Appeal No. UKEAT/0517/12/GE
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At
the Tribunal
On
26 July 2013
Before
HIS HONOUR JUDGE DAVID
RICHARDSON
(SITTING ALONE)
DR
S DOSANJH APPELLANT
NOTTINGHAMSHIRE
HEALTHCARE NHS TRUST RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
PRACTICE AND PROCEDURE – Amendment
The Claimant applied for permission to amend her claim to allege
disability discrimination and race discrimination. The Employment Judge, in
refusing permission (1) exercised his discretion on a misapprehension of fact,
in that the Claimant had, contrary to his understanding, raised disability
discrimination in the course of the disciplinary process, viz on appeal, (2)
overlooked email correspondence in September 2010 when the Claimant told
her union that she wished to claim race discrimination and (3) overlooked or
gave no reasons in respect of the Claimant’s explanation for delay, including
in particular the state of her health during the relevant time. The application
was remitted for reconsideration by a differently constituted Tribunal.
HIS HONOUR JUDGE DAVID RICHARDSON
Introduction
1.
This is an appeal by Dr Shavnam Dosanjh, the Claimant, against
a Judgment of Employment Judge Hutchinson, sitting in Nottingham, dated
1 February 2012. By his Judgment the Employment Judge refused the
Claimant’s application to amend her claim to add utHutchincomplaints
of disability and race discrimination to her existing claim of unfair and
wrongful dismissal.
The existing claims
2.
The Claimant was employed by the Nottinghamshire Healthcare NHS Trust,
the Respondent, with effect from 30 December 1996. She had been
employed as a Clinical Psychologist from 3 March 2008, having
recently qualified in that field. She was dismissed with effect from
19 August 2010. She raised an internal appeal against her
dismissal. That appeal was eventually heard over two days in April 2011.
It was dismissed shortly thereafter.
3.
In the meantime, on 17 November 2010, the Claimant brought a
claim of unfair and wrongful dismissal in which she was represented by
solicitors instructed by her union. It is relevant to summarise the case of
each party in respect of that claim.
4.
The Respondent’s case may be summarised as follows. In
September 2009 there had been concerns that the Claimant’s files had not
been kept up to date. She was subject to a performance review, signed off
after a period of supervision. However, she commenced sick leave in
November 2009 and during this period further concerns about her record
keeping were identified. In January 2010 she was informed that a formal
investigation would be commenced. This investigation found evidence to be
considered by a disciplinary panel; a disciplinary hearing took place on
30 June 2010; further investigation was required; a disciplinary
hearing was reconvened for 19 August 2010; the Claimant was dismissed
with effect from that date. It is the Respondent’s case that there were
serious concerns about the Claimant’s record keeping leaving to concerns about
her management of clinical risk.
5.
The Claimant’s case, as set out in her claim form, may be summarised as
follows. She had not been given appropriate information, support and
assistance as regards the Respondent’s expected standards, particularly of record
keeping. There was no fair investigation. Patient files were not made
available to her; inaccurate information was presented to the disciplinary
panel; the Respondent failed to take into account mitigating circumstances
relating to her “personal circumstances”; the Respondent being well aware of
her “personal difficulties”.
The application to amend
6.
On 14 September 2011 the Claimant wrote to the Employment
Tribunal asking to add claims of race discrimination and disability
discrimination. She sent a further letter dated
29 September entitled “Re Disability Discrimination”. These and
other documents were ordered by Employment Judge Caborn to stand as her
application for amendment. Employment Judge Caborn told the Claimant to note
that it would be necessary for her to identify the basis of her alleged
complaints by identifying the matter of the complaint, the date or dates, the
person or persons involved, how the alleged treatment is said to constituted
discrimination under the legislation, identifying the relevant provisions. She
was advised to take legal advice.
7.
The Claimant instructed new representatives who wrote to the Employment
Tribunal on 16 December, seeking leave to serve a race relations
questionnaire. This document set out a summary of her complaints. It is too
long to set out in this Judgment, but was relied on before the Employment
Judge. The application to amend came before the Employment Judge with other
matters on 1 February 2012. The Claimant was represented by counsel.
The Claimant’s skeleton argument referred to the race relations questionnaire
and, again, summarised her case. Once again, the passage is too long to quote
conveniently in this Judgment but was plainly considered by the Employment
Judge.
8.
