United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Ms K MONAGHAN (of Counsel) Bar Pro Bono Unit
For the Respondent	Ms D ROMNEY (of Counsel) Instructed by: Messrs Beachcroft LLP Solicitors 100 Fetter Lane London EC4A 1BN


 


SUMMARY

Race Discrimination – Other losses

Victimisation Discrimination

Victimisation – remedies hearing – inconsistent findings of fact in critical paragraph of Tribunal's decision – cross-appeal allowed and appeal dismissed.

THE HONOURABLE MR JUSTICE BEAN

1. This is an appeal against the Remedies Decision in a victimisation case. The history is quite complex.

Introduction

2. On 15 July 2002 the Claimant applied for a place on the Respondent Deanery's General Practitioner Vocation Training Scheme to start in February 2003. He was rejected. In July 2003, he issued a claim for race and sex discrimination. That was ultimately dismissed at a hearing in October and November 2004. There was an appeal to the Employment Appeal Tribunal which was successful to the extent that the claim was remitted in part but it ultimately failed at the remitted hearing in October 2005.
3. Going back to 11 February 2004, the Claimant applied for appointment to a GP Registrar post with the Respondent. Later that month, the Respondent's recruitment manager sent an email to colleagues advising them to "keep a close eye out" for the form of Dr Tariquez-Zaman. A member of the Respondent's staff, Dr Lintz, responded with an unfavourable reference to the Claimant and his discrimination claim.
4. The Claimant attended for interview on 23 April 2004 and came ninth out of ten applicants. He was unsuccessful and his application was rated as poor. The panel, who did not include Dr Lintz, expressed the view that he required an extended period of training and an experienced trainer and they would not be keen on doing the training themselves if it was down to them.
5. On 7 May 2004, the Claimant was informed by the London Deanery that no post was available with them but he could apply to the National Clearing System. That system invites applicants to express an order of preference for Deaneries other than what is generally referred to as "the host Deanery" (the one that has conducted the interview in the first place but not appointed the candidate). The Claimant gave the Eastern Deanery as his first preference and the North Western as his second and he also expressed willingness to be appointed to a number of other Deaneries including the one covering Kent, Sussex and Surrey.
6. On 15 June 2004, the manager of the National Recruitment Office, Ms Gai Evans, wrote to say that his training requirements could not be matched with any vacancies in the National Clearing System.
7. On 6 August 2004, he issued the claim against the London Deanery for victimisation which is the subject of the present appeal. The liability hearing took place over five days in April and May 2006. On 18 July 2006, the Claimant was successful. The Tribunal found that he had been victimised, that is treated less favourably by reason of the previous discrimination claim which he had made against the London Deanery and which was known to relevant decision makers in the Respondent, even if not necessarily the interview panel. The form the victimisation took was that unfavourable comments were made about him by reference to the litigation; these led to the form submitted to the National Recruitment Office including reference to the panel's concerns that an experienced trainer would be required and the panel members would not be comfortable with the idea of doing the training themselves. The London Deanery had not forwarded such comments on any other candidate.
8. The case proceeded in the usual way to a remedies hearing. That took place over several days in March 2007, before the same Tribunal as had conducted the liability hearing, chaired by Mr GD Etherington. By a decision sent to the parties on 8 May 2007, the Tribunal decided unanimously that the Respondent must pay to the Claimant the sum of £15,430.72p. That consisted of £7,500 for injury to feelings, £4,000 for psychiatric injury, £2,000 by way of aggravated damages and £1,930.72p for interest.
9. The Claimant appeals against that award, contending it should have been greater. The Respondent Deanery cross-appeals not to contend the award should have been lower but to seek to uphold the amount of the Tribunal's award on grounds which depart, in some respects, from the terms of the Tribunal's judgment.
10. We should record that these are by no means the only proceedings either in the Tribunal or before his professional body in which the Claimant has been involved. On 25 March 2004, the General Medical Council wrote to him informing him of complaints made against him and seeking his observations. Following a reply on his behalf from the Medical Defence Union, the GMC wrote again in May 2004 saying there was a prima facie case of serious professional misconduct and referring the case to the Professional Conduct Committee.
11. In April 2005, a fitness to practice hearing on conduct grounds took place. Some charges were dismissed but two were found proved and a reprimand was issued. The Employment Tribunal found, as is well known to be the case, that once such an adjudication has been made by the General Medical Council, the doctor is obliged to disclose it in every job application he makes within the profession.
12. There were also concerns about the Claimant's state of health, although it was his case before the Tribunal that the cause of that state of health was entirely the Respondent's victimisation of him. He has been repeatedly diagnosed since July 2003 as suffering from severe depression and stress and occasionally, sadly, has had suicidal thoughts. The material at the conduct hearing before the GMC included evidence from the Claimant himself about his mental state. It so concerned the members of that panel that they caused a fitness to practise hearing on health grounds to be instigated. That was to take place on 6 July 2005 but the Claimant himself asked to be removed from the Register and that application was granted on the day of the hearing which therefore did not take place.
13. There was also litigation for discrimination or victimisation or both brought by the Claimant against other bodies. The original discrimination claim against the London Deanery, as we have said, was brought in July 2003. In December 2003, the Claimant issued a claim for discrimination and victimisation against the Kent, Surrey and Sussex Deanery. In June 2004, he issued separate claims against the Newham Healthcare Trust and the General Medical Council. He also issued proceedings, at some point, against the West Hertfordshire Health Authority; a second claim against the Kent, Surrey and Sussex Deanery and one against the British Medical Association. Accordingly, the present Respondents are among six in various cases against whom claims have been brought.

