Kowalewska-Zietek v Lancashire Teaching Hospitals NHS Foundation Trust UKEAT/0269/15/JOJ

Appeal against the dismissal of eight complaints that the Claimant had been directly discriminated against and one complaint that she had been subject to harassment on the grounds of her being a Polish national. Appeal dismissed.

The Claimant Neurologist made eight complaints that she had been directly discriminated against and one complaint that she had been subject to harassment. This was on the grounds of her being a Polish national. All were rejected by the Employment Tribunal. She Appealed against this decision on the grounds that the Employment Tribunal had not adopted a two-stage analysis of discrimination or insufficiently explained its reasoning, and wrongly relied upon one of the relevant decision makers in her case as having "lacked attention to detail".

The EAT dismissed the appeal. The ET judgment was Meek compliant. Here, the central issue was essentially the reason why the treatment had occurred. In the process of determining that question, evidence was received, much of which was not controversial though some was. Generally, so long as the Tribunal clearly said in respect of any particular important matter why it had thought it had occurred and had some evidential basis for doing so, this would satisfy the requirements of Meek, sufficiently indicate to the Claimant why she had lost, tell a court sitting on appeal the reasoning so that the decision could be reviewed properly and sufficiently satisfy the general requirements of justice, quite apart from acting as a necessary aide-memoire for its own reasoning process.

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Appeal No. UKEAT/0269/15/JOJ

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 21 January 2016

Before

THE HONOURABLE MR JUSTICE LANGSTAFF

(SITTING ALONE)

KOWALEWSKA-ZIETEK (APPELLANT)

**

LANCASHIRE TEACHING HOSPITALS NHS FOUNDATION TRUST (RESPONDENT)

Transcript of Proceedings

JUDGMENT

**APPEARANCES**

For the Appellant MR PAUL GILROY QC (of Counsel) Instructed by: IMD Solicitors LLP 15th Floor 111 Piccadilly Manchester M1 2HY

For the Respondent MR ANDREW SUGARMAN (of Counsel) Instructed by: Hempsons Solicitors 16th Floor City Tower Piccadilly Plaza Manchester M1 4BT

**SUMMARY**

RACE DISCRIMINATION

The Claimant Neurologist made eight complaints that she had been directly discriminated against and one complaint that she had been subject to harassment. This was on the grounds of her being a Polish national. All were rejected by the Employment Tribunal. Appeals against this decision on the grounds that the Employment Tribunal had not adopted a two-stage analysis of discrimination were rejected, as were grounds that the Employment Tribunal had insufficiently explained its reasoning, and wrongly relied upon one of the relevant decision makers in her case as having "lacked attention to detail". Observations were however made about the care an Employment Tribunal needs to take before ascribing what are alleged to be acts of discrimination too easily to mistakes or incompetence.

