![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
United Kingdom Employment Appeal Tribunal |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just Β£5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Great Ormond Street Hospital for Children NHS Trust v Patel [2007] UKEAT 0085_07_2206 (22 June 2007) URL: https://www.bailii.org/uk/cases/UKEAT/2007/0085_07_2206.html Cite as: [2007] UKEAT 0085_07_2206, [2007] UKEAT 85_7_2206 |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[Help]
At the Tribunal | |
On 11 May 2007 | |
Before
THE HONOURABLE MR JUSTICE UNDERHILL
MRS J M MATTHIAS
MS B SWITZER
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
JUDGMENT
APPEARANCES
For the Appellant | Miss K Newton (of Counsel) Instructed by: Messrs Beachcroft LLP Solicitors 100 Fetter Lane London EC4A 1BN |
For the Respondent | Ms U Burnham (of Counsel) Instructed by: Messrs Bindman & Partners Solicitors 275 Grays Inn Road London WC1X 8QB |
SUMMARY
Unfair dismissal - Reinstatement/re-engagement
Practice and Procedure - Adequacy of Reasons
Claimant was a radiographer who became unable to do clinical work as a result of illness and was made redundant - Tribunal held that she was unfairly dismissed because of lack of consultation about alternatives and that she had suffered disability discrimination because it would have been a reasonable adjustment for the Trust to retain her on non-clinical duties - At the remedy hearing over a year later it ordered reinstatement - Case remitted to fresh Tribunal because of inadequate reasons and because the Tribunal appeared to have relied on its earlier finding about reasonable adjustment as at the date of dismissal without considering the practicability of reinstatement at the current date and in the light of fresh evidence called - Observations on relevance of duty under s. 4A of Disability Discrimination Act 1995 to exercise of discretion to order reinstatement.
THE HONOURABLE MR JUSTICE UNDERHILL
INTRODUCTION
THE FACTS
(1) After some years working at Great Ormond Street, the Claimant developed Kienbock's disease, a serious condition affecting the bones of the wrist. By 2003 it was plain that she was unable to continue for the time being with any clinical work that is to say with using ultrasound equipment in the care of patients. She underwent operations in February and July 2003 and remained off work from February 2003 until April 2004.
(2) At a meeting with the Trust on 19 August 2003, while the Claimant was still off work, a revised job description was agreed with her, to apply on her return, under which she would continue with certain existing duties in the management of the ultrasound department and would take on responsibility for the training of a post-graduate radiographer. The Tribunal found that that revision "was intended to cover the Claimant's role until she was able to return to her role as a practising sonographer". The advice from the Occupational Health Department was this would be "several months at least", though the consultant radiographer responsible for the ultrasound section, Dr. De Bruyn, thought that it might be as long as two to three years. (See paras. 4.2-4.3 of the Tribunal's liability Judgment).
(3) The Claimant in fact returned to work, part-time, on 2 April 2004. It soon became clear that there was no prospect of her being able to resume clinical work for the foreseeable future, and there was some discussion at that stage of the options open to her. She did indeed apply to the NHS Pensions Agency for ill-health retirement; but this was refused. She eventually returned to full-time work in December 2004, but she continued to perform entirely non-clinical duties.
(4) In the meantime a Mr Everard had assumed line management responsibility for the Claimant. He decided that the Department should not undertake the training of a post-graduate radiographer. This meant that part of the role envisaged for the Claimant in the August 2003 revision would not be required. However, the Tribunal in its liability Judgment found that in substitution for that role the Claimant following her return to full-time work in December 2004, expanded her work in training paediatric registrars in the use of ultrasound (albeit without any formal agreement that she should do so) and that she also had to supervise a recently qualified ultrasonographer, Ms. Todd.
(5) In the light of a substantial projected overspend in the Radiography Department for the financial year 2004/5 Mr. Everard did not feel that the Department could continue to maintain the Claimant in a purely non-clinical role. There was a period of consultation initially bedevilled by the fact that Mr Everard was unfortunately unaware of the agreement of her revised job description in August 2003 but eventually, on 14 April 2005, the Claimant was notified that she was being dismissed for redundancy on the basis that there was no longer a job in the Department for a radiographer with purely management and training responsibilities.
(6) The Claimant appealed against the decision to make her redundant but her appeal was unsuccessful.
