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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> University Hospital Coventry & Warkwickshire NHS Trust v Burns (PRACTICE AND PROCEDURE) [2020] UKEAT 0242_19_0402 (4 February 2020) URL: http://www.bailii.org/uk/cases/UKEAT/2020/0242_19_0402.html Cite as: [2020] UKEAT 0242_19_0402, [2020] UKEAT 242_19_402 |
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| At the Tribunal | |
Before
HIS HONOUR JUDGE AUERBACH
(SITTING ALONE)
| APPELLANT | |
| RESPONDENT |
Transcript of Proceedings
JUDGMENT
| For the Appellant | MR ISLAM-CHOUDHURY (of Counsel) |
| For the Respondent | MS F BURNS (The Respondent in Person) |
SUMMARY
PRACTICE AND PROCEDURE
The Claimant, who was a litigant in person, was dismissed while on long-term sickness absence. She presented claims of unfair dismissal and disability discrimination (sections 15 and 21). It was a part of her case that there were other roles available that she would have been well enough to carry out. When she presented her claim she referred to her appeal against dismissal, which had yet to be heard. Subsequently the appeal was heard and dismissed. The grounds of resistance then referred to the dismissal decision and the appeal hearing and outcome. Subsequently there was a case management preliminary hearing at which the issues in the case were considered.
The Tribunal hearing the full merits hearing, conducted it on the understanding that the disability discrimination claims extended to the appeal outcome. However, it became apparent from the way in which the Claimant was cross-examined, that the Respondent's position was that those claims were confined to the original decision to dismiss. The Tribunal raised the issue, and asked the Claimant whether she wished to make an application to amend. The Claimant did so, and the application was granted. The Respondent applied for the Tribunal to recuse itself on the basis that, in its handling of this aspect, and the way that it had questioned the manager who heard the appeal about issues relating to disability, it had descended into the arena. The Tribunal refused to recuse itself.
The Respondent's appeal against both the amendment and recusal decisions was dismissed. Given the particular way in which this litigation had unfolded, the Tribunal had not shown apparent bias. Its questions to the witness were premised on its understanding that there were live disability discrimination claims in relation to the appeal decision, and sought fairly to elicit and clarify his evidence on matters relating to that. Its approach to the emergence of an issue regarding the scope of the disability discrimination complaints was fair to both sides. Its decision on the amendment application was reached by a proper application of Selkent principles, including taking account of the late stage at which it was made, how that had come about, and fairly addressing the potential prejudice to the Respondent of granting it at that stage.
HIS HONOUR JUDGE AUERBACH
The Background and Procedural History
"There have previously been discussion regarding potential adjustments, but it is alleged that these were limited due to weekend only work pattern. However, having recently viewed the NHS jobs website and vacancies available, there were options available such as an emergency receptionist which is an administration role and is available over weekends and is offered at the same level of band 2, which I would have been more than happy to try as a temporary measure until fully fit to return to my HCO role on ward 21 medicine."
"11. There were no weekend only administrative role or indeed any other weekend only light duty posts available. That said and due to the length of the claimants absence from work as well as the fact that she had no predicted return to work date, the respondent determined to hold an ill-health capability hearing to consider the claimant continuing employment.
13. At the hearing the claimant suggested that she could return to work as a Healthcare Assistant on the labour ward as she perceived that the work on that ward was less physically demanding than the work she did on ward 21.
14. Ross Palmer adjourned the hearing to consider his decision. In relation to the claimant's suggestion that she could work on the labour ward, Ross Palmer determine that this option was not feasible due to the physical demands of a Healthcare Assistant role on any ward, including the labour ward."
"17. At the appeal hearing the claimant explained that since the ill-health capability hearing on 7 July 2017 she had suffered further problems with her health meaning that until 17 November 2017 she had been signed off as unfit to carry out her Monday to Friday administrative role. the claimant also explained that she could not provide a certain return to work date for her Healthcare Assistant role with the respondent but she hoped she would return in around late January 2018.
18. The possibility of redeployment was discussed at the appeal hearing and in particular a temporary re-deployment into an administrative (receptionist) role in the Emergency Department, something which the claimant had raised in her grounds of appeal. Nigel Kee expressed concerns about the claimant's ability to carry out such a role due to the heavy lifting the post required. The claimant explained that she was no longer interested in undertaking an administrative role on a temporary basis; rather, she wished to return to her Health Assistant role. the claimant asked that she be "put back on the books" and remained off from work sick until she was fit to return.
19. Nigel Kee determined to dismiss the claimant's appeal. Nigel Kee subsequently wrote to the claimant to confirm his decision."
