“I know you were sent a copy of the Grievance Policy from the outset and that the time limit is clearly defined within the Policy. Following the grievance meeting with Andrew Loughney, Obi [the Appellant] and yourself we wrote and gave you a number of options should you have wished to progress the matter further. In the absence of any response the time limit applies. … I could understand if you wished to raise a Grievance if we do not apply the Policy but not when we do follow the Policy. The Policy only allows for further consideration if there are exceptional circumstances that would have prevented you raising further issues within the month. Should you wish there to be further consideration I would be grateful for you to send the grounds on which you wish this to be considered and I will pass this to the Director of Human Resources as per the Policy.”
“… Mr Holliday from HR wrote to [the Appellant] on30 September 2014 to the effect that the grievance could not be taken forward because it was outside the one-month time limit for raising grievances set by the formal grievance policy. This position was clearly unsustainable and the ET found that it was a blatant attempt to close down the grievance procedure which had started but stalled in August and September 2014 while discussions on remediation took place.”
“I agree with the submission of Mr Sweeney for the Trust that on the face of it this was an unjustified leap of reasoning. Further, in the light of their finding that the Trust through Ms Griffin (see paragraph 11.48) and indeed Mr Martin personally (see paragraph 7.121) saw the grievances as a method of attempting to delay, if not derail, the capability proceedings which were then on-going, it seems to me that it is unsupportable: the view of the Trust about what the Claimant was trying to do clearly provided a complete (albeit perhaps unsatisfactory) explanation for the Trust’s behaviour which was unrelated to his race. The ET also reasoned that race discrimination was established by reference to a hypothetical comparator of a different race referred to at paragraphs 11.37 and 11.40, who they said would not have been treated in the same way and would have had his grievance properly investigated under the grievance policy; the problem with the hypothetical comparator which the ET constructed was that they forgot to include when considering the characteristics of the comparator that the Trust would also have formed the view that his grievance was an attempt to derail a capability procedure.”
“When specifically considering the victimisation claim the ET said that they concluded that the decision not to allow the grievances to be investigated under the policy was ‘… materially influenced by the content of the grievances’ (see paragraph 11.48). It is not clear on what basis the ET decided that the content of the grievances was relevant and, again, in the light of their finding that the Trust saw the grievances as an attempt by the Claimant to derail the capability proceedings, I do not think this reasoning can stand.”
“I am of the clear view that the ET made an error of law in drawing the inference of race discrimination and victimisation and I therefore allow the appeal in relation to those findings against the Trust. Since I have concluded that the inferences were simply unsupportable on the basis of the ET’s other findings of fact I consider that it is open to me to substitute my own decision for that of the ET and to dismiss the claims of race discrimination and victimisation which were upheld by the ET.”
“(1) The ET’s findings that the Trust acted as no reasonable employer would have acted between September 2013 and the panel’s decision to dismiss involved substituting the ET’s judgment for that of the Trust’s Medical Director and/or were perverse; (2) Their conclusion that those actions ‘… are sufficient … to taint the decision of [the] panel and render the decision to dismiss itself unfair’ involved an error of law and approach similar to that made by the ET in the case of McAdie v RoyalBank of Scotland[2007] EWCA Civ 806 [this case is reported at[2008] ICR 1087 ]; (3) The ET failed to focus (as they should have) on the panel’s decision to dismiss and its reasonableness in the circumstances applying at the time; (4) The conclusion that the failure to arrange an appeal within the MHPS timetable deprived the Claimant of the opportunity to have a review of the dismissal decision and rendered it unfair was also perverse.”
“The fact that the employer was entirely responsible for the employee’s incapacity by its unfair treatment of her before the decision to dismiss did not by itself make the dismissal unfair.”
“It seems to me that the ET in this case have made the same error in their conclusion in the first part of paragraph 11.88 as the ET in the McAdie case did. 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. The fact that the MHPS is, as the ET put it, ‘one procedure’ for dealing with capability issues relating to doctors in the NHS cannot change the statutory question relating to unfair dismissal into another different question, namely whether the employer complied with that procedure in the run up to the decision to dismiss.”
“… I unhesitatingly agree with Mr Sweeney’s submission that this conclusion was perverse. It failed to take account of the very short timetable envisaged by the MHPS and the obvious complications involved in assembling an appeal panel and failed to take account of the perfectly plausible explanation for the delay which was put forward by Ms Griffin (in her statement at page 373 of the EAT bundle), which the ET had expressly accepted in the context of a discrimination claim at paragraph 11.57 of the Judgment. Further, it was not right to say that the Claimant was denied the opportunity to appeal; it would have been perfectly open to him to pursue the appeal already set for13 October 2015 while pursuing his claims in the Employment Tribunal. Mr Echendu in his submissions suggested that the fact that the Trust failed to comply with the time limit for the hearing of the appeal in the MHPS policy was really the end of the question and meant that unfairness was established: that is simply not correct.”
“(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”
“(1) A person (A) victimises another person (B) if A subjects B to a detriment because – (a). B does a protected act, or (b). A believes that B has done, or may do, a protected act. (2). Each of the following is a protected act – … (d) making an allegation (whether or not expressed) that A or another person has contravened this Act.”
