_______________________

Appeal No. UKEAT/0099/10/DM

UKEAT/0100/10/DM

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 29 April 2010

Before

HIS HONOUR JUDGE McMULLEN QC

PROFESSOR S CORBY

MR B M WARMAN

(1) MRS A OSO; (2) MRS P OWOYEMI (APPELLANTS)

NEWHAM UNIVERSITY HOSPITAL NHS TRUST (RESPONDENT)

Transcript of Proceedings

JUDGMENT

**PRELIMINARY HEARING – APPELLANTS ONLY****APPEARANCES**

For the Appellants
MR D TIYAMIYU (of Counsel)

Instructed by:
Messrs Nathaniel & Co
422 Kingsland Road
Dalston
London
E8 4AA

For the Respondent
Written submissions

**SUMMARY**

RACE DISCRIMINATION – Direct

UNFAIR DISMISSAL – Reasonableness of dismissal

An Employment Tribunal did not err in dismissing claims of race discrimination and unfair dismissal following a full investigation of allegations of abuse by nursing staff.

**HIS HONOUR JUDGE McMULLEN QC**

1. This case is about unfair dismissal and race discrimination. It is the judgment of the court to which all members appointed by statute for their diverse specialist experience have contributed. We will refer to the parties as the Claimants and the Respondent.

**Introduction**

1. It is an appeal by the Claimants in those proceedings against the judgment of an Employment Tribunal sitting over some 14 days at East London Hearing Centre under the Chairmanship of Employment Judge Pritchard registered with reasons on 8 December 2009. The Claimants were represented by Mr Lanlehin of counsel and Mr Joney (solicitor) and the Respondent by Miss Stout of counsel. Today the Claimants have the advantage of being represented by Mr Tiyamiyu of counsel.

1. The Respondents have attended through Miss Pattenden (solicitor) who was at the Employment Tribunal hearing but we have not invited her to contribute to these proceedings, the Respondent having been directed to serve written submissions in opposition and these have been drafted by Miss Stout.

1. The Claimants claimed they had been unfairly dismissed and discriminated against on the grounds of their race. They are African/Black and of Nigerian origins, specifically the last. The Respondent contended that it dismissed them fairly, having followed fair procedures and that race played no part in the decision to dismiss them or the way in which the disciplinary proceedings were weighed against them, that is their suspension, investigation and hearings.

**The issues**

1. We have summarised the issues above but these were set out at length at the outset of the Employment Tribunal judgment. These had been inherited from previous CMDs. Insofar as they deal with unfair dismissal and race discrimination, no issue arises as to the formal depiction of the issues. However, there is no mention of wrongful dismissal, a point taken on appeal. Nor is there mention of a hypothetical comparison to be adopted for the purposes of race discrimination. Again, that is a point taken on appeal.

1. The Tribunal dismissed the Claimants' claims. They appeal. Directions were given by HHJ Richardson. He took one step, which was to invite the Tribunal to consider a ground of appeal which related to a race relations questionnaire. That issue has not been pursued further on appeal and we say no more about it. Save for that, Judge Richardson's view was that this case, in a number of respects, was a thin decision. But he was not convinced it contained any error of law. He indicated that these matters should go to a preliminary hearing, so that matters could be dealt with particularly in the light of the issue, now dead, of the race relations questionnaire.

**The legislation**

1. The relevant provisions of the legislation again are not in dispute. These are section 1(1) of the Race Relations Act 1976 which deals with direct discrimination and the comparison to be made in section 3. It is to be noted that the comparison is to actual or hypothetical comparators and the Claimant can run a case on the basis of one or the other, or both.

1. The provisions in relation to unfair dismissal are found in the Employment Rights Act 1996. Section 98(1) and (2) provide that conduct is a potentially fair reason for dismissal. Fairness is dealt with under section 98(4). For conduct characterised as misconduct or gross misconduct, the provisions generally operated through the judgment of the EAT in BHS Ltd v Burchell [1980] ICR 303 will apply. That is, the Tribunal must find that the Respondent genuinely believed in what was put against the Claimant following as much investigation as was reasonable. Further, the dismissal must fall within the band of responses of a reasonable employer in the circumstances.

1. Section 98A(2) deals with automatic unfair dismissal where there has been a breach of statutory procedures.

**The facts**

1. The facts in this case have been extensively set out by the Employment Tribunal in its 22 page judgment. It is a fair criticism of this judgment that the conclusions are not as extensive as they could have been, for there is no specific direction, as there should be under rule 30, as to the relevant law, and the conclusions take up less than two pages. Nevertheless, a Tribunal which gives sufficient reasons in the body of its findings is not required to rehearse them in its conclusions. A judgment which is unarguably right, notwithstanding a misdirection or an imperfection in the reasons, will be upheld on appeal.

