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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Allied Healthcare Group Ltd v. George [2008] UKEAT 0169_08_1411 (14 November 2008) URL: http://www.bailii.org/uk/cases/UKEAT/2008/0169_08_1411.html Cite as: [2008] UKEAT 0169_08_1411, [2008] UKEAT 169_8_1411

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APPEARANCES

 

For the Appellant	MS BEECHAM (of Counsel) Instructed by: Messrs Dakers Green Brett Solicitors The Captain's House Central Avenue Pembroke Chatham Maritime Kent ME4 4UF
For the Respondent	MS P GEORGE (The Respondent in Person assisted by a McKenzie adviser)


 


SUMMARY

RACE DISCRIMINATION

PRACTICE AND PROCEDURE: Bias, misconduct and procedural irregularity

The Employment Tribunal found that the Appellant had discriminated against the Respondent by failing to consider reinstatement to their register of nurses or to actually reinstate her to the register of nurses or to actually reinstate her to the register . The ET allowed an appeal on the grounds that (a) the point has not been pleaded or argued before the ET and (b) if the ET considered the issue to be a live one it should have clearly alerted the parties to it and given them the opportunity of dealing with it. Observations on amendment in a race discrimination case made following Ministry of Defence v Hay (UKEAT/0571/07/CEA).

HIS HONOUR JUDGE BIRTLES

Preliminary Matters

1. In respect of Ms George's notes and in respect of the Appellant's counsel's notes and Appellant's solicitor's notes, we are not going to look at them because the procedure provided for in the EAT order, putting this case through to a full hearing, has not been complied with and if there are difficulties with time then the EAT Registrar will always consider an order. In other words, the correct procedure is to agree notes if possible. If it is not possible then the procedure is to make an application to the EAT and, as a matter of practice, the EAT is quite liberal about extending time for making applications for Judge's notes. So we are not going to look at the notes on either side. We will look only at the Judge's notes.
2. So far as the "without prejudice" correspondence is concerned, we are going to not look at that on the basis of the normal rule that a court does not look at "without prejudice" correspondence and there is a long line of authority which binds us, including the House of Lords case in Rush & Tompkins Ltd v Greater London Council [1989] AC 1280. None of the exceptions to the "without prejudice" rule apply in this case. Courts do not look at "without prejudice" correspondence except in the most unusual circumstances and that is to protect the parties' contractual negotiations or negotiations about settlement.
3. The third point is the witness statement of Ms Abejide. We are not going to look at that. This is a witness statement dated 7 August which purports to give evidence about what Ms Abejide heard at the tribunal hearings in 2006 and 2007 when she was a witness for Ms George. We have the Judge's notes and the usual rule applies, which is that if we look at any evidence that was heard at the Tribunal then we look first at the judgment and the findings of fact of the Tribunal and, secondly, on the disputed point, if it becomes necessary we look at the Judge's notes. But we are not prepared to depart from the usual rule and look at any extraneous material. So that deals with that. So, Ms George, the position is that we are not going to look at your notes and we are not going to look at their notes.

At the conclusion of the hearing

4. I am going to give the judgment. I am required under the EAT Rules to give a reasoned judgment. It will be recorded and it can be transcribed so that a copy can be made available if you ask me for one at the end. Having given the formal judgment I will then explain, for Ms George's benefit, in, I hope, simple language what it means. But the form in which I am going to give it is standard form but you can ask me for a transcript at the end and I will order a transcript and then, in a matter of a week or two, depending on how busy our typists are, the transcript will be approved by me and sent to you. That applies, of course, to both sides.

Introduction

5. This is the hearing of an appeal from the judgment of an Employment Tribunal sitting in Watford on 11, 12 and 13 January 2006 and 19, 20, 21 and 22 March 2007.
6. At the conclusion of the submissions, the Chairman, Employment Judge Henry, gave an extemporary judgment which was subsequently transcribed and sent to the parties on 30 May 2007. It appears in the appeal bundle at pages 1 to 21. In short form, the Tribunal dismissed Ms George's claims of race discrimination and victimisation save on one ground, where it held that the failure to reinstate her to the Appellant's register of nurses was an act of racial victimisation. Against that finding the Appellant, Allied Healthcare UK Limited, has appealed. Today they have been represented by Ms Beecham of counsel and Ms George has represented herself with the assistance of a McKenzie adviser.

