THE HONOURABLE MR JUSTICE SILBER
Introduction
1.
North Bristol NHS Trust (“the Respondent”) appeals against (a) a
decision of an Employment Tribunal sent to the parties on 18 April 2011 holding
that the claim of victimisation made by Mrs Alvida Harrold (“the Claimant”) was
well-founded; and (b) further decisions of the Employment Tribunal dated 4 and
10 May 2011 refusing the Respondent’s applications for a review of the decision
specified in (a). The Respondent also seeks to adduce new evidence on this
appeal. For the purpose of completeness, we should add that there has been a
remedies hearing and the Respondent has not sought to appeal the order made
against it at that hearing.
2.
In this appeal, the Respondent challenges the decision of the Employment
Tribunal not to accede to its application to adjourn the liability hearing on
the third and final day of that hearing so as to allow the Respondent to call
further witnesses. Those witnesses were the two individuals, who had decided to
refer the Claimant to the Nursing and Midwifery Council (“NMC”) in the letter
of 17 November 2006 (“the November 2006 NMC letter”) and they were Ms Corinne
Thomas and Ms Linda Prime, who were then respectively the Director of Nursing
and the Deputy Director of Nursing of the Respondent. The application to the
Employment Tribunal for an adjournment was made against the background that, in
the words of the Tribunal’s decision to refuse the application for an
adjournment, it was: -
“Satisfied that the respondent has always been in the position
if it wished to. to bring evidence from the decision makers regarding their
reasons for the referral to the NMC, no proper reasons has been given for them
not having done so and that the broadening of the protected acts to include
letters written in June 2006 does not alter that reality”.
3.
The background to the application for an adjournment is that at a Case
Management Discussion on 23 November 2010, it was clarified that the issues in
the claim were whether the respondent:-
(a) Victimised the Claimant by giving
false evidence to the NMC such that they caused the Claimant to be struck off;
and
(b) Directly discriminated against the
Claimant in reporting her to the NMC in the November 2006 NMC letter, while the
Respondent did not do so on learning that Anna Reutt (who unlike the Claimant
was white) had committed a criminal act.
4.
The Claimant withdrew claim (a) before the liability hearing. So the
Employment Tribunal and this Appeal Tribunal have only been concerned with
claim (b). At the outset of the substantive hearing of the claim before the
Employment Tribunal on 21 March 2011, there was, as the Employment Tribunal
stated in its decision:-
“2… Further discussion with the parties at the outset of the
hearing on 21 March [which] concluded with agreement that this claim was
properly to be dealt with was one of victimisation – what was the reason that
the claimant was referred to in [the November 2006 NMC letter]? Was the
claimant referred to the NMC by reason of the fact that she had done protected
acts? S2 Race relations Act. It was agreed that this claim would be
determined on the basis of looking both at the claimant’s named real comparator
(Anna Reutt) and at a hypothetical comparator.
3. As this claim proceeded as one for victimisation it became
necessary to identify the protected acts. No issues were raised on this at the
outset of the hearing. Instead this was addressed at the conclusion of the
evidence when the tribunal was seeking the assistance of the parties in
identifying the characteristics of a relevant hypothetical comparator before
submissions commenced – it being apparent from the case law that that a
hypothetical comparator needed not to have done any of the protected acts. It
therefore was important to be clear what the protected acts were.”
5.
There has been a substantial dispute to which we will return later as to
what was actually stated at the outset of the hearing about the need for there
to be a hypothetical comparator because the case for the Respondent is that the
discussion only took place at the conclusion of the evidence on the second day.
6.
As we have explained, the Employment Tribunal’s judgment recorded that
it took place at the outset of the hearing and because of the dispute,
affidavits were obtained from members of the Employment Tribunal. The
Employment Judge said in her affidavit that her “note would tend to suggest
that I ventilated the need to identify both Anna Reutt as a real comparator and
a hypothetical comparator on day 1”. One of the lay members of the Employment
Tribunal agreed with the Employment Judge’s recollection, while the other lay
member only has a note of the discussion relating to the hypothetical
comparator at the start of the third day of the hearing and “so am unable to
help with any earlier mention of the issue”.
7.
Ms Helen Gower and Ms Mandeep Kainth, who respectively were the counsel
and solicitors for the Respondent at the hearing before the Employment
Tribunal, both stated in affidavits that the addition of a hypothetical
comparator was first mentioned at the end of the second day, while the Claimant
contends the hypothetical comparator issue was discussed before progressing to
hear the claim. In our view, we should prefer the evidence of the Employment
Judge and her colleague, who have notes to that effect, but, as we will
explain, our conclusion on this appeal would be the same irrespective of which
version we accept.
8.
