Galloway v Barnet Enfield & Haringey Mental Health NHS Trust

The Court of Appeal dismissed the appellant's challenges to the Employment Tribunal's handling of evidential matters and the apparent-bias complaint, and upheld the Tribunal's finding that the employer had failed to make reasonable adjustments contrary to s.3A(2) of the Disability Discrimination Act 1995. The court accepted the tribunal's exercise of case management discretion in excluding a late expert report (the "Vogler" report) and held that cross-examination based on an excluded document ("Websense 1") did not render the hearing unfair when answers were recorded but the document was not relied upon as evidence.

On the cross-appeal, the Court held that, applying the Burchell test, the employer had a reasonable basis for believing the misconduct occurred and, pursuant to section 98A(2) of the Employment Rights Act 1996, the tribunal ought to have concluded that the claimant would have been fairly dismissed by no later than 27 January 2007; accordingly the basic award was disallowed. The tribunal's separate award of compensation for the failure to make reasonable adjustments under the DDA was left intact.

Background and procedural posture: The claimant, a long-serving employee of the Trust with an accepted disability, was dismissed for gross misconduct on 21 December 2006 after a disciplinary hearing held in his absence. He brought claims to the Employment Tribunal for unfair dismissal and disability discrimination under the Disability Discrimination Act 1995. The Tribunal (13 November 2008) found that the employer had a potentially fair reason for dismissal but, by a majority, that the dismissal was unfair; unanimously it found a failure to make reasonable adjustments in relation to the disciplinary hearing (s.3A(2) DDA). On remedy the Tribunal awarded a reduced basic award and a separate sum for discrimination-related injury to feelings, totalling £3,544.00. The Employment Appeal Tribunal refused leave on paper; after further applications the Court of Appeal granted permission to appeal and the Trust obtained permission to cross-appeal.

Nature of the claim: Claims were brought for unfair dismissal and breaches of the DDA (failure to make reasonable adjustments). Relief sought included declaration of unfair dismissal and compensatory remedies.

Issues before the Court of Appeal:

• Evidential matters: whether the Tribunal erred in excluding an expert report produced late (the Vogler report) and in permitting cross-examination based on an excluded earlier Websense report (Websense 1).
• Dismissal in any event: whether the Tribunal was entitled to conclude the claimant would have been fairly dismissed by 27 January 2007.
• Apparent bias: whether a fair-minded and informed observer would conclude there was a real possibility that a wing member of the Tribunal (Mr Bulford) was biased.
• The cross-appeal: whether, applying s.98A(2) ERA 1996 and the Burchell principles, the dismissal should have been held fair.

Reasoning and conclusions: The court upheld the Tribunal's discretionary exclusion of Vogler as a legitimate case-management decision: the expert report was late, disclosure/witness-statement directions had been made and admitting it would have required an adjournment and disproportionate delay and expense. The Tribunal's procedure of allowing questions based on Websense 1 but not admitting that report as evidence was not unfair; the Tribunal recorded the claimant's denials and did not rely on the excluded document.

On the merits of dismissal in any event, the appellate court applied the Burchell test (addressing whether the employer held a genuine belief on reasonable grounds and had carried out reasonable investigation). The Tribunal had rejected the claimant's explanations and found several multi-minute site visits recorded in Websense 2; the court concluded that reasonable inquiries by the employer would have satisfied it that dismissal would have been fair by 27 January 2007. Accordingly s.98A(2) ERA 1996 operated to deprive the claimant of the basic award. However, the separate DDA award for failure to make reasonable adjustments (injury to feelings) was not within s.98A(2) and remained payable.

On apparent bias, the court held a fair-minded informed observer would not see a real possibility of bias given the limited and coincidental connections identified; that ground failed.

Appeal by the claimant dismissed in all substantive grounds; cross-appeal by the Trust allowed in part. The Court dismissed the claimant's evidential and apparent-bias challenges and upheld the Tribunal's finding of a failure to make reasonable adjustments under s.3A(2) DDA. However, on the cross-appeal the Court held that, applying the Burchell test and s.98A(2) of the Employment Rights Act 1996, the employer had shown the claimant would have been fairly dismissed by 27 January 2007, so the basic award was set aside while the separate DDA award for injury to feelings remained payable.

Employment Tribunal judgment 13 November 2008 (unfair dismissal and DDA findings); Remedies Judgment 10 February 2009 (award £3,544). Applications for leave to appeal to the EAT refused on paper; oral Rule 3.10 proceedings resulted in orders of HHJ Peter Clark (13 May 2009) and HHJ Ansell (21 August 2009) dismissing leave applications. Permission to appeal to the Court of Appeal granted by Pill LJ (27 November 2009) for the Judgment and by Elias LJ (20 April 2010) for the remedies judgment; the Trust obtained permission to cross-appeal from Elias LJ (1 February 2010). The Court of Appeal heard the appeal and cross-appeal and issued judgment 9 December 2010 ([2010] EWCA Civ 1368).