The material facts

7. These are set out, at length, in the Employment Tribunal judgment at paragraphs 9.1 to 9.69. Because of the limited nature of this appeal it is not necessary to set out all of those facts in detail. Suffice it to say, that the Respondent owns and operates a chain of nursing agency outlets providing nursing agency services to hospitals, care homes and social services departments.
8. The Claimant was a member of the Respondent's qualified members' scheme, engaged under various contracts for services offering midwifery services, being placed by the Respondent to bodies to whom they provided a service.
9. Complaints had been made about the competence and conduct of the Claimant. It is not necessary for us to explore those. Those complaints culminated in complaints from, first, St George's Hospital and, second, St Helier's Hospital. Following the closure of a complaint from St John and St Elizabeth Hospital a Ms Wright, who was the Appellant's area manager, wrote to the Respondent on 28 September 2004. As far as this appeal is concerned, the material facts are set out in the Tribunal's decision at paragraph 9.57 to 9.68.

9.57 This correspondence [that is in relation to the closure of the complaint from St John and St Elizabeth Hospital] was furnished to the Claimant's representatives by Ms Wright by a letter dated 28 September [2004] in which she advised of the conclusion of the hospital and that they did not wish the Claimant to be allocated further work there, Ms Wright concluded her letter, stating:

'I would also like to take this opportunity to remind Ms P George that we have not as yet received any response from her regarding the complaint received from St Georges and Epsom and St Heliers. I would therefore appreciate a response to these complaints within the next 7 days.'

9.58 By a letter dated 29 September, the Claimant's representatives responded to Ms Wright's letter of 14 September, that she (Ms Wright) had not dealt with the Claimant's complaints of harassment and victimisation, that the initial report of the Claimant to David Plillips on 10 April 2004 had not been properly processed, and responding to the St George and St Helier Hospital complaints stated:

'Complaint - St Georges Hospital

This statement of complaint received from St Georges Hospital was not raised with Pauline at the time it was made, she was not made aware of this statement until 29/07/04. At no point was this issue raised with Pauline prior to this date, therefore to suggest that this was done is untrue and deceitful.

Please find enclosed statement from St Georges circling the statement that the complaint was never discussed with the individual. This reveals that Pauline was not made aware of the complaint.

St Heliers Hospital

We find it incredulous that you require Pauline to instruct you on how to conduct proper investigations pertaining to your business.

As previously outlined in previous letter the allegation that Pauline refused to work in the Delivery suite is totally false, Pauline did actually work in the delivery suite on the night in question. A proper investigation would have proved that this allegation was untrue.'

9.59 By letter dated 5 October Ms Wright responded to the Claimant representative's letter of 29 September, stating that the investigation into the Claimant's complaint by St John and St Elizabeth Hospital was closed, that she had investigated the allegation against the staff of Staffing Enterprise which were not upheld, which matter was equally, therefore closed, offering an appeal thereon to the Operations Director. She then addressed the issue of the St George and St Heliers complaints, stating:

'I would like now to proceed with subsequent complaints that have been made against you that have been held in abeyance whilst we were investigating your grievances.

We have as you are aware received two further complaints about you.

The first one from St Heliers Hospital that was given to you at the meeting you attended on 4 August 2004 and secondly, a complaint from St Georges Hospital that was sent to you on two occasions, the second date being 21 July 2004.

To date we have had no formal response from you regarding these further complaints and have received no communication from you personally following the letter sent to you on 28 September 2004.

I would now like to ask you to attend a meeting with us at the Staffing Enterprise offices on Wednesday 13 October 2004 at 11.30am to discuss these further complaints. I would like to advise you that you are able to bring one representative with you to attend this meeting.'

9.60 On 9 October the Claimant left for Nigeria to visit her sick mother.

9.61 On 9 October the Claimant's representatives also replied to Ms Wright's letter of 28 September stating that the St Helier and St Georges complaints had been dealt with at the meeting on 31 August, stating that:

'… Pauline gave a full response to these allegations.

Kate McCulloch accepted Pauline's explanation of events and acknowledged that there was no concrete evidence that these incidents occurred and the matter would be closed.

