My name is Vivienne Lyfar-Cissé and I am one of seven children born and brought up in London to Jamaican immigrant parents (Windrush Generation). My dear late mother was a devout woman of God who showed me the importance and value of love, kindness, compassion, truthfulness, empathy, fairness, education, justice and above all faith.
Where It All Began
I was the first person in my family to go to University reading Biochemistry at the University of Sussex in 1980. Between 1983-1985 I completed my MSc. in Clinical Biochemistry at the University of Surrey, which included a placement at BSUH for 3 terms over the two years. In 1985 I commenced employment with BSUH as a Basic Grade Biochemist. In 1987 I won the national Ames Award competition, for the young Biochemist of the year, and shortly after was promoted to Senior Clinical Biochemist. In 1991 I earned my PhD and thereafter promoted to Principal Clinical Biochemist.
In 2003 I completed the written examinations for Membership of the Royal College of Pathologists (MRCPath), but decided against completing the practical examinations to acquire Part I of the membership. I was awarded my MBA (with distinction) in Health Service Management by the University of Hull in October 2011.
My fight for racial justice in the NHS started when around 2003 the Department of Health directed all NHS Trusts to set up Black and Minority Ethnic (BME) Networks to support the progression of race equality in the workplace. I led on the launch of the local BME Network for BSUH on 24 September 2004. This directive from the Department of Health was in response to the publication of the Macpherson Report, into the death of Stephen Lawrence, which highlighted the institutional racism in the police. This is in turn led to the amendment to the 1976 Race Relations Act, to give the Race Relations (Amendment Act) 2000 and the requirement for all public bodies to deliver on their statutory obligations concerning race equality.
It was around the same time I volunteered to teach Biology, Chemistry and Physics at a Saturday School for black children based in Brixton, South London, twice a month for 3 years; which was most rewarding.
In 2005 I led on the establishment of a regional BME Network, the ‘South East Coast BME Network’ and the national BME Network the ‘NHS BME Network’ in 2010 of which I am the current Chair.
However, it was as Chair of the South East Coast BME Network that in August 2008 the Health Service Journal covered exclusively my race equality review of the then 27 NHS Trusts in the region. It was to get the centre spread, the editorial and the front cover of the Journal. My race review report took me 8 months to complete and was the first of its kind in the NHS. The report received a hostile reaction from the leaders in the region and especially so because a few of the Trusts received compliance notices from the Equality and Human Rights Commission, for the breach of their statutory obligations based on the findings detailed in my report. My report was also covered by Channel 4 News.
In response to the above publicity the South East Coast Strategic Health Authority (SHA) withdrew its support for the South East Coast BME Network. We therefore decided to establish the NHS BME Network, which was completely independent of any financial support from the NHS.
My activities as described, together with my empowerment and defence of numerous BME staff against racial discrimination over the years, made me a “marked black woman” in the NHS. This in turn has resulted in me lodging 6 Employment Tribunal claims between 2004 and 2017 for race discrimination, victimisation, whistle blowing and unfair dismissal. Three (3) of my claims have been successful 2 on merits (2007 and 2018) and 1 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 not because they lacked merit, but rather because of the violations of my right to a fair trial. Consequently, I had no other option, but to file a claim with the European Court of Human Rights.
My Employment Tribunal claim for unfair dismissal, victimisation and whistleblowing is currently before the Employment Appeal Tribunal for consideration and also before the Employment Tribunal for reconsideration of its Judgment, due to the new evidence that has come to light more recently.
Launch of the BME Network for BSUH
In 2004 I led on the launch of the local BME Network for BSUH as Chair. About 6 months before our planned launch on 24 September 2004 the then Chairman Mr. Glyn Jones informed us that due to the financial pressures facing the Trust we would need to postpone the launch until 2005.
However, it was our decision to launch as planned independent of BSUH.
With £6,000 sponsorship from the then Government Office for the South East (GOSE) we booked the Thistle Hotel in Brighton and invited a number of dignitaries to attend including Sir Nigel Crisp (now Lord Crisp), Chief Executive of the NHS; Huge Marriage OBE, Director of GOSE; Baroness Doreen Lawrence OBE; Leroy Logan; John Batchelor; the local MPs for the three main political parties and the Mayor of Brighton. We had written to all the dignitaries in the hope that 2 or 3 of them would be able to attend so imagine our surprise when they all accepted our invitation.
It was only after I received a call from the Department of Health on 17 June 2004, confirming that Lord Crisp had accepted our invitation, did Mr. Jones contact us to ask if BSUH could participate in the launch. We agreed, provided BSUH made available matched funding. He agreed and we had £12,000 to launch the local BME Network.
The official launch of the Network and the rightful celebrations thereafter, was attended by several hundred people on 24 September 2004. It is an event that neither I nor the members of the Network will ever forget. It really demonstrated to all involved that “faith as a grain of a mustard seed” can really have amazing results!
My First Employment Tribunal Claim for Race Discrimination
Given the Executive Committee for the local BME Network had decided to launch without the initial support from BSUH it did not come as any surprise to find that very soon after I was being investigated by BSUH for the alleged bullying and harassment of a member of staff after I decided to withdraw my support as the supervisor for her MSc Project, with the agreement of my manager, because she refused to take instructions from me. The protracted investigation by a manager outside of the Biochemistry department, supported by Human Resource (HR), was no more than a ‘witch hunt’, involving the interview of many of my staff, whose BSc and MSc projects I had supervised over the years, to establish whether I had bullied and harassed them as alleged by the complainant.
The outcome of the investigation was that there was a case for me to answer and I should be subjected to a disciplinary. The disciplinary Panel found there was no case for me to answer and no further action was required. However, given the inappropriate manner in which the HR Department managed the complaint against me, I lodged an Employment Tribunal claim for race discrimination.
My claim detailed 17 acts of discrimination, which my barrister had pleaded as discrete acts rather than as continuing acts and as a result 16 of my 17 acts were deemed to be “out of time’. My efforts to claw back the 16 acts that were dismissed by the Employment Tribunal was unsuccessful at the Court of Appeal and as such I am Case Law for the law pertaining to ‘continuing acts’.
I was therefore faced with the huge challenge whether to pursue the one remaining act of discrimination, which had been stayed at the Employment Tribunal stage. Then I was reminded David picked up 5 stones to slay Goliath but he only needed one. I therefore decided to pursue my claim and on 20 July 2007 the Employment Tribunal upheld my claim of unlawful discrimination on the grounds of my race. Both the then Acting HR Director, Mr. Simon Maurice and the then Deputy HR Director, Ms. Helen Weatherill, apologised in writing, after the Tribunal’s Judgment, for the inappropriate manner in which the allegation against me was managed by the HR department.
My Second Employment Tribunal Claim for Race Discrimination and Victimisation.
In response to the successful Tribunal outcome the then Chairman for BSUH, Mr. Glyn Jones, forcibly removed me from my post as Chair of the BME Network and replaced me with the then Equality and Diversity Manager Ms. Barbara Harris, who was also a member of the Network. This was despite the fact he had no power with which to do so, given the Network’s independence from BSUH. Mr. Jones also wrote to the members of the BME Network to inform them of his decision.
Both the members of the BME Network and I informed Mr. Jones that he did not have the authority to take such action and as such I remained the Chair of the BME Network. Subsequently, BSUH established an alternative Network titled the ‘Minority Ethnic Network’ for its BME employees. It was under these circumstances that I lodged my second Employment Tribunal claim for discrimination and victimisation on the grounds of my race.
In 2009 BSUH settled my claim “out of court” admitting liability for racial discrimination and victimisation. The then Chief Executive, Mr. Duncan Selbie also issued a public apology and disbanded the alternative Minority Ethnic Network.
The settlement of my case ‘out of court’ also resulted in a Memorandum of Understanding (MOU) being agreed between BSUH and the BME Network, which included the understanding that BSUH would respect the independence of the BME Network going forward.
Following the external appointment of a new Director of Development, Mr. Stephen Morris, to manage the delivery of the race equality agenda at BSUH I agreed to be seconded on a part-time basis from my role as a Principal Clinical Biochemist to the role of Associate Director of Development. This resulted in a work programme for race equality titled ‘Commitment to Change’. My secondment also provided me with an opportunity to sign up for a MBA in Health Services Management.
My Third Employment Tribunal Claim for Race Discrimination and Victimisation
In October 2011 I took a period of immediate compassionate leave following the sudden death of my father. However, before leaving work I made sure arrangements were in place to cover my clinical duties and in particular to cover the Down’s syndrome screening service, because of the required 3 day turnaround time from receipt of the blood sample to the reporting of the result.
On my return to work two weeks later I discovered that the Consultant Obstetrician, Mr. Robert Bradley and the Pathology Manager Mr. Christopher Wardle had accused me of neglecting women who had signed up for the screening service by my alleged failure to put adequate arrangements in place to ensure that the screening results were available within the 3 days permitted.
However, my audit of the service, during my absence, showed that the allegations were simply not true and were clearly intended to undermine me professionally. Neither individual would respond to my emails asking them to justify their allegations against me and therefore I lodged a grievance complaint against them with the Human Resource (HR) Department.
My grievance against the two individuals was investigated by a senior manager for BSUH, Mr. Adrian Twyning, who upheld many of my complaints and made a number of recommendations including that a disciplinary process be initiated against both Mr. Bradley and Mr. Wardle, because they both had a case to answer.
Mr. Twyning’s investigation also revealed that the HR Director, Mr. Graham White, who was appointed on 1 August 2011, had during his meeting with the Trust solicitors discussed how he could possibly avoid my grievance complaint escalating. Unbeknown to me he arranged and met with Mr. Bradley and Mr. Wardle to discuss my grievance in December 2011 and recommended that they apologise to me in writing. It later transpired that Mr. White had in fact drafted the ‘apology” email for both individuals to send to me to make out it had come spontaneously from them. I did not accept their ‘apology’ emails, because it was evident from the content that they did not believe they had done anything wrong.
