|At the Tribunal|
|On 22 & 23 February 2018|
THE HONOURABLE MR JUSTICE CHOUDHURY
Transcript of Proceedings
|For the Appellant||MR GERARD McDERMOTT
(One of Her Majesty's Counsel)
MS NAOMI CUNNINGHAM
Bates Wells Braithwaite LLP
10 Queen Street Place
|For the Respondent||MR ROBERT MORETTO
Capsticks Solicitors LLP
1 St Georges Road
PRACTICE AND PROCEDURE - Admissibility of evidence
PRACTICE AND PROCEDURE - Review
CONTRACT OF EMPLOYMENT - Wrongful dismissal
UNFAIR DISMISSAL - Reasonableness of dismissal
RACE DISCRIMINATION - Direct
RACE DISCRIMINATION - Inferring discrimination
RACE DISCRIMINATION - Burden of proof
The Tribunal did not err in determining that the dismissal of a Black African Consultant for a first offence was not unfair. The Respondent's reliance upon a pattern of conduct giving rise to concerns about patient safety as a sufficient reason to dismiss was within the range of reasonable responses notwithstanding the fact that there was no single act that could be said to amount to gross misconduct.
However, the Tribunal did err in concluding that the dismissal was not wrongful as it had failed to make the necessary findings of fact for itself to establish that the Claimant's conduct amounted to a repudiatory breach.
There was no error in concluding that the Claimant had not been discriminated against. The Tribunal's approach to the evidentiary matters relied upon as giving rise to an inference of discrimination was not 'fragmentary' as is apparent from a fair reading of the whole judgment.
The decision not to reconsider its judgment in the light of new evidence from the GMC that no action should be taken against the Claimant was not perverse. The Tribunal was required to consider different matters from those which concerned the GMC and the latter's conclusions were unlikely to have had a material influence on the outcome.
THE HONOURABLE MR JUSTICE CHOUDHURY
"… these expectations [in the DRR] will be pursued and significant evidence will be required that relevant clinical audits are in place. You must understand I would be negligent in my duty if this wasn't robustly followed up and in the event of no improvement being seen, that I do not act more formally on these matters."
2.1. What was the reason for the claimant's dismissal and was it a potentially fair reason within the meaning of section 98(4) of the Employment Rights Act 1996?
The respondent will say the claimant was dismissed because of his conduct, which is a potentially fair reason.
2.2. Did the respondent have an honest belief in a set of facts amounting to misconduct?
2.3. Was this belief based on reasonable grounds?
2.4. Did the respondent carry out a reasonable investigation?
2.5. Did dismissal [fall] within the range of reasonable responses?
2.6. Was the dismissal procedurally fair?
2.7. If the claimant's dismissal was procedurally unfair, should there be a "Polkey" reduction in the compensation awarded and if so, by how much?
2.8. The claimant seeks compensation if the claim succeeds. If the claimant is awarded compensation, should the basic and compensatory awards be reduced in accordance with sections 122(2) and/or 123(6) of the Employment Rights Act 1996?
2.9. Was the claimant guilty of gross misconduct? If not, what notice pay is he entitled to?
Protected Characteristics - The claimant brings claims of race discrimination. The claimant is black African British.
Direct Race Discrimination
2.10. Was the claimant subjected to the following treatment?
(a) Dr Kuper classified the claimant's behaviour as more serious than that of the other practitioners dealt with in the Prosser report;
(c) The respondent reviewed incident reports and emails for the purpose of finding allegations against the claimant. This was done by Melanie Mavers, Helen Pardoe, Philip White, Alleyna Claxton, and Martin Kuper around July - October 2014.
(l) The disciplinary panel dismissed the claimant rather than applying a lower penalty;
2.11. If so did this treatment constitute less favourable treatment on the grounds of race?
2.12. The claimant relies on the following comparators:
(a) In relation to the allegation at 2.10(a) and (c) the claimant relies on Mr McCarthy (white), Mr Zurgani (Arab), Mr Khan (Asian) and Mr Sivardeen (Asian), who were also investigated in the Prosser report.
(f) In relation to allegation 2.10(l) the claimant relies on Mr Baring and Mr Boarding as comparators. Mr Baring and Mr Boarding are white.