The legislation

14. In the present proceedings, as is established by the case of Essa v Laing Ltd [2004] IRLR 313 and is not in dispute, the Claimant had to show what injury or detriment was caused by the Respondent's wrongful act. He did not have to go on to show that such injury or detriment was reasonably foreseeable or was of a type that was reasonably foreseeable. But it will be apparent from the history we have recited that causation in this case was by no means an easy topic. We refer to an observation of the Tribunal at paragraph 7.32:

"7.32. The victimisation in June 2004 was but one small drop in an ocean of pressures that were acting upon the Claimant at that time. He it was who had embarked upon a series of actions against a variety of targets and who at the same time had to respond as potential defendant to the GMC's serious allegations. He faced all those matters before and after the June 2004 victimisation.

7.33. Although it is said that the Claimant now sees the June 2004 victimisation as the straw that broke the camel's back the Tribunal believes that such an interpretation is to a degree informed with hindsight. Whether indeed he was closer than he had ever been to securing a job at that stage is open to substantial debate."

15. In the following paragraph on the subject of his removal from the Register, the Tribunal said:

"The Tribunal is satisfied that in applying for erasure he recognised the probability that the GMC would in any event suspend him."

16. They also noted that a finding of serious professional misconduct presents substantial difficulties in the way of the individual doctor gaining employment in practice.
17. The applications of doctors who are not accepted by their host Deanery are processed through a National Recruitment Office for general practice training which implements a National Clearing System. The guidelines for candidates state as follows:

"National Clearing attempts to match candidates who are considered suitable for a GP training post with deaneries that have GP training vacancies remaining at the end of a recruitment campaign. You may be eligible to enter the national clearing system if the deanery that interviewed you for a GP training post (the host deanery) has found you to be suitable for GP training but is unable to offer you a post.

You can only be entered into the clearing system by ONE host deanery.

Only the deanery that has interviewed you can enter you into the national clearing system having found you suitable for GP training.

By entering into the National Clearing System, you are not in any way guaranteed a GP training post in another deanery.

The host deanery will forward all details of your application, including your application form and any interview comments or notes to the National Recruitment Office for General Practice Training who co-ordinates the National Clearing System.

The National Recruitment Office will attempt to match you with a deanery that has a suitable vacancy and where you are willing to work. If a match is found, your details will be forwarded to the receiving deanery. Your details will be forwarded to one deanery at a time.

This process will be repeated with anther suitable match if the candidate does not initially secure a post."

18. The same document states that the National Recruitment Office will continue to attempt to match candidates with vacancies until a post is secured or all possibilities have been exhausted.
19. Further details of the National Clearing System are given in the following terms:

"After interview, candidates will fall into 3 broad groups:

Those offered a placement on a VT scheme or a GP Registrar post.

Those considered unsuitable for general practice training at this stage.

Those considered suitable for general practice training but who are not offered a post because there are no more vacancies to be filled.

This third group of candidates may also fall into two further groups:

Those who are considered able to complete their training in the standard training period and standard posts or a standard practice.

Those who are considered to require a longer than usual training programme, or an experienced trainer, or some other non-standard training."