THE LIABILITY HEARING AND DECISION
(1) The Tribunal found that the decision (see para. 3 (4) above) not to provide training for a post-graduate radiographer, which was part of the revised role agreed in August 2003, technically created a redundancy situation because the requirements of the "business" to carry out training work had diminished.
(2) However, it also found that the requirement to train registrars and to supervise Ms. Todd (or others in her position) meant that "there was sufficient work available for the Claimant in training and management of the ultrasound department to occupy her time fully without the additional training of a post-graduate radiographer" (Reasons, para. 6.3). That finding appears to have been based partly on a comment by an HR manager, Ms. Roberts, to the effect that it was indisputable that the Claimant had "increasingly been able to support the clinical training of registrars and freed up consultant time that would otherwise have been spent on training" (para. 4.20); and partly on the Claimant's own evidence, which the Tribunal said had not been challenged, that "without the work of training a post-graduate radiographer, there was still sufficient work available for her from December 2004 onwards" (para. 6.6). The Tribunal was not apparently intending by this finding to go back on its previous conclusion that there was a redundancy situation. Rather, the finding was directed at the issue of fairness, in order to demonstrate that if the Trust had properly considered alternatives to the Claimant's agreed role there was an alternative role ready-made and indeed already de facto in place which had not been properly considered (para. 6.13).
(3) The Tribunal found that Mr. Everard had before commencing on the consultation process made up his mind that the Claimant should be dismissed and that in consequence he was "merely going through the motions" of consultation rather than making a proper effort to find alternative work for the Claimant (para. 6.7). It also found that Mr. Everard did not consider other possible candidates for redundancy and that there were no established selection criteria (paras. 6.8-6.10). We do not fully understand this part of the Reasons, but it is not necessary for us to do so for present purposes.
(4) The Tribunal was critical of the Trust, and of Mr. Everard in particular, for taking the decision to abandon post-graduate training without prior consultation with the Claimant (para. 6.11).
"There was a complete lack of evidence either from Mr. Everard or any of the consultants in the Radiology Department as to why the Claimant could not have continued in the way she had been working from December 2004. In the absence of any such evidence, we find that this was a reasonable adjustment which the Respondents ought to have made ."
On that basis the Trust was found liable for breach of the duty imposed by s. 4A of the Act. It is very important to note that that finding was explicitly based on the absence of any contrary evidence from the Trust. We were told by Ms. Newton that the reason why this issue was not addressed in the Trust's evidence was that such an adjustment was only proposed by the Claimant after the Trust's witnesses had given evidence (presumably therefore in closing submissions); and she made the same point in her written submissions in the remedy hearing (as to which see para. 11 below), which also record that counsel for the Trust had objected at the time to a new case being put at the last minute. However, it is clear from the Claimant's submissions in response that she did not accept that she was putting the reasonable adjustment case in any way that should not have been foreseen; and although the Tribunal did not expressly address the question it must be assumed that it took the same view. Fortunately, for reasons which will appear we do not have to resolve the rights and wrongs of this question; but the episode emphasises the importance of a clear understanding being reached in advance of a hearing raising issues under s. 4A of the 1995 Act as to precisely what adjustments it is being said that the employer failed to make.
THE REMEDY CLAIM AND HEARING
"I would be willing to consider any position in the Trust where I had relevant experience and/or skills and where I could do the work without using my hands."
Likewise, the Trust's witness statements concentrated very largely on the assessment of the Claimant's financial loss. The principal statement served by the Trust was from Dr. De Bruyn, who (as noted above) was the consultant paediatric radiologist who had particular responsibility for the ultrasound section. Her evidence on re-engagement was confined to the final paragraph of her statement, where she said:
"I understand that Ms Patel has suggested re-engagement with the Trust. To the extent that Ms Patel is suggesting she could be engaged back into the ad hoc role, in my view this would not be practicable for the reasons I have set out in this statement."
However, in the course of the hearing the Tribunal pointed out that if the Claimant was indeed contending that an order should be made requiring the Trust to put her back in the job she had been doing at the time of her dismissal, that was, on analysis, a claim for reinstatement within the meaning of s. 114 rather than a claim for re-engagement under s. 115; and the Trust does not appear to have objected to the Claimant being treated as having made such a claim.
