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“I MUST PUT IT TO YOU THAT…”: THE EAT REMINDS US (AGAIN) THAT AN ALLEGED PERPETRATOR NEEDS TO HAVE A CHANCE TO ANSWER AN ALLEGATION OF VICTIMISATION

In North West Ambulance Service NHS Trust v Rice [2019] UKEAT 0152_18_3001 (30 January 2019 (“Rice”): Choudhury P, an NHS trust  (“the Trust”) appealed against an ET decision upholding Mr Rice’s claim that a grievance he had brought had been rejected for the purpose of penalising him for his trade union activities. Mr Rice had worked for the Trust since 1976 and for a number of years had held a full-time role as a trade union official. The Trust’s "retire and return" policy provided retiring employees with the opportunity to be considered for re-employment whilst retaining their pension. There was no automatic right to retire and obtain re-employment.  It would depend on the needs of the service at the time.    

Mr Rice submitted a "retire and return" application  (albeit in the form of a flexible working request)  asking to return after retirement to a Band 6 Team Leader post. In a discussion between Mr Rice and the Trust’s Deputy Director of Operations Mr Rice  was told this would be possible. However sometime later the Deputy Director wrote to Mr Rice saying that it was clear that Mr Rice’s request was not for flexible working but was a retire and return application. Mr Rice duly made a request in the proper form asking to come back as an Assistant Operations Manager (Band 6). His request was refused.  Mr Rice was told that the Trust was about to commence consultation on a restructure of the Band 6 roles within the emergency service which might result in a reduction of  the numbers of AOM position. For this reason Mr Rice could not be offered a Band 6 role. He was however offered a Band 5 Paramedic role.    

Mr Rice raised concerns that two managers, had been re-employed following retirement to their previous position and he considered that he was being treated differently because of his trade union activities. Eventually Mr Rice agreed to take up the offer of the Band 5 Paramedic role but did so under protest pending the outcome of a  grievance against the Trust’s  stance.    

The grievance hearing took place before two of the Trust’s officers, a  Mr Forrest and a Mr Blezzard. Mr Rice’s grievance was rejected. It was this rejection that came to form the basis for Mr Rice’s claim that was heard by the ET: was the rejection of grievance for the sole or main purpose of penalising Mr Rice for taking part in trade union activities?   

The ET said it  did “not accept the reasons put forward by [the Trust] for the rejection of the request to return on a Band 6 at the appeal” and set out 15 reasons for this.  It  said that “in rejecting [the Trust’s] reasons we find that [Mr Rice’s]  trade union activities could be the only plausible explanation for his treatment.”   

Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 ("the 1992 Act"), so far as relevant, provides:
   
"146. Detriment on grounds related to union membership or activities
(1) A worker has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place for the sole or main purpose of -
(b) preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so, …"

 Section 148 of the 1992 Act provides:
   
"148. Consideration of complaint
(1) On a complaint under section 146 it shall be for the employer to show what was the sole or main purpose for which he acted or failed to act.
…"   
These provisions were considered by the Court of Appeal in the case of Serco Ltd v Dahou [2016] EWCA Civ 832, [2017] IRLR 81 where  Laws LJ made these points (in paragraphs 29, 30, 34 and 35:
  • In considering the (sole or main) purpose of an employer's act or omission what matters are the  factors operating on the mind of the relevant decision-maker:
  • under section 146 it is for the employee to raise a prima facie case
  • if a prima face case is raised it is then for the employer to show the purpose of the act complained of and therefore to prove what were the factors operating on the mind of the decision-maker.
  • It is for the ET to determine what the main purpose was of each relevant decision-maker, as a matter of fact, on the basis of evidence and permissible inferences
  • A tribunal  has to consider  the explanations given by the respondent 
It was tacitly accepted that Mr Rice had raised a prima facie case. Choudhury P said that it would have been difficult for the Trust  to argue otherwise: Mr Rice  had for some time been a trade union official. He was, at around the time of this request, seeking and obtaining re-election, and had asserted that the only two people who had not been permitted to return to the same grade following retirement were trade union representatives. It seemed to Choudhury P that such matters would probably suffice to establish a prima facie case.