(g) In relation to each allegation of direct race discrimination at paragraph 2.10 above the claimant relies on a hypothetical comparator.
Time Limits - Race Discrimination
2.16. Did any of the acts complained of take place outside the time limits set out at section 123(a) of the Equality Act 2010?
2.17. If so, do these acts form part of conduct extending over a period so as to bring them within the time limits set out at section 123(a) of the Equality Act 2010?
2.18. If any of the claimant's claims are out of time, would it be just and equitable to extend time?"
"266. It is the majority view that the disciplinary panel's decision was that the allegations that were upheld showed a pattern of conduct which cumulatively raised concerns over patient's [sic] safety. The majority are satisfied that the disciplinary decision makers carefully considered whether the claimant continued to pose a risk based on the fact that no further incidents had occurred, but reached the view that they could not be satisfied of this based on the claimant's continued inconsistency in his responses. The majority accept Ms Adam's and Mr Smith's evidence on this and accept that they reasonably believed that there would not be a change of behaviour which could be relied on in future. We accept, for example, that the concern over allegation 13, the wearing of gloves, was the claimant's focus on whether this posed a risk to him and not on any risk to the patient. It is the majority view that a belief that the claimant had not demonstrated sufficient change was a reasonable view that they were able to form following a reasonable investigation and fair process. On that basis, the sanction of dismissal falls within the range of reasonable responses in all the circumstances.
267. It is the minority view, Mrs Alford dissenting, that a number of the allegations should not have been included in the disciplinary charges. In particular the issue of not waring sterile gloves and the failure to check the patient's hip, that is allegation 13 regarding case AR and allegations 17 regarding case DB, both of which the disciplinary panel drew particular attention to in reaching its conclusion, were in her view trivial. Further, she considered that the decision makers had not properly taken into account the fact that no further incidents had occurred from the date the claimant was told of the disciplinary matter to the date of dismissal. In her view this was evidence of improvement such as to make the sanction of dismissal inappropriate and outside the reasonable range of responses."
"268. We find that the claimant was guilty of actions that breached his contractual obligations, in particular in relation to breaching hospital policy in prescribing aspirin and failures in relation to audit. The Claimant accepted that he did this. He also accepted that there were occasions when he did not document consent appropriately.
269. Based on our findings as to the contractual obligations of a doctor we are satisfied that these were matters that did occur and that these amount to a breach of contract. The claimant was not therefore wrongfully dismissed. This is a unanimous view."
"272. In relation to 2.10(a), we have accepted that Dr Kuper did classify the claimant's behaviour as more serious than that of the other practitioners, but that that was an appropriate and reasonable finding. We find that because of his role in audit the claimant carried more responsibility than those he has identified as comparators and it is for this reason that he was treated differently (although of course 1 other consultant was also the subject of a second investigation). We find on this issue that there is sufficient for the burden of proof to shift to the respondent, but there is a non-discriminatory explanation and the respondent discharges this burden.
273. Similarly in relation to 2.10(c) we have found that it was reasonable for the respondent to conduct further investigation into the claimant's conduct and to review the incident reports and emails. We do not find that any of these actions were based on the claimant's race and we do not find that the claimant has raised a prima facie case in these instances. If that is wrong we are nonetheless satisfied that the respondent has provided a non-discriminatory reason for its actions. The complaints were made and they were sufficiently serious to warrant investigation.
274. The majority have found that the disciplinary panel's decision in upholding the allegations against the claimant was a reasonable one based on the evidence heard, including the claimant's admissions, and the respondent has satisfied the majority that, even if an inference can be drawn, there are non-discriminatory reasons for its actions. The minority view expressed by Mrs Alford and recorded above is that dismissal was outside the band of reasonable responses. She finds that the penalty raises an inference of discrimination but accepts that the panel issued the penalty it did because it had concluded this was a pattern of behaviour and is therefore satisfied that the respondent has met the burden of proof.
275. Accordingly in relation to all those issues raised at 2.10 the panel's unanimous decision is that the claimant did not receive less favourable treatment on the grounds of race. Based on this finding we do not need to go on to determine any issue of time limits."
