DR A AHARI v BIRMINGHAM HEARTLANDS AND SOLIHULL [2008] UKEAT 0355_07_0104

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0355_07_0104Case No Appeal No. UKEAT/0355/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
DR A AHARIAPPELLANTBIRMINGHAM HEARTLANDS AND SOLIHULLRESPONDENT
Before
His Honour Judge Peter ClarkDate 1 April 2008
[1]APPEARANCES For the Appellant MS J McCAFFERTY (of Counsel) Appearing under the aegis of the Bar Pro Bono Unit For the Respondent MR P OLDHAM (of Counsel) Instructed by: Messrs Capsticks Solicitors 77-83 Upper Richmond Road Putney London SW15 2TT MR G HAY (Solicitor) SUMMARY Practice and Procedure: Strikingout/dismissal Jurisdictional Points: Claim in time and effective date of termination Race discrimination: Direct Absolute witness immunity – quasi-judicial proceedings – continuing act of discrimination – limitation – striking out claim. HIS HONOUR JUDGE PETER CLARK The parties to these proceedings before the Birmingham Employment Tribunal were Dr Ahari, Claimant, and Birmingham Heartlands and Solihull Hospitals NHS Trust, Respondent. I shall so describe them. The appeal before me is brought by the Claimant against the judgment of Employment Judge Ahmed, sitting alone at a PHR on 25 September 2006, dismissing his various claims brought against the Respondent. That judgment is dated 9 October 2006. Full reasons for the judgment were promulgated on 14 December 2006.[2]In this appeal I am concerned only with that part of the Employment Tribunal judgment which dismissed the claim of unlawful direct race discrimination on the grounds that it was time barred (the relevant claim).[3]The appeal was originally rejected under EAT Rule 3(7) by HHJ Burke QC on 7 February 2007 and then, on consideration of a fresh Notice of Appeal, by HHJ Birtles on 19 March. Dissatisfied with those opinions the Claimant exercised his right to an oral hearing under Rule 3(10). That application came before Burton J on 4 July 2007. For the reasons given in a judgment delivered that day Burton J allowed the matter to proceed to a preliminary hearing on two grounds identified in amended Grounds of Appeal. At the preliminary hearing HHJ Richardson, sitting on 7 November 2007, permitted both those grounds to proceed to a full hearing. That is the hearing now before me. Dr Ahari is now represented by Miss MaCafferty acting pro bono. Mr Peter Oldham, who also did not appear below, instructed by Capsticks, whose Mr Hay represented the Respondent before the Employment Tribunal, now appears on their behalf before me. Background[4]The Claimant was employed by the Respondent as a Specialist Registrar Anaesthetist from 1 February 2000 until his resignation on 25 April that year. He presented his claim Form ET1 to the Employment Tribunal on 12 May 2006, some 6 years after his employment ended. How then does he seek to overcome the apparent limitation hurdle, such claims being subject to a primary limitation period of 3 months?[5]The act of discrimination relied on as bringing the claim within the 3 months period preceding presentation of his Form ET1 is evidence given by Dr Carnie, the Respondent's Clinical Director and a Consultant Anaesthetist to the Fitness to Practise Panel (FPP) of the General Medical Council (GMC) at a hearing of the Panel held between 22 and 25 May 2006.[6]Pausing there, the Employment Tribunal found that the last possible act of discrimination relied on by the Claimant, post-employment, ended with correspondence between the Claimant and Dr Hopkinson of the Respondent in about June 2002. He contended before the Employment Tribunal that the next act of discrimination was Dr Carnie's evidence before the FPP on or after 22 May 2006. By then he had presented his Form ET1. Thus the question which immediately arises is whether the claim was amended to include that subsequent allegation of discriminatory conduct for which the Respondent may be liable; for no act of discrimination is alleged during the 3 months preceding presentation of the Form ET1. Thus the Claimant must show a continuing act under s68(7)(b) Race Relations Act 1976. For this purpose he relies on acts between February 2000 and June 2002 and finally the evidence of Dr Carnie to the FPP on or after 22 May 2006.[7]The grounds of appeal before me concern the questions as to whether the Employment Tribunal was entitled to conclude(a) that Dr Carnie's evidence to the FPP as a witness was protected by absolute or qualified immunity and/or(b) whether the claim of racial discrimination based on that evidence was bound to fail on the merits. Unless the Claimant is able to rely on that event as part of a continuing act for limitation purposes, this appeal and the claim of race discrimination must fail. As Burton J observed at the R3(10) hearing (para 3):
"The arguability of a discriminatory act in May 2006 is decisive to the outcome both of the application before the Employment Tribunal and of this appeal. If there is no May 2006 discriminatory act, then there is nothing on which the Appellant can hang a claim to be able to pursue the events of 2000 to 2002, which would plainly be out of time and no possible grounds for extending the limitation period, and indeed no appeal against any conclusion that that limitation period had long expired and that it would not be just and equitable to resurrect matters, as it was put by the Chairman (Employment Tribunal)"
. That is a reference to para 39 of the Employment Tribunal's reasons. Amendment[8]Before turning to the principal question raised in the appeal (ground (a)), whether Dr Carnie and through him the Respondent enjoyed absolute immunity from suit in the Employment Tribunal as a witness before the FPP, I shall deal with the question of amendment.[9]On 5 July 2006 the Claimant, then acting in person, sent a draft amended Form ET1 to the Employment Tribunal. Within that document is a terse reference to the FPP proceedings. He said:
"They (Respondents' employees) also gave damaging unjustifiable evidence to the GMC at a hearing at the GMC dated 22-25 May 2006."