“(1) This section applies to any proceedings relating to a contravention of this Act. (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. …”
“In dealing with these allegations, we must identify whether the claimant has been treated less favourably than an appropriate comparator pursuant to section 23 of the 2010 Act. If that is our conclusion, then that is not sufficient in itself to move the burden of proof to the respondents to explain: there must be an additional factor – Madarassey [sic]. The allegations we now consider span the period from 2012 up to the date of the claimant’s dismissal in 2015 and indeed beyond. Throughout that period, there were many allegations raised against the claimant and investigated by the respondents sometimes without the claimant even being made aware. The claimant remained excluded from clinical duties for a very long time without proper review, issues of conduct were elided with capability concerns and the relationship between the claimant and R2 patently deteriorated to breaking point. All those factors persuade us that the additional factor required by Madarassey is potentially present. We make that general point at this point at this stage and if, as we consider each allegation of direct discrimination, we do not specifically refer to that additional factor, we rely on the matters set out in this paragraph to fulfil that requirement. In addition we find that the claimant was the only black African consultant employed at the material time by R1 and the required difference in race is generally satisfied in that context.”
“11.37 We deal first with the grievance dated31 May 2014 which was discussed at the meeting on8 July 2014 but subsequently not progressed when R1 refused to deal further with it through BH by letter dated30 September 2014 . We construct a hypothetical comparator of a different race to the claimant to test for less favourable treatment. We note the Grievance Policy (‘the Policy’) requires matters to be raised informally in the first instance and within one month from the date the mater occurred. That condition was accepted as fulfilled by R1 as it convened a meeting with the claimant and RQ on8 July 2014 . Thus the matter was raised in a timely fashion. A letter was sent to the claimant on4 August 2014 requesting further information but making no reference to any consequence of a delayed or failure to reply. The claimant did not reply until after remedial enquiries failed and then he was met with a refusal to progress the matter on the basis that it was ‘outside of the one month time limit’. That position was inexplicable and contrary to the terms of the Policy. The grievance had been raised properly and the refusal to continue with it was contrary to the terms of the Policy. How would a hypothetical comparator have been treated? We construct a comparator at consultant level who had raised a grievance and who had had a preliminary meeting and then delayed in responding to R1 whilst other matters were investigated. We conclude that such a comparator would have been allowed to proceed with the grievance given that failing to do so would amount to a breach of the Policy. Thus we conclude the claimant was less favourably treated. There are additional factors to allow us to conclude that the burden of proof should move to R1. 11.38 We have considered the respondent’s explanation which was that the grievance was not allowed to progress because it was out of time. That explanation is rejected. The grievance was not out of time in accordance with the Policy. It had been accepted for a preliminary meeting and further information had been requested by R1 in a letter which made no reference to any time limit or consequence of not replying in a timely fashion. We infer that the decision of R1 was a blatant attempt to close down the grievance without having to deal with it further. We infer that R1 saw the grievance as a method of attempting to delay the capability proceedings then ongoing and sought to do so on the premise that the grievance was out of time. The explanation is not accepted and it follows that the claim of direct discrimination is made out.”
“The explanation is not accepted and it follows that the claim of direct discrimination is made out.”
“We conclude that [the Respondent] did not consider alternatives to excluding the [Appellant] from all clinical duties when he was excluded in September 2013. We conclude that no analysis was carried out at that time as to the extent of the complication concerns arising with the [Appellant’s] work across all areas – did they, for example only affect 20% of the [Appellant’s] work? Any reasonable employer at that time would, following the letter and spirit of MHPS, have considered if the [Appellant’s] practice could have been restricted in some less draconian way than imposing a blanket exclusion from clinical duty. No consideration was given to having the [Appellant] work under supervision with colleagues in the general surgery department and so retain his basic surgical skills whilst matters were investigated. In moving to a blanket exclusion without consideration of an alternative, [the Respondent] acted as no reasonable employer would act. … In our Judgment that failure to act as any reasonable employer would have acted taints all which follows.”
“Having imposed that full restriction on clinical duties, any reasonable employer would then keep that exclusion under regular and genuine review. [The Respondent] did not do so. …”
“11.87 MHPS requires capability concerns to be handled quickly and fairly. The procedure which led to the claimant’s dismissal lasted 20 months during which period he could not practice [sic] as a surgeon. That delay was unreasonable and led to the capability panel into [sic] dismissing the claimant. The procedure was also tainted with a very poor working relationship between the claimant and R2 which, whilst free from any taint of race discrimination, was sufficiently bad in our judgment to lead to unreasonable decisions being taken and the process of remediation being considered without any rigour or genuine intention to achieve a successful outcome. Those are not the actions of any reasonable employer. 11.88 MHPS is one procedure and the matters which occur prior to a capability panel being convened cannot be divorced from the decision of that panel. The unreasonable actions of R1, which we identify before the panel decided to dismiss, are sufficient in our judgment to taint the decision of that panel and render the decision to dismiss itself unfair. In any event the matters we identify as unreasonable were known to (or should reasonably have been known to) the capability panel. We conclude that any reasonable panel would have addressed those issues by giving particularly detailed and careful consideration to remediation or redeployment of the claimant. We conclude that the matters considered by the panel in this regard were not at the level of detail which any reasonable employer would have applied in the circumstances of this case given the size and administrative resources of R1 and the length of service of the claimant and responsibility previously placed on the claimant by R1 in allowing the claimant to head up the Unit.”
