Appeal No. EAT/1244/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 March 2000

Before
MR COMMISSIONER HOWELL QC
MRS T A MARSLAND
MR K M YOUNG CBE

MRS M CAMPBELL	APPELLANT

CITY HOSPITAL NHS TRUST	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR D SMALL
(of Counsel)
Messrs Toussaints
Solicitors
First Floor
150 Soho Road
Handsworth
Birmingham B21 9LN	

	MR COMMISSIONER HOWELL QC:	In this case which is before us today for a preliminary hearing Mrs Milberga Campbell, who appears before us by Mr Devon Small of Counsel, seeks to pursue an appeal against the decision of the Birmingham Employment Appeal Tribunal, contained in Extended Reasons sent to the parties on 25 August 1999 and set out on pages 8 to 17 of the appeal file.  That decision was a Reserved Decision reached after a three-day hearing into the issues of the case conducted on 27, 28 and 29 July 1999.

1	Mrs Campbell was an Opthalmic Nurse with many years experience in the employment of the Respondents and the complaint made to the Tribunal arose out of events in July 1997 when she was dismissed from her employment in the course of disciplinary proceedings following a complaint about the neglect of a patient, who had managed to lock himself in his room during the night and was found, when access was obtained to the room in the morning, in a hypothermic and distressed state.

2	The Applicant was one of three qualified nurses on the ward during the night when these events occurred.  There was another Staff Nurse, Nurse Osafo-Agyare, and a Sister Wilde, who was physically on the ward although, according to the evidence accepted by the Tribunal, her primary duties that night had been in the Accident and Emergency Department and she was assisting on the ward when those duties had come to an end.  Also on the ward that night was an Auxiliary Nurse, Lisa Armstrong.  The fifth nurse to whom reference is made in the Tribunal’s decision was a Staff Nurse Lesley Arnold, who took over from the Applicant on the early shift of the following day and who was the one who eventually managed to obtain access to the patient’s room and found him on the floor and dealt with him having, I think, managed to obtain a key from the Security staff.

3	The disciplinary proceedings took place on 15 July 1997, when the Applicant was summarily dismissed.  Similar disciplinary proceedings and similar penalties of summary dismissal were imposed on Nurse Osafo-Agyare, the other nurse of comparable grade and Sister Wilde on 13 May and 3 June 1997 respectively, as recorded in paragraph 11 of the Tribunal’s statement of reasons.  The grounds for the dismissal were that the Applicant was considered to have been grossly negligent in her care of the patient involved.

4	It is noteworthy that the letter of dismissal sent to Sister Wilde following the disciplinary proceedings against her, as recorded in paragraph 13 of the Tribunal’s statement of reasons, records that those responsible for the disciplinary proceedings on behalf of the Respondents, did not accept that Sister Wilde was able to absolve herself of any responsibility for the patient, despite the fact that she was not directly responsible for the ward.  As the most experienced senior member of the staff, it was considered that she should have assumed responsibility for the situation and that her failure to do so had amounted to conduct causing the Health Trust to lose trust and confidence in her as a nurse and an employee and warranting her summary dismissal.

5	Thus all three, Nurse Osafo-Agyare, Sister Wilde and the Applicant were summarily dismissed for gross misconduct in the same way relating to the same event.  I should say here that Nurse Osafo-Agyare and Mrs Campbell, the Applicant, are both black, Sister Wilde is white and the other two nursing staff of whom mention was made in the Tribunal’s decision, (the Auxiliary Nurse who was on the night shift and the Staff Nurse who arrived on the morning shift) are both white.

6	That is the background to the complaint brought before the Tribunal, which was made by an Originating Application, originally lodged on 4 December 1997 and, as the copy application and amendments at pages 18 of the appeal file show, the ground of the complaint was discrimination on the grounds of race under the Race Relations Act 1976.  

7	As recorded in paragraph 17 of the Tribunal’s reasons the Applicant made no claim for unfair dismissal.  Since her application was only lodged on 4 December 1997 and the original dismissal had taken place the previous July it was, of course, far too late for a claim for unfair dismissal to be made to the Tribunal and accordingly, the only issues before the Tribunal related to alleged discrimination under the Race Relations Act 1976.  That is a significant feature of this case and anything we say about the issues before us is not be taken as implying any judgment on the reasonableness or otherwise of the treatment of the Applicant in relation to her original dismissal, or the subsequent appeal process which is also referred to in the Tribunal’s decision.