[10]On 11 July 2006 a CMD took place before Employment Judge Bourn. The Claimant and Mr Hay attended. Following that hearing an Order by Consent was promulgated, setting out the issues to be determined at the PHR, including:
"1.3 Whether any relevant matters arising during or in connection with the GMC hearing in May 2006 constitute part of a continuing act of discrimination originating on or before April 2000."
Interestingly, paragraph 4 of the consent order granted leave to the Respondent to amend its Notice of Appearance [Form ET3] following determination of the matters to be considered at the PHR (I pause to observe that it is in principle wrong to grant permission to amend without first seeing the form of amendment in draft), but nowhere is mention made of the Claimant's application for leave to amend his Form ET1.[11]On 23 August 2006 the Claimant again wrote to the Employment Tribunal requesting permission to amend his Form ET1. That form of amendment enlarged on his contention that during the FPP proceedings in May Dr Carnie made false allegations against him. He there mentioned that he had registered a second claim regarding the Respondent. That was followed by a further letter dated 18 September, seeking an order combining the Birmingham claim with the second claim (Number 2203606/2006). Pausing there, that claim was presented to the London Central Employment Tribunal on 23 August 2006. I have been shown the judgment and Reasons of Employment Judge Buckley, sitting alone at a PHR held at London Central on 19-20 December 2006. That Judge held that the second claim (focussing on the FPP allegation) raised substantially the same issues as were raised in the first Birmingham claim in this respect, which claim had been dismissed by Employment Judge Ahmed's judgment of 9 October. Consequently he struck out the second claim. There has been no appeal against that judgment dated 20 December 2006; the reasons are dated 19 March 2007.[12]Returning to the hearing before Employment Judge Ahmed at Birmingham on 25 September 2006, it is apparent from his reasons that the Judge(a) did not consider the Claimant's application to amend his Form ET1 (no earlier order having been made by the Employment Tribunal on that application);(b) did not consider the application by the Claimant to combine both sets of proceeding but(c) dealt with issue 3 identified in the CMD consent order and(d) found (Reasons paragraph 40) that (i) there was no hint of what may potentially amount to race discrimination on the part of Dr Carnie at the GMC hearing and (ii) that Dr Carnie was appearing "as an expert witness at the GMC and as such was immune from proceedings in that capacity", relying on Palmer v Dunford Ford (1992) 2 AER 122 (Mr Simon Tuchey QC, sitting as Deputy Judge of the QBD), applying Evans v London Hospital Medical College (1981) 1 AER 715.[13]Having pre-read the papers I raised two questions in advance of the oral hearing with Counsel.[14]First, whether the Claimant could rely on Dr Carnie's evidence before the FPP on 22-25 May 2006 to show a continuing act of discrimination under s68(7))(b) Race Relations Act 1976 and secondly, if the point was not raised below by the Respondent, whether it should be considered for the first time on appeal.[15]In response Ms McCafferty submitted that the Claimant had done everything he could to raise the question of permission to amend. It would be unjust to prevent him from pursuing an issue which was identified by consent at the CMD and argued before Employment Judge Ahmed without objection by the Respondent. No point then having been taken the Respondent ought not to be permitted to raise it in responding to the appeal. Effectively, the Claimant had implied permission to amend even if no express permission was granted below. Further, there is no procedural bar to a Claimant amending his Form ET1 to add an allegation which chronologically post-dates its presentation to the Employment Tribunal. I was referred in this connection to the judgment of HHJ Serota QC in Prakrash v Wolverhampton City Council (UKEAT/0140/06/MAA 6 September 2006) see particularly para 62, relying on the observation of Mummery LJ in Chaudhary v Royal College of Surgeons (2003) ICR 1512, a case involving an allegation of racial discrimination, that it was open to an Employment Tribunal to permit amendment of a complaint to raise allegations post-dating that complaint (para 41).[16]In response, Mr Oldham relied on the fact that the Claimant had never obtained permission to amend his Form ET1 to rely on Dr Carnie's evidence before the FPP. However, following discussion, I did not understand him to press the point that the Claimant was thereby prevented from arguing a continuing act of discrimination terminating with the FPP evidence. He did submit that the concept of 'implied permission' to amend is a novel and potentially hazardous path to follow.