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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Ruby v. Kings Lynn & Wisbech Hospitals NHS Trust [2001] UKEAT 496_00_0606 (6 June 2001)
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Cite as: [2001] UKEAT 496_00_0606

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BAILII case number: [2001] UKEAT 496_00_0606
Appeal No. EAT/496/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
             At the Tribunal
             On 22 February 2001
             Judgment delivered on 6 June 2001

Before

THE HONOURABLE MR JUSTICE CHARLES

MR J R RIVERS

MR H SINGH



DR M A RUBY APPELLANT

KINGS LYNN & WISBECH HOSPITALS NHS TRUST RESPONDENT


Transcript of Proceedings

JUDGMENT

(INTER-PARTES PRELIMINARY HEARING)

© Copyright 2001


    APPEARANCES

     

    For the Appellant MR D BERKLEY
    (One of her Majesty's Counsel)
    Instructed By:
    Messrs Malik Laws
    Solicitors
    Cheetham Hill Chambers
    577-579 Cheetham Hill Road
    Manchester M8 9JE
    For the Respondent MR A GEORGE
    (of Counsel)
    Instructed By:
    Messrs Mills Reeve
    Solicitors
    Francis House
    3-7 Redwell Street
    Norwich
    Norfolk NR2 4TJ


     

    MR JUSTICE CHARLES:

    Introduction

  1. This is the third occasion on which this appeal has come before us by way of preliminary hearing.
  2. The two earlier hearings took place on 18 October 2000 and 27 October 2000. On each occasion I gave a judgment.
  3. Prior to this hearing Solicitors now acting for the Appellant, Dr Ruby, sought a further adjournment. In the light of my earlier judgments (and in particular paragraphs 19 and 22 of my second judgment) that application was refused.
  4. On 15 February 2001 this Tribunal wrote to the Solicitors now acting for the Appellant in the following terms:
  5. "I refer to the above matter and to the attached EAT Order of 27th October 2000.
    I understand that you have recently been appointed as Representatives for the Appellant in this appeal. However, I have tried to contact you on several occasions to no avail regarding the aforementioned EAT Order. The Appellant was ordered to lodge all documents that he wished to rely upon at least 28 days before the hearing and also lodge a full history of this case before the Tribunal again at least 28 days before the hearing. Neither of these orders have been complied with and as the matter is listed for hearing on 22nd February 2001, I have prepared a bundle of documents for the Appeal Tribunal and have now forwarded these on to them.
    Due to the time period I have attached a copy of the indexed bundle for each party. If there are any further documents that you wish to rely upon you will have to prepare a supplementary bundle fully indexed and paginated, making sure you provide 3 copies to the EAT and also furnish the Respondents with a copy.
    Please also forward skeleton arguments urgently as these are now overdue."
  6. On 20 February 2001 a skeleton argument was faxed to this Tribunal. That skeleton argument was prepared by leading Counsel who has represented the Appellant before us today. We are grateful to him for his submissions. The Appellant, Dr Ruby, should also be grateful to him. In our judgment he has extracted from the points advanced in writing by Dr Ruby the matters that could properly be argued before us.
  7. Despite the letter from this Tribunal of 15 February 2001 no additional documents were provided on behalf of the Appellant prior to the commencement of the hearing. However, during the course of his submissions leading Counsel for the Appellant provided us with a small bundle of additional documents.
  8. Additionally, and unusually, but in accordance with our invitation contained in my second judgment the Respondent (Kings Lynn & Wisbech Hospitals NHS Trust) appeared and was represented before us today. Counsel representing the Respondent had to leave before the end of the hearing because he was part-heard in a criminal case. To enable him to make submissions to us we did not follow the classic order of submissions. Further we invited Counsel for the Respondent in making his submissions to focus upon issues relating to the history and background and discouraged him from arguing the appeal as if this was the full hearing.
  9. In addition to the bundle that the Solicitors for the Respondent had sent to us with their letter dated 25 October 2000 (which is referred to in my second judgment) those Solicitors also helpfully provided us with a chronology and the bundle of documents that was before the Employment Tribunal in October 1999 when they heard the Appellant's breach of contract claim.
  10. We are grateful to the Respondent (and their Solicitors) for providing us with this information. We would comment (as we did during the hearing) that if they had not provided us with information in the manner that they did, we are of the view that we would not have been able to understand the history of this case from the information provided to us by the Appellant and his advisers.
  11. We appreciate that the Appellant both as a layman and because he is, and has for about the last three years been, suffering from an atypical depressive disorder may have had some difficulty in preparing his case and that this may have had a "knock-on" effect on those who have sought to advise and assist him. We also appreciate that the Solicitors and Counsel who appeared for the Appellant before us today have only been recently instructed. We also appreciate that this case has caused and is causing the Appellant distress. However the Appellant is clearly an intelligent man and whilst recognising the above difficulties we remain of the view that the Appellant (and his advisers) have failed to provide this Tribunal with full and proper information.
  12. Our task at a preliminary hearing

  13. This is to consider whether the appeal raises any points of law that are reasonably arguable.
  14. We accept the submission made by leading Counsel for the Appellant that the deficiencies that have existed as to the provision of information by, and on behalf of, the Appellant should not found the result that there should not be a full hearing.
  15. As is well known the jurisdiction of this Tribunal is limited to the consideration of whether an Employment Tribunal has erred in law. The Employment Tribunal is the fact-finding body.
  16. The Appeal

  17. The appeal that is before us is an appeal against a decision of an Employment Tribunal sitting at Norwich on 18 and 19 October 1999. The Extended Reasons for that decision were sent to the parties on 28 February 2000.
  18. The Notice of Appeal is dated 6 April 2000 (we are unclear when it was first received by this Tribunal but no point has been raised by the staff of this Tribunal or the Respondent that the Notice of Appeal was out of time).
  19. In support of that Notice of Appeal the Appellant swore an affidavit on 28 April 2000. That affidavit raises issues of bias and further, or alternatively, procedural irregularity.
  20. The decision appealed against is as follows:
  21. "The unanimous decision of the Tribunal is that:
    1. The application for unfair dismissal is adjourned until further order of the Tribunal.
    2. The complaint of breach of contract is dismissed."
  22. The grounds of appeal set out in the Notice of Appeal are:
  23. "1. Decision is perverse.
    2. Failure to apply points of law relevant to case (see details)"
  24. The bases for, and the details of, those grounds are provided by the Appellant in his affidavit and in other documents provided to us both with and after the Notice of Appeal.
  25. Applications to amend the Notice of Appeal

  26. By his PHD form which was received by this Tribunal in early May 2000 the Appellant sought to add the following amendment to the Notice of Appeal:
  27. "Appeal against ET Chairman to dismiss the Unfair Dismissal Claim."

    This application was prompted by a Certificate of Correction issued by the Chairman which we shall refer to below.

  28. By letters of 30 August 2000 and 5 September 2000 the Appellant also stated:
  29. "I do also request to add the issue of Unfair Dismissal which he struck off as well as the Race Discrimination."

    As appears below the Appellant had sought to add a claim for race discrimination to his Originating Application and the Employment Tribunal had refused that application on the basis that the claim was out of time and it was not just and equitable to extend time.

  30. The Appellant stated that his letter of 5 September 2000 was to replace his letter of 30 August 2000. Enclosed with that correspondence were further submissions and assertions made by the Appellant.
  31. Preliminary comments in respect of the unfair dismissal claim

  32. We will deal with this in more detail when giving the history. However at this stage I comment that, as mentioned in my judgment on the first preliminary hearing, there was some confusion as to what happened in respect of the claim for unfair dismissal made by the Appellant.
  33. We will set out below our understanding of what happened based on the documents that have been provided to us (mainly by the Respondent) and the submissions made by both parties.
  34. As appears above the decision contained in the Extended Reasons, as they were sent to the parties on 28 February 2000, was that the application for unfair dismissal "is adjourned".
  35. However on 27 March 2000 the Chairman issued a Certificate of Correction in the following terms:
  36. "Under the provisions of Rule 10(9) of the Employment Tribunals Rules of Procedure 1993 (as amended) I hereby correct the clerical mistake in the Decision sent to the parties on 28 February 2000 as follows:
    'Decision
    The application for unfair dismissal is dismissed on withdrawal in accordance with the letter of the applicant's then solicitors dated 5 October 1999'."

