Appeal No.	 EAT/0284/03/TM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 August 2003

Before
HIS HONOUR JUDGE D SEROTA QC
MR D J JENKINS MBE
MR B M WARMAN

DR YAR PYE	APPELLANT

MEDWAY NHS TRUST	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	The Appellant in person	
For the Respondent	Ms T Elliott
Solicitor
Messrs Capsticks
Solicitors
General Accident Building
77-83 Upper Richmond Road
London SW15 2TT	

HIS HONOUR JUDGE D SEROTA QC

1	This is an appeal by Dr Pye from a decision of the Employment Tribunal at Ashford, chaired by Mr Sprack.  The Employment Tribunal dismissed Dr Pye’s claim for unfair dismissal and also his claims that he had been discriminated against on the grounds of race and sex, and they also found that the Respondent, Medway NHS Trust, was not in breach of his contract of employment.  

2	Dr Pye who is of Burmese ethnic origin and male, began to work in the Medway NHS Trust Accident and Emergency Department on 6 February 1996.  We should mention that in February 1999, he raised a complaint against a Dr Tsagas, a female doctor working for another Trust, who had made an allegation of sexual harassment against him and the incident was dealt with by way of formal counselling of Dr Tsagas.  We mention that because it is relevant to what took place later.  

3	On 14 January Dr Pye arranged to go on annual leave, and shortly afterwards, he resigned from the Respondent Health Authority, with effect from 6 February.  While on leave, on 28 January, he attended the Accident and Emergency Department.  There is, or there was, a dispute as to precisely how the incident, which I am about to recount, occurred.  

4	Dr Pye’s version of events differed from that of Sister Tuffin, who worked in the Accident and Emergency Department.  However, what is in no doubt is that Dr Pye had generated on his computer a pornographic picture of a young lady and superimposed Sister Tuffin’s head onto that picture.  He had downloaded this image on to a disc and, again, whatever the circumstances might be in which it was shown to Sister Tuffin, it was made available to Sister Tuffin, who saw the image on a computer screen in the Accident and Emergency Department, and she was deeply shocked and humiliated, so the Employment Tribunal found.  It may well be that Dr Pye did not appreciate the effect that sight of this picture would have on Sister Tuffin, but we feel bound to say that he does not seem to understand the very great distress and humiliation that was evidently felt by Sister Tuffin.  Sister Tuffin reported the incident to her line manager and there had to be a consideration by the Trust as to what should happen.

5	In the ordinary course of events, it may well have been appropriate for there to be a full investigation and formal enquiry, but Dr Pye was about to leave; he had already submitted his resignation.  Accordingly, on 4 February Dr Pye was called to an informal meeting with the Deputy Director of Human Resource, Rachel Green and the Clinical Director of the Accident and Emergency Department, Mr Andrew Mason to discuss the complaint.  It is right to say that that Dr Pye was represented by a representative of the British Medical Association, Mr Delaney.  At that meeting, Dr Pye was not shown a copy of the statement of complaint that had been made by Sister Tuffin, but he was asked for his explanation and his explanation was noted by Mrs Green.  

6	On 6 February, as we have said, Dr Pye’s employment terminated.  The Respondent Trust thought it appropriate, being uncertain of what steps to take as Dr Pye was leaving, to bring the complaint to the attention both of the General Medical Council and of Dr Pye’s new employers, the East Kent NHS Trust.  Dr Pye doubtless considered that there was a serious slur on his professional reputation because the complaint was one of a fairly serious and unpleasant form of sexual harassment, if accepted at face value.  He commenced his proceedings in the Employment Tribunal on 25 February of last year, and the hearing, with other complaints made by him, lasted some three days, 4 - 6 November.  The Employment Tribunal’s Reasons were sent to the parties on 25 November.  Dr Pye asked for a review; the review was rejected.  

7	The matter came before this Tribunal, presided over by His Honour Judge Reid QC on 11 June at a preliminary hearing, and on that occasion four specific matters were the subject of an amended Notice of Appeal, drafted by Mr Laddie, who had appeared under the ELAAS scheme.  

8	The four points were, firstly that the Employment Tribunal had failed to apply or refer to the Sex Discrimination (Burden of Proof) Regulations 2001, now embodied in section 63A of the Sex Discrimination Act.  Secondly that the Employment Tribunal was wrong in law in requiring Dr Pye to demonstrate conscious discrimination as opposed to unconscious discrimination, which, if found, also would have justified a finding in his favour.  Thirdly that the Employment Tribunal had erred in its approach to the question of the comparator and further that the Decision as to race discrimination was inadequate because it was encapsulated in three sentences only.  The fourth point that was to be raised was that the Employment Tribunal was wrong in treating race discrimination claims as equivalent to those of sex discrimination.  We have noted that Dr Pye has not in fact addressed us on anything other than the issue of the approach to the comparator, to which we will come shortly.  

9	Dr Pye’s main burden of submissions to us was in effect was that the Employment Tribunal had made findings of fact contrary to those which he felt it should have made.  I did explain to Dr Pye that so far as the Employment Appeal Tribunal is concerned, we are given jurisdiction to deal with appeals on matters of law not on matters of fact, and, further, that Dr Pye was permitted to raise those matters to which I have referred at the preliminary hearing, but no others.  I hope that Dr Pye will understand when we explain that it is not possible for us to re-visit contested issues of fact that were determined on the evidence by the Employment Tribunal.  

