United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MICHAEL HARTMAN (of Counsel) Instructed By: Messrs Ronald Fletcher Baker Solicitors 326 Old Street London EC1V 9DR
For the Respondent	MRS LESLIE MILLIN (of Counsel) Instructed By: Messrs Capsticks Solicitors General Accident Building 77-83 Upper Richmond Road London SW15 2TT


 


MR JUSTICE MAURICE KAY:

1. This appeal comes before us in slightly unusual circumstances. The Appellant, Mr Hussain, was for some years employed as Senior Registrar in Neurosurgery by Kings College Hospital, NHS Trust. A point came where he ceased to be employed there and went to another hospital. There then arose some vacancies at KCH, as we shall call it, to which he was not appointed. He alleges that he was a victim of race discrimination in relation to that. That is a very terse summary of the rather complex issues that lie behind this case.
2. The proceedings which the Appellant has instituted were not only against KCH. There are also applications against St Georges and the Secretary of State for Health.
3. The unusual and complex features of the case are as follows. It is clear to us that when a person such as Mr Hussain is working as a Senior Registrar or similar in a National Health Service Hospital, he is the employee of that hospital or trust. There is in our bundle a copy of the contract which existed between Mr Hussain and KCH commencing 8 July 1996. However, hospitals do not have total freedom of manoeuvre when recruiting to training posts such as these They are involved in the recruitment process but the case for KCH is that the decision to place, or not to place, such a person into a particular hospital is the decision of the Postgraduate Dean of the relevant Deanery, in this case the South Thames Deanery, who acts as an agent of the Secretary of State.
4. We have been shown the terms and conditions of service that are standardised throughout the sector and paragraph 12 of those indicates:

"Training placements will be arranged by the Postgraduate Dean in consultation with employers".

5. When all these proceedings against the various Respondents were commenced, the point was taken by KCH that the Appellant had no case against them, essentially and in simple terms because it was not they who had declined to employ him; it was the decision of the Postgraduate Dean.
6. Without going into the underlying factual allegations, it is apparent that the individuals against whom the Appellant makes serious allegations are senior employees of KCH. It is his case that those persons made representations to the Postgraduate Dean that had the result of which he complaints.
7. A case that had begun as a case against three different Respondents then started to develop in different directions. One of those directions was a hearing to which only the Appellant and KCH were parties, the purpose of which was to ascertain whether the Appellant was entitled to bring these proceedings against KCH. That hearing appears to have extended over two different days. There was an initial hearing which did not ripen into a conclusion because it was apprehended that it would be necessary to hear some evidence and so there was an adjournment and it was at a hearing on 19 October 2001, when the evidence was heard, that the ruling made.
8. The facts found by the Tribunal relate how the Appellant had worked at KCH until February 2000 when he had been transferred to the Atkinson Morley Hospital which is part of the St Georges Trust. On 30 June 2000 there was a meeting of a body called The Specialist Training Committee. The relevant Manager from Atkinson Morley sought the removal of the Appellant from that hospital. The factual findings then go on thus:

"A representative of Kings, said that Kings did not want him back because of the disturbance he had caused there. He was offered a placement at Hurstwood Park Hospital. Dr Hussain rejected that as in his view Hurstwood Park would not supply appropriate training to ensure that he would attain consultant status and at the end of his Atkinson Morley appointment on 31 January his training ceased. Subsequently, three posts became available in February at Kings for locum trainees but [Mr Hussain] was not appointed to any one of them."

He alleges race discrimination in that decision.

9. On behalf of the Appellant Mr Hartman accepts that, in accordance with the terms and conditions, it is the Postgraduate Dean who arranges a training placement. However, his submission is that that is a process in respect of which Consultants and Managers in hospitals have a considerable influence. He says that he is prepared simply to rest that submission on the findings of the Employment Tribunal which concluded:

"We are satisfied that section 4 does not apply to the facts of this case. Whilst the Respondents had an input into that decision it went no further than that. The decision was taken by the Dean …"

10. Mr Hartman's submission is that the conclusion that section 4 does not apply to the facts of the case, having regard to the facts that were found, is legally erroneous. By section 4(1) and (2) it is provided:

(1) It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against another -

(a) in the arrangements he makes for the purpose of determining who should be offered that employment; or

(b) in the terms on which he offers him that employment; or

(c) by refusing or deliberately omitting to offer him that employment.

(2) It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee: -

(a) in the terms of employment which he affords him; or

(b) in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or

(c) by dismissing him, or subjecting him to any other detriment.

