Tasneem v Dudley Group Of Hospitals NHS Trust

An appellate tribunal may intervene only for an error of law and must not substitute its assessment of facts or evaluative judgments for that of the employment tribunal. An employment communication is not incorporated into an employment contract merely because it concerns proposed staffing or contractual changes. An implied duty to notify employees of changes arises only where the circumstances justify it, including where employees could not reasonably be expected to know of a valuable right; it is unnecessary where the employee in fact knew of the opportunity. A dismissal following the non-renewal of a locum appointment may constitute dismissal for some other substantial reason. Discrimination claims must be assessed on the totality of the evidence, but adverse interview outcomes and managerial restructuring do not by themselves establish discriminatory treatment.

The claimant, a locum consultant of Asian ethnic origin, appealed against an Employment Tribunal decision dismissing claims for breach of contract, less favourable treatment because of fixed-term status, race discrimination, age discrimination and unfair dismissal.

The claimant had not received departmental correspondence about an opportunity to transfer to a new consultant contract because he was not on the relevant email system. The tribunal found that he nevertheless knew about the opportunity and chose not to apply at the relevant time. It also found that the correspondence did not impose a contractual obligation, that no new contract had been accepted, and that the claimant’s locum post disappeared after substantive consultants were appointed.

The central issues were whether the tribunal had misconstrued the contract, failed to apply the relevant discrimination principles, and erred in treating the dismissal as fair for some other substantial reason.

1. Appeal dismissed. None of the grounds disclosed an error of law. The Employment Tribunal’s findings were clear, comprehensive and properly reasoned. The EAT could not substitute its own view of the facts or of the tribunal’s evaluative judgments. The principles in Piglowska v Piglowski [1999] WLR 1360 required appellate restraint and discouraged narrow textual analysis of a first-instance decision.
2. The Department of Health’s letter gave a recommended timetable for implementing the new contract. In context, it was not intended to impose a contractual obligation and was not incorporated into the claimant’s contract. The tribunal was entitled to reach that conclusion.
3. The tribunal correctly directed itself by reference to Scally v Southern Health and Social Services Board [1999] IRLR 215. An implied duty to inform may arise where an employee could not reasonably be expected to know of a change affecting a valuable right. On the facts, however, the claimant knew of the new contract, its potential benefits and his ability to apply. Any breach was therefore academic, and no new contract was formed because he did not assent to the offered terms.
4. The failure to send the correspondence resulted from the claimant’s absence from the email system, not from a policy excluding locum consultants. The findings did not establish less favourable treatment because of fixed-term status.
5. The tribunal assessed the discrimination allegations cumulatively and considered the totality of the evidence. It was not required to cite every authority or to treat each complaint as an isolated issue. The approach criticised in Qureshi v University of Manchester [2001] ICR 863 had not been adopted.
6. The reduction of locum posts after substantive consultants were appointed was not redundancy on the tribunal’s findings. Applying the approach in Shrewsbury & Telford Trust UKEAT/0499/08 and Terry v East Sussex County Council [1976] ICR 536, the tribunal was entitled to find that the dismissal was fair and for some other substantial reason.

• Employment Appeal Tribunal: dismissed the appeal on 29 June 2011.
• Employment Tribunal: dismissed the claims for breach of contract, less favourable treatment on grounds of fixed-term status, race discrimination, age discrimination and unfair dismissal. The decision was promulgated on 9 March 2009.