Appeal No. UKEAT/0232/10/CEA
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At
the Tribunal
On
26 October 2010 &
10
January 2011
Judgment handed down on 29 June 2011
Before
HIS
HONOUR JUDGE PUGSLEY
MR K EDMONDSON JP
SIR ALISTAIR GRAHAM KBE
MR
M S TASNEEM APPELLANT
DUDLEY
GROUP OF HOSPITALS NHS TRUST RESPONDENTS
Transcript of Proceedings
JUDGMENT
SUMMARY
CONTRACT OF EMPLOYMENT
UNFAIR DISMISSAL
RACE DISCRIMINATION
AGE DISCRIMINATION
FIXED TERM REGULATIONS
In this case the Claimant was a locum consultant. The Department
of Health proposed certain changes. Because the Claimant was not on the email
system, he did not receive the relevant email. The Employment Tribunal made
the express finding that he knew of the contents and his failure to apply for
the new contract was the Claimant’s decision, which he made for his own
reasons. The Employment Tribunal found that the instructions for the
notification of the new terms was not incorporated into the Claimant’s
contract. The EAT agreed but held in any event this was academic since the Claimant
had ample knowledge of the proposed changes. The EAT dismissed the appeal on
the other grounds as well, namely that he was discriminated against by virtue
of his fixed term status, his racial origin and his age.
HIS HONOUR JUDGE PUGSLEY
1.
The Employment Tribunal sitting in
Birmingham dismissed claims for breach of contract, less favourable treatment
on grounds of fixed term status, race discrimination and unfair dismissal. The
hearing took some eight days and the Tribunal spent a further 4 days
deliberating before the decision was finally promulgated on the 9 March 2009. The
appeal was given a day’s time estimate and when we rose on 26 October 2010 we
had still not concluded the Appellant’s submissions. We reconvened on 10
January 2011.
2.
Mr Hartman who has appeared for the
Claimant has recognised that all members of this Tribunal have found some of
his arguments highly frustrating. Every member of this Tribunal has made it
clear that many of his submissions have not identified an issue of law but have
been an attempt to argue issues of fact which had already been decided by the
Employment Tribunal. Moreover despite having his written submissions we confess
that none of us have found Mr Hartman’s oral submissions well structured or
clear. Moreover although he has cited authorities to us we have not found that
such authorities have assisted us since they were not relevant to the
particular factual context that we are considering. We have been alive to the
danger that the plethora of issues that Mr Hartman has raised may have
smothered a real issue which ought to be considered. We should say that Mr
Hartman has always treated our interruptions with great courtesy.
The factual background
3.
The Claimant was born in Pakistan and is of Asian ethnic origin. He trained in Pakistan and held certain posts
there before emigrating to Ireland. In 1993 he moved to England and began a series of registrar posts during which time he passed his FRCS examinations. The
Claimant took up his post as a locum consultant with the Respondent hospital on
1 September 2003.
4.
During the Claimant’s employment with the Respondents there were two
related issues which were to affect his employment. In September 2003 the NHS
resources department sent a letter to all NHS employing authorities indicating
that they give all consultants the opportunity of indicating by 31 October
whether they wished to give a formal commitment to the new contract. The
Claimant was not on the email system so this correspondence was not copied to
him.
5.
However the Tribunal found that the Claimant was well aware of
the relevant information and was free to make an application to go on to the
new contract but for his own reasons only applied much later. Further the Tribunal
found that the Claimant never did accept the terms of the offer to go on to the new contract.
6.
The Respondents were worried that General Practitioners were expressing
concern about the quality of the service which the hospital was providing. There
were real fears that the hospital might lose its teaching status and this would
lead to a further deterioration in reputation with the consequent difficulty of
attracting high quality staff. The hospital was keen to redress the balance
between the small number of substantive consultants and the larger number of
locum consultants. In the summer of 2006 permission was given to appoint a
further two consultants. There was a delay in the recruitment process. The
Claimant was short listed but was not appointed. The Respondents, having
appointed substantive consultants, then reduced the number of locum consultants
as there was no increase in work which would have justified the same number of
locums. The object of the exercise was to redress the balance of locum to
substantive consultants and not to increase the overall number of posts. The
Tribunal found that the dismissal of the Claimant was fair as being for a
permissible reason namely for some other substantial reason.