Given Mr. White’s inappropriate intervention I lodged a grievance complaint against him for discrimination and victimisation. My grievance was heard by the Non-Executive Director (NED), Mr. Craig Jones, who although highly critical of Mr. White did not uphold my complaint of race discrimination and victimisation. He did however recommend that the then Acting Chief Executive, Mr. Chris Adcock, should consider taking disciplinary action against Mr. White for breaching BSUH’s grievance policy and procedures. My appeal against Mr. Jones’ decision was dismissed by the then Chairman of the Board, the late Mr. Julian Lee.
In summary the outcome of my two grievance complaints against 3 senior white managers, was that they had a case to answer for which it was recommended they be subjected to a disciplinary.
However, BSUH did not take any action whatsoever against all 3 senior white managers and they certainly did not face a disciplinary.
My third Employment Tribunal claim for race discrimination and victimisation in relation to the above matters as outlined was initially rejected by the Tribunal on 1 August 2013. My appeal against the Judgment was allowed to proceed against Mr. White and BSUH only and on 22 October 2014 the Employment Appeal Tribunal (EAT) remitted my claim back to the same Employment Tribunal on that basis. On 17 December 2015 the same Tribunal Panel rejected my claim for a second time. I therefore appealed the decision for a second time and the EAT upheld my appeal in relation to victimisation on 7 April 2017.
On 23 January 2018, after three attempts in the Employment Tribunal; two successful appeals in the EAT and 6 years later, the Employment Tribunal upheld my complaint of race discrimination in the form of victimisation.
By then Mr. White had long resigned from his post as HR Director and therefore no action was taken against him.
My Fourth Employment Tribunal Claim for Race Discrimination and Victimisation
It was because of the lack of commitment from BSUH to progress the race equality agenda in a meaningful way that I decided in December 2013 to resign from my post as Associate Director of Development.
On 28 January 2014 the BME Network held an extraordinary meeting to discuss the institutional racism at BSUH, to which it had invited Lord David Prior, as the then Chairman of the Care Quality Commission (CQC) to attend.
The meeting was attended by a white American employee, Ms. Erin Burns who had joined the Network in October 2013 as a ‘minority’ member of staff. However, prior to the meeting Ms. Burns had disagreed with the Network’s approach and began sharing its correspondence with management and raising her objections. The Network’s discussion of her approach at a pre-meeting of the extra-ordinary meeting held on 28 January 2014 and my introduction of her to the members as the former Chair of the Lesbian, Gay, Bisexual and Transgender (LGBT) Forum was to result in her lodging a grievance complaint against me for bullying and harassment on the grounds of her sexual orientation.
On 4 April 2014, the BME Network held an ordinary meeting during which 6 grievance cases involving BME staff were discussed anonymously, including Ms. Burns’ grievance against me in relation to alleged events at the BME Network’s extraordinary meeting on 28 January 2014. The result of this discussion was that Ms. Burns, who was not at the April meeting filed a second grievance complaint against me. As a consequence of her 2 grievances the external consultant, Mr. Colin Hann, Firth Street Consulting was commissioned to investigate her grievance complaints.
It is necessary to explain at this stage that the reason the BME Network was able to discuss openly ‘live’ HR cases pertaining to BME staff, was because the MOU between BSUH and the BME Network, which was drawn up as part of my ‘out of court’ settlement for my second Employment Tribunal claim, permitted the Network to do so, provided it was done anonymously. It was also agreed by way of the MOU that when an Employment Tribunal claim had been lodged the internal matters in relation to the claim was deemed to be in the public domain. As such there were no restrictions with regards to the discussion of those matters internally and/or externally.
The outcome of Mr. Hann’s investigation was that neither of the 2 grievances brought by Ms. Burns in relation to the BME Network meetings held on 28 January 2014 and 4 April 2014 were well-founded and absolved me of wrongdoing in relation to the allegations of bullying and harassment because of Ms. Burns’ sexual orientation.
Mr. Hann did however make critical comments about the manner in which I approached the issue, because he believed it was available to me to have had a conversation Ms. Burns privately about her inappropriate approach without having to address it ‘openly’ at the BME Network meeting on 28 January 2014. Consequently, whilst I agreed with Mr. Hann’s overall decision that Ms. Burns’ grievances against me could not be upheld, I did believe it was necessary to lodge an appeal against his various comments which suggested that BSUH and/or others were at liberty to dictate how the BME Network, despite its independence, should direct its affairs. It being the decision of the Network members that all matters pertaining to the business of the Network should be raised with the members in an open and transparent way at our meetings.
Ms. Burns also appealed the outcome of Mr. Hann’s investigation not to uphold her 2 grievances against me and BSUH upheld her appeal.
It was during Mr. Hann’s investigation that Ms. Burns had lodged a third grievance complaint against me, in relation to an email I had sent to the members on 12 August 2014 (albeit anonymously), making them aware that a couple of members had approached me about their concerns that Ms. Burns had approached them to ask if they would support her grievance against me as witnesses. I informed the members that Ms. Burns by way of her complaint against me had made a number of derogatory remarks about members of the Network based on her observations at the extra-ordinary BME Network meeting on 28 January 2014 and therefore if they were mindful to get involved then I would be willing to make them aware of what her grievance entailed. I also by way of my email notified the members that Ms. Burns had lodged an Employment Tribunal claim in relation to the same matters.
It is my position that my email dated 12 August 2014 was consistent with the MOU in place between BSUH and the Network, because (i) I did not name her in my email concerning her grievance complaint against me and (ii) I also mentioned in my email she had lodged an Employment Tribunal claim in relation to the same matters and therefore it was as agreed considered to be in the public domain.
Mr. Hann did not investigate Ms. Burns’ third grievance complaint against me, in relation to my email to the members dated 12 August 2014, because he said it was not included in the Terms of Reference for his investigation. However, the issue of my email did become part of the discussions held during the appeal hearing. Consequently, I was able to place on record during the appeal hearing my evidence as it relates to why I sent my email to the members dated 12 August 2014 and the fact that it was consistent with the MOU in place and constituted a ‘protected act.’
BSUH having upheld Ms. Burns’ appeal against the outcome of Mr. Hann’s investigation decided to appoint a second external investigator Ms. Henrietta Hill QC, of Doughty Street Chambers, to re-investigate Ms. Burns’ complaints against me in relation to alleged events at the BME Network meetings on 28 January 2014 and 4 April 2014 and to investigate her alleged complaint in relation to my email to members dated 12 August 2014.
Ms. Burns’ three grievances were to spark further allegations and counter-allegations. I filed a grievance against Ms. Burns in November 2014 and in January 2015, 8 members of the BME Network also filed a collective grievance against Ms. Burns pertaining to her derogatory comments about them in relation to her grievances against me. On 16 July 2015, Ms. Hill QC was sent the final the Terms of Reference regarding the various grievances and counter-grievances including my grievance against Ms. Burns.
It was my response to BSUH that I had participated fully in Mr. Hann’s investigation into Ms. Burns’ grievance complaints against me in relation to alleged events at the BME Network meetings on 28 January 2014 and 4 April 2014 and I had also placed on record my evidence in relation to my email on 12 August 2014 and as such I had nothing further to add to Ms. Hill QC’s investigation. I took this decision confident in the knowledge that BSUH had confirmed all the evidence on record pertaining to Mr. Hann’s investigation and the appeals hearings would be made available to Ms. Hill QC as part of her investigation.
On 7 August 2015 Ms. Hill submitted her final report concluding that there was a case for me to answer in relation to Ms. Burns’ three grievance complaints against me. BSUH then set out Ms. Hill QC’s findings as 13 separate allegations for which I had a case to answer. This included the allegation that my introduction of Ms. Burns at the Network meeting on 28 January 2014, as the former Chair of the BME Network, despite the fact the evidence in this regard was still readily available on BSUH’s intranet, did amount to discrimination on the grounds of her sexual orientation. In addition, my email of 12 August 2014 amounted to bullying, victimisation and a breach of Ms. Burns’ confidentiality.
On 15 August 2015, I lodged my fourth Employment Tribunal claim against BSUH and Ms. Hill QC as named Respondents for racial discrimination and victimisation. The case management proceedings in relation to this claim were very challenging to say the least and on numerous occasions I wrote to the Regional Employment Judge Hildebrand to complain about the biased manner in which decisions were being made by the Tribunal in favour of Ms. Hill QC. In fact I was required to appeal against an Order of the Employment Tribunal dated 29 December 2016, which directed that Ms. Hill QC’s list of issues, pertaining to my claim against her, would be the final list of issues to be determined by the Tribunal at the full hearing. The Tribunal simply ignored our request on numerous occasions to justify the legal basis on which such an Order could be made.
Whilst the Employment Tribunal matters were progressing I appealed the outcome of Ms. Hill QC’s investigation report. However, my appeal was dismissed by the Interim Chairman Mr. Kildare and I was required to face a disciplinary for the 13 allegations for which it was said I had a case to answer in relation to Ms. Burns’ 3 grievance complaints against me. The outcome of the disciplinary on 11 November 2016 was that 10 of the 13 allegations levied against me were dismissed, including the allegation that my introduction of Ms. Burns as the former Chair of the LGBT Forum on 28 January 2014 amounted to discrimination on the grounds of her sexual orientation. In fact the dismissal of the 10 allegations against me meant that none of Ms. Burns’ complaints against me in relation to the BME Network meetings held on 28 January 2014 and 4 April 2014 were upheld and as such the disciplinary outcome was the same as the outcome of the first investigation undertaken by Mr. Hann.
