EAT Race Discrimination – Inferring Discrimination – JURISDICTIONAL POINTS – Extension of time: just and equitable
UNFAIR DISMISSAL – Reasonableness of dismissal
The Claimant was employed by the Trust as a consultant surgeon. He was the only black African consultant employed by the Trust.
After concerns were raised about his practice, he was restricted to non-clinical duties in September 2013 and the Royal College of Surgeons was invited to conduct a review of his practice; the reviewers reported in April 2014, making various adverse findings about his practice and a series of recommendations. After some delays, the Trust’s Medical Director took the view that a capability panel should be appointed; after further delays, a hearing took place in March 2015 and on 7 May 2015 the panel dismissed the Claimant for capability reasons.
Meanwhile in May/June and October 2014 the Claimant had raised grievances alleging that he was being discriminated against in relation to the capability concerns because of his race. The Trust considered that these grievances were brought as a way of delaying or derailing the capability procedure and said that they were ‘out of time’ and failed to deal with them under the Trust’s formal grievance procedure, although they were considered and rejected by the ‘case investigator’ appointed under the capability procedure.
The Claimant appealed against the dismissal but the Trust failed to arrange a hearing to take place within 25 days of the appeal as required by the capability procedure and the Claimant said he would not participate in the appeal.
The ET:
(1) found that the Claimant was discriminated against because of his race in relation to the failure to deal with his grievances under the formal grievance procedure;
(2) extended his time for bringing a claim for discrimination based on (1) under section 123(1)(b) of the Equality Act on the basis that it was ‘just and equitable’ to do so;
(3) found that the Claimant was unfairly dismissed because:
(a) in its conduct in the period from September 2013 to the panel’s decision (in particular its restriction of the Claimant to non-clinical duties in September 2013) the Trust had acted as no reasonable employer would have acted;
(b) that conduct was sufficient to taint the decision to dismiss and render it unfair;
(c) (although the panel had reached the view that the Claimant’s capability was impaired on reasonable grounds and there was no criticism of its procedure) the panel had given insufficient consideration to possible remediation or redeployment of the Claimant;
(d) the Trust’s failure to comply with the procedural timetable for the hearing of an appeal involved acting as no reasonable employer would have acted and denied the Claimant the opportunity to appeal against the dismissal decision.
The EAT allowed the Trust’s appeals against the findings of discrimination and unfair dismissal.
(1) The inference that the failure to deal with the grievances in accordance with the grievance procedure was race discrimination was based solely on the fact that the reason given at the time, i.e. that they were ‘out of time’, was not a sustainable reason; but the ET found that the Trust considered that the grievances were presented as an attempt by the Claimant to delay or derail the capability proceedings: this provided a complete explanation for the Trust’s conduct unrelated to the Claimant’s race and the inference of race discrimination was unsupportable and the claim should have been dismissed.
(2) It followed that the decision to extend the time for bringing the claim for race discrimination was no longer a relevant issue. On the point which was argued (namely whether it was ever open to the ET to extend time when the Claimant had presented no evidence as to why he had failed to present a claim in time) the apparent conflict in the EAT jurisprudence had now been resolved by the Court of Appeal in Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640, which makes it clear that, if a Claimant gives no evidence on that issue, the ET is not obliged to infer that there was no acceptable reason for the delay and that, even if there is no acceptable reason for the delay, that does not necessarily mean that time should not be extended.
(3) The finding of unfair dismissal involved errors of law in that
(a) the conclusion that the Trust’s conduct between September 2013 and the panel’s decision was sufficient to render the dismissal unfair without reference to the reasonableness of the decision or the circumstances applying when it was made focussed on the wrong question and involved an error of approach (see: McAdie v Royal Bank of Scotland [2007] EWCA Civ 806);
(b) when considering the decision to dismiss itself the ET did not focus properly on its reasonableness because they failed to engage with the reasons set out in the dismissal letter for rejecting the various possible alternatives to dismissal;
(c) the conclusion that the Trust’s failure to comply with the timetable for the hearing of the Claimant’s appeal was unfair and deprived the Claimant of the opportunity to appeal was perverse.
Judges:
Shanks HHJ
Citations:
[2018] UKEAT 0164 – 17 – 2604
Links:
Jurisdiction:
England and Wales
Employment, Discrimination
Updated: 13 April 2022; Ref: scu.609162
