North Bristol NHS Trust v Harrold

An Employment Tribunal may refuse an adjournment where the party seeking it could already have called the material witnesses and suffers no substantial prejudice. Fairness is assessed in the round, having regard to the opposing party and the need to determine proceedings fairly and expeditiously.

A case-management list of issues does not confine the Tribunal irrevocably. The Tribunal must ensure that the issues and the necessary comparison required by the governing statutory definition are properly addressed. Fresh evidence will not justify review or admission on appeal where it could, with reasonable diligence, have been obtained for the original hearing and would not probably have had an important influence on the result.

The Trust appealed against an Employment Tribunal decision, sent on 18 April 2011, upholding Mrs Harrold’s victimisation claim arising from her referral to the Nursing and Midwifery Council. It also appealed refusals, dated 4 and 10 May 2011, to review that decision.

At the liability hearing the Tribunal refused the Trust an adjournment to call the two senior nurses who decided upon the referral. The Tribunal treated the claimant’s June 2006 letters alleging racial discrimination as protected acts, but found that fresh proceedings begun in September 2006 were the principal causative factor in the referral.

The Trust further sought to introduce witness statements and documents as fresh evidence. The central questions were whether the adjournment and review decisions were unfair or erroneous in law, and whether the proposed evidence met the conditions in Ladd v Marshall [1954] 1 WLR 1487.

1. Appeal dismissed. The Employment Tribunal was entitled to refuse the adjournment. The decisive issue was why the claimant had been referred to the Nursing and Midwifery Council. The Trust had always been able to call the actual decision-makers to explain that decision, yet gave no proper reason for not doing so. The later identification of the June 2006 letters as protected acts did not alter that position.

2. The Tribunal was required to assess fairness as a whole. It was entitled to weigh the prejudice to an unrepresented claimant and the need for an expeditious hearing. There was no substantial prejudice to the Trust. Moreover, the Tribunal’s finding rested on the September 2006 proceedings, not on the June 2006 letters, so an adjournment would not necessarily have affected the result.

3. The issue list in a case-management decision did not prevent the Tribunal from considering a hypothetical comparator. A Tribunal has its own duty to ensure that the case is clearly and efficiently presented. The Trust’s counsel in fact addressed the hypothetical comparator in written submissions and raised no objection during the hearing.

4. The court added that the statutory definition of victimisation in section 2 of the Race Relations Act 1976 required consideration of how the alleged discriminator treated or would treat other persons. That necessarily entailed a hypothetical comparison.

5. The review applications failed under rule 34(3)(d) of the Employment Tribunal Rules of Procedure 2004. Evidence from the author of the referral letter was evidence that the Trust could reasonably have known of and obtained before the hearing.

6. The proposed fresh evidence also failed the Ladd v Marshall conditions. The Trust did not show reasonable diligence in obtaining witness or documentary evidence, and the material would not probably have had an important influence on the result. The application to adduce it was refused.

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal upheld the Employment Tribunal’s refusal of an adjournment and review, and refused permission to adduce fresh evidence.
• Employment Tribunal: By a decision sent on 18 April 2011, upheld the claimant’s victimisation claim. It refused review applications by decisions dated 4 and 10 May 2011.