MRS DOROTHY KALEKYE OLWA v (1) NORTH GLASGOW UNIVERSITY HOSPITALS NHS TRUST (2) MISS MARY MCGINLEY [2004] UKEAT 0067_02_2203

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0067_02_2203Case No Appeal No. EATS/0067/02Venue 52 MELVILLE STREET, EDINBURGH EH3 7HF
Between
MRS DOROTHY KALEKYE OLWAAPPELLANT(1) NORTH GLASGOW UNIVERSITY HOSPITALS NHS TRUST (2) MISS MARY MCGINLEYRESPONDENT
Before
Lord Johnston Mr A J Ramsden Dr W M SpeirsDate 22 March 2004
[1]APPEARANCES For the Appellant Mr D Loughney, Representative Of- Edinburgh TUC The Basement 26 Albany Street EDINBURGH EH1 3QH For the Respondents Mr J Speir, Advocate Instructed by- Scottish Health Service Central Legal Office Trinity Park House South Trinity Road EDINBURGH EH5 3SE LORD JOHNSTON: This is an appeal on behalf of the appellant against a decision of the Employment Tribunal sitting in Edinburgh on various dates in 2001, culminating in a decision being promulgated on 25 September 2002, almost a year after the closing submissions were entertained by the Tribunal. Its findings dismissed claims of racial discrimination and victimisation.[2]The delay in promulgating the judgment was central to the argument before us, and, in this respect, without further ado, it is useful to adopt an extremely useful and comprehensive summary of the principles to be applied by the President (Burton J), of the Employment Appeal Tribunal, namely, Kwamin & Others v various respondents 2 March 2004. After a discussion of both the arguments and the case history, his Lordship issues useful guidance, starting on page 15 of the judgment. "15.1 The Appellant will need to invite the appellate court to examine the delayed judgment for any sign of error due to faulty recollection. The party impugning a judgment will need to show a material error or omission (if only one, then it would need to be the more significant) or a series of material errors or omissions. Material in this context does not mean material in the sense of an independent ground of appeal i.e. necessarily central to the decision and indicating an error of law or such error or errors of fact as to amount to perversity, but material in the sense that, taken separately or together, it or they show a real risk that there has been a failure of recollection, so as to establish that the decision is unsafe by virtue of the delay. 15.2 Such causation is essential. The appeal must not be allowed, just because of the judgment being a delayed one, to degenerate into an impermissible appeal based upon an alleged error or errors of fact, as a result of what Lord Scott called " trawling " through the judgment. It plainly should not open the door, of itself, to allowing a second bite at the cherry, or certainly to a remission to the employment tribunal for the purpose of allowing a better job to be done by the losing party, second time around. We are satisfied, notwithstanding Lord Scott's use of the words " probably or even possibly ", that, given the consequence for the parties of setting aside the judgment, the appeal tribunal must be satisfied on the balance of probabilities that the unsafeness is due to the delay. If the unsafeness of the Decision due to the delay is established, then that is an independent ground of appeal, and the delay will have infected and rendered unsafe one or more of the bases in law for the tribunal's decision. The error or errors must be due to the delay, and cast doubt upon the decision or part of the decision. 15.3 We emphasise 'or part of the decision' because we entirely agree with the approach of

Judge McMullen QC in Chinyanga at paragraph 42, when he said:

"We have decided not to set aside the whole of the decision and send it to a different Tribunal because we have dealt clinically with the submission made to us that what is required to be shown is delay plus some additional error. We do not consider that justice will be done by setting aside the whole of this decision, in the light of the consideration which we have given to it."