"25. In relation to claimant's allegation that the respondent failed to make reasonable adjustment ahead of dismissing her, the respondent avers that ahead of dismissing the claimant, it considered whether there was a suitable light duty role that she could undertake until her health allowed her to return to her post of Healthcare Assistant. The respondent duly searched for suitable roles in line with the claimant's stipulation that she was only available to work Saturdays and Sunday (due to her alternative employment with a different employer Monday to Friday). The respondent was not able to find suitable weekend only light duties role.
26. It is denied that at the relevant time there was a suitable Emergency Receptionist role available. It is accepted that an Emergency Reception vacancy did exist, but it was not suitable due to physical demands of the role. In addition, the post required applicants to be flexible over the hours that they worked and to be available for work on any day between Sunday and Saturday. The role was therefore not suitable for the claimant who was only available to work on Saturdays or Sunday."
"5 Disability
5.1 was the claimant a disabled person in accordance with the Equality Act 2010 ("EQA") at all relevant times because of pain and restricted movement in her right shoulder and impingement in her left shoulder?
6 EQA, Section 15, discrimination arising from disability
6.1 Did the claimant's sickness absence from March 2017 arise in consequence of
the claimant's disability?
6.2 did the respondent treat the claimant unfavourably by dismissing her because of that sickness absence?
6.3 if so, has the respondent shown that dismissing the claimant was a proportionate means of achieving legitimate aim?
6.4 Alternatively, has the respondent shown that it did not know, and could not reasonably have been expected to know, that the claimant had a disability?
7 Reasonable adjustments ("EQA") section 20 and 21
7.1 Did the respondent not know and could it not reasonably have been expected to know the claimant was a disabled person?
7.2 A PCP is a provision, criterion or practice. Did the respondent apply the following PCPs?
(a) The requirement for the claimant to return to her substantive role.
(b) Its policy with to regards to absence management which caused the claimant to be dismissed because she was unfit to return to her substantive role within the time scales envisages by the respondent policy/procedure.
Did any such PCP put the claimant at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled at any relevant time, in that the pain and restricted movement and lack of weight bearing in the claimant's shoulders, particularly her right shoulder, meant that she was unable to perform the essential functions of her substantive role at any point prior to her dismissal.
(c) If so, did the respondent know or could it reasonably have been expected to know the claimant was likely to be paid for any such disadvantage?
(d) If so, were the steps that were not taken that could have been taken by the respondent to avoid any such disadvantage? The burden of proof does not lie on the claimant. However, it is helpful to know what steps the claimant alleges should have been taken and they area identified as follows:
(i) provided with adequate time in which to recover by extending the timescales envisaged by the relevant policy applied by the respondent within which she was expected to be fit to return to her substantive role:
(ii) place the claimant into a vacant job role, just the role of emergency receptionist, that may have available for her to perform within her normal hours( weekends only) and was suitable for her taking into account the limitation arising from her "disability";
(iii) the creation of a shift roster or rota elsewhere within the Trust that facilitated a requirement for someone to work a weekend shift only that would have been available for the claimant to work and was suitable for the claimant to take into account the limitations arising from her "disability".
(iv) if so, would it have been reasonable for the respondent to have to take those steps at any relevant time?
"Section 15 Complaint
23. It is denied that the respondent treated the claimant less favourably by dismissing her because of her sickness absence as alleged, or at all.
24. Should, which is denied, the Tribunal find that in dismissing the claimant the respondent treated her less favourably because of her sickness absence, the respondent will say that the claimant's dismissal was in all the circumstances a proportionate means of achieving a legitimate aim. In particular the respondent will say: -
a. The legitimate aim is patient safety which is adversely affected by sickness absence and/or;
b. financial sustainability, which is adversely affected by sickness absence and:
c. the claimant's dismissal is in all the circumstances proportionate in that there is no less discriminatory way of achieving the legitimate aim
Section 20 and 21 Complaint
Generally
25. In relation to claimant's allegation that the respondent failed to make reasonable adjustment ahead of dismissing her, the respondent avers that ahead of dismissing the claimant, it considered whether there was a suitable light duty role that she could undertake until her health allowed her to return to her post of Healthcare Assistant. The respondent duly searched for suitable roles in line with the claimant's stipulation that she was only available to work Saturdays and Sunday (due to her alternative employment with a different employer Monday to Friday). The respondent was not able to find suitable weekend only light duties role.