The Employment Tribunal explained that as the claim proceeded as one for
victimisation, it became necessary to identify the protected acts but no issues
were raised on this at the outset of the hearing. It was however considered at
the conclusion of the evidence when the Tribunal was seeking assistance of the
parties in identifying the characteristics of a relevant hypothetical
comparator before submissions commenced. The Employment Tribunal explained that
the case law showed that a hypothetical comparator need not have done any of
the protected acts, but that it “was important to be clear as to what the
protected acts were”.
9.
The Employment Tribunal was concerned as to why the Claimant (who had
been employed by the Respondent as a nurse from 9 March 2001 until 20 December
2005) was referred to the NMC and this required consideration of the November
2006 NMC letter which had been sent by Ms Prime the Deputy Director of Nursing
of the Respondent. It stated (with emphasis added) that:-
“Dear Sir/Madam
Re: Mrs Alvida Harrold – Pin 78E1 1083E
On two occasions this year I have sought advice on whether the
above registrant’s behaviour was a breach of the NMC Code of Professional
Conduct. On neither occasion did I advise the NMC of the registrant’s name, I
purely sought advice. Subsequent to these discussions it is now the view of
both the current Director of Nursing and myself that we have a duty to refer
this registrant on the grounds primarily of professional mis-conduct, although,
there are also some capability issues that have remained unresolved. This
nurse was employed at North Bristol Trust from 09-09-2001 until her dismissal
in 20-09-05.
During this period of employment there was a considerable degree
of complexity in the employer/employee relationship. To assist the NMC in
understanding the context of this referral, I am attaching a detailed time-line
of events relating to Mrs Harrold.
As a result of the serious breakdown in the employment
relationship it has been impossible to resolve some of the professional issues
at a local level. The NMC needs to be aware that there are still on-going
complaints by Mrs Harrold in relation to the way she has been dealt with. In
addition, Mrs Harrold has appealed the decision of the Employment Tribunal Case
Numbers:-
1401823/2004
1400516/2005
1402052/2005
Putting aside the direct employment issues. I wish to focus on
the professional conduct issues that have regrettably led to this complaint.
In August 2004, Mrs Harrold was employed as an E grade Staff
Nurse working on a Renal Dialysis Satellite Unite based at the Royal United Hospital Bath. This unit is staffed and managed by North Bristol NHS Trust.
There had been a concern raised by Mrs Harrold’s manager about
her practice and this had resulted in a grievance procedure being initiated by
Mrs Harold for discrimination on the grounds of race. The breach of
professional practice relates to Mrs Harrold writing open letters to the
patients and staff about her situation. Despite being advised, not to do this
by her manager Mrs Harrold went ahead with this action. In the view of this
organization and the Employment Tribunal this was not a rational act and it was
described by the Employment Tribunal as “singularly lacking in professionalism”
a copy of a letter sent to a patient is enclosed. It was never possible to
resolve this professional practice issue during Mrs Harrold’s employment.
In June 2006 Mrs Harrold wrote two letters following the
unfavourable outcome of the Employment Tribunal, which found in favour of the
Trust. The first letter was written to Mr Alistair McDougal, Director of HR. A
copy of the letter is attached and as you will see it uses abusive language and
threatens to publish an article about the organisation, despite the fact that
none of Mrs Harrold’s allegations have ever been upheld. The second letter
(copy enclosed) was written to the current manager of the Bath Satellite Unit,
a previous work colleague of Mrs Harrold, although not the manager at the time
of the original grievance. Again, Mrs Harrold is very offensive, making
unfounded allegations of racism against this nurse.
The receipt of both of these letters was reported to the
police and the Trust solicitor wrote a letter to Mrs Harrold (copy enclosed).
It is the view of both the Director of Nursing and myself
that Mrs Harrold’s conduct towards patients and work colleagues has fallen
short of that, which can reasonably be expected from an experienced registered
nurse.
In mitigation, it is clear that Mrs Harrold has experienced a
serious breakdown in the relationship with North Bristol Trust as an employer,
however, it is not our view as senior nurses that this justifies her actions in
relation to the patients on the Renal Unit in 2004 and her previous work
colleagues in June 2006.
I have not enclosed statements or details of investigations with
this complaint as they represent a substantial amount of paperwork. If the NMC
requires any further information we will be happy to provide it.
I am enclosing a copy of the Employment Tribunal Judgment, as it
does cover some of the concerns raised.”
10.
The Claimant disputed the contention of the writer of the November 2006
NMC letter that the two June 2006 letters were abusive and that they contained
allegations of racism. On second day of the hearing, the Employment Tribunal
asked the Respondent to produce the two letters of June 2006, which
surprisingly were not in the bundle then before the Employment Tribunal. They
were eventually produced on the morning of the third day of the hearing just
before submissions of the legal representatives of the parties were due to
start and at the time when the Tribunal was trying to clarify the
characteristics of the hypothetical comparator and in particular whether it
included writing those letters.
11.
