Dr G Richardson v University Hospitals Leicester NHS Trust: 2604079/2020
| Jurisdiction | England & Wales |
| Judgment Date | 23 November 2022 |
| Date | 23 November 2022 |
| Published date | 02 December 2022 |
| Court | Employment Tribunal |
| Subject Matter | Unfair Dismissal |
| Citation | 2604079/2020 |
Case No: 2604079/2020
EMPLOYMENT TRIBUNALS
Claimant: Dr Gail Richardson
Respondent: University Hospitals Leicester NHS Trust
Heard: in Leicester, with Professor Bu’Lock joining via Cloud Video Platform
On: 5,6,7,8,9,12 & 13 September 2022
Before: Employment Judge Ayre, sitting alone
Representatives:
Claimant: Mr S Healy, counsel
Respondent: Ms B Criddle KC, counsel
RESERVED JUDGMENT
1. The claimant was fairly dismissed. Her claim for unfair dismissal fails
and is dismissed.
REASONS
Background
1. The claimant was employed by the respondent as a Consultant
Cardiologist from 30 March 2005 until 14 August 2020 when she was
dismissed.
2. On 12 November 2020 the claimant issued proceedings in the
Employment Tribunal, following a period of Early Conciliation that
started and finished on 22 September 2020. Her claim form included
complaints of unfair dismissal and for breach of contract. The
respondent defends the claim. It says that the claimant was fairly
dismissed for some other substantial reason (“SOSR”).
Case No: 2604079/2020
3. On 9 March 2021 a Preliminary Hearing took place before Employment
Judge Heap. The case was listed for a seven day final hearing to deal
with both the merits of the claim and remedy if required. Orders were
made to prepare the case for that hearing.
4. Following the Preliminary Hearing, the claimant withdrew her claim for
breach of contract, and that claim was dismissed in a Judgment of
Employment Judge Victoria Butler dated 4 May 2021 and sent to the
parties on 2 June 2021.
The Proceedings
5. The first day of the hearing was a reading day and the parties did not
attend the Tribunal. I heard evidence on days 2 to 6 of the hearing, and
submissions on day 7. I reserved my judgment.
6. There was an agreed bundle of documents running to 3,233 pages.
Nine pages were added to that bundle, by consent, at the start of the
second day of the hearing.
7. I heard evidence from the claimant and, on her behalf, from:
a. Professor Frances Bu’Lock, Consultant in Congenital and
Paediatric Cardiology and honorary Professor of the University
of Leicester;
b. Joe Chattin, the claimant’s trade union representative from 2012
to 2019; and
c. Stuart Lythgoe, the claimant’s trade union representative from
March 2021 onwards.
8. I also heard evidence from the following witnesses on behalf of the
respondent:
a. Andrew Furlong, Medical Director and Consultant Paediatric
Orthopedic Surgeon;
b. Joanne Tyler-Fantom, Deputy Chief People Officer;
c. Wayne Lloyd, HR Business Partner; and
d. Claire Teeney, Chief People Officer.
9. On 1 September 2022 the respondent’s representative wrote to the
Employment Tribunal objecting to the introduction into evidence of the
witness statements of Professor Bu’Lock and Mr Chattin on the
grounds that they contained opinion evidence and were irrelevant. The
claimant objected to that application, and the application was
considered at the start of the second day of the hearing.
10. I gave both parties the opportunity to address me on the admissibility
of these witness statements. Ms Criddle submitted, on behalf of the
respondent, that witnesses of fact can only give evidence of fact and
Case No: 2604079/2020
not opinion evidence. The purpose of witness statements is not to
make arguments, yet that was what both witness statements do.
11. Admitting the witness statements would, she said, prolong the hearing
unnecessarily, and leave her with the dilemma of whether to cross-
examine the witnesses on the opinions contained within the
statements, or be criticised for not challenging those statements.
12. Mr Healy submitted that the evidence of both witnesses was relevant
and should be admitted. He referred me to the judgment of Mr Justice
Underhill in HSBC Asia Holdings BV and anor v Gillespie EAT
0417/10 and argued that the Tribunal should not spend time dealing
with applications for the exclusion of evidence but should take a
pragmatic approach and hear the evidence, filtering out any irrelevant
parts. The Tribunal should not ‘make a fuss’ about evidence unless
the presentation of the evidence is likely to prejudice the orderly
progress of the case. Mr Healy accepted that Ms Criddle did not need
to cross examine the witnesses on their opinions.
13. After listening to the submissions of both parties, it was my decision
that the witness statements of Professor Bu’Lock and Mr Chattin
should be admitted into evidence. Whilst I had sympathy for the
arguments of Ms Criddle, Rule 41 of Schedule 1 to the Employment
Tribunals (Constitution & Rules of Procedure) Regulations 2013 gives
Tribunals the power to regulate their own procedure and specifically
provides that “The Tribunal is not bound by any rule of law relating to
the admissibility of evidence in proceedings before the courts”. There
is, therefore, no prohibition on opinion evidence in the Employment
Tribunal.
14. I had some doubt about the relevance of both witnesses’ evidence but
could not say at the start of the hearing that their evidence was entirely
irrelevant. The opinions of Professor Bu’Lock and Mr Chattin on the
fairness of the claimant’s dismissal and the procedure followed were of
marginal relevance at best.
15. The key witnesses in this case are those who took the decision to
dismiss the claimant and the appeal hearer. The decision on the
fairness of the dismissal lies with the Tribunal and not with Professor
Bu’Lock or Mr Chattin.
16. It is important that both parties leave the hearing feeling that they have
had a fair hearing. I therefore decided, on balance, to admit the
evidence of Professor Bu’Lock and Mr Chattin. Ms Criddle was not
required to cross examine the witnesses on their opinions however,
and I made clear that, by not cross examining them, she would not be
considered to have accepted their opinions.
17. The evidence of the claimant’s other witness, Mr Lythgoe, related
almost entirely to the time taken to arrange the appeal hearing. Ms
Criddle cross examined the claimant at length on that issue and, with
the agreement of the Tribunal, was not required to cross examine Mr
Lythgoe on it.
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