United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR JOHN HENDY (One of Her Majesty's Counsel) Instructed by: Messrs Radcliffes LeBrasseur Solicitors 5 Great College Street Westminster London SW1P 3SJ
For the Respondent	MR MUGNI ISLAM-CHOUDHURY (of Counsel) Instructed by: Messrs Bevan Ashford Solicitors 35 Colston Avenue Bristol BS1 4TT

SUMMARY

Practice and Procedure

Application for stay of ET proceedings pending GMC professional misconduct hearing refused. No error of law; if so; stay appropriate.


 


HIS HONOUR JUDGE PETER CLARK

1. This case is presently proceeding before the Southampton Employment Tribunal. The parties are Dr Parums, Applicant, and West Dorset General Hospitals NHS Trust, Respondent. I shall so describe the parties to this appeal, which is brought by the Applicant against an interlocutory order made by the Regional Chairman, Mr R Peters, following a telephone directions hearing held on 27 January 2004, refusing her application for a stay of these proceedings pending the outcome of disciplinary proceedings brought against her before the General Medical Council ("GMC").

Background

2. The Applicant was employed by the Respondent as a Consultant Histopathologist from 1 October 2001 until her resignation with effect from 15 September 2003. Following her resignation she presented an Originating Application to the Tribunal on 29 October 2003 complaining of constructive unfair dismissal, being subjected to a detriment for making protected disclosures and unlawful sex discrimination against the Respondent. At the heart of events leading up to her resignation was an allegation that in June 2002 she tampered with a sample of material taken from a patient introducing that taken from another patient in order to conceal an earlier misdiagnosis which caused or contributed to a patient undergoing a mastectomy. I need not look in any further detail into that allegation; if true, it represented an act of dishonesty wholly inconsistent with her medical standing. The Applicant firmly denies the allegation.
3. Based on that allegation the Respondent did two things. They commenced internal disciplinary proceedings against the Applicant and on 29 September 2003, two weeks after her resignation, reported the matter to the GMC.
4. At the time of her resignation the internal disciplinary proceedings had followed this course. She had been suspended on 27 January 2003. On 22 May 2003 she attended an investigatory meeting, accompanied by her solicitor. The disciplinary charge against her, based on her alleged interference with the specimen to justify her earlier misdiagnosis, was formulated in a letter from the Respondent dated 11 August 2003. Meanwhile, the Applicant's solicitors had been pursuing a request for disclosure of information. Having denied the charge she then resigned by letter of 15 September citing as her reason her lack of confidence in the Respondent's ability to conduct a fair investigation.
5. The position so far as the GMC is concerned was that on 6 January 2004 its Assistant Registrar wrote to the Applicant informing her that the Respondent's complaint, set out in the letter, would be referred to the Professional Conduct Committee ("PCC") of the Council.
6. Having received that notification solicitors acting for the Applicant wrote to the Employment Tribunal on 12 January seeking an adjournment of the telephone directions hearing fixed for 27 January and/or a stay of these proceedings pending the outcome of the GMC proceedings which, if determined in favour of the Respondent's complaint, might amount to serious professional misconduct. It was suggested that at any rate the directions hearing be adjourned until after the Preliminary Proceedings Committee ("PPC") of the GMC hearing, likely to take place shortly after 13 February 2004.
7. On 13 January the Respondent's solicitors responded to that application. They opposed it. In their view the GMC proceedings were "entirely irrelevant" to the question as to whether or not the Applicant was constructively dismissed.
8. On this basis the matter came before Mr Peters at the telephone directions hearing held on 27 January. Having heard the solicitors for the parties the Chairman gave a number of directions then reduced to writing. In particular he refused the stay application. That order is the subject of this appeal commenced by Notice of Appeal dated 8 March. He identified the issues, set out at Schedule 1 to the order. He made an order for disclosure and inspection and timetabled various interim steps to be taken, leading to a 5-day substantive hearing to take place between 14 and 18 June 2004. Although those directions were detailed, he gave no written reasons for refusing the stay application.
9. Whilst the first question for me in this appeal is whether or not the Chairman erred in law in refusing the stay sought it is material to mention two events which post-date that order made in January. The first is that the PPC finally met on 31 March and decided to refer the Respondent's complaint to the PCC for a full hearing. No date has yet been fixed for that hearing but it is unlikely to take place before the autumn or winter or 2004 and maybe next year. The second is that following the Applicant's solicitor's application for specific disclosure a further directions hearing was held before a Chairman, Mr J Simpson, on 25 May 2004. The upshot was that the substantive hearing fixed for June was vacated and re-fixed for 5 days commencing 20 September 2004. Further directions were given for expert examination and report and alterations made to the timetable originally laid down in January.

The Issues

10. Before turning to the issues raised in this appeal it is first necessary to summarise the material issues as set out in Schedule 1 to Mr Peters' order in the substantive proceedings.