The 3 allegations that were upheld all relate to my email to the BME members on 12 August 2014, which was said to amount to the bullying and victimisation of Ms. Burns and a breach of her confidentiality. My appeal against this outcome was dismissed on 4 January 2017.
On 10 February 2017, I lodged my fifth Employment Tribunal claim in relation to the disciplinary outcome for race discrimination and victimisation.
My application to the Employment Tribunal to have my fifth claim, consolidated with my fourth Employment Tribunal claim against BSUH and Ms. Hill QC, pertaining to her investigation outcome was rejected. As a consequence my fifth Employment Tribunal claim was to proceed separately and I have outlined events in more detail below.
My Employment Tribunal hearing for my fourth Employment Tribunal claim against BSUH and Ms. Hill QC as named Respondents was heard in May 2017 over several days. It was on the second day of the proceedings after I had been sworn in, that the two barristers in attendance, one representing Ms. Hill QC and the other representing BSUH, informed the Employment Tribunal that they did not wish to cross-examine me. As a result I was stood down after approximately 20 minutes, because the Tribunal was not in a position to ask me any questions in the absence of me being required to give evidence. Although they did have my evidence by way of my witness statement for the hearing.
The Employment Tribunal Judgment which was made available on 27 July 2017, dismissed my claims of race discrimination and victimisation.
The Employment Tribunal Judgment from a cost hearing made available on 1 May 2018 awarded costs against me in favour of BSUH and Ms. Hill QC. It is because Ms. Hill QC’s costs were as recorded in excess of £120,000 and BSUH’s costs were as recorded in excess of £38,000 that the Tribunal ordered that the costs should be determined by a detailed assessment in the County Court on the standard basis.
My appeals against both Judgments were rejected by the EAT at the sift stage and my subsequent Rule 3(10) applications, which allowed me to present my appeal in person before a Judge to convince him/her that my appeal did in fact have merit was also rejected. However, the Judge hearing my cost appeal did include in his decision to reject my application that it was questionable whether BSUH and Ms. Hill QC needed to pursue the case to the end with two sets of solicitors and two sets of Counsels. The Judge stated that it is a consideration for the cost hearing whether it could be said that there must have come a time when both parties could have agreed to pursue the case with one legal team in place.
My Fifth Employment Tribunal Claim for Race Discrimination and Victimisation
As a result of the stress related to the events that culminated with Ms. Hill QC’s final report being made available on 7 August 2015, my GP signed me off on sick from October 2015-April 2016. Consequently, my appeal against Ms. Hill QC’s final report was delayed.
It is noteworthy that it was during this time that BSUH was to settle Ms. Burns’ Employment Tribunal claims, which named me as a Respondent, ‘out of court”. However, BSUH never notified me of its intention to settle and despite numerous requests the agreement was not shared with me as a Respondent.
On my return to work in April 2016, I was asked to negotiate the conditions of my return to work with Mr. Brendan Ward, an interim Director of Change, who had been appointed on a 6 months contract in January 2016. Mr. Ward was also the person who was tasked with making the Management case against me during my appeal against Ms. Hill QC’s final report. The appeal hearing was Chaired by the Chairman for BSUH, the late Mr. Julian Lee. The appeal hearing was adjourned and then resumed in May 2016, before the interim BSUH Chairman Mr. Antony Kildare. Mr. Lee having resigned in the interim.
On 3 May 2016, Mr. Ward had emailed me my Return to Work Form in which there were several glaring inaccuracies. He also signed the form as my line manager, which I made clear during the meeting with him I would not accept; not only because his contract was due to expire in June 2016, but also because in accordance with my contract the Chief Executive was my designated line manager. It is a fact that during my sickness absence an interim Chief Executive, Dr. Gillian Fairfield, had been appointed and she simply ignored my emails requesting a return to work meeting.
On 4 May 2016 I replied to Mr. Ward’s email to inform him of my concerns regarding his inaccuracies and suggested we discuss the matter at the planned follow up meeting on 10 May 2016. I also copied the email to Dr. Fairfield.
However, on 5 May 2016 I met Mr. Ward by chance in the grounds of the Trust Headquarters and on approaching me he stated that he was aware that the content of his email, which he sent to me on 3 May 2016, would offend me. I was upset by his comments and particularly so because at the return to work meeting I had at his request shared my experiences of racial discrimination and victimisation at the hands of white senior managers in the organisation and rather naively thought he understood. In response to his comment that he knew his email would offend me I informed him his conduct was what I despaired most about working with senior ‘white’ managers. As mentioned earlier in relation to my evidence pertaining to matters which led to my third Employment Tribunal claim 3 senior white managers were said to have a case to answer and should face disciplinary action, in relation to my grievance complaints against them, and BSUH took no action whatsoever against them. Here I was once again in a situation with another white senior manager experiencing more of the same. (It is noteworthy at this stage just to say that the disciplinary outcome letter arising from these matters does at least recognise the situation I found myself in in this regard and why I felt the way I did. However, as will become evident Ms. Cahsman as the Chair of the disciplinary proceedings, considered my reference to Mr. Ward’s colour to be discriminatory.I disagree given it is my experience that I was making reference to in this regard).
On 6 May 2016 the Chief Operating Officer, Dr. Mark Smith, informed me that I was to be suspended for my comment to Mr. Ward concerning his colour which amounted to discrimination and three other alleged comments, which I did not make. Mr. Ward’s allegation against me were investigated by the external consultant Mr. Abi Alemoru, Vista Employers Ltd.
On 11 July 2016, Mr. Kildare informed me that my appeal against the outcome of Ms. Hill QC’s investigation was not upheld and that I would be subjected to a disciplinary in relation to all 13 allegations for which it was said that I had a case to answer.
On 29 July 2016, Dr. Smith also informed me that Mr. Alemoru had found that there was a case for me to answer and that I was to be subjected to a disciplinary in relation to Mr. Ward’s complaint.
The disciplinary was held over three days and was Chaired by the interim Director of Strategy and Commercial Development, Ms. Rachel Cashman. As part of the process she was required to consider 19 allegations in total against me including:
- 13 allegations pertaining to the investigation by Ms. Hill QC
- 4 allegations pertaining to the investigation by Mr. Alemoru
- 2 allegations levied against me by BSUH in relation to the investigation outcomes.
The outcome of the disciplinary was that Ms. Cashman dismissed 13 of the 19 allegations levied against me this included:
- Cashman dismissed 10 of the 13 allegations levied against me in relation to Ms. Hill QC’s investigation into Ms. Burns’ three grievance complaints.
This included the dismissal of the specific allegation that my introduction of Ms. Burns as the former Chair of the LGBT Forum at the extra-ordinary meeting of the Network on 28 January 2014 amounted to discrimination on the grounds of her sexual orientation. In addition, all Ms. Burns’ allegations in relation to alleged events pertaining to the Network meetings on 28 January 2014 and 4 April 2014 were dismissed and hence the disciplinary outcome was consistent with the outcome of the first investigator Mr. Hann’s findings. Consequently, the 3 allegations upheld all related to my email to the BME members dated 12 August 2014, which was said to amount to the bullying and victimisation of Ms. Burns and a breach of her confidentiality.
It is my position that I had done nothing wrong given my conduct was consistent with the MOU in place and the fact that my email constitutes a ‘protected act’.
Furthermore, the disciplinary outcome in this regard ignored my evidence to the disciplinary Panel that when I sent my email to the members on 12 August 2014 Ms. Burns’ line manager had sent an email to the then Deputy Director of HR, Ms. Helen Weatherill, to complain that my email was a breach of Ms. Burns’ confidentiality. The evidence also shows that it was Ms. Weatherill’s reply (consistent with the MOU in place that once an Employment Tribunal claim has been lodged the matters are deemed to be in the public domain, as was the case with Ms. Burns) that quote: “Erin has already submitted an employment tribunal claim so all the information is now in the public domain”.
- Cashman dismissed 2 of the 4 allegations levied against me in relation to Mr. Alemoru’s investigation into Mr. Ward’s complaint.
The two allegations upheld relate to the fact that my mention of Mr. Ward’s colour ‘white’ in response to his comment that he knew the email he sent me would offend me meant that I had discriminated against him by making a negative remark about him, because he is white and also my action in this regard amounted to harassment of Mr. Ward in relation to his race.
- Cashman dismissed 1 of the 2 allegations levied against me by BSUH in relation to the above investigation outcomes.
Ms. Cashman upheld BSUH’s allegation against me that by not taking part in Ms. Hill QC’s investigation I had failed to comply with a reasonable management request. However, she did not uphold BSUH’s second allegation that the outcome of the investigations against me amounted to a breach of my contractual obligation and/or implied trust and confidence.
Disciplinary Outcome-Final Written Warning for 12 Months
It was Ms. Cashman’s decision, on 11 November 2016, that I be issued with a final written warning for 12 months and my exclusion be lifted with immediate effect. Her disciplinary letter states very clearly that she had taken into consideration that my role as Associate Director of Transformation, was a leadership role, but had decided not to dismiss me from my position given she had considered the events in the context of the culture at BSUH and the fact there were a number of mitigating circumstances. Her letter in this regard refers to the fact that:
- BSUH had been found by the Employment Tribunal to have discriminated and victimised me on the grounds of my race and had admitted liability for the same in the past. For which of course no white senior manager, had ever been subjected to a disciplinary, even when BSUH’s internal investigation and/or grievance hearing recommended that it was warranted.
- That at my chance meeting with Mr. Ward on 5 May 2016 he made clear to me that he knew that his email from 3 May 2016 would offend me and that understandably I would react to his comment in this regard.
- The Regulator CQC had in its Inspection Report in 2016 criticised the culture of BSUH and had recommended it be placed in special measures.