    The history of these proceedings

  37. We will deal with this in numbered subparagraphs.
  38. (1) In May 1998 the Applicant brought his claim for breach of contract and unfair dismissal. The grounds for his claim are set out in his IT1 and were as follows:
    "8. My employment began in February 1995 and ended on the 3rd February 1998.
    9 The full details of my complaint are:-
    9.1 I commenced training as a General Practitioner in February 1995, having spent thirteen years working in opthalmics. The training course was self structered, meaning I had to apply for various placements in Hospitals to obtain the necessary training in the requisite fields. I commenced my placement in the Gynaecology and Obstetrics Department of the Queen Elizabeth Hospital, Gayton Road, Kings Lynn, Norfolk in August 1997.
    9.2 In January 1998 I discovered that the Queen Elizabeth Hospital would not complete the necessary references to confirm the completion of my training. As a result of this, I have been unable to continue my employment within the National Health Service.
    9.3 I consider that I have been unfairly dismissed and that the treatment of me was in breach of contract.
    10 When I am successful in my claim I wish for reinstatement and compensation."
    (2) On 11 August 1998 the Appellant sought leave to add a claim for racial discrimination (he also sought to add a claim for a redundancy payment but no issue arose in respect of this before us). The grounds relied on in support of the claim for racial discrimination in the proposed amendment were as follows:
    "9.4 I have evidence to prove that there has been serious discrimination against me on Racial and Professional grounds.
    9.6 Defamation case currently against a Member of the Trust concerned."
    In addition, and as appears from the Extended Reasons of the Employment Tribunal dealing with this application the Appellant lodged a letter dated 20 August 1998 concerning his claim for racial discrimination which gave some further information as to the basis of that claim.
    (3) On 23 September 1998 an Employment Tribunal sitting at Norwich heard the Appellant's application to amend to make a claim of racial discrimination. It is common ground between the parties that on that occasion the Employment Tribunal also heard submissions on the question whether the Employment Tribunal had jurisdiction to hear the Appellant's claim of unfair dismissal. This jurisdictional issue is raised in the Respondent's Notice of Appearance in the following terms:
    "The Applicant commenced employment with the Second Respondent on 6th August 1997 under a six month fixed term contract with the Second Respondent expiring on 3rd February 1998. The appointment, for that 6 month period, was to operate as a Senior House Officer in Obstetrics & Gynaecology. The Applicant had already served two posts elsewhere and this was the third and last specialist appointment in his training programme. The GP trainee had not been employed by the Second Respondent at any earlier stage and there was no continuity of employment for statutory purposes. Equally, there was never any question of the contract being extended beyond the 6 month fixed term expiring on 3rd February 1998 because the whole purpose was that the Applicant should complete the appointment and then, if successful, move on to find an appropriate GP Practice. The Second Respondent's role was simply to train and assess the Applicant in the speciality during that period of six months. It was always intended that the Second Respondent would, in advance of the Applicant's departure, appoint another Senior House Officer in Obstetrics & Gynaecology to work as from 4th February 1998.
    UNFAIR DISMISSAL
    In the circumstances, the Second Respondent denies that the Applicant was entitled to claim unfair dismissal or, indeed, that he was unfairly dismissed, and would make the following points.
    (a) As a preliminary point, the Applicant had, for statutory purposes, less than six months' continuous employment and, consequently, the Second Respondent would respectfully submit that the Tribunal does not have jurisdiction to hear the Applicant's claim for unfair dismissal and, the Second Respondent would seek a Preliminary Hearing on that point.
    (b) The Applicant was dismissed [by] only by virtue of the expiry of a fixed term contract without its being renewed, as per section 95 1(b) of the Employment Rights Act 1996.
    (c) The reason for the dismissal was simply the expiry of the fixed term contract. The appointment was for a defined period and it was always intended by the parties that the appointment would terminate on 3rd February 1998 whether or not the Applicant's final assessment was favourable.
    (d) To the extent that it may be relevant, the Second Respondent would deny that there was any unfairness in the Second Respondent's treatment of the Applicant."
    The Extended Reasons in respect of the hearing held on 23 September 1998 were sent to the parties on 8 October 1998. Paragraph 1 of those Extended Reasons confirms that the issue of the Employment Tribunal's jurisdiction to hear the claim of unfair dismissal was before the Employment Tribunal on 23 September 1998 but those Extended Reasons deal only with the issue as to whether or not the Appellant should be allowed to amend to add a claim of racial discrimination. That application was refused on the basis that the Employment Tribunal did not think it just and equitable to extend time to allow that application to proceed.

    (4) It is however common ground that at the hearing on 23 September 1998 the Chairman indicated that he was of the view that the Appellant did not have sufficient qualifying service to bring a claim of unfair dismissal and that he would provide a written decision concerning that after considering further the relevant statutory material.

    (5) On 20 October 1998 the Appellant applied for a review of (i) the decision refusing his application to amend to add a claim of racial discrimination, and (ii) as to the decision of the Employment Tribunal relating to jurisdiction to hear the unfair dismissal claim. This application is a confirmation of the point that the Appellant was of the view that on 23 September 1998 the Chairman had indicated (and decided) that the Employment Tribunal did not have jurisdiction to hear his claim of unfair dismissal.
    (6) On 23 October 1998 Solicitors for the Respondent wrote to the Employment Tribunal. On instructions leading Counsel for the Appellant told us that his client had no recollection of receiving a copy of this letter. The copy that we have seen does not indicate that it was copied to him. We understand that the Solicitors for the Respondent was unable to confirm whether or not a copy had been sent to the Appellant because they did not have the relevant file with them at the tribunal. We mention this at this stage because at one point it seemed that a submission would be made that the fact that the Chairman corresponded with the Solicitors for the Respondent without letters being copied to the Appellant (on this and possibly other occasions) had the consequence that, as it was put, the Chairman was "contaminated" and that this founded an arguable case in bias or procedural irregularity. In our judgment correctly, this submission was not in fact pursued. The letter dated 23 October contained the following paragraphs:
    "As you are aware we act for the Respondent, King's Lynn & Wisbech Hospitals NHS Trust. We refer to the Decision of the Employment Tribunal dated 8th October 1998 and to our subsequent discussions with your Mr J. Wilkinson. We thought it would be helpful to clarify a number of points relating to the Decision and the Preliminary Hearing on 23rd September 1998 in order to resolve a number of outstanding issues.
    As is apparent from the Decision itself, there has clearly been an error or oversight somewhere between the date of the Preliminary Hearing and the date of the written Decision in that part of the Decision is missing. The written Decision does not accurately reflect the Decision given orally on 23rd September 1998 in that the written Decision is incomplete. The wording of paragraphs 1 to 14 of the Decision are an accurate reflection of our own notes of the majority of the Decision given orally at the Preliminary Hearing on 23rd September 1998 except that at the Preliminary Hearing, the Chairman continued and went on to state broadly the following:
    'The view we take is that the gap of a month in 1996 would defeat the claim for 2 years' service.
    There is the further point of interpretation [raised by the Respondent's solicitors] … I will get hold of the relevant statute, will consider the matter and make a further Decision …'.
    Whilst we would not suggest that our notes are verbatim, we believe them to be a reasonably accurate record of what was said, particularly as our notes closely parallel paragraphs 1 to 14 of the written Decision.
    Finally, as is apparent from what we have said above, the Tribunal found that the Applicant was ineligible to bring an unfair dismissal claim (and it followed that his claim for a redundancy payment also failed) because he did not have the requisite 2 years' continuous service. However, as we have submitted at the Preliminary Hearing, the Applicant does not even have one year's service; this is of course relevant because of Seymour-Smith. It is the Respondent's case that the Applicant only has 6 months continuity of service. As we went to some lengths to explain at the Preliminary Hearing, the Applicant does not qualify for the special continuity of employment provisions set out in the Employment Protection (Continuity of Employment of National Health Service Employees) Order 1996 (which appears at page 10 of the Respondent's Bundle of Documents) because at no time has he been employed in any of the categories referred to in that Order. This point was clearly accepted by the Tribunal at the Preliminary Hearing. Paragraphs 20 and 21 (on page 6 of the Bundle) coupled with paragraphs 3 to 5 (on pages 1 and 2 of the Bundle) set out the arguments which were put forward at the Hearing and refer to the relevant additional Statutory Instruments, copies of which were also included in the Bundle at pages 17 to 26 inclusive. All that the Chairman wished to double check was whether there was anything in the National Health Service Act 1997 which might in some way give the Applicant continuity of employment. We supplied a copy of that Act to the Clerk at the end of the Hearing for the Chairman's ease of reference. We confirm that we have not been able to find anything in that Act which might help the Applicant establish continuity of employment between NHS Trusts, but appreciate that the Chairman wishes to be satisfied on that point also.
    In view of the foregoing we would ask the Chairman urgently to look into this claim and clarify these outstanding issues. As is apparent from the file there have already been two Preliminary Hearings in this case. We do not consider there is a need for any further Preliminary Hearings; one aspect of the length of service issue has already been determined orally and the only remaining aspect on length of service is a straightforward legal issue which requires only the consideration of the relevant statutory materials and no further evidence, given the Tribunal's finding at the most recent hearing as to the Applicant's grade.
    We look forward to hearing from you."
    It is apparent from that letter that on the hearing on 23 September 1998 issues were raised relating to section 218 Employment Rights Act 1996 and the Employment Protection (Continuity of Employment of National Health Service Employees) Order 1996 (the 1996 Order). On 23 November 1998 the Employment Tribunal replied to the letter of 23 October 1998 in (inter alia) the following terms:
    "I note the contents of the letter. Those matters will be dealt with at the review. The tape has now been erased, apparently, but the observations in Mills & Reeve's letter broadly coincide with my recollection of the case. I would not wish to come to any conclusions without giving the Applicant the opportunity to be heard.
    Our exchange of correspondence has been copied as indicated below."
    The copies of the correspondence were sent to a firm of Solicitors (Fieldings Porter) who were then advising the Appellant and to ACAS. We pause to comment that this letter makes it clear that the Appellant's then Solicitors did receive the letter of 23 October 1998, even if it was not copied to them (or the Appellant) by the Respondent Solicitors.
    (7) On 11 March 1999 pursuant to the Appellant's application there was a review hearing. At that hearing the Appellant through his then Solicitors, Fieldings Porter, withdrew the Appellant's unfair dismissal claim. (We pause to comment that leading Counsel for the Appellant in response to a question put by us expressly accepted that the Solicitors then acting for the Appellant did withdraw his claim for unfair dismissal on this occasion). Unsurprisingly therefore on this review the Employment Tribunal did not revisit the issue of jurisdiction in respect of the unfair dismissal claim. The Employment Tribunal however did revisit and reconsider the application to amend to add a claim of racial discrimination and thus the question whether or not it would be just and equitable to extend time to bring that claim. The Extended Reasons for their decision on those issues were sent to the parties on 13 May 1999. By that decision the Employment Tribunal refused to review their earlier decision. The basis for that decision was that on a reconsideration of the matter including a consideration of further evidence relating to the Appellant's health, they did not consider that it would be just and equitable to extend his time to bring the claim.

