United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S MUNASINGHE (Of Counsel) Instructed by: Commission for Racial Equality Third Floor Lancaster House 67 Newhall Street Birmingham B3 1NA
For the Respondent	MR C FREEDMAN One of Her Majesty's Counsel Instructed by: Messrs Higgs & Sons Solicitors Inhedge House 31 Wolverhampton Street Dudley West Midlands DY1 1EY


 


JUDGE PETER CLARK

1. This is an appeal by Mr Issa, the Applicant before an Employment Tribunal sitting at Birmingham under the chairmanship of Mr J A Caborn over 25 days to hear his complaints of unlawful racial discrimination, victimisation and unfair dismissal brought against his former employer, Sandwell Healthcare NHS Trust (Sandwell), Mr Lingwood, its Chief Executive and Dr Bradby, its Medical Director. All complaints were dismissed by a decision with very full extended reasons promulgated on 12 June 2001.

Background

2. We take this summary of the relevant facts from the Employment Tribunal's findings.
3. The Appellant is a Consultant Orthopaedic Surgeon of Egyptian origin. He commenced his employment with Sandwell on 1 November 1993. At all relevant times he was one of a team of 4 Consultant Orthopaedic Surgeons at the hospital. .
4. The other members of the team were Mr Clothier, described as white caucasian; Mr Geeranavar (Indian) and Mr El Safty, like the Appellant, Egyptian
5. The material sequence of events began with the death of a patient, known as M, on 1 September 1997. M had been admitted to hospital for surgery in July 1977. Whilst in hospital he underwent a number of surgical procedures performed by the Appellant. After a period of leave the Appellant returned to work on 1 September. It was his case that at about 5 pm that day he gave certain instructions to a Senior House Officer concerning the care of M, but that those instructions were not followed. The Employment Tribunal did not accept that the Appellant gave such instructions. The patient died later that evening.
6. Following the death of M Dr Bradby, as Medical Director, requested Mr Ellis, the clinical director, to carry out an informal investigation to establish why M had died.
7. Before Mr Ellis could complete a report into M's death the Orthopaedic Department produced its own report signed by all 4 Orthopaedic Surgeons and dated 18 September 1997. The Employment Tribunal found that although signed by all 4 surgeons it was drafted largely by the Appellant as to content with assistance from Mr Clothier as to syntax and grammar. The Appellant's colleagues had signed the report without themselves checking the patient's records or otherwise satisfying themselves as to the content of the report. The Employment Tribunal found that the report was deficient in a number of respects. They found that it did no credit to the 4 signatories, 3 of whom had not enquired into the facts surrounding the death of M.
8. At a meeting held on the same day, attended by Dr Bradby, Mr Ellis and Mr Lingwood, together with Ms Down of Personnel, it was resolved that in light of that inadequate report by the Consultants a general audit of the Department should take place. It was the Appellant's case that that audit was targeted at him; the Employment Tribunal rejected that contention. It was an audit of the whole Department, including all 4 surgeons.
9. The audit was carried out by Mrs Jill Riddington. The outcome was that she found that the Appellant had a higher complication rate than that of his colleagues.
10. It was the Appellant's case that the audit was manipulated to show that he had a higher complication rate than his colleagues; that the audit was specifically targeted at him; that Mrs Riddington was a party to a conspiracy in the preparation of the report; that the Appellant undertook more complicated surgery than that of his colleagues. Each of these contentions was considered and rejected by the Employment Tribunal.
11. Having received the final audit report in December 1998 Sandwell decided to refer the report to an independent expert, Professor Harper of Leicester University. He recommended an independent review of the Appellant's practice.
12. Dr Bradby followed that advice and decided to suspend the Appellant pending completion of the review. His suspension commenced on 24 December 1998; the reason for the suspension was Sandwell's view that it would be desirable for the review to take place in the Appellant's absence.
13. Sandwell referred the matter to the Joint Consultants Committee, an independent body, which appointed 2 outside consultants, Mr Ackroyd and Mr Rooker, to carry out the review.
14. Those outside Assessors found that the Appellant's technical skills were acceptable but that certain aspects of his clinical practice were below standard. They recommended that, whilst unsuitable to carry out innovative and untested surgery, the Appellant ought to be permitted to return to work under supervision and licence. Their report was dated 2 August 1999.
15. Dr Bradby and Mr Lingwood decided to adopt the Assessors' report. They met with the Appellant on 18 August; they required his unconditional acceptance and agreement to the report's recommendations, reduced to tabular form, as a pre-condition to his returning to work. He was also required to undertake a 6 week period of practical retraining, which he subsequently satisfactorily completed. On 23 August the Appellant wrote to Dr Bradby. That letter began:

"I will start with the conclusion of my response:

I accept the recommendations and I will fully co-operate one hundred per cent in executing and implementing the recommendations."