26 It is denied that at the relevant time there was a suitable Emergency Receptionist role available. It is accepted that an Emergency Reception vacancy did exist, but it was not suitable due to physical demands of the role. In addition, the post required applicants to be flexible over the hours that they worked and to be available for work on any day between Sunday and Saturday. The role was therefore not suitable for the claimant who was only available to work on Saturdays or Sunday
The PCP
27. "The requirement for the claimant to return to her substantive role" (paragraph 7.2 (a) Judge Britton's Order dated 27/09/18).
a. The respondent says that the claimant was required to return to her substantive role, or to another suitable role, within a clear and reasonable timeframe.
The adjustments
28. "…provided with adequate time inn which to recover by extending the timescales within which she was expected to be fit to return to her substantive role."
(paragraph 7.2 (d)(i) Judge Britton's Order dated 27/09/18).
a. At both capability hearing and her appeal hearing, the claimant confirmed that she could not provide a firm date as to when she would be fit to return to work. The respondent avers that extending the timescales for recovery for an undefined/indefinite period is not a reasonable adjustment.
29. "…place the claimant into a vacant job role,…suitable for her taking into account the limitations arising from her "disability""(paragraph 7.2 (d)(ii) Judge Britton's Order dated 27/09/18).
a. The respondent considered whether it was possible to redeploy the claimant into light duties role and determined there was no suitable role available. At the appeal hearing the specific issue of the emergency receptionist role was discussed. The claimant advised that she was not interested in undertaking this or any other light duties role adding she simply wished to be "put back on the books" and remain off sick from work until she was a fit to return.
b. Further, or in the alternative, it is respondent current understanding that the claimant was signed off as unfit to work from December 2016 until March 2018 in relation to her telephone advisor role Monday to Friday employer. That said the respondent avers that the claimant was not medically fit to undertake a light duties role with any employer in this period. The claimant has refused to voluntarily confirm the dates of and reasons for her sickness absence in respect of her Monday to Friday employment. According, the respondent has made an application for an Order for the disclosure of this information.
30. "… the creation of shift roster or rota elsewhere within the Trust that facilitated a requirement for someone to work a weekend shift only that would be available for the claimant to work and was suitable for the claimant to take account the limitation arising from her "disability""....paragraph 7.2 (d)(iii) Judge Britton's Order dated 27/09/18).
a. The Respondent considered whether it was possible to redeploy the claimant into a light duties role and reasonably determined there was no suitable role available.
b. Further, or in the alternative, it is respondent's current understanding that the claimant was signed off as unfit to work from December 2016 until March 20128 in relation to her telephone advisor role with Monday to Friday employer. That said, the respondent avers that the claimant was not medically fit to undertake a light duties role with any employer in this period. The claimant has refused to voluntarily confirm the dates of reasons for her sickness absence in respect of her Monday to Friday role. Accordingly, the respondent has made an application for an Order for the disclosure of this information."
The Full Merits Hearing and the Decisions Under Appeal
"11. At the commencement of the final hearing (listed from 5 to 12 August 2019) Mr. Islam-Choudhury had prepared a draft agreed list of issues. The Tribunal asked from what date the respondent had conceded disability. Mr. Islam-Choudhury said it was from 24 December 2016 (the date on which the claimant first went off work sick with shoulder pain) but knowledge was not admitted for the purposes of either the claimant's complaints under section 15 EqA or section 21 EqA. He also conceded that (subject to knowledge) the claimant's dismissal for ill-health capability was unfavourable treatment and dismissal was for something arising from disability (namely 'the claimant's sickness absence'). Subject to knowledge therefore the respondent's defence to that claim was confined to legitimate aim and proportionality. He also applied for and was granted permission by the Tribunal to amend the response to include a third legitimate aim ('Employees should be able to perform the essential functions of their substantive roles.')
12. In relation to the claimant's dismissal Mr. Islam-Choudhury had reproduced in the draft agreed list of issues the wording used by EJ Britton (see paragraph 7 above).
13. It was in the circumstances above therefore that the tribunal approached its prereading. It read the claimant's complete letter of appeal dated 27 July 2017 and appeal outcome letter which were included in the agreed bundle of documents and the respondent's bundle of witness statements which included that of Mr. Kee (who had heard and rejected the claimant's appeal). He was evidently to attend the final hearing to give evidence. The claimant's complete letter of appeal dated 27 July 2017 had raised a number of points which included ' Disability discrimination, as technically temporarily disabled until confirmed otherwise' and unfair treatment 'as treatment ongoing/not completed and specialist has not given opinion yet or advised of plan prior to the panel making their outcome decision'. The appeal outcome letter of 30 November 2017 had noted the claimant had been unfit for work for almost twelve months but did not address the claimant's point about disability discrimination although Mr. Kee's witness statement said he had decided to dismiss 'every ground' of the claimant's appeal.