8	The original ground of the Race Relations complaint was stated in the Originating Application to be that the white nurse involved, Sister Judy Wilde had been reinstated in her position at the appeal stage, while neither the Applicant, Mrs Campbell, nor the other black nurse, Nurse Osafo-Agyare, had been so reinstated.  It was alleged that this was an act of discrimination on the grounds of race, in particular as the reinstated white nurse was the most senior nurse on duty and had been party to the decision taken during the night, not to attempt to obtain access to the room in which the patient had managed to lock himself.

9	It is further explicitly stated in the original form of the application submitted by the Applicant’s union representative (page 19) that the appeal meeting had been on 8 September 1997 and “as such I believe that this was the date the discriminatory act took place”.

10	That claim, based on alleged discrimination in the appeal process, was always bound to fail in view of the principle set out in the decision of the Court of Appeal in The Post Office v Adekeye [1997] IRLR 105, in particular at paragraphs 15 to 18, that there is no ground for a complaint of discrimination under section 4 of the Race Relations Act 1976 based only on what happens at an appeal following dismissal.  The material provision is section 4(2) which makes it unlawful in relation to a person employed by him at an establishment in Great Britain, to discriminate against the employee by dismissing him, or subjecting him to any other detriment.  The claim under that subsection was always bound to fail for the reason that, as held in Adekeye, proceedings can only be brought under it in respect of acts committed or at least begun at a time when a person is still currently an employee of the person alleged to be discriminating.  Consequently, as was made clear in Adekeye and this has been subsequently confirmed in later decisions of this Appeal Tribunal, complaints of racial discrimination based only on what occurs in the course of a disciplinary appeal process are outside the terms of the present legislation:  cf. Coote v Granada Hospitality [1999] IRLR 452, 455, paragraph 25.

11	That explains the amendment to the Originating Application, which is found on page 20, and was made on 13 May 1999.  It amends the whole basis of the claim and substitutes an allegation that the original act of dismissal had been, in the view of the Applicant, discriminatory and had been systematic of poor treatment she had received in recent years, including reluctance to assist her on a conversion course, a downgrading and a failure to properly value and grade her duties.

12	The amended application further alleged that the act of discrimination (that is the original dismissal) was “confirmed” when the white nurse was reinstated at the internal appeal and the Applicant and the other black nurse involved had not been reinstated.  That amended basis was the basis on which the claim was put before the Tribunal, as recorded by the Tribunal themselves in paragraphs 18 to 22 of the statement of reasons, the amendment having apparently followed the intervention of a Tribunal Chairman at an interlocutory stage of the proceedings.

13	When the application came on for its full hearing a procedural difficulty arose, since it transpired that the Chairman (who had been specially brought in from outside Birmingham to chair this particular Tribunal, because one of the potential witnesses on the list of witnesses provided by the Respondents happened also herself to sit as a lay member of Employment Tribunals in Birmingham) turned out himself to be acquainted with that witness, a Mrs Wigley, and to have sat with her on an Employment Tribunal in another unrelated case on a fairly recent occasion.  This difficulty was expressly raised by the Chairman with Mr Small, who appeared on behalf of Mrs Campbell, at the outset of the proceedings; and there was an adjournment while everybody decided what to do about whether the hearing should go ahead.

14	We agree with Mr Small’s criticisms made to us in argument this morning that this was a situation which should never have been allowed to arise, since the Tribunal administration should have ensured for themselves that a panel, without any knowledge of the particular individual involved, was available to hear the case when it came on for hearing; but mishaps do happen and the Tribunal Chairman and Mr Small, representing Mrs Campbell, were therefore faced with this difficult procedural situation.

15	Initially Mr Small objected to the Chairman continuing to hear the proceedings at all, but it was then discovered that no other Chairman who did not also have knowledge of Mrs Wigley was available to take over these particular proceedings on this date, so that idea came to nothing.

