been exceptionally annoying to Dr Harris for a House Officer to rely upon his (wrong as it happens) contract of employment. At the end of the day care is not about contracts of employment."

On this comparison, the Tribunal stated in paragraph 9:

"We are satisfied that the failure to call Dr Henry to a meeting with regard to his refusal to do extra duty was justified by the circumstances and was not differential treatment as between a white person and a black person."

The second comparison about counselling was dealt with in a similar way. The Tribunal found that there was counselling of Dr Parmar by Dr Harris about his attitude and performance. They said there was no record of it. They accepted Dr Harris's evidence that it was not his practice to keep records, but such matters are reflected in the final report at the end of the training course. They found that Dr Henry was also counselled by Dr Harris. A record of that counselling was kept. There was therefore a difference in treatment of the two doctors when they were counselled by Dr Harris. The Tribunal went on to find that there was a justification for the difference in treatment. Dr Henry was counselled because there had been a specific complaint by a patient. Dr Harris had to deal with that. As it was a patient complaint, there had to be proper records of the matter. The Tribunal concluded:

"10. ... There is therefore a clear distinction and justification for the treatment of the applicant in counselling and the treatment of Dr Henry in counselling."

We should mention for completeness that there were allegations by Dr Parmar that Dr Harris had made racist remarks. This complaint was rejected. The Tribunal were satisfied that there was no racist behaviour. Mr Bostwick has accepted that that is a conclusion of fact from which there is no appeal.

At the end of the reasons, the Tribunal reached this conclusion: that there were no findings of fact upon which they could draw any inference of discrimination on the grounds of race. We have to ask: is there anything legally incorrect with that decision? Dr Parmar may believe that there are factual mistakes or errors in this decision. He may think that his evidence should have been accepted where the Tribunal rejected it. There is nothing that this Tribunal can do about that, because a grievance of that kind is about the facts. As to possible errors of law in the decision, we have read the grounds of appeal. We paid particular attention to the way in which the case has been argued by Mr Bostwick. He did not follow the order or even the substance of some of the grounds. In our view, he was right to adopt that approach. Grounds, such as paragraph 10 of the Notice of Appeal, are not helpful to any argument in this Tribunal. To say of a decision of an Industrial Tribunal that it is a blatant and brazen attempt to whitewash the racially discriminatory acts of the consultant, is neither a question of law nor any other kind of properly formulated point. Grounds of appeal should not contain that kind of language which is legally incoherent and little more than unjustified abuse.

Mr Bostwick wisely addressed more substantial points. We are grateful to him for identifying, under various headings, the points advanced on Dr Parmar's behalf. We will not necessarily take them in the order that he did, but we will cover all of them. The most important points are what we may call the "contract" point and the "suspension" point. First, the contract point. This is a question of law. It goes to the heart of this matter. At the centre of this dispute is the view that Dr Parmar took about his contractual commitments. It differed radically from the view that Dr Harris took of his contractual commitments. In refusing to do the extra duties for 2 and 3 June, Dr Parmar relied on his contract. The reason Dr Harris summoned him to a meeting on 7 June was in order to lay down to him the position about extra duties. At the meeting held for that purpose, Dr Parmar stood on his rights and left summarily. That led to the suspension and to this complaint.

We have examined the contractual documents in the light of the submissions made by Mr Bostwick. Mr Bostwick's main point was that Dr Parmar was right. He was working long hours. He was only required under the contract to do extra duties described as "emergency duties". Mr Bostwick submitted that providing cover for someone absent on account of sickness was not an emergency duty. He gave examples of what would be an emergency duty and could be described as an exceptional case - a major disaster such as an air crash, or a motorway pile-up, or an epidemic. A difficulty in filling a gap in a rota was not an emergency. We are unable to accept that submission. It is a mis-reading of the wording of the crucial paragraph 6 in the Job Description which define the contractual duties. Although the heading of the provision is "Emergency Duties", it covers not only occasional emergencies, but also unforeseen circumstances. The words which follow in the second sentence "that it has been agreed nationally that additional commitments in request of emergencies are exceptional" do not prevent "unforeseen circumstances" from having the wide meaning that they clearly do. The purpose of the second sentence is simply to make it clear that this provision is not to be used in order to require non-consultant staff to do extra work of this kind for prolonged periods and on a regular basis. Dr Harris was not requiring Dr Parmar to do this kind of work for a prolonged period or on a regular basis. He was only asking him to do it for two nights. There were unforeseen circumstances. The foreseen circumstances, in connection with duty rotas, is that, unless there is a good reason for them being departed from, people do the duties at the time when they are appointed to do them. If an illness occurs, that is an unforeseen circumstance. The gap that arises from illness or similar reasons, would, in our view, properly be treated as something covered by Clause 6.

We therefore find that Dr Parmar was wrong and Dr Harris was right in his view of the contractual obligation to perform extra duties in those circumstances, at the request of the appropriate consultant. Dr Harris was the appropriate consultant. In interpreting this Letter of Appointment and the Job Description, the Tribunal were right to look at the context. The context of the appointment and the Job Description was that of a doctor in a hospital. This may differ from the obligations of a worker in an ordinary, commercial or industrial work place. It does not take an expert to know that hospitals are, as Mr Garfield Davies pointed out during the hearing, places where human pain, suffering, life and death issues are of daily occurrence. The obligations of those who work in that environment are interpreted accordingly.