The skeleton argument of her counsel referred to the prejudice she would
suffer if she was not permitted to raise the heads of claim in question and
contained the following paragraph, 39:
“The Claimant’s condition makes it difficult for her to function
on a day to day basis. Whilst it is acknowledged that these claims are out of
time, the Claimant urges the Tribunal to consider the fact that she has not
been well for some time and that her previous solicitors did not advance these
claims in the manner that they should have. The Claimant’s current solicitors
were not instructed until 24 November 2011. Any failures of the
Claimant’s legal representatives ought not to be visited upon her.”
9.
The Employment Judge did not have any witness statement from the
Claimant setting out the factual basis for her assertion that it would be just
and equitable to extend time for making her complaints and granting permission
to amend. He was not asked to receive oral evidence. He received submissions
at considerable length from the Claimant’s counsel and from the Respondent. It
is plain that he was referred to a substantial amount of documentation in the
two bundles.
The Employment Judge’s reasons
10.
The Employment Judge’s essential conclusions are set out in
paragraphs 6.1 to 6.8 of his reasons:
“6.1 I am satisfied that the nature of this amendment is not
minor. It still, as at the time of this Pre-Hearing Review, has not been
particularised properly but these are new allegations being made and it is not
simply a question of adding or substituting labels to facts already pleaded
6.2 Claims of race discrimination and disability discrimination
are entirely different from claims of unfair dismissal.
6.3 I take into account the relevant statutory time limits.
These allegations all predate the date of dismissal, i.e.
19 August 2010. The application is made today, 1 February 2012,
almost 18 months after the date of dismissal. Such matters are governed
by the appropriate statutory time limits and clearly claims of race and
disability discrimination should be lodged within 3 months of the date of the
act complained of. I would only have jurisdiction to hear such complaints if I
consider it just and equitable in this case to extend time.
6.4 Apart from the issue of the considerable delay I also take into
account that throughout the process the Claimant was represented by a senior
Trade Union Official and no issue of discrimination was ever raised during that
process.
6.5 I also take into account that when the Claimant submitted
her claim she was represented by a firm of solicitors and I cannot believe that
any allegation of discrimination was placed before them otherwise they would
have made the claim.
6.6 The Claimant is a professional person and there is no reason
for her delay in submitting these claims to the Tribunal.
6.7 I am also satisfied that these are new allegations that have
not previously been made and it causes prejudice to the Claimant that she
cannot proceed with these claims. If I allowed them to proceed there would
clearly be considerable prejudice to the Respondent bearing in mind the length
of time since the incidents occurred.
6.8 The refusal of leave to amend does not in my view cause
hardship to the Claimant since it does not prevent her from pursuing her claim
of unfair dismissal. It could be argued that she would suffer greater hardship
if the amendment was granted because of the increased costs that would
inevitably be incurred.”
The appeal
11.
The appeal was originally on wider grounds than those which have been
permitted to proceed to today’s hearing. On 3 April 2013 His Honour
Judge McMullen QC allowed the appeal to proceed insofar as it concerned the
application for permission to amend, largely for reasons set out in paragraphs
8, 9 and 10 of his Judgment. He did not, however, restrict the grounds of appeal
in the Notice of Appeal and Ms McCann has put her case more widely today.
12.
I remind myself immediately before I come to consider individual grounds
of the limited role of the Employment Appeal Tribunal which is concerned only
with questions of law. This is an appeal against what is essentially a
discretionary case management decision. The test to be applied in considering
whether to overturn it were stated by Henry LJ with whom Beldam LJ
and Thorpe LJ agreed in Noorani v Merseyside TEC Limited
[1989] IRLR 184:
“[…] These decisions are entrusted to the discretion of the
court at first instance. Appellate courts must recognise that in such
decisions different courts may disagree without either being wrong, far less
having made a mistake in law. Such decisions are, essentially, challengeable
only on what loosely may be called Wednesbury grounds, when the court at
first instance exercised the discretion under a mistake of law, or disregard
principle, or under a misapprehension as to the facts, where they took into
account irrelevant matters or failed to take into account relevant matters, or
where the conclusion reached was ‘outside the generous ambit within which a
reasonable disagreement is possible’.”
13.
I will begin with the points which were identified by
HHJ McMullen. I start first of all with paragraph 6.4 of the
Employment Judge’s reasons in which he said that “no issue of discrimination
was ever raised during that process”. If by that process he meant the
disciplinary process, it is common ground today that the Employment Judge was
wrong. The issue of disability discrimination was raised during the
disciplinary process at the appeal stage. The point had been made in the
Claimant’s email dated 29 September, which was part of the application to
amend.
14.