- That my conduct was influenced by the MOU in place between the BME Network and BSUH which permitted the discussion of live HR cases involving BMEs.
I did appeal Ms. Cashman’s sanction of a final written warning, but my appeal was rejected and I was informed that the internal procedures were concluded. On 10 February 2017, I initiated proceedings against BSUH and Mr. A Kildare, for events which emerged from the disciplinary proceedings.
The claim was initially drawn up by my barrister, but given the lack of funds I was required to pursue my claim as a litigant in person. Shortly before the scheduled hearing I had applied to the Tribunal to add Mr. Bradley, Mr. Wardle and Mr. White as my ‘white comparators’ as individuals for which BSUH’s internal proceedings had concluded they had a case to answer and should face disciplinary action in relation to my grievances against them, but BSUH took no action whatsoever against them. BSUH objected to my application; however it was my position there was no prejudice to the Respondents (BSUH and Mr. Kildare) by allowing my application given of course the evidence was known to them and the overriding objective would be to allow my application given it supported my discrimination and victimisation claim against them.
My application was rejected by the Employment Tribunal as was my appeal against the Tribunal’s decision to the EAT. I did at the hearing raise this issue again and once again it was dismissed.
The Employment Tribunal hearing took place in December 2018 and the Judgment was made available on 14 January 2019. The Tribunal dismissed my claims of race discrimination and victimisation.
I lodged an appeal against the Tribunal’s decision on 18 February 2019 and this is discussed in more detail below.
My Sixth Employment Tribunal Claim for Unfair Dismissal, Victimisation and Whistleblowing
On 1 April 2017, the Board for BSUH was taken over by the Board for the neighbouring Western Sussex Hospitals (WSH) NHS Foundation Trust as a result of CQC recommendations that BSUH be put in special measures by NHS Improvement for its culture of bullying and harassment
On 25 April 2017, I received a letter from Dr. George Findlay, Deputy CEO of WSH, and from 1 April 2017, also of BSUH. The letter expressed his concerns about the disciplinary findings against me, (made available some 6 months earlier on 11 November 2016), on the basis that it was questionable (i) whether it was tenable for me to continue in my role as Associate Director of Transformation given the disciplinary outcome and (ii) that the disciplinary findings against me meant that I was in breach of Regulation 5 of the Health and Social Care Act (2008) (Regulated Activities) Regulations 2014 (Fit and Proper Person Test).
After my meeting with Dr. Findlay I met with the Chief Executive Ms. Griffiths on 8 June 2017 at her request, because she was dissatisfied with my responses to Dr. Findlay. My response being that: (i) the allegations levied against me were dealt with by way of due process. Furthermore, Ms. Cashman, by way of her disciplinary outcome letter, makes clear that in lifting my exclusion she had considered the fact that my role was a leadership position and had decided for the reasons she set out in her letter that I should not be dismissed. Furthermore, I had been informed by BSUH, following my appeal against her decision, that the internal matters had concluded and (ii) Regulation 5 was only applicable to board level/directors and as such it was not applicable to my job role as Associate Director of Transformation. Furthermore, this was consistent with BSUH’s policy which in turn CQC had confirmed in its Inspection Report in 2016 was compliant with the Regulation.
On 28 June 2017, I received a letter from Ms. Griffiths informing me that after 34 years of service, I was dismissed. Precisely stated, the Trust reneged on its earlier decision to issue a final written warning and increased the punishment to dismissal, without more for the two reasons outlined.
On 20 July 2017 I filed my sixth Employment Tribunal claim for unfair dismissal, victimisation and whistleblowing against WSH, BSUH and Ms. Marianne Griffiths as named Respondents. I later added Ms. Evelyn Barker as a fourth Respondent.
Given Ms. Griffiths’ decision I wrote to Professor Sir Mike Richards, Chief Inspector of Hospitals, CQC to ask him to confirm whether it was his position that Regulation 5 applied to my job role as Associate Director of Transformation. On 28 July 2017 I received an email reply from him confirming that Regulation 5 did not apply to my job role, because it was not a board level /director post. However, he recommended that if I believed I was being treated unfairly then I would need to seek redress by way of an Employment Tribunal.
I think it is appropriate to mention at this stage that a year after I was dismissed the government commissioned Tom Kark QC to undertake a review Regulation 5. His report published on 8 February 2019 confirmed that Regulation 5 did not apply to my role given the Regulation only applied to board level/ director posts unless an employer was to specifically decide it wanted to include other posts. Consequently, Ms. Griffiths’ decision to dismiss me from my post on the basis that the disciplinary findings meant that I was in breach of Regulation 5 as an Associate Director of Transformation was unlawful; given BSUH as my employer had decided that Regulation 5 would only apply to board level/ director posts and as such my post was not subject to the Regulation. I will refer to Mr. Kark QC’s review again later in more detail.
That said, my internal appeal against Ms. Griffiths’ decision to dismiss me from my post was rejected on 11 August 2017 and after working my 3 months notice my last working day at BSUH was 27 September 2017.
The Employment Tribunal hearing took place in September 2018 and the Judgment was made available on 13 March 2019. The Tribunal dismissed my claims of unfair dismissal, victimisation and whistleblowing.
I lodged an appeal against the Tribunal’s Judgment on 15 April 2019 and this is considered in more detail below.
Note: My fifth and sixth Employment Tribunal claims were heard out of their natural sequence with my unfair dismissal claim (6th claim) being heard in September 2018 my claim pertaining to the disciplinary outcome (5th claim), being heard in December 2018.
My Letter of Complaint Regarding Judicial Bias and Judicial Impropriety
My fifth Employment Tribunal claim was heard in December 2018 before Employment Judge Bryant QC with two lay members assisting, namely Ms. Campbell and Ms. Batchelor. I attended as litigant in person.
My claim concerned my complaint that (i) Mr. Kildare (who was a named Respondent) as the Chair of my appeal against the outcome of Ms. Hill QC’s investigation had recommended that I be subjected to a disciplinary, because there was a case for me to answer concerning the 13 allegations from Ms. Hill QC’s investigation into Ms. Burns’ 3 grievance complaints against me (ii) Ms. Cashman as the disciplinary Chair being presented with the same evidence had decided to dismiss 10 of the 13 allegations arising from Ms. Hill QC’s investigation (iii) that all the disciplinary findings against me were unjustified and (iv) that all the above was evidence of race discrimination and victimisation.
The ‘Bryant Tribunal’ was to consider Ms. Hill QC’s investigation and my fourth Employment Tribunal claim against BSUH and Ms. Hill QC in great detail, given the matters it was required to adjudicate upon related to the Ms. Hill QC’s investigation outcome and the subsequent disciplinary outcomes.
My sixth Employment Tribunal claim was heard before Employment Judge Baron with two lay members assisting, namely Ms. Campbell and Mr. Goodden in September 2018. Further deliberations were to take place on 27, 29 and 30 November 2018 and 10 January 2019 in Chambers. I was represented by Counsel.
By contrast The ‘Baron Tribunal’ had decided from the outset that it would not consider matters pertaining to Ms. Hill QC’s investigation and/or matters pertaining to my fourth Employment Tribunal claim against BSUH and Ms. Hill QC, in any more detail than the evidence that was already before it in relation to my unfair dismissal, victimisation and whistleblowing claim.
On receipt of the ‘Bryant Tribunal Judgment on 14 January 2019 I wrote to the Lord Chief Justice to complain that paragraph 11 of the Judgment was not a true finding of fact, because it stated I did not object to Ms. Campbell sitting as a member of the Bryant Tribunal given she had also sat as a lay member of the Baron Tribunal in September 2018. I highlighted to the Lord Chief Justice that Employment Judge Bryant QC had in raising the issue with the parties on the second day of the proceedings (the first day being a reading day for the Tribunal panel in chambers) had informed the parties that it was not “uncommon or unusual’ for a lay member to participate in more than one proceedings involving the same parties and hence based on his reassurance I did not object to Ms. Campbell sitting as a lay member. The Lord Chief Justice did not reply to my letter.
On receipt of the ‘Baron Tribunal Judgment on 13 March 2019 I was shocked to discover that the findings of fact outlined at paragraph 32 was also not true given Employment Judge Baron states that he had ensured that neither he or his lay members had anything to do with the evidence before the ‘Bryant Tribunal’ other than what was already before them in terms of the matters that they were required to adjudicate upon. However, this is clearly not true, because the lay member Ms. Campbell was a lay member for both Employment Tribunal Panels.
Paragraph 32 of the Baron Tribunal Judgment reads:
“Between 2004 and February 2017 the Claimant had presented five claims to the Tribunal against BSUH. None of the new management from WSH mentioned below had had any involvement in those proceedings. The fact of those claims having been made became known to Mrs Barker on 13 March 2017 as mentioned below. I was aware that one or more of those claims had not been concluded at the time of this hearing, and I have ensured that both lay members and I did not obtain any information about them saved as mentioned in evidence.”
In light of my letter to Lord Chief Justice concerning the error in the ‘Bryant Tribunal’ Judgment mentioned above, which did not accuratey record the events which led to me deciding not to object to Ms. Campbell sitting as a lay member of the ‘Bryant Tribunal’ having already sat as a lay member of the ‘Baron Tribunal’ I decided to lodge a complaint with the Judicial Complaint Investigation Office (JCIO) given the factually incorrect statement at paragraph 32 of the ‘Baron Tribunal’ as well. The JCIO advised that I should write to the Acting Regional Judge P Davies for London South Tribunals. He in turn passed my letter of complaint to the President of the Employment Tribunals (England & Wales), Judge Brian Doyle.
It was Judge Doyle’s advice that my letter of complaint concerned allegations of procedural irregularity, rather than personal misconduct, and as such it could only be challenged by way of an appeal to the EAT.