Having considered the letters, the Tribunal concluded that the Claimant
was making complaints of racial discrimination in them and therefore it
indicated that the “protected acts” relied on by the Claimant should
probably include those letters. That was because the Respondent had always
known the letters contained allegations of racial discrimination and of course
they had been referred to with some prominence in the November 2006 NMC letter.
Thus the Employment Tribunal considered that it must reasonably be assumed that
those letters would have had some relevance to the decision of the Director and
Assistant Director of Nursing to refer that matter to the NMC.
12.
At that time, the Respondent objected contending the Claimant should
only be entitled to rely on her two earlier Tribunal claims as protected acts
and its objection was based on the fact that the Claimant had clarified at the
outset of the hearing that the protected acts relied on were only the two prior
Tribunal hearings. The members of the Employment Tribunal had no note of the Claimant
confirming this, although it had been clarified in the Case Management Order
that the protected acts were the two Tribunal claims.
13.
In the alternative, the Respondent contended that if the Employment
Tribunal was going to consider whether the June 2006 letters were protected
acts, it should only do so if the Respondent was then granted an adjournment to
be given an opportunity to call those who had made the decision to refer the Claimant
to the NMC. The Tribunal rejected this application on the grounds that:-
(a) it was
an “unhelpful approach and inconsistent with the overriding objective of
assisting the Tribunal to (a) put the parties on an equal footing; (b) ensure
the matter is dealt with expeditiously and fairly” [9];
(b) “if
this well represented respondent, knowing as they always did that these two
letters said what they did and therefore amounted to a protected act, had
wanted the claimant NOT to be able to rely upon them once it was clarified with
the agreement of the respondent at the outset of the hearing that this claim
was to proceed as one for victimisation, or at least only to be able to rely
upon them if the respondent were granted an adjournment to bring more
witnesses, the proper time to have done that would have been at the outset of
the hearing. At that time we would have been possible to accommodate
some further witnesses with a 3 day hearing scheduled” [10];
(c) As the Respondent
was not represented and was not in the best position to properly marshal
arguments regarding the announcement of a victimisation claim, the Respondent
had a duty to assist the Tribunal in fairly determining the claim and once
letters were produced “it was easily apparent that these amounted to
protected acts [and] the respondent has raised no cogent argument for it not
being proper for us to allow the claimant to rely upon them as such in the
victimisation claim – particularly as they lie at the heart of the very
decision that we are examining – the referral to the NMC” Those 2 letters are
both referred to in the referral to the NMC and copies were sent to the NMC”
[10];
(d) “There
seemed to be no good reason for the Tribunal then to delay matters by the
granting the respondent’s postponement application simply because the Tribunal
now understands what the respondent has known all along, namely what was
written in those letters of June 2006 and thus permit the claimant to rely upon
protected acts. The respondent has always been and remains in a position to
properly and fairly defend itself against the claim of victimisation and bring
any evidence it wished to explain what caused the referral to the NMC” [12];
(e) “The
respondent is represented by Beachcrofts- a large national firm of solicitors
who do a lot of work in the health sector - this seemed to us to be no proper
explanation for not calling the decision makers to give evidence regarding the
decision to refer to the NMC, if the respondent’s (sic) had been minded to do
so” [33]; and that
(f) as
stated in it is oral reasons, “The Tribunal being satisfied that the
respondent has always been in the position if it wished to, to bring evidence
from the decision makers regarding their reasons for the reference to the NMC,
no proper reason has been given for them not having done so and that the
broadening of the protected acts to include letters written in June 2006 does
nor alter that reality”.
14.
Having refused the application for the adjournment, the Employment
Tribunal then explained the relevant potential protected acts were:-
(a) The three previous claims made by the Claimant for direct
discrimination, victimisation and unfair dismissal in claims 1401823/04,
1400516/06 and 1402052/05 were all dismissed in a reserved judgment sent to the
parties on 22 March 2006;
(b) The claim 1402160/06 which was for victimisation against the Respondent
and against Fresenuis Medical Care Renal Services Limited (which is a private
sector provider of renal services and who had an agreement with the Respondent
for the provision of dialysis to its NHS patients). The claim against the Respondent
was dismissed but against Fresenuis, it succeeded. As we will explain, the
Employment Tribunal considered that it was the bringing of this claim by the Claimant
which led to the decision to refer her to the NMC; and
(c) The Claimant’s two letters written in June 2006 which are referred
to in the November 2006 NMC letter and which contained allegations of race
discrimination.
The findings of the Employment Tribunal
15.
The Employment Tribunal expressed its surprise on several occasions as
for example set out in paragraph 33 of the decision in the passage quoted in
paragraph 13(e) above that the Respondent had not decided to call its Director
of Nursing and the Deputy Director of Nursing as they had made the decision to
refer the Claimant to the NMC. The Employment Tribunal therefore adopted the
approach of looking at their findings of fact and then drawing the inferences
that seemed proper. It considered whether it was the letters of June 2006,
which caused the Respondent to send the November 2006 NMC letter, but it
concluded that this was not the case because if it had been, then the decision
to refer the Claimant to the NMC would have been made at that time rather than
when the actually referral took place five months later in the November 2006
NMC letter.