[17]My view of the matter is this. I agree with Ms McCafferty that it would be unjust, on appeal, to prevent the Claimant relying on the FPP allegation when it was an issue agreed between the parties and litigated to a conclusion at the PHR before Employment Judge Ahmed. Equally, I accept Mr Oldham's note of caution in adopting the concept of implied permission to amend. The answer, in my judgment, is that the merits of the appeal now before me as a result of the judgments, first of Burton J and then HHJ Richardson, ought not to be side-stepped by an overly technical procedural objection. That objection was not taken below and should not now be open to the Respondent on appeal: see McLeod v Hellyer Bros Ltd (1987) ICR 526 (CA). In any event the procedural lacuna may be overcome in this way; if the Employment Judge was right to find that the FPP allegation is unsustainable for either or both of the reasons which he gave at para 40 Reasons then no continuing act can be made out by the Claimant and his claim fails. The question of formal amendment becomes moot. Alternatively, if the Employment Judge was wrong in law to reach those conclusions and the appeal is to be allowed on it merits, in disposing of the appeal it will be open to me to formally grant permission to amend, exercising my powers under s35(1) Employment Tribunals Act 1996 . On that footing I now proceed to consider the principal substantive issue in the appeal. Witness Immunity[18]I begin with a measure of common ground between Counsel who, as I have observed, did not appear below. Principally, it is accepted that Employment Judge Ahmed's reasoning (para 40) for the conclusion that Dr Carnie (and through him the Respondent) was immune from suit in these Employment Tribunal proceedings cannot stand.[19]I have not been shown the cases of Palmer and Evans because it is agreed before me that those cases are not in point. Further, Dr Carnie did not give 'expert' evidence before the FPP and anyway that description is immaterial. Either his status as a witness before the FPP cloaks his evidence with immunity from suit or it does not. Yet further, the additional question which arises and was not addressed below is whether any immunity from suit is absolute (AI) or qualified (QI). If the former, then that is an end to the Claimant's case; If the latter, then the immunity is lost if the Claimant is able to show that, in giving evidence before the FPP, Dr Carnie acted maliciously. Although these issues were not correctly identified by the parties below and no criticism falls to be levelled at the Employment Judge in these circumstances, it is agreed between Counsel that I should resolve the correct issues in this appeal, rather than remit the matter to the Employment Tribunal for determination. Having heard full argument on a point which arose for determination below and on which no further findings of fact are necessary I shall do so.[20]First, did immunity attach to Dr Carnie's evidence before the FPP? The answer depends upon whether the FPP hearing that evidence was a quasi-judicial body; if so, a witness appearing before it is not liable to civil action (including, in my opinion, the present Employment Tribunal proceedings) at the suit of any person aggrieved by what was said by the witness in those proceedings; here, the Claimant. Whether that immunity is absolute or qualified I shall return to later.[21]The four-fold test for determining whether the FPP is a quasi-judicial body is that set out by Lord Diplock in Trapp v Mackie ][1979] 1 AER 489, namely:(1) Is it a tribunal recognized by law?(2) Is the nature of the issue akin to a civil or criminal issue between adversarial parties in the courts?(3) Is there a procedure similar to that in a court of law?(4) Is the outcome a binding determination of the civil rights of the parties?[22]In Trapp the Appellant headmaster was dismissed by the local education authority, of which the Respondent was the chairman. The Appellant petitioned the Secretary of State for Scotland to set up an inquiry into the reasons for his dismissal under statute. The Commissioner appointed had to determine whether the dismissal was reasonably justifiable and to report to the Minister. He found that it was. The Appellant brought an action alleging that evidence which the Respondent gave before the Commissioner was maliciously false, causing damage to him. The Respondent raised an immunity argument which succeeded on the facts (albeit that the Commissioner's opinion was subject to formal approval by the Minister). He was entitled to absolute immunity.