I lodged my appeal against the ‘Baron Tribunal’ Judgment with the EAT on 15 April 2019 and Ground 1 of my appeal concerned judicial bias and judicial impropriety as a result of the events mentioned above.
Given I had already lodged my appeal against the ‘Bryant Tribunal’ Judgment on 18 February 2019 I submitted an application to the EAT on 15 April 2019 to ask for permission to add a new ground of appeal pertaining to judicial bias and judicial impropriety
Outcome of the Sift Stage of My Appeals Before the EAT
The outcome of the sift stage of both my appeals before the EAT was that
(i) Ground 1 of my appeal, regarding judicial bias and judicial in relation to the ‘Baron Tribunal’ Judgment, should be allowed to proceed to a preliminary hearing
(ii) my application to add a new ground of appeal regarding judicial bias and judicial impropriety in relation to the ‘Bryant Tribunal’ Judgment should be considered at the same preliminary hearing
(iii) my ground of appeal regarding time point (Limitation Point) in relation to the ‘Bryant Tribunal’ Judgment should proceed to a preliminary hearing and
(iv) all my other grounds of appeal for both appeals should be rejected.
The fact that the EAT had rejected all my other grounds of appeal did not come as any surprise to me given so many of the findings of facts (not just those mentioned above in relation to paragraph 11 of the ‘Bryant Tribunal’ Judgment and paragraph 32 of the ‘Baron Tribunal’ Judgment) were simply not true. The mendacity on the part of both Employment Tribunals was palpable.
Consequently, I applied for a Rule 3(10) hearing for both appeals, which gave me an opportunity to give an oral presentation to a judge in the EAT in an attempt to convince him/her that my appeals do have merit and should be allowed to proceed to a full hearing. Having submitted my two Rule 3(10) applications I then applied to the EAT to request that both applications be stayed until the outcome of my grounds of appeal concerning judicial bias; judicial impropriety and the limitation point. The reason being if my appeal was successful in relation to the judicial bias and judicial impropriety grounds everything else would fall away in any event and both claims would have to be returned to the Employment Tribunal to be reheard.
The First EAT Preliminary Hearing Before HHJ Barklem
The first EAT Preliminary Hearing was held before His Honour Judge (HHJ) Barklem on 3 September 2019, but was adjourned so that (i) questions could be put to all 3 members of the ‘Baron Tribunal’ in relation to its factually incorrect statement detailed at paragraph 32 of its Judgment and (ii) for the ‘Bryant Tribunal’ to respond to my Affidavit and my sister’s Affidavit and the Respondents’ solicitor, Ms. Lisa Harris’, witness statement regarding how Employment Judge Bryant QC had addressed, on the second day of the proceedings, the issue of Ms. Campbell sitting as a lay member on his Tribunal given she had also sat as a lay member of the ‘Baron Tribunal’ in September 2018.
Both Tribunals’ responses were unacceptable. The Baron Tribunal had refused to answer the questions in any detail and/or evaded the questions all together. It was my Counsel’s submission to the Employment Appeal Tribunal that the failure of all 3 Tribunal members to make full disclosures to the Order of HHJ Barklem together with the lack of candour only served to further undermine the integrity of the proceedings.
It is particularly noteworthy that by way of his response to the HHJ Barklem’s Order Employment Judge Baron confirmed that he had actually seen Ms. Campbell sitting as a member of the ‘Bryant Tribunal’ in December 2018 and had made enquiries about her sitting as a lay member. He mentioned he had been told by either Ms. Campbell or the other lay member Ms. Batchelor that the matter of Ms. Campbell sitting as a lay member of the ‘Bryant Tribunal’, whilst still involved in ongoing deliberations as a member of his Tribunal, had already been raised with the parties. He was clearly concerned, but did nothing about it when Ms. Campbell then attended his Tribunal to undertake the final deliberations on 10 January 2019 in relation to my claim before him.
To state the obvious Employment Judge Baron knew that Ms. Campbell had sat as a lay member on both Tribunals, which had evidence in common to differing extents, during overlapping periods and did nothing to address the issue and despite this fact he went on to write the false statement at paragraph 32 of his Judgment that he had ensured she did not obtain any more information about the claim, before the ‘Bryant Tribunal’ other than what was before his Tribunal; his mendacity can only be described as quite remarkable. Most importantly he failed to provide an adequate response to the direct question posed by the HHJ Barklem and/or explain why the statement in paragraph 32 was included in his judgment, any at all, given his state of knowledge.
To also state the obvious, Ms. Campbell of course knew that she had sat on both Tribunals and that her disingenuous attempt to say that paragraph 32 of the ‘Baron Tribinal’ Judgment was correct because it only applied to the hearing held in September 2018 and not to the Tribunal’s deliberations in chambers on 27, 29 and 30 November 2018 and 10 January 2019 again is quite remarkable. It is noteworthy that Ms. Campbell also sought to reassure the EAT by way of her reply to the Order of HHJ Barklem that she didn’t share the additional information she had gained as a member of the ‘Bryant Tribunal’ with the ‘Baron Tribunal’ and vice versa. However, she completely missed the point that she should not have had any more information than any of the other members of both Tribunal Panels for which she sat as a lay member and that would only have been possible if she had only sat as a lay member on the ‘Baron Tribunal’ or the ‘Bryant Tribunal’ for that matter, not both.
It was my Counsel’s submission that it could not be denied that Ms. Campbell did sit on the ‘Bryant Tribunal’, contrary to paragraph 32 of the ‘Baron Tribunal’ Judgment and did obtain information that was prejudicial and damaging to me, which did in turn cast a taint on the integrity, independence and impartiality of both the ‘Baron Tribunal’ and the ‘Bryant Tribunal’ and as such my rights under Article 6 § 1 of the European Convention on Human Rights were indeed violated. Furthermore, these matters are also constitute a clear breach of the natural rules of justice and fairness.
The other lay member of the ‘Baron Tribunal’ Mr. Goodden did not himself confirm that he knew Ms. Campbell had sat as a lay member of the ‘Bryant Tribunal’, but both Employment Judge Baron and Ms. Campbell confirmed they had told him when they met in Chambers on 10 January 2019. Consequently, Mr. Goodden was aware that Ms. Campbell had sat on the ‘Bryant Tribunal’ and as such shares responsibility for promulgating a Judgment which contained the factually incorrect statement at paragraph 32.
In relation to the responses from the ‘Bryant Tribunal’ Judgment it was Employment Judge Bryant QC’s response to the issue as to how he had addressed the fact that Ms. Campbell was a lay member of his Tribunal having previously been a lay member of the ‘Baron Tribunal’ that:
I do not recall the precise words I used, but I did not say that it was not uncommon or unusual for a wing or lay member to be involved in more than one case involving the same parties; such an occurrence is unusual in my experience.” I also did not say, and would never say to a party, that I did not expect either party to object to Ms. Campbell sitting on this case, but I did say something to the effect that the tribunal had itself considered whether this was a problem but had concluded that it was not.
Ms. Batchelor responses were vague and of no value given she could not recall events in any detail. Ms. Campbell’s responses were more detailed, but it was evident that she was being disingenuous by way of her responses as already mentioned above.
The Second EAT Preliminary Hearing before Judge Keith
The second EAT Preliminary Hearing took place on 16 June 2020, before Judge Keith and he Ordered that both appeals should proceed to a full appeal hearing.
In relation to the ground of appeal against the ‘Baron Tribunal’ pertaining to judicial bias and judicial impropriety it was Judge Keith’s reasons that: (i) the ground of appeal did disclose an arguable issue in relation to bias (ii) the Respondents’ Counsel acknowledged that paragraph 32 was not accurate (iii) the ‘Baron Tribunal’ and the ‘Bryant Tribunal’ had arguably deliberated over their decisions during overlapping periods and (iv) I had arguably never ‘waived’ the issue in the ‘Baron Tribunal’ as it was only identified and addressed when the Judgment became available on 13 March 2019.
In relation to whether to allow my application to add the new ground of appeal relating to judicial bias and judicial impropriety in relation to the ‘Bryant Tribunal’ it was Judge Keith’s decision that in accordance with the overriding objective the application would be granted given it relates to the same ground for the ‘Baron Tribunal’ and because it too had arguable merit.
Judge Keith also allowed my ground of appeal in relation to the limitation point for the ‘Bryant Tribunal’ Judgment to proceed to a full appeal hearing.
The EAT Full Appeal Hearing Before Lord Fairley
The full appeal hearing was listed for 7 October 2020 and my solicitor was advised, by the Case Manager, that my appeals would be heard by a 3-Person Panel and that we were required to make 4 copies of the bundle for each appeal available to the EAT and of course we were also required to make a copy of the bundle for each appeal available to the Respondents in the usual way.
On 6 October 2020, the day before the hearing, I called the EAT to find out the name of the Judge and the two lay members. To my surprise, I was informed that my appeal would be heard by a Judge sitting alone, The Honourable Lord Fairley. When I enquired about the late change in the arrangements I was told that it was simply a decision for the EAT to make. It was noted at the time that Lord Fairley is in fact a member of the Scottish Jurisdiction, rather than a member of the Jurisdiction of England & Wales.