The EAT held that the ET had  nevertheless failed sufficiently to grapple with the Trust’s reasons for acting as it did: Choudhury P accepted Ground 1 of the Trust’s appeal. However Choudhury P also upheld Ground 2: “procedural irregularity and unfairness” at the heart of which was the submission that the case had been decided on a basis which had not been put to the Trust’s witnesses[1].

The Trust relied on what HHJ Hand QC said in NHS Trust Development Authority v Saiger [2018] ICR 297 at paragraphs 80, and 99 to 102 which can be summarised thus:
  • An appeal to the EAT lies on any question of law
  • Under CPR r 52.21(3)(b), an appeal could be allowed were the decision in question was "unjust because of a serious procedural or other irregularity in the proceedings in the lower court".
  • Although not expressly provided for in relation to the EAT it could not be doubted that a serious procedural irregularity on the part of the ET would amount to an error of law and thus provide a basis for an appeal
  • For an appeal to succeed on this basis the EAT had to be able to conclude that it would be "unjust" to allow the decision of the  ET to stand.

HHJ Hand said that it would not usually be a fair procedure for a tribunal to reach conclusions about a factual scenario if that factual scenario had not been put.

“If conclusions of dishonesty are to be reached, it will usually be unfair to reach them unless the person likely to be condemned has had an opportunity to deal with them. If a tribunal is minded to reach a conclusion that is purely inferential and such a conclusion is neither obvious nor has it been advertised in that form at any point in the proceedings, then the tribunal must give the parties an opportunity to address the matter.”

 In characterising what it was that amounted to  the error of law  in such circumstances HHJ Hand set out three possibilities:-

  • the ET might err by reaching a conclusion, which could not  be supported by, or was contradicted by, the evidence: that was one way of characterising the underlying error in Browne v Dunn [1893] 6 R 67 where, the evidence of the defendants not having been challenged, the jury had no evidence upon which they could have reached the conclusion they did
  • Alternatively the error might be that of reaching a perverse conclusion: Browne  could be looked at  in that way. 
  • Finally it might be that there was inadequate reasoning for the decision.
HHJ Hand said these were all different species of errors of law. They might also be serious procedural irregularities but they were  not only serious procedural irregularities.  The fact that evidence had not been challenged specifically would not always preclude a tribunal from reaching a particular conclusion: the so called “rule” in Browne v Dunn was not absolute. Some recognition of the modern context was necessary. When it was clear from the variety of written material that nowadays attends a civil trial or a hearing in the employment tribunal what the issues in a particular case were it might not be necessary for each matter to be expressly put. Whether it would be erroneous for the tribunal to reach a particular conclusion in the absence of any particular matter being put would depend on the circumstances of the case.  So it was not necessarily a matter of simply scrutinising what actually was put. It would involve a consideration of all of the evidence, how the matter stood at the end of all of the evidence and what the parties and the tribunal should have recognised from that material was still in issue in the case. Thus not every failure to put every particular aspect of a case amounted to a serious procedural failure. The context might suggest that looked at overall it was perfectly fair, everybody knew where they were heading, what was at issue, what the case being put forward was and what the answer to it should be.

In Rice two points were successfully relied upon by the Trust in support of the contention that Mr Rice’s case had not been properly and sufficiently put and that a serious procedural failure had been the result of this.

Firstly the ET had found that Mr Blezzard (who, as noted above, comprised the grievance panel with Mr Forrest)  had agreed to investigate examples given by Mr Rice of managers who had retired and returned. There was no reference to such an agreement in the minutes of the grievance meeting nor in Mr Rice’s witness statement nor in his pleaded case. The assertion arose for the first time in Mr Rice’s oral evidence. It had not been put to the Trust’s witnesses by either Mr Rice or the Tribunal.  On behalf of Mr Rice it was pointed out that Mr Forrest's unambiguous evidence was that he himself did not undertake any further investigation and it was submitted that, given that there had been no evidence presented to the ET that Mr Blezzard undertook an investigation, it was entirely reasonable for the ET to rely on the  fact that there was no such investigation.