The delay may not impact so heavily, or not at all, on all parts of the decision. Some questions may depend upon an analysis or construction of documents or on undisputed questions of fact. Analysis of the causation must be careful, given the inevitably substantial consequences of an order for a rehearing of matters possibly many years before and of depriving the successful party of a decision in his or her favour, while condemning both parties to additional possibly extraordinary additional expenditure of time and cost. There can be no question here of 'one out, all out', but there must be what Judge McMullen QC called a clinical consideration of the effect, if any, of the delay. 15.4 There is and must be what Ms Cunningham on behalf of the Appellant in the Kwamin case called a ' sliding scale ' of consideration of the danger of injustice dependent upon delay. The longer the delay, the more scrutiny required. Lord Woolf MR stated in Gardiner Fire that " it has been our approach to scrutinise the material which has been placed before us in the light of the delay to which I have made reference ". 15.5 This brings us to the next and significant factor in an appeal based upon a delayed judgment. The Employment Appeal Tribunal is required by the Court of Appeal, and has always been prepared, to pay great respect to the conclusions of the employment tribunal, as industrial jury, as the finders of fact, and because there is only an appeal to the Employment Appeal Tribunal on a point of law. In that context the Appeal Tribunal (i) will not be too demanding of detail in the expression of the Tribunal's reasons (subject always to there being sufficiency of reasons in accordance with Meek v City of Birmingham [1987] IRLR 250 ) (ii) will resist the kind of analysis of Extended Reasons which treats them as if they were a statute, but will encourage and adopt a sensible and common sense understanding of them, (iii) will ensure that respect is given to the fact that the Employment Tribunal has seen and formed impressions of the witnesses, and (iv) is required to be very slow indeed to interfere with the decision of an Employment Tribunal on ground of perversity (see most recently Yeboah v Crofton [2002] IRLR 643). Such deference and reluctance and giving of leeway must inevitably be the less when it is suggested that there have been errors by the Tribunal by virtue of the delay, or that conclusions of the Tribunal are not, or may not, be based upon any abiding recollection of the witnesses or their impression upon it. In Goose (referred to in Cobham in the passage cited in paragraph 14 above) at paragraph 113 Peter Gibson LJ stated:
"Because of the delay in giving judgment, it has been incumbent upon us to look with especial care at any finding of fact which is now challenged. In ordinary circumstances where there is a conflict of evidence a judge who has seen and heard the witnesses has an advantage, denied to an appellate court, which is likely to prove decisive on an appeal, unless it can be shown that he failed to use, or misused this advantage. We do not lose sight of the fact that the judge had transcripts of the evidence, as well as very extensive written submissions from Counsel. But the very fact of the huge delay in itself weakened the judge's advantage, and this consideration had to be taken into account when we reviewed the material which was before the judge. In a case as complex as this, it is not uncommon for a judge to form an initial impression of the likely result at the end of the evidence, but when he has come to study the evidence (both oral and written) and the submissions he has received, with greater care, he will then go back to consider the effect the witnesses made on him when they gave evidence about the matters that are now troubling him. At a distance of 20 months, Harman J denied himself the opportunity of making this further check in any meaningful way."
Similarly in Poundall he said:
"These matters leave me profoundly uneasy as to whether the Recorder did take proper advantage of the fact that he had seen and heard the witnesses."
See too per HH

Judge Reid QC in Barker at paragraph 31:

"The danger in any case of this sort is that the Tribunal will have forgotten the impression created by witnesses."
However there falls to set against this the authoritative statement in Cobham at 1783, when Lord Scott, giving the judgment of their Lordships, including Lord Slynn of Hadley and Lord Hope of Craighead, stated:
"As to demeanour two things can be said. First, in their Lordships' collective experience, a judge rereading his notes of evidence, after the elapse of a considerable period of time can expect, if the notes are of the requisite quality, his impression of the witnesses to be revived by the rereading. Second, every experienced judge…is likely to make notes as a trial progresses, recording the impression being made upon him by the witnesses. Notes of this character would not, without the judge's permission or special request being made to him, form part of the record on an appeal…It is, in their Lordships' opinion, impermissible to conclude from the fact of a twelve-months' delay that the judge had a difficult task, let alone an 'impossible' one as Singh JA suggested, in remembering the demeanour of witnesses.""