16	The Respondents then indicated that they would be prepared to go ahead with the case without relying on the evidence of Mrs Wigley at all.  This was discussed, again in open court, and a further adjournment was given for Mr Small to give advice to his client and to take instructions on the altered proposal.  The result was that Mr Small, on his client’s instructions, indicated to the Chairman that, although reluctantly, he and she were willing for the proceedings to go ahead on the footing that Mrs Wigley would not be taking part in them and that her evidence would not be relied on by the Respondents.  The case then went ahead on that basis.  The proceedings lasted for some three days and at the end of it a full and careful decision on the issues raised before the Tribunal was given, as set out in the Extended Reasons to which we have referred.

17	The result of the case was that the Tribunal unanimously decided that the complaint of race discrimination should be dismissed, since they were not satisfied that it had been shown that there was any less favourable treatment shown to the Applicant in the original disciplinary dismissal on which her complaint, as amended, was then founded.

18	Mrs Wigley’s name was referred to by other witnesses in the course of the evidence, and is referred to specifically in paragraph 43 of the Tribunal’s Extended Reasons.  There she is described as the Director of Operations and as a member of the appeal panel responsible for the decision on the Applicant’s appeal against her dismissal.  It is unclear whether she was also a member of the panel which reinstated Sister Wilde, the white Senior Nurse, on her separate appeal, but it is easy to see that Mr Small and his client would be unhappy at any relevant involvement of anyone personally acquainted with Mrs Wigley on the Tribunal if any issue before the Tribunal had depended on what took place at the disciplinary appeal stage conducted by the Respondents.

19	By her Notice of Appeal dated 6 October 1999, at page 2 of the appeal file, Mrs Campbell alleged through her Solicitors that the procedure leading to her dismissal was shown by evidence to be discriminatory and that the Tribunal wrongly held that the Respondent had not unlawfully discriminated against the Appellant.

20	The grounds on which the appeal is sought to be pursued have been refined, or redefined, before us; and, as set out in Mr Small’s skeleton argument helpfully provided to us before the hearing, the appeal was now sought to be pursued on two principal grounds.  First of all, that there was a breach of natural justice in the Chairman having decided to proceed with the appeal hearing at all, in view of his personal knowledge of Mrs Wigley, despite the fact that he was given to understand that she was no longer to be called as a witness.  The criticism is made that the Tribunal Chairman should really have disqualified himself altogether from hearing the case in view of this lady’s involvement and the obviously sensitive issues of potential discrimination involved, which were characterised by the Applicant and on her behalf as amounting to a conspiracy involving the reinstatement of a white Sister when she and the other black nurse were not reinstated.

21	A secondary ground of the complaint on the basis of natural justice is that, although Mrs Wigley was not to be called as a witness and had left the Tribunal hearing on the first day when it was decided to go ahead, she nevertheless re-entered the Tribunal proceedings and sat at the back observing them on the second day.  However it has to be said that Mr Small’s information about this is entirely on instructions from his client, and the observations which have been obtained from the Chairman dated 10 February 2000 at pages 6 to 7, are categoric that after she got up and left the Tribunal room she had not returned during the proceedings at all.  We cannot, of course, decide that matter of fact.  There must be some confusion of recollection on one side or the other, but on the view we take of this case that does not matter.

22	The second ground in the skeleton argument for suggesting that the Tribunal had erred, was in “failure to compare like with like” and therefore in failure to hold that on the evidence there had been different treatment of the Applicant in the way she was dealt with; both at the appellate stage of the proceedings and also (as amplified to us by Mr Small) at the original disciplinary stage of the proceedings when the Auxiliary Nurse, and the Staff Nurse who took over on the morning shift, had not been subjected to summary dismissal as the Applicant had.

23	However, in the course of the oral argument before us, Mr Small abandoned that second ground relating to the comparison of the Applicant’s treatment with that of the other white nurses involved, and therefore the case that we have to consider is purely on whether there was an arguable breach of natural justice in the Chairman having, in the unfortunate circumstances which arose, decided to continue with the hearing and not having subsequently halted it in the course of the evidence, on the ground of his own knowledge of Mrs Wigley having given rise to an appearance of bias.  We stress that the issue is merely whether there was an outward appearance of bias, since Mr Small has quite rightly not sought to suggest that any actual bias was displayed by the Chairman in the course of the proceedings, or in the result to which the Tribunal came.

