MISS AGNES SITHOLE v CITY & HACKNEY COMMUNITY SERVICES NHS TRUST [2000] UKEAT 248_00_2911

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 248_00_2911

Case No Appeal No. EAT/248/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MISS AGNES SITHOLEAPPELLANT

CITY & HACKNEY COMMUNITY SERVICES NHS TRUSTRESPONDENT

Before

Mr Justice Lindsay

Date 29 November 2000

[1]APPEARANCES For the Appellant MR B TAKAVARASHA (Representative) For the Respondents MR A MOORTHY (Solicitor) Messrs Beachcroft Wansboroughs Solicitors 100 Fetter Lane London EC4A 1BN MR JUSTICE LINDSAY (PRESIDENT) : I have before me, for directions only, the appeal of Miss A Sithole in the matter Sithole v City and Hackney Community Services NHS Trust . There was a hearing spread over four days in November 1999 before the Tribunal at Woburn Place (Stratford) before the Chairman, Mrs E Prevezer, and two members, Mr M J Heron and Mr A W Ramsay. At that hearing the applicant, Miss Sithole, was represented, as she is today, by Mr Takavarasha. On that occasion the respondents appeared by Miss Bevitt of Counsel and today appear by Mr Moorthy.

[2]The decision of the Tribunal, which was unanimous, was that the Applicant's claim for unfair dismissal was dismissed; her claim for sex discrimination and race discrimination was dismissed and some other acts complained of up to June 1998 were taken to be outside the time limits laid down by the Race Relations Act and the Sex Discrimination Act and the Tribunal took the view that it had no jurisdiction to rule on those matters.

[3]There has been lodged a comprehensive Notice of Appeal and an amended Notice of Appeal.

[4]At the preliminary hearing at the Employment Appeal Tribunal on 16th June 2000, under a tribunal presided over by Mr Recorder Langstaff QC, the nature of the case was gone into in very fair and helpful detail and only two aspects of the appeal were permitted to go forward to a full hearing. In paragraph 10 of the decision on that day the Employment Appeal Tribunal said this:

"It is apparent, therefore, that we think that there is no arguable basis for any appeal, apart from: 1) An appeal based upon the finding against the Appellant that she had been fairly dismissed. The basis for that appeal being, as we have indicated, the question of whether or not the penalty imposed was one which, given the circumstances and background was appropriate; 2) And closely allied with that, whether there may or may not have been some evidence of victimisation, by reason of a heavier rather than lighter penalty being selected, which at least the Employment Tribunal should have explored. We are conscious that we may in the absence of submissions from the Respondent be reading more into extended reasons than is justified. None the less we feel some unease about the extended reasons given by the Stratford Employment Tribunal and think it proper that a full hearing should be held to explore those two issues only."

A little later there is a reference to the unfair dismissal argument as it had been identified by the Tribunal and to the victimisation argument.

[5]Mr Moorthy submits that if Chairman's Notes of Evidence are to be considered at all they have to be considered in the light of those two particular identified subjects, and that, as it seems to me, must be the right approach.

[6]It is, unhappily, one of those cases where bias is alleged as against the Chairman in particular or the Employment Tribunal as a whole. An affidavit has been sworn on that subject and there has been an answering letter from the Chairman. It seems to me that, where that is the case and where the preliminary hearing has identified some unease, with the Tribunal's decision, one can take perhaps a slightly broader view of the nature of the case that needs to be made for Chairman's Notes.

[7]Mr Moorthy rightly refers me to Webb v Anglian Water Authority

[1981] ICR 811

EAT , presided over by Browne-Wilkinson J, as he then was, and it is plain from that decision that amongst the cases in which Chairman's Notes can properly be ordered is a case where it is said that evidence was given but where no findings as to that evidence are to be found in the decision of the Employment Tribunal in question.

[8]Several of the arguments that Mr Takavarasha advances today are of that character and it does seem to me that it is appropriate to order Chairman's Notes, but in a relatively limited form.

[9]I fear that without them it will not be possible to have an adequate hearing even on the two particular identified issues which are alone the subject matter to go forward to the full hearing. So I shall order some topics for cover by the Chairman. Rather than discussing them in relation to the evidence of this witness or that or the evidence given between this time or that, it seems to me that far the preferable approach is to limit the subject matter of the Notes by reference to particular subject matters relative to the two issues identified by Mr Recorder Langstaff. So the Chairman's Notes should relate to oral evidence, if any, on the following subjects:(1) Oral evidence, if any, as to back-to-back working being or being regarded as a threat to the health and safety of patients or of fellow employees or members of the public, either generally or in specific instances relating to Miss Sithole's circumstances.

(2) Oral evidence, if any, as to sanctions imposed by this employer on others who had been held to have worked back-to-back and as to any distinctions between their cases and Miss Sithole's.

(3) Oral evidence, if any, as to the circumstances, if any, in which working back-to-back had either been authorised or required by management and as to any distinction between such circumstances and the circumstances in which Miss Sithole was placed.

(4) Oral evidence, if any, as to whether sanctions imposed on any others by reason of back-to-back working were or were said to be capable of being analysed in a way such as to suggest that Miss Sithole or other blacks were more heavily penalised than others and, if there was any oral evidence as to that, any oral evidence as to whatever differences there were and whether they could be attributed to the racial difference.

(5) Evidence, if any, as to when either respondent (Ms Downton or the Trust) first knew of Miss Sithole's IT1 having been presented to Stratford Employment Tribunal and as to who were the individuals at the respondents who did first learn of its presentation and any evidence as to when any individuals who were concerned in Miss Sithole's dismissal first learned of the presentation of the IT1.

[10]It seems to me that Mr Takavarasha's request for Chairman's Notes goes way beyond things that relate to the two relatively limited issues which Mr Recorder Langstaff identified, but the five categories that I have mentioned should be adequate to ensure a fair argument as whether there was, indeed, evidence given which led to no findings of fact in the Tribunal's decision. That seems to me to suffice.

[11]The Chairman should also be asked, out of an abundance of caution, if she finds that there is no evidence in one or more of the particular categories of the kind that I have just described, actually to say that there was no such evidence within that category. Thus the EAT will have not merely the Notes of Evidence but, where the Chairman wishes to say that there was no evidence on a given topic, she will actually be expected so to say. Notes on those topics do seem to me to be more than desirable for a fair hearing of the full case and accordingly I order those but nothing more.