MS P J SMITH v OPTIMUM HEALTH SERVICES NHS TRUST [1999] UKEAT 1387_98_2710

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [1999] UKEAT 1387_98_2710

Case No Appeal No. EAT/1387/98

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MS P J SMITHAPPELLANT

OPTIMUM HEALTH SERVICES NHS TRUSTRESPONDENT

Before

His Honour Judge H Wilson Mr J C Shrigley Mr P M Smith

Date 27 October 1999

[1]APPEARANCES For the Appellant Ms Smith (In person) JUDGE WILSON: This is the preliminary hearing of a proposed appeal by the Appellant against the decision of the Industrial Tribunal dismissing her complaints against the Respondent. It is an unusual case in several ways, but primarily because this is the second preliminary hearing that there has been, and we have benefited from the judgment pronounced on behalf of the Employment Tribunal sitting on 22 March 1999 by His Honour Judge Levy. He summarised the facts in a way which we adopt:

"The origins of the appeal go back quite a long way. In 1995, the Appellant was employed within the first health promotion of the Respondent as a team leader. She had 6 working staff in the NHS liaison team and was responsible for day to day management and professional personnel department of those staff. She was away sick from 4 May 1995 and, whilst she was away, a number of her team complained about her conduct. In her absence, there were investigations; when she returned from sick leave (she returned a little unexpectedly), she was suspended and in due course there was an investigation followed by a disciplinary hearing based on the complaints of her subordinates. Soon after the disciplinary hearing had started, the Appellant issued the first of two Applications to an Employment Tribunal. The two were eventually consolidated. There was a very long hearing before an Employment Tribunal which sat at London (South). Evidence was heard for 18 days, 11 of them in May 1997, 1 of them in December 1997 and 6 of them in June 1998. There were then 2 days during which the Members consulted, following which a reserved decision was sent to the parties on 18 August 1998. The unanimous decision of the Tribunal was that the claims of race discrimination and victimisation presented by the Appellant were dismissed as was the claim for unfair dismissal. The Extended Reasons are exceptionally long and on the surface, balanced. There was the shortest Notice of Appeal from that judgment dated 23 September 1998."

The Employment Appeal Tribunal in March then went on to give directions about steps which should be taken by the Appellant in furtherance of her appeal and which resulted in the amended Notice of Appeal, the Appellant's affidavit and the Chairman's response. As stated by the Employment Appeal Tribunal on the previous occasion when this case was before it on the preliminary hearing, this was an extraordinarily long case; 19 days spread over 13 months, quite clearly a considerable number of documents, and finally, a 53 page A4 typescript decision. It is by any view an unwieldy decision, but it seemed to us important to separate the initial complaint from the later one. Initially, the complaint was of race discrimination and victimisation and it was issued after the start but before the conclusion of the disciplinary proceedings against the Appellant, which arose out of complaints by members of junior staff about what they said were unacceptable aspects of the management style of the Appellant. The Respondent had no choice but to investigate those complaints and there can be no question that the disciplinary procedure was the proper way in which to do it. The complaints were thoroughly investigated by the Respondent in accordance with its disciplinary procedure. The procedure itself was extended over a period of many months for a variety of reasons, which do not matter for the purposes of this judgment. The conclusion reached at the end of the disciplinary proceedings was that the Appellant had no case to answer. It is difficult to see how such a conclusion could support a case against those who so concluded for racial discrimination and victimisation.

[2]The Appellant called four witnesses whose evidence was given at the outset of the proceedings before the Employment Tribunal. They are mentioned at the outset of the decision but not thereafter. They are referred to in the Appellant's amended Notice of Appeal and in her affidavit, but not in the Chairman's response. That is an unfortunate omission. However, in the context of the rest of the decision (which examines in exhaustive detail how the Respondent went about the disciplinary enquiry), the evidence given by those witnesses must have been about their personal experiences as the Notice of Appeal and the Appellant's affidavit states. They were therefore, have been of no assistance to the Employment Tribunal which was in any case faced, as we have observed, with a decision by the disciplinary hearing which exonerated the Appellant.

[3]Because the disciplinary procedures had been so prolonged, they were overtaken by the onset of a financial crisis in the Respondent's affairs which necessitated a staff restructuring. This in turn resulted in a redundancy situation because the number of managers, of whom the Appellant was one, was reduced and there was therefore a competition for the remaining jobs. The Employment Tribunal found that the redundancy situation had been properly handled by the Respondent. There had been consultation with the Union and the Respondent had been assisted at critical times by the Commission for Racial Equalities Complaints Representative. The ensuing competitive interviews were found to have been impeccably conducted, but the Appellant was unfortunately not a successful candidate.

[4]She issued a second application against the Respondent on the grounds of further racial discrimination and unfair dismissal. In effect, she was saying that the latter, the unfair dismissal, resulted from the former, the racial discrimination. The Employment Tribunal unanimously found that the dismissal was fair, and it therefore followed that there was no racial discrimination involved in the dismissal. Nothing which has been urged upon us in her oral amplification this morning, or in the papers which she has prepared in support of her appeal, has satisfied us that there was any error in those findings of the Tribunal.

[5]It is plain that the Industrial Tribunal went to great lengths from the very outset to help the Appellant, recognising her difficulties as a lay litigant. She impressed the Employment Tribunal as she has impressed us as an articulate, very intelligent lady. Unfortunately it seems that the Appellant regards any finding of fact which is against her to be evidence of bias. We have scrutinised the evidence upon which the findings of fact have been made and we conclude that they are findings which a reasonable Employment Tribunal properly directing itself was entitled to make. Although the somewhat inchoate and lengthy decision has not made the process easy, we have also examined the application of the law by the Employment Tribunal to the facts which they have found proved and we can find no error of law into which they have fallen. Accordingly there appears to be no prospect of success for this appeal were it to proceed to a full hearing and it must be dismissed at this stage.