The full appeal hearing took place virtually on 7 October 2020 and my Counsel’s submissions to Lord Fairley in relation to Judicial bias; Judicial impropriety and the limitation point can be summarised as follows:
a. A fair minded and informed observer would conclude there was a real possibility of apparent bias where the ‘Baron Tribunal’ read, signed and promulgated its Judgment knowing that paragraph 32 of its Judgment, which was intentionally included to be a true statement of knowledge of that claim (and any evidence adduced in relation to it) was wholly factually incorrect and that this lack of candour together with the clear breach of Article 6 of the European Convention on Human Rights, both renders the Judgment unsafe and undermines public confidence in the administration of justice such that the Judgment, without more, should be set aside.
b. Ms Campbell as a lay member of the ‘Bryant Tribunal’ was duty bound to disclose that as a lay member of the ‘Baron Tribunal’ she had agreed the directive outlined at paragraph 32 of its Judgment which would have precluded her sitting as a lay member of the ‘Bryant Tribunal’. Furthermore, that a fair minded and informed observer would conclude the fact that she did not make a full disclosure is evidence of apparent bias. Also the fact that she disingenuously suggested that the directive detailed at paragraph 32 of the Judgment did not extend to the Tribunal’s deliberations in chambers on 27, 29, and 30 November 2018 and 10 January 2019 (and/or potentially up to the time the Judgment was sent to the parties on 13 March 2019) and/or that her sitting had any bearing on the fact that the ‘Baron Tribunal’ and the ‘Bryant Tribunal’ had deliberated over its decisions during overlapping periods only served to exacerbate the situation pertaining to apparent bias.
c. Ms Campbell sitting as a lay member for both the ‘Baron Tribunal’ and ‘Bryant Tribunal’, where the factual issues between the two claims were related and where the deliberations overlapped, did of itself support a challenge of apparent bias given prejudice may arise because (i) Ms Campbell had knowledge of extraneous matters when she should only be aware of what she received in evidence before the ‘Baron Tribunal’ and (ii) Ms Campbell could have been ‘influenced’ by arguments that were not made before all members of the ‘Baron Tribunal’ and (iii) my credibility was at stake given the adverse findings of the ‘Bryant Tribunal’ could have influenced the decision in the ‘Baron Tribunal’.
In particular my Counsel set out in detail in her written Skeleton Argument that the ‘Baron Tribunal’ had decided from the outset that it would not consider the evidence pertaining to Ms. Hill QC’s investigation into my alleged misconduct, which had given raise to my fourth Employment Tribunal against BSUH and Ms. Hill QC as named Respondents in any more detail than what was already before it as evidence in relation to the matters that it was required to adjudicate upon.
By contrast the ‘Bryant Tribunal’, which considered my fifth claim in relation to the disciplinary outcome, was required to consider Ms. Hill QC’s investigation and my claim against BSUH and Ms. Hill QC in great detail. Consequently, Counsel highlighted to Lord Fairley that Ms Campbell as a member of the ‘Bryant Tribunal’ did indeed receive evidence pertaining to Ms. Hill QC’s investigation and my claim in relation to the same, which she was not party to as a member of the ‘Baron Tribunal’ such that the integrity, impartiality and independence of both Tribunals was compromised. In fact my Counsel also highlighted that Ms Campbell was able to ask questions of me pertaining to Ms. Hill QC’s investigation, (as did Employment Judge Bryant QC), which did in turn result in me writing to Employment Judge Bryant QC during the proceedings to express my concerns about judicial bias on his part and on the part of Ms Campbell; although as my Counsel submitted again this was not adequately addressed by Employment Judge Bryant QC.
My Counsel also made reference to the fact that Mr. Antony Kildare was a named Respondent in my claim before the ‘Bryant Tribunal’, as the then interim Chairman who had heard my appeal against the outcome of Ms. Hill QC’s investigation and had decided that I was to be subjected to a disciplinary for the 13 allegations it was said I had a case to answer in relation to Ms. Burns’ grievance complaints against me. Furthermore, whilst Mr. Kildare was a live issue in the ‘Baron Tribunal’, due to our fractured relationship, he was not a named Respondent and nor was he called as a witness in the ‘Baron Tribunal’. It was my Counsel’s position to Lord Fairley that it would be difficult to see how Ms Campbell would not have been influenced by what she heard as a lay member of the ‘Bryant Tribunal’, given Mr. Kildare was a Respondent and called as a witness. Consequently, this once again would have adversely impacted the integrity and impartiality of the proceedings.
My Counsel did during her oral submissions only (as this was not mentioned in her written submissions agreed with me) mention that Ms. Cashman’s disciplinary outcome letter was considered to differing extents by the ‘Baron Tribunal’ and the ‘Bryant Tribunal’ which also meant that Ms Campbell by sitting on both Tribunals was party to evidence concerning Ms. Cashman’s decision that she would not have been party to had she sat as a lay member of the ‘Baron Tribunal’ only and therefore this also gave rise to the issue of apparent bias.
d. I had not waived my right to object to Ms Campbell sitting and neither could it be said I had done so ‘freely’ given Employment Judge Bryant QC did not follow the correct judicial procedure where a recusal application was contemplated to ensure that as a litigant in person before the ‘Bryant Tribunal’ I was afforded a reasonable opportunity to understand my position to be able to give an informed consent.
As already mentioned Employment Judge Bryant QC in his response to the Order of HHJ Barklem did deny my evidence that he had told me that it was not ‘uncommon or unusual’ for a lay member to sit on more than one claim involving the same parties concurrently. However, he did confirm that whilst he could not recall what he said in dealing with this issue of waiver he did tell the parties that all 3 members of the Tribunal had considered the issue of Ms Campbell sitting and did not consider it a problem. It is my position that my decision whether to object or not to object to Ms Campbell sitting as a member of the ‘Bryant Tribunal’ was influenced by the fact that Employment Judge Bryant QC had informed the parties that the Tribunal having considered the issue did not consider it a problem. It is also noteworthy that the Respondents’ solicitor witness statement submitted in response to the Order of his HHJ Barklem is said to have captured Employment Judge Bryant QC’s comments verbatim and reads quote: “One of my lay members sat on a previous case involving the parties. I can’t see it makes any difference to anything.”
My Counsel also pointed out the fact that Ms Campbell had spent the first day in Chambers reading all the papers to do with my case clearly meant that by the time the parties were asked by Employment Judge Bryant QC, on the second day of the proceedings, whether we objected to her sitting she had already obtained information about the case that she should not have had access to. Furthermore, she pointed out that Ms Campbell was fully aware of what it was that she was being asked to adjudicate upon in each claim and therefore the onus was on her to raise the issue with Employment Judge Bryant QC at the start of the proceedings and to put the matter properly before him. In addition, Employment Judge Bryant QC also had a duty to have properly interrogated the issue and arrange to speak with Employment Judge Baron. He did not.
In addition, my Counsel also highlighted the fact that Judge Keith by way of his Order from the Preliminary Hearing held on 16 June 2020 stated that it was arguable that I had not ‘waived’ the issue in the ‘Baron Tribunal’ as it was only identified and addressed in the eventual judgment”.
e. Finally, that the Bryant Tribunal in relation to the limitation point had fallen into error in considering the jurisdiction issue, because it had failed to acknowledge that taken as a whole there was a continuing and indeed ongoing act extended over a period up to and including my dismissal.
Lord Fairley’s Judgment
Lord Fairley’s Judgment was handed down on 28 October 2020 and he had rejected both my appeals. However, it was also evident that his Judgment was deficient in so many ways and rather more concerning contained findings of facts that were simply not true. Examples in support of my statements in this regard are as follows:
- Lord Fairley’s Judgment does not address the issue that the ‘Baron Tribunal’ read, signed and promulgated a Judgment knowing that paragraph 32, which was intentionally included to be a true statement of knowledge of that claim (and any evidence adduced in relation to it) was wholly factually incorrect. It is Lord Fairley’s position that he accepts that Employment Judge Baron statement at paragraph 32 that “I have ensured” was misleading. However, he states when the proceedings are considered as a whole it does not support my argument of apparent bias. In addition, Lord Fairley makes no findings whatsoever concerning the fact that the lay members Ms. Campbell and Mr. Goodden also signed off the Judgment in the knowledge that paragraph 32 was wholly factually incorrect.
My application to the Court of Appeal for permission to appeal Lord Fairley’s Judgment in this regard highlighted the fact that Lord Fairley was aware that Employment Judge Baron by his own admission to the EAT confirmed he saw Ms. Campbell sitting on the ‘Bryant Tribunal’ and made enquiries about it and therefore it cannot be denied that he knowingly, willfully and intentionally sought to mislead when he stated at paragraph 32 of his Judgment that “I have ensured” and of course he could provide no explanation whatsoever as to why he wrote paragraph 32 of the Judgment knowing it to be factually incorrect. It is also my position that the latter also applies to Ms. Campbell and Mr. Goodden. In addition, my application states that Lord Fairley was wrong to find that there was no need for the ‘Baron Tribunal’ to have addressed the issue of waiver with me, because my alleged waiver to Ms. Campbell sitting as a lay member of the ‘Bryant Tribunal’ would also have been valid for her sitting as a lay member of the ‘Baron Tribunal’. It is my position that Employment Judge Baron was also required to address the issue of waiver as it pertained to his Tribunal as highlighted by the Order of Judge Keith from the second preliminary hearing into these matters.
- Lord Fairley’s Judgment also failed to address my submission that Ms. Campbell had a duty to disclose to the ‘Bryant Tribunal’ the directive that she had agreed as a member of the ‘Baron Tribunal’ as outlined at paragraph 32 of its Judgment, which would have precluded her sitting. Furthermore, a fair minded informed observer would consider her failure to provide a full disclosure was evidence of apparent bias.
It was my application to the Court of Appeal for permission to appeal Lord Fairley’s Judgment that he was wrong not to address my submissions in this regard in his Judgment.
