Hewage v Grampian Health Board
| Jurisdiction | Scotland |
| Judge | LORD HOPE,LADY HALE,LORD MANCE,LORD KERR,LORD REED |
| Judgment Date | 25 July 2012 |
| Neutral Citation | [2012] UKSC 37 |
| Court | Supreme Court (Scotland) |
| Docket Number | No 4 |
| Date | 25 July 2012 |
[2012] UKSC 37
before
Lord Hope, Deputy President
Lady Hale
Lord Mance
Lord Kerr
Lord Reed
Appellant
Ian Truscott QC
(Instructed by NHS National Services Scotland Central Legal Office)
Respondent
Brian Napier QC
Christine McCrossan
(Instructed by Lefevre Litigation)
Heard on 26 June 2012
LORD HOPE (WITH WHOM LADY HALE, LORD MANCE, LORD KERRANDLORD REEDAGREE)
The respondent, Mrs Sumithra Hewage, was born in Sri Lanka. She has been a British citizen since 1998. She has devoted her professional career to the practice of dentistry. Her speciality is orthodontics. On 1 December 1993 she commenced employment with Grampian Health Board ("the Board") at Aberdeen Royal Infirmary as a consultant orthodontist. In 1996 she became Head of Service for the Orthodontics Department. She resigned from that position on 30 November 2003. On 24 December 2004 she resigned from her employment with the Board with effect from 31 March 2005. In September 2005 she commenced proceedings against the Board in which she claimed under section 94(1) of the Employment Rights Act 1996 that she had been unfairly dismissed from that employment. She also claimed under the Sex Discrimination Act 1975 and the Race Relations Act 1976 that she had been discriminated against on the grounds of her sex and race.
Mrs Hewage's claims came before an employment tribunal sitting in Aberdeen. On the penultimate day of the hearing, which took place on various dates between January and June 2007, it was conceded by counsel for the Board that Mrs Hewage had been constructively and unfairly dismissed. In a judgment which was delivered on 4 December 2007 the employment tribunal held that she had been unlawfully discriminated against on a number of grounds of both sex and race. By a majority decision issued on 15 April 2009 the Employment Appeal Tribunal upheld an appeal by the Board against the decision of the employment tribunal and dismissed Mrs Hewage's claims of discrimination. She appealed against that decision to the Inner House of the Court of Session. On 14 January 2011 the Second Division (Lord Justice Clerk Gill, Lord Bonomy and Lord Nimmo Smith) allowed her appeal and quashed the decision of the Employment Appeal Tribunal: [2011] CSIH 4, 2011 SLT 319. It remitted the case to the employment tribunal to decide whether, if it had had regard to the only issues which the court considered to be relevant to the claims of discrimination, it would have come to the same or a different conclusion. The Board has now appealed against the decision of the Inner House of the Court of Session to this Court. In the meantime the employment tribunal, having considered the matter that was remitted to it by the Inner House, has affirmed its decision to uphold Mrs Hewage's claims of discrimination.
The complaints have their source in allegations by Mrs Hewage that she was bullied and harassed by employees of the Board. When she held the position of Head of Service of the Orthodontics Department Mrs Hewage attended regular monthly management meetings to discuss how her department was functioning. These meetings were normally attended by Mrs Helen Strachan, who was the service manager for surgical specialities, and Mrs Edith Munro, who was the clinical nurse manager. One of these meetings took place in Mrs Strachan's office on 9 September 2003. Mrs Hewage alleged that Mrs Strachan and Mrs Munro were verbally abusive, hostile and aggressive towards her. She was very upset by their conduct and could not bring herself to talk to anyone about the way she had been treated. So she decided to consult an occupational health doctor, who wrote on her behalf to the Board's Chief Executive, Mr Alex Cumming. Mrs Hewage met Mr Cumming on 7 October 2003. She told him about the difficulties that she had been having with Mrs Strachan and Mrs Munro. She said that it would be very difficult for her to continue to work with them and that she would be considering her position. His response did not satisfy her, so she resigned from her position as Head of the Department.
Mrs Hewage's complaint about Mrs Strachan's conduct was not the first to have been brought to the attention of the Board's senior management. Professor John Forrester had experienced difficulty with Mrs Strachan when he was Head of Service for the Department of Ophthalmology. On 4 April 2002 she accused him of having deliberately manipulated his waiting list the previous morning to engineer the cancellation of day case cataracts booked for that day and told him that she would never allow that to happen again. When asked to explain herself, she said that her accusation was based on remarks by one of his consultant colleagues. Professor Forrester was taken aback by her challenge to his clinical judgment that the operations should be cancelled, and by the fact that one of his consultant colleagues had apparently spoken to her in those terms. He decided that he could no longer work with her and that his position as Head of Service for his department was untenable.
