Dr Alaa Jalaal v Grampian Health Board & Ors

The Employment Appeal Tribunal dismissed the claimant's appeal against the Employment Tribunal's unanimous decision that her dismissal was fair. The primary legal question was whether the narrow exception in Royal Mail Group Ltd v Jhuti [2019] UKSC 55 (and the extension in Uddin v London Borough of Ealing [2020] IRLR 332) required attribution to the employer of the state of mind or actions of a separate body which removed the claimant's national training number. The EAT held that Jhuti is a narrow exception to the general rule in Orr v Milton Keynes Council 2011 ICR 704 that the relevant knowledge for assessing fairness under section 98 ERA is that of the person who made the dismissal decision. The EAT found no evidence of a hidden or manipulative reason for dismissal, and that the third respondent's actions were not to be treated as the acts of the first respondent for the purpose of assessing fairness under section 98 of the Employment Rights Act 1996.

Background and parties:

• The claimant was employed as a paediatrician by Grampian Health Board (first respondent) but carried out most duties at Ninewells Hospital under arrangements involving Tayside Health Board (second respondent) and NHS Education for Scotland (third respondent). Her continued employment required holding a national training number and participation in an approved postgraduate training programme administered by the third respondent.
• An Annual Review of Competency Progression held on 26 February 2020 resulted in an Outcome 4 that removed the claimant's training number. The claimant appealed that ARCP outcome but the appeal was refused and the training number was removed. The first respondent informed the claimant that without a training number she could not remain in post and she was dismissed on 26 November 2020.

Claims and procedural history:

• The claimant brought claims for disability discrimination under sections 15, 20 and 53 of the Equality Act 2010 and for unfair dismissal under section 98 of the Employment Rights Act 1996. The Employment Tribunal dismissed all claims.
• The claimant appealed. A Rule 3(10) hearing before Eady P permitted two of the nine grounds (grounds 7 and 8) to proceed to a Full Hearing before the Employment Appeal Tribunal. The Full Hearing before the EAT was held on 13 June 2024.

Issues before the EAT:

1. Whether the Employment Tribunal erred in law by failing to apply the principle in Royal Mail Group Ltd v Jhuti and the decision in Uddin to attribute to the first respondent the state of mind or acts of the third respondent, such that the dismissal should be treated as unfair.
2. Whether the general principle in Orr, that the relevant knowledge for assessing reasonableness under section 98(4) ERA is that of the person who made the dismissal decision, was displaced by the circumstances of this case.

Court's reasoning:

• The EAT accepted the respondents' submission that Orr establishes the general rule that the knowledge and beliefs of the decision-maker count for assessing fairness under section 98 ERA, and that Jhuti creates only a narrow exception to that rule where a manager higher in the employer's hierarchy conceals a true reason for dismissal and the deceived decision-maker adopts a false reason. The EAT noted that Uddin must be read subject to Jhuti.
• The EAT found no evidence of manipulation or a hidden reason for dismissal and recorded the Employment Tribunal's explicit and unchallenged finding on that point. The tribunal also found that the third respondent's acts in relation to the training number were matters over which the first respondent had no control or influence.
• Given the absence of the conditions for applying the Jhuti exception, and the fact that distinct entities were involved, the EAT concluded that the Employment Tribunal permissibly reached the conclusion that the dismissal was for some other substantial reason, namely the loss of the training number, and that the Jhuti/Uddin principles did not apply to render the dismissal unfair.

Relief sought:

• The claimant sought to overturn the Employment Tribunal's finding that the dismissal was fair and to rely on attribution principles in Jhuti/Uddin to establish unfairness. The EAT refused that relief and dismissed the appeal.

The appeal is dismissed. The EAT held that the Employment Tribunal had not erred in law. Jhuti is a narrow exception to the general rule in Orr that the relevant knowledge for assessing the reasonableness of a dismissal under section 98 ERA is that of the person who made the dismissal decision. There was no evidence of a hidden or manipulated reason for dismissal and the third respondent's actions could not be attributed to the first respondent in the circumstances of distinct entities, so the conditions for applying Jhuti and Uddin were absent.

A Rule 3(10) hearing before Eady P (order dated 13 July 2023) permitted two of nine grounds of appeal (grounds 7 and 8) to proceed. The appeal was then determined at a Full Hearing before the Employment Appeal Tribunal (The Honourable Lady Haldane) on 13 June 2024, reported as [2024] EAT 97.