North Cumbria University Hospitals NHS Trust v Saiger & Ors (Practice and Procedure)

A serious procedural irregularity is an error of law only where it causes injustice or renders the tribunal’s decision unsafe. The so-called rule in Browne v Dunn is not an inflexible procedural rule. Its application depends on the whole context, although a tribunal will usually act unfairly if it reaches an unheralded inferential finding without allowing the affected witness and parties to address it.

Under the Equality Act 2010, liability for instructing, causing, inducing or knowingly helping a basic contravention requires proof of the statutory conduct. A finding that a person was merely able to influence, participated in a decision, or gave general support is insufficient. Exclusion from further consideration in an appointment process can nevertheless be a detriment.

The Employment Tribunal upheld Dr Saiger’s victimisation claims arising from her exclusion from the recruitment process for a Director of Nursing post. It found the Trust, an executive-search firm and the NHS Trust Development Authority liable. It also found that, absent victimisation, Dr Saiger had a 50% chance of remaining on the long list but no prospect of being shortlisted or appointed.

The Authority and the Trust appealed. The Authority challenged an inference that its employee had a further conversation with the search firm on 20 December 2013 and had participated knowingly in the exclusion. The Trust challenged the finding that its agent had accepted a recommendation for a victimising reason. Dr Saiger cross-appealed against the assessment of her counterfactual prospects.

1. The Authority’s appeal was allowed. The Tribunal’s inference that its employee had a further relevant conversation with the search firm on 20 December 2013 lacked any supporting primary fact. The contemporaneous material pointed against that inference. The Employment Tribunal also acted unfairly by reaching that unheralded inferential conclusion without giving the relevant witnesses and parties an opportunity to address it. In the exceptional circumstances identified in Lincoln College v Jafri, the Appeal Tribunal could conclude that the inference could never be drawn and substituted dismissal of the claim against the Authority.

2. Further, the Authority could not be liable under sections 111 or 112 of the Equality Act 2010 merely because its employee was in a position to cause or induce a contravention, participated in a decision, or played a material part. Liability required evidence that he had in fact instructed, caused or induced the basic contravention, or knowingly helped it. Section 111(7) did not generally exclude corporate bodies from the statutory scheme.

3. The Trust’s appeal was allowed and remitted. Removing an applicant from further consideration at a preliminary interview stage could amount to a detriment, despite a finding that she had no ultimate prospect of appointment. The Employment Tribunal was entitled to find a prima facie case requiring an explanation from the Trust. However, it gave inadequate reasons for rejecting its agent’s non-discriminatory explanation and, in the circumstances, should have ensured that she could answer the allegation that her true motivation was the protected act.

4. The remittal was confined to the Trust’s liability and the agent’s evidence, subject to any further directions of the same Employment Tribunal. The cross-appeal was dismissed. In reconstructing the counterfactual world for victimisation, the earlier discrimination forming the protected act was not to be removed from history; doing so would be artificial and risk double counting.

• Employment Appeal Tribunal: The Authority’s appeal was allowed and the claim against it dismissed. The Trust’s appeal was allowed and remitted to the same Employment Tribunal on a confined issue. Dr Saiger’s cross-appeal was dismissed: [2017] UKEAT 0276_15_1707.
• Employment Tribunal: It upheld victimisation claims against the Trust, the Authority and the search firm. Its decision was sent to the parties on 30 January 2015, with reconsideration reasons sent on 8 April 2015.