[23]I note that Lord Diplock in that case considered the public policy issue arising from the tension between the general interest that the law should provide a remedy to a citizen whose reputation is besmirched by malicious falsehoods and the interest in ensuring that witnesses before tribunals recognized by law (as in the ordinary courts of law see Dawkins v Lord Rokeby (1873) [L].R8. QB 255, 264 per Kelly CB) should be able to give their testimony free from any fear of being harassed by an action that they acted out of malice.[24]I see no reason in principle why witness immunity should not potentially give rise to a complete answer to the FPP allegation in the present case, provided that Panel fulfils the criterion for quasi-judicial status and that the immunity is absolute as opposed to qualified.[25]The issue before the FPP in relation to this Claimant was whether, having applied for his removal from the register in 2003 and having been removed he should now be restored to the register and thus be permitted to practise as a doctor in the UK. In his case the FPP, after hearing evidence decided that he should not be restored.[26]I have been taken in some detail to the powers of the FPP (successor to the GMC Professional Conduct Committee (PCC), emanating from the Medical Act 1983 and its procedures laid down in the General Medical Council (Fitness to Practise) Rules Order of Council 2004 (s.1.2004/2608) (the Rules) and The General Medical Council (Voluntary Erasure and Restoration following Voluntary Erasure) Regulations Order of Council (s.1 2004/2609) (the Regulations).[27]The particular application brought by the Claimant before the FPP fell to be considered under rule 24 of the Rules by virtue of reg 5(8) of the Regulations. Having considered those procedural rules I am persuaded by Mr Oldham that they represent a procedure akin to the civil courts. Secondly, that the issue, whether or not the Claimant is fit to practise, is akin to a civil issue. Thirdly, that it determines the rights of the parties; here the Claimant and the GMC. Finally, as Ms McCafferty accepts, the FPP is recognized by law.[28]In these circumstances I hold that the FPP is a quasi-judicial body and that immunity from suit attaches to witnesses, such as Dr Carnie, who give evidence before it in the proceedings here in question.[29]In arriving at that conclusion I have derived some assistance from two cases in this jurisdiction brought against the Metropolitan Police Commissioner. The first in time is Heath (2005] ICR 329 (CA); the second, which considered Heath and the principles in Trapp v McKie is that of Hasan (UKEAT/0437/06/DM 22 November 2006. Elias P).[30]In Heath the Claimant, a female civilian employee of the Commissioner's force alleged that a police inspector had sexually assaulted her at work. An all male disciplinary board was appointed under the Police (Discipline) Regulations 1985 to hear her allegations against the male inspector. Thereafter she brought a complaint of sex discrimination before the Employment Tribunal, complaining of the conduct of proceedings by the board. An Employment Tribunal declined jurisdiction on the basis that the board was conducting quasi-judicial proceedings and was immune from suit. Both the EAT and the Court of Appeal dismissed her appeals.[31]In Hasan the Claimant was a probationary police constable who was subject to internal proceedings under reg 13 of the Police Regulations 2003 shortly before he was due to be confirmed in the post of constable. As a result a decision was taken by a senior officer of Assistant Commissioner (A/C) rank to dispense with his service. He then brought proceedings before the Employment Tribunal complaining of unlawful discrimination contrary to the Race Relations Act and/or the Employment Equality (Religion or Belief) Regulations 2003 .[32]An Employment Tribunal Chairman held, on a preliminary issue, that the Employment Tribunal had no jurisdiction to entertain the claim on the basis that the proceedings before the A/C were sufficiently judicial to attract absolute immunity. The President took a different view and allowed the Claimant's appeal for the reasons explained at paras 28-40.[33]Having considered those cases I am quite satisfied, contrary to Ms McCafferty's submission, that the proceedings before the FPP are more akin to those of the disciplinary board in Heath than the subjective view of the Claimant's suitability to be confirmed in post taken by the A/C in Hasan , upon consideration of materials wider than those typically considered by a court, without the forensic process normally to be found in court proceedings.[34]Having concluded that the FPP is, for present purposes a quasi-judicial body such that witness immunity is engaged, I turn secondly to whether that immunity is absolute or qualified.[35]As Mr Oldham points out, in both Trapp and Heath the immunity was absolute. Indeed, in Hasan it appears to have been assumed that if immunity attached, it would be absolute.