NORTH STAFFORDSHIRE COMBINED HEALTHCARE NHS TRUST v DR K A AYES [2001] UKEAT 850_01_1209

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 850_01_1209Case No Appeal No. EAT/850/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
NORTH STAFFORDSHIRE COMBINED HEALTHCARE NHS TRUSTAPPELLANTDR K A AYESRESPONDENT
Before
MISS RECORDER ELIZABETH SLADE QCMR P R A JACQUES CBEMR J C SHRIGLEYDate 12 September 2001
[1]APPEARANCES For the Appellant MR PAUL DEAN (Solicitor) Instructed By: Mills & Reeve Solicitors Midland House 132 Hagley Road Edgbaston Birmingham B16 9NN MISS RECORDER ELIZABETH SLADE QC: This is the preliminary hearing of an appeal by North Staffordshire Combined Healthcare NHS Trust against the decision of an Employment Tribunal which held that the Applicant, who was a Specialist Registrar, was unlawfully discriminated against on the grounds of his race.[2]The Tribunal dismissed a claim which he had also made for victimisation under the Race Relations Act 1976 as they also dismissed a claim for breach of contract. The Notice of Appeal and the admirably succinct submissions made to us by Mr Dean allege that the Tribunal erred in law in its choice of comparators in determining whether Dr Ayes had been less favourably treated. In addition, in effect, it is said that the conclusion that an inference should be drawn that Dr Ayes had been treated less favourably than the Trust would have treated a hypothetical white Specialist Registrar was not supported by any evidence.[3]The facts may be briefly summarised as follows. Dr Ayes was a Specialist Registrar and was placed with the Appellant Trust. Some complaints were made against him of professional conduct and/or personal misconduct. The procedures to be adopted to deal with such complaints depended upon whether the complaints were of professional or of personal misconduct. In any event, for present purposes, suffice it to say that Dr Ayes was suspended from duty whilst those complaints were considered. The period of his suspension was very considerable. The Tribunal noted that he was suspended for some 19 months which is obviously a highly undesirable state of affairs.[4]We turn now to the question of whether the Tribunal applied the correct test to the question of whether he had been discriminated against on grounds of his race. The material paragraph, which is attacked by Mr Dean, is at paragraph 83 of the Decision. In that paragraph the Tribunal state as follows:
"The applicant must show he has been treated 'less favourably'. It is necessary for the applicant to demonstrate this with reference to either an actual or hypothetical comparator. The applicant relies on a hypothetical comparator. The comparator can either be a hypothetical white specialist registrar in the same circumstances or any other white employee employed by the Trust. We are satisfied that the applicant has been treated less favourably than a hypothetical white specialist registrar would have been treated in the same circumstances. There is no white specialist registrar who has ever been suspended for this length of time or indeed, ever been suspended."
The Race Relations Act 1976 , section 3(4) states:
"(4) A comparison of the case of a person of a particular racial group with that of a person not of that group under section 1(1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."
[5]In this case, in the last sentence of paragraph 83 of its Decision, the Tribunal appear to have placed reliance on the fact that there was no white Specialist Registrar who had ever been suspended for that length of time or indeed had ever been suspended in reaching its conclusion that there had been less favourable treated accorded to Dr Ayes. We consider there is considerable force in Mr Dean's argument that that sentence displays an error in the application of the statutory test and we consider that this point raises an arguable point of law.[6]Turning now to the contention of Mr Dean that the inference drawn by the Tribunal of race discrimination was an impermissible inference in that there was no evidence to support such a conclusion. The Tribunal appears to deal with this question in paragraph 100 of its Decision. Suffice it to say that in our view the point made by Mr Dean is worthy of further consideration and we consider that that point raises an arguable point of law.[7]Accordingly, this matter should proceed to a full appeal on the basis of the grounds of appeal before us.[8]As for time estimate a day, listing Category C. Skeleton arguments to be exchanged and lodged not less than 14 days before the date of the hearing.