11. In support of his submission Mr Hartman points to the purpose of anti-discrimination legislation and, by way of reference to the case of Bull v Harrods, invites us to construe section 4 sufficiently widely to embrace the facts of the present case. He submits that, for example, in section 4(1) "employment by him" covers circumstances related to prospective employment and through such means seeks to justify a broad approach. Moreover, if "employment" in section 4(1) can be construed so as to embrace prospective employment then "a person employed" in section 4(2) might be construed so as to embrace a person prospectively employed or seeking such employment.
12. There is, of course, no doubt that in a simple case far removed from the facts of this case, if a person applies for a vacancy and is rejected on grounds of race, there being no training implications in the employment he was seeking, then, as Mrs Millin concedes, his cause of action is section 4(1), even though he never attains the status of employee with the discriminator. However, she submits that the difference between that hypothetical situation and the present real situation is that KCH does not have the power to employ, which power resides exclusively in the Postgraduate Dean.
13. We are very mindful of the unique nature of the arrangements that exist in this part of Health Service employment. Before the Employment Tribunal the evidence disclosed that there can be cases (at least one was found) in which the Postgraduate Dean in fact foists an employee upon a reluctant employer. It may be significant that only one such example was found. It seems to us that on the facts as found, both overtly and reading between the lines, as one would expect, it is normal for a Postgraduate Dean at the very least to be influenced by and to give considerable weight to representations that emanate from within the training hospitals.
14. We have come to the conclusion that this unique form of arrangement ought not to be dismembered in the schematic way for which KCH contend. Regard must be had to the reality of the situation. We do not, of course, say that a Postgraduate Dean is no more than a cipher, doing the bidding of whatever Consultants and Managers may suggest to him, but we do infer from the facts found (and as a matter of common sense) that, generally speaking, if faced with strong representations against an applicant from within a particular institution, there would be no foisting and the Postgraduate Dean would not seek to place a person accordingly. There may be, and no doubt are, occasional exceptions but they would be just that, exceptions.
15. The case for the Appellant (and we make no comment about whether it is a good or a bad case, not having heard any evidence at all) is that he was the victim of racism at KCH and that that racism infected the representations that were made from within KCH to the Postgraduate Dean, and the Postgraduate Dean in the normal course of things responded positively to the representations not to place the Appellant at KCH.
16. In all those circumstances we have come to the conclusion that the Employment Tribunal reached a legally erroneous decision when it concluded that the Appellant was not entitled to pursue his claim against KCH under section 4. There is a second ground of appeal and it is necessary for us to address that as well.
17. The facts which we have described, if established, may find a home under section 13 of the 1976 Act, although it is pertinent to observe that they could only do so if the case under section 4 failed. That is the result of section 13(2). Section 13 is concerned with persons who provide vocational training and Mrs Millin frankly concedes that if the facts were established they might fit into section 13. The difficulty is that the Originating Application made no mention of that particular provision.
18. The first major interlocutory hearing in this case, when all three Respondents were represented, was held on 7 June 2001 and a credible attempt was made to define the issues as between the various parties. So far as KCH is concerned the issues were defined in this way:

"That on 1 February 2001 KCH failed to consider the Appellant for one of the three vacant locum posts, three training posts in Neurosurgery: an act of direct race discrimination, an act of victimisation, the protected act being the Applicant's complaint to the Postgraduate Dean in writing on 12 November 1999."

19. An amended IT1 was lodged on 6 July, an amended Notice of Appearance on 11 July. The first attempt at the preliminary hearing, which gave rise to the present appeal, was on 13 July when it will be recalled the matter was not concluded because of a need to adjourn for evidence. However, the Chairman of the Employment Tribunal on that occasion apparently raised with the parties the question of section 13. Mrs Millin was present on that occasion, although Mr Hartman was not. At that time Mr Hussain was represented by a trainee Solicitor. Mrs Millin tells us, and we accept, that after the Chairman initiated the discussion about section 13 Mr Hussain and the trainee Solicitor conferred but decided to, as she put it, "stick with section 4" and not to seek to amend so as to pursue a case under section 13.
20. When the matter came back in October with Mr Hartman now instructed, he raised the prospect of an amendment so as to embrace section 13. The two parties made their rival submissions. The ruling of the Employment Tribunal was as follows:

"We have decided that it is not appropriate for us to consider section 13 at this hearing. The Applicant having had legal advice and having been given the opportunity by a Chairman at the directions hearing to restate his case specifically mentioned 1 and 4 in his amended Originating Application declined the invitation to invoke section 13 before this Tribunal. He really cannot change his stance in litigation without limit. That limit has now passed and we consider this case under section 4."

21. If that refusal of leave to amend is to be successfully appealed, it must be on the basis that the Employment Tribunal erred in law and exercised its discretion to grant or refuse leave to amend unreasonably and in a way which no reasonable Tribunal would have done. Both parties have referred us to Selkent Bus Co Ltd v Moore [1996] IRLR 661. We accept that the central principle is, as set out in the headnote, namely:

"In deciding whether to exercise its discretion to grant leave for amendment of an originating application, a tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it."