[36]However, Ms McCafferty has advanced an argument that any immunity in this case is qualified, thus raising an issue of malice which, since that question will be vigorously contested factually, is not one which could or should be resolved by way of strike out: see Ezsias v N. Glamorgan NHS Trust [2007] ICR 1126 , para 29 (per Maurice Kay LJ).[37]Her starting point is the passage to which I have been referred in Halsbury's Laws, vol 1, para 204, which asserts that, among others, witnesses before the GMC are immune from civil action "in the absence of fraud, collusion or malice". I note that paragraph (Note 11) states "…witnesses … are protected by the law of qualified privilege". I see that among the cases cited in the notes to that paragraph no mention is made of Trapp , Heath or Hasan .[38]I have been shown two of the cases cited in Note 8 to that section of Halsbury. Both date back to Victorian times. The first is Allbutt v GMC [1889] 23 QBD 400 (CA), the second Partridge v GMC [1890] 25 QBD 90 (CA).[39]Ms McCafferty submits that both cases proceeded on the basis that the absence of malice formed a necessary part of the Court's reasoning. In Allbutt the Claimant doctor contended that in erasing his name from the register of practitioners and publishing a report naming him the Defendant had defamed him. In Partridge the Claimant's name was removed from the dentists' register. He brought an action for his name to be restored. The Court of Appeal held that the Defendant was not liable in an action for the erroneous exercise of their discretion in the absence of bad faith.[40]It is instructive to read the summary of the submissions of Counsel in those cases. In Allbutt it was submitted on behalf of the Defendant (p.404):
"So far as the alleged libel is concerned, there is no suggestion of any want of bona fides, or of expressed malice. That being so, the publication is privileged."
[41]In Partridge (p94) counsel submitted on behalf of the Defence that provided they acted 'bona fide' … 'in the absence of malice' no action could lie.[42]In these circumstances it is unsurprising that the Court proceeded on that basis in each case. It was not required to determine the issue as to whether the privilege (immunity from suit) claimed was absolute or qualified. On the latter basis the defence succeeded in both cases, bad faith not being alleged by the Claimant.[43]I therefore accept Mr Oldham's submission that neither Allbutt nor Partridge decides the question now before me. Allbutt is referred to in the judgment of the Court in GMC v BBC [1998] 1 WLR 1573 , 1580 F, but it was not cited to the Court and no weight was attached to it (per Stuart Smith LJ).[44]Conversely there is abundant modern authority where A1 is held to attached to those involved in the process of quasi-judicial bodes. In addition to Trapp , Heath and Hasan I have been shown Lincoln v Daniels [162] 1 QB 237 (inquiry by Benchers of the Inns of Court); Gray v Avadis [2003] EWHC 1830 (investigation of a complaint by the Office for the Supervision of Solicitors) and Mahon v Rain (No 2) [2000] 1 WLR 2150 (investigation by the Securities Association.).[45]In these circumstances I have no hesitation in rejecting Ms McCafferty's submission that QI applies. In my judgment the evidence given by Dr Carnie to the FPP is protected by A1 from suit in the present proceedings. Outstanding Issues[46]Since it is accepted by Ms McCafferty that if, as I find, A1 applies to Dr Carnie's evidence to the FPP then the appeal fails because the Claimant cannot rely on that alleged act of discrimination to overcome the limitation hurdle in his claim of unlawful race discrimination brought against the Respondent. That is the inevitable conclusion which I reach.[47]However, for completeness, I should tie up the loose ends thrown up by this case.[48]First, amendment to the Form ET1. Whilst that application ought to have been expressly dealt with before or at the PHR on 25 September 2006, although failure to do so does not form part of the grounds of appeal now before me, I would not grant permission in circumstances where the new ground of complaint is bound to fail due to my finding on A1.[49]Secondly, I make similar observations in relation to the application by the Claimant to combine the Birmingham proceedings with the second claim form before the London Central Employment Tribunal. Since that second claim has been dismissed and that decision has not been appealed, the question of joinder is moot.[50]Thirdly, Employment Judge Ahmed found (para 40) that the allegation against Dr Carnie failed because no mention of the Claimant's race appeared in his evidence to the FPP. I would not uphold the decision below on that ground, see Ezsias . I prefer to uphold the decision on the witness immunity finding for the reasons which I have given rather than those of the Employment Judge. Disposal[51]This appeal fails and is dismissed.