**THE HONOURABLE MR JUSTICE LANGSTAFF****Introduction**
  1. An Employment Tribunal in Manchester - Employment Judge Franey, Ms Jammeh and Ms Beards - after hearing evidence for six days and deliberating for one more, gave Reasons for dismissing the Claimant's case on 23 December 2014. It had considered eight complaints that she had been directly discriminated against and one complaint that she had been subject to harassment on the grounds of her being a Polish national. The Claimant had trained as a Neurologist in Poland. In 2005 she came to the UK and by virtue of her training was eligible to be appointed a Consultant within the UK. After filling locum positions and failing in an initial attempt to secure a substantive post, she became a substantive Consultant in April 2010. She worked in a hospital in Preston run by the Respondent Trust, which had two hospitals to consider.
  1. On 4 July 2011 a group of some six or seven Registrars met with Dr Shakespeare, who was the Clinical Director for Neurosciences, to express their concerns about the Claimant's clinical competence. They had already asked the Training Programme Director of the Deanery that they should no longer, nor should incoming Registrars, be trained by her. In consequence, the Training Director had recommended to the hospital that the Registrars be removed from clinics with the Claimant. The Registrars had referred to nine cases: six were concerned with the management of clinical neurology, three with inpatient care. Dr Shakespeare reported these events to Mr Hughes, who was the Medical Director of the hospital. The Claimant did not know that this had happened. He in turn on 22 July, the day after the report from Dr Shakespeare, made a report to National Clinical Assessment Services ("NCAS"), an independent body, which was an agency of the NHS. It was a week later before he and Dr Shakespeare spoke to the Claimant.
  1. On 1 August, without the knowledge of the Claimant, Dr Shakespeare wrote to Mr Hughes to add six more cases to the nine referred to NCAS. The Claimant did not know that that had happened until over six months later, on 8 March 2012. She was then removed from the duty of performing on-call work, which would have involved Registrars referring by phone to her in respect of problems arising in their practice, and was also relieved of having the support of Registrars in her clinics. As Mr Gilroy QC submitted on her behalf on the appeal, this was a significant and humiliating event, and yet it remained the position thereafter until the case came to be heard.
  1. A Dr Allen was invited to be an external adviser to consider the reference to NCAS. Though the reference was made to him on 5 September 2011, it was not until 6 January 2012 that he got round to coming to Preston to see the Claimant. He was a little prompter about producing his report, which was emailed to Dr Shakespeare on 18 January 2012. He forwarded that report the next day to Mr Hughes. Neither gave the Claimant a copy of that report. Some four weeks later the Claimant was chasing for news. When she approached Mr Hughes, he told her he would get his PA to chase, whereas he had already received the report a month earlier. The Claimant eventually received it on 8 March. Though she initially responded positively to the recommendations that Dr Allen had made, there was again a period of delays, such that the Claimant found herself asking that the report that she had received purporting to be Dr Allen's report should be signed and dated - she did not receive such a copy - and matters seemed to be no further forward with any possible return to her being on the on-call rota.
  1. In September 2012 a further set of events took place. On that date there was a letter of complaint from a patient that was received by the Chief Executive of the Trust. The patient complaints, because it turned out there was more than one - there were some nine complaints - were discussed between the Chief Executive and Mr Hughes in early December, and on 21 December the Claimant went to see Mr Hughes and a Mrs Swindley, essentially a person who performed HR functions for the Trust. At this stage she had been told by Mr Hughes' PA that there was a complaint; in fact, there were nine. Mr Hughes decided on 1 February 2013 to refer those complaints to NCAS. He did so upon the basis that there was, he thought, a disproportionate number of complaints made in respect of the Claimant; there had been eight over two years, and four had her communications with patients as a feature, which he therefore identified as a theme common to at least a significant number of them. On 28 May he completed the referral to NCAS.
  1. Arising out of that chain of events - not all of which I have described, because throughout the period there was the bringing and dismissal of a grievance and a grievance appeal by the Claimant as to the way in which she had been so poorly treated - she brought her allegations that the reason why she had been treated as she was, was because of her nationality; she being Polish.
**The Judgment**
  1. It is unnecessary for present purposes to describe the nine allegations in detail. It is only necessary to deal with those in respect of which an appeal is raised. The Tribunal decision, though consisting of some 38 pages, was carefully drafted. It is subheaded by appropriate headings. It is plain that it was drafted as a piece after discussion by the Tribunal and knowing throughout what the decision was, such that at the start of the conclusion section the Tribunal announced that it was dismissing the claims and then proceeded to state its reasons for that conclusion.
  1. There is no obvious complaint about the self-direction of law that the Tribunal gave. The Claimant through Mr Gilroy QC was thought by HHJ Eady QC at a Rule 3(10) Hearing (the case having earlier been rejected as being entirely one within the fact finding ability of the Tribunal and one that gave rise to no error of law by HHJ Richardson) as being a self-direction in respect of which no issue arose. Mr Gilroy QC confirmed that at the start of his submissions but also made it clear that he did argue that the way in which the burden of proof should be addressed in a case such as the present was one that required a two-stage approach rather than simply asking what the reason was for the treatment. The Tribunal had in effect done the latter. It began its conclusions at paragraph 122 with a section thereafter headed "General Observations", in which it said as a matter of generality that it could make a positive finding on the evidence before it as to the reason for the action taken at each stage, observing that such an approach had been approved by the Court of Appeal in Brown v London Borough of Croydon and Anor [2007] IRLR 259.
  1. The Tribunal, adopting that approach, dealt with each of the nine issues in turn. The first relevant to the present appeal was the second issue:

"The continuing refusal to allow the claimant to return to her previous on-call duties and to work upon the Registrar Training Programme [between September 2011 and May 2013]."

  1. As to that, the Tribunal said, materially:

"136. In broad terms this allegation had two components: the initial imposition of the restrictions preventing the claimant working on call and training registrars, and the subsequent continuation of those restrictions to the date of the claim form.

137. As far as the imposition of restrictions was concerned, we considered the conflict between Mrs Swindley and Mr Hughes as to whether the restrictions were imposed pursuant to the policy in the bundle … or not [that was a reference to the somewhat prescriptive policy adopted in respect of performance issues arising in the practice of a medical doctor]. At the start of her cross examination Mrs Swindley confirmed that the Trust had been using the power found in that procedure, but Mr Hughes did not regard these as restrictions on clinical activity within the policy. He said in oral evidence that Dr Shakespeare had felt the concerns were not serious enough to restrict clinical practice in accordance with the policy, but he was unable to allocate the claimant to work involving the supervision of registrars (thereby ruling out on call work) because of the Deanery "recommendation". In that same passage of evidence, however, he denied that the Deanery request had been a significant factor in his decision even though paragraph 11 of his witness statement said exactly the opposite. We were troubled by this, as we were by Mrs Swindley's apparent unfamiliarity with the procedure when asked at the start of her evidence which provisions had been invoked. As far as Mr Hughes was concerned we concluded that this reflected a lack of attention to detail on his part, a trait which manifested itself in other aspects of this case (see below).

