Labour & European Law Review Weekly Issue 296 22 November 2012
When considering whether to allow one of the parties to a claim to call witnesses at a late stage in the proceedings, the Employment Appeal Tribunal (EAT) said in North Bristol NHS Trust v Harrold that tribunals must consider the interests of claimants and not accede automatically to the wishes of the respondent (the employer).
Ms Harrold brought a claim of direct race discrimination against her employer for reporting her to the Nursing and Midwifery Council (NMC) in November 2006, having not reported a white colleague who had committed a criminal act. She also brought a claim of victimisation arguing that her employer gave false evidence against her at the NMC as a result of which she was struck off.
The two issues were identified at a case management hearing on 23 November 2010 although Ms Harrold withdrew the second allegation before the actual tribunal hearing in March 2011. As the claim had become one of victimisation by the time the hearing started, the tribunal identified that the protected acts were two sets of proceedings that she had brought in the past.
On the second day of the hearing, the tribunal asked to see two letters that Ms Harrold had written in June 2006 (which contained allegations of race discrimination) and which the Trust had referred to in the NMC letter as part of its reasoning for referring her to the Council on grounds of professional misconduct.
The Trust produced these on the morning of the third day, when a discussion also took place about the inclusion of a hypothetical comparator as well as the actual comparator named by the claimant at the outset. The Trust went on to argue that if the tribunal was also going to consider the sending of these two letters as protected acts, then it should be granted an adjournment to call as witnesses the two members of staff who had made the reference to the NMC.
The tribunal rejected the Trust’s application, saying that it should have made the request at the start of the hearing when further witnesses could have been accommodated.
Given that the Trust had always been in the position to ask the two members of staff who referred Ms Harrold to the NMC to appear as witnesses, the tribunal said that “no proper reason has been given for them not having done so and that the broadening of the protected acts to include letters written in June 2006 does not alter that reality”.
It also upheld part of Ms Harrold’s claim, stating that it was her decision to bring tribunal proceedings in September 2006 which prompted the Trust’s decision to refer her to the NMC two months later.
The EAT upheld the tribunal’s decision to refuse the adjournment for two reasons. Firstly it had been right to point out that the Trust had always been in a position to call as witnesses the two employees who made the referral to the NMC and the fact that the protected acts had been broadened to include letters written in June 2006 did not change that fact.
Secondly, it said that tribunals must consider the interests of claimants and not accede automatically to the wishes of the respondent employer. In coming to its conclusion, the EAT took into account the judge’s statement in the case of Stanley Cole (Wainfleet) Ltd v Sheridan - that “the hearing will not have been unfair if it has caused no substantial prejudice to the party claiming to be aggrieved”.
In this case there was no injustice to the Trust, which should always have realised that it was “vital” to call as witnesses the employees who made the referral to the NMC and there was no excuse for its failure to do so.
This case does not make new law but shows how the existing law should be applied. It also repeats the contention that a tribunal will not be bound by parties’ agreed lists of issues in circumstances where the tribunal feels it is in the interests of justice to look at the case more widely, although in this case the claimant was unrepresented at the original hearing and therefore may have been afforded more latitude than represented parties.