[3]From that case we take the essential point that delay in itself, however grave as it certainly is in this case, does not necessarily result in a perverse or erroneous decision. There must be shown, within the confines of that decision, material which has been wrongly considered, inadequately dealt with, or, indeed, not considered at all, a position likely to have been compounded by the period of delay so as to render the decision unsafe and it is that latter word which we apply to the present case.[4]The decision of the Tribunal, in terms of its conclusions, starts from page 37 of the decision as follows:- "Section 4 of the Race Relations Act 1976, dealing with discrimination in employment, provides:- (2) It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee –(a) in terms of employment which he affords him; or(b) in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or(c) by dismissing him, or subjecting him to any other detriment. Section 1 of the Act defines race discrimination by providing: (1) A person discriminates against another in any circumstances relevant for the purposes of this Act if- on racial grounds he treats that other less favourably than he treats or would treat other persons;… and extends that definition to discrimination by way of victimisation in Section 2: (1) A person ("the discriminator") discriminates against another person ("the person victimised") in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has – (a) brought proceedings against the discriminator or any other person under this Act;… It is the applicant's contention in the original application that the respondents, in carrying out a grading exercise which resulted in her post being graded as Grade E, while other staff midwives in the NPU who had previously been on the same grade as her had their posts graded as Grade F, had discriminated against her on racial grounds, in that she had been subjected to detriment, and treated less favourably than colleagues who held qualifications and whose duties involved the carrying out of tasks which were the same or not materially different from qualifications held and tasks carried out by her. The respondents maintain that the decision on the grade to be awarded to the applicant followed the guidance on the application of grading criteria, that there were valid grounds for making a distinction between the applicant's post and those of the midwives graded F, and that there were other midwives in the NPU who were also graded E, not only the applicant and Ms Ewan, who was also of black ethnic origin. There is obviously no doubt that the applicant, having formerly been paid on the same scale as all other staff midwives in the NPU, was as a result of the implementation of the 1988 grading exercise by the respondents, awarded a grade which was less than 11 of them. By virtue of that, she was subjected to detriment, she was treated less favourably than other persons, and our task is to decide whether that discrimination was "on racial grounds". In order to determine this, we have to look at the reasons given by the respondents for the decision on her grading, which involves consideration of the basic provisions which governed the process of grading and the way in which each step of the process was carried out to arrive at the effective decision by the respondents. While this involves the examination of a good deal of evidence, and its interpretation by those who played any part in the process, it is of assistance that there is little or no dispute about the basic factual position.; that is not to say that there are considerable differences between the applicant and the respondents' witnesses over their respective interpretations of the motivations for particular actions, and of the justifications for these actions and that there is less than satisfactory position in regard to the availability of documents relating to the grading of staff who were graded F. The starting point is the grading definitions contained in the grading scheme; it is clear that all those involved in this exercise experienced considerable difficulty in seeing a clear structure in these and the way in which distinctions had to be made between them. The definitions themselves have a degree of overlap, and some of their elements are concerned with making distinctions which are not relevant to the present case, for example the Paragraph 1 of the Scale F criteria is concerned with distinguishing particular categories of ward sisters from those to be graded G. Comparing the criteria in Scale E Paragraph 1 and those in Scale F Paragraph 2, both begin by specifying that the post-holder is responsible for "the assessment of care needs, the development, implementation and evaluation of programmes of care", but in F "without supervision" and "may be required to teach other nursing and non-nursing staff", although sub-paragraph (a) setting out one of a number of alternative additional requirements of Scale E Paragraph 1 includes "able to teach qualified and unqualified staff, including basic and/or post-basic students" and Paragraph 2 indicates "able to supervise and teach junior staff including basic and/or post basic students". Scale E Sub-paragraph 1(a) refers to a postholder being "designated to take charge regularly of a ward or equivalent sphere of nursing or midwifery in the absence of the person who has continuing responsibility" and the same expression is used in sub-paragraph 2(a) of the Scale F criteria. Scale E sub-paragraph 1(b) specifies as an alternative a requirement "to have first