138. However, the reason for the imposition of these restrictions (whether pursuant to the policy or not) was clear. The registrars had already spoken to the Training Programme Director before they saw Dr Shakespeare and the Training Programme Director recommended that the claimant not be allowed to supervise registrars. If the Trust had rejected that recommendation there would have been a serious issue with the Deanery. Once it was accepted, the claimant could not do on-call work either. There was no evidence from which we could reasonably conclude that the Trust would have resisted such a recommendation for a doctor of a different nationality in comparable circumstances."

  1. The Tribunal found, as I have indicated, that there was a reason for the treatment that was nothing to do with nationality for each and every one of the allegations before it.
  1. The second specific finding that falls for consideration here was that complaint 3, which was that the decision to refer an additional six clinical cases to Dr Allen without informing the Claimant about these and without giving her opportunity to discuss them with Dr Allen or any other relevant person, was an act of direct discrimination. As to that, the Tribunal was clear that the Claimant should have been told. Mr Hughes had no explanation save for the possibility that he might have overlooked the email from Dr Shakespeare or that he dictated the letter a few days earlier without having seen the additional cases. The Tribunal's conclusion at paragraph 146 was:

"146. It was unreasonable of Mr Hughes not to have done this on a matter which he must have appreciated was of importance to the claimant, but there was no evidence from which we could conclude that this omission was due to the claimant's nationality. We considered it to be an example of a lack of attention to detail by Mr Hughes. It was an oversight, and an oversight alone is not sufficient to give rise to a finding that there has been (consciously or subconsciously) race discrimination (see Zafar [v Glasgow City Council [1998] ICR 120]). This allegation failed."

**[**Zafar**](http://www.bailii.org/uk/cases/UKHL/1997/54.html)** is a reference to a familiar decision of the House of Lords in which, to summarise, the House determined that unreasonable behaviour is not necessarily discriminatory.
  1. Allegation 4, which founds the subject of the third ground of appeal, was that the following was an act of direct discrimination on the ground of her nationality:

"The delay in disclosing Dr Allen's alleged Report to the claimant and the failure to disclose a signed and dated Report."

  1. The report should, thought the Tribunal, have been provided to the Claimant by Mr Hughes promptly upon his receipt of it on 18 January 2012 and not as late as 8 March. Moreover, Mr Hughes should have provided it to her when she chased up its receipt on 15 February. In cross-examination he said that the reason for this was that he had broken his hand in January 2012 and had been off work; he had genuinely not seen the report at the time of the email, 15 February. The Tribunal observed at paragraph 150:

"150. We were concerned that there was no mention of this in paragraphs 26-27 of his witness statement, even though delay in disclosing the report was a specific allegation made by the claimant. However, on balance the Tribunal accepted the explanation which Mr Hughes gave. It was plain that during his oral evidence he was embarrassed by and apologetic over the delay. There was no evidence before us of any directly comparable case where he had provided a report without delay to a doctor of a different nationality. There was no material from which we could infer that he delayed this report, either consciously or subconsciously, because the claimant was Polish. We concluded that this was unreasonable conduct on his part, and a glaring omission, but it was not because of race."

  1. The fifth complaint of direct discrimination was:

"The reliance and continued reliance upon the stereotypical view that the claimant's training in Poland must have been inferior to British training."

  1. The allegation was based, as the Tribunal observed at paragraph 154, on two propositions. The first was that Dr Allen's report contained a stereotypical view, and the second that the Respondent relied upon that view. As to that, it noted that the report did indeed make a number of references to the Claimant's training in Poland, and he had proffered the "opinion" that this reflected the different quality of her training compared with British postgraduate clinical training. He thought that the Claimant lacked "clinical nouse", a quality that she would have acquired through "guided clinical exposure during clinical training" (see paragraph 155). He noted that the senior ward sister had thought that some of the tests ordered by the Claimant, especially when she first arrived, were somewhat bizarre, in her view, which the sister thought reflected different training in Poland. The Tribunal accepted that comments of that kind were consistent with a stereotypical view about Polish doctors and/or Polish training. They echoed concerns that had been expressed in respect of the Claimant some four or five years before the events giving rise to the claim itself when she had first applied for a substantive consultant position. The Royal College of Physicians ("RCP") assessor had raised a concern in writing that she might not have been "properly trained" in Poland by comparison with a UK-trained consultant.
  1. Though recognising these comments, the Tribunal gave its reasons for rejecting the argument that the comments in Dr Allen's report made such a stereotypical assumption. At paragraph 157:

"157. … Firstly, it was evident from the report that Dr Allen had not reached his conclusion about the level of the claimant's performance because of the fact she was trained in Poland. It was the other way round. He had reached his conclusion based on the evidence from the work he had reviewed and then mentioned her training as a possible reason because other people had mentioned it to him, and he thought it might be an explanation for her performance. His conclusion as to the performance deficiencies was based on an assessment of the evidence, not on a stereotypical assumption."

  1. The second reason was at paragraph 159:

"159. Further, there was merit in Mr Sugarman's [who appeared below for the Trust, as he appears on this appeal today] argument that insofar as there was any stereotypical assumption in the report it was about the quality of Polish training, not about Poles themselves. It seemed to us that had the claimant been a Polish doctor who trained in Britain these comments would not have been made. Similarly, had the claimant been a British doctor who had undertaken her training in Poland, the comments would have been made. It was not about nationality but about where the doctor trained."

  1. The second component of the allegation was that the Trust had relied on the stereotypical view. It had adopted Dr Allen's recommendations without any query, thought the Tribunal, but it observed (paragraph 162):

"162. … That, however, was not race discrimination: we were satisfied the Trust would have done exactly the same for a report from an external RCP appointed assessor for any other doctor of whatever nationality. There was no reason to query Dr Allen's report on its face."

  1. So saying, it was echoing the approach later to be expressed in the Court of Appeal in the case of [Reynolds v CLFIS (UK) Ltd and Ors ]()[2015] ICR 1010, in which it was said that:

"… liability in a discrimination case involving an allegation of tainted information, such as the present, could only attach to an employer where an individual employee or agent for whose act he was responsible had done an act which satisfied the definition of discrimination, and that meant that the individual employee who did the act complained of had himself to have been motivated by the protected characteristic, and there was no basis on which his act could be said to be discriminatory on the basis of someone else's motivation …" (See headnote)

Here, Mr Sugarman was later to make the point that Dr Allen was independent of the Trust. It is not asserted before me that Dr Allen is an employee, servant or agent of it, and Mr Sugarman's argument therefore is that the CLFIS approach applies.

  1. Allegation 7, being one of direct discrimination, and allegation 9, being one of harassment, related to the decision to raise and pursue the separate concerns about the Claimant's communication skills, they being those that arose out of the patient complaints that had been made and (at 9) the conduct by Mr Hughes of the meeting of 21 December and his further referral to NCAS in respect of those complaints.
  1. The Tribunal gave this consideration from paragraphs 175 to 195. It noted that the Claimant had not been shown a summary of the complaints that Mr Hughes had asked the Customer Care Department to provide, though it appears that the complainants' correspondence itself was available to all at some later stage. The question was whether in behaving as he did Mr Hughes had discriminated against the Claimant. The Tribunal concluded that he had believed the number of complaints made against the Claimant was disproportionate when compared to any other Consultant in the Trust and that there was a recurring theme to the complaints that surrounded communication (see paragraph 179). The Tribunal examined, here, specific comparators. One was of Pakistani nationality or race; the other was British. It concluded that of the comparators one had seen a very significantly higher number of patients over the period when compared to the Claimant, something over 24,000 compared to something over 3,000, and the British comparator had seen very nearly 5,000 during the same period, somewhat more than the Claimant. There had been more complaints numerically against the Pakistani but proportionally considerably less. Mr Hughes said in evidence that he had concluded that there was no underlying theme of communication in the complaints against the Pakistani doctor. The Tribunal thought that was not the case. It summarised the matter at paragraphs 184 and 185 in these terms:

"184. In summary, therefore, there was one respect in which Dr M2's [the Pakistani's] complaints record was worse than the claimant's (the number of complaints); one respect in which it was broadly comparable (repeated issues about communication); and one respect in which it was better than hers (the proportion of patients complaining).

185. However, this overall picture of M2's complaints was not before Mr Hughes at the time. We concluded that he decided to speak to the claimant about her complaints record in December 2012 simply because he had been asked to take that step by the Chief Executive. She in turn had raised it with him because of a complaint which reached her about the claimant in September 2012 which seemed to her to show a common theme. The same had not been true of Dr M2. Mr Hughes would have done exactly the same had the Chief Executive raised the same concern with him about a consultant of a different nationality. We rejected the contention that the decision to raise such matters with the claimant in December 2012 was consciously or subconsciously because of race or related to it in any way."