… However, for your satisfaction Pauline has stated categorically on several occasions that the incidents in question did not take place. Please refer to previous correspondence for full statement of events…'

9.62 On 12 October the Claimant's representative, in reply to Ms Wright's letter of 5 October 2004, arranging a meeting for 13 October, advised the Respondent that the Claimant was out of the country attending her sick mother and not expected back until the end of November, further stating:

'… However as per previous letter sent to you on 9 October 2004, we do not understand the relevance of the meeting as you have confirmed in previous correspondence that internal investigations have already been carried out and concluded by Staffing Enterprise for clarification please state precisely the purpose of the meeting and what you would like to discuss about the alleged complaint.'

9.63 It is the Claimant's evidence that, prior to her representative's sending this letter of 12 October to the Respondent, a telephone call had been made to the Respondent informing them of her absence. The Tribunal has not been able to hear from the Claimant's witnesses on this point. The Respondent stating that they were unaware of any such telephone call.

9.64 It is the Respondent's evidence that the Claimant's representative's letter of 12 October was received after 13 October.

9.65 On 13 October the Claimant, having failed to attend the meeting, as arranged by Ms Wright, Ms Wright determined to remove the Claimant from the Respondent's register of member nurses stating:

'I have reviewed the notes taken at this meeting (31 August 2004) and these notes record that the meeting was held to discuss specifically the allegations you made against St John and St Elizabeth Hospital only.

During this meeting you did state that you were unaware of the complaints made against you by St Georges and also St Heliers Hospitals. As a result of this, another copy of the complaint from St Heliers was given to you at this meeting.

There is no mention in the notes regarding further discussion of these complaints and/or any explanation being offered by yourself to the events that led to the complaint or your version of events, therefore,these complaints are not concluded and still require further investigation and completion.

It states in the meeting that you felt that these complaints had been falsified and that you felt that Staffing Enterprise (was going out looking for complaints) this is clearly not the case as you are in receipt of a copy of the complaint, in writing, from the Hospital.

You also state in your letter that these incidents did not take place. Due to your reluctance to discuss these complaints with us, meet with us to discuss them further or supply us with a statement, in line with our policies and procedures, we are unable to bring these outstanding issues to a close.

I am therefore unable to offer you any further work through Staffing Enterprise and your membership will be terminated from the above date.'

9.66 Shortly after this letter was written, Ms Wright received the Claimant's representative's letter of 12 October, informing her of the Claimant's absence abroad, she thereon informed Ms McCulloch that she was now aware of why the Claimant had not attended the meeting, as she was out of the country.

9.67 On the balance of probabilities, this Tribunal is satisfied that if the call from the Claimant's representative had been made, this fact was not communicated to Ms Wright prior to her making her decision to remove the Claimant from the Respondent's register.

9.68 On the return of the Claimant to England the Claimant's solicitor, on 24 December 2004 wrote to the Respondent raising issue that the Claimant had been unfairly dismissed and discriminated against, and of the Claimant's intention to take legal action."

The Employment Tribunal decision

10. This appears at paragraphs 11.1 to 11.19 of the judgment: EAT bundle, pages 17 to 21. The Employment Tribunal dismissed the Respondent's claim in relation to a number of matters, see paragraph 11.1 to 11.1.3. As far as removing the Claimant from its register, the Tribunal said this:

11.14 The Tribunal finds that it was the practice of the Respondent to remove staff following the 1996 Patient Charter from their register in circumstances where a member of the nursing staff failed to provide a statement in respect of a complaint against them. The Tribunal is satisfied that when Ms Wright took the decision to remove the Claimant from the Respondent's register this was in line with the Respondent's policy and practice and was not on the ground of the Claimant having raised her complaint of race discrimination.

11.15 Whilst this ostensibly brought to an end the relationship between the Claimant and the Respondent, the Tribunal has considered to what extent the Respondent, having received information as to the reason for the Claimant's absence in attending the meeting on 13 October, the Respondent was obliged to act thereon, and if they were so obliged to act did they not so act because the Claimant had done a Protected Act.

11.16 The Claimant here submits that there was such a duty, which the Respondent failed to satisfy because she (the Claimant) was pressing her complaint of discrimination.

11.17 The Tribunal having heard from Mrs Pompilis that in similar circumstances, where she had removed a member of the nursing staff from the Respondent's register for not attending a meeting, on finding out the reason for that member of staff's failure to attend the meeting, not having remit to reinstate them herself, she prepared a bundle for consideration by her superior to reinstate that member of staff, and on which, that member of staff was then reinstated to the register. This Tribunal finds that when Ms Wright became aware of the reason for the Claimant's non-attendance at the meeting of 13 October, for her not to review her decision and consider reinstating the Claimant to the register, was to treat the Claimant less favourably than the member of staff considered by Mrs Pompilis.