level registration plus: i. i. a further registerable qualification; or ii. ii. a recordable post-basic certificate/statement of competence, or an equivalent level of skill acquired through experience and Scale F uses the same words, but in sub-paragraph (a), so that they are conjoint with the other requirement of that paragraph, with the addition of a further sub-alternative, "experience in a post at Scale E". Scale E Paragraph 2 then specifies a separate free-standing criterion, being "required to take responsibility as the prime care provider for one, or a defined group of patients/mothers, in the hospital setting. He/she works with minimal supervision in the assessment of all relevant care needs, the development, implementation and evaluation of programmes of care." By contrast, the reference to prime care in Scale F is as a further alternative addition that the post-holder is a prime care provider, who is required to practice clinical skills, developed through experience in, but more advanced than those required for , a post at Scale E". (Our emphasis). The Scale F criteria include two further alternatives which are not relevant to consideration of this case. Leaving aside for the moment the difficulties of drawing distinctions between these two specifications in the manner in which they were expressed, we looked at the individual stages in the decision making process in the light of the criticisms of these expressed by the applicant; we are satisfied that the version of the Form 2 used by the respondents, was intended to elicit the information required regarding each member of staff. We are also satisfied that Ms Bradford completed the form for the applicant and others according to her understanding of the work they did and the way in which that should be conveyed to those responsible for making the assessment; this involved distinguishing individuals who "require experience and/or clinical skills greater than Scale E" and, with a division along very similar lines "requires to be a prime care provider". As is indicated in our findings in fact above, we believe prime care nursing was in operation in the NPU at 1 March 1988, and we do not accept the evidence of Ms Duffy who claimed that she had worked as a prime carer only after her grade was awarded. The chain of events was of course such that to begin with the distinctions which Mrs Bradford had made were of no significance, as the initial grading of sisters as F left no scope for staff midwives to be awarded that grade. Only with the informal review carried out by Mrs Maclennan, with some participation by Mr Haynes was there a distinction made which resulted in the applicant being graded less favourably then many of her colleagues. We accept the evidence of Mrs MacLennan that the basis on which she decided on the allocation of Grade F was whether staff were acting as prime care providers; obviously, this approach itself raises certain questions as to its appropriateness, given the relative requirements of the two Grades which we have referred to above, notably that being a prime care provider could indicate either grade, and we can only infer, as it was not explicit that functioning as a prime care midwife in the NPU involved practice of clinical skills "more advanced than those required for Scale E". Difficulties also arise from the manner in which this review was carried out, in that its scope was confined to those, albeit the majority, who had appealed against the award of Grade E; we would have expected that the totally new situation in which Grade F was now available would have resulted in the review of all those awarded Grade E. Since the only "unsuccessful" appellants were the applicant, her black ethnic colleague, Mrs Ewan, and Miss McGallagly, who did not have the neonatal paediatric certificate, it is understandable that the applicant concluded that the underlying rationale for the decision was racial. This was not helped by the terms of the letter from Mr Haynes intimating the decision, which it was explained followed one of a number of standard forms of letter prepared by Ms Patterson for Mr Haynes signature, and which it was accepted by him was less than accurate. In his subsequent letters, of 21 November 1998 refusing her formal Unit Level appeal and of 23 January 1990 to Mr Devine amplifying his response to her claims of racial discrimination, Mr Haynes emphasized the need for a Grade F post to satisfy the requirement of working "without supervision", which he defined as working "unsupervised at all time", a condition which the applicant could not fulfil as there were "clearly times when a more senior midwife nurse is rostered to be on duty"/"arrangements for the SCBU ensure that there is one grade G Midwife on each shift." The same approach was adopted in the Management Side case presented to the Board level appeal, which argued that the applicant did "not satisfy the grading definition since there is always a more senior practicing Midwife on duty, who carries a responsibility for supervision of staff", to which was added the general statement that the applicant "was not designated to take charge regularly of the SCBU, she did not lead a team of staff at Grade or below, act as a prime care provider or to undertake duties specific to a defined client group in the community." Since the outcome of the appeal was a simple failure to uphold, with no reasons stated, we must infer that the decision was based on acceptance of the management's case as stated. The weakness in that case is of course that it seems to us