  1. The Tribunal, having determined the individual allegations in each case by finding a reason that was not and could not be discriminatory, dealt with the question of time. It decided that it would not have been just and equitable to extend time, in particular given the sources available to the Claimant for legal assistance and advice, and rejecting her case that she wished to exhaust internal procedures first. It did, however, say at paragraph 197:

"197. However, had we found that there had been unlawful race discrimination beginning with Dr Shakespeare's and Mr Hughes' actions in July/August 2011, we would have found that there was an act extending over a period culminating with Mr Hughes' referral to NCAS in May 2013."

**The Appeal**
  1. Five grounds of appeal are taken. They focus upon the particular decisions of the Tribunal to which I have already referred. Common themes run through each of them, though they have to be addressed in respect of each ground separately: that is, first, that the Tribunal should have taken the two-stage approach to the reversal of the burden of proof that is indicated in the statutory words at section 136 Equality Act 2010 and by decisions such as Igen v Wong [2005] IRLR 258; and second, the argument that the Tribunal in respect of the particular matters of concern had not adequately addressed the facts nor explained how it had resolved the issues (whether associated with that point or separately, at times the argument shaded into the Tribunal having reached a perverse conclusion).
  1. As to those general points, Mr Gilroy QC argued that the starting point is section 136(2) of the Equality Act 2010:

"(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred."

  1. From the days of Barton v Investec, and following the deficiencies of the earlier approach in which the courts had to adopt a burden of proof that inhibited it from dealing with the real difficulties that those who had suffered discrimination might have had in proving it, Statute provided in these terms for a reversal of what had been the burden of proof. The wording demonstrates that there is a two-stage approach, at least in logical analysis, when taken with subsection (3): "But subsection (2) does not apply if A shows that A did not contravene the provision". There must, he submitted, be some substance in this, otherwise Parliament would not have adopted it. He appreciated that in the particular circumstances of the case of Brown v Croydon the Court of Appeal had held that the Employment Tribunal whose decision was under appeal in that case had not been in error:

"… where the facts themselves were not in dispute in any fundamental way to focus on the reason why." (See headnote)

  1. Before the Court of Appeal it was contended that when applying the burden of proof Employment Tribunals are required to go through a two-stage test in accordance with Igen v Wong. The Court held, as recorded in the headnote, that it was not an error of law not to apply that approach. It observed:

"… Although in general, it is good practice to apply the two-stage test and to require the claimant to establish a prima facie case before looking to the adequacy of the respondent's explanation for the offending treatment, there are cases in which the claimant is not prejudiced by the tribunal omitting express consideration of the first stage of the test, moving straight to the second stage of the test and concluding that the respondent has discharged the burden on him under the second stage of the test by proving that the treatment was not on the proscribed ground.

… Far from prejudicing the claimant, this approach relieved him of the obligation to establish a prima facie case based on facts from which the tribunal could infer, without regard to the respondent's explanation for the treatment, an act of discrimination on the part of the respondents. …"

  1. Although it does not appear from the facts set out in the Judgment of Mummery LJ, who gave the lead Judgment with which Laws and Maurice Kay LJJ merely agreed, that the Tribunal had expressly assumed that a prima facie case of discrimination had been established, at paragraph 36 Mummery LJ said:

"36. … What matters is whether the tribunal placed the burden on [the Respondents] to explain the reason for the differential treatment of which Mr Brown complained and which the tribunal assumed in his favour established a prima facie case of discrimination for [the Respondents] to explain."

  1. The way in which those views are expressed in Brown leave some room for it to be argued that in some cases it may yet be obligatory for a Tribunal to adopt a two-stage approach. In [Hewage v Grampian Health Board ]()[2012] UKSC 37, [2012] ICR 1054 the case had involved a comparison of treatment between the Claimant and two comparators. The Tribunal had adopted a two-stage approach, which was appropriate. In the speech of Lord Hope, with whom the other members of the constitution agreed, he said at paragraph 30 that in practice Tribunals do not hear evidence and argument in two stages and at paragraph 32 took what might be described as a Brown approach in saying:

"32. The points made by the Court of Appeal about the effect of the statute in these two cases could not be more clearly expressed, and I see no need for any further guidance. Furthermore, as Underhill J (President) pointed out in Martin v Devonshires Solicitors [2011] ICR 352, para 39, it is important not to make too much of the role of the burden of proof provisions. They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other. That was the position the tribunal found itself in in this case. …"