16. On 12 October 1999 a meeting took place, during which the Appellant alluded to racism in the way in which he had been treated. Following that meeting Dr Bradby wrote to the Appellant on 15 October, indicating that the Appellant could return to work on 15 November, dependent upon his full acceptance of all the recommendations made in the Assessors' report. The Appellant confirmed his acceptance of that condition by letter dated 19 October.
17. The Appellant did return to work on 15 November. He then promptly instructed his secretary to access case notes, with a view to showing that the audit carried out by Mrs Riddington was incorrect.
18. On 16 November 1999 he presented the first of his 3 Originating Applications to the Employment Tribunal alleging race discrimination. Sandwell received a copy of that complaint on 19 November 1999. Having read that document Sandwell, through Mr Lingwood and Dr Bradby, was concerned to see the following comments by the Appellant:

"However, Part II of the recommendations were most unfair, unjust and not based on the proper assessment and, in my view, were racially motivated which I will be explaining later. These recommendations were changed even further without any obvious reason or proper assessment other than to destroy my career bit by bit. In the process they are damaging the patients interest and welfare.

I accepted the recommendations so I could go back to work to access the correct statistics and the proper figures to which I was previously denied access."

19. In these circumstances a meeting took place on 19 November at which the Appellant was asked again to give his assurance that he agreed to accept and comply with the Assessors' recommendations. He would not give the required assurance and consequently was again suspended.
20. On 25 November the Appellant wrote to Sandwell staying that he would accept and comply with the Assessors' recommendations and asked that his suspensions be again lifted. On the same day he presented his second complaint to the Employment Tribunal, alleging racial discrimination and victimisation.
21. The Appellant remained suspended and Sandwell's disciplinary process was invoked. An investigation carried out by Mr Gourevitch, who interviewed the Appellant twice during January 2000, led to the conclusion that a disciplinary hearing should be held to consider whether the Appellant had failed unconditionally to accept and comply with the recommendations of the Review.
22. Before that hearing took place the Appellant wrote separately to Mr Rooker, Mr Ackroyd, Dr Bradby, Mr Clothier and Mr El Shafty on 18 March 2000.
23. The letter to Mr Clothier reads as follows:

"Dear Mr Clothier

Further to various communications, interviews and exchanges of letters, I conclude that serious professional misconduct has been committed on your part. The rules of the General Medical Council have been broken (including dishonesty and intimidating of witnesses before interviews), medical ethics have not been followed, insufficient care has been taken in the compilation and presentation of reports, as well as by accepting these inaccurate reports and assessments. Also racism (both direct and indirect). I have evidence to support my claims, together with independent evidence which substantiates my position.

I ask you to consider the false allegations that have been committed against me, and to refute them, even at this late stage.

If I do not hear from you within seven days, I have no alternative but to take my case to the General Medical Council for professional misconduct, and will also pursue other measures including civil action. You must be aware that I will not cease in my efforts to clear my professional reputation.

Yours sincerely

Fauzy M Issa

CONSULTANT ORTHOPAEDIC SURGEON"

24. The letters to the other recipients were in identical terms, save that to Mr El Shafty, his Egyptian colleague, in which the reference to racism, both direct and indirect, was omitted.
25. A disciplinary hearing took place on 31 May 2000. Following that hearing Dr Low, who chaired the meeting, wrote to the Appellant a letter of summary dismissal dated 6 June. The reasons for dismissal were first his failure to accept unconditionally the review recommendations and secondly his conduct in sending the letters of 18 March to colleagues, leading to an irrevocable breakdown in trust and professional relationships between himself and his colleagues and Sandwell.
26. Following his dismissal the Appellant presented his third complaint to the Employment Tribunal, which he dated 4 July 2000, alleging unfair dismissal, racial discrimination and victimisation. He also pursued an internal appeal against his dismissal. Following a hearing on 15 December 2000 that appeal was rejected.