    (8) No order was made dismissing the unfair dismissal claim on withdrawal pursuant to Rule 13(2)(a) of the 1993 Rules.

    (9) On 22 September 1999 the Solicitors for the Respondent wrote to the Employment Tribunal stating that in view of the correspondence from the Applicant to the Employment Tribunal and themselves, it appeared that there was considerable misunderstanding on the Appellant's part as to the purpose of the hearing then set for 18 and 19 October 1999 and by this letter the Respondent's Solicitors requested confirmation that
    (a) the unfair dismissal claim had been withdrawn, and
    (b) the only remaining claim was one for breach of contract.
    (10) On 24 September 1999 the Employment Tribunal replied and copied the exchange of correspondence to the Appellant and ACAS. That reply was in the following terms:
    "Thank you for your letter dated 22 September 1999.
    This has been referred to a Chairman of the Tribunals (Mr D R Crome) who has directed as follows:
    'The case is now listed for hearing the remaining issue between the parties. Insofar as the matters raised are within my knowledge or reflect the application of the Rules of Procedure to the circumstances of this case, I concur with the respondents letter dated 22 September. I will not enter into further correspondence with anyone about this case. The respondent may if it wishes lead medical evidence about Fluoxetine as may the applicant in reply if either wish to do so and it is at the hearing shown to be relevant'.
    Our exchange of correspondence has been copied as indicated below."
    (11) On 5 October 1999 Fieldings Porter (the Solicitors who had acted for the Appellant) wrote to the Respondent's Solicitors in the following terms:
    "We refer to your recent telephone conversation with our Mr Colvin concerning the above matter.
    Please note that as from the 10th August 1999, we were dis-instructed in this matter by Dr Ruby.
    In relation to the hearing on the 11th March 1999, in which Dr Ruby sought review of the decision of the Employment Tribunal sitting on the 3rd September 1998, our Mr Colvin who attended and represented Dr Ruby was instructed to and did request that the Unfair Dismissal Claim be withdrawn. As far as the writer can recall, the Unfair Dismissal Claim was recorded as withdrawn by the Tribunal.
    We trust this suffices for your purposes."
    (12) It is apparent from that letter dated 5 October 1999 that by the time it was written Fieldings Porter had been dis-instructed. However, we pause to note that that firm of Solicitors had prepared an amended Originating Application on behalf of the Appellant which is dated 10 December 1998 (ie after the date upon which the Appellant had sought a review of the decision contained in the Extended Reasons sent to the parties on 8 October 1998 and before the hearing of that review on 11 March 1999). The first two paragraphs of that amended Originating Application were in the following terms:
    "1 This Application is in substitution for the originating application filed and served by the Applicant, dated 2 May 1998, and as amended by letter of 2 August 1998, insofar as the former pleadings relate to the Applicant's breach of contract claim.
    2 The Applicant was employed as a Senior House officer in Obstetrics and Gynaecology at the Queen Elizabeth Hospital, owned and managed by the Respondent, from 31 August 1997 for a fixed period of six months terminating on 3 February 1998. The terms of the Applicant's contract of employment as reduced to writing appear in the principal statement of terms issued by the Respondent to the Applicant, dated 4 September 1996. This statement did not exhaustively define the terms of the Applicant's employment as will hereinafter appear."
    It is therefore apparent that in preparing that originating application the solicitors who prepared it considered the nature and length of the Appellant's employment
    (13) On 18 and 19 October 1999 the Employment Tribunal heard the Appellant's breach of contract claim. We were told by Counsel for the Respondent (who represented the Respondent at that hearing), and accept, that at that hearing no submissions were made concerning the Appellant's unfair dismissal claim.
    (14) On 17 November 1999 the Employment Tribunal sent to the parties their Decision with Summary Reasons. The decision was in the following terms:
    "The unanimous decision of the Tribunal is that:
    1. The application for unfair dismissal is stayed until further order of the Tribunal.
    2. The complaint of breach of contract is dismissed."
    The first three paragraphs of the Summary Reasons are as follows:
    "1 By his application presented on 2 May 1998 the applicant claimed that he had been unfairly dismissed by the respondent and that he had suffered damage and loss by reason of the respondent's breach of his contract of employment with it.
    2 The claim for unfair dismissal does not fall to be considered since the contract of employment with the respondent commenced in August 1997 and terminated on 3 February 1998. The contract was one of a series of contracts negotiated by the applicant with different National Health Trusts, and is outlined in D8 of the evidence of Vivien Bell. The contracts were each free-standing with several Trusts. His total period of employment with the respondent was six months.
    3 The claim for unfair dismissal thus falling to be outside the jurisdiction of the Tribunal having regard to the provisions of section 108 of the Employment Rights Act 1996 is stayed pending further order of the Tribunal and as was agreed in opening submissions the sole remaining issue between the parties was the breach of contract claim."
    Having regard to the point that
    (a) the unfair dismissal claim had been withdrawn and by the letter dated 24 September 1999 the Chairman indicated that it was his recollection that this was the case and
    (b) no submissions on the jurisdiction point relating to the unfair dismissal claim were made on 18 and 19 October 1999.
    It is surprising that the Summary Reasons deal with the unfair dismissal claim in this way. It is however to be noted that those Summary Reasons are expressly incorporated into the Extended Reasons sent to the parties on 28 February 2000 which are the subject matter of this appeal.