14. It is trite law that in relation to a claim of unfair dismissal a tribunal must consider whether the disciplinary process as a whole is fair (Taylor v OCS Group Ltd [2006] IRLR 613 CA).
15. In Baldeh v Churches Housing Association of Dudley & District Ltd [2019] UKEAT 0290 His Honour Judge Shanks held in relation to a section 15 EqA complaint and a complaint of unfair dismissal (under section 103A ERA) the outcome of an appeal against dismissal was integral to the overall decision to dismiss (paragraph 15) and that in that case the tribunal should have considered the appeal decision as part of the overall decision to dismiss the claimant and decided whether it was itself discriminatory. In that case an earlier tribunal had identified one act of unfavourable treatment namely the claimant's dismissal in the case management summary of a preliminary hearing. Further, a failure by a respondent to make reasonable adjustments is relevant to objective justification under a section 15 EqA complaint (see Paragraph 5.21 of The Code of Practice on Employment (2011) ('the Code') –'If an employer has failed to make a reasonable adjustment which would have prevented or minimised the unfavourable treatment, it will be very difficult for them to show that the treatment was objectively justified'.) and the duty to make reasonable adjustments applies at all stages of employment including dismissal (Paragraph 6.8 of the Code).
16. The tribunal therefore formed the initial view that the appeal was part and parcel of the claimant's dismissal and relevant to all her complaints."
"18. The claimant was cross-examined by Mr. Islam-Choudhury on 5 and 6 August 2019. She confirmed she had presented her claim to the tribunal on a precautionary basis because she understood there were time limits which ran from her dismissal. She said she had not told EJ Britton at the preliminary hearing she was complaining about the way the respondent had handled her appeal and that it was discriminatory because she did not see that was the place to do so and she had found him 'quite direct'. She accepted Mr. Kee had dealt with all the bullet points in her appeal but said she did not agree with the outcome and later agreed he had dealt with her appeal in a fair and reasonable manner but repeated that she did not agree with the outcome.
19. Mr. Kee attended the hearing on 8 August 2019 and was cross examined by the claimant. She began by asking him what experience he had had of managing capability hearings when the employee concerned was disabled and later whether he was happy due process had been followed and whether he had authority to change the outcome of dismissal and reinstate her. He was also asked about the evidence he had about reasonable adjustments and whether disability had been considered and the nature of the hearing he had undertaken and whether he had before him or sought to obtain new evidence."
"21. After the claimant had concluded her cross-examination of Mr. Kee and in the light of the view it had formed (as set out paragraph 16 above) and in accordance with Rule 41 the members of the tribunal each asked him as decision-maker in relation to the appeal questions in order to clarify what training he had had about disability; whether he thought he was conducting a rehearing or review of Mr Palmer's decision to dismiss; whether further investigations would have been carried out if new information emerged; whether or not he had considered the disability discrimination point raised by the claimant in her appeal and if he had not done so was this because it was not a point raised before the dismissing officer Mr. Palmer; and whether he had regarded the disability discrimination point as new information which warranted further investigation by him. Mr Kee did not decline to answer questions put to him and Mr. Islam-Choudhury did not object to any question put by the tribunal or (when asked if he wished to do so) conduct any re-examination of Mr. Kee, and told the tribunal that concluded the respondent's case.
22. Having considered Mr Islam-Choudhury's cross-examination of the claimant about the appeal the tribunal became unsure whether the respondent had had regard to Baldeh. The tribunal therefore took the opportunity prior to written and oral submissions by the parties to provide Mr Islam-Choudhury with its copy of Baldeh (an authority of which he told the tribunal he had not hitherto been aware) with paragraph 15 highlighted.
23. Mr. Islam-Choudhury made his oral submissions later that day. He first addressed the issue of knowledge in the context of the claimant's section 15 EqA complaint .His written submissions (prepared the previous afternoon) stated it was irrelevant whether Mr. Kee had actual or constructive knowledge because the appeal was heard after the presentation of the claim and the claimant had not amended the claim or put the tribunal on notice that she wished to allege his decision was discriminatory; therefore the issue of knowledge was relevant only to Ms. Nurse (the claimant's line manager) and Mr. Palmer (the dismissing officer) . The claimant had had the opportunity to clarify on what matters in the appeal she wanted to rely at the preliminary hearing before EJ Britton on 6 September 2018 but had not referred to the appeal. The tribunal sought clarification from which it emerged that although Mr. Islam-Choudhury accepted that in relation to the unfair dismissal claim the appeal was integral he did not accept that was the case as far as disability discrimination was concerned because the last act complained of was the dismissal by Mr. Palmer on 7 July 2017. He submitted this case could be distinguished from Baldeh because in the latter the claimant (also a litigant in person) had referred to discrimination on grounds of disability and recited the appeal and the appeal decision letter in her claim form. The tribunal asked him why he had not then objected to what (on his analysis) were irrelevant questions posed by the tribunal to Mr. Kee. He said it was up to him to decide to do so if he wished; he was reserving his position and to do so at the time might have been more time consuming. He then went on to conclude his oral submissions before the lunch time adjournment.