1. It is, we have to say, a fairly common feature in complicated multi party proceedings for there to be extensive and exhaustive citation of the facts but fairly short conclusions. The directions on the relevant statutes have to be elicited from various parts of the judgment. They are contained for example in the list of issues and in references specifically to section 98 and to sections 1 and 3. So the statutes were before the Tribunal.

1. The facts indicate a very sad set up at the Respondent, which is an NHS Trust in East London. At Newham Hospital it runs the neonatal unit (NNU) which admits premature or underweight newly born babies. There are very serious clinical procedures conducted for the babies, together with their mothers. The NNU was subject to what is known as a serious untoward incident (SUI) in April 2007: over 800 women failed to have their maternity logged in on to their ante natal care systems. As a result of this error a number of steps were taken. No one was suspended or disciplined.

1. However, in due course a new matron, Julie Stokes (now Quintin) was appointed. Following her appointment some staff raised concern about nursing staff who were allegedly bullying parents of babies and also other staff. She reported this to Miss Forrest. Miss Forrest is the Deputy Director of Nursing and Miss Cathy Geddes is her superior, the Director of Nursing. They together form one half of the operation, the clinical half in relation to nurses. There is an administrative section which deals with what are broadly described as operations.

1. At the end of October 2007, an anonymous letter was sent naming five people who were engaged in unprofessional conduct. To them a further two were added. Among the initial five were the Claimants. They are nurses. They are Nigerian.

1. As a result of what was felt to be a major concern by the clinical nursing management, all seven were suspended. They are all Nigerian. The Tribunal noted that this was central to the contention that they were victims of race discrimination on the grounds of their Nigerian nationality.

1. Claimants complained that they were suspended as a result of race discrimination. All seven of them were suspended. Following the suspension an investigation was set en train under the leadership of Miss Caroline Bloch, head of Work Force Development within HR. The terms of reference were to investigate very serious allegations in respect of, broadly speaking, unprofessional conduct: shouting, bullying, speaking inappropriately, sleeping, threatening, breach of the Code and covering up for those who breached the Code. The Respondents have policies on bullying, harassment and discipline.

1. The Claimants were part of the investigation which took in 50 witnesses. During the course of the investigation four more individuals were sucked in. They were Anna Vincent, Ruby Bhagwan who are Black/Caribbean. Monica Rodney and Norma Rose, who are senior sisters and who are both Black/Caribbean were also part of the investigation but they were not suspended. The Respondent gave reasons for differentiating between, on the one hand, the seven and the other four. The Tribunal accepted that distinction as true and logical. The investigation was almost complete by the time they were added. They had been working throughout. The removal of the seven made the situation in the NNU acute and two, Miss Rodney and Miss Rose, were not accused of harassment and bullying. Nor was there any threat to colleagues. In addition, Miss Vincent and the others accepted that their behaviour towards one of the nurses was inappropriate. In other words, they accepted the force of what was said against them. During the course of the investigation the number was reduced from 11 to 10, Miss Nsa being taken out of scope.

1. In between there was another incident, known as the "Sarah Chipperfield complaint", for which Ruby Bhagwan, not hitherto suspended, was suspended. Ruby Bhagwan showed insight into the effect of her conduct. The Tribunal noted that if fault is found but an employee acknowledges no fault at all, that suggests that the conduct complained of may recur. That too was the reason the Tribunal accepted for distinguishing Ruby Bhagwan from the seven initially suspended.

1. Following the investigation disciplinary hearings were conducted. The allegations were set out. They were breach of the Respondent's bullying and harassment policy, of the NMC Code of Conduct relating to colleagues and to patients and of the Respondent's organisational values. The Claimants had been provided with the full investigatory report prior to the hearing. There were some statements missing but no point arises about that, the Tribunal having accepted the Respondent's explanation.

1. The Tribunal noted that in much of the criticism made on behalf of the Claimants, a criminal approach is to be taken. The Tribunal expressly invoked its understanding of the criminal law relating to, for example, the unused statements of the prosecution. No issue arises in respect of this matter, since the way in which documentation became available does not turn upon allegations of race discrimination in the investigation.

1. Of 50 people interviewed 18 had something adverse to say against Miss Owoyemi and 16 against Miss Oso. The Tribunal did not regard the statistics as significant but that indicates that there was a very substantial degree of concern against these two particular Claimants, more than against any of the others.