that midwives who were graded F were also subject to supervision. With regard to the subsequent external appeals, in our view the only aspect of them which is relevant to consideration of the basic question of whether the respondents discriminated against the applicant on racial grounds is the conduct of the respondents' representative, Miss McGinley, at the hearing: the applicant's evidence suggested that Miss McGinley's comments and demeanour confirmed an attitude of hostility and prejudice against her, which she could only attribute to a racial motivation, but we do not find evidence that Miss McGinley's behaviour reflected anything more than an emphatic presentation of the respondents' case. Looking at the evidence as a whole, it is clear to us that the process was less than satisfactory in a number of respects which we have referred to above, and that on that basis the eventual decisions on grading are questionable; it is not clear that they were wrong, but neither is it possible to say with any confidence that they were right. The largest question in our minds is whether with regard to the terms of the scheme, any of the staff midwives should have been graded F, at least on the basis of the information available, but as Mr Speir pointed out, that was never the basis to the applicant's submission. Our interpretation of the process is that there was substantial pressure on management from the staff side to be as generous as possible in the award of grades, and a counter pressure to ensure that the whole exercise did not prove excessively costly, and that the factor which resulted in the applicant not being included in those who were regraded was that she did not function as a prime care provider because she worked only night shift. This was a feature of her work she had in common not only with Mrs Ewan but with a number of others who were graded E, and we accept it as the basic explanation for the distinction adopted in her case; we are supported in this by Mrs Rush, who from a wider perspective considered that the grading exercise discriminated against staff on permanent night duty and part-time staff. Whether this could be seen as justified, or as unfair, it is a reason, other than racial grounds, for the discrimination which the applicant experienced. We conclude therefore that, looking at the individual items of evidence and at all the evidence cumulatively, there is no direct evidence of racial discrimination and we are unable to draw the inference that the decision on the applicant's grading was on racial grounds. In the subsequent applications, the applicant contends that she was subjected to further discrimination either on racial grounds or by way of victimisation for having done a protected act or acts, including the lodging of her original and 1996 tribunal applications, or a combination of these. In considering these, we were faced with the difficulty that, except where the applicant had complained soon after the incident, there was no evidence of the incident other than the applicant's own description as the sisters who gave evidence were unable to recall the incidents, although some did find it difficult to accept that they had occurred as described by the applicant, as they would have in these circumstances recalled them. For the purpose of our consideration, we accept that these incidents did occur. Of the various forms which these incidents were alleged to have taken, the most frequent was the failure of sisters to give her the report on the condition of babies, occurring on 2 August 1998 (Campbell), 16 August 1998 (Wynne/Lynch), 26 September 1998 (Hannah), 11 July 2000 (Campbell), 15 July 2000 (Wynne) and 20 August 2000 (Wynne). Another common incident was the failure to allocate babies to the applicant which she gave evidence occurred on four successive nights, 17-20 June 1995 (Stanbridge), on 9 February 1999 and on 19 August 2000 (O'Brien in both cases) The applicant gave evidence in general terms that prior to 1993, it was common for her to be left in charge of the part of the unit in which she was working at times when the sisters or Grade F who were in charge were taking their breaks, that this was reflected in giving her the keys for the drugs cupboard and the emergency bleeper, but that after that date, this was done less frequently or not at all. This had been the subject of a specific complaint by her at the time, when she claimed a bank midwife had been left in charge. The response of Miss McGinley in response to that complaint and the evidence from the respondents' witnesses at this tribunal was to the effect that giving a staff midwife the keys and/or the bleeper was a matter of convenience, so that these would be readily available in the Unit, but it did not amount to leaving that midwife in charge. The 1996 application complained of another specific incident, when Joan Bryson recalled Donna Coates from her break rather than leave the applicant on her own in the ward, the applicant's evidence is that it was normal practice but this was not the view taken by the respondents' witnesses. Another recurrent complaint arose from other midwives' refusing to check drugs with the applicant. This occurred 30 September 1996 (Gardiner) and on 16 April 2000 (Dawson). Some of these incidents were the subject of investigation following complaints made by the applicant at the time; these investigations were undertaken in 1993 by Ms Lynch at the request of Miss McGinley, and in 1998 by Mrs Stenhouse; it is our conclusion that these investigations did seek to address