The Employment Tribunal decision

27. It is quite clear from the Employment Tribunal's reasons that they rejected the Appellant's case on every aspect with which they dealt. In particular they rejected his core contention that he had been the victim of a fraudulent conspiracy in the matter of Mrs Riddington's audit and its conclusions.
28. Having rejected that case in their substantive decision the Employment Tribunal then entertained an application on behalf of the Respondents for their costs. By a decision with reasons dated 10 December 2001 the Employment Tribunal concluded that the Appellant had acted vexatiously or otherwise unreasonably in the conduct of the proceedings, first in relation to 9 named respondents against whom he discontinued proceedings at the start of the substantive hearing on 22 January 2001 and secondly in relation to the 3 Respondents with whom we are concerned on the basis that he had pursued allegations of fraud, dishonesty and conspiracy which, the Employment Tribunal found, were without merit. As to the first group of Respondents, the Appellant was ordered to pay 50 per cent of their costs; as to the remaining 3 Respondents he was ordered to pay 60 per cent of their costs of the hearing, attributable, in the Employment Tribunal's view, to the allegations of fraud, dishonesty and conspiracy. There is no appeal against that costs order.
29. Turning to the 3 causes of action pursued by the Appellant, the Employment Tribunal concluded as follows:

(1) Direct race discrimination

The Appellant was not subjected to less favourable treatment than an actual or hypothetical comparator. The treatment afforded to the Appellant between 1 September 1997 and his dismissal would have been the same for any Consultant Orthopaedic Surgeon employed by Sandwell in the circumstances which arose, regardless of race. Further, the Employment Tribunal accepted Sandwell's explanation for their treatment of the Appellant.

(2) Victimisation

The Appellant was not re suspended on 19 November 1999 by reason that he had presented his first complaint to the Employment Tribunal, a 'protected act'. It was because that document made it clear that the Appellant was not accepting the recommendations of the Assessors, the pre-condition to his suspension being lifted.

(3) Unfair Dismissal

Sandwell had established a potentially fair reason for dismissal, namely conduct. There were no procedural irregularities. Dismissal for the breakdown in the employment and professional relationship caused by his threatening letters dated 18 March 2000 alone justified his dismissal, absent, the taint of racial discrimination by Sandwell, an allegation rejected by the Employment Tribunal.

It was a sanction well within the band of reasonable responses open to this employer. Foley v Post Office [2000] IRLR 827.

The Appeal

30. We have had the advantage of hearing very experienced Counsel, Mr Munasinghe and Mr Freedman QC, who appeared below. Each prepared detailed closing submissions for the benefit of the Employment Tribunal which are now before us. In these circumstances this is not a case in which there is any doubt as to how the rival contentions were put below. That is of assistance to us in considering what we regard as potentially Mr Munasinghe's best point in the appeal.
31. He raises 4 separate grounds of appeal. It is convenient to deal with them in the following order:

(1) Mrs Riddington's Audit

Mr Munasinghe challenges the Employment Tribunal's express finding that the audit was not specifically targeted at the Appellant and was not manipulated to show that he had a higher complication rate than that of his colleagues in the orthopaedic department.

It is submitted that in arriving at those conclusions, rejecting the Appellant's case, the Employment Tribunal failed to have regard to the totality of the evidence and in particular evidence given by the Appellant. Various aspects of the evidence are referred to.

32. We shall proceed no further with this complaint, mindful of the salutary reminder of the limits of our jurisdiction emerging from the judgments in the Court of Appeal in Yeboah v Crofton [2002] EWCA Civ 794, see particularly per Mummery LJ, paragraphs 94-95 and Brooke LJ, paragraph 174.
33. It seems to us that here Mr Munasinghe is inviting us to embark on a factual investigation which Parliament has decided must be left to the Employment Tribunal. It is enough to say that the Employment Tribunal's findings are neither unsupported by evidence nor contrary to the uncontradicted evidence before the Employment Tribunal. On the contrary, they represent solidly based findings of fact given, as we have observed, that on contentious issues of primary fact the Employment Tribunal preferred the evidence given on behalf of the Respondents to that of the Appellant.

