United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M DULOVIC (Of Counsel) Instructed by: Mr J Phipps Oxfordshire Employment Rights Service Barton Neighbourhood Centre Underhill Circus Headingham Oxford OX3 9LS


 


MR COMMISSIONER HOWELL QC

1. In this appeal, which is before us today for a preliminary hearing, Mrs Anya Troitskaya-Smith seeks to have set aside as erroneous in law the decision of the Reading Employment Tribunal contained in Extended Reasons, before us at pages 5-18 of the appeal file, on three complaints of racial discrimination, victimisation and unfair dismissal made by Mrs Troitskaya-Smith against her former employers, the Oxford Radcliffe Hospitals NHS Trust, and also the responsible managers in the Trust who had been involved in dealing with her.
2. The decision of the Tribunal, sitting at Reading on three days in February and two days in April 2001, was that all her complaints of racial discrimination and victimisation failed and she had not been unfairly dismissed from the Trust's employment. The Extended Reasons, sent to the parties on 6^th June 2001, went into considerable detail into the numerous allegations of fact and of discriminatory and improper conduct made by Mrs Troitskaya-Smith in substantial annexures to her three Originating Applications. Those annexures went into considerable detail and a large number of paragraphs, each one of them recounting incidents and making allegations about the history of Mrs Troitskaya-Smith's employment and differences with her employers and with other people in the hospital where she worked as a midwife.
3. Mr Dulovic, who has appeared on her behalf on this preliminary hearing, has argued by reference to the detailed paragraphs in the Notice of Appeal dated 13^th July 2001 (not drafted by him, but conveniently used for the purposes of this hearing to identify the points at issue) that there were numerous defects in the Tribunal's statement of Extended Reasons. In particular they failed to make adequate findings and state adequate reasons for the conclusions reached in relation to particular identified grounds of complaint which had been put by the Appellant in one or more of her Originating Applications, but which, it is Mr Dulovic's contention, the Tribunal failed to pick up and express findings and conclusions on in their decision, lengthy though it was.
4. We have been satisfied that there are grounds for us to direct a full hearing inter partes before the Employment Appeal Tribunal on two only of the specific matters he identified in his helpful argument to us. Those are paragraphs 6(a)(iii) and 6(a)(iv) of the Notice of Appeal, which are contentions that the Tribunal erred in failing to record specific findings as to two of the Appellant's complaints both set out in paragraphs annexed to the second Originating Application, those being paragraph 22, at page 38 of the appeal file before us, and paragraph 31 on page 39.
5. Those two allegations amounted to allegations of discrimination on racial grounds because Mrs Troitskaya-Smith had not been allowed to carry out the administration of intravenous drugs and had not been assessed so as to enable her to perform that procedure when, it was alleged by her, other midwives had been allowed to do this without having the necessary assessment. That is in paragraph 22 of her Originating Application.
6. The second allegation is in paragraph 31, relating to the fact that she had been sent home from work on 27^th December 1999 because of an allegation made by a patient about her conduct. Her contention was that sending her home following this complaint was an act of victimisation and racial discrimination because, in her contention, another midwife, who was English, had also been the subject of a complaint about serious professional misconduct and yet had not been suspended from duty.
7. Those two allegations, we accept as Mr Dulovic says, do not appear, or at any rate it is arguable that those were not the subject of sufficiently specific findings by the Tribunal, in its statement of Extended Reasons.
8. It is not necessary for us to deal in detail with all the other specific grounds put forward in the Notice of Appeal and in Mr Dulovic's argument as additional grounds of appeal, though his argument did deal with them fully and we have considered them all. The common thread running through all the suggestions of further errors in the decision of the Tribunal was that there had been insufficient findings and conclusions on material issues of fact and law, which Mr Dulovic and the Notice of Appeal sought to identify. Our attention was drawn to the authority of the Court of Appeal in Anya v University of Oxford, which makes clear that it is the duty of an Employment Tribunal to make findings on all material issues before it for decision and that, if the Tribunal fails to do this, the decision may be liable to be set aside as erroneous in law.
9. On the other hand we bear in mind that the statement of findings and reasons of an experienced Employment Tribunal is not to be subjected to an over-refined process of legal or linguistic analysis by this court and that if a Tribunal's reasoning, and the basis upon which they decided the case, is clear on a fair reading of their decision as a whole, it is not for the Appeal Tribunal to pick over the precise way in which the decision is stated in over-critical detail.
10. Here this Tribunal was, as will be apparent from what we have already said, faced with a multiplicity of different allegations which, since the Originating Application and the complaints had been drafted by Mrs Troitskaya-Smith herself, were not all of them made in as specific terms as might have been the case if a lawyer had been involved in their preparation. For example one of the grounds of complaint in paragraphs 12 and 13 of her second Originating Application on page 37 simply alleged in general terms that since an occasion when she had been moved between two wards in the hospital she had constantly felt intimidated and picked upon by a Mrs Knowles, who was in a superior position in the hospital to her, and that her own feelings and objections stating how she, Mrs Troitskaya-Smith, felt intimidated by Mrs Knowles had remained a subject of no concern to the employers; but without any more specific allegations of factual incidents to particularise exactly what it was she was complaining of.
11. The Tribunal's conclusions on the major and minor incidents which led to the disputes between the parties are set out over a total of some four pages of their Extended Reasons following an explanation and a statement of facts dealing in great detail with the history and nature of the various complaints made by Mrs Troitskaya-Smith, the total reasons extending to some 14 pages of closely typed statement by the Tribunal.
12. We have concluded that, apart from the two instances we have identified where we are going to direct a full hearing of this appeal, those findings and reasons by the Tribunal, as expressed by them in their statement, are adequately and properly expressed, and there is no arguable ground for saying that they erred in law by not dealing in even more detail with each actual or potential ground of complaint on the facts put forward or alleged by Mrs Troitskaya-Smith.
13. In particular we are satisfied of this having regard to the facts of the cases; described by the Tribunal in the early part of their decision, and the conclusions they expressed. In particular in paragraph 30 in relation to the complaint about Mrs Troitskaya-Smith being moved from one ward in the hospital to another, they record that

