My Fight for Justice Before the Employment Appeal Tribunal (EAT)
I worked for Brighton and Sussex University Hospitals (BSUH) NHS Trust for 34 years as a Clinical Biochemist and a senior manager before my unfair dismissal in 2017. From 2004 onwards I also Chaired the local, regional and national Black and Minority Ethnic (BME) Networks in a voluntary capacity, the aim and objective being to challenge the institutional racism in BSUH and the NHS more widely, which has blighted the lives of BME staff and BME patients for decades. I am the current Chair for the NHS BME Network.
My campaign for racial justice in the NHS, including my empowerment and defence of numerous BME staff over the years, made me a target; which has resulted in 3 successful Employment Tribunal claims against BSUH twice on merits (2007 and 2018) and the other by way of settlement (2009), for race discrimination and victimisation.
My last 3 Employment Tribunal claims, for discrimination, victimisation, whistle blowing and unfair dismissal were all unsuccessful. It is my position that my claims were lost not because they lacked merit but rather because of the violations of my right to a fair trial. However, my challenge to the European Court of Human Rights in this regard in relation to the single point of bias by the Tribunal concerning my unfair dismissal, victimisation and whistleblowing claim was unsuccessful.
That said, it was following a Rule 3(10) hearing before the EAT concerning my unfair dismissal, victimisation and whistleblowing claim in May 2021 that the EAT ordered that my appeal against the Employment Tribunal’s decision to dismiss my claim should be allowed to proceed to a full appeal hearing on four of the remaining six grounds of appeal against the Employment Tribunal Judgment.
However, at my request the EAT stayed the above appeal to allow me to first apply to the Employment Tribunal for a reconsideration of its Judgment issued on 13 March 2019 because new evidence had come to light, which shows that the then CEO Ms. Griffiths did indeed take my previous Employment Tribunal claims into consideration when she decided to dismiss me from my post as Associate Director of Transformation. It is because my employment tribunal claims are ‘protected acts” that Ms. Griffiths’ conduct in this regard amounts to victimisation.
It was Ms. Griffiths’ evidence to the Tribunal under oath that she did not take my previous Employment Tribunal claims into account when deciding to dismiss me from my post. In light of the new evidence it was my reconsideration application to the Employment Tribunal that the Employment Tribunal Judgment should be revoked on the grounds that Ms. Griffiths did indeed victimise me in deciding to dismiss me from my post as Associate Director of Transformation and as such my dismissal is automatically unfair.
The reconsideration hearing took place on 22 February 2022 and 23 February 2022 and the Employment Tribunal Judgment, dismissing my reconsideration application, was made available on 25 February 2022.
On 15 March 2022 I lodged an appeal with the EAT against the Employment Tribunal Judgment dated 25 February 2022 on the sole ground of appeal “A Perverse Judgment”. The Judgment being “perverse” because this is an overwhelming case whereby no reasonable Tribunal would have made the findings of fact that the Balogun Tribunal made based on the evidence before it. It is the case that numerous findings of facts detailed in the Judgment are simply not true.
For example there is no dispute between the parties that Ms. Griffiths’ reference to Employment Tribunal claims in an article published by the Health Service Journal (HSJ) on 8 July 2019, detailing her comments at a roundtable event, was a direct reference to my Employment Tribunal claims. It is a fact that the Respondents’ Counsel, Mr. Kibling, Matrix Chambers, had submitted in writing to an earlier Employment Tribunal in a tribunal claim brought by the BME Network for BSUH for victimisation ( in relation to Ms. Griffiths’ comments as published by the HSJ), that Ms. Griffiths was specifically referring to my Employment Tribunal claims when she made the comment to the HSJ and therefore the BME Network could not bring a claim of victimisation against BSUH or Ms. Griffiths, because it was not about the members of the BME Network.