    (15) On 23 November 1999 the Respondent's Solicitors wrote to the Employment Tribunal stating that the decision contained in the Summary Reasons was incorrect because the Appellant had withdrawn his unfair dismissal claim.

    (16) On 23 December 1999 the Employment Tribunal replied stating that the status of the unfair dismissal claim would be clarified in the Extended Reasons.
    (17) On 28 February 2000 the Extended Reasons were sent to the parties. As mentioned above those Extended Reasons expressly incorporate the Summary Reasons sent on 17 November 1999 and contain a decision that:
    "The application for unfair dismissal is adjourned until further order of the Tribunal."
    The decision in the Summary Reasons was that the unfair dismissal claim is to be "stayed" rather than "adjourned".
    (18) On 10 March 2000 the Respondent's Solicitors wrote again to the Employment Tribunal enclosing some earlier correspondence. This drew attention to the difference in the language of the two orders relating to the unfair dismissal claim and reiterated the point that the Applicant withdrew his claim for unfair dismissal at the review hearing that took place on 11 March 1999 and that that had been confirmed by Fieldings Porter in their letter of 5 October 1999 (which was enclosed for ease of reference). In those circumstances by this letter the Solicitors for the Respondent invited the Employment Tribunal to review its decision solely in relation to the Applicant's claim for unfair dismissal. In that application by reference to their earlier letter of 23 November 1999 (which had also set out the history and the point that the unfair dismissal claim was withdrawn on 11 March 1999) the Solicitors for the Respondent pointed out by reference to Davidson v City Electrical Factors Ltd [1998] IRLR 108 that applicants with a qualifying period of employment of less than one year should not have applications stayed awaiting the result of the "Seymour-Smith case".

    (19) On 27 March 2000 the Employment Tribunal sent out the Certificate of Correction we have referred to above which corrected the decision in the Extended Reasons to provide that the application for unfair dismissal is dismissed on withdrawal in accordance with the letter of the Applicant's then Solicitors dated 5 October 1999.

    The racial discrimination claim

  39. In paragraph 13 of the judgment I delivered on the first occasion that this appeal came before us by way of preliminary hearing (18 October 2000) I pointed out that a point that arose in respect of this issue was whether the Appellant should be allowed to bring his appeal out of time.
  40. As the history indicates the Employment Tribunal refused the application to amend to add this claim by the Extended Reasons sent to the parties on 8 October 1998 and refused a review of that decision by Extended Reasons sent on 13 May 1999. Even if one takes 13 May 1999 as the starting date for bringing an appeal the Appellant is well out of time. This is so even though the Extended Reasons sent on 8 October 1998 are expressly incorporated into the Extended Reasons sent on 28 February 2000.
  41. In Aziz v Bethnal Green City Challenge Co Ltd [2000] IRLR 111 the Court of Appeal has recently decided that it is not an error of law for this Tribunal in considering whether or not to extend time for appealing to follow the approach set out by Mummery J in United Arabs Emirates v Abdelghafar [1995] IRLR 243. In that case Mummery J, having gone through principles derived from employment law cases and other cases, summarises their application and the approach to be taken by this Tribunal in paragraphs 26 to 30 of his judgment. In paragraph 30 of that judgment he summarises the approach in the following terms:
  42. "Thus, the questions which must be addressed by the Appeal Tribunal, the parties and their representatives on an application for an extension are: (a) What is the explanation for the default? (b) Does it provide a good excuse for the default? (c) Are there circumstances which justify the Tribunal taking the exceptional step of granting an extension of time?"

    That summary relates back to the three matters Mummery J raises in paragraphs 27 to 29 of his judgment. The first paragraph refers to the rules and ends with a sentence which is cited with approval by Sir Christopher Staughton in the Aziz case, and is as follows:

    "The limits will, therefore, only be relaxed in rare and exceptional cases where the Tribunal is satisfied that there is a reason which justifies departure from the time limits laid down in the Rules."

    That sentence indicates that this Tribunal takes a strict approach to extensions of time and is saying that there must be a reason which justifies a departure from the time limits and thus an extension rather than a reason for the delay.

  43. The second paragraph of the guidance given by Mummery J is in paragraph 28 of his judgment and the first two sentences of that paragraph are as follows:
  44. "The tribunal's discretion will not be exercised, unless the appellant provides the tribunal with a full and honest explanation of the reason for non-compliance. If the explanation satisfies the tribunal that there is a good excuse for the default, an extension of time may be granted."

    The paragraph then goes on to identify the difficulties in satisfying this Tribunal that there was such a good excuse.

  45. There are two limbs to that approach, the first is a requirement that a full and honest explanation be provided. If that is not provided then one does not go to the next stage. The second limb refers to the position if this Tribunal is satisfied that there is a good excuse and then identifies that in those circumstances an extension may be granted.
  46. The third paragraph in the guidance starts with a sentence:
  47. "If an explanation for the delay is offered, other factors may come into play in the exercise of the discretion."

    And then Mummery J lists a non-exhaustive list of factors.

  48. On my reading of that guidance and having regard to the decision in the Abdelghafar case, the explanation referred to under that third head does not have to be a "good explanation". What it has to be is a full and honest explanation. If that were not so, the decision in the Abdelghafar case in the exercise of the discretion pursuant to the approach set out therein would not have been made. This is because in the Abdelghafar case it was found that the reasons offered did not provide any "good excuse".
  49. We have approached this aspect of the appeal by treating the Appellant's application to amend to add the racial discrimination claim as an application to appeal against the decision of the Employment Tribunal refusing his application to amend to add that claim.
  50. The Appellant has not put in any explanation of the reason or reasons for his non-compliance with the relevant time limit.
  51. Leading Counsel on his behalf proffered explanations. He did not do so on the basis that they constituted his instructions as to why the time limit had not been met. Rather he did so on the basis that such matters were apparent from the papers and could be taken to be the reason or reasons. Leading Counsel said that the Appellant could provide reasons himself by going into the witness box and giving evidence. However, we indicated that given the opportunities that the Appellant had already had to provide his reasons we were not prepared at this stage to permit him to give oral evidence. After the lunch time adjournment leading Counsel indicated that he could not add to the matters he had brought to our attention as matters constituting the reason or reasons for non-compliance with the time limits.
  52. In our judgment it follows that the Appellant has failed to give a reason or reasons for his default in not issuing an appeal in time and that we should not extend time for that reason.
  53. However, we have also considered the question of an extension on the basis that the reasons offered by leading Counsel on behalf of the Appellant should be treated as a full and honest explanation of his reasons.
  54. A reason advanced by leading Counsel was that the Appellant is and has been suffering from an illness. In that context he reminded me of a report dated 9 October 2000 which had been handed in at an earlier hearing. The opinion expressed at the end of that report is that the Appellant has been suffering from an atypical depressive disorder for the last three years or so. We accept that diagnosis and that such illness has caused the Appellant some difficulties. However in our judgment, as a free-standing matter, that report and illness do not constitute a reason for non-compliance with the time limits. During that three year period the Appellant, acting on his own behalf and through Solicitors, has taken steps in this litigation. This demonstrates that his illness would not, of itself, have precluded him from appealing the decision relating to his claim of racial discrimination.
  55. Leading Counsel also asserted that the Appellant had great difficulty in separating out in his own mind the various elements of his case. For present purposes we will accept that he has had difficulty in this respect but we do not accept that it would constitute a reason for his failure to appeal against the decision relating to his claim of racial discrimination in time.
  56. As to both the above points made by leading Counsel we note that the Appellant was advised by Solicitors certainly from December 1998 (when those Solicitors prepared his amended Originating Application) through the time of the hearing on 11 March 1999 and the receipt of the Extended Reasons for that decision on 13 May 1999 and up to 10 August 1999 which is the date stated by those Solicitors (Fieldings Porter) give as the date upon which they were dis-instructed.
  57. If one takes 13 May 1999 as the starting date for bringing an appeal it follows that the Applicant had the benefit of advice from Solicitors throughout the period of the time limit for bringing an appeal. There was no suggestion that either his illness or his difficulty in understanding the elements of his claim precluded the Appellant from giving instructions to those Solicitors or precluded him through those Solicitors, or with the benefit of their advice, from bringing an appeal against the decision relating to racial discrimination.
  58. In our judgment those reasons do not amount to "good reasons".
  59. We have however gone on to ask ourselves whether on the hypothesis that a full and honest explanation had been given this is a case in which we should exercise our discretion to extend time, having regard to the guidelines given by Mummery J. and thus to consider whether there are exceptional circumstances in this case that warrant an extension.
  60. As we understood the submissions made on behalf of the Appellant the exceptional circumstances relied on are the same as the reasons referred to above coupled with the serious effect of the "alert or grey" letter. (We shall return to discuss the nature and effect of such a letter).
  61. In our judgment those matters do not constitute exceptional circumstances which would warrant an extension of time for the Appellant to bring an appeal in respect of the refusal of the Employment Tribunal to entertain his claim of racial discrimination.
  62. Accordingly in our judgment we should not extend time for bringing this appeal.
  63. Notwithstanding the above conclusions we have also considered this appeal on the basis that it had been brought in time.
  64. It is plain from the Extended Reasons sent to the parties on 8 October 1998 and 13 May 1999 that the Employment Tribunal applied the correct test and had regard to the relevant authorities. As one of the authorities referred to by the Employment Tribunal demonstrates an Appellant against an exercise of discretion not to extend time because it was not just and equitable to do so has a difficult task. That authority is Hutchison v Westward Television Ltd [1977] ICR 279. At page 282 E to F, Phillips J giving the judgment of this Tribunal says this:
  65. "Because it is such a wide discretion conferred upon an industrial tribunal, the task which an appellant has in such a case is a heavy one. Really he must show, if he is to succeed upon appeal, that the industrial tribunal demonstrably took a wrong approach to the matter, or that they took into account facts which they ought not to have done, or that they failed to take into account facts which they should have done, or, as a last resort which is always open upon an appeal, that the decision was so unreasonable in all the circumstances that no reasonably instructed tribunal could have reached it."
  66. In our judgment it is not reasonably arguable that the Employment Tribunal so erred in law in this case.
  67. It was submitted on behalf of the Appellant that the Employment Tribunal took an approach based on the practicability of bringing the claim within the three month statutory time limit or one which placed too much weight upon the point that it would have been practicable for him to do so. We do not agree. In our judgment a fair reading of the Extended Reasons, both on the first hearing and on the review, shows that in applying the "just and equitable" test the Employment Tribunal had proper and appropriate regard to the point that the Appellant could have brought the claim in time and that even after (as he said) he was alerted to the existence of such a claim, he did not move quickly.
  68. It was also submitted on behalf of the Appellant that his final assessment at the end of February 1998 followed by the issue of the "grey" letter on 10 March 1998 constituted a continuing act of discrimination. In support of that reference was made to Kapur v Barclays Bank [1991] IRLR 137.
  69. It was accepted that this point was not made before the Employment Tribunal.
  70. In our judgment this argument is not one which identifies a point that would be reasonably arguable on appeal for two reasons:
  71. (a) firstly because the point was not raised below, the Employment Tribunal would have had no duty to raise it (see for example Kumchyk v Derby County Council [1978] ICR 1116, Chapman v Simon [1994] IRLR 124) and Mensah v East Hertfordshire NHS Trust [1998] IRLR 531), and
    (b) in any event, in our judgment the point is not one that is reasonably arguable having regard to the cases referred to in Harvey at paragraphs L556 and 557 (which include the Kapur case relied on by the Appellant and Owusu v London Fire and Civil Defence Authority [1995] IRLR 574 and Cast v Croydon College [1998] IRLR 318).

