Oso v Newham University Hospital NHS Trust

An employment tribunal’s failure to recite the applicable law is not fatal where its findings show that it applied the correct law to the facts, although compliance remains important. In direct race discrimination claims, different treatment between racial groups alone does not establish a prima facie case. There must be evidence from which discrimination on racial grounds may be inferred. An appellate challenge based on perversity requires an objectively irrational conclusion, not a reargument of the facts. In unfair dismissal cases, the tribunal assesses the employer’s investigation, belief and response, rather than the claimant’s actual guilt. Later professional-regulatory views will generally be irrelevant. A fact-based issue not properly raised below cannot ordinarily be introduced on appeal. Section 65 of the Race Relations Act 1976 does not impose an own-motion duty to identify a questionnaire.

Adebola Oso and a co-claimant, both nurses in a neonatal unit, brought race discrimination and unfair dismissal claims against Newham University Hospital NHS Trust after being dismissed for gross misconduct. Following a 13-day hearing, the Employment Tribunal dismissed all claims, with written reasons sent on 8 December 2009. The Employment Appeal Tribunal dismissed the appeal at a preliminary hearing by order dated 29 April 2010, under appeal number UKEAT/0099/10/DM.

After earlier permission applications and an adjournment, Oso renewed her application for permission to appeal. The proposed grounds concerned the reasoning and alleged perversity of the race discrimination conclusions, fresh evidence from the Nursing and Midwifery Council, a race-relations questionnaire, and an alleged failure to comply with the statutory disciplinary procedure.

1. Disposition. The renewed application for permission to appeal was refused. There was no real prospect of successfully challenging the Employment Tribunal’s dismissal of the discrimination or unfair dismissal claims.
2. Tribunal reasons and discrimination. Rule 30 in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 required the tribunal to state the applicable law. Nevertheless, omission of a formal self-direction was not fatal where the tribunal’s findings showed that it had applied the correct law to the correct facts. Compliance remained important because it assists tribunals to focus on the relevant issues. The Tribunal’s reference to the burden not having shifted, and its finding that there was no evidence from which discrimination could be found, showed that it understood and applied section 54A of the Race Relations Act 1976. Express reference to the guidance in Wong v. Igen Ltd and others [2005] 3 All ER 812 was not essential.
3. Different treatment of persons of different racial groups was insufficient by itself to establish a prima facie case. The Tribunal had made extensive findings explaining the differing treatment of the nurses and had rational grounds for concluding that no prima facie case was established. There was no properly arguable basis for treating that conclusion as perverse.
4. Fresh evidence and unfair dismissal. The Nursing and Midwifery Council decision was irrelevant. The unfair dismissal inquiry involved the employer’s investigation, genuine belief on reasonable grounds and the reasonableness of the response, reflecting the tripartite Burchell inquiry in BHS Ltd v. Burchell [1980] ICR 303. It did not require determination of the claimant’s guilt or innocence.
5. Section 65 of the Race Relations Act 1976 did not impose a duty on the Tribunal, of its own motion, to identify and consider a questionnaire that the parties had not relied on. The proposed section 98A(2) point under the Employment Rights Act 1996 was fact-based, had not been properly raised before the Tribunal or the EAT, and could not properly be introduced before the Court of Appeal.

• Court of Appeal (Civil Division). The renewed application for permission to appeal was refused on 1 December 2011.
• Employment Appeal Tribunal. The applicant’s appeal from the Employment Tribunal was dismissed at a preliminary hearing by order dated 29 April 2010, under appeal number UKEAT/0099/10/DM.
• Employment Tribunal. After a 13-day hearing, the Tribunal dismissed the race discrimination and unfair dismissal claims. Written reasons were sent to the parties on 8 December 2009.