1. The Tribunal was asked to consider the impact of language which may have been understood in context by different cultural, rational and national groups and the Tribunal examines this in paragraphs 54 and 55.

1. Criticisms are made of the recording of the proceedings but these do not survive on appeal.

1. The Tribunal noted that neither in their interviews by the Investigating Committee nor elsewhere did the Claimants accept any wrongdoing on their part. The Tribunal reiterated the matter as being significant in a case of this sort that they accepted no responsibility.

1. The Claimants were summarily dismissed. The Respondent submitted a report, as it was bound to do, to the NMC. The Tribunal noted that Miss Owoyemi had had a previous warning which had expired but noted that in accordance with Webb v Airbus UK Limited [2008] IRLR 309 (CA) an expired warning can be a relevant matter in determining fairness. There were appeals and the Appeal Panels were diverse. The Tribunal noted that evidence was called at the appeals although the Tribunal depicted them as by way of review.

1. The Tribunal noted that at the appeal of Miss Owoyemi issues were raised as to an opinion given by the clinical leader of the NNU Dr Matthews. He noted that the suspended seven were all Nigerian and there were factors within the NNU which might have been broadly but not entirely split along racial lines. The panel had taken what the Tribunal regard as an intelligent and proactive approach to the possibility of language being used particularly by Africans or Nigerians. This could be a sensitive issue where premature babies were on the NNU and noise levels were critical. The Tribunal acknowledged that there was a limit to which character witnesses who had been called by the Claimants could assist. At Miss Oso's appeal, which was far more protracted over a number of days, the Claimant was represented by her husband. The Appeal Panel dismissed her appeal too.

1. The Tribunal came to the conclusions that there was no unfair dismissal and no discrimination. Its conclusions on unfair dismissal are as follow:

"78. On these facts the tribunal has to decide if there has been an unfair dismissal. As will be clear from the tribunal's findings the claimants have come no where near challenging any aspect of either the procedure or the substance of the decision to dismiss.

79. The question is not if the respondents did what was right, but whether their handling of the whole matter, procedurally and as a matter of substance, fell within the range of reasonable responses. We have no hesitation in so finding in the case of either of the claimants. There were serious concerns, morale on the unit seems to have been very low, and the care of babies and their parents appears at times to have been jeopardised by the sort of conduct complained of particularly exemplified by the claimants. Furthermore, as we have mentioned previously, a lack of any insight, recognition or remorse for the incidents rather precludes the respondent treating it with any lesser sanction than summary dismissal. That is because if they had been guilty of this conduct but had then apologised for it, that might have boded better for any future employment. The situation the respondent was left with here was unlikely to improve while the claimants were still in post."

1. It seems to us that this represents the application of the earlier directions it gave itself on section 98(4) and of the procedure which had clearly been intimated in the list of issues under the heading of "Unfair Dismissal". The Tribunal considered that the Respondent had dismissed them for the reasons which it gave.

1. Turning then to the race discrimination claim, the Tribunal noted the remarkable statistic that all of the seven original suspects were Nigerian and that that was not entirely a coincidence. The Tribunal noted that there were no hypothetical comparators in this case but came to the same conclusion in respect of what would have been a hypothetical comparison had it been before it. The evidence which it had did not shift the burden of proof. As the Tribunal noted, it is not enough to show different treatment to individuals of a different race. There must be something of racial grounds. We take that to be a reference to Mummery LJ in Madarassy [2007] IRLR 246 CA.

1. The Tribunal also considered the issue of comparators. This of course is at the heart of the case. There were black comparators and white comparators and the Tribunal has noted the way in which the explanation given by the Respondent seems to have been accepted.

**The legal principles**

1. The legislation is not in dispute.

1. As a matter of principle, a Tribunal should give proper reasons (see Meek v City of Birmingham DC [1987] IRLR 250). The issue of fairness is quite distinct from the issue of discrimination and separate findings should be made (see Zafar v Glasgow City Council. Where serious allegations are made against, for example, a health care profession the standard of investigation should be exemplary (see A v B [2003] IRLR 405. Where an allegation is made of discrimination there can be a comparison with actual or hypothetical comparators: see Wakeman v Quick Corporation [1999] IRLR 424. A Tribunal is not obliged to deal with issues which are not raised and live before it: see Bolch v Chipman [2004] IRLR 140 EAT

**The Claimant's case**

1. A number of aspects of the Claimant's case have fallen away during the course of debate with Mr Tiyamiyu. The first relates to what is said to be an error of law in dismissing the race discrimination claims. We agree with Mr Tiyamiyu that these reasons are short. The Tribunal could have looked more carefully at the specific authorities but given that the Tribunal considered at length the factual circumstances leading to the suspension investigation and disciplinary hearing, it is clear to us that there was no discrimination as the Tribunal had itself found.