Either of these groups may be offered a post through local (Deanery) clearing if other candidates decline offers; however, only the first of these may be entered into the national clearing system which will attempt to match them to Deaneries who have unfilled vacancies.

20. Although the guidelines say that score sheets and interview notes are supposed to be sent in by the host Deanery, the Employment Tribunal in this case had found at the liability hearing that until Dr Tariquez-Zaman made his application, the London Deanery had not advised the National Recruitment Office of any special training requirements identified by interview panels. They made an exception in his case which, as we have said, constituted victimisation. This can be illustrated by comparison of two documents namely the Clearing Submission Forms submitted by the Claimant on the one hand and another candidate described as Candidate A, interviewed by the same panel. There is an entry on the form with the question, "Do you have any concerns about this candidate?" which, in the case of Dr Tariquez-Zaman, is answered expressing the panel's concerns about his training requirements which we have already set out. In the case of Candidate A, who was the only one of the ten interviewees at the London Deanery in the relevant round whose overall score was lower than the Claimant's, this box is left blank. It is also worth noting that the final part of the Clearing Submission Form, which might be described as a singularly uninformative document, says this:

"Please attach the following documents and send to Gai Evans, National Recruitment Office."

21. Then there are four items listed. Application form, Geographical preferences, Interview panel comments and References if available. In both cases, Dr Tariquez-Zaman and Candidate A, the first, second and fourth of these are ticked and we presume the relevant documents were sent. In each case, the line, Interview Panel Comments, is left blank.
22. The Tribunal at the remedies hearing, heard oral evidence and had written statements from Ms Evans of the National Recruitment Office and Ms Reed who was the Recruitment Manager for Postgraduate General Practice Education and Training at the Eastern Deanery. Her witness statement at paragraphs 7 to 10 reads as follows:

"7. I believe that the Eastern Deanery was sent a pack of paperwork from Mrs Evans for each of the candidates that were passed to us through the clearing system. This pack would normally include each candidate's application form to the Deanery to which they had originally applied, their interview score sheets and their clearing submission form. However, some deaneries would also produce their own summary forms to assist the deanery that considered the candidate through clearing.

8. However, regardless of how the information about the candidates was presented to me, I would look at the comments made and scores awarded by the interview selection panel. I would consider if any of the comments made about a candidate suggested that they might experience difficulties in their training. I can confirm that if a selection panel had commented that a candidate would struggle to pass summative assessment or that they required an experienced trainer or an extended period of training, I would not accept their clearing application. This is because such comments would indicate to me that a candidate was not "fit for training" and the Eastern Deanery would not have deemed them to be trainable if they had been interviewed by us.

9. I also looked at the scores in order to see if a clearing candidate met the minimum standard which had been set by our own candidates who had applied directly to the Eastern Deanery. The Eastern Deanery aimed to make sure that any candidates that it accepted through clearing had achieved at least the minimum score achieved by those candidates who had been assessed by the Easter Deanery and offered GPR posts directly. This was to ensure consistency amongst the standard of the candidates for a particular round of recruitment. I do not remember the threshold that the Easter Deanery set in the August 2004 round of recruitment. However, the Deanery kept a database of the candidates for this round of recruitment. I have no checked this database and I can see the lowest score from a candidate that the Eastern Deanery deemed suitable for training was 44½ out of a total possible score of 80. This is equivalent to fifty-six percent.

10. I can confirm that the suitability of a candidate for a GPR post available through clearing is based solely on the paperwork that the Easter Deanery receives from the NRO. The Eastern Deanery does not conduct any further interviews with the candidates put forward through clearing and it accepts whatever scores and comments have been made about each candidate at the initial interview."

23. Ms Reed was cross-examined and re-examined and asked questions by the Tribunal in oral evidence after she had read this statement. We only have a limited note from the learned Chairman, rightly so because that was all he was asked for. We do have the advantage of notes from each side's solicitors of this evidence and it has been agreed today that the notes by the Respondent's solicitors note taker are a reasonably accurate representation of what the witness said.
24. There are slightly cryptic references, at the top of page 198 of the bundle, which read:

"KR Asked Deanery that was their 1^st choice for those docs [and then an arrow] original appln.

KR Can't say for certain. evidence - inconsistencies on scoring thru'out system so wd've looked at comments Summary sheet alone wd not have given us all the information."