    Conclusion on the racial discrimination claim

  72. For the reasons we have given
  73. (i) we do not give leave to the Appellant to amend his Notice of Appeal to add an appeal in respect of the decision of the Employment Tribunal in respect of this claim, and
    (ii) for the avoidance of doubt we refuse leave for the Appellant to issue an appeal against the decision of the Employment Tribunal in respect of this claim out of time.

    The breach of contract claim

  74. This is the claim that was the subject of the Extended Reasons sent to the parties on 28 February 2000.
  75. By way of a preliminary and general comment we record that we accept that the Appellant feels strongly that the Respondent's final assessment of him was incorrect, the "grey" letter should not have been issued and that the Employment Tribunal reached the wrong conclusion. We however repeat that we are not the fact-finding Tribunal and what the Appellant has to identify are points of law that are reasonably arguable.
  76. Further, we comment that in making his submissions on behalf of the Appellant, leading Counsel placed great weight on the Appellant's feelings and the damage that has been caused to his reputation and career by the assessment made by the Respondent and the subsequent issue of the "alert or grey" letter. We accept that that assessment and the "alert or grey" letter have caused the Appellant upset and have caused damage to his reputation and career. However, as we reminded leading Counsel, it seems to us that the other side of the coin should not be forgotten. That is, that a doctor who fails his final assessment and who is, in the view of those assessors, someone who should not engage in unsupervised medical practice is a danger, or potential danger, to the public if he does practise on a unsupervised basis. That, of course, presupposes that the conclusion of the assessors is correct. However, unless and until it is demonstrated that such conclusion is not correct, as a matter of public policy and common sense, we see why the NHS Executive issue "alert or grey" letters.
  77. The "alert or grey" letter in this case is in the following terms:
  78. "The above person formerly worked as a Senior House Officer at the Queen Elizabeth Hospital, King's Lynn.
    If the above-named person makes an application for a permanent post or locum work with your Trust you are advised to contact the Senior Personnel Manager at King's Lynn and Wisbech NHS Trust on 01553 613613, before offering him employment."

    That letter is dated 9 March 1998. By a letter dated 10 March 1998 written by the Medical Director at the Respondents to Dr Ruby, Dr Ruby was informed as follows:

    "I have now received a copy of your assessment, carried out by Mr Bone and Mr Al-Taher on 25-2-98. I am glad to note that you have signed your agreement with the conclusion of the assessment, and intend to consult the Regional GP Adviser.
    Because of the assessment's conclusion, the gynaecologists mentioned above feel that you should not engage in unsupervised medical practice, and I have therefore taken the step of asking the Regional Director of Public Health, Dr Pat Troop, to issue an alert letter to Personnel Departments asking them to contact us if you apply for a post elsewhere. We would then provide an assessment of your suitability for the post, based on the final assessment by Mr Bone and Mr Al-Taher. This is normal practice and follows agreed guidelines (HSG(97)36) issued by the NHS Executive.
    The alert letter merely ensures that prospective employers are put into contact with previous employers.
    Please contact me if you have any queries."

    We were referred to those guidelines which were in the bundle before the Employment Tribunal and are referred to in the Extended Reasons at paragraph 3(12). Paragraph 3(12) and (13) of the Extended Reasons are in the following terms:

    "(12) The procedures of the respondent are governed by the rules applicable to the National Health Service Health Trusts which appear at pages 72 to 75, so far as they are relevant to this case. Having regard to the directions given on page 73 and numbered paragraph 1:
    'The objective of the alert letter system (often referred to as grey letters) is to protect patients by ensuring that employers, doctors or dentists are aware of any who have been dismissed or suspended in the most serious disciplinary cases or where the prospect of their continuing in practice gives rise to a concern for patients safety'.
    (13) The respondent, in the persons of Mr Bone and Mr Al-Taher, believed that the applicant fell within the second category, that is to say that the prospect of his continuing in practice gave rise to a concern for patients safety, and accordingly they wrote to the Secretary of the Trust who notified the Regional Authorities and as a result of that the so called 'grey letter' was issued. The document appears at page 189 of the bundle and is addressed to (National Health) Trust Chief Executives Nationally. The applicant protested about the issue of the letter and pursued his claim in this regard through the British Medical Association and also with the General Medical Council."
  79. The grounds of appeal against this claim can be divided into four, namely
  80. (a) the Employment Tribunal failed to carry out a proper contractual analysis and in particular properly to analyse the express or implied term that the Respondent was to provide the Appellant with reasonable and proper training and the implied term of trust and confidence (as to which reference was unsurprisingly made to Malik v Bank of Credit and Commerce International SA [1997] IRLR 462),
    (b) procedural shortcomings,
    (c) perversity, and
    (d) bias and/or procedural irregularity.

