Daly v The Newcastle Upon Tyne Hospitals NHS Foundation Trust (Appellate jurisdiction : reasons : Burns- Barke : Costs), Court of Appeal - United Kingdom Employment Appeal Tribunal, March 22, 2019,  UKEAT 0107_18_2203
|Resolution Date:||March 22, 2019|
|Issuing Organization:||United Kingdom Employment Appeal Tribunal|
|Actores:||Daly v The Newcastle Upon Tyne Hospitals NHS Foundation Trust (Appellate jurisdiction : reasons : Burns- Barke : Costs)|
Appeal No. UKEAT/0107/18/DA
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
On 22 March 2019
HER HONOUR JUDGE EADY QC
MR S DALY APPELLANT
THE NEWCASTLE UPON TYNE HOSPITALS
NHS FOUNDATION TRUST RESPONDENT
Transcript of Proceedings
PRACTICE AND PROCEDURE - Appellate jurisdiction/reasons/Burns- Barke
PRACTICE AND PROCEDURE - Costs
The Claimant had pursued some 27 allegations of disability discrimination before the Employment Tribunal (``ET''). After a fully contested hearing over five days, the ET had dismissed the Claimant's claims. In providing its reasons, the ET set out its findings on each matter separately, under a summary of the allegation itself, and referred back to those findings - by paragraph number - when setting out its conclusions.
Subsequently, the ET made an order for costs against the Claimant.
The Claimant appealed both decisions. On the ET's Judgment on Liability, he complained that its reasoning was inadequate: the ET had failed to make findings on some allegations; where it had made findings, it had failed to explain why it had formed the view that it had; it had failed to explain its position on critical documentary evidence; and it had failed to explain why it had reached the position it had when setting out its conclusions. The Claimant also raised a procedural issue regarding late disclosure by the Respondent. On the Costs Judgment, the Claimant contended that the ET had failed to demonstrate that it had considered its exercise of discretion - an essential second stage of the decision-making process.
Held: allowing the liability appeal in part and allowing the costs appeal.
In most respects, taking the ET's reasoning as a whole, the ET's findings were apparent and it was clear to the reader (particularly the parties, who did not come to the Judgment as strangers to the case) why the ET had preferred the evidence of the Respondent to that of the Claimant and why it had reached the view it had. As for the documentary evidence, it was unclear whether the points made on appeal had been raised below or what the oral evidence had been; in the circumstances, the Claimant could not make good his challenge to the adequacy of the reasons on this basis. The Claimant's appeal would, however, be allowed in relation to allegations X and Y - relating to his complaint that false reports had been made against him and that statements and evidence to support those reports were not provided to him; it was not possible to see that the ET had made findings on these points and, to that limited extent, the liability appeal would be allowed. The additional objection made, in respect of what the Claimant contended was a procedural irregularity, did not, however, establish any unfairness: the new material had added nothing of substance to what was already before the ET.
As for the costs appeal, there were three stages to the ET's consideration of costs application: (i) to determine whether its jurisdiction to make a costs award was engaged; (ii) if so, to then consider whether it should make costs award in that case (the use of the word ``may'' made clear this was a matter of discretion); (iii) to determine the amount of any such award. In the present case, there was nothing to suggest that the ET had understood it had a discretion in making an award of costs, the reasoning moved straight from (i) to (iii). That was an error of law and the Claimant's appeal would be allowed.
HER HONOUR JUDGE EADY QC
These appeals raise issues as to the adequacy of the ET's reasons and as to the correct approach when determining a costs application. In giving this Judgment, I refer to the parties as the Claimant and Respondent, as below.
This is the Full Hearing of the Claimant's appeal against two Judgments of the Employment Tribunal (``the ET''), sitting at North Shields. The first (UKEAT/0107/18) is an appeal against the ET's Judgment on Liability, promulgated on 30 May 2017, after a Full Merits Hearing from 27-31 March 2017, with a further day in chambers on 12 May 2017, (``the Liability Judgment''). By that Judgment, the ET dismissed the Claimant's claims of unlawful disability discrimination and public interest disclosure detriment. The second appeal (UKEAT/0155/18) is from the Judgment promulgated on 13 October 2017, by which the ET allowed the Respondent's application for costs in the sum of £3,000, (``the Cost Judgment'').