The Grounds of Appeal
a. Ground 1 - Wrongful Dismissal: The Tribunal erred in concluding that dismissal was not wrongful on the basis of a finding that the Claimant had been in breach of his contract of employment, without making any finding as to whether he had committed a fundamental breach of contract.
b. Ground 2 - Unfair Dismissal: The Tribunal misapplied the test as to the range of reasonable responses so as to justify dismissal. It is said the Tribunal should have found that it was beyond the range of reasonable responses to dismiss after a first disciplinary hearing without taking any steps to improve the Claimant's conduct through disciplinary action short of dismissal.
c. Ground 3 - Evidential Issues:
i. Whether it was unfair to bring aggregated disciplinary proceedings instead of managing any perceived misconduct promptly;
ii. Whether the Respondent's assertion that the primary motivation for dismissal was that it was necessary to protect patient safety was credible in light of the fact that the Claimant had not been suspended and had been permitted to practice without restriction or any additional training or supervision during the 16 months that the disciplinary process ran its course.
d. Ground 4 - Discrimination:
i. Misapplication of the burden of proof provisions: The Tribunal erred in taking a fragmented approach to the evidence relied on by the Claimant in support of his complaint of direct discrimination instead of dealing with the totality of that evidence in determining whether it was sufficient to pass the burden of proof to the Respondent;
ii. The Tribunal erred in failing properly to consider in each case whether the Respondent had discharged the burden of proof in relation to unconscious discrimination;
iii. (Not pursued).
e. Ground 5 - Comparator: The Tribunal erred in deciding that the postponement of the Claimant's disciplinary hearing pending further investigation could not be evidence of discrimination on the basis that a similar step was taken in respect of one of his colleagues, Mr Sivardeen, who was not of black African origin. Mr Sivardeen was not an appropriate comparator;
f. Ground 6 - Reconsideration: The Tribunal erred in treating the objective view of the GMC as irrelevant to the credibility of the assertions of the Respondent's witnesses that they believed him to present such a severe threat to patient safety that they had no reasonable choice but to dismiss him. If available at the original hearing, this evidence would necessarily have been treated as critically important evidence. The Tribunal's refusal to reassess the credibility of the Respondent's witnesses in the light of this crucial new evidence is irrational.
Ground 2 - Unfair Dismissal
"To that code there may be added the "guidance" which Sir John Donaldson gave in the useful judgment of James v Waltham Holy Cross Urban District Council  ICR 398, 404. It is good sense and reasonable that in the ordinary way for a first offence you should not dismiss a man on the instant without any warning or giving him a further chance. You should warn him that, if it happens again, it would be an offence for which he should be dismissed. It is true that in this case that was not done. There was no initial warning given. He was dismissed on the instant. But nevertheless that is not a rule which has to be applied in every case. In some cases it may be proper and reasonable to dismiss at once, especially with a man who is determined to go on in his own way. …"
"23. Some acts, termed gross misconduct, are so serious in themselves or have such serious consequences that they may call for dismissal without notice for a first offence. But a fair disciplinary process should always be followed, before dismissing for gross misconduct."
"22. What degree of misconduct justifies summary dismissal? I have already referred to the statement by Lord James of Hereford in Clouston & Co Ltd v Corry [ AC 122]. That case was applied in Laws v London Chronicle (Indicator Newspapers) Ltd  1 WLR 698, where Lord Evershed MR, at p.700 said: 'It follows that the question must be - if summary dismissal is claimed to be justified - whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service'. In Sinclair v Neighbour [ 2 QB 279], Sellers LJ, at p.287F, said: 'The whole question is whether that conduct was of such a type that it was inconsistent, in a grave way - incompatible - with the employment in which he had been engaged as a manager'. Sachs LJ referred to the 'well established law that a servant can be instantly dismissed when his conduct is such that it not only amounts to a wrongful act inconsistent with his duty towards his master but is also inconsistent with the continuance of confidence between them'. In Lewis v Motorworld Garages Ltd  IRLR 465, Glidewell LJ, at 469, 38, stated the question as whether the conduct of the employer 'constituted a breach of the implied obligation of trust and confidence of sufficient gravity to justify the employee in leaving his employment … and claiming that he had been dismissed'. This test could equally be applied to a breach by an employee. There are no doubt many other cases which could be cited on the matter, but the above four cases demonstrate clearly that conduct amounting to gross misconduct justifying dismissal must so undermine the trust and confidence which is inherent in the particular contract of employment that the master should no longer be required to retain the servant in his employment."