The second main point made by Mr Bostwick is the "suspension" point. He submitted that, on the findings made by the Tribunal, the letter of suspension gave reasons for that drastic action, which are not the true reasons for that decision. We were provided helpfully with a copy of the letter. In some respects it is an odd letter. It was written by Mrs Williams, who was at the meeting called by Dr Harris, the meeting from which Dr Parmar walked out and which the Tribunal found constituted the reason for the suspension. The letter does not refer to the meeting. It does not refer specifically to the purpose for which that meeting had been called, namely to discuss the questions of extra duties. It makes no reference to the conduct of Dr Parmar in walking out of the meeting and in refusing to comply with the request to return to it to continue the discussion. It might be thought that the letter was, in some way, an attempt to disguise the purpose for which it was written. We think that would be an over-critical approach to this letter. The letter states in general terms that there is going to be an investigation about complaints. The complaints included general complaints about work performance, as well as particular complaints about clerking of patients and record keeping.

We do not accept Mr Bostwick's submission that work performance would only cover the quality of the work that was performed and would not cover complaints about work that was not performed, but which was within the contractual obligations. In our view, work performance is wide enough to cover the matters discussed at the meeting in relation to extra duties. It was also pointed out by Ms Gay that, whereas the meeting was called by Dr Harris for him to lay down to Dr Parmar what was expected of him with regard to extra duties, the decision to suspend was not that of Dr Harris. It was that of Mrs Williams, as an administrator.

We do not find anything legally incorrect in the way that the suspension was handled by Mrs Williams. We do not find anything legally incorrect in the way in which the Tribunal dealt with the question of suspension. They found as a fact that there were concerns by Dr Harris about Dr Parmar's general performance during the training period. Those included specific matters of clerking of patients and record keeping. We therefore find no legal error on that part of the case.

That leaves a number of lesser points on which we make some comments. There is the locum point. Mr Bostwick submitted that there are agencies which provide locum cover. They are known to the authorities. Resources were available to Dr Harris, quite apart from making a demand on Dr Parmar to perform extra duties. Dr Parmar was not obliged to take on the extra duties when he was asked to do so. There were other options open to Dr Harris. The suggestion in these submissions, was that it was unreasonable of Dr Harris, on this occasion, not to use a locum, and that this was some evidence of racially motivated animus on his part to put the requirement on Dr Parmar.

We are not persuaded that there is any error of law in the way the Tribunal have dealt with this point. The documents before the Tribunal show that one of the purposes of appointing Dr Parmar to his position was to avoid the expense of using locums. Page 22 of the bundle referred to the fifth SHO post established in February 1993, taken up by Dr Parmar in March. The comment made in that letter was that:

"... Internal cover would be less onerous on junior staff and would obviate the need for unreliable and expensive locum staff."

It also appears from the documents received in evidence at the Tribunal that attempts were made by Dr Harris to find a locum and those had been unsuccessful. There is no legal error in the Tribunal's decision in relation to Dr Harris's request for Dr Parmar to do the extra duties, which he was contractually liable to do if requested to do so by Dr Harris. It is not relevant to the alleged act of direct discrimination that an attempt to obtain a locum had been made unsuccessfully.

Next, the counselling point: it is difficult to understand how this could be a question of law on this appeal. Mr Bostwick appeared to submit at one time that counselling was irrelevant to the dispute and should not have been dealt with. On our understanding of the case, Mr Bostwick submitted that the whole episode in relation to counselling should not have been admitted by the Tribunal. Although this point is not mentioned in the Originating Application, our understanding of the proceedings before the Tribunal is that they reasonably thought that it was a subject of complaint that Dr Parmar had had different treatment from Dr Henry.

It is difficult to understand what the complaint is. Insofar as there is a complaint, we find there is no error of law in the Tribunal concluding that any difference in treatment there was of the two doctors, was explained and justified by the difference in the circumstances in which they were counselled. As Ms Gay correctly pointed out, in making the comparisons required to be made under the Race Relations Act 1976 in order to determine whether there has been less favourable treatment, it is necessary to observe the requirements of Section 3(4) which says:

"A comparison of the case of a person of a particular racial group with that of a person not of that group under section 1(1) [that is the section that makes direct discrimination on racial grounds unlawful] must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."

In the complaint about the counselling, the Tribunal were entitled to take the view that the relevant circumstances of the two counselling sessions were materially different. Dr Parmar's counselling session was about his attitude and performance. Dr Henry's counselling session was prompted by a specific written complaint from a patient. It would be necessary to keep records of that, if only for the purposes of responding to the complaint of the patient. In such a session, Dr Harris would no doubt ask Dr Henry for his response to the complaint. A written note would be made of it, so that a letter could be written to the complainant or whoever else was concerned to have a response to the complaint. Section 3(4) makes it clear that the Tribunal were entitled to take the view that these were not comparable situations. There were relevant material differences between them.

That deals with all the points. There were several other points which we have noted, which we called the "comparison" point and the "discrimination" point. The arguments of Mr Bostwick on those have already been covered by the reasoning set out earlier in this judgment. For all those reasons, we have reached the conclusion that there is no error of law in this decision. The Tribunal were entitled to come to the view that there were no primary facts from which they could make an inference of discrimination. They were entitled to be satisfied that Dr Parmar had not been discriminated against on the grounds of his race. The appeal is dismissed.