The Appeal; general principles
7.
On reading this decision there is no obvious misdirection of law.
The path by which the Tribunal reaches its destination is well marked. The
findings of fact it makes are clear and comprehensive. The conclusions it
reaches are justified by the findings of fact it makes. It avoids the error of circular reasoning which allows conclusions to
become reasons. The tone of the decision is well balanced. The Tribunal
decision does not give a blanket endorsement of managerial decisions; it voiced
its concern at certain aspects of the procedure at the interview for the
substantive consultant (see Para 7.10).
8.
The central thrust of Mr Hartman’s argument rests on an implicit
premise, which has never quite surfaced as an explicit submission, namely that
the Claimant was cheated of a job to which he was entitled, and the fact he was
not appointed is in itself conclusive evidence that he was the victim of
discriminatory practices.
9.
Before dealing with the specific grounds of appeal we consider it
appropriate to take an overview of the whole decision. The Tribunal had to deal
with specific issues and it made detailed findings of fact about these issues.
However the myopic scrutiny of particular issues can blur the bigger picture. Implicit
in the way this decision has been drafted is that the Tribunal accepted that
the hospital had real problems in improving the quality of the service it
provided. The Tribunal examined in detail the actions which were taken. It is
clear from the reasoning of its decision that it rejected the suggestion that
the cumulative effect of the various decisions the Respondents made were
dictated by discriminatory assumptions or attitudes. On its findings the
changes were inspired by the legitimate concerns of the Respondents to improve
the quality of its service.
10.
It is understandable that the Claimant should be hurt and upset. It is
humiliating not to be promoted within an institution in which one has worked
for many years. Yet the disappointed candidate still has a job even though it
may rankle that he is now subordinate to a former colleague or may have to
induct an outsider to do the job to which he was not appointed. In this case
the Claimant has had to swallow a much more bitter pill in that by not being
selected to be a substantive consultant the locum post he had carried out for
years disappeared.
11.
Whilst this Tribunal is mindful of the sense of injustice that
the Claimant must feel it is pertinent to reiterate the trite point that this Tribunal
can only intervene if there is an error of law. It
is not for this Tribunal to substitute its own judgement on the facts for that
of the Employment Tribunal. In the case of Piglowska v Piglowski
[1999] WLR 1360 Lord Hoffman (with whose speech all of the court concurred)
laid down the principles on which an appellate court should act. He pointed
out that the fact that the judge at first instance had the advantage of seeing
the parties is well understood as regards to credibility but it was not as well
appreciated that this rule applies as to the judge’s evaluation of those facts.
12.
Secondly, Lord Hoffmann noted that all judgements will be capable of
being better expressed and that the reasons given in a judgement should be read
on the basis that the judge, unless he has demonstrated to the contrary, knew
how to perform his functions and what matters he should take into account and
an appellate court should resist the temptation to subvert the rule that they
should not substitute their own discretion for that of a judge by a narrow
textual analysis which enables them to claim that he misdirected himself.
13.
Thirdly, Lord Hoffmann pointed out that courts are making value
judgements about issues and this means there must be an ambit of latitude for
the exercise of discretion. The final point is that there must be some
proportionality between the issues at stake and the legal resources of the
parties and the community which it is appropriate to spend.
The grounds of appeal
14.
There are essentially four issues which the Appellant invites us to consider:-
(1) Breach
of Contract (Grounds 1-3): namely that the Tribunal incorrectly construed the
Claimant’s contract.
(2) Less
favourable treatment on grounds of fixed term status (grounds 4 and 5), namely
that the Tribunal was in error in concluding that the failure to inform the
Claimant of the opportunity to be transferred to the new contract was not on
the grounds of his fixed term status.
(3) Time
Limit; (Ground 6) a complaint was in error in failing to consider whether the
Claimant’s claim was in time.