24	Having considered Mr Small’s submissions on this carefully, we have to say that we understand his concern, and also the concern which the Tribunal themselves exhibited (paragraph 46 of their reasons) about the different treatment of Sister Wilde at the appellate stage of the Respondent’s disciplinary process.  If what happened at the appeal stage of the process had been the issue before the Tribunal, or if it had been an issue of whether the Applicant’s dismissal was unfair, we consider that there is considerable ground for sympathy with this experienced nurse at the treatment to which she was subjected.

25	We further understand Mr Small’s concern at the mishap in the Tribunal’s administrative arrangements which, as we have already said, ought really to have never arisen at all.  However, having said that, at the end of the day the issue for us is a much narrower one, which is whether an arguable breach of natural justice has been shown in this Chairman having proceeded with the Tribunal hearing on the basis that Mrs Wigley was no longer to be called as a witness and that Mr Small, on his client’s instructions, had expressly said that, although having recorded that they were unhappy about the situation, he and she wished the proceedings to go ahead.  

26	It does not seem to us that it is arguable that a Tribunal errs in law in accepting from Counsel properly instructed on behalf of an Applicant that she is prepared for the Chairman to go ahead with the hearing in those circumstances where the only ground for an appearance of bias is that he happens to have a previous acquaintance with somebody as a side member on an Employment Tribunal who, it has now been agreed, is not to be called as a witness in the particular case in front of him at all.

27	When circumstances like this arise, both Counsel for the Applicant concerned and the Chairman involved are, of course, faced with a difficult decision.  But it must be a matter of common sense and degree for both of them whether it is right to proceed with a hearing at all; and on the facts in this case it does not appear to us that Mr Small was wrong in submitting to the Chairman, on his client’s instructions, that she was willing to go ahead, or that the Chairman was wrong in accepting that submission.  In such circumstances there is obviously a continuing duty on both Counsel and the Chairman involved to consider for themselves, as the hearing unfolds, whether some matter has arisen which makes it improper or undesirable for the hearing to go ahead, even after it has commenced.  Again we are satisfied that there is no ground for criticism, either of Mr Small or the Chairman involved, in the proceedings not having been halted at some later stage after the evidence started to be given.

28	As the Tribunal’s statement of reasons make clear, and may already be apparent from the explanation we have given of the amendments to the Originating Application and the issues which were actually before the Tribunal, the only claim on which the Tribunal were required to pronounce was whether the original act of dismissal of the Applicant had been discriminatory:  since as the Tribunal recorded in paragraph 22 of their Extended Reasons, if there was no evidence of less favourable treatment by the dismissal, then the claim of discrimination (which sought, of course, also to bring in potentially prejudiced treatment at the appeal stage) had to fail in the light of the authority of Adekeye.

29	The only possibility which would allow a claim to be brought on the basis of what happened at the appellate stage would be that the Applicant’s contract had continued so that she had remained an employee between the disciplinary dismissal and the appeal.  The Tribunal recorded a specific finding which, in our judgment is wholly justified, that her employment had not so continued and had come to an end at the stage of dismissal.  On that footing we have been unable to see, despite the arguments Mr Small has very properly put in front of us, that the involvement of Mrs Wigley at the appellate stage, there being no suggestion that she was involved in the original dismissal, can have been material to any of the actual issues which decided the case at the Tribunal stage.

30	Since the matter was put before the Tribunal in that way, as recorded by them in paragraphs 18 to 22 of their Extended Reasons, and no issue appears subsequently to have arisen in the course of the hearing to which Mrs Wigley’s personal involvement or the Chairman’s knowledge of her is shown to have been relevant, we are satisfied that there was no impropriety on the part of the Chairman in allowing the proceedings to continue and no ground of criticism of Mr Small in not having himself made a further application for them to be halted.

31	On that basis, we are unable to see that there was an arguable breach of natural justice in this case, in the way the proceedings were conducted.  As is apparent from the record of proceedings and the documents we have seen, the various issues put before the Tribunal by the Applicant were given a full and careful consideration and, as Mr Small has already indicated, he is not pursuing the criticism of the Tribunal for their actual findings.  We say no more about that, than that the Tribunal’s conclusion that discrimination in the original dismissal process had not been established on the facts is a reasonable one and the reasons are fully and properly set out in the record of their decision.

32	On that footing we are unable to see that there is an arguable point of law to warrant our directing that this case should go forward for a full hearing before the Employment Appeal Tribunal and consequently, we now unanimously dismiss this appeal.