“R1 has a Remediation Policy. The chair of the capability panel which dismissed the claimant did not know of the existence of such a policy within R1 when she decided to dismiss. We refer to our finding of fact at paragraph 7.141 above. The document produced by Mr McKirdy at page 3007 is brief and identifies the claimant’s practice as ‘below par especially with regard to breast reconstruction’. The document produced by Professor Kumar (page 3113) was a short email. These are the documents which formed the basis of the discussions of the Panel which took place without involving the claimant on24 April 2015 , with Mr McKirdy joining the discussion by telephone, on the central and crucial questions of remediation of a ‘below par’ practice. Given all that had gone before and given the importance of the question of remediation, those matters were reasonably deserving of greater and more detailed consideration than was given to them. The fact that a process of ongoing remediation has been achieved since the dismissal of the claimant is some evidence that R1 did not act reasonably in this regard. Any reasonable employer faced with an experienced surgeon of long service as the claimant was and a practice described only as being ‘below par’ and certainly not ‘fundamentally flawed’ (which is the level MHPS identifies as demonstrating a standard of practice where remediation is not likely to succeed) would have given more detailed thought and consideration to these matters than was given to them by the capability panel. Those are not the actions of any reasonable employer.”
“MHPS requires a robust appeal procedure to be in place in case of dismissal with a strict timescale. That timescale was not complied with by R1 in this case. We note the reasons given for the delay but conclude that KG and the HR department evinced a failure to appreciate the significance and importance of a timely appeal process and did not give the appeal panel constitution the priority it reasonably merited. As a result of that unreasonable approach, the time limit for the appeal was missed and no reasonable attempt was made to agree (as opposed to dictate) a change in timetable as MHPS requires. As a result the claimant withdrew his appeal and was denied an opportunity to have his case reviewed on appeal. In failing to comply with the timescale for appeal, the respondent acted as no reasonable employer would act and effectively denied the claimant the opportunity to have his case reviewed on appeal which is a central element of MHPS and of any reasonable procedure.”
“Having reminded itself that the Tribunal must not substitute its own view of what should have occurred, the Tribunal were satisfied that no reasonable employer would have dismissed in these circumstances because no reasonable employer would have found themselves in these circumstances. A reasonable employer would have investigated the matter properly at an early stage. If, despite such an investigation, the outcome was not satisfactory to the claimant the employer would have been on firm ground to consider termination of employment in due course.”
“… It seems to us that there must be cases where the fact that the employer is in one sense or another responsible for an employee’s incapacity is, as a matter of common sense and common fairness, relevant to whether, and if so when, it is reasonable to dismiss him for that incapacity. It may, for example, be necessary in such a case to ‘go the extra mile’ in finding alternative employment for such an employee, or to put up with a longer period of sickness absence than would otherwise be reasonable. … However, we accept … that … it must be right that the fact that an employer has caused the incapacity in question, however culpably, cannot preclude him forever from effecting a fair dismissal. If it were otherwise, employers would in such cases be obliged to retain on their books indefinitely employees who were incapable of any useful work. Employees who have been injured as a result of a breach of duty by their employers are entitled to compensation in the ordinary courts, which in an appropriate case will include compensation for lost earnings and lost earning capacity: Tribunals must resist the temptation of being led by sympathy for the employee into including granting by way of compensation for unfair dismissal what is in truth an award of compensation for injury. We also agree … in sounding a note of caution about how often it will be necessary or appropriate for a Tribunal to undertake an inquiry into the employer’s responsibility for the original illness or accident, at least where that is genuinely in issue: its concern will be with the reasonableness of the employer’s conduct on the basis of what he reasonably knew or believed at the time of dismissal, and for that purpose a definitive decision on culpability or causation may be unnecessary.”
“… It is important to focus not, as such, on the question of that responsibility but on the statutory question of whether it was reasonable for the bank, ‘in the circumstances’ (which of course include the bank’s responsibility for her illness), to dismiss her for that reason. On ordinary principles, the question falls to be answered by reference to the situation as it was at the date that the decision was taken. Thus the question which the Tribunal should have asked itself was ‘was it reasonable for the bank to dismiss Mrs McAdie on22 December 2004 , in the circumstances as they then were, including the fact that their mishandling of the situation had led to her illness?’ ”
“… Given that the reason for the dismissal in the instant case – an indefinite incapability on the part of the claimant to do her job – and given that the manner in which the claimant was dismissed was procedurally fair – Mr Over [counsel for the employee] was quite unable to provide a rationale which distinguished the claimant’s case from the case of the employee who had been dismissed following an industrial accident which had rendered that employee incapable of continuing in his employment.”