10	We have, however, given careful consideration to all the points and in particular to the points raised in the amended Notice of Appeal and we will explain our reasoning in relation to them.  The first point raised, as we have said, is that the Employment Tribunal failed to apply or refer to the Sex Discrimination (Burden of Proof) Regulations 2001 as embodied in section 63A of the Sex Discrimination Act 1975.  

11	Now it is important to bear in mind that as from 12 October 2001, section 63A(2) provides that:- 
“Where on the hearing of the complaint [of sex discrimination] the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent -
(a) has committed an act of discrimination against the complainant …..
the Tribunal shall uphold the complaint unless the respondent proves he did not commit, or, as the case may be, is not to be treated as having committed, that act.”

12	The effect of section 63A is, of course, to place a burden on the Respondent once the complainant proves facts from which a Tribunal could, in the absence of adequate explanation, properly come to the conclusion that an act of discrimination had occurred.  It is clear that there is no need for an Employment Tribunal to make specific reference to this matter, although it is surprising that it is not referred to in the Decision of the Employment Tribunal.  

13	The Employment Tribunal in its Decision also cited the well known passage in the case of King -v- Great Britain China Centre [1991] IRLR 513, see paragraph 51 of its Decision.  In the light of the change of the law brought about by section 63A, the guidance in King would only apply to the need to prove facts from which it may be concluded that discrimination has occurred in the absence of explanation, after which of course the burden of proof shifts.  It does seem to us possible, indeed probable, that the Employment Tribunal failed to appreciate the change in the law that section 63A had brought about.  However, as it seems to us, this does not avail Dr Pye because the Employment Tribunal made what the Respondent referred to as robust findings which made clear that its actions were in no sense discriminatory.  

14	The Employment Tribunal made findings firstly in relation to the most distressing conduct in relation to Sister Tuffin; secondly that it was proper to call a meeting, notwithstanding Dr Pye was on annual leave, as there would be no other opportunity for a meeting before he left his employment; thirdly that it was a preliminary investigation in accordance with the correct contractual procedure which was followed, and, fourthly, that there was a good reason not to supply a copy of Sister Tuffin’s witness statement at that stage.  The procedure at that stage had not reached the stage of a disciplinary process when it would have been necessary for the disclosure of the witness statement to take place.  It seems to us, therefore, this particular ground of appeal must fail.

15	Secondly, it is said, the Employment Tribunal was wrong in law in requiring Dr Pye to demonstrate that there had been conscious discrimination on the part of the Respondent.  It is not easy to see what unconscious discrimination there might have been and it does not appear to have been advanced during the course of the hearing.  However, whether it was necessary to demonstrate conscious or unconscious disclosure and whether it was necessary for the Employment Tribunal to make specific reference to this, the findings that we have referred to made by the Employment Tribunal in relation to the first ground of appeal clearly demonstrate that the Employment Tribunal found there was no discriminatory conduct.  It is also clear that the Employment Tribunal, having considered the facts, came to the conclusion that those facts did not give rise to any inferences that might properly have been drawn.  

16	The third ground of appeal relates to the suggestion that the Employment Tribunal erred in its approach to the question of the comparator and affirmed that its decision in relation to race discrimination was inadequate because it was encapsulated in three sentences.  We are perfectly satisfied that the Employment Tribunal’s decision that Dr Tsagas could not be considered to be an appropriate comparator is not open to challenge.  

17	The matter is set out in paragraph 54 of the Decision and it is most important to note firstly, that Dr Tsagas was not an employee of the Respondent National Health Trust, and, secondly, that the nature of the allegations made against her, and indeed by her, was materially different, and, thirdly, that the investigation into Dr Tsagas went beyond a mere preliminary enquiry.  It is clear that it went on to a full and formal investigation.  

18	We cannot fault the Decision of the Employment Tribunal set out in paragraph 54 to the effect firstly that Dr Tsagas was not an appropriate comparator, and, secondly, that the Trust would have acted in the way it did in relation to Dr Pye had a female doctor faced an equivalent allegation in respect of a male nurse.  Further, it seems quite clear to us that the Employment Tribunal considered all the relevant facts, came to a conclusion justified by the evidence, and, albeit its decision in relation to race was briefly expressed, it was sufficient and justified, and made quite clear to Dr Pye why it was that the finding had been made against him.  

19	Fourthly, it is said, that the Employment Tribunal was wrong in treating the race discrimination as equivalent to that of sex discrimination.  We do not believe that this allegation can be supported by a reading of the Decision.  It is quite clear that the Employment Tribunal considered the two allegations separately, albeit the facts overlapped, and they took additional facts into account, including the failure to award discretionary points, the report to the East Kent National Health Service Trust and to the GMC, which they found to be a reasonable action by the Respondents who were no longer Dr Pye’s employers.  

20	No case was put on the hypothetical comparator and there is nothing to suggest that a female or a member of a different ethnic group would have been treated any differently in so serious a complaint as was made by Sister Tuffin in relation to someone who was about to leave the service of the Respondent National Health Trust.  

21	It seems to us, therefore, that there is no substance in any of the four grounds of appeal which we have mentioned.  It may well be that Dr Pye did not intend to cause distress or shock to Sister Tuffin; it may be that he did not anticipate her reaction, but nonetheless where there were conflicts of evidence, those conflicts of evidence were resolved by the Employment Tribunal and it is not open to us to re-visit them.  In the circumstances, therefore, this appeal must be dismissed.