"I do not consider that there was enough managerial, administrative and training work for Ms. Patel in the period following the termination of her employment. The three duties did not require full time hours and did not justify the payment of a Superintendent III Radiographer's salary. Not only this but a new Radiographer Helper was appointed in January 2005, which meant that Ms Patel was no longer carrying out the administrative duties I have referred to above. I consider that Ms. Patel in performing the two remaining duties (managerial and training) that I have outlined above would have been required to work considerably less than 50% of the full time hours."
As the passage quoted in para. 8 above shows, those conclusions were relied on by her as equally applicable to a claim for reinstatement.
THE JUDGMENT
"1. Having heard evidence from the Claimant and, on her behalf, having read the statements of Ms R Fernandez (Teaching Fellow) and Ms J Shah (Superintendent Ultrasound Radiographer) and having heard evidence on behalf of the Respondents from Dr R De Bruyn (Consultant) and Mr R Conley (Assistant Director Personnel) and having received written submissions from the parties representatives, the Tribunal reached the following conclusions:-
1.1 The Claimant's wish is for reinstatement to her former position as a superintendent radiographer, specialising in ultrasound scanning. Having regard to her medical condition, she accepts that she will never be able to carry out actual work of ultrasound scanning, but she wishes to be reinstated to the role which she performed successfully after 19 August 2003 following the revision of her job description so as to avoid the need for her to undertake ultrasound scanning. In these proceedings we have found that, following her return to full-time work in December 2004 with an expansion of the training of specialist registrars in paediatric ultrasound and the other management and administrative work which she was carrying out, she was fully occupied in her role until her dismissal on 7 July 2005.
1.2 Having taken account of the respective arguments put forward by the representatives on the issue of practicability of reinstatement, we consider that there is scope for the Claimant to carry out her former role provided that the Respondents fulfil the duty which we found existed to make reasonable adjustments to prevent the Claimant as a disabled person from being at a substantial disadvantage as compared with persons who are not disabled.
1.3 Whilst we were told by Dr De Bruyn that she did not agree that the Claimant was involved in the work of training registrars, she had no explanation for this training work having been emphasised by Ms Roberts in the consultation paper on the Claimant's role (page 58). She dismissed Ms Roberts' statement as having been made by a member of Human Resources department and, therefore, incorrect. However, she gave no explanation for not challenging this statement at the time. We were not persuaded by Dr De Bruyn's evidence on this issue. We found that some training of registrars in paediatric ultrasound was delegated to the Claimant, even though Dr De Bruyn was not happy to concede this in her evidence to the Tribunal.
1.4 The Claimant wishes to be reinstated and we are satisfied that the majority of the Claimant's duties in her revised job description will be available to her and that, with reasonable adjustments consistent with the Respondent's duty under the Disability Discrimination Act 1995 and with the commitments that they have assumed as a Two Ticks Disability Symbol employer, the Claimant will be able to carry out fully her former complement of management, administrative and training duties.
1.5 Accordingly, we order that the Claimant must be reinstated."
THE ISSUES
(a) that the Tribunal erred by assessing the question of practicability as at the date of the dismissal rather than the date that the reinstatement order would take effect;
(b) that it erred by taking into account its finding that by refusing to permit the Claimant to continue in her non-clinical role the Trust had failed to make reasonable adjustments required by s. 4A of the 1995 Act;
(c) most fundamentally, that it was wrong in principle, alternatively perverse on the evidence which it heard, for the Tribunal to hold that it was practicable for the Claimant to be reinstated.
DECISION
(a) Date at which Practicability is to be Assessed
(b) The Relevance of the Finding of Failure to Make Reasonable Adjustments
(c) Decision Wrong in Principle/Perverse
(1) There was explicit and detailed evidence from Dr. De Bruyn, adopted by Ms. Newton in her closing submissions, that there was no full-time non-clinical job which the Claimant could do: as we have set out in para. 9 above, Dr. De Bruyn gave a full analysis of the Claimant's role and why it did not amount to more than 50% of a full-time job. The Tribunal does not engage with that analysis at all, save for its very brief reference to, and rejection of, her evidence on the extent of the Claimant's involvement in the training of registrars. We deal with that below; but there is no attempt by the Tribunal to engage with the other points made on behalf of the Trust.