  1. The Tribunal, HHJ Richardson and Mr Sugarman in his submissions argue that in the present case it was permissible to make positive findings without clearly and definitively going through the two-stage process. As will become clear, however, later in his submissions Mr Sugarman pointed out that in respect of at least three of the particular paragraphs giving rise to the grounds of appeal, the Tribunal had actually done just that at least by considering whether there was evidence sufficient to shift the burden of proof, and thought not, even though it also had answered that which required to be proved assuming the shifting had occurred.
  1. I accept Mr Gilroy QC's submissions to this extent. He argues that a Tribunal needs carefully to scrutinise the facts of any case in which an allegation of discrimination is raised. An approach was required that he described as having to be "nuanced, subtle and sophisticated". He argued that a Tribunal should not rush headlong to ask what was "the reason why", since there was some purpose to be played by the two-stage approach so clearly envisaged by statute.
  1. It seemed to me that there may be an element of discipline that is of assistance to a Tribunal in reaching its conclusions for it to recognise that absent an explanation from the employer a finding of discrimination would be made, which is the effect of the reversal of the burden of proof under section 136(2). This, however, is to emphasise the requirement that proof should be cogent and that a Tribunal in this area should give any attempted explanation a high degree of scrutiny before accepting it too easily. There may be a temptation, if one simply approaches a question on the balance of probabilities, to rely upon evidence that would not necessarily meet those standards. To that extent, there may well be a practical function in the adoption of the two-stage approach, but, though the language adopted in Brown is hesitant and it may well be that in some cases it is clear that a two-stage approach is commanded by the nature of the case, this is more likely, in my view, to apply where there are actual comparators rather than in cases where there are hypothetical comparators. It is not difficult to see why this should be, for in the case of a hypothetical comparator the generality of the way in which people are treated is a clue to whether the Claimant was treated differently and less favourably, and may in turn give a clue as to the reason for that behaviour.
  1. In such a case, deciding that the reason has nothing to do with race, if that be the decision, or, for that matter, the converse, is, it seems to me, an entirely acceptable - indeed, often the most sensible - way of approaching a question. As Mummery LJ observed in Brown, it may in one step achieve the effective reversal of the burden of proof without the need tortuously to go through the procedure to indicate that the matter has been addressed "properly".
  1. For those reasons, therefore, I do not accept that the Tribunal could be said in this case to be in error of law by going straight to the reason why. It was the essential reason in this case. What underlies the case is the Claimant looking to see in respect of each of the allegations she had made why she had been treated as shabbily as she was. It is not difficult to understand why in her search for an explanation she might found upon her Polish nationality. The reason may emerge from the evidence as a whole not to be that. The reason why she was treated as she was is central. The Tribunal here reached permissible conclusions as to that, assuming that the other grounds of challenge fail.
  1. The second general theme was that in dealing with a number of the grounds the Tribunal insufficiently explained what it meant. In particular, it concluded that Mr Hughes had suffered a lack of attention to detail. The phrase is to me not a clear one, though it is repeated. It caused Mr Gilroy QC to complain towards the conclusion of his submissions that the Tribunal had swallowed explanations that were not truly explanations and to ask rhetorically, "How many times does Mr Hughes get off the hook on the basis of 'lack of attention to detail'?"
  1. The other recurring theme is that the Tribunal did not say enough. This is based firmly upon the line of authorities that began with Meek v City of Birmingham District Council [1987] IRLR 250 CA. The losing party is entitled to understand why they have lost. However, it must be borne in mind that Tribunals are often told, rightly, that they do not have to deal with every matter nor deal with every difference between the parties that arises in evidence before them. The Meek approach is frequently prayed in aid in this Tribunal to argue that some less important aspects of evidence or submission have not been considered. It is inappropriate in that context. It is, I should add, in deference to the submission of Mr Gilroy QC, who, effectively, urged me not to dismiss the Meek case because the Meek point is raised so often before this Tribunal that it becomes, he would have wished to put it, a case of "Oh no, not that again", to note that in many cases it does indeed succeed, certainly in the Appeal Tribunal, but what is critical is whether the central issues in the case are addressed.
  1. Here, the central issue was essentially the reason why the treatment had occurred. In the process of determining that question, evidence was received, much of which was not controversial though some was. Generally, so long as the Tribunal clearly said in respect of any particular important matter why it had thought it had occurred and had some evidential basis for doing so, this would satisfy the requirements of Meek, sufficiently indicates to the Claimant why she had lost, tell a court sitting on appeal the reasoning so that the decision could be reviewed properly and sufficiently satisfy the general requirements of justice, quite apart from acting as a necessary aide-memoire for its own reasoning process.