    Failure to properly consider and analyse the contractual claim

  81. The nature of the Appellant's claim is pleaded in the amended Originating Application and accurately reflected in paragraph 4(1) to (8) of the Extended Reasons.
  82. In our judgment that pleading and that paragraph of the Extended Reasons demonstrate that the essential issue before the Employment Tribunal was one of fact and this was not a case which turned on issues of law as to the extent of the contractual obligations of the Respondent concerning training and under the implied term of trust and confidence.
  83. As to the analysis of the contractual terms the Employment Tribunal, in paragraph 6 of the Extended Reasons, find that the contract was a training contract and therefore accept and find that there was an express and implied obligation on the Respondent to train the Appellant. Express reference is made to the fact that the Appellant asserted that there had been a breach of the implied term of trust and confidence in paragraph 4(6) of the Extended Reasons and it is therefore plain that in considering his case the Employment Tribunal had that implied term in mind.
  84. The point that we have made namely that the essential issue between the parties was one of fact and not of legal interpretation and application is shown by paragraph 7 of the Extended Reasons and by the further details contained in paragraph 8 thereof.
  85. In considering the Extended Reasons we have had regard to the fact that there are some errors in it, for example in paragraph 7(1) there is a reference to Mr Abu-Khalil when the reference should be to Mr Al-Taher and in paragraph 8.1 there is a reference to the minutes of the meeting of 4 December when we think the reference should be to 4 November.
  86. These points were not relied on by leading Counsel on behalf of the Appellant and in our judgment he was correct not to do so. Read fairly and as a whole we are of the view that the Extended Reasons (i) properly inform the parties why they respectively won and lost and in so doing (ii) show that the Appellant lost this case because the Employment Tribunal found against him on the facts.
  87. The nature of the dispute and the effect of the findings of the Employment Tribunal was demonstrated during argument before us by reference to paragraph 8.4 of the Extended Reasons which is in the following terms:
  88. "8.4 We take particularly seriously the allegation made by the applicant that at some stage he was accused by Mr Al-Taher, in the presence of two female members of staff, of masturbating a patient whilst undertaking a clinical examination. We believe Mr Al-Taher's evidence at paragraph 3 on page 13 of his proof, as indeed we do the rest of his evidence, and accept that as a satisfactory explanation of the incident. Mr Al-Taher genuinely believed that the applicant's conduct was open to misinterpretation and gave guidance. That is precisely what a trainer should do, there is no question of discipline being applied to the applicant. The applicant took the criticism the wrong way, but that is a matter for him, not a breach of contract."

    It was submitted that the Employment Tribunal had failed to give proper weight to this because it was (and before the Employment Tribunal it had been) asserted that as a result of this incident (or in particular of this incident but other things as well) the Appellant was not fairly assessed because of the suspicion created by this incident. We therefore called for the passage from the statement of Mr Hamed Al-Taher referred to in the Extended Reasons. That passage reads as follows:

    "42) (3) That Mr Abu-Khalil accused Dr Ruby of 'masturbating' female patients:
    43) Dr Ruby talked to me about the 'speculum examination' incident when he claimed that Mr Abu Khalil alleged that he was 'masturbating' a patient during an examination. I only heard about this incident from Dr Ruby at the time. I asked Mr Abu-Khalil about the incident and he explained to me that, following a report from one of the registrars about Dr Ruby's technique in examining women, he took Dr Ruby to the office to discuss the incident. I believe that he told him that women might misinterpret the way he conducted the examination as an assault or sexual abuse but he did not use the word 'masturbate'. I spoke to Dr Ruby at length about this incident and gave him the RCOG book on 'Intimate Examination'. I also gave him another book on how to conduct gynaecological examination. He told me afterwards that these 2 books were very useful and he photocopied them for further reference."

  89. Mr Al-Taher gave oral evidence before the Employment Tribunal and one can well see why as a result of their acceptance of that part of his Witness Statement the Employment Tribunal did not accept the Appellant's assertion set out in paragraph 67 above.
  90. In the round the Extended Reasons show that the Employment Tribunal having heard evidence decided that the training had been properly and reasonably carried out and there was no breach as alleged (or at all) of the implied term of trust and confidence. The Extended Reasons show that the Appellant failed each of his assessments and after earlier failures the Employment Tribunal found that there were bona fide attempts to address the problems and to offer advice, guidance and further training to the Appellant.
  91. Procedural shortcomings

  92. We deal with this separately, although it is linked to the Appellant's arguments on perversity and on bias and/or procedural irregularity.
  93. As put in the skeleton argument prepared by leading Counsel this ground was put as follows:
  94. "Dr Ruby in addition raises serious questions over the conduct of the proceedings before the Employment Tribunal. He claims that he was not given the opportunity adequately to explain the shortcomings in the Respondents' training programme, witnesses with material evidence whose opinion was relevant were not required to attend."

    This was a point which the Appellant had raised himself in the documents he had provided in which he makes a number of references to applications for witness orders that the Chairman of the Employment Tribunal had refused. Nowhere in those documents had he identified the witnesses who were the subjects of those applications and whose opinions he asserted were relevant. Additionally these witnesses were not identified in the skeleton provided by leading Counsel. It was only in response to a direct question from us that we were informed that the expert witnesses in respect of whom the Appellant had sought Witness Orders were:

    (a) the President of the General Medical Council,
    (b) the President of the Royal College of General Practitioners,
    (c) the President of the Royal College of Obstetricians and Gynaecologists.
    (d) the Chairman of the Joint Committee for Post-Graduate Training in General Practice and
    (e) Mr Nook FRICS.

  95. In addition the Appellant sought Witness Orders in respect of the following employees of the Respondent, namely Mr Bone, Mr Al Taher, Mr Aziz and Sister Tonroe. As appears from the Extended Reasons Mr Al Taher gave evidence on behalf of the Respondents but the others did not. Mr Bone and Mr Abu-Khalil are referred to in the Extended Reasons. Mr Abu-Khalil had been involved in the incident we have referred to above and which is dealt with in paragraph 8.4 of the Extended Reasons. The Registrar in respect of whom a Witness Order was sought was, we were told, also involved in that incident. We were not informed of the reason why a Witness Order was sought in respect of Sister Tonroe
  96. As to the outside expert witnesses in respect of whom Witness Orders were sought and refused Mr Nook did attend to give evidence on behalf of the Appellant.
  97. We can well understand why the Chairman of the Employment Tribunal refused to issue the witness orders sought in respect of (i) the employees of the Respondent, and (ii) the Presidents and Senior Officers of the bodies we have referred to above. As to the former the Appellant could give evidence of the incidents he relied on a cross-examine the witness or witnesses who gave evidence in respect of them on behalf of the Respondent. As to the latter the relevance of their evidence (as opposed to that of Mr Nook FRICS) was not explained to us and it is difficult to see why they would be appropriate witnesses on the issues that arose in this case. Any criticism that might have been made as to the refusal of the witness order in respect of Mr Nook FRICS is cured by the fact that in the events that happened he gave expert evidence on behalf of the Appellant.
  98. The point underlying the assertion that the Employment Tribunal erred in law in their conduct of the proceedings was that they did not have proper evidence upon which they could determine clinical and medical issues.
  99. We reject that criticism. As we have pointed out the Appellant called an expert who, as the Employment Tribunal recognised in their Extended Reasons, made some criticisms of the training. The Appellant himself is medically qualified as is Mr Al Taher. It follows in our judgment that the Employment Tribunal (as persons who were not medically qualified) had evidence before them upon which they could reach conclusions in respect of the Appellant's allegations relating to the training programme and the training he received.
  100. In paragraph 7(2) of the Extended Reasons the Employment Tribunal find as follows:
  101. "7(2) The overall training scheme is one which the respondent genuinely believed was a reasonable one and one which we feel we cannot criticise. We accept Mr Kahlil's evidence in this respect, as we have already mentioned in the findings of fact, and we find that the application of the programme was undertaken in good faith. In particular though we note Mr Nook's criticism, we nevertheless find that Mr Al-Taher and Mr Bone reasonably allocated the applicant to a 'floating' post of the first two months of his training. This was a perfectly reasonable step to take. The meeting of 4 November was something of a Rubican for the applicant to cross. Either he had to go on with his training or abandon it. He clearly was not succeeding, the assessments all pointed that way save in some particular regards, for instance the assessment from Denver Ward which was quite favourable to him, but the applicant received the advice and guidance offered in good faith at that meeting and knew that he had an obligation to follow it."

    We think that the first reference to Mr Kahlil should in fact be to Mr Al-Taher.

