Oso v Newham University Hospital NHS Trust

The court considered a renewed application for permission to appeal against an Employment Appeal Tribunal order of 29 April 2010 which dismissed the appellant's appeal from an Employment Tribunal judgment (sent 8 December 2009) that had rejected claims of race discrimination and unfair dismissal. The Employment Tribunal had made extensive factual findings after a 13-day hearing and applied the tripartite Burchell test for unfair dismissal.

The principal legal issues were whether the ET had given sufficient reasons (including compliance with rule 30 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004), whether it had properly applied the burden of proof provisions (section 54A of the Race Relations Act 1976 and related authorities such as Wong v. Igen Ltd), and whether its conclusions on direct race discrimination were perverse or irrational in light of the facts found. The court held that although the ET's conclusions were brief and could have made express reference to authorities and statutory provisions, it was apparent from the judgment that the ET applied the correct legal principles and that there was no reasonably arguable error of law or irrationality in its conclusions. The renewed permission application was refused.

Background and parties:

• The appellant, Adebola Oso, and a co-claimant, a career nurse and both formerly employed in the respondent's neonatal unit, brought claims of race discrimination and unfair dismissal following suspension and summary dismissal for gross misconduct in 2008. The Employment Tribunal heard the claims over 13 days and dismissed all claims on 8 December 2009.
• The respondent was Newham University Hospital NHS Trust. The appellant sought permission to appeal the EAT's decision dismissing her appeal from the ET; permission was refused by the EAT on 29 April 2010 and subsequent handling by single judges and by the Court of Appeal is set out below.

Procedural history to this court:

• Employment Tribunal decision: 8 December 2009 (claims dismissed).
• Employment Appeal Tribunal: order dated 29 April 2010 dismissing the appellant's appeal following a preliminary sifting hearing.
• Mummery LJ refused permission on the papers on 14 December 2010. The appellant renewed the application orally before Pill LJ on 9 June 2011; Pill LJ adjourned to enable further inquiries. The renewed application returned and was heard by Rimer LJ on 9 November 2011 with judgment handed down on 1 December 2011.

Nature of the application and issues before the Court of Appeal:

• The appellant sought renewed permission to appeal against the EAT's order. She proposed to argue that the ET's conclusions on direct race discrimination were perverse or inadequately reasoned, that the ET had failed to apply or refer to the relevant burden of proof principles (section 54A RRA 1976 and the Court of Appeal guidance in Wong v. Igen Ltd), that rule 30( Schedule 1, Employment Tribunals Rules) required a clearer statement of applicable law and conclusions, and that fresh evidence (an NMC decision of 16 November 2010) should be admitted. A written ground relying on an alleged failure to follow statutory disciplinary procedure (automatic unfair dismissal under section 98A(2) Employment Rights Act 1996) was also advanced but had not been argued before the ET.

Court's reasoning and disposition:

• The court reviewed the ET's lengthy factual findings and concluded that, despite the brevity of the formal conclusions, the ET clearly understood and applied the burden of proof provisions and relevant legal principles. The ET expressly held that the burden of proof had not shifted to the respondent and found there was no evidence from which an act of discrimination could be inferred. The Court of Appeal concluded there was no reasonably arguable misdirection of law.
• The court rejected the bid to admit the NMC decision and accepted that its contents, even if favourable to the appellant, would be irrelevant to the discrimination and unfair dismissal issues which turned on the ET's contemporaneous findings and the reasonableness of the employer's investigation and belief (the Burchell inquiry).
• The court also rejected the contention based on section 65 of the Race Relations Act and held that the point about a race relations questionnaire was not properly pleaded or relied upon and provided no basis for permission.

Outcome:

• Renewed application for permission to appeal refused for lack of any real prospect of success.

The renewed application for permission to appeal was refused. The court held that although the Employment Tribunal's formal conclusions were brief and could have made express reference to rule 30 and authorities such as Wong v. Igen Ltd or section 54A of the Race Relations Act 1976, it was plain from the Tribunal's detailed factual findings and its stated conclusions that the correct legal principles had been applied. There was no reasonably arguable error of law, no irrational conclusion on direct race discrimination arising from the facts found, and subsequent material (the NMC decision) was irrelevant to the ET's reasoning; accordingly permission to appeal was denied.

Employment Tribunal: judgment with reasons sent 8 December 2009 (claims dismissed). Employment Appeal Tribunal: appeal dismissed by order of 29 April 2010 following a preliminary hearing. Mummery LJ refused permission on the papers on 14 December 2010. Pill LJ heard an oral renewal on 9 June 2011 and adjourned to permit further inquiries. The renewed application returned to the Court of Appeal and was refused by Rimer LJ (hearing 9 November 2011; judgment 1 December 2011).