Moseka v. Sheffield Teaching Hospitals NHS Foundation Trust

An Employment Tribunal is entitled to find a capability dismissal procedurally fair where an employee declines to attend the dismissal hearing pending disclosure of material that is irrelevant to capability, particularly where the material is supplied before an appeal and the employee identifies no possible effect on the outcome.

Statistical evidence may support an inference of discrimination only if the data are probative of differential treatment because of the protected characteristic. A table showing variable grievance-handling times across racial or ethnic groups, without a reliable pattern, permits no safe inference of race discrimination.

The Claimant, a domestic and ward assistant employed by an NHS Trust, was dismissed for incapability arising from ill health. She brought claims including unfair dismissal, race discrimination and harassment. The Employment Tribunal dismissed all claims.

On appeal, the surviving grounds concerned the fairness of holding the capability dismissal hearing in her absence when she sought investigation notes relating to her grievances, and whether delay in resolving grievances could be inferred to be race discrimination from comparative statistics. The central issues were whether the Tribunal had made findings open to it on the evidence and whether its conclusions disclosed an error of law.

1. Appeal dismissed. The Employment Tribunal was entitled to conclude that the capability dismissal procedure was fair. The Claimant had been given a fair opportunity to attend the dismissal hearing and had been warned that it would proceed if she did not attend without good reason.

2. The investigation notes she sought concerned an independent investigation into grievances, rather than allegations against her or her capability for work. The report itself had been supplied. On the Tribunal’s findings, the notes were irrelevant to the decision-maker’s task of assessing fitness for work. The Claimant gave no evidence explaining how they could have affected the result. Any procedural concern was in any event cured at the appeal, where she had the notes but made no use of them. Leeds Teaching Hospital NHS Trust v Foster [2011] All ER (D) 57 (Sep) was factually different and did not apply.

3. The EAT could not substitute its own assessment of the evidence. The Tribunal had made reasoned findings that were open to it, including that there was no evidential link between the Respondent’s alleged conduct and the Claimant’s medical incapacity.

4. The Tribunal was also entitled to reject the race-discrimination complaint about delay. It had considered the grievance table and found that employees of different racial groups had experienced both shorter and longer handling times. The data did not provide a probative statistical basis for inferring that the delay in this case was because of race. The Tribunal was therefore entitled to find no less favourable treatment and no causal connection with race.

• Employment Appeal Tribunal: The Claimant’s appeal against the dismissal of her claims was dismissed: [2017] UKEAT 25_17_2809.
• Employment Tribunal: The Tribunal at Sheffield rejected claims of discrimination, harassment and unfair dismissal in a decision sent to the parties on 5 May 2016.
• Employment Appeal Tribunal (preliminary stage): Following Rule 3 proceedings, limited grounds were permitted to proceed to a Full Hearing. Other grounds were dismissed.