16.
The Tribunal considered that it was the fresh proceedings brought in
September 2006 which was the causative factor because “there is simply no
explanation put forward by the respondent that leads us away from inferring
that it was the fresh proceedings in September 2006 that caused the decision to
refer” [104]. It was also satisfied on the balance of probabilities that if
the Claimant had not made the claim in September 2006, the Director of Nursing
and her deputy would not have made a referral to the NMC. The claim for
victimisation was therefore upheld.
The submissions
17.
The main submissions of Mr Rohan Pirani on behalf of the Respondent on
the appeal and who did not appear before the Employment Tribunal were that:-
(a) The
Employment Tribunal erred in refusing an adjournment because it should have
been allowed (i) on the grounds on which the application was made to it, namely
the introduction of a new protected act; and (ii) on a new ground not raised
before the Employment Tribunal, namely the introduction of a hypothetical
comparator;
(b) The
Employment Tribunal erred in not allowing the Respondent’s two applications for
review on the grounds of fresh evidence; and that
(c) This
Appeal Tribunal should admit the new evidence under the principle in Ladd
v Marshall [1954] 1 WLR 1487.
18.
Ms Claire Darwin for the Claimant and who did not appear before the
Employment Tribunal contends that the Employment Tribunal correctly refused to
grant first the application for an adjournment and second the applications to
review the original judgment. She also submits that the application for this
Appeal Tribunal to admit the new evidence should be refused, as the conditions
for its application had not been satisfied.
Should the Employment Tribunal have granted the
Respondent’s application for an adjournment because of the introduction of a
new protected act?
19.
Mr Pirani relies on the test set out by this Appeal Tribunal in O’Cathail
v Transport for London [UKEAT/0247/11] in which Judge Richardson
explained that:-
“35. There are however some decision to grant (or more usually
refuse) an adjournment which imperil the fairness of the proceedings as a
whole. Where this is a ground of appeal, the Appeal Tribunal must look for
itself to see whether the effect of the decision has been to deny a fair
hearing to the applicant.”
20.
That decision is the subject of an appeal to be heard next term, but the
principle set out here is not controversial. In any event, it is consistent
with the overriding objectives of the Employment Tribunal (Constitution and
Rules of Procedure) Regulations 2004 which are to enable Employment
Tribunals “to deal with cases justly” (Reg 3 (1)), and that entails
including “so far as practicable. (c) ensuring that [a case] is dealt with
expeditiously and fairly” (Reg 3(2) (c)).
21.
Mr Pirani contends that a fair hearing has been denied to the Respondent
and he points out that the Employment Tribunal explained that a ground for the
refusal of the application for the adjournment was that “we may have been
able to have accommodated some further witnesses with a 3 day hearing schedule”
at the outset of the hearing, but his contention is that this is erroneous
because the hearing was listed for five days (not three days) and the evidence
was completed in two days.
22.
We were told that the actual time allocated was, as the Employment
Tribunal indicated, reduced from the original five day estimate to three days,
but that does not matter as the Respondent was unable to obtain the requisite
witness statements for more than 28 days as it explained in its application for
a review of 27 April 2011. In any event, the Employment Tribunal was entitled
to refuse the adjournment for two reasons. First, there is no error in law in
the Employment Tribunal’s reasons set out in paragraph 13 above and in
particular as stated in it is oral reasons:-
“The Tribunal being satisfied that the respondent has always
been in the position if it wished to, to bring evidence from the decision
makers regarding their reasons for the reference to the NMC, no proper reason
has been given for them not having done so and that the broadening of the
protected acts to include letters written in June 2006 does nor alter that reality.”
23.
In deciding whether to grant an adjournment, the Employment Tribunal was
obliged to consider the interests of the Claimant and not to accede
automatically to the wishes of the Respondent, especially in the light of the facts
first that it was vital for the Respondent to call as witnesses the people who
actually made the decision to report the Claimant to the NMC especially as the Claimant
had stated in her ET1 that she had complained to the Employment Tribunal in
2004 and in 2006 and that she was victimised by the Respondent for this, second
that Respondent had no excuse for not calling these people as witnesses and
third an adjournment would prejudice an unrepresented Claimant.
24.
