Nursing and Midwifery Council v Harrold; North Bristol NHS Trust v Harrold
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Elisabeth Laing DBE |
| Judgment Date | 09 May 2016 |
| Neutral Citation | [2016] EWHC 1078 (QB) |
| Docket Number | Case No's: HQ14X05426 AND HQ14X05427 |
| Court | Queen's Bench Division |
| Date | 09 May 2016 |
[2016] EWHC 1078 (QB)
The Honourable Mrs Justice Elisabeth Laing DBE
Case No's: HQ14X05426 AND HQ14X05427
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Adam Solomon (instructed by DAC Beachcroft and Fieldfisher) for the Claimants
Ms Daniella Gilbert (direct access) for the Defendant
Hearing dates: 6 – 7 April 2016
Introduction
This is an application by the Claimants for a general civil restraint order ('GCRO') against the Defendant. It is made pursuant to a Part 8 claim. The Defendant is black. She was employed by the First Claimant ('the Trust') as a Grade E nurse, until her dismissal in December 2005. She had been signed off sick, however, since June 2004. Over two years after she last worked at the Trust, the Trust referred her to her professional body, the Second Claimant ('the NMC'). After a hearing which the Defendant did not attend, she was struck off the NMC's register. She appealed against that decision. No steps have been taken in relation to that appeal for some time. A hearing will be listed in due course in that appeal, in order for the court to decide, whether, as the NMC argues, the Defendant has abandoned that appeal, or whether it is still extant. The Defendant has issued a counterclaim in this case. I heard no argument about it, but the Claimants asked me to note that in it she indicates her intention to challenge her dismissal (in 2005) in the High Court.
She has brought a series of claims against the Claimants, mostly in the Employment Tribunal ('the ET'). The Claimants' case is that most of those claims were totally without merit ('TWM'), and that the Defendant should be restrained from making any further claims against them in the ET, the county court or the High Court. Hamblen J (as he then was) has decided, in a previous hearing in this claim, that the High Court has power to make a civil restraint order restraining proceedings in the ET ( [2015] EWHC 2254 (QB); [2016] IRLR 30).
Many of the facts have been found by the ET. Those findings bind the parties. I will summarise them as briefly as I can, to the extent that it is necessary in order to decide whether or not to make the order the Claimants ask for. Unless I indicate otherwise, the claims I will refer to are claims brought in the ET.
The Claimants were represented by Mr Solomon and the Defendant by Miss Gilbert. I thank both counsel for their written and oral arguments.
At the start of the hearing, Miss Gilbert applied for relief from sanctions. The Defendant was late with her acknowledgement of the service of the Part 8 claim as respects one of the Claimants, and her four witness statements were late. Miss Gilbert needed the court's permission to make any oral submissions and to rely on the late evidence. I was referred to Denton v White [2014] EWCA Civ 906; [2014] 4 Costs LR 752.
Mr Solomon's position on the former was neutral, but he objected to the application to rely on the late evidence if the evidence was to be used to bolster an argument of which he only had notice when he received Miss Gilbert's skeleton argument shortly before the hearing. I have decided to grant relief from sanctions in relation to both defaults. I do not consider that that the Claimants have been misled or prejudiced by the late acknowledgement of service. In any event, the relief they are seeking is a significant interference with the Defendant's otherwise free access to the court. In that situation, I consider that it is only fair to the Defendant to enable her case to be argued by counsel. I have also decided to permit the Defendant to rely on the late evidence. For reasons which will become clear, it does not greatly help the Defendant's case in any event.
The facts
The first, second, and third claims
(i) The ET's decision
The first ET decision relates to three claims which the Defendant brought against the Trust for direct discrimination, victimisation and unfair dismissal. The first ET dismissed those claims in a decision sent to the parties on 22 March 2006. It made material findings which I now summarise. The Defendant's employment started in 2001. She was an experienced nurse, but her attitude and manner could cause difficulty in the working of a team. Those were not caused by problems she had at work, though such problems might have contributed to them. The ET noted that during the hearing the Defendant was unwilling to listen to or to accept direction or guidance. Two other members of staff, Sharon Clark and Sandra Elkins, were also difficult to work with. Both could be critical and negative, and would, together, make life uncomfortable for colleagues they had taken against.