Ms McCann submits that the Employment Judge indeed referred to the
disciplinary process; and that this error was a material misapprehension as to
the facts so that he exercised his discretion on a wrong basis, ignoring the
fact that the disability discrimination had indeed been raised in the appeal
process. Mr Sheppard submits that the Employment Judge was referring only
to the Tribunal process and, further, and in any event, that any
misapprehension was immaterial and would have made no difference to the
outcome.
15.
I am satisfied that the Employment Judge indeed referred to the
disciplinary process. To my mind it is clear that at this point he was
accepting a submission made by the Respondent’s representative (see paragraphs 4.4
and 4.5 of his reasons) with the reference to the Claimant having been advised
by her union representatives throughout the disciplinary process.
16.
In the result the Employment Judge, no doubt influenced by the
Respondent’s representative, misapprehended the facts. To my mind this
misapprehension was material. It is potentially a significant factor to be
borne in mind under the Selkent principles that an allegation of
discrimination sought to be raised by amendment had been raised during the
disciplinary process and, therefore, potentially, may be in play in unfair
dismissal proceedings which were already before the Tribunal. This factor may
impact upon the extent to which one party or the other is prejudiced by the
grant or refusal of an amendment.
17.
I turn then to paragraph 6.5 of the Employment Judge’s reasons. He
said there that he could not believe that any allegation of discrimination was
placed before the firm of solicitors instructed by the Claimant’s union,
otherwise they would have made the claim. There was in the papers prepared for
the hearing an exchange of emails between the Claimant and her trade union
dated 1, 2 and 3 September 2010. In that exchange of emails she
complained of behaviour by the Respondent’s management, which was “unprofessional,
abusive and, at worst, racist and/or bullying”. She was asked if she wished to
make a claim of race discrimination. She replied yes to that question.
18.
The Claimant’s case, supported by contemporaneous attendance note, is
that the Employment Judge was expressly referred to this documentation. The
Respondent is unable to confirm that this was so or to deny it. It is not
necessarily inconsistent with paragraph 6.5 of his reasons that the
Employment Judge should have been referred to the emails, but the sting would
have been taken from paragraph 6.5 of his reasons if the Employment Judge had
regard to the emails. The material was in the bundle; and I conclude that when
taking into account the factor mentioned in 6.5 of his reasons without reference
to that material the Employment Judge must have overlooked an important factor.
19.
I turn then to paragraph 6.6. Here, the Employment Judge remarked that
the Claimant is a professional person and said that there was “no reason for
her delay” in submitting these claims to the Tribunal. This
paragraph entirely fails to deal with the central thrust of the Claimant’s
case put in the skeleton argument to which I have referred. There was
substantial material indicating the extent of the Claimant’s ill health over a
substantial period of 2009 and 2010. The Employment Judge does not evaluate
this material or, indeed, make any reference to it at all. Either he has
overlooked entirely a significant feature of the case or he has failed to give
reasons for the manner in which he has dealt with it.
20.
For these reasons I am satisfied that the Employment Judge’s decision
cannot stand and that the matter must be remitted for reconsideration entirely
afresh. Ms McCann made other points in the course of a wide‑ranging
attack on the Employment Judge’s procedure and reasons. I am not satisfied
that any of the other points were made good, but I am satisfied that these
points of importance are made out.
21.
I am told that the unfair dismissal claim, which was made the subject of
a deposit order, is extant but stayed pending this appeal. To my mind, the
first task for the Employment Tribunal will be to determine the applications
for permission to amend. I have the following comments relating to that
matter. Firstly, I think it is desirable that there should be directions for
the Claimant to set out in a single document, which cannot be misunderstood,
particulars of the kind which Employment Judge Caborn identified. The
Employment Judge who hears the matter again should not be left to divine the
claim from the application, the racial relations questionnaire and a skeleton argument.
22.
Secondly, I consider that the Claimant should prepare a witness
statement which sets out those matters on which she wishes to rely by way of
explanation for the delay in bringing the claim and otherwise so far as
questions of prejudice are concerned. Next time round the matter should not be
left to oral argument and documents.
23.
Thirdly, I would comment on one submission which Ms McCann made –
namely, that the Employment Judge should have considered the allegations
individually. It is not an error of law for an Employment Judge to fail in his
reasons to address each individual allegation within an application for
permission to amend. It is, however, true to say that different considerations
may apply to amendment in respect of disability discrimination and race
discrimination, and further, that different considerations may apply depending
on the extent to which the application to amend relates to the underlying
unfair dismissal claim and the extent to which it raises matters which are
extraneous to that claim. I make it plain that all these are matters for the
Employment Judge to whom the matter is remitted; I am not expressing either way
any opinion on the question whether leave to amend should be granted. It
should, however, be considered entirely afresh.
