|At the Tribunal|
|On 22 & 23 February 2018|
HIS HONOUR JUDGE SHANKS
(2) MR I MARTIN
Transcript of Proceedings
|For the Appellant||MR SEAMUS SWEENEY
DAC Beachcroft LLP
Tyne and Wear
|For the First Respondent||MR C ECHENDU
|For the Second Respondent||No appearance or representation by or on behalf of the Second Respondent|
RACE DISCRIMINATION - Inferring discrimination
JURISDICTIONAL POINTS - Extension of time: just and equitable
UNFAIR DISMISSAL - Reasonableness of dismissal
The Claimant was employed by the Trust as a consultant surgeon. He was the only black African consultant employed by the Trust.
After concerns were raised about his practice, he was restricted to non-clinical duties in September 2013 and the Royal College of Surgeons was invited to conduct a review of his practice; the reviewers reported in April 2014, making various adverse findings about his practice and a series of recommendations. After some delays, the Trust's Medical Director took the view that a capability panel should be appointed; after further delays, a hearing took place in March 2015 and on 7 May 2015 the panel dismissed the Claimant for capability reasons.
Meanwhile in May/June and October 2014 the Claimant had raised grievances alleging that he was being discriminated against in relation to the capability concerns because of his race. The Trust considered that these grievances were brought as a way of delaying or derailing the capability procedure and said that they were "out of time" and failed to deal with them under the Trust's formal grievance procedure, although they were considered and rejected by the "case investigator" appointed under the capability procedure.
The Claimant appealed against the dismissal but the Trust failed to arrange a hearing to take place within 25 days of the appeal as required by the capability procedure and the Claimant said he would not participate in the appeal.
(1) found that the Claimant was discriminated against because of his race in relation to the failure to deal with his grievances under the formal grievance procedure;
(2) extended his time for bringing a claim for discrimination based on (1) under section 123(1)(b) of the Equality Act on the basis that it was "just and equitable" to do so;
(3) found that the Claimant was unfairly dismissed because:
(a) in its conduct in the period from September 2013 to the panel's decision (in particular its restriction of the Claimant to non-clinical duties in September 2013) the Trust had acted as no reasonable employer would have acted;
(b) that conduct was sufficient to taint the decision to dismiss and render it unfair;
(c) (although the panel had reached the view that the Claimant's capability was impaired on reasonable grounds and there was no criticism of its procedure) the panel had given insufficient consideration to possible remediation or redeployment of the Claimant;
(d) the Trust's failure to comply with the procedural timetable for the hearing of an appeal involved acting as no reasonable employer would have acted and denied the Claimant the opportunity to appeal against the dismissal decision.
The EAT allowed the Trust's appeals against the findings of discrimination and unfair dismissal.
(1) The inference that the failure to deal with the grievances in accordance with the grievance procedure was race discrimination was based solely on the fact that the reason given at the time, i.e. that they were "out of time", was not a sustainable reason; but the ET found that the Trust considered that the grievances were presented as an attempt by the Claimant to delay or derail the capability proceedings: this provided a complete explanation for the Trust's conduct unrelated to the Claimant's race and the inference of race discrimination was unsupportable and the claim should have been dismissed.
(2) It followed that the decision to extend the time for bringing the claim for race discrimination was no longer a relevant issue. On the point which was argued (namely whether it was ever open to the ET to extend time when the Claimant had presented no evidence as to why he had failed to present a claim in time) the apparent conflict in the EAT jurisprudence had now been resolved by the Court of Appeal in Abertawe Bro Morgannwg University Local Health Board v Morgan  EWCA Civ 640, which makes it clear that, if a Claimant gives no evidence on that issue, the ET is not obliged to infer that there was no acceptable reason for the delay and that, even if there is no acceptable reason for the delay, that does not necessarily mean that time should not be extended.
(3) The finding of unfair dismissal involved errors of law in that:
(a) the conclusion that the Trust's conduct between September 2013 and the panel's decision was sufficient to render the dismissal unfair without reference to the reasonableness of the decision or the circumstances applying when it was made focussed on the wrong question and involved an error of approach (see: McAdie v Royal Bank of Scotland  EWCA Civ 806);
(b) when considering the decision to dismiss itself the ET did not focus properly on its reasonableness because they failed to engage with the reasons set out in the dismissal letter for rejecting the various possible alternatives to dismissal;
(c) the conclusion that the Trust's failure to comply with the timetable for the hearing of the Claimant's appeal was unfair and deprived the Claimant of the opportunity to appeal was perverse.
HIS HONOUR JUDGE SHANKS
"7.17. … The whole tenor of MHPS is that capability matters will be addressed by an agreed action plan unless the practitioner's performance is so fundamentally flawed that no educational and/or organisational plan has a realistic chance of success in which circumstances a capability panel may be necessary. …" (My italics)
I think Mr Sweeney for the Trust was justified in his criticism of that characterisation of the process. The words I have italicised come from paragraph 15 of MHPS (see page 331 of the EAT bundle), which is dealing with the advice that NCAS might give in response to a request from an employer. They are not intended in my view to place an additional restriction on the ability of an employer to proceed to the appointment of a capability panel, the decision on which may involve other considerations.
The Failure to Investigate the Grievances
ET's Decision to Extend Time
The Reasons for the Finding of Unfair Dismissal
"11.88. … The unreasonable actions of [the Trust], which we identify before the panel decided to dismiss, are sufficient in our judgment to taint the decision of that panel and render the decision to dismiss itself unfair. …"
The Appeal on Unfair Dismissal
(1) The ET's findings that the Trust acted as no reasonable employer would have acted between September 2013 and the panel's decision to dismiss involved substituting the ET's judgment for that of the Trust's Medical Director and/or were perverse;
(2) Their conclusion that those actions "… are sufficient … to taint the decision of [the] panel and render the decision to dismiss itself unfair" involved an error of law and approach similar to that made by the ET in the case of McAdie v Royal Bank of Scotland  EWCA Civ 806;
(3) The ET failed to focus (as they should have) on the panel's decision to dismiss and its reasonableness in the circumstances applying at the time;
(4) The conclusion that the failure to arrange an appeal within the MHPS timetable deprived the Claimant of the opportunity to have a review of the dismissal decision and rendered it unfair was also perverse.
"… it is important to focus not, as such, on the question of [the employer's culpable] responsibility but on the statutory question of whether it was reasonable for the [employer], "in the circumstances" (which of course include the [employer's] responsibility for [the incapacity]), to dismiss her for that reason. On ordinary principles, that question falls to be answered by reference to the situation as it was at the date that the decision was taken. …"
"54. The [Trust's] treatment of the [Claimant] in this case clearly met the threshold of torture and degrading treatment under Article 3 of ECHR but unfortunately the ET liked them [sic]."
That, I am afraid, can only be described as hyperbole and yet another of the "wilder accusations" made against the Trust and, again, Mr Echendu simply should not have allowed it to go into a document he prepared for a court hearing.
Conclusions on Unfair Dismissal
(1) The appeal is allowed;
(2) The claims for race discrimination and victimisation which succeeded before the ET are dismissed by the EAT;
(3) The claim of ordinary unfair dismissal is remitted to be decided by a new ET (but there is liberty to apply within 14 days of handing down for a reconsideration of whether it should be a new ET);
(4) A preliminary hearing will be held by the ET to consider what further evidence (if any) should be presented at the final hearing.