DR K PAL v GUY'S AND ST THOMAS' HOSPITAL NHS TRUST [2002] UKEAT 1240_01_1303

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1240_01_1303Case No Appeal No. EAT/1240/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
DR K PALAPPELLANTGUY'S AND ST THOMAS' HOSPITAL NHS TRUSTRESPONDENT
Before
His Honour Judge J McMullenDate 13 March 2002
[1]APPEARANCES For the Appellant Mr J Quigley (Solicitor) JUDGE J McMULLEN QC This is an appeal by the Applicant, Dr Pal, against the Decision of the London South Employment Tribunal, consisting of Mr Booth, Chairman, Mr Hardwick and Mrs Tritton, held over five days in 2001, including a day in chambers to consider written representations exchanged and further representations presented on behalf of the Applicant, in reply to those of the Respondent. The Applicant was represented by Counsel at the Employment Tribunal and by Mr Quigley today, for whose oral submissions and supporting Skeleton Argument we are grateful. The Respondent was represented by Counsel at the Employment Tribunal.[2]The Decision of the Tribunal was to dismiss the Originating Application of Dr Pal. The focus of the hearing, ultimately, was on whether the application alleging sex and race discrimination had been made within time, and whether discretion should be exercised on the grounds of justice and equity to allow the case to proceed, were it to be found to be out of time. Nevertheless, during the course of the four days of hearing, the Tribunal heard the fullest accounts of the circumstances of the complaint.[3]The nature of the Applicant's complaint, presented on 6 June 2000, was that the Respondent failed to re-grade her post and she was treated less favourably than Dr Ogilvie, Dr Scriven and Mr Campbell. The issue before the Tribunal, therefore, concerned discrimination in promotion. The Tribunal found that the facts were not in dispute, and that the evidence consisted mainly of statements. The Tribunal said at the outset it did not accept the Applicant's assertion that she did not know at the relevant time of the promotion of her three colleagues. The Applicant and her colleagues were employed within the Clinical Genetics Centre and, within that, in the Cytogenetics laboratory. The Applicant and her colleagues were scientists, paid on what is known as grade B of the clinical scientist range within the NHS pay structure. "This is the main professional grade and covers all scientists from those entering the service with their first degree to the most senior post below head of department." This case covers the grade B for staff on points 16-19 on the scale. Outside involvement of assessors is a part of the process for grading and promotion.[4]The Applicant was born in 1943 in India, and educated to postgraduate degree level there. She then came to England in 1967 and obtained an M Phil in 1974. She has held a number of posts within the Health Service. She has been party to publishing a number of papers. In 1998 a head of department retired. Another scientist, Dr Docherty, had her post upgraded and she was appointed Head of Cytogenetics. The Tribunal found:
"The money that was released by this operation was used to fund an additional appointment at grade B and to fund three promotions for existing staff within Grade B. Dr Docherty considered that the posts held by [the three comparators] now merited B Grade 17-19 and the title of Principal Clinical Scientist."
This was agreed by the Clinical Director but it also required, as we have indicated, the appointment of NHS external assessors, pursuant to NHS rules. Dr Docherty told the three comparators about her intentions, but she did not tell the Applicant. The three were interviewed. On 21 October 1999 the outside assessors agreed to the promotion and thus it was that the three were re-graded as Principal Clinical Scientists, grade 17-19, backdated to 1 April 1999. As a result of this series of promotions, the Tribunal found that the Applicant suffered a triple blow:
"Younger white people had overtaken her in salary terms, they had more prestigious titles and they ranked above her in the hierarchy."
