Easwaran v Guys and St Thomas Nhs Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill |
| Judgment Date | 23 March 2007 |
| Neutral Citation | [2007] EWCA Civ 346 |
| Date | 23 March 2007 |
| Docket Number | Case No: A2/2006/2346 |
| Court | Court of Appeal (Civil Division) |
[2007] EWCA Civ 346
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE PUGSLEY)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Case No: A2/2006/2346
THE APPELLANT APPEARED IN PERSON.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
This is an application for permission to appeal against a decision of the Employment Appeal Tribunal, HHJ Pugsley sitting alone, on 26 October 2006. The tribunal dismissed the appeal of Mr Easwaran against a decision of an Employment Tribunal held at London South, whereby they dismissed the applicant's complaint of unfair dismissal and also his complaint that he was subjected to detriments and dismissed by reason of having made protected disclosures.
The applicant qualified as a doctor in India where he worked as a consultant surgeon at the Apollo Hospital at Chennai until December 2003. He is a Fellow of the Royal College of Surgeons. (He would prefer to be described as Dr Easwaran according to Indian practice. In England the distinction accorded by that qualification usually requires the person to be called as “Mr”.) The applicant came to the United Kingdom on an observership in medicine initially. That was an honorary position without remuneration and plainly he had come to further his career and his experience by working at a top hospital in this country, the proposed respondents, being Guy's and St Thomas' NHS Foundation Trust. On completion of the observership, after five months, he was appointed as a Senior Clinical Fellow in Colorectal Surgery. That was initially for a six-month period but was often extended for up to one year.
The Employment Tribunal found that the applicant had encountered a number of difficulties with other members of staff involving concern as to his communication skills. His clinical skills were not, in the event, called into question. Following a series of meetings in June and July 2005 at which those concerns were expressed, the decision was taken not to extend the applicant's contract. On 6 July he was told that his contract would expire on 31 July. On 21 July he wrote a letter of complaint to his line manager, the consultant surgeon Mr Peter Taylor, in which allegations were made about the patient care provided by junior and senior colleagues at the hospital. Specific details were given in relation to patients under the care of consultant surgeons Mr George and Mr Williams. The applicant claims that these concerns had previously been expressed by him.
Mr George requested on 21 July that the applicant cease to accompany him on ward rounds. He did not return to duty but was paid in lieu of notice. He raised concerns with the GMC in August 2005 as to the quality of patient care, reiterating allegations against named colleagues. He also made a formal grievance. That was heard on 2 September 2005 by the panel and was not upheld. His tribunal claim was based, first, on unfair dismissal and, second, having suffered detriment following a protected disclosure, in accordance with section 43B(1) of the Employment Rights Act 1996 (“the 1996 Act”). The tribunal heard the application over a period of five days in April 2006. The applicant was represented by counsel; the Trust by a solicitor. As I have stated more than once during the hearing, although I believe the applicant is aware of it, the tribunal is the fact-finding tribunal. The law provides for employment tribunals, at which a legally qualified chairman presides. He is accompanied in consideration of the evidence by two lay members; normally one from the employers' side of industry and the other from the employees'.
The tribunal's finding is a stark one and it is one that the applicant challenges as being wrong in law. Expressed at page 191 of the bundle beginning at paragraph 17 of the judgment, the issue being considered was whether the disclosures were protected disclosures within the meaning of section 43 of the Act. One criterion for the protected disclosure, as section 43B provides, is that the disclosure information must be “in the reasonable belief of the worker making the disclosure”. That definition is carried forward to section 103A, which provides that a dismissal shall be unfair if it is on the ground “that the employee made a protected disclosure”. On any basis, therefore, the applicant must establish—and he accepts—that he made the disclosures in good faith.
The tribunal stated:
“We have to consider whether the Claimant had a reasonable belief that patient safety was being endangered when making the disclosure. We are satisfied that the Claimant did not have a reasonable belief.”
“17.1 The Claimant raised no complaints until after he was informed that his contract was not to be renewed.
“17.2 All the complaints raised related to events which had occurred months previously. If the Claimant was concerned that patient safety was being endangered he would have raised those matters much earlier.
“17.3 The investigation of the complaints by the Respondent and the GMC led to the conclusion that they had no substance to them.
“18. The Claimant has to have made his disclosure in good faith. The Tribunal is satisfied that the reason that the Claimant made his disclosure was because his contract was not extended. The Tribunal is satisfied that the Claimant made the complaints so as to use them as a lever with which to try and force the Respondent's hand in respect of securing an extension to his contract.
“19. The decision to not review the Claimant's contract occurred before the Claimant made any qualifying disclosure. The Claimant's employment with the Respondent came to an end as a result of that decision. The Claimant's complaint of unfair dismissal must therefore fail because it was not in any way connected to the making of the protected disclosure.”
It was mentioned that there had been a sift hearing previous to the EAT hearing, before HHJ Clark. There had also been a direction hearing before the Employment Tribunal. HHJ Pugsley concluded that the Employment Appeals Tribunal is not a fact-finding body, unless perversity can be raised, and that is not an appropriate matter that could be raised in this case. It was up to the tribunal to find the facts.
The applicant rightly has concentrated his attack on the finding of the Employment Tribunal, if there is an error of law on their part, that this is not a case where it can be established that the error was rectified by anything done in the Appeal Tribunal. Very substantial written grounds of appeal have been supplied together with skeleton arguments. I have a document running to about 30 pages and a more recent one headed “The points Appellant wants to raise in the hearing”, which runs to 11 pages.
I have considered those documents and this morning I have heard the applicant for over an hour in support of his case. It is a renewed application. The application was rejected by Laws LJ on a consideration of the papers on 14 February stating, “This is an illegitimate and misconceived attempt to re-open the facts”. Criticism is made of the conduct of the barrister who appeared for the applicant before the Employment Tribunal. I will concentrate on the oral submissions made this morning. They essentially repeat what is stated in the written submissions to which I have referred.
In his written submissions—page 3 of the most recent one—the applicant does frankly state that the:
“Appeal is against the finding of fact of the Tribunal. Tribunal's decision on claimant's verbal qualifying disclosure to hospital authority is perverse.”
I summarise the reasons given in that document as to why the appeal should be allowed. It is because an error of law under the statute that the findings of fact are perverse; that the Trust have deliberately covered up malpractice and cheated the...
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