"216. In relation to sanction, Sheila Adam's evidence was that this was not an easy decision. The panel discussed whether it should be a final written warning or dismissal. Their conclusion was that some of the allegations, particularly 13, 17 and 18 and the pattern more widely, amounted to actions which were grossly careless and negligent and which were example of gross misconduct. They also felt that the claimant's actions in these respects threatened the health and safety of patients.
217. Ms Adam's evidence was that she found the pattern of the whole very concerning. In the outcome letter she had picked on allegations 13, 17 and 18 as particular issues which might affect patients' safety and she used those as examples, however, she had not approached it by looking to see if any single instance amounted to gross misconduct. The key is that all could have been but as a pattern and repeated process of unsafe behaviour, this is what amounted to gross misconduct. She was not considering any of them as an individual point, they were there in total and what struck her most was a pattern of non-compliant behaviour which led to increased risks for the patient. She rejected the idea that there had been a strategy of not setting out, either in the October letter or the dismissal letter, which matters were gross misconduct and which were not. Her view was formed on the basis that she went to all the evidence and this was a pattern of behaviour, rather going to specific allegations, this is what made it gross misconduct. The professional adviser was also strongly of the same view.
218. The panel did consider the mitigation provided by the claimant and noted the long period of service with the trust, together with supporting statements which the claimant had put forward. The also considered sanctions issued at disciplinary hearings to other consultants and an associate specialist in orthopaedics following the part A investigation in order to ensure consistency of approach. They concluded that these were not comparative given the severity and volume of the allegations in part B and C. The claimant, as lead for audit, had a greater responsibility for ensuring that documentation is recorded correctly.
219. The panel had a real concern that a final written warning would not be sufficient because the claimant's actions showed that he was wilful in his approach. Although no patient had been harmed, this was simply good fortune. The concern was that the non-compliant approach to policies and safe practices could be repeated with a more serious outcome on the next occasion. This decision of the panel was that the allegations constituted gross misconduct.
220. Ms Adam confirmed that in deciding on the relevant sanction the panel took into account the character references the claimant had provided his long service and a range of testimonials from staff. They did balance out the risk of continuing the claimant as a surgeon against the loss of those skills. They were particularly influenced around the degree of likely change. Based on the claimant's responses this had been variable and inconsistent and sometimes he seemed to contradict himself. All panel members felt this; therefore it was difficult to feel confident that there would be a change in behaviour which could be relied upon in the future. In terms of why not a final warning instead, she felt the hearing heard 18 allegations of which some 13 had been upheld and they were simply not sure there would be a sufficient change in approach and that this represented a public risk.
221. She accepted that from 18 July 2015 no more concerns were raised about the claimant's behaviour. She considered that one could not attribute changed behaviour simply to having had conversations with his line manager or whether the investigation having started a month later then made the difference.
222. She was taken to various documents which suggested that the claimant had changed his behaviour and all it would have taken was for Mr Ball coming in and for things to be addressed for there to be change. Her evidence was that a lot of why the panel had concluded that the sanction of dismissal was appropriate was based on the claimant's inconsistency. Their feeling of inconsistency came partly from differences between his case statement and then what he said at the hearing and also inconsistencies in his responses to Dr Erskine during her investigation and again in the way which he then responded to the same points at the hearing."
Analysis and Conclusions - Grounds 2 and 3(i)
"30. We accept Mr Moretto's submissions and consider that gross misconduct arises where there are sufficient matters to undermine the trust and confidence between the parties. We consider that the authorities support the view that the series of acts of misconduct may be aggregated together in the appropriate circumstances but this is a matter of fact."
Ground 1 - Wrongful Dismissal
Analysis and Conclusions - Ground 1
"… On the issue of wrongful dismissal, it was appropriate, indeed necessary, for the employment tribunal to make its own findings of fact. The issue was whether the claimant had breached her contract of employment in such a way as to justify summary dismissal. …"
"32. There may be cases where a misconduct dismissal is fair, but a tribunal considers that the conduct in question was not sufficiently serious to amount to a repudiatory breach warranting summary dismissal."
