Sithole v Hackney Primary Care Trust

An appellate court must respect the employment tribunal’s role as the primary fact-finder. It must not substitute its own assessment of competing evidence where the tribunal had evidence capable of supporting its conclusions. An appeal is confined to the grounds permitted by the appellate tribunal; matters excluded at an earlier permission stage cannot be revived in a later appeal. Fresh evidence is subject to the principles in Ladd v Marshall, which remain relevant after the introduction of the Civil Procedure Rules. Evidence arising after the hearing will generally be inadmissible where it would undermine finality, and earlier evidence must be sufficiently reliable and materially capable of affecting the result.

Agnes Sithole, a registered nurse, was summarily dismissed after admitting that she had worked back-to-back shifts contrary to her contractual terms. An employment tribunal dismissed her claims for unfair dismissal and sex and race discrimination, and held that certain discrimination complaints were out of time.

The Employment Appeal Tribunal allowed only limited grounds of appeal concerning the appropriateness of the dismissal penalty and alleged victimisation, but subsequently dismissed the appeal. Sithole applied to the Court of Appeal for permission to appeal, raising numerous further complaints, including alleged bias, document tampering and new evidence. The central issues were whether there was a real prospect of success on the permitted grounds and whether any new evidence should be admitted.

1. Application dismissed. There was no real prospect of a successful appeal and no other compelling reason to allow the appeal to proceed.
2. The Court of Appeal could not entertain complaints which had not been permitted by the EAT at the preliminary hearing. The applicant could not reopen allegations of bias, criminal conduct or procedural irregularity which fell outside the authorised grounds, particularly after this court had refused an earlier application to challenge that limitation.
3. The employment tribunal was the statutory fact-finder. Where it had evidence capable of supporting its conclusions, an appellate court or tribunal could not substitute its own findings merely because other evidence pointed in a different direction. The EAT was entitled to reject the alleged bias arising from its reference to the respondent’s evidence rather than the applicant’s witness statement.
4. There was evidence supporting the tribunal’s conclusion that working back-to-back shifts could reasonably be treated as gross misconduct warranting dismissal. There was also evidence that staff working under the same contract would have received the same treatment, and that the disciplinary decision-maker was unaware of the applicant’s discrimination complaints.
5. The proposed new evidence was not admissible. It had not been produced in a form allowing its credibility to be assessed. Evidence arising after the tribunal hearing was ordinarily inconsistent with the finality of litigation and could not readily establish the relevance of a later comparator to treatment occurring in 1998. For earlier evidence, the guidance in Ladd v Marshall [1954] 1 WLR 1489 remained relevant after the introduction of the Civil Procedure Rules. The alleged criminal record was in any event not shown to have had an important influence on the two issues properly before the EAT.

• Court of Appeal (Civil Division): Application for permission to appeal dismissed.
• Employment Appeal Tribunal: Appeal dismissed after permission had been limited to the fairness of the dismissal penalty and alleged victimisation.
• Employment Tribunal: Claims for unfair dismissal and sex and race discrimination dismissed; certain discrimination complaints declared out of time.