11.18 This Tribunal, not having heard from Ms Wright and no other witness being able to address this point, questions Ms Wright having a duty to act, why did she not do so? This Tribunal not having heard from the Respondent on this point, the Claimant having advanced that it was because she had presented a complaint of discrimination and would not let it lie, and that it was expedient for the Respondent to maintain the status quo and not review the position. The Tribunal is satisfied that there is evidence to suggest that Ms Wright was becoming frustrated by the Claimant's persistence with regards to her complaint of discrimination by the Respondent and their clients. In the absence of any evidence to the contrary, this Tribunal finds that the Claimant was victimised by the Respondent, in not reconsidering the decision to remove her from their register, for her non-attendance at the meeting on 13 October.

11.19 The Tribunal accordingly finds that for this reason the Claimant was victimised by the Respondent in being removed from the Respondent's register.

The Notice of Appeal

11. The Notice of Appeal appears in the EAT bundle pages 22 to 24. It is divided into two parts. The first part alleges a serious procedural irregularity in that the Appellant here, the Respondent below, had no knowledge or understanding that the Tribunal was going to consider, in its judgment the issue of the reinstatement of the Claimant to the Appellant's register.
12. The second ground of appeal relates to time. In her oral submissions, Ms Beecham has corrected this and accepts that the issue of whether an amendment should have been made does not relate to the just and equitable test but to the law relating to making an amendment in the course of proceedings.
13. I take each of the grounds in turn.

Ground 1: Serious procedural irregularity

14. Ms Beecham submits, for the reasons set out in her skeleton argument, that the Employment Tribunal made an error of law in finding that there had been victimisation of the Claimant on the grounds of race by the failure to reinstate her to their register. That is dealt with in the passage which I have read, judgment paragraphs 11.15 to 11.19. In support of that submission Ms Beecham, both in her skeleton argument and oral submissions, made a number of sub-submissions or points in support of it.
15. Before dealing with the Tribunal's decision on ground 1, it is right that I should refer to the fact that at the beginning of the hearing we considered submissions and rejected Ms George's application that we should look at various other documentation, which included "without prejudice" correspondence which was not before the Employment Tribunal, a witness statement of her witness, which was made after the Employment Tribunal hearing, and her notes of the cross-examination, which had not been agreed and were objected to by the Appellant. Similarly, we upheld Ms George's application to exclude the notes of cross-examination taken by Ms Beecham, who appeared below, and by her solicitor.
16. Not only has the normal EAT process not been adhered to but, in effect, the relevant notes have been produced by an order of the EAT itself, which I will turn to in due course.
17. I return, then, to ground 1, serious procedural irregularity. The law is well known. In Chapman v Simon [1994] IRLR 124 at paragraph 42, Peter Gibson LJ said this:

"… it is the act of which complaint is made and no other that the Tribunal must consider and rule upon. If it finds the complaint is well founded, the remedies which it can give the complainant under s.56(1) [of the 1976 Act] are specifically directed to the act to which the complaint relates. If the act of which complaint is made is found to be not proven, it is not for the Tribunal to find another act of racial discrimination of which complaint has not been made to give a remedy in respect of that other act."

That case has been followed in Manchester Metropolitan University v D'Silva (unreported) UKEAT/0024/07/LA a decision of HHJ Peter Clarke and in Bradford Hospitals NHS Trust v Al-Shabib [2003] IRLR 4. It is not necessary for me to read from the later authorities.

18. In support of her submissions, Ms George relied on the decision of Langstaff J in Ministry of Defence v Hay (unreported) 21 July 2008 (UKEAT/0571/07/CEA). At paragraph 43 Langstaff J, giving the judgment of the Tribunal said this:

"43. If a hearing is to be fair, each party must be aware of the principal allegations to be made by the other, and have a reasonable opportunity of meeting them. It is entirely wrong (for instance) for a tribunal to determine a case upon a matter which has not been argued before it (as it appears happened in Chapman v Simon). It cannot, however, be the case that a party's contentions are frozen artificially yet definitively at some time prior to the hearing. Thus the rules make provision for the amendment of an originating application or, as the case may be, a defence to it. It is often desirable for the sake of clarity that there should be a formal amendment. However, where the position is one in which there is no frank change to an existing claim, nor fresh claim, arising out of the same facts, being made but instead a resolution of an existing confusion, or a clarification of that which has been said, we think that to require a formal amendment as a matter of jurisdiction is to insist upon excessive formalism. Thus, if another incident is complained of in a discrimination case beyond those the facts of which already have been outlined, an amendment will usually be necessary before a tribunal can consider it (Chapman v Simon is authority for this). In other cases, however, what is required is expansion of that which has already been said. If, reasonably viewed, this puts the opposite party at a disadvantage then a tribunal will consider whether or not to grant an adjournment, which would normally resolve any prejudice there might be. The purpose of a hearing, after all, is to allow the parties to resolve those matters which are truly in dispute between them, at least where this can be done without unfair prejudice to the position of either. Thus if a respondent justifiably complained that there was a lack of clarity in a claimant's originating application, then (depending of course, on the circumstances) an adjournment might well resolve any prejudice. The focus will be on whether a fair trial of the issues (as expanded) can take place. [On the facts of this case (that is Ministry of Defence v Hay) the additional material related to evidence of the Claimant's TB condition.]"

19. Having carefully considered the submissions on both sides, we are unanimously of the view that the Tribunal made an error of law in making a finding that the Appellant's failure to consider reinstating, or indeed reinstating the Respondent on its register amounted to an act of race victimisation for the reason that the issue was not before the Employment Tribunal. In other words the Chapman v Simon authorities apply in this case. We say so for the following reasons. First, that claim is not pleaded in what was then an originating application now a claim form. That appears in the EAT bundle at pages 27 to 43. The relevant part is paragraph 27(viii) of the claim form, EAT bundle, pages 41 to 42. It says this:

"Further and in the alternative the Claimant considers in respect of all matters listed above she had suffered Race Discrimination and/or been victimised contrary to the Race Relations Act 1976. In particular, following her complaint to the Respondents that she had been racially discriminated against on 9 April 2004 the Respondents:

…

(viii) Dismissing the Claimant without warning or notice on 13 October 2004."

20. Second, the issue was not identified at the case management conference held on 20 May 2005 at the Watford Employment Tribunal. The note of the case management orders were sent to the parties on 2 June 2005. It appears in the EAT bundle at pages 53 to 55. At page 53, the Tribunal refer to the fact that it has identified the issues arising in this case as are set out in the first schedule to the order. One turns to page 54 and under the heading victimisation, section 9:

"Was the Claimant victimised by the Respondent on the grounds of her race by:

9.1 reducing the amount of work offered to her, and

9.2 removing her from the Respondent's register as a result of the said protected act?"

21. Third, the matter is not referred to in the Claimant's witness statement and that appears at EAT bundle, pages 77 to 82.
22. Fourth, the matter was not particularised at the beginning of the Tribunal hearing in the usual way. The judgement which I have referred to at EAT bundle, pages 1 to 21 begins in the usual way by setting out the judgment and, at page 2, paragraph 3, lists the issues and records this:

"The issues agreed at the outset of the Hearing for the Tribunal's determination are as follows:

…

5. In these circumstances:

5.1 Was the Claimant victimised by the Respondent on the grounds of her race by:

(a) Reducing the amount of work offered to her? And

(b) Removing her from the Respondent's register as a result of the said 'Protected Act'?

23. That of course, as indeed the other issues, reproduce the issues identified at the earlier case management conference on 20 May 2005.
24. Fifth, at the hearing itself, Mrs Pompilis was cross-examined by Ms George and gave the evidence I have referred to that in another case a nurse, who had been suspended for failing to attend an interview, had been reinstated, or at least been put forward for reinstatement, when Mrs Pompilis discovered that there was a valid reason for her not attending the interview. That is a far as the evidence before the Tribunal went.
25. As a result of an order of the Employment Appeal Tribunal, the Employment Tribunal was sent a Barke request: see Barke v Seetec Business Technology Centre Ltd (2005) IRLR 633. First, by an order dated 25 July 2007, it was asked to comment on the grounds of appeal and, in particular, explain why the Tribunal considered that it was properly charged with the question of determining whether the failure to review the decision to remove the Claimant from the register constituted victimisation discrimination.
26. The Employment Judge replied in a letter received at the Employment Appeal Tribunal on 23 August 2007. In the letter, having referred to the case management conference on 20 May 2005 and the identification of issues at the beginning of the Tribunal hearing on the first day, the Judge says this:

"4. The Tribunal was accordingly charged to determine, to what extent the removal of the Claimant from the Respondent's register of nurses was connected to her having done the protected act, in this instance raising complaints of discrimination against both the Respondent and the Respondent's clients.