  1. With those observations I turn to the particular grounds. Ground 1 urges a consideration of the reasoning of paragraph 137 (see above). This is the aspect of the case that has given me the most cause for concern. In paragraph 137 the Tribunal describe how Mr Hughes gave evidence that the reason he did not allocate the Claimant the supervision of the Registrars was because of the Deanery recommendation, but in the next breath said that it had not been a significant factor. The Tribunal's conclusion that that was a lack of attention to detail on his part is not an easy conclusion to understand, since this was not describing his behaviour at the time, as a man under pressure, receiving several emails every day and having to deal with the pressing issues of the moment as Medical Director, for whom it might be easy to see matters could be overlooked, but a man who after the event had given evidence to a Tribunal that looked both ways at more or less the same time.
  1. The response of Mr Sugarman was effectively that it reflected a somewhat muddled approach on behalf of Mr Hughes. He argues that it was inevitable, as it will often be, that there are inconsistencies in evidence before a Tribunal. That does not affect the validity of the Tribunal's overall conclusions, but in particular here the issue had to be borne in mind. The question was the reason for his actions. The Tribunal saw that the reason for the restrictions on the Claimant's practice was "clear". It set it out at paragraph 138. The last sentence of paragraph 138 (see above) showed that the Tribunal here would not have shifted the burden of proof, if that is what it had been asked to do, because there was no evidence to conclude that Mr Hughes behaving as he did was anything to do with her nationality.
  1. I invited Mr Gilroy QC to spell out the case that this and indeed any of the behaviours of Mr Hughes might have been, sensibly, due to the nationality of the Claimant. He relied upon paragraph 82, which referred to the events of 2007 and the behaviour of the RCP on that occasion. I accept what Mr Sugarman says: that the Tribunal dealt with that, it disposed of it and the behaviour of the RCP on that occasion has no obvious or necessary relevance to events some four or five years later which did not involve it. Secondly, Mr Gilroy QC would rely upon the Allen report, which said (see paragraph 56) that her behaviour reflected the different quality of her training in clinical neurology compared with British postgraduate clinical training. Taken with paragraph 57 and paragraph 60, the passage underlined in the Tribunal's decision, one could see a number of stereotypical assumptions as to the quality of eastern European training - in particular, Polish training - being repeated. Although these were the words of an independent third party, the Tribunal had adopted his report. Although what it adopted, as Mr Sugarman points out, was the recommendation of the report and not therefore necessarily its whole contents, this was to adopt the approach of something tainted with a discriminatory attitude; added to that were the fact that Dr Allen had spoken to Registrars who volunteered that they thought that the Claimant's approach was due to her poor training in Poland and the observations of the senior nursing sister to which I have already referred.
  1. Those were the matters that might go to suggesting that the behaviour of Mr Hughes, that of Dr Shakespeare and the Respondent more generally might have been due to the nationality of the Claimant. It involves what seems to me a highly tenuous link between the Allen report and the events in the Trust. It is not an easy case to establish, for instance, a link between the tainted report, if it was, and, for instance, delays that the Tribunal found to be unacceptable but nothing to do with race.
  1. Moreover, and anticipating the discussion later to be held in respect of the fifth complaint, ground 4, the Tribunal's analysis in paragraph 157 seems to me compelling. Dr Allen did not ask where the Claimant had been trained and concluded that therefore she was of poor clinical competence but asked about her performance first, concluded it was poor, and then sought a reason for it. There may have been speculation as to her training in Poland, though it was plainly, and accepted to be, different from that in England. It might be thought to that extent to be a benevolent explanation by him for her lack of good performance, since his report did not assert that she was inherently incapable of proper performance. Secondly, the Tribunal found merit in Mr Sugarman's argument at paragraph 159 as noted above. That too is a good point, though perhaps not as powerful as Mr Sugarman would have it, since to have a concern about the quality of Polish training is to emphasise its Polish aspect and that may indicate an approach to Poles more generally. However, it is right that the link is a slender one.
  1. Accordingly, it seems to me that the Tribunal here was entitled to come to the view it expressed in respect of allegation 2 and to conclude that there was no evidence before it on which it could conclude that the Trust would have resisted a recommendation by the Deanery in respect of a doctor of a different nationality from that of the Claimant. That being so, the claim could not succeed. But in any event the Tribunal found as a matter of fact what the reasons were, and I am just persuaded that the description "lack of attention to detail" in respect of Mr Hughes is capable of covering a view of a man who could be muddled and therefore be a sufficient way of explaining his evidence. I would have wished for more, but I do not think that this is an area in which, given my general observations, it was incumbent upon the Tribunal to spell out precisely why and how it resolved the dispute such as it was between Mrs Swindley and Mr Hughes. It may be, as Mr Sugarman submits, that much depends on context, and my conclusion is it did not have to say more to satisfy its obligations pursuant to the Meek line of authority. It told the Claimant why she had lost on that particular ground.