- Paragraph 49 of Lord Fairley’s Judgment states that the primary focus of my arguments concerning ‘apparent bias’ related to Ms. Cashman’s decision and reads: “Although the primary focus of the Appellant’s argument on apparent bias related to the Cashman decision……”
It was my application to the Court of Appeal for permission to appeal Lord Fairley’s Judgment that the above finding of fact is simply not true given during the proceedings my Counsel had clarified to him, when he asked her whether the Cashman decision was the ‘centrepiece’ of my argument on apparent bias, that it was not and that it was entirely her error for giving him that impression. She then referred him to my other arguments on apparent bias that were detailed in her written submissions before the EAT; notably my arguments pertaining to Ms. Hill QC’s investigation and my fourth ET claim against her and BSUH and my arguments regarding Mr. Kildare. As already highlighted above her submissions regarding apparent bias as it pertained to Ms. Cashman’s decision was only pursued during her oral submissions on the day. I did in fact obtain a transcript of the audio recording from my full appeal hearing held on 7 October 2020 privately at great expense which confirms my statements above Lord Fairley was told that Ms. Cashman’s decision was not my primary focus on apparent bias.
It is my position that the fact that Lord Fairley included in his Judgment a finding of fact which he was told during the hearing was not true must amount to judicial misconduct. However, my complaint to the President of the EAT, The Honourable Mr. Justice Choudhury in this regard was dismissed. The Ombudsman confirmed that the matter was outside the power of his remit.
Furthermore, it was my submission to the Court of Appeal that Lord Fairley had willfully excluded evidence that was central to my appeal in relation to apparent bias in that he had willfully excluded my evidence that Ms. Hill QC’s investigation and my claim against BSUH and Ms. Hill QC, was only considered to a limited extent by the ‘Baron Tribunal’, but was considered extensively by the ‘Bryant Tribunal’. Consequently, Ms. Campbell siting on the ‘Bryant Tribunal’ after sitting on the ‘Baron Tribunal’ did obtain information pertaining to Ms. Hill QC’s investigation and my Fourth Employment Tribunal claim against BSUH and Ms. Hill QC, which she was not party to as a member of the ‘Baron Tribunal’. Furthermore, that Lord Fairley’s conduct in this regard was a breach of my right to a fair trial as set out by Article 6 § 1 of the European Conventions on Human Rights.
- It is Lord Fairley’s finding that I did waive my right to object to Ms. Campbell sitting as a lay member of the ‘Bryant Tribunal’ and that I had done so freely. In support of his finding he said that I did have sufficient information to make a fully formed decision and although he was not in a position to know what Employment Judge Bryant QC said in addressing this issue because the latter couldn’t recall himself what he said, he (Lord Fairley) could not see how Employment Judge Bryant QC offering an opinion as to the Tribunal’s position on the matter would have interfered with my freedom of choice whether or not to object to Ms. Campbell sitting.
It was my application to the Court of Appeal for permission to appeal Lord Fairley’s Judgment in this regard, that Lord Fairley failed to give due consideration to the fact that Employment Judge Bryant QC did not deal with the issue of waiver in accordance with the guidance laid down by the law including the fact that he had not recorded and could not recall how he had addressed the issue, in any event. Furthermore, as a litigant in person I was influenced by Employment Judge Bryant QC stating that he did not consider it a problem and as such my decision not to object was not made ‘freely’.
- Lord Fairley’s Judgment upheld the decision of the Bryant Tribunal that my claim was out of time and I decided that I would not challenge his decision by way of my application to the Court of Appeal for permission to appeal his Judgment in this regard. However, I did by way of my application challenge the fact that his Judgment did not reflect the position he took during the appeal hearing notably that the ‘Bryant Tribunal’ did not have the jurisdiction to make any findings of facts in relation to my claim having decided they did not have the jurisdiction to hear my claim because it was out of time. That this is the case is confirmed by the transcript from the audio recording of the proceedings.
Consequently, my application to the Court of Appeal for permission to appeal Lord Fairley’s Judgment raised concerns as to whether the ‘Bryant Tribunal’ did in fact have the right to make the findings it did outside of jurisdiction, because without jurisdiction the Judgment was void.
Court of Appeal
It would be a grave understatement to say that Lord Fairley’s Judgment was a devastating blow to my belief that justice would be attainable in the UK.
On 3 November 2020 I submitted my application, for permission to appeal to the Court of Appeal, to Lord Fairley in accordance with the Rules of the Tribunal. It is noteworthy that I did not receive a response until 2 December 2020, well outside the 21 days time limit for me to submit an application for permission to appeal to the Court of Appeal. Lord Fairley’s response was to reject my application; although in accordance with Tribunal rules I was still permitted to pursue my application in the Court of Appeal.
In order to comply with the 21 days time limit I had in fact submitted my application to the Court of Appeal for permission to appeal Lord Fairley’s Judgment on 17 November 2020.
On 1 March 2021 Lady Justice Simler, rejected my application. However, it was evident from her reasons that she had failed to adequately address my application. I was also concerned that of the 38 Lord and Lady Justices at the Court of Appeal my application was considered by Lady Simler who as the previous President of the EAT had actually decided on my appeals in the past against BSUH.
On 19 March 2021 the Supreme Court, in response to my enquiry confirmed it was also not ‘open’ to me. I had therefore exhausted all domestic remedies, which meant that I was now in a position to submit a claim to the European Courts of Human Rights.
My Claim Before the European Court of Human Rights
My claim before the European Court of Human Rights details a number of violations of my right to a fair trial as set out by
Article 6 § 1 of the European Convention on Human Rights. I am currently represented by an international lawyer based in Eastern Europe.
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 Remaining Grounds of Appeal Before the Employment Appeal Tribunal
As mentioned earlier my Rule 3(10) applications for those grounds of both my appeals that were rejected at the sift stage had been stayed until the outcome of the my appeal in relation to judicial bias; judicial impropriety and the limitation point.
On 18 November 2020 I wrote to the EAT to ask (i) for the stay in relation to my Rule 3(10) application for the ‘Baron Tribunal’ to be lifted (ii) for the stay in relation to my Rule 3(10) application for the ‘Bryant Tribunal’ to remain stayed and (iii) to seek permission to add new evidence in support of my appeal against the ‘Baron Tribunal’ which had come to light more recently.
The Respondents were to challenge my application on the basis that I had ‘abandoned’ my Rule 3(10) applications and that this was confirmed by Keith Judge at the second preliminary hearing held on 16 June 2020. However, this was simply not true. This situation was to be reviewed by Judge Keith and it was his direction that my Counsel did not abandon my Rule 3(10) applications and that they should both be listed for a hearing.
Consequently, I submitted an application to also add a new ground of appeal in relation to the ‘Bryant Tribunal’ Judgment based on the fact that Lord Fairley had confirmed at the full appeal hearing that the ‘Bryant Tribunal’ did not have the jurisdiction to make the findings it did having decided that it did not have the jurisdiction to hear my claim because of time limits.
The Rule 3(10) hearing took place on 20 May 2021 before His Honour Judge (HHJ) Tayler.
In relation to the ‘Bryant Tribunal’ Judgment I further argued that not only did the Tribunal not have the jurisdiction to make the findings that they did the resulting Judgment amounted to an ultra vires action. Consequently, the Judgment was a void Judgment and should be dismissed.
HHJ Tayler did not agree and refused my application to amend my grounds of appeal in relation to the ‘Bryant Tribunal’. Given I did not pursue the remaining grounds of appeal in light of Lord Fairley’s Judgment, that my claim was out of time, HHJ Tayler dismissed my appeal in relation to the ‘Bryant Tribunal’.
In relation to my Rule 3(10) application for the ‘Baron Tribunal’ Judgment it was HHJ Tayler’s decision that 4 of my 6 remaining Grounds of appeal should be set down for a full appeal hearing. The 4 Grounds of Appeal relate to the following:
- That the matters which had resulted in my dismissal had already been subject to due process by way of disciplinary proceedings and had resulted in a final warning for 12 months being applied.
- Given (i) the same matters can then not be said to give rise to some other substantial reason (SOSR) in order to justify my dismissal.
- That if, contrary to the ‘Baron Tribunal’ Judgment, my Counsel did put to Ms. Griffiths that her attempt to apply Regulation 5 to my role as Associate Director of Transformation, was because I had done protected acts, then there is an arguable error of law.
- That it is sufficiently arguable that paragraph 105 of the Employment Tribunal’s Judgment suggest that it did not sufficiently analyse my evidence that the reasons the Respondents did not subject other senior staff to Regulation 5, when the evidence shows they had been guilty of conduct that would have been deemed by the Respondents to amount to a breach of Regulation 5, was because I had lodged Employment Tribunal claims (i.e. had done protected acts) and they had not.
It was agreed the full appeal hearing would be stayed until the ET had decided my reconsideration application concerning the same Judgment. The reconsideration is based on new evidence being made available in 2019, two years after my unfair dismissal. For more information please see next section.
The Order of HHJ Talyer required me to serve on the EAT and the Respondents an affidavit in support of the contention that it was put to Mrs Griffiths (the Third Respondent to my claim) that her application of Regulation 5 to my job role, when it did not apply, was because I had done protected acts and therefore evidence of victimisation. The Respondents were then required to provide a response and to my affidavit. My affidavit and the Respondents’ response would then be sent to the Tribunal for Employment Judge Baron to respond.
On 3 November 2021 Regional Employment Judge (REJ) Freer informed the EAT that Employment Judge Baron had retired and therefore there was no reasonable prospect that he could provide a response to the EAT Order. Furthermore, HHJ Tayler’s order did not require that he (REJ Freer) should seek a response from the lay members Ms. Campbell and Mr. Goodden although they remain active members of the Tribunal. HHJ Tayler requested that the parties provide a response to REJ Freer’s comments. The Respondents’ accepted REJ Freer’s position as outlined. However, it was my position that Employment Judge Baron had responded to the EAT order of HHJ Barklem in retirement concerning my ground of appeal in relation to judicial bias and therefore he should be required to respond to the order of HHJ Tayler. Furthermore, given HHJ Barklem required a response from all three members of the Tribunal that HHJ Tayler should also amend his order to also request a response from Ms. Campbell and Mr. Goodden.