As such the Respondents’ (including Ms. Griffiths as the Third Respondent) Counsel’s written submission before the Tribunal, which forms the basis of my reconsideration application, confirms that Ms. Griffiths was specifically referring to my employment tribunal claims. However, it is the Tribunal’s finding of fact (see paragraph 9) that it is the Respondents’ Counsel submission that it is Mrs. Griffiths’ reference to “the extremist, very anti-organisational BME structure …..excluding anyone who was LGBT…” in the HSJ article that was a reference to my claim i.e not Ms. Griffiths’ reference to Employment Tribunal cases in the article. It is evident that this ‘finding of fact’ by the Tribunal is not only perverse, but also dishonest.
Another example it is the Tribunal’s ‘finding of fact’ (see paragraphs 15 and 16) that I was asking it [the Tribunal] to infer that Ms. Griffiths’reference to employment tribunal claims was a reference to my employment tribunal claims. To reiterate given the Respondents’ Counsel’s submission makes very clear that Ms. Griffiths’ reference to employment tribunal claims in the article was a reference specifically to my employment tribunal claims then it is evident that this finding of fact by the Tribunal is also not only perverse, but also dishonest.
It is a fact that many more ‘findings of facts’ by the Tribunal as detailed in its Judgment dated 25 February 2022 are both perverse and dishonest.
On 19 July 2022 the EAT ordered that my appeal should be set down for a full appeal hearing and that it should be joined with my other appeal.
Whilst I agree that both appeals should be addressed at the same EAT hearing (because they both relate to my Employment Tribunal claim for unfair dismissal, victimisation and whistleblowing) I also believe that the EAT should be required to issue two EAT Judgments, one for each appeal in order for justice to be done and be seen to be done. This is also further justified by the fact that the grounds of appeals for the two appeals are unrelated.
I have been informed by the EAT that it will be for the Tribunal presiding over the appeals to decide whether there should be one or two EAT judgments from the full appeal hearing.
My fight for justice over the last 5 years since my dismissal in 2017 has been relentless, but I know this battle is not mine it is the Lords and I continue to stand by faith that justice will eventually prevail.
Justice for me is Justice for us.
Dr. Vivienne Lyfar-Cissé
Decision of the European Court of Human Rights (ECHR) Concerning my Application
On 12 October 2021 I was notified by my international lawyer that the ECHR had dismissed my application concerning the violation of my right to a fair trial. It was the decision of the ECHR that my application did not meet the admissibility criteria set out in Articles 34 and 35 of the Convention and therefore was inadmissible.
The UK Human Rights Act passed in 1998 incorporates the European Convention on Human Rights into UK law. This was not directly impacted by Brexit as neither the Convention nor the court are part of the EU. However, the UK Government has made it clear that it intends to overhaul its ties with the ECHR.
It is noteworthy that on 17 October 2021 the Sunday Telegraph reported that the Justice Secretary Dominic Raab said in an interview that the ECHR was imposing too many “obligations on the state”. Furthermore, that he is formulating a mechanism to allow the government to introduce ad hoc legislation to “correct” ECHR judgments when British ministers believe they are not correct. He is reported as stating:
“I don’t think it’s the job of the European Court….to be dictating things to, whether it’s the NHS, whether it is our welfare provision, or whether it’s our police forces”
There was therefore every chance that had the ECHR upheld my application the decision would have been “corrected” by the UK Government in any event.
Although this outcome is disappointing I am pleased that I pursued my claim as far as I could take it and I stand in faith that ultimately this battle is not mine.
My Appeal Before the Employment Appeal Tribunal (EAT) Concerning my Unfair Dismissal
On 29 March 2022 I wrote to the President of the EAT the Honourable Mrs Justice Eady DBE to notify her of a conflict of interest issue given in 2013 she was instructed as Counsel by my then employer Brighton and Sussex University Hospitals (BSUH) concerning my third claim against BSUH and others for racial discrimination and victimisation. The Tribunal eventually ruled that both BSUH and its then HR Director Mr. Graham White had subjected me to race discrimination in the form of victimisation contrary to s.27(1) Equality Act 2010. On 8 April 2022 the President agreed to recuse herself from any consideration of my two appeals before the EAT.