(4) Discrimination
on grounds of age and race and unfair dismissal (Grounds 7 and 8).
15.
The third issue casts an interesting
insight as to the conduct of this case. The Tribunal decided to hear the case
on its merits and leave open the issue of jurisdiction. It is not immediately
obvious why a Claimant should seek to appeal against a procedure which was not
detrimental to his interest. This ground of appeal was not pursued.
The breach of contract
16.
This Tribunal is mystified by this ground of appeal. No one is
disputing because the Claimant was not on the email system he did not receive
the correspondence from the Department about transfer to the new contract. However it is clear from the decision that the
Claimant knew all about the terms of the new contract from colleagues; he had
the means to find out more and that he consulted a BMA adviser about the
position. The Tribunal noted that the Claimant did not suggest that he had
been ignorant of the existence of the new contract (paragraph 6.3).
17.
The Tribunal observed that there was no suggestion that the Respondents
had suppressed any information. In paragraph 3.12 the Tribunal made the
finding that the Claimant knew of his right to apply to be transferred to the
new contract and the potential benefits in doing so. Although he was in direct
contact with the appropriate representative of the Respondents on issues
concerning his contract the Claimant elected for reasons unconnected with any
failing on the part of the Respondents not to pursue his application to
transfer to the new contract until 2006.
18.
Assume, by way of example, that it is a term of an employment contract
that all employees will be notified of internal vacancies. The employer fails
to comply with this requirement but an employee learns about a vacancy from a
colleague. If the employee decides not to apply for the post there are no
practical consequences in the breach of contract. If the employee decides to
apply for the job but is not appointed the only relevance of the fact that he
learnt about the vacancy from a colleague rather than his employer is if the
failure of the employer can be construed as a deliberate act of the employer
from which an inference of a lack of good faith or a discriminatory attitude
could be drawn.
19.
The findings of the Tribunal as to the knowledge and behaviour of the
Claimant are such that in our view whether the Respondents were in breach of
contract is somewhat academic. In deference to the arguments put before us we
should deal with this ground of appeal. The issue is whether the Respondents
were under a contractual duty to inform the Claimant of the provisions of the
new contract.
20.
The Tribunal reviewed the correspondence that passed between the
Department and the NHS employing authorities. The Tribunal considered the
letter of 11 September 2003 and came to the view that it gave a recommended
timetable for the implementation for the new contract and concluded that it was
not intended to impose a contractual obligation (see paragraphs 3.2, and 6.2).
We do not consider that the Tribunal can be said to be in error. Of course
every case has to be decided in its particular context but it would be a
somewhat surprising position if every missive from Whitehall about the
implementation of staffing changes were to be incorporated into an individual
contract of employment.
21.
The Tribunal did consider whether it could imply a term that the
Respondents should have formally informed the Claimant of the pending changes. The
Tribunal noted in paragraph 3.12 that neither the Claimant nor his counsel
identified any implied term that had been breached by the failure to inform the
Claimant of the outcome of the negotiations concerning the new contract. The Tribunal
directed themselves in accordance with the guidelines of the House of Lords
authority in Scally v Southern Health and Social Services Board [1999]
IRLR 215. The Tribunal’s direction of the law was impeccable. An employee
cannot reasonably be expected to be aware of a change in pension arrangements. The
consequence of the failure is that an employee is not informed he or she may
lose a valuable right to take advantage of the change. In the context of this
case on the Tribunal‘s findings the affected employees could reasonably be
expected to know about the changes and as a matter of fact the Claimant very
obviously did know.
22.
The subsidiary grounds of appeal under this head are in our view
simply unarguable. The contention that the Claimant accepted the terms of the
Respondent in respect of the new contract and the Respondent breached those
terms is not sustained on the basis of the Tribunal’s findings. The Tribunal
decision chronicles the negotiations surrounding the new contract in paragraph 3.14 through to 3.19. In brief the
Claimant was sent a revised offer of the Respondent’s terms and conditions and
was asked to sign it and return it. He failed to do so. No contract was
agreed. The Tribunal was quite correct to conclude that the Claimant had not
been transferred to the new contract. The Claimant had not given his assent to
his terms of the offer.