"We find nothing sinister or racially motivated in the movement of the Applicant from Level 7 to Level 6 and indeed we find it was her conduct that was the catalyst, namely the drugs injection, the drug cupboard incident and concerns about her practice generally"

14. In relation to the other alleged incidents, they said in paragraph 33 that

"We have looked for evidence of any discrimination against the Applicant but find that the actions of management of which the Applicant complains were based solely on clinical issues relating to the Applicant's performance and conduct. We believe that such action would have been meted out to any midwife whatever her race or nationality"

And in paragraph 34, they recorded that they found no evidence of discrimination or victimisation against the Applicant.

15. Reading those passages together and reading the Tribunal's decision as a whole, we do not think it is arguable that the Tribunal failed to give an adequate and clear explanation of their findings on the material facts and their reasons, such as to enable a reasonable person to understand why those complaints of racial discrimination and victimisation were not established to the satisfaction of the Tribunal.
16. That leaves a further complaint made in paragraph 6(d) in the Notice of Appeal in relation to the Tribunal's reasons for rejecting the complaint of unfair dismissal following the incident described in paragraph 11, of the Extended Reasons, when a post-caesarean patient had apparently been caused distress by Mrs Troitskaya-Smith telling her in peremptory terms to clear up her own room.
17. The Tribunal's explanation in paragraphs 37 and 38 of their Extended Reasons included the following passages

"We found the Respondent's investigation into the matter to be reasonable. All relevant staff in relation to the incident were interviewed and their version obtained. The Respondent did not just rely on the version of events by the patient and her partner because they had corroboration of part of the incident witnessed by Debbie Rowles the Ward Manager. What she saw was consistent with the matters complained of. We are clear that the Respondent had a reasonable belief held on reasonable grounds that the Applicant's conduct to that patient had been unacceptable. Indeed, earlier that day the Respondents had evidence that the Applicant had upset other patients"

In paragraph 38 they say

"We have to say that the decision to dismiss taken by Mrs Hart was wholly within the range of reasonable responses a reasonable employer might have adopted in the circumstances".

18. In our judgment that passage demonstrates that the Tribunal found that the reason for Mrs Troitskaya-Smith's dismissal was her unacceptable conduct towards a patient, and it is equally clear that the Tribunal found that such dismissal was within the range of reasonable responses for a reasonable employer in those circumstances. Those findings, in our judgment, were justified by the evidence before the Tribunal as recorded by it (on any view of the precise details of that evidence) and are sufficiently clearly explained in the Tribunal's statement of reasons.
19. Accordingly we dismiss all other grounds in the Notice of Appeal apart from those in paragraphs 6(a)(iii) and 6(a)(iv) on which we have decided to direct that this case should go forward for a full hearing at the Employment Appeal Tribunal. Time estimate for the hearing is half a day, listing category C. No Notes of Evidence needed. Skeleton arguments on those issues to be exchanged between the parties and lodged with the Employment Appeal Tribunal office no later than fourteen days before the date to be fixed for the full hearing. On present information we see no apparent need for substantial reference to the documentary evidence before the Tribunal for the purposes of the limited hearing we have now directed.