Following a Rule 3(10) hearing on 20 May 2021 the EAT permitted my appeal (against the judgment of Employment Judge Baron dated 13 March 2019 in relation to my unfair dismissal) to proceed to a full appeal hearing on 4 of the remaining 6 Grounds of Appeal lodged. The Order from the EAT also gave me permission to submit an application to the Employment Tribunal for a reconsideration of the same judgment based on new evidence that came to light after Employment Judge Baron’s judgment was published.
The EAT agreed for my appeal to remain stayed until the Employment Tribunal had decided my reconsideration application. The EAT Order also required the Employment Tribunal Judge Baron to provide a response to my Affidavit concerning evidence heard during the original proceedings in relation to Mrs. Griffiths’ application of Regulation 5 to my then job role. On 3 November 2021 the REJ of the Employment Tribunal, Judge Freer, informed the EAT that Judge Baron had retired and therefore he could not respond to the Order. On 10 December 2021 the EAT ordered the lay members, Ms. Campbell and Mr. Goodden to provide a response to its Order in this regard. Their responses were received by the EAT on 1 June 2022, but was not sent to the parties until 19 July 2022. On 14 March 2022 I asked for the stay of my appeal to be lifted and the appeal will be heard at a full appeal hearing in due course.
Reconsideration of the Employment Tribunal’s Judgment Concerning my Unfair Dismissal
On 27 May 2021 in accordance with the EAT Order from the Rule 3(10) hearing held on 20 May 2021, I applied to the Employment Tribunal (ET) for a reconsideration of Employment Judge Baron’s judgment in relation to my unfair dismissal. The application was in relation to new evidence being made available after the judgment was published on 13 March 2019. On 3 August 2021 the ET confirmed my application was accepted.
A preliminary hearing took place on 17 January 2022, but I was required to make a complaint to the President of the ET on the same day before I received confirmation on 18 January 2022 that the reconsideration hearing would take place as previously advised on 22 and 23 February 2022. On 23 February EJ Balogun handed down her judgment whereby she refused my application. On 15 March 2022 I submitted an appeal against EJ Balogun’s Judgment. My sole ground of appeal is “A Perverse Judgment” because no reasonable Tribunal would have made the findings of facts made by Judge Balogun and the lay members Ms. Campbell and Mr. Goodden based on the evidence before it. On 19 July 2022 the EAT ordered that my appeal should be set down for a full appeal hearing.
Out of Court Settlement of Cost Award Against me in Favour of Ms. Hill QC
Following a cost hearing before the Employment Tribunal on 22 March 2018 Employment Judge Spencer by way of her Judgment issued on 1 May 2018, awarded costs against me in favour of Ms. Henrietta Hill QC; now known as The Honourable Mrs Justice Hill. Furthermore, Employment Judge Spencer ordered that a detailed assessment of Ms. Hill’s costs should be undertaken by the County Court given the sums involved.
The detailed assessment hearing scheduled to take place on 16 and 17 September 2021 was postponed, because no judge was available. The hearing was rescheduled for 28 and 29 March 2022. However, on 14 March 2022 I approached Ms. Hill’s lawyers to seek a settlement out of court, because I had no confidence (because of the less favourable treatment I had been subjected to by way of the County Court throughout the cost proceedings), that the County Court would undertake the detailed assessment of Ms. Hill’s costs in a fair and just manner, which would clearly be to my detriment. An agreed full and final settlement for the total sum of £125,275 was reached on 22 March 2022. Having paid a deposit of £44,496 on 2 August 2021 I paid the outstanding balance of £80,779 in full on 1 April 2022.
Crowd Fund Donations
I launched my crowd fund appeal to assist with my costs in relation to (i) my application before the ECHR (ii) the cost award against me in favour of Mrs Hill QC and (iii) for legal representation in relation to my appeal before the EAT.
In total I received £686.40 donations via the GoFundMe platform and £6,107.33 donations from the JustGiving platform.
All the monies has been used to assist with covering the cost of my international lawyer in relation to my application before the ECHR and the cost award against me in favour of Ms. Hill QC.
I would like to thank everyone who donated to my crowdfund appeal. Your generosity is most appreciated.
My crowdfunding site is now closed.