5. The evidence of the Claimant, in respect of her removal from the Respondent's register of nurses, was that because she was persisting in her complaints of discrimination, it became expedient to remove her from the register rather than to address her concerns; the Claimant reluctant to let the issue lie. The Claimant here maintained that the Respondent was well aware of her unavailability to attend the hearing arranged for 13 October, but nevertheless persisted to make a finding against her in her absence, substantiating her assertion of victimisation.

6. It was the finding of the Tribunal that when the initial decision to remove the Claimant from the register was taken, the particular hearing officer, Ms Wright, had not had sight of the letter, although the letter had been received by the Respondent and, therefore, the action of the hearing officer, Ms Wright, was not done in the knowledge that the Claimant was unable to attend. That having been said, the Tribunal heard evidence that shortly after Ms Wright had made her determination, but before taking any further action in communicating this fact to the Claimant, she was presented with the correspondence from the Claimant, notifying the Respondent of her inability to attend the meeting, as arranged, which fact she (Ms Wright) then communicated to Ms McCulloch, making comment that that explained the Claimant's absence. However, now in receipt of that information, the officer did not appear on the evidence before the Tribunal to reconsider her reasons but proceeded to have correspondence sent to the Claimant informing of her decision (I will refer to that in a moment).

7. In these circumstances, in addressing the question why the Claimant was removed from the register, the actions of Ms Wright and why, in the light of the information received before she communicated her decision to the Claimant, she did not review the decision became, in the Tribunal's view, intricately entwined with the decision of removing the Claimant from the register. (The Respondent in the hearing was reminded that this was an issue that would have to be addressed and would be assessed by the Tribunal.) [I will revert to that point in a moment].

8. In the light of the further evidence received from the Respondent's witness, Mrs Pompilis, in respect of previous incidents where an officer had failed to attend a scheduled meeting and the course of action then taken it was, in this Tribunal's view, sufficient reason to have an explanation from the Respondent as to whether they did or did not reconsider the decision to remove the Claimant from the register, particularly observing that that decision had not been communicated to the Claimant at the point they received the Claimant's letter explaining her absence. In light of the Claimant's assertions, there was, in the Tribunal's view, sufficient evidence without further explanation from the Respondent for which the Tribunal could conclude that the decision of removing the Claimant from the register was on account of her raising the complaint of discrimination. Accordingly, in the absence of any evidence to this fact from the Respondent, the Tribunal was bound in its finding."

27. Following receipt of the letter the Employment Appeal Tribunal, in the usual way, sent copies of it to the parties by a letter dated 19 September 2007. The Appellant made criticisms of it: see EAT bundle, pages 62 to 63. That resulted in HHJ Serota QC making an order for the two parts of the Employment Judge's notes of evidence. First, as to the date of receipt by the Respondent of the letter dated 12 October from the Claimant's representative, and, second whether the Employment Tribunal had raised the issue of reinstatement to the register with the parties at the hearing. The order appears at EAT bundle page 64. The Judge provided his notes some considerable time later. Judge Serota's order is dated 18 October 2007. It would appear that the Judge's notes did not arrive until the spring of 2008. They appear at EAT bundle pages 65 to 67 and they say this:

"Further to the order of the Employment Appeal Tribunal dated 18 October 2007, Employment Judge Henry provides the following:

1. 'The evidence before the Employment Tribunal with a date of receipt by the Respondent of the letter dated the 12^th Day of October 2004 from the Claimant's Representative.'"

That was the first issue on which his notes were requested. He then refers to:

"On day three of the Tribunal Hearing, on cross-examination of Mrs McCulloch the Tribunal received the following evidence."

28. He then sets out his note of the cross-examination of Ms McCulloch on this point. The relevant part appears at the top of page 66 where Ms McCulloch said this:

"Yes, Ms Wright did come to me and say that she had a letter saying that she had received a letter from you - saying that that is the reason why you could not attend the meeting on the 13 October.

The letter to you had already been sent to you."