She made a claim of sex and race discrimination.[5]The principal issue first for the Tribunal was whether the claim in June 2000 was in time. It is not disputed that it made the correct decision as to the relevant date viz 21 October 1999 the date of the promotion. The presentation of the Originating Application was thus some nine months later, or six months after the requisite limitation period. It therefore fell to the Tribunal to decide whether or not the Applicant knew about the promotion. The Tribunal decided that she did, based on clear evidence and a rejection of the Applicant's case. This factual decision by the Tribunal is not the subject of attack.[6]The next issue was whether it was just and equitable for the Tribunal to extend time. That is subject to attack by Mr Quigley. The way the Tribunal put it, was as follows:
"As the Applicant's case as it is put depends wholly upon that assertion…" [that is that she did not know of the promotion in October] "which we have rejected. We can see no reason why it is just and equitable for us to consider her application and we therefore dismiss it."
The punctuation in that extract from the Tribunal's reasoning needs to be adjusted, so that a comma follows "rejected".[7]The substance of the attack today is that the Tribunal ought to have exercised its discretion to allow the case to proceed. In order to understand what was submitted to the Tribunal, we have been shown the written closing submissions of Counsel on behalf of both parties. On behalf of the Respondent, there appears to have been no express reference to the extension of jurisdiction on the grounds of justice and equity.[8]On the other hand, for the Applicant, such a submission was made in the following terms:
"the Applicant will rely on the fact that the Applicant made her complaint within three months of the complaints made about her treatment in April 2000. The Applicant relies upon the principles set out and points set out in the cases of Cast -v-Croydon College [1998] ICR 500 and Anyagwu -v- Hackney [1999] IRLR 303 "
. Having seen that submission, the Tribunal's Reasons, which we have cited from above, are wholly explicable. The sole assertion of the Applicant was that she did not know in October 1999 of the promotion of her colleagues. The authorities relied on in the written submissions take her case no further. Cast -v- Croydon relates to defining the relevant date and is not, in our judgment, relevant to the Decision before the Tribunal in our case. Anyagwu deals with the position of a person who delayed putting in an Originating Application while pursuing internal appeals.[9]Mr Quigley submitted that the Tribunal does not give an indication of its reasons for rejecting the claim. He submitted that two issues should have been considered: prejudice to the Applicant and prejudice to the Respondent. We have considered the former and find no authority which deals specifically with the question of prejudice to the Applicant. Prejudice to the Respondent is, of course, always relevant when an application to sue a Respondent arises, long after an event has occurred. It is also relevant to consider the length of time by which an extension is sought, in this case some six months after the time limit ran out. It is true that neither the length of time, nor the prejudice to the Respondent is expressly dealt with by the Tribunal, but as we have attempted to indicate, no submission was made to the Tribunal by the Applicant or the Respondent, relevant to any of the factors which ought to be considered by a Tribunal, when exercising just and equitable jurisdiction. As we have said, the sole issue the Applicant relied on was her assertion, which was disbelieved. So the Tribunal determined there was no reason why it should extend its jurisdiction.[10]Nevertheless, the Tribunal did go on to record a view about the merits of the case. Mr Quigley contended that it was relevant to the exercise of discretion to consider the merits of the case. Taking that submission at face value, without reference to authority, it appears that the Tribunal may have done this. The criticism Mr Quigley makes is that it did not properly assess the merits of the Applicant's case. We reject that approach. As we have held, the Tribunal did not expressly include within its remit, when looking at justice and equity, the relative merits of the case, but if paragraph 29 is to be considered as a factor, and since assessment of the merits is accepted by Mr Quigley to be relevant, then the Tribunal cannot be faulted. The Tribunal said it would, unhesitatingly, have dismissed the claim.[11]The Tribunal makes a very clear judgment against the merits of the Applicant's case and, if that was a factor which it took into account in the exercise of its jurisdiction, the preceding recital of the evidence relating to the standing and qualifications and experience of the comparators, on the one hand, and the Applicant on the other, provide a sufficient basis for us to make that judgment.[12]In our view, the only issue in this case related to the exercise of a discretion. The Applicant has failed to cross the high threshold required for us to overturn the exercise of discretion by the Tribunal in this case. Unlike the Tribunal, it is not necessary for us to express any view on the merits and we dismiss the appeal.