24. After the lunch time adjournment and before the claimant made her submissions the tribunal referred her to Baldeh and gave her a copy (highlighted as for Mr. Islam-Choudhury). It asked the claimant to clarify if she wanted the tribunal to consider the appeal decision as part of the overall decision to dismiss her and whether it was discriminatory as part of her section 15 EqA claim and/or part of the respondent's alleged failure to comply with its duty to make reasonable adjustments under section 21 EqA. She confirmed she did.
25. The tribunal informed her that in that case she would have to apply to amend her claim to include those matters in the absence of any reference to the appeal in her claim form and reminded her of the contents of Guidance Note 1 which she had read earlier in connection with her application to amend her claim to include a complaint under Section 19 EqA. The tribunal expressed its regret at this turn of events at such a late stage in the proceedings. Mr. Islam-Choudhury observed that an application to amend could be made at any time before judgement was issued.
26. The claimant then made an application to amend and said she had not been aware as a litigant in person hitherto that the whole process would not be considered by the tribunal as far as her disability discrimination complaints were concerned. She did not know that after the issue of her claim (which she had presented because she was aware there were time limits) there was any subsequent action for her to take.
27. Mr. Islam-Choudhury objected to the application to amend. He submitted the claimant's witness statement did not deal with the appeal. If an unrepresented claimant brought such a claim, they might presume incorrectly that an appeal was included. However, in this case there were two aspects which pointed against leniency. Firstly, the claimant did have a preliminary hearing before EJ Britton, and he would have explored all such issues precisely. The appeal hearing had been in 2017. The preliminary hearing was in 2018. Secondly if the claimant had erroneously thought this was a technical amendment there would be a proper evidential basis for it in her witness statement. It had only arisen because he had taken the point. If parties changed their positions where they realised where the other party was coming from there would be a never-ending circle of amendments. There was prejudice to the respondent; he would need to cross-examine the claimant further and Mr Kee would have to be recalled. The timescale for the hearing would be prejudiced and the production of judgement would be delayed, and the relevant facts had taken place as long ago as July 2017.
28. The claimant responded that she believed that because she was complaining about the way the respondent's attendance policy had been applied to her that would cover everything which happened under that policy. She thought everything was covered in one application to the tribunal. It would be detrimental to her case if the appeal was not dealt with as part of her disability discrimination claims. The tribunal decided to grant the application and gave oral reasons for its decision.
29 Mr. Islam-Choudhury asked for and was given a short adjournment in order to consider the way forward. He then asked that the claimant provide further information about what she alleged Mr Kee had or had not done so that he could prepare further cross-examination of the claimant. The tribunal ordered her to do so by 9 August 2019 and gave the respondent leave to amend the response and for Mr. Kee to prepare a supplementary witness statement (if so advised). The tribunal did not envisage that these steps and any further evidence and submissions could not be concluded in the remaining time available and proceedings ended for that day."
"35. However, under section 123 (1) (b) EqA tribunals have the power to extend time where they consider it would be just and equitable to do so. It is for the claimant to persuade us to exercise our discretion in her favour. She has discharged that burden. She is a litigant in person and did not realise until 8 August 2019 that the appeal was not included as part of her complaints which she understood to encompass the application to her of the respondent's attendance policy in its entirety including appeal. She had not appreciated that she could have brought up the appeal with EJ Britton at the preliminary hearing. There was no evidence before us about what was explored at that hearing other than the record of it. She has acted as soon as she became aware of the situation. There is no evidence that the cogency of Mr. Kee's evidence has been affected by the delay. The prejudice to the claimant would be substantial; she will be deprived of the opportunity to have the entirety of the application of the respondent's attendance policy considered by the tribunal as part of her disability discrimination complaints (as she believed it would do) but truncated at the point of dismissal. Any prejudice to the respondent however (other than potential delay and legal costs) can be mitigated by the giving the respondent the opportunity to amend its response in relation to the appeal (which already pleaded the fact of the appeal by Mr. Kee though the claimant's claim form was silent about it) and the preparation of a supplementary witness statement by him.
