City Hospitals Sunderland NHS Foundation Trust v Iwuchukwu & Anor UKEAT/0164/17/BA

Appeal against a finding of race discrimination and unfair dismissal. Appeal allowed, the discrimination claim was set aside and the unfair dismissal claim was remitted to a fresh Tribunal.

The Claimant, who was the only black African consultant employed by the Trust, was dismissed after concerns were raised about his capability. Before this happened, the Claimant had raised grievances alleging that he was being discriminated against in relation to the capability concerns because of his race. The Trust considered that these grievances were brought as a way of delaying or derailing the capability procedure and said that they were "out of time" and failed to deal with them under the Trust's formal grievance procedure, although they were considered and rejected by the "case investigator" appointed under the capability procedure. The Claimant appealed against the dismissal but the Trust failed to arrange a hearing to take place within 25 days of the appeal as required by the capability procedure and the Claimant said he would not participate in the appeal. He won his claims of race discrimination and unfair dismissal, the ET having extended time for him to bring his claim of discrimination. The Respondent appealed.

The EAT allowed the appeal. First, on the discrimination issue, the ET had found that the Trust considered that the grievances were presented as an attempt by the Claimant to delay or derail the capability proceedings which provided a complete explanation for the Trust's conduct unrelated to the Claimant's race - the inference of race discrimination was unsupportable and the claim should have been dismissed. On the unfair dismissal issue, the relevant statutory question was whether the decision to dismiss was reasonable in all the circumstances applying at the time of the decision. The ET's conclusion that the decision was rendered unfair solely by the unreasonable conduct of the Trust before the decision was made, without any reference to the decision itself and the circumstances applying at the time it was made, clearly focussed on the wrong question.

Published: 27/04/2018 11:05