22. The EAT in that case went on to deal with some of the relevant circumstances that regularly fall for consideration, although adding that it is impossible and undesirable to provide an exhaustive list of such circumstances. The ones upon which concentration was placed in that case were the nature of the amendment, the applicability of time limits and the timing and manner of the application.
23. We must consider all the circumstances of this case including, of course, those headings helpfully set out in the Selkent case. We do so with other things in mind as well, including the fact that historically Employment Tribunals and this Appeal Tribunal have not tended to take an over-technical view of pleadings in the context of cases such as this. When one considers the nature of the amendment sought in this case, it is right to bear in mind that the basic factual assertions sought to be advanced by the Appellant have never changed and have not been supplemented by reference to the proposed amendment. Indeed, it is implicit in one part of the submissions made on his behalf that, if nothing had ever been said about amendment, it would have been open to the Appellant to advance his case under section 13 at the full hearing of the case by reference to his IT1. We think there is something in that observation. However, history does not stand still and it is correct that initially, when invited to put his case on the section 13 basis, the Appellant assisted by a trainee Solicitor, declined to do so.
24. Much has been said about time limits in relation to the proposed amendment. As we have just observed, the basic factual matrix of the Appellant's case is not sought to be supplemented. The factual allegations which the Respondent would have to meet have not significantly changed. Reference is also made to the timing and manner of the application. Mrs Millin is entitled to emphasise that, within the procedural developments which were unfolding between October and June 2001, this application for leave to amend came at the eleventh hour. We have read with care what the Employment Tribunal said about all this. We observed that in paragraph 9 of the Decision, it is said:

"Alternatively we considered whether the Applicant may have an action against the Dean or the present Respondents under Section 13 of the Act. However the Applicant begun these proceedings specifically under Sections 1 and 4 and had legal advice and so it was not for the Tribunal on that occasion to frame his pleadings for him particularly as the time limit for the amendment had gone."

25. We have concluded that the Employment Tribunal on this occasion placed very great emphasis on that point about the passing of the time limit in circumstances where we consider it was inappropriate for them to do so. We say again that the basic allegations have remained unchanged and if nothing had been said by way of a contingent offer of amendment in June or July, it may well be that the Appellant could have pursued his section 13 case on the basis of his original allegations.
26. The allegations in this case are serious ones against the various parties, but probably most serious of all against the employees of KCH. Again, we repeat, we have formed no view whatsoever of the truth or untruth of those allegations or the strength or weakness of any inferences that any Tribunal is likely to draw from any facts likely to be found.
27. However, looking at the case in the round and reminding ourselves of the central point in Selkent Bus, namely, taking into account all the circumstances and balancing the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it, we have concluded that it was legally erroneous for the Employment Tribunal to refuse the amendment in the present case.
28. We take the view that they may well have been over-influenced by time limits and virtually uninfluenced by the facts that the basic allegations have remained unchanged throughout. We also have regard to the fact that this is litigation against a number of Respondents and there is some overlap and interplay between the allegations and how they effect the case against the various Respondents.
29. In all those circumstances we shall, to the extent necessary, allow the appeal, not only by permitting the Appellant to proceed by reference to section 4 but also by permitting an amendment specifically to plead section 13 by reference to the facts upon which he already relies. Quite where that leaves this litigation we are unsure. Today is Tuesday 27 November. We are told that there is a listing of the case for seven days, commencing next Monday, 3 December.
30. So much is in dispute in this case that, it is even in dispute as to whether KCH are parties whose case is to be considered at that hearing, Mrs Millin contending that that hearing was always intended to be against the other two Respondents, even if KCH were still in the field as Respondents. We are quite unable to resolve that issue. Mr Hartman, albeit coming to the case much later, submits by reference to an analysis of the Orders that were made that in fact next Monday is a listing of the case against all Respondents, or at least all Respondents whose position had not been terminated by prior interlocutory ruling. As we say, we are not in a position to resolve that particular dispute. We know not what logistical effect our judgment will have on the arrangements for next week or about anything else in connection with the management of that case. Much as we would like to help the parties on that subject, we feel unable to do so. It would, in those circumstances, be somewhat unwise it seems to us if KCH absented itself from those proceedings on Monday, where at least clarification of the position ought to be achieved.
31. Finally, we say this. It is now 6:45 pm. We owe one apology to the parties that they did not get on until about half past three this afternoon. There has been, it seems to us, an unfortunate mix-up in the administrative arrangements for the list in this court today. It is quite apparent from any informed perusal of it that the amount of litigation listed before us today was greatly excessive for the amount of time conventionally available. It has necessitated giving this judgment with a minimum of delay and with less time by way of preparation than one would have wished and it has necessitated everybody still being here at this time. We apologise for that and if we are sounding sorry for ourselves as well, so be it.