Choudhury P rejected the argument put on behalf of Mr Rice. It was one thing to conclude that there was no investigation into the position of other managers, it was quite another to conclude, as the ET had, that there was a failure to conduct such an investigation having agreed that one would be conducted. The latter conduct could denote a degree of culpability, or antipathy towards Mr Rice, which the former did not. There was no material to suggest that there was any evidence that Mr Blezzard had actually agreed to conduct an investigation. Nor was there any material   to suggest that this was a matter put to the Trust’s witnesses.

Secondly the ET had held that there was evidence that the Trust  was willing to "bend the rules" in relation to other managers. Again this had been asserted in Mr Rice’s oral evidence but, it appears,  did not feature in his witness statement nor in the ET1.  Nor had it been put to the Trust’s witnesses. For Mr Rice it was argued that Mr Forrest had stated that he had not known what had happened to other people subject to the "retire and return" policy.  However there was  no evidence to suggest that the Trust 'bent the rules' in relation to other managers.

Choudhury P said that as a matter of fairness it was to be expected that such allegations were to be put to the Trust’s witnesses and for them to have an opportunity to deal with them before the ET proceeded  to rely upon the allegations. The ET was not required to note down every allegation made and the respondent’s  witnesses' responses. But it was different  where the ET took the express step of relying upon a particular allegation. In particular Choudhury P said that the second allegation was a serious one,  of bending the rules in relation to one group but not in respect of Mr Rice. The parties were entitled to expect that the evidential basis for the finding relied upon existed  and was  set out.

In this respect there had been unfairness. Given the seriousness of the allegations underlying the matters  with which they dealt  this unfairness reached the threshold of a serious procedural irregularity within the meaning of the Saiger case. The ET’s conclusions in respect of those matters contributed to its overall conclusion that trade union activities were the only plausible explanation for Mr Rice’s treatment. As such the ET  had erred in law.

Conclusions

Rice is a helpful clarification of the law on the requirement to put the case and an example of how it operates. It is useful  from the point of view of both claimants and respondents and it illustrates that the principles apply irrespective of where the formal burden of proof lies with respect to any particular point. In this case, once a prima facie case was established by the claimant, the burden lay on the respondent Trust but it was not suggested that this made any difference.
  • The Grounds of Claim should set out the specific contentions relied upon by the claimant in contending that the respondent (through its employees) acted as it did for the relevant proscribed reason including reference to any particular statements or action (or inaction).   
  • The Grounds of Resistance can (and should) then set out the respondent’s  positive case in answer.   If, for some reason, the claimant has not already done so in the Grounds of Claim then the case needs to be explained in the claimant’s witness statement[2].
  • Depending on the circumstances (including of course whether the ET has made an order for supplementary statements- only rarely done) the respondent may be well advised to serve a supplementary statement for points that have arisen only for the first time at the witness statement stage.  Generally the safer course is to do so.
  • It is no longer the case that every point upon which a witness’s  evidence is challenged has to be put in cross examination. The risks of not challenging a particular point may be lessened where the aspect which is in issue has been ventilated “on paper” in the statements of case and witness statements, particularly where that aspect is not at the core of the case. But even if the respondent has been afforded the opportunity to answer the point beforehand (and all the more so if it has not)  it will be risky for a claimant. The ET  may reach an unsupported  finding adverse to the respondent if the case has not been put to the respondent’s witnesses. In a complicated case and in the heat of the ET hearing the significance of a particular issue may not be apparent to either party. The danger (for both sides) is that the ET may perceive things in a different way and attribute greater importance to a point than either party does.
  • When in any doubt, put the relevant questions. It is much easier (and cheaper) than an outing to the EAT to argue about:-      
    • How the ET’s finding’s should be understood   
    • What was put (and was not put)
    • How critical the point in issue was to the overall result
  1. He also upheld three other grounds of appeal
  2. Even if it has been pleaded it (of course) still needs to be explained in the witness statement.
Posted: 09.04.2019 at 16:43
Tags:  Comments  On Employment
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