25. Then at the bottom of the same page, by which time the witness was being re-examined by Ms Romney for the Respondents:

"DR Wd you have made a decision on any candidate for clearing w/o sight of score sheets?

KR Don't think I wd have

DR w/o sight of any comments that may have been made on score sheet/ anywhere else regarding suitability for training

KR No"

26. The crucial part of the judgment of the Employment Tribunal following the Remedies Hearing is paragraphs 7.28 to 7.31 which read as follows:

"7.28 The Tribunal has already found that the inclusion by the London Deanery of the qualifications made by the interview panel regarding the Claimant's need for extended training and a special tutor constituted discrimination. The fact of the inclusion of that material stopped his application progressing beyond the NRO. That was entirely as it ought to have been and would similarly have stopped any application bearing that information regarding any other doctor. It was a requirement of the Deanery that information be included either on the forms summarising the outcome of the interviews or by the inclusion of the forms themselves. Such remarks were an absolute bar to a doctor in those circumstances being offered for clearing.

7.29 In any event the position so far as the North West Deanery was that irrespective of the material included by the originating Deanery or passed on by the NRO the Deanery itself would firstly interview candidates arriving by that route and secondly would require to see the score sheets — they were not content to rely upon summaries. In those circumstances it is quite clear that had Doctor Zaman's application been passed through national clearing to the North West Deanery it would have progressed no further and he would neither have been interviewed nor offered a job.

7.30 The position regarding the Eastern Deanery was somewhat different given that the London Deanery provided only the summary sheets and not score sheets unless specifically requested. The evidence from Kate Reed was that her Deanery did not seek amplification of the material received from the originating Deanery. Accordingly she would have received only the summary sheets relating to the Claimant. The question therefore for the Tribunal was what would the position have been had she received no sheets but there was no endorsement (a necessary condition to her receipt of them as otherwise they would have been intercepted by the NRO) that is no discrimination. The Eastern Deanery had not produced any documents relevant to this particular exercise. It seems in any event the Deanery kept only documents relating to successful applicants and that these were in store in Bristol. The evidence received from Kate Reed was that there was a minimum lower interview score below which the would not appoint. The position of the score on the spectrum will depend upon the overall level of scores set against the number of vacancies they wish to fill. The Eastern Deanery in August 2004 exercised a reasonable degree of caution in its approach to candidates appearing through the clearing system. The Deanery had experienced difficulties in the past with candidates received from clearing due to the fact that standards applied by different Deaneries were not consistent. To avoid experiencing again similar problems they endeavoured to ensure that any candidate accepted was of a sufficiently high level of competence. Where they had comments such as those indicating the need for training etc they would take those into account. In a case such as this where they did not, they would seek to ensure competence by setting a minimum level of interview score. In August 2004 no candidates achieving lower than 56% at interview were appointed by the Deanery. The Claimant at his interview achieved 36.6%.

7.31 One point on clearing is the position which would have obtained or perhaps should have obtained with each rejection of a candidate for a place with the Deanery. According to the NROs policy a rejected candidate should have been offered to other Deaneries. In practice candidates were not. Once rejected by a Deanery it was seen by those at the NRO as futile to continue to offer failed candidates to other Deaneries. No candidates therefore were so offered once having been rejected."

27. Both sides attack different parts of paragraph 7.30 on perversity grounds, in particular, the sentence which states:

"The evidence from Kate Reed was that her Deanery did not seek amplification of the material received from the originating Deanery."

It is difficult to see how this finding from the second sentence can stand alongside the finding later in the same paragraph that:

"The evidence received from Kate Reed was that there was a minimum lower interview score below which they would not appoint."

This can be coupled with the finding at the end of the same paragraph, which is not in dispute, that in August 2004, no candidate achieving lower than 56 per cent at interview was appointed by the Eastern Deanery whereas the Claimant, in interview at the London Deanery, had achieved 36.6 per cent.