The ET considered a harassment complaint relating to an incident in July 2002 when Ms Clarke and another reported to SR Greaves that the Defendant had hung up and spiked a unit of blood without ensuring the blood had been checked by two nurses. SR Greaves spoke to the Defendant about it. She took notes. Later that day the Defendant complained about Ms Clark and Ms Elkins. The ET found that SR Greaves suggested an informal meeting to sort this out, and that the Defendant declined this offer, welcoming instead the suggestion that Ms Burt, the Head of Nursing, deal with the Defendant's complaint. As a result, SR Greaves reported the Defendant's complaint to Ms Burt, and she investigated it. The ET found that Ms Burt complied with the Trust's harassment procedure, by dealing with the complaint informally. Ms Burt decided that there had been no harassment, but that there were personality difficulties. The ET accepted that Ms Burt's action plan was directed to issues identified in discussion with each member of staff. The Defendant was not happy with the outcome. She complained that she had been downgraded because her name had been moved down the staff rota. The ET found that she had not, but that her name had been moved down the list to reflect her own request not to be 'in charge' of the unit. Ms Burt started a further investigation. She interviewed staff, using questions prepared by the Defendant and her union representative. Two nurses provided further statements which were not disclosed to the Defendant at the time. The ET found that there was nothing sinister in that.
The ET found that Pat Doman's complaint about Ms Elkins was resolved by an informal meeting because that is what Ms Doman agreed to. The ET found that Ms Doman's complaint of harassment was not upheld. The ET found that Ms Burt's conclusion that all parties were at fault was reasonable and fair. She suggested external mediation between the Defendant, Ms Elkins and Ms Clark. The Defendant did not accept this. She felt that Ms Clark was fabricating incidents in order to make difficulties for her. She did not co-operate with Ms Burt's action plan. Ms Burt decided, in response to suggestions from the Defendant's union, that a ward sister should monitor what was happening. The ET held that that was appropriate. In April 2003, the Defendant initiated a formal grievance about these issues. Her case was that the outcome of the investigation was a cover up to protect Ms Clark and Ms Elkins, and was because she was black and they were white. This was the first time the Defendant referred to her race.
The ET made findings about the six incidents which the Defendant relied on in her grievance as acts of victimisation. In short, the ET rejected the Defendant's claims about those incidents. They could not amount to victimisation contrary to statute because they happened before the Defendant raised the issue of her race. The ET considered them in order to see if they could be grounds for drawing an inference of discrimination.
The Defendant pursued her grievance through three stages. The ET considered those in detail (Judgment, paragraphs 6.24–6.27). The ET also made findings about performance issues (ibid, paragraphs 6.28–6.39). In relation to one of SR Greaves' concerns, the ET found it 'significant that the [Defendant] was not prepared to accept the clinical judgment of a ward sister and to agree that faced with similar circumstances she would recirculate'. SR Greaves told Ms Burt that she had concerns about the Defendant's competence. The Defendant did not accept the concerns which SR Greaves raised with her. The ET said 'There is no doubt that the [Defendant] was a very difficult person to manage.' SR Greaves was also concerned about the atmosphere in the unit. The ET found that two emails she sent to managers reflected her genuine concerns. When the Defendant found out about them in 2005, she claimed that they amounted to victimisation of her. The ET found that the managers dealing with the grievance did not know about these emails. The ET found that the grievance investigations were fair and thorough.
In January 2004, SR Greaves invited the Defendant to a meeting to discuss work issues. The Defendant's response was defensive, so SR Greaves arranged for her own union representative to attend the meeting. The Defendant arrived without a representative, and left immediately she saw Ms Greaves' representative. Ms Burt then made several attempts to set up a meeting with the Defendant to discuss performance issues. The Defendant would not attend. Her position was that there were no such issues. She went off on sick leave on 16 June 2004. She did not return before she was dismissed on 20 December 2005.
On 31 August 2014, the Defendant sent letters to patients at the unit she worked in about the problems she had had with SR Greaves and the victimisation she said SR Greaves was causing her to suffer. The ET said that this was 'an act...
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