1. The Claimants may have been owed fuller reasons but they cannot be in doubt as to why they lost: what was put against them was serious. It was put against what became 10 staff. The races of the 10 were different. Action was taken consistent for all of them and the different circumstances relating to the non-suspension of the additional four were fully set out. It is open to a Tribunal to consider, as a single stage, the explanations put forward by the Respondent (see the judgment of Elias P in Laing v Manchester. The Tribunal, thanks to definition of the issues at an earlier hearing, had clearly what the issues were to be and decided them.

1. The written submissions of Miss Stout on the subject of race discrimination are correct. She points out that the Disciplinary Panel was itself diverse, including at least one Nigerian. It concluded that the Claimants had never acknowledged that they were doing wrong and that they said all who made allegations against them, including at least one Nigerian, were lying. In our judgment, the Tribunal's finding that race played no part in the suspension, investigation and dismissal was one which was open to it.

1. As part of the claim on race discrimination it is contended that the Tribunal did not deal with the correct racial grounds. That cannot be right. The Tribunal acknowledged that the Claimants are Black/African, specifically Nigerian, and it was discrimination on that ground that they had alleged.

1. It is also contended under the race discrimination appeal that the Tribunal had not dealt with a hypothetical comparator. That is in part true. At the very outset of its judgment the Tribunal noted only actual comparators. Eight of them named and one unnamed were to be used and the Claimants did not rely on hypothetical comparators.

1. As part of its conclusions the Tribunal indicated, not necessarily for its decision, that had there been hypothetical comparators the judgment would have been the same. As is clear the finding as to what are the facts relating to any valid comparison are for an Employment Tribunal to make itself and it held that these were no valid actual comparators whose circumstances were similar, either by way of matters charged against them or history or seniority. In those circumstances the Tribunal was correct to focus solely upon the actual comparators. It was said in oral submission to us that reliance had been placed on hypothetical comparators by the Claimants, but there is nothing in the written closing submissions made on their behalf to indicate that. If it was, then the Tribunal has answered it any way. We reject the error of law alleged in that.

1. Turning to unfair dismissal, we reject the contention now made that there was a prejudicial gap in the timescale. The events arising at the end of October 2007 were the subject of dismissals during 2008, following a lengthy investigation. There is nothing in this point.

1. The Employment Tribunal had in mind the relevant tests. It applied its mind to what were reasonable investigations and we acknowledge that reasonable applies to all stages (see Sainsbury's Supermarket Ltd v Hitt.

1. There is no error in the Tribunal's approach to its direction and its conclusions on unfair dismissal in paragraphs 49, 78 to 79.

1. An aspect of the unfair dismissal claim is a claim for automatic unfair dismissal under section 98A(2), that is that the Respondent failed to carry out the statutory disciplinary procedure. This was not an issue identified at the CMD but the matter must fail in the light of the express findings about what happened on the ground. We have no doubt the Tribunal, if this were squarely put in front of it, would have used its findings in paragraphs 42, 43, 45, 46 and 48 to dispose of that allegation. There can be no doubt that the Claimants were given notice of what was put against them, were invited to a meeting and conducted an appeal. So there is no basis as a matter of fact for this point to be taken.

1. Throughout Mr Tiyamiyu's submissions is a complaint that the Tribunal failed to give full reasons. As we have said, we have some sympathy with that. One specific allegation is that the Tribunal failed to determine the claim of wrongful dismissal. We reject this entirely. Wrongful dismissal was not added as a third head of claim behind unfair dismissal and race discrimination in the CMD. Whether or not it was raised in the claim form may be open to debate but this decision, carefully based on CMDs, did not include that matter. No submissions were made about it and although it appears as an issue in the skeleton argument, it is not one which has any basis.

1. We conclude on unfair dismissal that the Employment Tribunal properly gave attention to a judgment which has appeared since in London Ambulance Service v Small [2009] IRLR 563 (CA) which is to focus upon what it was reasonable for the employer to do. This is a separate consideration from the race discrimination claims but plainly what was fair and reasonable and equal could apply to a determination of race discrimination.

1. As Mr Tiyamiyu now accepts, the issue for us is whether there is a real prospect of success in this case and not, as he put it in his argument, merely arguable points. We have dealt with the matter fully and we thank him for his careful submissions orally and in writing. The appeals are dismissed.