Before the ET, the Claimant was represented by a worker from the Gateshead Citizens Advice Bureau (``the CAB''). The Respondent was represented by a Solicitor. On this appeal, both parties are represented by counsel, Mr Purchase appearing pro bono through Advocate.
Upon initial consideration on the papers, HHJ Barklem was unable to see that the appeal against the Liability Judgment disclosed any reasonable basis to proceed. After a Hearing pursuant to Rule 3(10) EAT Rules 1993 (as amended) before Slade J (at which Mr Purchase first appeared for the Claimant then acting under the Employment Law Advice and Assistance Scheme - ``ELAAS''), the Claimant's appeal was permitted to proceed on amended grounds, which can be summarised as follows:
(1) Given that this was a complex case, in which the ET was required to determine some 27 distinct core allegations and where there was little common ground, the ET failed to provide adequate reasons for the decisions it reached.
(2) The ET erred in law and its determination as to whether the relevant conduct had the prescribed effect, so as to amount to harassment for the purposes of section 26 Equality Act 2010 (``the EqA'').
(3) Further, and in the alternative, the hearing was rendered procedurally unfair by the Respondent's disclosure - after close of business on the penultimate day - of relevant evidence that bore on the credibility of its core witness, Ms Kerridge.
As Mr Purchase (acting for the Claimant) has acknowledged, the approach adopted to section 26 EqA by the Court of Appeal in Pemberton v Inwood  ICR 1291 (see, in particular, the Judgment of Underhill LJ at paragraph 88) presents a material difficulty for the second of the amended grounds. In the circumstances, that is not a point that he has sought to develop at this stage, albeit reserving his right to argue ground 2 on any further appeal.
As for the second appeal, after consideration on the paper sift, by HHJ Richardson, that was permitted to proceed to a Full Hearing on the question whether the ET erred in law by moving straight from a finding that parts of the claim had no reasonable prospect of success, to the conclusion that costs should be awarded, without considering whether it should exercise its discretion to make a costs award in this case.
For its part, the Respondent resists both appeals, relying on the reasoning provided by the ET.
The Factual Background and the ET's Decisions and Reasoning
The Claimant was employed by the Respondent as a Health Care Assistant. He started on 16 March 2015, initially undertaking a two-week placement at the Respondent's Healthcare Academy and then moving to work on Ward 27 of the Respondent's Freeman Hospital where he worked a total of 30 shifts before going on sick leave on 14 May 2015.
The Claimant has a congenital deformity of his right hand, which the Respondent accepted amounted to a disability for the purposes of the EqA. He had also suffered from stress and anxiety although he did not rely on those matters for the purposes of his EqA claims before the ET. It was the Claimant's case that there was a culture of disability discrimination prevalent on Ward 27 and he brought claims in the ET under section 15 `Discrimination arising from disability' and section 26 `Harassment related to disability' of the EqA. He also argued that his grievance had amounted to a protected disclosure and that he had suffered a detriment in consequence.
Relevant to his claims before the ET the Claimant had kept a diary of events and he relied heavily on his diary entries in pursuing his claims. Specifically, the Claimant raised some 27 separate factual allegations that the ET was required to determine, albeit he accepted that not all the matters he had cited were related to his disability.
The ET noted that the Claimant had previously worked as a Mental Health Nurse with another NHS Trust and had successfully pursued a disability discrimination case against his former employer and had brought other disability discrimination claims in the past. As he explained to the ET, if the Claimant perceived something to amount to an injustice he found it difficult to let things go.
When the Claimant started to work on Ward 27 he believed that all the staff had been told that he had previously been a Registered Nurse but that he could no longer pursue that career. He felt that they had, in consequence, formed the view that he was weak because of his disability; more specifically, the Claimant felt he was treated in a bullying and humiliating way because the other staff knew he was starting a new career for a reason connected with his disability. The ET however, rejected the Claimant's assertion that the two ward sisters, Sister Kerridge and Sister Cowey had told the other members of staff that he had previously been a Registered Nurse; it found this was something that only became known to those working on the ward as and when the Claimant himself mentioned it.
When considering the Claimant's case, the ET had the benefit of hearing from some 13 witnesses and had before it a trial bundle of over 1,000 pages (although it is unclear how many of those documents were referred to during the hearing). In addressing the issues raised in the Claimant's claims, the ET...
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