Second, the Employment Tribunal was entitled to conclude that the Respondent
ought to have appreciated even without a CMD that the two June 2006 letters
(which were at the heart of the complaint to the NMC) amounted to a protected
act. Indeed, as we have explained, the Respondent referred to them prominently
in its letter of referral to the NMC. So the critical issue for the Employment
Tribunal irrespective of whether the claim was for discrimination or for
victimisation was why the Respondent referred the Claimant to the NMC
and this necessitated calling those who made the decision to refer the Claimant
to the NMC. As was explained by Underhill P in Cordell v Foreign and
Commonwealth Office [2012] ICR 280 (with emphasis added):-
“18 …provisions proscribing direct discrimination elsewhere in
the anti-discrimination legislation, appears to require the tribunal to
consider two questions – (a) whether the claimant has been treated less
favourably than an actual or hypothetical comparator with the same
characteristics (other than his or her disability) was or would have been
treated (“the less favourable treatment question”), and (b) whether that
treatment was on the grounds of that disability (“the reason why question”).
However, as was pointed out by Lord Nicholls in Shamoon v Chief
Constable of the Royal Ulster Constabulary [2003] ICR 337 and as has been
repeatedly emphasised since, both in this Tribunal and in the Court of Appeal though still too often too little heeded by tribunals –
those two questions are two sides of the same coin, and the answer to the one
should in most cases give the answer to the other. To spell it out: if A,
who is deaf, has been treated differently from B, who is not, and that is
indeed the only difference between their cases, the irresistible inference will
be that the reason for the different treatment is A’s deafness; and likewise if
A is subjected to a detriment on the grounds of his deafness it logically
follows (at least if that disability is the principal ground) that a person who
was not deaf would not have been so treated. As between the two
questions, it is the reason why question that is in truth fundamental
Where there is an actual comparator, asking the less favourable treatment
question may be the most direct route to the answer to both questions; but
where there is none it will usually be better to focus on the reason why
question than to get bogged down in the often arid and confusing task of ‘constructing
a hypothetical comparator’”
25.
The “reason why” question is equally relevant to victimisation
cases (see, for example, Chief Constable of West Yorkshire Police v Khan
[2001] ICR 1065 [29], [54] and [77] and Martin v Devonshire’s [2011] ICR 352 [29] and [30]). I agree with Ms Darwin that the Employment Tribunal was
entitled, if not obliged, to assume that the Respondent must have been aware of
the great relevance of these issues and so it should have prepared to deal with
these issues which would have required the presence of those responsible for
referring the Claimant to the NMC.
26.
I should add that even if the adjournment had been granted and the Respondent
had been able to call the witnesses, who they wished to be called, the result
of the hearing would not necessarily have been different. The reason for that
was that the Employment Tribunal did not find against the Respondent because
the June 2006 letters caused the Respondent to refer the Claimant to the NMC,
but because the Claimant issued fresh proceedings in September 2006. Indeed the
Chairman of the Employment Tribunal explained in response to a request from
this Appeal Tribunal that:-
“Ultimately the Tribunal determined that the expanded protected
act (letters of June 2006) had no relevant bearing on the referral.”
27.
In reaching our conclusion that the Employment Tribunal was entitled to
reject the application for an adjournment, we have taken into account the
statement of Ward LJ in Stanley Cole (Wainfleet) Limited v Sheridan [2003]
1 ICR 1449 [34] that “The hearing will not have been unfair if it has caused
no substantial prejudice to the party claiming to be aggrieved”. In this
case there was no injustice to the Respondent.
28.
In reaching this conclusion, we have not overlooked the contentions of
the Respondent that there had been no case management hearing in relation to
the so-called “new issues” but as we explained, these issues like that
concerning the hypothetical comparator must have been so obvious to the Respondent
and its legal advisers that we do not understand why any case management
hearing or order was needed. The fact that the Employment Tribunal refused to
grant the adjournment was a result of the decision of the Respondent not to
call the most relevant witnesses who were the people who made the decision to
refer the Claimant to the NMC especially as in the words of the Employment
Tribunal:-
“12…the respondent has always been and remains in a position to
properly and fairly defend itself against this claim of victimisation and bring
any evidence it wished to explain what caused the referral to the NMC.”
Should an adjournment have been granted because of the
introduction of the hypothetical comparator?
29.
Mr Pirani contends that the Claimant’s case at the start of the
substantive hearing depended on there being one named comparator, who was Anna
Reutt and whose name was specified in the Case Management Decision made on 8
October 2010. The Employment Tribunal had then required the Claimant to pay a
deposit of £200, because the Tribunal considered that at the substantive
hearing, it was likely to conclude that Ms Reutt (who, unlike the Claimant, was
not an employee of the Respondent) was not a suitable comparator to the Claimant
and this was:-
“4. …primarily because there was no employment relationship
between the respondent and the comparator.”
30.
So it is said by Mr Pirani that the Claimant’s case at the start of the
proceedings was bound to fail as the Employment Tribunal was limited to
considering the Claimant’s case with Anna Reutt as the only relevant
comparator. We are unable to agree as it is settled law that the list of issues
specified in a Case Management decision is not determinative of the only issues
which the Employment Tribunal is entitled to consider at the subsequent
substantive full hearing. Underhill J explained in Wilcox v Birmingham
Cab Services Limited UKEAT/0293/10 that:-
“21.. where the parties agree issues the Tribunal is not
required to accept uncritically every detail of the formulation.”
