Simmonds v Salisbury NHS Foundation Trust

In an appeal from an Employment Tribunal, a conclusion that an employer acted reasonably or that statutory justification was established is an evaluative judgment. Appellate intervention requires an error of law; where the complaint concerns the evaluative conclusion itself, the threshold is perversity. An employer facing an irretrievable breakdown between employees may make a difficult choice between dismissing one or the other. The fact that one employee was previously disciplined is relevant but does not dictate the outcome. A tribunal may require medical evidence for a claimed disability. Representation by a non-professional advocate does not itself deny a fair hearing. Advocacy complaints require particularised evidence showing the specific omission and its effect.

Louise Simmonds’ claims against Salisbury NHS Foundation Trust for unfair dismissal and disability discrimination were dismissed by an Employment Tribunal after a 12-day hearing. The claims included alleged failures to make reasonable adjustments and discrimination arising from disability under sections 20 and 15 of the Equality Act 2010.

Simler J, sitting in the Employment Appeal Tribunal under rule 3(10) of the Employment Appeal Tribunal Rules 1993, rejected the proposed appeal. The Court of Appeal considered six grounds concerning the choice to dismiss Simmonds rather than a colleague, the date and evidential basis of the claimed disability, and whether deficiencies in her representation caused an unfair hearing. The central issue was whether the Employment Tribunal had made an error of law.

Lord Justice Underhill gave the judgment, with Lord Justice McFarlane associating himself entirely with it. The appeal was dismissed.

1. The Employment Tribunal was entitled to decide whether the Trust’s conduct was reasonable or justified in the context of the Equality Act 2010 and unfair dismissal. An appeal on such an evaluative issue requires an error of law. Where the challenge is to the conclusion itself, the appellant must show perversity, which is a high threshold.
2. The Trust faced an irretrievable breakdown between two employees who could not work together despite reasonable efforts, including mediation. The department could not be divided and neither employee could be redeployed. Choosing which employee to dismiss was therefore a difficult evaluative judgment. The fact that the colleague had previously bullied Simmonds and had been disciplined was relevant, but it did not make dismissal of that colleague the only reasonable course.
3. The Tribunal was entitled to require medical evidence for the asserted earlier disability. The appellant’s witness statements did not compel a different conclusion. A poorly chosen description of her resistance as intransigent did not undermine the Tribunal’s reasoning when its Reasons were read as a whole.
4. The Tribunal had effectively ensured a fair hearing despite the appellant’s non-professional representation. It identified the issues, understood the evidence and addressed the arguments. Alleged failures by the representative could not establish unfairness without particularised evidence identifying the omission and showing the difference it made.
5. The court expressed doubts, referring to R (Rentmore) v Hampshire County Council [2004] EWHC 3193 (Admin), about whether representative incompetence could ever found an appeal in ordinary inter partes civil proceedings, but expressly declined to decide that question. The appeal was dismissed on the straightforward conclusion that no unfair hearing had been shown.

• Court of Appeal (Civil Division). The appeal from the Employment Appeal Tribunal was dismissed: [2018] EWCA Civ 1864.
• Employment Appeal Tribunal. Simler J, acting under rule 3(10) of the Employment Appeal Tribunal Rules 1993, rejected the proposed appeal.
• Employment Tribunal. Employment Judge Kolanko, sitting with lay members, dismissed the claims of unfair dismissal and disability discrimination after a 12-day hearing.