28. The evidence of Ms Reed in her witness statement was, as we see it, absolutely clear that the Eastern Deanery regarded the candidates' percentage score as crucial and that they had a policy of not diluting standards by accepting candidates in clearing whose score was lower than the candidates they had appointed from their own first preference applicants. Ms Reed was not shaken on this point in cross-examination and indeed we, for our part, cannot see how else a selection process could have been made. The Eastern Deanery did not conduct interviews of clearing candidates themselves. That was not the general system of National Clearing. The summary sheet gives next to no information about the candidate. It is hardly surprising that a Deanery, which was not the host Deanery, faced with numbers of applicants about which the receiving Deanery knew nothing except that their preferences included the Eastern Deanery, should have wanted to know whether the relevant candidate was a near miss or a long way from achieving appointment at the host Deanery.
29. If the second sentence of paragraph 7.30 saying the Eastern Deanery "did not seek amplification of the material received from the originating Deanery" was meant to apply even if that material did not include the interview panel comments and scoring, then it seems to us there is no evidence upon which the Tribunal could make such a finding and it is wholly inconsistent with the later findings in the same paragraph. Accordingly, Ms Romney's cross-appeal on this point succeeds.
30. It follows that the finding which the Tribunal make which is the subject of the Claimant's appeal that:

"There was only a very low chance that the Eastern Deanery would have accepted the Claimant."

is neither perverse nor inadequately reasoned. It seems to us to follow inexorably from the evidence that Ms Reed gave about the minimum score which was required.

31. Ms Monaghan's next ground of appeal argues that the finding in paragraph 7.31 that a candidate rejected by one Deanery was in practice not offered to other Deaneries (whatever the written guidelines might say) is perverse as being inadequately reasoned and indeed, incorrect. We agree that, as expressed, this finding is inadequately reasoned. As Ms Monaghan rightly submits, there was no evidence to the effect that there was a general rule of, "One choice and you are out". Indeed, the whole concept of a national clearing system, with candidates allowed to express more than one preference on the form, indicates the complete contrary. However, we do not think that this point leads the Claimant anywhere. The evidence of Ms Evans of the National Recruitment Office was that if a candidate was rejected by one Deanery on the grounds that he or she was considered to have exceptional training needs, whether for the longer than usual training programme or an experienced trainer or some other "non-standard" training, then that candidate's details would not be passed on to other Deaneries. After all, the guidelines made it clear that such a candidate should not be in national clearing at all.
32. Supposing the victimisation had not been carried out, Dr Tariquez-Zaman's summary form would have been sent by London to the National Recruitment Office without the adverse comments about his training requirements. As we have already found, and as we believe the Tribunal on a proper interpretation of their judgment found, the Eastern Deanery would have rejected him, not on the basis of his special training requirements but simply because his score was too low. His application would then have remained in play and gone to the next Deanery on the list, the North West Deanery. As to that, the finding of the Tribunal in paragraph 7.29, which Ms Monaghan realistically accepts are not open to challenge, is that the North West Deanery, irrespective of the material included or not included by the host Deanery, would require to see the score sheets. They were not content to rely on the summary form. (They would also have carried out some form of interview, though we doubt, having looked at the evidence, that this would have been an interview on the merits as opposed to an interview on the practicability of the candidate relocating to the North West). But on the score sheets point, the Tribunal expressed the opinion that it was quite clear that had Dr Zaman's application progressed to the North West Deanery, it would have progressed no further. He would neither have been interviewed nor offered a job.
33. The North West Deanery would then have notified the National Recruitment Office of their rejection as they were obliged to do under the system, but this would have been a rejection for cause: that is, they would have discovered from the score sheets, which also included the host Deanery's interview comments, that Dr Tariquez-Zaman had special training requirements. At that point, according to the evidence of Ms Evans, which the Tribunal evidently accepted, his application would not have been passed down the line because, in Ms Romney's graphic phrase, "he would have been rumbled". The exclusion in the national clearing system guidelines from national clearing of candidates who are considered to require special training would have come into effect. So although we think the criticism of paragraph 7.31 on its literal construction is well founded, it could not have made any difference to the result.
34. The only other ground of appeal which has been argued today, and then only contingently, was if either of the other points succeeds, then the injury to feelings award is too low. But it is accepted on both sides that if the Tribunal's findings of fact are upheld, then no complaint can be made of their application of the guidelines in Vento v Chief Constable of West Yorkshire so as to produce a figure exclusive of interest of £7,500.

Conclusion

35. The result of this is that the appeal must be dismissed and the remaining points on the cross-appeal do not arise for decision. We cannot conclude this judgment without expressing our gratitude to both Counsel but particularly to Ms Monaghan who has appeared through the good offices of the Bar Pro Bono Unit, without fee, was first instructed three days ago and has presented written and oral arguments as if she had has nothing else to do for the last month. This has enabled us to deal with a complex case in a single day and our appreciation is very great indeed.