the various matters of concern expressed by the applicant, and either offered explanations or accepted that procedures required to be clarified or re-stated by way of reminder. Taking the various complaints which the applicant made, and even after allowing for the various incidents contained in the applicant's statement of further particulars on which evidence was not led, with a view to containing the length of the hearing, we do not see that the incidents were sufficiently frequent, regular or consistent as to amount to a policy or practice of discrimination against the applicant. Indeed on a number of occasions the applicant in her evidence gave as the reason for recollecting particular incidents that they were exceptional. We conclude that the incidents of not giving the report may be attributed to a number of factors, such as the sister being distracted or forgetful, which was more likely to occur on occasions where, because of the shift system, the applicant was the only midwife starting at the time, or possibly, as in Ms Campbell's case, being out of sorts for reasons that had nothing to do with the applicant. Over the period from 1989, there came to be distinctions between the level of responsibility of midwives graded F and those graded E, which were reflected in the duties they were expected to carry out; these changes would have come about gradually, and we find it credible that the applicant was more conscious of these following the failure of her 1993 appeal. The other matter which represented a substantial part of the applicant's case was the refusal of access to the course in intravenous administration of drugs; the applicant was not prepared to accept that her hospital certificate in Neonatal Paediatric Nursing was in any way inferior to completion of the PS2 module, and we have to accept that our own understanding of the distinction is limited to a perception that the PS2 module was more recent, had an explicit structure which could be referred to and would have taken account of the most up-to-date thinking and practice at the time at which it was taken, and we have the evidence of Ms Stevenson, who obtained a hospital certificate in 1968 and did the PS2 module in 1995, to the effect that the more recent course covered the great advances in technology which had taken place. Whether this could have been compensated for by the applicant's long experience and her attendance at skills updating is not something which we can judge, although we would observe that the parameters set for participation in the course would have allowed entry to an F grade midwife with a hospital certificate, on the rationale that her level of skill and experience was attested. In any event, this issue did not come to a conclusion, as it became subsumed by the negotiations which were entered into in 1986, which, had they been carried to a conclusion, would have resulted in the applicant being graded F under certain conditions, and she would have therefore been eligible for entry to the course. Although, in Mrs Robertson's words, the ball was in the respondents' court, we do not fault the respondents for not having pursued the issue further without any pressure from the applicant to do so. We conclude therefore that none of the matters complained of in the 1996 and 2000 applications can be regarded as discrimination on racial grounds of by way of victimisation."[5]The appellant was originally represented by the Commission for Racial Equality but they have parted company with her and before us she was represented by a local trade union official, who simply presented to us, in a paraphrased form, a substantial document prepared by the previous Counsel in the case, headed, "Skeleton Submissions on Behalf of the Appellant".[6]After dealing with the delay, arguments were presented on grounds of appeal, 2, 3 and 4 and their various sub-heads. We merely refer to that argument for the details so presented, but, it being important to note, as was submitted by Mr Speir, on behalf of the respondents, that no real attempt was made to suggest that any of the inadequacies in the conclusion of the Tribunal as narrated or referred to in that argument, pointed to a serious error or mistake, attributable, at least, probably to delay. Ground 4 is perhaps the high point for the appellant's case where it does appear the Tribunal did fail to deal with the particular instance therein narrated. But, as will be seen, we regard this as de minimis to the overall position.[7]Despite the detailed submissions contained in the Skeleton Argument and despite the inordinate delay which we cannot condone before the judgment was promulgated, applying the test laid down by the President in Kwamin , we are unable to conclude that the decision of the Tribunal, which we have narrated, is fundamentally flawed by reason of delay. The essential issue despite all the peripheral ones, was the complaint by the appellant that she had been not fairly treated or discriminated against when it came to her grading, a matter which she had contested for a number of years both internally and now externally.[8]We consider the substance of the Employment Tribunal's decision deals adequately with these issues and we refer simply to the reasoning that is set out on the passage to which we have already made reference.[9]Applying therefore the tests which we are obliged to apply, we are unable to conclude at this stage that this decision should be regarded as unsafe by reason of the delay that took place in its promulgation. This appeal is therefore refused.