36. As far as the manner and timing of her application is concerned the tribunal has accepted the claimant's explanation why it was made at this very late stage. Although she (like the claimant in Baldeh ) complained of unfair dismissal and the unfavourable treatment under section 15 EqA was dismissal and under Baldeh the outcome of an appeal against dismissal is integral to the overall decision to dismiss, her claim form had predated the appeal conducted by Mr. Kee and she had not known until this point in the proceedings that amendment was necessary to include this. We do not consider that omission of the appeal from the claimant's witness statement is a relevant circumstance which we should take into account against the claimant as submitted by Mr. Islam-Choudhury. Although she did not raise any procedural complaints about the appeal, she had made it clear under cross examination that she did not agree with the outcome and she then cross-examined Mr. Kee about his conduct of the appeal as set out in paragraph 17 above.
37. The tribunal reminds itself that the balance of hardship and injustice is a balancing exercise. It has decided it would be just and equitable to extend time and that that is a forceful (though not determinative) factor in favour of granting permission to amend. The tribunal concludes that the hardship and injustice on the claimant is greater if the amendment was refused than to the respondent if were granted. The application to amend is therefore granted."
"40. Mr. Islam-Choudhury submitted that the factual basis upon which he made his application was at that on day two of the hearing he had cross-examined the claimant and, on the appeal, and she had conceded it was fair and reasonable in the context of the dismissal. He had put it to her that it was not part of her claim because her appeal had been launched on 23 November 2017 and she had not suggested that the appeal was part of her disability discrimination claim. EJ Britton said that at the preliminary hearing her claim had been explored at great length and detail and she had not said that the appeal was part of her claim of disability discrimination. The tribunal was therefore alive to the fact that this was an argument which the respondent was running. When the appeal officer was cross-examined by the tribunal panel a number of questions were asked which went to the issue of whether the claimant had been discriminated against. The tribunal had acted as the claimant's advocate beyond ensuring "equality of arms". Any reasonable person would have found that the tribunal had gone beyond its remit when embarking on that line of questioning because immediately afterwards although there have been no objections the witnesses informed him that they felt the tribunal had become the claimant's advocate. He was an experienced practitioner and was familiar with the way in which tribunals conducted themselves. He was aware that it was the tribunal's duty to ensure equality of arms and that the claimant's case was properly put but he was not confident that he could say that here because it was not part of the case that the claimant had put; in fact in his closing submissions he made that very point. The claimant had never asserted in her claim form or in the proceedings that the appeal was discriminatory. She had provided a witness statement and had not made the allegation in it either. She had conceded in reply to his cross-examination that although she did not agree with the outcome, the appeal had been conducted in a reasonable and fair manner and that the respondent had been fair to dismiss her for capability. The tribunal had identified the discrimination complaint as extending to the appeal and had acted quite improperly by inviting the claimant to cure a defect in her claim. The tribunal had descended into the arena rather than ensure equality of arms. He asked what a claimant was to do when the tribunal had embarked on detailed questions and then asked, "Do you wish to amend your claim to include what you have heard?" A fair-minded and informed observer would have formed the view that the tribunal was unconsciously biased. It was not an application he made lightly but what had persuaded him was that after the tribunal had invited the claimant to make an application to amend the immediate reaction of his witnesses was that the tribunal was biased. He volunteered that they were not objective but were informed observers. He had taken instructions this morning and the result was this application.
41. The claimant opposed the application. She said she appreciated the assistance she had been given by the tribunal in directing her to the Code of Employment 2011. She had been upset while giving her evidence and just said yes when asked if the procedure was reasonable but had limited knowledge of employment law and had made a plethora of errors in her witness statement; she had not known what to do and there were lots of matters she did not address. She had been given a fair opportunity to put her case and had been grateful for the opportunity to understand the process and address the issues. She repeated that she had regarded her complaints as not being segregated but all part of one process.
42. The test for apparent bias is set out in Porter v Magill [2002] UKHL 67 formulated by Lord Hope of Craighead as follows: 'The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.'
43. Such an observer would be informed of all the relevant circumstances above which include the tribunal's reasoning, the way the final hearing had progressed and the crystallisation of the approach the respondent was taking to the appeal as far as the ambit of the claimant's disability discrimination complaints concerned. They would have in mind the overriding objective (Rule 2 of the Employment Tribunals Rules of Procedure 2013) to which tribunals are required to seek to give effect in interpreting and exercising any power given to it under those Rules. The overriding objective of the Rules is to enable tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable –
'(a) ensuring that the parties are on an equal footing;
(b) dealing with cases in ways which are proportionate to the complexity and
important of the issues;
(c) avoiding unnecessary formality and seeking flexibility in the proceedings;
(d) avoiding delay, so far as compatible with proper consideration of the issues;
and
(e) saving expense.'