31.
The reason is, as Carnwath LJ sitting in the Appeal Tribunal in Price
v Surrey County Council and Others UKEAT/0450/10/10) explained, that
members of an Employment Tribunal have:-
“23…their own duty to ensure that a case is clearly and
efficiently presented. Equally the tribunal which hears the case is not
required slavishly to follow the list presented to it.”
32.
So it is clear that every party appearing in front of an Employment
Tribunal ought to appreciate this fact and this probably explains why the Respondent
in this case did not object when the Employment Tribunal raised the issue of a
hypothetical comparator. Indeed Ms Helen Gower, who was then counsel for the Respondent,
says in her affidavit that when the Employment Judge asked her to:-
“cover in my submissions whether [the claimants] has been less
favourably treated than a hypothetical comparator I said that I could do this.”
33.
That is precisely what Ms Gower did because in paragraph 5 of her
written submission to the Employment Tribunal, it was stated “the Trust
would treat a hypothetical employee who had written a letter to patients in the
same way in that a report would have been made to the NMC”. In addition in
paragraph 9 of those submissions, Ms Gower contended that:-
“the conclusion should be drawn that a hypothetical comparator
who had not carried out a protected act would have been referred to the NMC and
that the reason for the claimant’s treatment would be her conduct.”
34.
This shows, as we would indeed have expected, that Ms Gower, who is an
experienced employment lawyer, would have been able, and indeed was able, to
deal with the Claimant’s case in relation to considering the hypothetical
comparator. There can be no question of any prejudice being suffered by the Respondent,
especially as it is very significant that no complaint was made at that time or
at any time during the hearing before the Employment Tribunal by Ms Gower about
the introduction of the hypothetical comparator in the way it emerged in this
case.
35.
That disposes of the issue of whether the
Employment Tribunal should have dealt with the position of the hypothetical
comparator. As we have heard further submissions, we ought to explain that in
our view, the Employment Tribunal was in any event required by statute to
consider the position of a hypothetical comparison and its task entailed
carrying out a wider enquiry than merely considering Anna Reutt as the sole
comparator. The relevant statutory provision required an Employment Tribunal
when considering direct discrimination to consider how the alleged
discriminator “treats or would treat others” (section 13 of the Equality
Act 2010 which is now the relevant statutory provision). The definition of
“victimisation” applicable at the relevant time so far as this appeal is
concerned was set out in section 2 of the Race Relations Act 1976, which
as amended provided with emphasis added that:-
“A person... discriminates against another
person... in any circumstances relevant for the purposes of any provision of
this Act if he treats the person victimised less favourably than in those
circumstances he treats or would treat other persons...”
36.
So an Employment Tribunal could not determine whether conduct is
victimisation within the statutory definition without also determining how the
discriminator “treats or would treat other persons”. This exercise would
entail considering a hypothetical comparator. So the Employment Tribunal was in
this case obliged to consider a hypothetical comparator.
37.
Ms Darwin submits that there is an additional reason why the Employment
Tribunal was obliged to consider hypothetical comparators and that is because
Ms Karen Monaghan QC was correct in stating in her book (Equality Law at page
301) that “where no real comparator exists a court or Tribunal is bound to
consider whether a hypothetical comparator of different status would have been
treated in the same way”. She relies in support of that conclusion on the
decision of the Court of Appeal in Balamoody v United Kingdom Central
Council for Nursing, Midwifery and Health Visiting [2002] ICR 646. Mr
Pirani disagrees and submits that that case does not support Ms Monaghan’s
conclusion. In the light of our other findings, it is unnecessary to resolve
this dispute, but it appears that the provisions in the Race Relations Act
1976 do not appear to have been fully considered in Balmoody
and it might well be that they would justify Ms Monaghan’s conclusions.
38.
These factors show clearly why this ground of appeal must be rejected
but Mr Pirani also submits that in any event irrespective of that finding, a
new issue can still be raised in front of this Appeal Tribunal even though it
was not relied on before the Employment Tribunal. He supports this contention
by relying on the approach adopted in Jones v Governing Body of Burdett
Coutts School [1999] ICR 38 in which Robert Walker LJ giving the only
reasoned judgment of the Court of Appeal
explained at page 44 (with our emphasis added) that:-
“Although the appeal tribunal has a discretion to allow a new
point of law to be raised or a conceded point to be reopened, the discretion
should be exercised only in exceptional circumstances, especially if the
result would be to open up fresh issues of fact which, because the point was
not in issue, were not sufficiently investigated before the Industrial Tribunal.”
39.
