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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Ruby v. Kings Lynn & Wisbech Hospitals NHS Trust  UKEAT 496_00_0606 (6 June 2001)
Cite as:  UKEAT 496_00_0606
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|At the Tribunal|
|On 22 February 2001|
THE HONOURABLE MR JUSTICE CHARLES
MR J R RIVERS
MR H SINGH
Transcript of Proceedings
(INTER-PARTES PRELIMINARY HEARING)
|For the Appellant||MR D BERKLEY
(One of her Majesty's Counsel)
Messrs Malik Laws
Cheetham Hill Chambers
577-579 Cheetham Hill Road
Manchester M8 9JE
|For the Respondent||MR A GEORGE
Messrs Mills Reeve
3-7 Redwell Street
Norfolk NR2 4TJ
MR JUSTICE CHARLES:
"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."
Our task at a preliminary hearing
"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."
"1. Decision is perverse.
2. Failure to apply points of law relevant to case (see details)"
Applications to amend the Notice of Appeal
"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.
"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.
Preliminary comments in respect of the unfair dismissal claim
"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:
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
(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.
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  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
"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.
"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.
"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.
"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."
(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  ICR 1116, Chapman v Simon  IRLR 124) and Mensah v East Hertfordshire NHS Trust  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  IRLR 574 and Cast v Croydon College  IRLR 318).
Conclusion on the racial discrimination claim
(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
"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."
(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  IRLR 462),
(b) procedural shortcomings,
(c) perversity, and
(d) bias and/or procedural irregularity.
Failure to properly consider and analyse the contractual claim
"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."
"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.
"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.
Bias and further or alternatively procedural irregularity
"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."
Conclusion on the breach of contract appeal
The unfair dismissal claim
|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.
"(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.
(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.
(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.
(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.
(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.
Conclusion on the unfair dismissal claim