They would also be aware of the tribunal's powers under Rule 41 of the Employment Tribunals Rules of Procedure 2013 to put questions to witnesses and to permit amendments. They would know that the former reflects the long standing practice that the tribunal gives assistance to unrepresented parties (like the claimant) and the latter can be made at any time provided the parties have been given the opportunity to set out the grounds of any such application and make any objections. They will also be aware that if assistance is provided the tribunal must not overstep the mark and act (or give the impression of) acting for that party because if it did so it would not be deal with a case fairly or justly.
44. Having regard to those circumstances such an observer would not have concluded either from the fact the tribunal questioned Mr Kee or the content of the questions or the way they were posed to Mr. Kee at the material stage in the proceedings or the way the tribunal approached the question of the amendment of the claimant's claim that there was a real possibility that the tribunal was biased. The respondent's witnesses are neither as objective nor as well-informed as the hypothetical fair-minded and informed observer. Such an observer would not have considered the tribunal had descended into the arena and acted as the claimant's advocate, thus going beyond ensuring "equality of arms". The application to recuse is therefore refused."
The Appeal - Arguments, Discussion, Decision
"Essentially, the Respondent's case is that when the Claimant had not pursued an allegation of discrimination in respect of the appeal against dismissal, it was not for the Tribunal to; (1) question the appeal officer Mr Kee on this basis to set up the basis of such an allegation and; (2) to suggest the need for an amendment and invite the Claimant to amend the claim after the Respondent's closing submissions and; (3) then to grant the amendment. In effect the Tribunal had become the Claimant's advocate and rewritten the basis of the claim and descended into the arena."
Recusal Decision – Apparent Bias
"41. The Tribunal may regulate its own procedure and shall conduct the hearing in the manner it considers fair, having regard to the principles contained in the overriding objective. The following rules do not restrict that general power. The Tribunal shall seek to avoid undue formality and may itself question the parties or any witnesses so far as appropriate in order to clarify the issues or elicit the evidence. The Tribunal is not bound by any rule of law relating to the admissibility of evidence in proceedings before the courts."
"28. First, we accept entirely that the cases to which we have been referred, with the exception of McNicol are cases which describe the adversarial procedure as it was some time ago, in courts in which the full rigour of court rules and procedure applies and in which the parties were represented. Tribunals were designed to provide swift, informal justice to ensure access to justice with a degree of simplicity that would assist ordinary people, with no particular legal expertise, to vindicate their rights. It is part of the culture of a Tribunal that it will become familiar with people who have no legal training and who may find the whole process of going to law distressing and certainly difficult to navigate without having any experienced person to turn to. Inevitably it will seem that they are at a disadvantage when confronted by the legal team instructed by another party. A Tribunal, given its origins, has to be sensitive to that. This may, however, lead to a fudging of the boundary which must be kept between that which a Tribunal is obliged to do, that which it is not obliged to but can do, and that which it has no right to be doing at all. The proceedings are not inquisitorial, as this Tribunal seemed to think. A broad view of the rules demonstrates that immediately: to start a case it is necessary to make a claim and say sufficient about it in an originating application. It is that to which the Respondent will respond. If an amendment to the claim is needed, permission has to be asked for and obtained. These are matters of some formality. They need not be overcomplicated, but they indicate that the process is designed to identify what is the real dispute between the parties so that a Tribunal, acting as an umpire and not as a participant in a courtroom battle, can fairly resolve it.
29. Rule 41 does not, in our view, allow a Tribunal to make enquires on its own behalf into evidence which was never volunteered by either party. The Tribunal may, in an appropriate case, ask the parties whether they have thought about particular evidence or even, possibly, whether in an appropriate case the parties or one of them would wish an adjournment in order to obtain it. But it is not, as the Judge appeared to think, for the Tribunal itself to investigate the evidence and rely upon its own investigations. The Tribunal is, as we said at the start of this Judgment, to act as the adjudicator not as advocate. Actively seeking fresh evidence on one or other party's behalf is inevitably likely to lead towards the latter.
30. In McNicol the Judgment falls short of saying that a Tribunal must not act inquisitorially in some respects, though it is clear that it is authority that there is no duty to do so. It is important that the obligations of a Tribunal to deal sensitively with litigants in person and those who may be vulnerable for one reason or another, not least through mental illness, should not be confused with adopting an inquisitorial procedure. It is the role of the Judge to ensure, by making proper allowance, by ensuring that the form of questioning by one side or the other is appropriate, by controlling the amount of time that a witness is in the witness box and, as Rule 41 itself suggests, asking its own questions, that a witness gives the best evidence that that witness would wish to give. It remains, however, that witness's evidence. It is that witness's case. It is not the Tribunal's case. It is not the Tribunal's evidence.