  102. Although the point was not raised by or on behalf of the Appellant we have considered whether the first sentence of that paragraph indicates that the Employment Tribunal felt that they did not have sufficient evidence upon which to reach a proper conclusion. In our judgment that is not a fair or proper reading of that sentence in its context and it follows that we accept and conclude that the Appellant and his Counsel were correct not to advance this point. When that sentence is read in the context of the Extended Reasons as a whole it is clear that the Employment Tribunal made findings that the training programme, the training actually given to the Appellant and the treatment of the Appellant generally were not in breach of the express and implied obligations to provide reasonable and proper training or of trust and confidence. It follows that they were satisfied that they had evidence upon which they could base those findings.
  103. In our judgment there is no reasonably arguable point of law that the Employment Tribunal erred in refusing the witness orders sought by the Appellant in respect of expert witnesses and employees of the Respondents and thereby determining the case without hearing further independent expert evidence and evidence from additional employees of the Respondent.
  104. Perversity

  105. The test to be applied in respect of perversity can be seen at Harvey, paragraphs T 1641 to T 1643. As appears therefrom an Appellant has a difficult task in establishing this ground of appeal.
  106. In our judgment correctly leading Counsel on behalf of the Appellant did not advance this ground with any vigour before us. He made the point by referring us to the written submissions and assertions put in by the Appellant.
  107. In our judgment this ground does not raise a reasonably arguable point of law. In our judgment the Employment Tribunal had evidence upon which they could reach their conclusions and that the conclusion they reached cannot be said to be plainly wrong. In this context Dr Ruby has to remember that the fact that he asserts and believes that the Employment Tribunal were wrong falls a long way short if establishing perversity.
  108. Bias and further or alternatively procedural irregularity

  109. The test to be applied in respect of bias and procedural irregularity prior to the coming into force of the Human Rights Act 1998 can be seen at Harvey T 906 and, in particular, in the decision of the Court of Appeal in Locabail UK Ltd v Bayfield Properties Ltd [2000] IRLR 96. In that case the Court of Appeal confirmed that under English law the test for apparent bias was that set by the House of Lords in R v Gough [1993] AC 646, namely an objective test whether there was a real danger of bias. In paragraph 17 of the judgment of the Court of Appeal in the Locabail case, they recognise that this test may not be on all fours with the test applied by the European Court of Justice, although they point out that in many cases such differences as there are between the two tests would not give rise to a different result.
  110. It seems to us, having regard to the provisions of section 6, 7 and 22(4) Human Rights Act 1998 that in considering whether there was bias and/or procedural irregularity on behalf of the Employment Tribunal in this case we should apply the test as confirmed in Locabail. This is because the hearing before the Employment Tribunal as to which complaint is made took place before the Human Rights Act 1998 came into force.
  111. In Director General of Fair Trading v Proprietary Association of Great Britain and Proprietary Articles Trade Association (see CA 21 December 2000) and now reported as In re Medicaments and Related classes of Goods (No 2) [2001] 1 WLR700 the Court of Appeal consider the position after the coming into force of the Human Rights Act and paragraphs 83 to and 85 of the judgment of the Master of the Rolls in that case, are as follows:
  112. "83 We would summarise the principles to be derived from this line of cases as follows. (1) If a judge is shown to have been influenced by actual bias, his decision must be set aside. (2) Where actual bias has not been established the personal impartiality of the judge is to be presumed. (3) The court then has to decide whether, on an objective appraisal, the material facts give rise to a legitimate fear that the judge might not have been impartial. If they do the decision of the judge must be set aside. (4) The material facts are not limited to those which were apparent to the applicant. They are those which are ascertained upon investigation by the court. (5) An important consideration in making an objective appraisal of the fact is the desirability that the public should remain confident in the administration of justice.
    84 This approach comes close to that in Gough. The difference is that when the Strasbourg court considers whether the material circumstances give rise to a reasonable apprehension of bias, it makes it plain that it is applying an objective test for circumstances, not passing judgment on the likelihood that the particular Tribunal under review was in fact biased."
    85 When the Strasbourg jurisprudence is taken into account, we believe that a modest adjustment of the test in Gough is called for, which makes it plain that it is in effect no different from the test applied in most of the Commonwealth and in Scotland. The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair minded and informed observer to conclude that there was a real possibility, or real danger, the two being the same, that the Tribunal was biased."

  113. To cover the eventuality that our interpretation of the Human Rights Act is incorrect we have considered the allegations of bias on the basis of the approaches in both the Locabail case and the Proprietary Asscociation case which, as the above citations show, are very similar.
  114. No allegation of actual bias was made.
  115. A principal point in support of the allegation of bias was the point that the Chairman had refused the Appellant's application for witness orders. We have already considered this point. As appears above in our judgment this refusal did not result in any procedural irregularity or unfairness.
  116. In our judgment it is not reasonably arguable that the refusal of the Witness Orders demonstrated bias. It was a procedural decision in respect of which the Chairman of the Employment Tribunal did not err in law but even if he had so erred that error would not of itself show bias.
  117. We propose to deal with the other matters raised by the Appellant in support of this ground of appeal compendiously. They can most conveniently be seen in his affidavit but they also appear in parts of the other documents he has put in in support of his appeal.
  118. In our judgment these matters can be categorised as either (i) assertions that, or to the effect that, the Employment Tribunal failed to give proper weight to particular aspects of the evidence and (ii) criticisms of the findings made in the Extended Reasons. In our judgment in reality these are allegations that the conclusions of the Employment Tribunal are so obviously wrong that this shows that the members of the Employment Tribunal must have been biased. This simply does not follow. In reality these allegations are ones of perversity. We have already dealt with that ground.
  119. For completeness we also reject the point made in paragraph 2.7 of the Appellant's affidavit that the last paragraph of the Extended Reasons (ie paragraph 9 thereof) is an overt challenge to the Appellant or one which demonstrates perversity.
  120. We also note that the allegations are directed against the Chairman. In our judgment it should not be forgotten that there were three members of this Employment Tribunal and that the decision reached on the facts was a unanimous one.
  121. Conclusion on the breach of contract appeal

  122. For the reasons we have given in our judgment no points of law that are reasonably arguable are raised on this appeal.
  123. The unfair dismissal claim

  124. In advancing this claim the Appellant did not identify the basis upon which he maintained that he had a sufficient period of qualifying service. Again it was only as a result of a direct question to us over the lunch time adjournment that leading Counsel for the Appellant obtained instructions as to the periods of vocational training relied on by the Appellant. These were as follows:
  125. 1 August 1995 to 31 March 1996 Birch Hill, Rochdale
    1 March 1996 to 15 April 1996 Birch Hill, Rochdale
    13 May 1996 to 31 July 1996 Gloucester Centre,
    1 August 1996 to 31 January 1997 GP Practice, Boston
    1 February 1997 to 1 August 1997 Grimsby
    6 August 1997 to February 1998 The Respondent

    When he provided us with this list leading Counsel for the Appellant also provided us with some documents.