Professor Forrester wrote to the Chief Executive, Mr Cumming, on 5 April 2002 making it clear that he would not be willing to return to the position of Head of Service if Mrs Strachan continued to have responsibilities in his department. His resignation led to a review of the department. It was reorganised so as to provide its Head of Service with a deputy who would be responsible for its day to day running rather than having Mrs Strachan as its service manager. The position of Head of Service was advertised, and Professor Forrester was the only applicant. He was re-appointed, and the plan for the department's reorganisation was implemented.
When Mrs Hewage resigned as Head of Service in the Orthodontics Department Mr Colin Larmour, a consultant orthodontist, took over from her in November 2003, initially on a temporary basis. Prior to his appointment Mrs Hewage had made it known repeatedly that she was of the view that there should be a consultant on the interview panel for the appointment of dental nurses. This was a matter about which she felt very strongly. But her requests that she should sit on this panel, which were made over a period of about two years to Mrs Edith Munro and Sister Moira Munro, always met with resistance and they refused to agree to them. Within days of Mr Larmour's appointment, however, a meeting took place on 12 December 2003 at Sister Munro's suggestion to discuss the issue. Mr Larmour then spoke to a consultant in the Restorative Dentistry Department, who agreed with Mr Larmour that a consultant should be on the interview panel. He reported this conversation to Mrs Munro and Sister Munro, who agreed immediately that a consultant should be present. Their recommendation was then put in place.
When Mr Larmour was appointed as Head of Service in the Orthodontics Department in April 2004, both Mr Alisdair Chisholm, the Board's General Manager, and Mr Kenneth McLay, its Associate Medical Director, assured him of their support. He told Mrs Hewage that Mr Chisholm told him that if he had any problems with Mrs Strachan he should let him know immediately. He also told her that Mr McLay had advised him to "be friends with the service manager and you'll get anything signed."
In December 2003 Mrs Hewage wrote to Mr McLay to complain about the way she had been treated by Mrs Strachan and Mrs Munro at the meeting on 9 September 2003. Her complaint was referred to Dr Dijkhuizen, the Board's Medical Director. In March 2004 Dr Dijkhuizen wrote to Mrs Hewage advising her that he had decided to proceed with a formal investigation by a panel under the Board's Dignity at Work Policy. On 15 June 2004 a copy of the main body of the report of the investigation was sent to Mrs Hewage. She considered it to be full of inaccuracies and omissions, and it did not reach any conclusions or make any recommendations. It contained an allegation by Mrs Strachan that Mrs Hewage's conduct had led to Mrs Gillian Cartwright having to go on sick leave suffering from work-related stress caused by Mrs Hewage's conduct. This was later shown to be a false allegation. In her evidence to the employment tribunal Miss Cartwright called it a blatant lie, the truth being that her stress had been caused by Mrs Strachan herself.
On 24 June 2004 Mrs Hewage, who was distressed by the report, met Mr Chisholm and asked him to relieve Mrs Strachan of any responsibilities that she had in her department. He did not do this. The Dignity at Work panel issued its final report on 6 August 2004. It contained some recommendations, but for the most part it simply repeated the stated positions of Mrs Hewage, Mrs Strachan and Mrs Munro. On 20 August 2004 Mrs Hewage met Dr Dijkhuizen to discuss it. She again asked him to remove Mrs Strachan from duty as service manager for her department. He replied that there was no basis for doing this in the report, which both Mrs Strachan and Mrs Munro considered to be totally unsatisfactory. They had told him that they were seeking an apology from Mrs Hewage for making the complaint.
On 26 August 2004 Dr Dijkhuizen wrote to Mrs Hewage, Mrs Strachan and Mrs Munro saying that he would write to them again in September to indicate how the report would be taken forward. But when he wrote to them again on 15 September 2004 he told them that he had decided to not to recommend that any action should be taken. On 25 November 2004 he wrote to the appellant to inform her that no action would be taken against Mrs Strachan regarding her false accusation about Miss Cartwright. On 30 November 2004 Mrs Hewage wrote to Mr Chisholm applying for a review of the outcome of the report. On 24 December 2004, having still not received a reply to her...
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