31. Accordingly it is quite likely that there will be a degree of intervention in proceedings before a Tribunal which might raise some eyebrows in civil courts. But the purposes, as we have identified them, should be kept clear. When a Judge does under Rule 41 ask questions to elicit the evidence - that is, not the evidence which the Tribunal wishes to hear but the evidence which the witness wants to give, as best the Tribunal can understand it - it is advisable that the Tribunal asks those questions in a non-leading form. That is not because form should triumph over substance. It is because non-leading questions give rise to the most reliable answers. If a Judge suggests an answer to witnesses, they are much more likely to agree with it than they would if asked an open question about the same point, and the Tribunal should be careful to avoid making a case for either party.
32. The Tribunal will begin with a complaint before it. It will wish to understand why the complaint had been made, and what are the main reasons for it. It will wish to ensure clarity. There may be a need to explain procedure to the witness and to explain what the purpose is of the enquiry which the Tribunal is making. This is best done in simple terms, however sophisticated the witness may be. But it is not the role of the Employment Tribunal to find evidence to support one party's case or the other. Adjudicating upon the evidence put before it is not producing the evidence for it to consider."
"26. There was is some debate as to whether it is appropriate for an Employment Judge or Tribunal to hear an application for recusal on the grounds of bias. In Peter Simper & Co Ltd v Cooke (No 2) [1986] IRLR 19 Peter Gibson J said
"Save in extraordinary circumstances, it cannot be right for a litigant, unhappy with what he believes to be the indications from the Tribunal as to how the case is progressing, to apply, in the middle of the case, for a re-hearing in front of another Tribunal. It is, in our view, undesirable that the Tribunal accused of giving the opinion of bias should be asked itself to adjudicate on that matter. The dissatisfied litigant should ordinarily await the decision and then, if he thinks it appropriate, he should make his dissatisfaction with the conduct of the case by the Tribunal a ground of appeal."
27. It is plain, however, from the guidance in Ansar that if an objection of bias is made it will be the duty of the Employment Judge or Tribunal as the case may be to consider it, giving full weight to the considerations laid down in that case."
"14. I therefore ask myself whether the ET should have considered the rejection of the appeal as part of the unfavourable treatment about which the Claimant was complaining. Mrs Peckham says very simply that the only complaint made was 'dismissal'. She refers to the issues as described in the Case Management Summary, which is at page 53 of my bundle and paragraph 9.4, where the Judge says, "The claimant relies upon only one act of unfavourable treatment /detriment that is her dismissal for both the discrimination and whistleblowing complaints". Then in the Judgment itself the Tribunal set out the issues under disability discrimination. I have already read them into the record but relevantly issue number IV is described as: did the 'something arising from her disability' materially influence her dismissal; there is no mention of the appeal.
15. On the other hand, the Claimant was of course a litigant-in-person in pursing her claim. Her ET1 form refers to discrimination on the grounds of disability and then recites the appeal and the appeal decision letter. The bundle which the Tribunal had included the appeal letter and the appeal outcome letter and a short statement was also put in by Mrs Greenidge who heard the appeal. She was not in fact called to give evidence because she had left the Respondent in the meantime, but it was accepted that she would have been called by the Respondent otherwise. For whatever reason, the ET did make findings about the state of knowledge of Respondents between the actual date of dismissal and the appeal. The outcome of an appeal against a dismissal is, one can say, integral to the overall decision to dismiss.
16. The Tribunal at paragraph 99 made some rather sweeping findings, which I may say at this stage I do not think are part of the findings of primary fact, to effect that the Respondent's management of the appeal was fair and reasonable and not tainted by, among other things, discrimination so as to render the decision to terminate unreasonable or unfair or discriminatory. Therefore, in fact, at paragraph 99 the Tribunal appear to have themselves considered the effect of the appeal on the overall decision to dismiss.
17. Looking at the whole picture, as I have just outlined it, I think the ET should have considered the appeal decision as part of the overall decision to dismiss the Claimant and decided whether it was itself discriminatory under section 15 of the Equality Act 2010. For the reasons indicated, I simply cannot say that if that issue had been properly considered, the Claimant would have lost on section 15 and, therefore, it seems to me that I must allow this appeal and remit the case to that extent, even though unfortunately it is nearly four years since the dismissal."
The Amendment Decision
Outcome