There are simply “no exceptional
circumstances” in this case because the Respondent was represented in front
of the Employment Tribunal by a competent and experienced counsel and by a
well-known firm of solicitors. The applicable principles of law are clear. The Respondent
was, in any event, able to deal with the hypothetical comparator in front of
the Employment Tribunal. Indeed there is nothing to suggest that they did not
put forward sensible submissions. We must stress that what was said in Jones
does not enable a party to come to this Appeal Tribunal and to raise a new
issue as of right merely because they have thought up a new point or because
they want to put a point previously made in a different way.
40.
For the purpose of completeness, we
should add that Mr Pirani complains about gratuitous adverse findings that were
made by the Employment Tribunal against employees of the Respondent but such
findings do not constitute “exceptional circumstances” or indeed relate
to any issue between the Claimant and the Respondent. It is, however, a matter to
which we will return at the end of this judgment.
41.
The stark fact is that in respect of this
ground (whether considered by itself or with any other ground), the Respondent
has failed by a long way to show that the appeal should succeed bearing in mind
that “an assessment must be made of the fairness of the proceedings as a
whole” (per Buxton LJ in the Stanley Cole case (supra) at
page 1462 [49]). Such an assessment leads to the inevitable conclusion that
these proceedings were fair as between the parties in the light of the way in
which the Respondent chose to conduct its case.
The applications to the Employment Tribunal for review on
the grounds of fresh evidence
42.
In their two applications for review of the decision of the Employment
Tribunal, the Respondent relied on rule 34(3)(d) of the Employment Tribunal
Rules of Procedure 2004, which provides that:-
“34 `decisions may be reviewed on the following
grounds only —
(d) new evidence has become
available since the conclusion of the hearing to which the decision relates,
provided that its existence could not have been reasonably known of or foreseen
at that time;..”
43.
The first application for review was made on 27 April 2011, which was an
application for the Respondent to be granted an extension of 14 days in which
to apply for a review and the second application was made on 28 April 2011. On
both applications, the Respondent stated that the person who made the referral
to the NMC was Ms Linda Prime, the Deputy Director of Nursing, but what was
alleged to be significant was that she was not aware of the 2006 Employment Tribunal
claim at the time of the referral. It now transpires that this critically
important representation was untrue because among the Respondent’s fresh
evidence was an email from Ms Caroline Hartley dated 7 September 2006 informing
Ms Prime of the Claimant’s September 2006 claim. It is deeply regrettable the Respondent’s
case was based to this extent on this incorrect statement in the application,
but fortunately the Employment Tribunal did not rely on it as it rejected the
applications.
44.
There can be no complaint about the decisions of the Employment Judge to
refuse the Respondent’s application because neither application disclosed
grounds for reviewing the Employment Tribunal’s decision because her evidence
was not evidence the existence of which the respondent “could not have been reasonably known of
or foreseen at that time”. Ms Prime was after all the writer of the November 2006 NMC
letter.
45.
In respect of the first application of 27 April 2011, the Employment
Judge explained correctly that:-
“There are no grounds presented which would tend to show that
the existence of evidence from Mrs. Prime could not have been reasonably known
of or foreseen before the conclusion of the hearing. After all, the reason for
the referral to the NMC lay at the heart of the case – Mrs Prime was the author
of the letter of referral. The Respondent was always in a position to call her
as a witness if they wished to do so.”
46.
The Employment Judge in response to the second review application, which
was based on the assertion that the evidence from Mrs Prime “could not
reasonably have been foreseen” explained that:-
“It was therefore always clear that the central issue was – what
was the reason that the claimant was referred to the NMC in November 2006.
Whether the claim was treated as one of victimisation or as one of direct
discrimination does not detract from the need to answer this question. If Ms
Prime could give evidence that was relevant the respondent could always have
called her to have done so. I therefore do not agree that this issue was
widened - and that in any event what was done in terms of clarifying how to
proceed with this claim was done with the consent of the respondent.”
47.
There is no basis for criticising this reasoning because as we have
explained, the Respondent should have appreciated that the critical issue for
the Employment Tribunal was why the Claimant was referred to the NMC in the November
2006 NMC letter. In any event, as we have explained, the Employment Tribunal
had been misled because Ms Prime was well aware of the 2006 Employment Tribunal
claim at the time of the referral. The Employment Tribunal was quite entitled,
if not obliged, to reject the application for the review.
Should the Employment Appeal Tribunal now permit the
Respondent to adduce fresh evidence?
48.