29. Further down page 66, the Judge recites the second item on which his notes of evidence were requested and gives his note on whether the issue of failure to review the removal of the Claimant from the register was an issue that would have to be addressed by the Employment Tribunal. He records the following in his note:

"Following the conclusion of evidence on day 3 of the case then being adjourned to the 26 June 2006 the Tribunal was informed that a witness who had not been able to attend could now attend the resumed hearing it being determined to hear that witness first at the resumed hearing. It was then raised by the Chairman whether Ms Wright would be called to give evidence as Ms Wright was the dismissing officer. The Tribunal was informed that Ms Wright had left the Respondent's employment and Ms Wright would not be called as a witness. The Chairman stated that this gave rise to a situation where the Tribunal would be called on to draw an inference in respect of discrimination and harassment and was an issue that the Tribunal will have to decide."

30. We note about this that the date of 26 June 2006 was intended to be the resumed date of the hearing after the first three days in January 2006. Unfortunately that did not happen and the Tribunal did not, in fact, resume its hearing of the case until 19 March 2007. Those two pieces of evidence, contained in the Judge's notes, are material because, regrettably, they fatally undermine two of the answers he gave to the Barke remission that is set out at pages 58 to 60 of the EAT bundle which I have just read. First, at paragraph 6 of his answer to the Barke remission he asserts that Ms Wright had been informed of the reason why the Respondent was not able to attend the meeting on 13 October but, despite having that information in her possession, "Proceeded to have correspondence sent to the Claimant informing her of her decision." That is undercut by the note of cross-examination of Ms McCulloch at EAT bundle, page 66: "The letter to you had already been sent to you". It would appear that when the Judge wrote his answer to the Barke remission he did not have his notes in front of him or had misunderstood them.
31. Second, the notes of evidence fatally undermines the Employment Judge's assertion in paragraph 7 of his answer to the Barke remission that the Tribunal had reminded the Respondent at the hearing that the issue of reinstatement of the Claimant to the register was an issue that would have to be addressed and would be assessed by the Tribunal. We unanimously agree that we are quite unable to say that the note that I have read at the bottom of page 66 and the top of page 67 of the EAT bundle justifies paragraph 7 of the Judge's answer to the Barke remission. It follows that, in our view, the Judge was wrong in asserting first, that Ms Wright's letter dismissing the Claimant from the Appellant's register of staff was taken before the letter or, rather, the reason why she was absent from the meeting of 13 October 2004 was before her and before the decision removing the Claimant from the register was taken and second we are satisfied that the issue of reinstatement to the register was not flagged up for the Respondent to deal with in its closing submissions.
32. We have been provided with the very careful closing submissions of Ms Beecham, who appeared for the Appellant below. They are 37 paragraphs long but there is no reference there at all to the issue of reinstatement to the register.
33. It follows that the issue of reinstatement to the register was never before the Employment Tribunal but when they retired they clearly thought that it should be decided. It was an error of law to do so without alerting the parties to the point and giving them the opportunity of dealing with it, and they should not have made the finding that they did in paragraphs 11.15 to 11.19 of its decision.

Ground 2: Amendment

34. I turn to the second ground of appeal. Ms Beecham accepts that the question is if an amendment had been sought by the Respondent should it have been raised. It was not raised. We think that the correct procedure in this case was to follow what Langstaff J described at paragraph 43 of Ministry of Defence v Hay. In a race discrimination case, it is essential that the Respondent knows the case it has to meet. If the Respondent had wished to raise the issue of reinstatement, then she should have done so by an amendment to the originating application and flagged up the issue at the beginning or, at least, during the hearing as an issue. It never was.
35. For these reasons we allow the appeal. There has been a material error at law on the part of the Employment Tribunal. It acted without jurisdiction. We have considered what course of action to take. We have looked at the authorities that we have been referred to and the approach of HHJ Peter Clarke in Manchester Metropolitan University v DeSilva and the approach of HHJ Reid QC in Bradford Hospitals NHS Trust v Al-Shabib. It seems to us clear that the only course of action we can take where a Tribunal is acting without jurisdiction in making a finding of race discrimination against a Claimant on a point not pleaded or raised as an issue in the proceedings is to say that the Tribunal acted without jurisdiction. It follows that the Tribunal having acted without jurisdiction there is nothing for us to remit to the Employment Tribunal. The appeal will therefore be allowed.