Accordingly we reject this head of complaint.

(2) Failure to adjudicate upon a live allegation by the Appellant of less favourable treatment than that afforded to a named comparator from a different racial group.

34. This we have identified as potentially Mr Munasinghe's "best point".
35. We think that Mr Freedman was probably correct in submitting that this particular allegation made by the Appellant grew during the course of the hearing before the Employment Tribunal, a not unusual feature of lengthy discrimination cases.
36. The starting point is the Appellant's first complaint to the Employment Tribunal in which, in the course of a 16 page statement of his case, he said this:

"Why I believe there is a racial issue here

1. One of my colleagues, a consultant orthopaedic surgeon, Mr John Clothier, had two deaths on the operating table during revision hip surgery. This was due to bleeding as a direct result from surgery when the surgeon breached the pelvic wall. None of these cases have even been even (sic) investigated. Clearly, as a matter of fairness and equal treatment something as unusual as that should be investigated for the sake of patient welfare."

37. There was evidence before the Employment Tribunal, not referred to in their written reasons, about those 2 deaths. It is summarized at paragraph 119 of Mr Freedman's closing submissions below. Both deaths were reported by Mr Clothier to Dr Bradby and to the Coroner and were reviewed by Post Mortems. In the first case, that of Mrs C, a lady aged 86 years, the patient died during a hip operation performed by Mr Clothier on 18 May 1995. The Post Mortem report, which was in evidence below, observes:

"There are no complaints whatsover regarding treatment of Mrs C at Sandwell District General Hospital."

38. The second occasion, on 8 March 1999, again concerned a hip operation performed by Mr Clothier on a patient, Mrs L, aged 72 years.
39. He gave a full account of the circumstances to Dr Bradby in a letter which was before the Employment Tribunal, as was a letter from the Coroner to Sandwell's solicitors dated 26 January 2001, enclosing a copy of the Post Mortem examination report. The Coroner observed in that letter that his enquiries revealed that the matters that led to the death were a normal post operative risk, especially in an elderly person.
40. We are not a fact-finding tribunal. However, it is clear to us from that material that the Employment Tribunal was made aware that in both instances the deaths were the subject of external investigation by way of a Coroner's inquest as a result of which nothing ontoward was found.
41. Next it is important to see how this part of the Appellant's case was put on his behalf by Mr Munasinghe in his written closing submissions below. The relevant passage is at pages 23-24 of the Employment Appeal Tribunal's bundle. It is headed 'Complaints for determination' and begins:

a) Comparator evidence

42. Here, the comparison is made between what is said to be the difference in the way in which Sandwell treated the death of patient M with that of the patients Mrs C and Mrs L. There was a difference in race between the Appellant and Mr Clothier.
43. The treatment of the Appellant complained of was said to be that in respect of M's death Sandwell pre-judged the circumstances in which it occurred to blame the Appellant and used it as a pretext to audit the Orthopaedic Department but in fact targeting the Appellant.
44. In response, Mr Freedman submitted in closing below that the comparison sought to be made was misconceived. The circumstances of the deaths of the Appellant's patient and those of Mr Clothier were not the same (Race Relations Act s3(4)). In both cases dealt with by Mr Clothier an external investigation took place, a Coroners' inquest. In the case of patient M an unsolicited audit by the Orthopaedic team took place; their report was inadequate; that led to Mrs Riddington's audit which was directed not solely at the Appellant, but at all consultants in the Orthopaedic Department.
45. It is right to say that this issue is not expressly dealt with by the Employment Tribunal in their reasons, leading to every possible finding of fact and the Employment Tribunal's conclusion on this specific complaint of unfavourable treatment.
46. In these circumstances Mr Munasinghe submits that in so failing to determine this issue the Employment Tribunal fell into error.
47. We bear in mind the general guidance to be found in the judgment of the Court of Appeal delivered by Sedley LJ in Anya v University of Oxford [2001] IRLR 377. The Court found there that the Employment Tribunal had fallen into error by failing to make all necessary findings of primary fact on the specific matters relied upon by Dr Anya in inviting the Employment Tribunal to draw an inference of unlawful discrimination in circumstances where there was a difference in treatment (Dr Anya had not been selected for the vacant post; the other candidate was selected) and a difference in race between Dr Anya and the successful candidate.
48. Do the circumstances of the present case lead to the same result? In our judgment they do not, for the following reasons:

(1) it was an essential part of the Appellant's case on less favourable treatment that the death of his patient M was used by the Respondents as a pretext to target the Appellant in the Orthopaedic Department's audit; the Employment Tribunal expressly rejected that contention as a matter of fact. Accordingly he failed to make out the treatment which he complained of as having been afforded to him. On this ground alone the specific complaint failed.