  1. As to the second ground, the argument was that it was wrong of the Tribunal having concluded that it was unreasonable of Mr Hughes not to have told the Claimant of the additional six cases, to explain that as a lack of attention to detail or an oversight. This did not pay sufficient regard to the burden of proof, nor explain sufficiently how it resolved the issue and it failed adequately to address the fact that the Respondent was at fault. In my view, for the reasons I have already given as to Meek and as to the burden of proof, this ground fails. I accept Mr Sugarman's retort, in his excellent skeleton argument, that the allegation was a good example of the Claimant seeking to convert what was in essence a complaint of unfairness into one of discrimination.
  1. As to the third ground, the Tribunal had expressed its concern as to the late volunteering of an explanation by Mr Hughes for his conduct. Mr Gilroy QC complains that it was not to the point that he was embarrassed by or apologetic over the delay; the question was not his reaction to it, but the reason for it. The Tribunal here, for the third occasion relevant to the grounds of appeal, had described the problem as being the lack of Mr Hughes' attention to detail. I have already noted the vagueness of that expression but recognise that the Tribunal saw the witnesses, evaluated them and the evidence and took apparent care in the conclusions it expressed. I do not think that it had to find that he had given such an inadequate explanation as not only to reverse the burden of proof but to fail to prove why he did what he did. The Tribunal in respect of this at paragraph 146 again dealt with what would have been the position had it adopted a two-stage approach - if indeed it was not in this respect actually adopting such a course. In effect, it did. It thought there was no evidence that the omission was due to nationality, and was entitled to reach that conclusion, but though this finding would have been enough on its own not to call for any reversal of the burden, in any event it found that the matter was an oversight. The impression given throughout the Judgment, though it is not expressly set out, is that Mr Hughes was a busy man receiving some 150 emails a day, who had a number of matters to deal with and was not the most efficient at doing so. Mr Gilroy QC's forensic point that in that position he should have been efficient is beside the point, since what matters is how the Tribunal found the witness before it had behaved. It looked at the man as he was, not as others might have wished him to be.
  1. As to ground 4, this relates to the matter with which I have already dealt above when discussing the evidence that the actions of the Respondent generally or specifically might have been due to the Claimant's nationality at paragraph 42 above. The argument for the Claimant relies on tainting what happened by the adoption and acceptance of the report. I have no more to add to that which I have already said in rejecting this ground of appeal.
  1. Ground 5 led to a further complaint by Mr Gilroy QC that the Tribunal did not, as it should have done, "drill down" to look at the evidence in detail and explain why it reached the conclusion it did. It allowed Mr Hughes, as he put it, to get off the hook on the basis that he lacked attention to detail. The question in issue was why it was that the Claimant was faced essentially with nine complaints when she had been told she was due to face only one and, as Mr Sugarman observed, the calling of her to a meeting at all in respect of those complaints. The reasoning of the Tribunal was that the patient complaints were being addressed because the Chief Executive had referred the matter on to Mr Hughes. It thought that that would occur in respect of a person of any nationality. That conclusion is one of fact; it is permissible. I do not see that the Tribunal failed to explain its position, and I do not see any reason why it should not, as it did, find the reason why this had occurred. It follows that on similar grounds to those I have given above, the appeal on this ground too must be rejected.
**Comments**
  1. An overriding feature of this case has been that the Respondent has repeatedly been found to be lax, lacking in attention to detail or careless. The logic of the approach taken in Zafar is clear: that unreasonable, even unpleasant, behaviour is not of its nature essentially and necessarily behaviour adopted because of a protected characteristic of the Claimant. Where there is an approach towards all which creates an equality of misery it is particularly clear that it is unlikely to be because of a protected characteristic peculiar to only one or a few of them. However the "unreasonable not discriminatory" defence may be less applicable in a case in which the evidence shows that only one employee has in particular been made miserable. In that latter case, though it remains logically right that the individual may have been the unwilling victim of a mistake or oversight, there is much greater reason to consider carefully and with particular scrutiny whether this might simply be too easy an explanation. It may call, in an appropriate case, for evidence as to how others have been treated who, if the explanation were true, one might expect to have been treated equally badly. That point did not arise in this case - it was not taken - but I mention it in case this case and its reasoning give any support to a view that it is easy to avoid by confessing to having made a mistake or an error. A Tribunal should examine any such statement critically.
**Conclusion**
  1. For the reasons I have given, and despite the compelling advocacy of Mr Gilroy QC, to which I pay tribute, this appeal must be, and is, dismissed.

Published: 26/04/2016 12:13

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