23.
The Claimant’s contention that he should have been offered a new
contract on each occasion that his locum contract was renewed as he was being
offered a new post is based on there being a contractual duty imposed by the
letter of 11 September 2003. In any event as the Tribunal found at paragraph
6.5 on its true analysis all that was happening was that an existing contract
was being renewed.
Less favourable treatment on
grounds of fixed-term status (grounds 4 &5)
24.
These grounds of appeal are in large part subsumed within the other
grounds of the appeal and the findings of fact made by the Tribunal in other
contexts. The Tribunal made the finding that the failure to inform the
Claimant arose from the fact that the Claimant was not on the email system. The
Tribunal accepted Ms Clarke’s evidence that the letter was intended to be sent
to all consultants and the Tribunal found that there was no evidence to suggest
there was a policy to exclude locums from the receipt of such information (para
6.7). Moreover the Tribunal found that the issues concerning seniority and
back pay was not due to any discriminatory policy (see paragraph 6.8; 6.9; 6.10).
We cannot see that in these carefully crafted paragraphs there is any error of
law.
Race and age discrimination
25.
The central plank of the Claimant’s case is that there was a deliberate
series of discriminatory actions against him which were evidence of a plot to
ensure that young Christians were appointed rather than a more mature Asian.
The Tribunal identified with great precision the arguments which were put both
in written and verbal submissions. As we have already observed the Claimant’s
case before us and the Employment Tribunal rests on this fundamental premise. In
paragraph 7 the Tribunal set out its conclusions. In paragraph 7.1 the Tribunal
notes that the Claimant was short-listed for a substantive consultant post. There
were 5 white candidates who were short- listed. There were 8 white candidates
who were not shortlisted. Of the 8 white candidates who were not short-listed
6 were younger than the Claimant. As the Tribunal observed if the selection
panel had been intent on pursuing the agenda of appointing young Christians it
is not explicable that the selection panel should have proceeded to carry out the
shortlisting in this way and then to select 2 Asian candidates out of the 4
successful candidates.
26.
The Tribunal went into meticulous detail in paragraph 7.2 in considering
the argument that Mr Mifsud, Mr Ahmed and Mr Brennan were the three members of
the panel who had conspired to ensure that the Claimant was not appointed. Ironically
Mr Mifsud scored the Claimant more highly than one of the successful candidates
a Mr Quraishi. The Tribunal accepted that Mr Quraishi was appointed on merit
and that his appointment was not, as claimed by the Claimant, automatic.
27.
The Tribunal considered at lengths the remarks and emails upon which the
Claimant relied and whether talk about the need for new blood were euphemisms
for discriminatory attitudes to age or race. The Tribunal made specific
findings that the management had real and genuine fears about the quality of
the service offered and the emphasis on the quality of the candidates was not
an indirect way of referring to race or age.
28.
The Tribunal rejected the suggestion that the Claimant was disadvantaged
by being the first candidate as devoid of merit making the obvious point that
it could equally be said that the first candidate had the benefit of an
interviewing panel which would have been fresh and more receptive than being
the last candidate on the second day of interviewing.
29.
We are well aware that those who apply for positions in institutions in
which they have worked for many years feel frustrated that their performance in
an interview over an hour or so can seem more important than years of faithful
service. This is understandable. Yet the importance given to an interview
applies to all candidates and is not in itself discriminatory. In paragraph
7.11 the Tribunal found that the overwhelming evidence was that the Claimant
had interviewed badly. He appeared to lack insight into absorbing the question
and giving a considered response. The Tribunal pointed out that a substantive
consultant had managerial responsibilities which did not fall on the shoulders
of locum consultants. Other candidates clearly demonstrated that they had given
some thought to how the department might develop and how they saw their
involvement in that process.
30.
Moreover it was clear that, as the Tribunal found in paragraph 3.39 of
the decision, there was a fundamental clash in the Claimant’s agenda and that
of the interviewing committee. The Claimant’s position was that he was a
skilled and experienced orthopaedic surgeon who had demonstrated his ability
over three years. It was natural that the Claimant should think that he was
the obvious candidate who should have been appointed.