The fresh evidence consists of:-
(a) A witness
statement from Miss Corinne Thomas who was the Director of Nursing for the
Respondent from February 2006 until May 2009. She explained that it was the
June 2006 letters which prompted Miss Prime to speak to the NMC and eventually
to make the referral. She said that at that time when the November 2006 NMC
letter was sent, she was not aware that the Claimant had lodged a further claim
to the Employment Tribunal but if she had, it would not have influenced her
decision;
(b) A witness
statement from Ms Linda Prime who was the Deputy Director of Nursing of the
Respondent in 2000 until 2008 but was Acting Director of Nursing from October
2005 to March 2006. She explained that the decision to refer the Claimant to
the NMC was made in August 2006 as a result of the June 2006 letters;
(c) A witness
statement from Ms Anne Morris who was Head of Nursing for the Renal Directorate
of the Respondent until June 2008. She also confirms that the decision to refer
the Claimant to the NMC was because of the tone and threatening nature of the
June 2006 letters. Her evidence was that the further claim to the Employment
Tribunal made by the Claimant had nothing to do with the decision to refer the
Claimant to the NMC;
(d) Various
emails and other documents; and
(e) The
transcript of the hearing of the complaint against the Claimant in front of the
NMC.
49.
The case for the Respondent is that each of the conditions set in Ladd
v Marshall for the admission of fresh evidence can be satisfied because
in respect of each item:-
i. it
could not have been obtained with reasonable diligence for use at the tribunal
hearing;
ii. if
adduced, it is relevant
and it would probably have had an important influence on the result of the hearing but not
necessarily a decisive influence; and
iii. it
is apparently credible.
50.
In considering whether the first of these conditions has been satisfied
in relation to the evidence of the individuals listed in paragraph 48 (a) to
(c) above, there is no information which shows why this evidence could not have
been obtained in time for the hearing in front of the Employment Tribunal.
Indeed each of the makers of the statement had been employed by the Respondent
and Ms Morris is still employed while Ms Thomas has been seconded to another
health authority in the South West Region. There is no reason why they could
not have been contacted before the hearing before Employment Tribunal and
indeed it is not suggested let alone established that any attempts were made to
contact them. The onus of satisfying each of the Ladd v Marshall conditions
is on the Respondent and it has failed to do so by a substantial margin and so
we cannot conclude that the witness statements could not have been obtained
with reasonable diligence
for use at the tribunal hearing.
51.
As to the documentary evidence listed in paragraph 48 (d), this all
should have been disclosed pursuant to the original disclosure order made on 23
November by Employment Judge Tickle. The Respondent then represented to the Claimant
that all information had been disclosed and such confirmation was produced. It
is now clear in relation to the documentary evidence that the Respondent had
failed to comply with its disclosure obligation. I agree with Ms Darwin that it
would not be in accordance with the overriding objective to allow the Respondent
to benefit from its non-compliance and in any evidence, it cannot be said that
it could not have been obtained with reasonable diligence for use at
the tribunal hearing.
52.
As to the NMC transcript listed in paragraph 48 (e), the Employment
Tribunal did have regard to it and it cannot be fresh evidence.
53.
So none of the proposed new evidence satisfies the first of the Ladd
v Marshall conditions. In any event, none of the alleged fresh evidence
whether considered individually or cumulatively “probably have had an
important influence on the hearing” as required by the second Ladd v
Marshall condition because the Employment Tribunal reached its decision
to uphold the Claimant’s complaint on the grounds that there had been such a
time lag between the June letters and the actual decision to report the Claimant
to the NMC in November 2006. The conclusion of the Employment Tribunal at
paragraph 107 of its Reasons that:-
“It seems to us simply too much of a coincidence, given the
particular chronology and our finding that the Director and Deputy Director
knew that the claimant had brought these fresh proceedings and no other
evidence to explain the decision being taken at that particular point in time,
for that not to be the principle causative factor.”
54.
For all those reasons the application to adduce fresh evidence has to be
rejected.
Criticism of the Respondent’s employees by the Employment
Tribunal
55.
Mr Pirani complains about criticisms that were made by the Employment
Tribunal of Mrs Hartley. It is true that Mrs Hartley was criticised and Mr
Pirani accepts that she was mistaken in the evidence which she gave to the
Tribunal but he contends that there was an innocent explanation for it and that
it could have been clarified in re-examination if it had been made clear that
factual findings were going to be made by the Employment Tribunal. Even if that
is correct, we are unable to deal with this matter as it does not fall within
the terms of this appeal. Indeed nothing in this judgment relates to her and so
cannot be regarded as support for any criticisms of her.
56.
Another complaint made by Mr Pirani is that the finding of the
Employment Tribunal were in the words of his skeleton made against the Respondent “when it was unable fairly
and properly to defend both itself and its former employees.” This is
simply not correct because the Respondent’s case was rejected for good reason
and after all it failed to call those responsible for sending the November 2006
NMC letter.
57.
We have considered all the other points made by the Respondent in the
Notice of Appeal and in its skeleton argument but have concluded that they do
not further the Respondent’s case. In particular, for the reasons, which we
have explained, we reject the submission that any part of the Employment
Tribunal’s decision was perverse.
Conclusion
58.
It might be some consolation to the Respondent to know that every point
that could be taken on its behalf has been pursued by Mr Pirani very diligently
but for the reasons which we have explained this appeal has to be dismissed
essentially for the cogent reasons put forward by Ms Darwin.