Ground 4 - Burden of Proof
"(3) The evidence
As frequently observed in race discrimination cases, the applicant is often faced with the difficulty of discharging the burden of proof in the absence of direct evidence on the issue of racial grounds for the alleged discriminatory actions and decisions. The applicant faces special difficulties in a case of alleged institutional discrimination which, if it exists, may be inadvertent and unintentional. The tribunal must consider the direct oral and documentary evidence available, including the answers to the statutory questionnaire. It must also consider what inferences may be drawn from all the primary facts. Those primary facts may include not only the acts which form the subject matter of the complaint but also other acts alleged by the applicant to constitute evidence pointing to a racial ground for the alleged discriminatory act or decision. It is this aspect of the evidence in race relations cases that seems to cause the greatest difficulties. Circumstantial evidence presents a serious practical problem for the tribunal of fact. How can it be kept within reasonable limits?
This case is an illustration of the problem. The complaint of racial discrimination is usually sparked by a core concern of the applicant: in this case his failure to obtain support and recommendations for his promotion to a senior lecturer in the Faculty of Law. Dr Qureshi relied extensively on circumstantial evidence that there was a racial ground for the acts and decisions he complained about. The circumstantial evidence included incidents ranging over a period of nearly six years, from 1988 to 1994. The incidents relied on by him antedate, accompany and postdate the alleged acts of racial discrimination and victimisation particularised in his 1993 and 1994 applications. It was necessary for the tribunal to find the facts relating to those incidents. They are facts (evidentiary facts) relied upon as evidence relevant to a crucial fact in issue, namely, whether the acts and decisions complained of in the proceedings were discriminatory "on racial grounds". The function of the tribunal in relation to that evidence was therefore twofold: first, to establish what the facts were on the various incidents alleged by Dr Qureshi and, secondly, whether the tribunal might legitimately infer from all those facts, as well as from all the other circumstances of the case, that there was a racial ground for the acts of discrimination complained of.
The process of making inferences or deductions from primary facts is itself a demanding task, often more difficult than deciding a conflict of direct oral evidence. In Chapman v Simon  IRLR 124, 129, para 43 Peter Gibson LJ gave a timely reminder of the importance of having a factual basis for making inferences. He said:
"Racial discrimination may be established as a matter of direct primary fact. For example, if the allegation made by Ms Simon of racially abusive language by the headteacher had been accepted, there would have been such a fact. But that allegation was unanimously rejected by the tribunal. More often racial discrimination will have to be established, if at all, as a matter of inference. It is of the greatest importance that the primary facts from which such inference is drawn are set out with clarity by the tribunal in its fact-finding role, so that the validity of the inference can be examined. Either the facts justifying such inference exist or they do not, but only the tribunal can say what those facts are. A mere intuitive hunch, for example, that there has been unlawful discrimination is insufficient without facts being found to support that conclusion." (See also Balcombe LJ, at p 128, para 33(3).)
In the present case, it was necessary for the tribunal to examine all the allegations made by Dr Qureshi of other incidents relied upon by him as evidentiary facts of race discrimination in the matters complained of. There is a tendency, however, where many evidentiary incidents or items are introduced, to be carried away by them and to treat each of the allegations, incidents or items as if they were themselves the subject of a complaint. In the present case it was necessary for the tribunal to find the primary facts about those allegations. It was not, however, necessary for the tribunal to ask itself, in relation to each such incident or item, whether it was itself explicable on "racial grounds" or on other grounds. That is a misapprehension about the nature and purpose of evidentiary facts. The function of the tribunal is to find the primary facts from which they will be asked to draw inferences and then for the tribunal to look at the totality of those facts (including the respondent's explanations) in order to see whether it is legitimate to infer that the acts or decisions complained of in the originating applications were on "racial grounds". The fragmented approach adopted by the tribunal in this case would inevitably have the effect of diminishing any eloquence that the cumulative effect of the primary facts might have on the issue of racial grounds."