31.
The panel’s starting point was very different. In their view all the
candidates who were shortlisted were competent surgeons. Mr Ahmed’s evidence
was that the panel were concerned at the quality and duration of a candidate’s
training. Specialised training at a centre of excellence would be likely to
carry more weight than short periods of training interspersed with periods at
more generalised centres. Whilst obviously technical questions were asked by
the medically qualified the whole panel was concerned to see what communication
skills each candidate had and the extent to which the candidate would contribute
to the team.
32.
The Tribunal pointed out, at paragraph 7.9, that the Claimant was hard
pressed to point to evidence of less favourable treatment in the selection
process for substantive appointments of orthopaedic surgeons. We agree with
HHJ Richardson’s comment in dismissing this appeal that the complaints are an
attempt to re-argue conclusions of fact that the Tribunal had reached.
33.
Discrimination cases have developed a body of case law. HHJ Richardson
described the directions of law as being impeccable. Before us it has been
argued that this Tribunal that the decision gives no direction as to the
cumulative weight of evidence and Qureshi v University of Manchester
[2001] ICR 863 has been cited to us as authority. We reject the suggestion
that there is a duty on those writing decisions to set out every authority
which has informed the decision. In the context of this decision it is clear,
as we have already observed, that the Tribunal were not looking merely at a
shopping list of complaints and adjudicating upon each matter without taking in
the overall context of its findings and seeing whether on the totality of its
findings of fact an inference of discriminatory attitudes could be drawn. This
is not a case in which the Tribunal adopted a piecemeal, narrow,
compartmentalised approach which made it impossible for them to draw any
inference from the totality of the evidence.
The unfair dismissal claim
34.
Ground eight of the appeal, namely that the decision to dismiss the
Claimant was on grounds of race and age, is in some respects a variation of the
same theme that there was a plot to discriminate against the Claimant on the
grounds of race and age.
35.
In March 2007 Mr Ahmed had written to the Claimant alerting him to the
fact to the possibility of his locum appointment ending as a result of the
appointment of a substantive consultant. The subsequent course of events is
chronicled in the Tribunal’s decision in paragraph 3.44 onwards culminating in
the dismissal of his appeal.
36.
As we have indicated we have considerable sympathy for the Claimant. Not
only did the Claimant fail to secure a substantive post; the creation of that
substantive post led to his locum job being absorbed and therefore to his
dismissal. The Tribunal deal with the matter in paragraph 8 of the decision.
37.
The Tribunal pointed out that it was common practice in the NHS when a
substantive post is created for the locum position not to be renewed unless
there was growing demand. It noted that the Claimant had not claimed the
reason was redundancy. On the analysis of Mrs Justice Slade in Shrewsbury
& Telford Trust UKEAT/0499/08 the Tribunal were correct in finding
there was no redundancy. The work the Claimant had done was predominantly
lower limb work and this work was now covered by substantive consultants.
38.
In the case of Terry v East Sussex County Council [1976]
ICR 536 (EAT) Phillips J held that dismissal by non renewable of a fixed term
might, but did not necessarily constitute, a substantial other reason. The
matter is not extensively analysed in this decision. One does not need to have
an extensive education in the classics to appreciate that locum tenens,
abbreviated in common parlance to locum, means holding the place. In the
context of hospital medicine we consider that the Tribunal had abundant
evidence before it to conclude that this dismissal was fair and that the
dismissal was for a substantial other reason.
39.
The Tribunal accepted the need the hospital had to reassure general
practitioners as to the quality of the service it provided and that altering
the balance between substantive and locum consultants was an important part of
that process. The Tribunal were meticulous in examining the evidence and they
reached a careful and considered conclusion. Whilst we have every sympathy for
Mr Tasneem we simply cannot allow that sympathy to blind us to the fact that in
our view none of the grounds of appeal raise issues of law. In these
circumstances we have no alternative but to dismiss this appeal.