  126. These documents confirm the overlap of dates in March 1996 at Birch Hill, the gap of a month in April / May 1996 referred to in the notes taken by the Applicant's solicitors at the hearing on 23 September 1998 (see paragraph 27(6) above) and a gap of 5 days in August 1997. The documents also show that at Birch Hill, Gloucester Centre Peterborough and Grimsby the post or grade of the Appellant was Senior House Officer and that during his period of training as a general practitioner his post was as a trainee general practitioner in a practice at Peterborough.
  127. In the clip of documents handed in to us at an early stage of the hearing by leading Counsel for the Appellant his offer of appointment with the Respondent was included. This is in a letter dated 4 September 1996 (i.e. when he was working at a GP practice in Boston Lincolnshire and some 11 months before he started at the Respondent). The Appellant's acceptance of the offer is dated 8 October 1996. Paragraph 1 of that offer, and thus the Appellant's contract provided as follows:
  128. "(a) I am instructed by the King's Lynn & Wisbech Hospitals NHS Trust to confirm the offer of an appointment as Senior House Officer in Obstetrics & Gynaecology, at The Queen Elizabeth Hospital commencing on 6 August 1997 for a period of 6 months terminating on 3 February 1998 (See Note 1).
    (b) The date of the start of your period of continuous employment will be verified and notified to you in due course. For these purposes, your employment with Birch Hill Hospital is included in the period of continuous employment.
  129. In this context leading Counsel raised a new point that each of the changes of employer constituted a TUPE transfer. Thus was not a point that was raised before the Employment Tribunal. Again in our judgment the Employment Tribunal had no duty to raise any such argument (see paragraph 55(a) above). Further the point was not developed by leading Counsel although he referred to, but did not cite, the decision of the ECJ in the Schmidt case (Case C –392/92). In our judgment it is not reasonably arguable that the Appellant can rely on TUPE or Directive 77/187 to obtain the necessary period of qualifying employment.
  130. We have set out the history relating to the claim of unfair dismissal. As appears therefrom it was the subject of the Certificate of Correction (see paragraphs 20 and 27(19) above) and before that it had had a fairly eventful procedural history. Both parties had thought that the Chairman had indicated that the Applicant did not have a qualifying period of service (see paragraph 27(3) to (5) above) which indication, or decision, was reviewed by the Appellant but not dealt with on that review because the claim was withdrawn. But no order was made dismissing the claim on withdrawal (see paragraphs 27(6) to (8) above). After that, and in the face of the fact that the claim of unfair dismissal was not argued on the main hearing, it was dealt with in the Summary Reasons and the Extended Reasons in the manner set out in paragraphs 17 and 27(14) and (17) above and it was respectively "stayed" and "adjourned" until further order of the Employment Tribunal.
  131. In our judgment nothing turns on a distinction between the use of the terms "stayed" and "adjourned" and indeed it was not argued that it did and thus that there was any substantive difference between the order recorded in the Summary and the Extended Reasons in respect of the main hearing. Argument was directed to the Certificate of Correction and the change it made to the claim being dismissed.
  132. In our judgment given the history of the claim and the orders that had been made it is arguable that:
  133. (i) the Employment Tribunal should have notified the Appellant and given him the opportunity to make submissions before issuing the Certificate of Correction, and

    (ii) the orders recorded in the Summary and Extended Reasons were not made as a result of a clerical or accidental slip and any changes thereto should have been made under Rule 11.

    However unless those arguable irregularities or errors lead to a result which would enable the Appellant to argue that he should now be given permission to advance his claim of unfair dismissal they lead nowhere and would not warrant us giving permission for those arguable points to be pursued.

  134. In our judgment those arguable points do not lead to such a result and therefore do not warrant us giving permission for the appeal to proceed.
  135. The argument would have the following stages:
  136. (1) the Certificate of Correction should never have been made, with the result that the order made and recorded in the Summary or Extended Reasons stands (i.e. that the claim is stayed or adjourned - and I shall use the term "stayed" - until further order of the Employment Tribunal), and

    (2) the stay should be lifted to enable the Appellant to pursue the claim.

  137. At the first stage the Appellant has at least two difficulties namely:
  138. (a) as was expressly accepted by his Counsel before us the Appellant's solicitors withdrew the claim and in our judgment a natural consequence of that withdrawal and the fact that the claim of unfair dismissal was not pursued at the main hearing is that such claim should be dismissed and further, or in any event, the Appellant should not be allowed to go back on that withdrawal, and

    (b) the order for a stay is clearly based on the Seymour-Smith case and a conclusion by the Employment Tribunal that subject thereto it did not have jurisdiction to hear the claim.

  139. As to the point in paragraph 105(b), since the decisions of the Employment Tribunal in this case the Seymour-Smith case has returned to and been decided by the House of lords (see [2000] ICR 244) and it was decided that in respect of dismissals in 1991 the two year qualifying period was valid. In this case no argument was raised that the "Seymour-Smith point" should be revisited for dismissals that took place in 1998. We understand that this has been raised in other cases. But as the Respondent's Solicitors pointed out in correspondence, it was established during the period of the Seymour-Smith case that unless the Appellant can rely on earlier employment with other health bodies his employment lasted for less than a year and therefore the claim should be dismissed (see paragraph 27(6) and paragraph 27(18) above and the case referred to therein). This means that even if the Appellant, sought to revisit the "Seymour-Smith" point, could establish procedural irregularities or errors of law in respect of the Certificate of Correction and could overcome the difficulties set out in paragraph 105(a) an order for dismissal would still be the right order unless he could establish that the conclusion of the Employment Tribunal (and it seems to us the basis for the withdrawal) namely that he did not have the relevant qualifying period of employment is wrong.
  140. As to the length of his employment we have already dealt with his TUPE argument. That leaves the argument under section 218 Employment Rights Act 1996 and the 1996 Order which as appears from paragraph 27(6) above was put before the Employment Tribunal on the first preliminary hearing on 23 September 1998.
  141. It also appears from paragraph 27(6) above that part of the argument put by reference to section 218 and the 1996 Order was that the Appellant was not employed in any of the capacities referred to in the 1996 Order. The grade of Senior House Officer is not mentioned in the 1996 Order and it was not argued before us that was the same as or equivalent to the grades expressly mentioned therein (e.g. Registrar or Senior Registrar).
  142. Our understanding is a Senior House Officer is junior to and not the same as a Registrar or any of the other grades referred to in the 1996 Order and if that is right (and as we have said the contrary was not argued) the Appellant cannot rely on the 1996 Order.
  143. If the Appellant cannot rely on the 1996 Order the arguable points we have identified in paragraph 102 do not lead to a conclusion that it is reasonably arguable that the Appellant would now be given permission to advance his claim of unfair dismissal. Accordingly those arguable points lead nowhere and would not warrant us giving permission for them to be pursued.
  144. Paragraph 1(b) of the Appellant's contract is set out in paragraph 98 above and provides that:
  145. (b) The date of the start of your period of continuous employment will be verified and notified to you in due course. For these purposes, your employment with Birch Hill Hospital is included in the period of continuous employment.

    We were not told that there had been any such notification. We have considered whether this provision indicates that a Senior House Officer is within the categories of employment referred to in the 1996 Order by paragraph 1(b) of the Appellant's contract of employment and thus supports a conclusion that this is reasonably arguable. We have decided that it does not. It is not what it says and as this contract was agreed in 1996 and thus only shortly after the 1996 Order came into effect and it may be that it is a "hang over" from earlier contracts referring to the Redundancy Payments (National Health Service) (Modification) Order 1993 (see paragraph 98 above). Further in our judgment this paragraph does not lead to a free standing argument that for the purposes of his claim of unfair dismissal the Appellant's employment should be treated as commencing at Birch Hill. We also note that there is a substantial gap between that employment and the employment by the Respondent. Further in that period there is a month during which the Appellant was not employed by a health service employer and a period of about six months when he was employed as a trainee general practitioner.

  146. In our judgment we should proceed on the basis that the Appellant was not employed in grades covered by the 1996 Order. If the Appellant wishes to assert that the contrary is the case he should seek a review pursuant to Rule 33 of our rules. Any such application should be supported by a statement setting out precisely which of his periods of employment set out in paragraph 96 above he asserts are covered by the 1996 Order together with evidence in support thereof. Those documents should be served on the Respondent who has liberty to respond thereto.
  147. If on any review we think it reasonably arguable that a Senior House Officer is within the categories covered by the 1996 Order we will go on to consider whether on other grounds permission to proceed with the appeal should not be granted, which will include (i) the most recent decision of the House of Lords in the Seymour-Smith case, the gaps in the periods of employment over the two years (or the one year) prior to the termination of his employment by the Respondent and/or the period of employment as a trainee general practitioner, or (ii) notwithstanding the definition of dismissal in section 95 Employment Rights Act 1998 the point that there was never any question of the contract being extended.
  148. It follows that in addition to evidence as to the inclusion of a Senior House Officer in the 1996 Order the Appellant should provide evidence to support any argument he wishes to advance that a trainee general practitioner is also included.
  149. Unless an oral hearing of any such review is requested we will deal with it on paper and will give leave to the Respondent to put in argument and written evidence on any such review (and to appear on any oral hearing thereof).
  150. Conclusion on the unfair dismissal claim

  151. For the reasons we have given we are of the view that permission to proceed with this aspect of the appeal should not be given.
  152. Overall conclusion

  153. We repeat the conclusion set out in paragraphs 56, 95 and 116 above. For the reasons we have given we have concluded that the Appellant has not raised points of law that are reasonably arguable and we dismiss this appeal.


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URL: http://www.bailii.org/uk/cases/UKEAT/2001/496_00_0606.html