NHS Trust Development Authority v Saiger

A serious procedural irregularity constitutes an error of law only where the tribunal’s conduct has caused significant unfairness such that it would be unjust to allow the decision to stand. There is no inflexible requirement that every allegation be put expressly to every witness. The question depends on the issues, evidence and procedural context.

An employment tribunal errs in law where it draws an inference unsupported by primary facts, gives inadequate reasons for rejecting material evidence, or reaches a conclusion which cannot properly be sustained. Under sections 111 and 112 of the Equality Act 2010, actual instruction, causation, inducement or intentional knowing help must be proved; a mere capacity to act, participation or material involvement is insufficient. Exclusion from a recruitment stage may constitute a detriment even where appointment would have been unlikely.

Dr Saiger alleged that she had been victimised during a recruitment process for Director of Nursing at North Cumbria University Hospitals NHS Trust because she had previously brought race discrimination proceedings against the Trust.

The Employment Tribunal found that the Trust, the NHS Trust Development Authority and the recruitment agency had victimised her. It also found that, absent victimisation, she had a 50% chance of remaining on the long list but no chance of being shortlisted or appointed.

The TDA and the Trust appealed on grounds including evidential perversity, inadequate reasoning and serious procedural irregularity. Dr Saiger cross-appealed against the assessment of her hypothetical prospects. The central issues were whether the ET had drawn unsupported inferences, whether the Trust’s acceptance of the agency’s recommendation was itself victimisation, and how the hypothetical counterfactual should be assessed.

1. TDA appeal allowed. The ET’s finding that there had been a further conversation between Mr Blythin and Odgers on 20 December 2013 was unsupported by any primary fact. The documentary material pointed against, rather than established, that inference. The ET therefore erred in law.
2. The ET had also committed a serious procedural irregularity. It reached an inferential conclusion which was neither obvious nor sufficiently identified during the hearing without giving the relevant witnesses and parties a fair opportunity to address it. The irregularity caused significant unfairness.
3. The findings that Mr Blythin had been in a position to cause or induce a contravention, had participated in the decision, or had played a material part did not establish liability under sections 111 or 112 of the Equality Act 2010. Section 111 requires evidence of actual instruction, causation or inducement. Section 112 requires intentional knowing help. Section 111(7) does not exclude corporate bodies from the statutory scheme.
4. Trust appeal allowed in part. Exclusion from further consideration in a recruitment process could amount to a detriment despite the ET’s finding that the claimant was unlikely to be appointed. The threshold for detriment was low and a reasonable sense of grievance was sufficient.
5. However, the ET had not adequately explained its rejection of Ms Stringer’s non-discriminatory explanation. The Trust’s liability required proof that, through its agent, it accepted the recommendation at least partly because Dr Saiger had previously brought race discrimination proceedings. The ET’s references to endorsement and knowledge did not sufficiently establish or explain that causation. The matter was remitted to the same ET, principally for Ms Stringer’s evidence to be reconsidered and, if necessary, supplemented.
6. Cross-appeal dismissed. The hypothetical exercise required removal of the victimisation under consideration, not the historical discrimination which formed the protected act. Eliminating that earlier discrimination would be artificial and amount to double counting. The ET’s assessment was not perverse.

• Employment Tribunal: found victimisation by the TDA, the Trust and Odgers and assessed the claimant’s hypothetical recruitment prospects.
• Employment Appeal Tribunal: allowed the TDA appeal and substituted dismissal of the claim against the TDA; allowed the Trust appeal on inadequate reasoning and serious procedural irregularity and remitted the Trust’s liability issue to the same ET; dismissed the cross-appeal.