Analysis and Conclusions - Ground 4
a. In respect of the allegation at paragraph 2.10(a), namely that Dr Kuper discriminated against the Claimant in classifying his behaviour as more serious than that of his colleagues, the Tribunal's findings included the following:
"91. As we have previously found that the claimant could have provided data but did not and that, as he agreed, he simply stopped providing any information at a point in time, we find Dr Kuper's position to be a reasonable one. We accept that the Department was very hard to manage and that the lead role in audit was very difficult but nonetheless, as is accepted, this was a role the claimant had volunteered to take. The claimant had also agreed at the disciplinary hearing that the audit role was the most important element of the whole of the DRR (page 3542). We find that audit is very important and being the lead on that area does place extra responsibility on the individual who has this role. It is reasonable to view issues on audit failure with a greater degree of seriousness because of the consequences and the external spotlight on this issue at the respondent organisation."
b. In respect of the allegation at 2.10(c) (reliance upon past incident or Datix reports) the Tribunal's findings included the following:
"154. Dr Kuper then instructed Ms Mavers and Sade Okutubo, a black consultant to review the incident reports. The respondent has an incident reporting policy and this is a [sic] page 353 of the bundle. That specifies the appropriate level of investigation and specifies the [sic] where there has been no harm or minor harm there should [sic] manager investigation locally. Where there has been moderate harm, severe harm or death, this should be managed with a serious incident and root cause analysis investigation. The policy does also specify, however, that some instances where there has been no harm or near miss, or the potential for harm may also be managed using the serious incident and root cause analysis investigation policy. We find that it was appropriate to use the incident reports in this way. The incidents may not have been regarded as serious in isolation at the time, but Dr Kuper's role is to look for patterns of behaviour. We also find that the trust were able to locate these reports because Dr Kuper was able to provide detail of these. Without that we accept that looking for Datix reports by name cannot be done as the reports are filed anonymously."
c. In respect of the allegation at 2.10(l) (dismissal), the Tribunal made a host of findings including those at paragraphs 216 to 222 of the Judgment (and which are set out above in paragraph 30).
"We heard Dr Kuper's evidence on why he did not further involve Dr Bhomik and accepted evidence that he was interested in his opinion but that he considered he had not have [sic] enough understanding of the detail, because of lack of experience of surgery operating theatres, to properly comment. It is possible that this matter, taken with the diversity statistics of the hospital, could together raise an inference in relation to discriminatory conduct, however, there is a reasonable non-discriminatory explanation and respondent [sic] therefore discharges the burden of proof."
This indicates that the Tribunal was considering whether Dr Kuper's evidence taken together with diversity statistics could raise an inference of discriminatory treatment. It was not a purely fragmentary analysis.
Ground 5 - Comparator
"85. The claimant and Mr Sivardeen had the Prosser report allegations outstanding and added to the allegations that formed a part of their eventual disciplinary meetings. This decision was taken by Dr Kuper on HR advice. It was suggested that this was intended by Dr Kuper to ensure the claimant's dismissal by waiting to gather sufficient evidence to ensure a dismissal. This is put as an act from which we can infer discrimination. We do not accept that, since the same treatment was afforded to Mr Sivardeen."
Ground 6 - Reconsideration Decision
"53. … The fact that an employee's professional body may subsequently have decided that the employee had no case to answer in respect of fitness to practice does not, in our judgment, support any argument that the employers were not acting within the range of reasonable responses in dismissing the employer for breaches of the NMC's guidelines. Were that not so, employers in cases such as the present might have felt obliged and might in the future feel obliged to await the outcome of the deliberation of such professional body; but in ordinary circumstances employers cannot be expected to do so; disciplinary processes are for the employer to conduct and to bring to a conclusion without delay. Although no reference was made to it during the course of the hearing we hope we can be forgiven for referring to the ACAS Code of Practice on Disciplinary and Grievance Procedures of 2004, which was applicable at the relevant time, which states as a core principle of reasonable behaviour in a disciplinary situation on the part of an employer that the employer should "deal with issues as thoroughly and promptly as possible"."
Analysis and Conclusions - Ground 6
"[G]uidelines are guidelines and not legal requirements. There is evidence that the use of Aspirin is preferable in this clinical situation. Therefore, one could argue that [the Claimant] was correct and the Trust's Guidelines were incorrect … [A]lthough it would have been preferable had [the Claimant] provided a written explanation about why he was using Aspirin rather than following the Trusts' Guidelines, not to do so would not, in my opinion, be to fall below a reasonable standard of practice."
Ground 3(ii) - Credibility of reliance on patient safety