(2) It was his complaint that neither of Mr Clothier's deaths were even investigated (see his first IT1). That was simply incorrect. There was an external public investigation by way of a Coroner's Inquest in each case. Thus there was no difference in treatment.

(3) Given the material findings of fact by the Employment Tribunal to which we have referred it is implicit in their reasons that they rejected this specific complaint of less favourable treatment on racial grounds.

(4) Given those findings their conclusion that the complaint of direct racial discrimination failed was 'plainly and unarguably right'. Dobie v Burns International [1984] ICR 812.

(5) Even had we concluded that the Employment Tribunal had fallen into error such that this specific complaint ought to be remitted for re hearing by the same Employment Tribunal, the result would, on their earlier findings of fact, inevitably be the same.

For all and each of these reasons we reject this ground of appeal.

(3) Victimisation

49. Mr Munasinghe submits that the Employment Tribunal were wrong to reject the claim of victimisation based on the fact that immediately following receipt of the first complaint to the Employment Tribunal the Respondents re-suspended the Appellant.
50. In our judgment this Employment Tribunal may be congratulated on anticipating the guidance subsequently provided by the House of Lords in Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830. Mr Freedman has taken us to certain passages in the speeches in that case. In particular, we note the distinction drawn between less favourable treatment afforded by reason that the complainant had brought proceedings under the Race Relations Act and that afforded simply by reason of the existence of the proceedings. See Lord Mackay, paragraph 44; Lord Hoffmann, paragraphs 54-56; Lord Nicholls, paragraph 29; Lord Scott, paragraph 77.
51. Applying that approach it is true that if the proceedings had not been brought by the Appellant he would not have been re suspended on 19 November 1999. However, it was not the fact of his bringing the proceedings which formed the Respondents' reason for re suspending him (an act of victimisation protected by the Race Relations Act) but the Appellant's comments within that complaint which indicated to the Respondents that, contrary to his earlier assurance, itself a pre-condition for his return to work, he did not in fact accept the Assessors' recommendations. It was that fact which led to and was the reason for his re suspension, so the Employment Tribunal found as a matter of fact. They did not err in their application of s2 of the Race Relations Act in so finding.

(4) Unfair Dismissal

52. Mr Munasinghe finally challenges the Employment Tribunal's conclusion that dismissal for the reasons found by the Employment Tribunal to constitute Sandwell's reason for dismissal fell within the range of reasonable responses open to this employer.
53. He accepts that in order to succeed on this point he must persuade us that no reasonable tribunal, properly directing itself, could conclude that dismissal in these circumstances fell within the range of reasonable responses open to the employer. Perversity.
54. We find that proposition wholly untenable. At paragraph 59 of their reasons the Employment Tribunal characterized the Appellant's letters of 18 March 2000 as containing serious allegations, which he later failed to particularize despite being given every opportunity to do so, as threats to the recipients that he would report them to the GMC if they did not succumb to his demands. The effect of those letters, as his Counsel accepted below, was to destroy the necessary professional and employment relationships. Dismissal must, in these circumstances, fall within the range of reasonable responses, absent the taint of racial discrimination which the Employment Tribunal rejected. At the very least, it cannot be said that for this Employment Tribunal to find as it did was a perverse finding.

Conclusion

55. It follows, having considered the way in which this appeal is put, that we must dismiss it.
56. We would add just this. During the course of his submissions before us Mr Munasinghe referred to the Appellant having to take these proceedings to clear his name. That, we think, is precisely why he did so. On the facts as found by the Employment Tribunal the treatment which he received had nothing to do with his race, or his complaint of racial discrimination. He was finally dismissed for behaviour which was wholly inappropriate in a professional man.