(2) So far as the training of registrars is concerned, the Tribunal says that Dr. De Bruyn "did not agree that the Claimant was involved in the work of training registrars". On our reading of her witness statement, that rather overstates her position, but we accept that we do not know what she said in her oral evidence. In any event there was clearly a difference between the evidence of Dr. De Bruyn and the impression given by Ms. Roberts in the comments quoted at para. 4 (2) above. Ms. Roberts was an HR manager whereas Dr. De Bruyn was the consultant in charge of the section, and Dr. De Bruyn's evidence was that Ms. Roberts had simply got it wrong. The Tribunal nevertheless preferred Ms. Roberts' account. It was in principle entitled to do so, but we are bound to say that we would have expected fuller reasons for rejecting the evidence of a witness who on the face of it was in the best position to know what the training requirements of registrars were. The only reason given that Dr. De Bruyn had not challenged Ms. Roberts' comment at the time is unconvincing. Ms. Roberts did not give evidence at the remedy hearing although she had done so at the liability hearing (when, however, the Tribunal was differently constituted). We are very conscious of the perils of an appellate Tribunal trying to assess the credibility of a witness whose evidence it has not heard (and indeed of which it does not even have a full note). It may well be that there were powerful reasons for rejecting Dr. De Bruyn's evidence. We say no more than that if that was so those reasons do not appear from the Judgment.
(3) The Tribunal nowhere addresses the medical evidence. The effect of that evidence was that the Claimant would never be able to resume clinical work. That was not the position in April 2005, when the dismissal decision was taken: there was then still thought to be a realistic prospect of a full recovery, though it was appreciated that it would take a long time. It was incumbent on the Tribunal to consider the linked issues of practicability and reasonable adjustment in the light of that fact. It does not appear to have done so.
The impression which we get from those points is that the Tribunal did indeed approach its task on the basis that the question of practicability was largely already decided as a result of its decision on the reasonable adjustment point, and that that is why it felt able to deal with the issues so summarily. We say "largely" because the fact that it admitted Dr. De Bruyn's evidence at all involved at least a tacit recognition that some reconsideration was required. But there is no sign of the full reconsideration on the basis of the position as it stood at the end of 2006 - that was in fact necessary: see para. 21 above.
CONCLUSION
(1) On the assumption that the Claimant still seeks reinstatement (or indeed re-engagement), the Tribunal will have to consider whether this is practicable. Practicability will have to be judged as at the date that any such reinstatement would take effect: although any such date would necessarily postdate the hearing, in practice - absent any very unusual circumstances - that will mean judging the position as at the hearing date.
(2) In considering that question, the Tribunal must take into account the duties on the Trust under s. 4A of the 1995 Act, as discussed at para. 20 above.
(3) The Tribunal will have to consider whatever evidence the parties call, which may well go beyond that called last time round. Since (for the reasons given in para. 21 above) it will not be bound by the findings made by the Tribunal at the liability hearing so far as these relate to the practicability of reinstatement or the Trust's duty under s. 4A, the cleanest course for it is likely to be simply to put those findings to one side. The parties will of course remain bound by the findings on other issues, in so far as they are relevant (which does not however seem very likely).
(4) The parties will of course need, as they did last time round, to address compensation issues in case reinstatement is not ordered. If the experience of arguing these issues on the last occasion enables the parties to agree at least some aspects of the compensation issues, that would be highly desirable.
(5) It seems to us that since the Tribunal's comparatively modest award on the 1995 Act claim was made on the basis that the Claimant was to get her job back it should be open to the new Tribunal to revisit that award if in the event they do not order reinstatement, since there could conceivably be advantages to her in claiming compensation for her dismissal under the 1995 Act rather than the 1996 Act. On that basis, we propose to remit that element in the remedy decision as well, though we should make it clear that if the eventual order is again for reinstatement there would be no ground for making any different award than was made by the first Tribunal. However, this is not an issue on which we heard any submissions; and we give the parties liberty to lodge supplementary submissions on this issue only within 14 days of the seal date of the order of this Tribunal.
While this must be a matter for the Tribunal, it seems to us that a case management discussion is likely to be needed in order to ensure that proper directions are in place for defining the precise issues now in play and the scope of the evidence.