Unfair Dismissal

(1) Was the Applicant constructively dismissed? The Applicant's case is set out at paragraphs 48-49 of the particulars attached to the Originating Application. The Respondent takes issue with the factual basis of those claims. Thus the question for the Tribunal is first, what is the factual position and secondly, whether on the basis of the facts as found, the Respondent was in fundamental or repudiatory breach of contract entitling the Applicant to treat herself as discharged and whether she left promptly in response to that breach.

(2) Did she make a protected disclosure or disclosures? This is disputed by the Respondent.

(3) If so, and if she was dismissed under (1), was the reason or principal reason for dismissal that she had made a protected disclosure?

(4) If not, was the dismissal for a potentially fair reason, either conduct or capability, and if so, was it fair or unfair under section 98 (4) of the Employment Rights Act 1996?

(5) If she made a protected disclosure, did she suffer detriment by reason of having made that disclosure?

(6) As to the complaint of unlawful sex discrimination, did she suffer less favourable treatment in comparison with a hypothetical comparator.

11. What is absent from the list of issues is any reference to remedy. In particular, if her complaint of unfair dismissal succeeds, it will be relevant to consider this alternative plea advanced by the Respondent at paragraph 53 of their grounds of resistance:

"Alternatively, if it is held that the applicant was constructively and unfairly dismissed, the respondent will contend that she has suffered no recoverable loss, alternatively that it is just and equitable to make no award of compensation, on the grounds that, had the Disciplinary Procedure been completed, the applicant would have been dismissed on the grounds of the alleged serious misconduct and such dismissal would have been fair and/or that the applicant was guilty of the said serious professional misconduct."

The Appeal

12. It is now well-settled law, as Mr John Hendy QC for the Applicant accepts, that appeals against Tribunal interlocutory orders can only succeed where an error of law is made out. In short, the Wednesbury test, set out by Arnold J in Bastick v Lane [1979] ICR 778, 782, approved by the Court of Appeal in Carter v Credit Change Ltd [1979] IRLR 361, holds sway. Did the Chairman in exercising his wide discretion, fail to take into account a relevant factor, take into account irrelevant factors or otherwise reach a legally perverse conclusion?
13. It is a feature of the Chairman's directions order, as I earlier observed, that he gave no reasons for refusing the stay application. The Employment Tribunal Rules of Procedure, as presently constituted, do not require reasons, whether summary or extended, to be given for interlocutory orders. Nevertheless, Mr Hendy has referred me to an extract from Harvey (T972) for the proposition that the Tribunal's duty to provide reasons applies as much to interlocutory as to final decisions. The cases of Roberts v Skelmersdale College [2003] ICR 1127, para 13 and IRS Ltd v Catterall [1993] ICR 1, are cited in support of that proposition.
14. I have been provided with copies of those decisions by Mr Islam-Choudhury and I have read the material observations, respectively made by Mummery LJ and by Knox J at page 5C-D of Catterall. I respectfully agree with those observations and had understood that it was now the practice for Chairmen to give reasons, albeit brief, for making contested interlocutory orders, although not strictly required to do so by the Employment Tribunal Rules of Procedure. In the absence of any reasons it is open to the EAT to conclude that the Chairman has failed to take into account relevant factors, thus giving rise to a potential error of law allowing this Tribunal to interfere.
15. Some light is thrown on the Chairman's reasoning process by the respective attendance notes compiled by the solicitors representing the parties at the telephone directions hearing on 27 January. Those notes are not agreed, but looking at the slightly fuller note taken by Ms Sapata, appearing on behalf of the Respondent, Ms Caine on behalf of the Applicant advanced three reasons for a stay of proceedings:

(i) the nature of the internal disciplinary charge and that before the GMC is similar;

(ii) the delay would not be too long; a final hearing date before the GMC could be expected by September; further there was a question of inequality of treatment; the GMC were looking at both the Applicant and Dr Jaber, a colleague in her department;

(iii) if the GMC find against the Applicant, applying the higher criminal burden of proof, she would withdraw her Tribunal claim. Ms Caine added that the Applicant would be prejudiced if she had to face cross-examination in the Tribunal with the GMC professional misconduct charge hanging over her.

16. For the Respondent, Ms Sapata argued that the similarity of the charges had no bearing on the different issues in the Tribunal and GMC proceedings. Questions of sex discrimination and constructive dismissal based on repudiatory breach of contract were quite different from the issue in the GMC proceedings, was the Applicant guilty of the professional misconduct alleged.
17. From that note it appears the Chairman expressed his view that the issues in the two sets of proceedings were sufficiently distinct to allow the Tribunal matter to continue. From the note prepared by Ms Caine it seems that the Chairman was also concerned with delay observing that the case had taken long enough to get this far and he would not delay it further.
18. From these accounts I infer that two matters were uppermost in the Chairman's mind. The first was a lack of overlap between the Tribunal liability issues and the GMC issue of professional misconduct (I would add that no question arises here of issue estoppel, as where there are High Court and Tribunal proceedings running in tandem) and the desirability of an expeditious disposal of the Tribunal proceedings (see Regulation 10 (2) (d) of the Employment Tribunal Procedure Regulations 2001).
19. Before Mr Hendy developed his appeal, Mr Islam-Choudhury took a preliminary point; that in the absence of any application by the Applicant for Extended Reasons for the Chairman's refusal to order a stay, and no such reasons having been given, the appeal was improperly constituted under Rule 3 (1) (a) of the EAT Rules. I had no jurisdiction to consider it.
20. Following argument I decided to exercise my discretion in favour of allowing the appeal to proceed without reasons under Rule 39 (1). There is, as I have observed, no obligation on a Chairman under the Employment Tribunal Rules (see Rule 12) to provide Extended Reasons other than for a decision, and this was an interlocutory order not falling within the Regulation 2 definition of a decision.
21. On the other side, Mr Hendy raised the possibility of an application to amend the grounds of appeal to raise a point that the Chairman erred in failing to give reasons. In the event he did not pursue that application.
22. Thus I find myself in the position that if I can discern the Chairman's reasoning I shall consider that reasoning. If not and if the Wednesbury test is fulfilled, I am invited to substitute my own view under section 35 of the Employment Tribunals Act 1996 rather than to allow the appeal and remit it to a different Chairman for reconsideration.
23. Even if I were in the position of exercising my own discretion to determine the stay question, which puts Mr Hendy's case at its highest, I would not do so on the basis of the issues identified in Schedule 1 to Mr Peters' order. Those issues relate to liability only and not the issue raised in paragraph 53 of the Respondent's grounds for resistance (the Polkey point), taking into account the factors relied on by Mr Hendy. They are:

(a) that there is a substantial overlap of factual issues between the Tribunal and GMC proceedings. I accept that it is critical to the GMC proceedings whether or not the Applicant was in fact guilty of the misconduct alleged, a question to be decided on the basis of the criminal standard of proof. That is not one of the issues at the Tribunal liability hearing. Not even the question as to whether, if there was a dismissal, it was fair by reason of conduct ask the same question that arises in the GMC proceedings. It is relevant to the Polkey point, but that is not included in the issues for hearing by the Tribunal, now in September. It will be for that Tribunal, if it determines the question of unfair dismissal in the Applicant's favour, to decide whether or not to await the outcome of the GMC proceedings before determining the Polkey point and any other matters of remedy outstanding;

(b) the nature of the enquiry before the GMC will be one of the factors to be taken into account by the Tribunal when deciding the question as to whether to stay the Polkey hearing;

(c) there is no issue estoppel between the Tribunal and GMC findings (cf. First Castle Electronics Ltd v West [1989] ICR 72; Warnock v Scarborough Football Club [1989] ICR 489, to which Mr Hendy referred me). Thus the different standards of proof, that in the GMC proceedings and in the Tribunal proceedings, are not material to the resolution of the Tribunal liability issues. They may be to the Polkey question;

(d) if there is a finding of professional misconduct by the GMC that may go to the Polkey question. It does not, it seems to me, determine finally all questions of liability;

(e) the fact, if it be the case, that the GMC proceedings are of greater concern to the Applicant than those in the Tribunal, is of marginal significance when balancing the interests of both parties to these proceedings;

(f) true it is that the Applicant was obliged to commence Tribunal proceedings within 3 months. That limitation period is designed to provide for a speedy resolution of such proceedings. However, her preference to deal with the GMC proceedings first is again a matter to be balanced against the Respondent's desire to get on with the Tribunal case and the general interests of justice to proceed expeditiously with such cases;

(g) finally, prejudice to the Respondent. Whilst the GMC proceedings against the Applicant may appear more serious, the Respondent does not wish to have these proceedings hanging over it. Justice delayed necessarily prejudices any party wishing to have the matter resolved and I do not accept that an early hearing will prejudice the Applicant in these Tribunal proceedings.

24. Thus, having considered the factors advanced by Mr Hendy I am not persuaded that they outweigh the Respondent's desire to proceed and the interests of justice requiring a timely disposal of the Tribunal proceedings.
25. That would be my view had I found an error of law. But I do not. Whilst the Chairman has not provided reasons I am satisfied that he had in mind all the matters argued before him, both in correspondence and during the telephone directions hearing. He took them into account; there is no indication that he took into account irrelevant factors. He reached, in my judgment, a permissible conclusion which cannot be regarded as perverse in the legal sense.
26. In these circumstances I shall dismiss this appeal.