On 10 December 2021 HHJ Tayler ordered that all three members of the Baron Tribunal should respond to the correspondence from the parties. Their responses are awaited.
On 23 February 2022 Employment Judge Balogun dismissed my reconsideration application. My appeal against her decision was received by the EAT on 15 March 2022 (see next section).
On 14 March 2022 I asked the EAT to lift the stay of my appeal.
That said, more recently I have become aware that Mrs Justice Eady DBE was appointed as the new President of the EAT on 1 February 2022. Her appointment gives rise to a conflict of interest concern given in 2013 she was instructed by BSUH alongside its current Counsel Mr. Kibling in relation to my third employment tribunal claim. As detailed above, after three attempts in the Employment Tribunal and two successful appeals before the EAT the Employment Tribunal eventually upheld my claim of race discrimination in the form of victimisation against BSUH and its then Human Resource Director Mr. White, who was also a named Respondent in my claim.
On 29 March 2022 I wrote to Mrs Justice Eady DBE to highlight to her this conflict of interest. I also informed her that for me to have confidence that the judicial process will be free of bias and unjust interference my appeal and my recent application to the EAT appealing the Judgment from the reconsideration hearing, would both need to be transferred to the Scottish Judiciary for determination. I await a reply.
New evidence in Support of my Appeal Against the Baron Tribunal Judgment
With regards to my application for new evidence to be permitted in support my appeal against the ‘Baron Tribunal’ Judgment the EAT’s Registrar had directed that I should include it in my Skeleton Argument for the Rule 3(10) hearing. I obliged. I therefore put my case to HHJ Tayler at the Rule 3(10) hearing on 20 May 2021.
By way of HHJ Tayler’s Order from the Rule 3(10) hearing I filed an application with the Employment Tribunal on 27 May 2021, for a reconsideration of the ‘Baron Tribunal’ Judgment in light of the new evidence.
The new evidence relates to an article published by the Health Service Journal on 8 July 2019 in relation to a roundtable event that it hosted, (some two years after my dismissal by BSUH) detailing the derogatory, damaging and detrimental comments made by the Chief Executive Ms. Marianne Griffiths pertaining to the “very poor” relations between BSUH and its BME workforce and reads as follows:
But the session started with Marianne Griffiths, chief executive of both Western Sussex Hospitals Foundation Trust and Brighton and Sussex University Hospitals Trust talking about the very difficult situation she had inherited at BSUH where relations with some of its BME workforce were very poor-she said she had not realised the extent of “the damage done” to the organisation. This had been long-standing and toxic, with what she described as “sticking plaster” solutions in place and has led to a number of employment tribunal cases.
How do we challenge our staff when they make those comments? Do we reflect the community we serve or do we challenge the community we serve? I think we have a responsibility of challenge some of that.
When Ms. Griffiths was appointed nearly three years ago, she decided to address some of the issues and asked Yvonne Coghill, director of implementation for the Workforce Racial Equality Standard, for assistance. She found there were issues which were not being addressed around inequalities, but there was almost an ‘extremist, very anti-organisational” BME structure which excluded anyone who was LGBT and did not really like anyone who was not Christian.
But there was also a need to lead from the front: the trust had to do some “brave things” which led to employment tribunals but was a signal to the organisation that they were taking the issues seriously”.
On 15 July 2019 the BME Network for BSUH issued a public statement challenging the derogatory comments made by Ms. Griffiths. The lead for the BME Network, Ms. Caroline Browne, was later to file an Employment Tribunal on behalf of the members of the BME Network for victimisation.
On 16 November 2020 a Preliminary Hearing was held to discuss a number of matters pertaining to Ms. Browne’s claim and it was BSUH’s written submissions that Ms. Griffiths’ comment needed to be placed in context as it related to me and not Ms. Browne and/or the members of the BME Network. Furthermore, Ms. Griffiths’ reference to Employment Tribunal claims was also in relation to my claims.
It was in response to the above submission from BSUH’s Counsel that the Employment Tribunal decided to strike out Ms. Browne’s claim on the basis that it would not be possible for her to make good her victimisation claim against Ms. Griffiths. It is also noteworthy that BSUH also misled the Tribunal in that its Counsel informed the Tribunal that the EAT had dismissed my appeal against the ‘Baron Tribunal’ Judgment, which is clearly not true.
However, it is my submission to the Employment Tribunal by way of my application for a reconsideration of the ‘Baron Tribunal’ Judgment that Ms. Griffiths’ comments as recorded by the Health Service Journal do indeed support my evidence before the Tribunal in September 2018 that her conduct towards me, on taking up her post as Chief Executive of BSUH on 1 April 2017, was directly related to my Employment Tribunal claims. Furthermore, her actions were premeditated.
Consequently, to state the obvious it is evident that I am in a position to make good my claim of victimisation against Ms. Griffiths in relation to her decision to dismiss me from my post and in relation to all her actions short of my dismissal.
On 3rd August 2021 the ET confirmed my reconsideration application was accepted and that a two hour Preliminary Hearing (PH) would be held to set up a two day reconsideration hearing. On 8 September 2021 the ET confirmed the PH would take place on 17 January 2022 and the reconsideration hearing on 22 and 23 February 2022.
At the PH on 17 January 2022 Employment Judge (EJ) Balogun explained that she had been appointed to oversee all three stages of the reconsideration process given EJ Baron had retired. She also informed the parties that REJ Freer had not followed the correct process and as such the PH and the reconsideration hearing should not have been listed before a decision had been taken as to whether my application did indeed have merit, in accordance with the first stage of the reconsideration process. She further explained that the second stage of the process was for my application to be considered on the papers and as such I was required to prepare a witness statement for submission to the Respondents who in turn would prepare its skeleton argument by response. If it was her decision from the papers that my application had merit then it would be set down for a reconsideration hearing. If not it would be dismissed.
It was EJ Balogun’s position that even though she had not decided the first stage of the process given the parties were present the time should be used to clarify the issues to be determined; decide the documents to be included in the bundle and the dates for the witness statement and the skeleton arguments to be made available notably 8 February and 15 February 2022 respectively. This was on the understanding it would only be relevant if she decided that my application had merit and should proceed to the second stage. She explained that she would inform the parties of her decision in this regard in 2-3 days.
I explained to EJ Balogun that I did not agree with her approach given the letter from REJ Freer dated 3 August 2021 made very clear that the purpose of the PH was to set up the reconsideration hearing on 22 and 23 February 2022. She refused to take my point on board and made clear that the process would be followed as she had outlined to the parties.
After the PH on 17 January 2022 I wrote a letter of complaint to the President of the ET concerning the manner in which the ET was managing my reconsideration application and REJ Freer more specifically given he was ultimately responsible for these matter and the appointment of EJ Balogun to preside over my application.
On 18 January 2022 the parties received a letter from the ET setting out EJ Balogun’s position, which was clearly contrary to the position she had taken during the proceedings on 17 January 2022. The letter from the ET reads:
“Employment Judge Balogun’s provisional view is that on the information before her she cannot say that there is no reasonable prospect of the original judgment being varied or revoked. The matter will proceed to a Hearing on the dates previously notified”
EJ Balogun’s accompanying Order set out the issues to be determined at the reconsideration hearing as follows:
“The claimant clarified that she was seeking by way of reconsideration:
(i) A revocation/variation of the finding that her dismissal did not amount to victimisation based on her having brought previous Tribunal claims and
(ii) A revocation/variation of the finding at paragraph 142 of the original judgment that dismissal was within the range of reasonable responses and therefore fair”
The parties gave their submissions on 22 February 2022 before the full Tribunal. However, only EJ Baron and Mr. Goodden were in the same Tribunal room. Ms. Campbell was connected remotely to the proceedings from another Tribunal room down the corridor because she was ‘shielding”. It is noteworthy that the Respondents’ Counsel Mr. Kibling decided against cross-examining me as advised at the PH on 17 January 2022.
On 23 February 2022 the parties attended the proceedings for EJ Balogun to hand down the Judgment of the Tribunal. My reconsideration application was refused.
Although the Judgment has been sent to the parties it is still not published on the Tribunal ‘s website and therefore I am not at liberty to discuss the Judgment in detail at this stage. However, I will provide a full explanation once published.
That said, I can advise that my appeal application against EJ Balogun’s Judgment was received by the EAT on 15 March 2022. As mentioned in the above section I wrote to the new President Mrs Justice Eady DBE to raise a concern of conflict of interest with her given she was instructed as Counsel for BSUH together with BSUH’s current Counsel for my Third Employment Tribunal claim in 2013. It is my position that my appeal will need to be determined by the Scottish Judiciary for me to have confidence that the judicial process would be free of bias and unjust interference.
The Government’s Review of Regulation 5 (Fit and Proper People Test)
Following its inspection of BSUH in 2016 the Care Quality Commission recommended that BSUH be placed in Special Measures. This was to lead to the Board for BSUH being taken over by the Board for the neighbouring Western Sussex Hospitals (WSH) NHS Foundation Trust on 1 April 2017.
On 25 April 2017 I received a letter from the Deputy Chief Executive Dr. George Findlay informing me that the new Board was concerned that Ms. Cashman’s disciplinary findings against me made available some 6 months earlier meant that: (i) it was no longer tenable for me to be employed in a leadership role as Associate Director of Transformation and (ii) The disciplinary outcome meant that I was in breach of Regulation 5 of the Health and Social Care Act (2008) (Regulated Activities) Regulations 2014 (Fit and Proper Person Test).
I met with Dr. Findlay on 16 May 2017 and it was my response to the two reasons he gave as outlined above that:
- My disciplinary followed due process and when my appeal against the outcome was rejected, I was informed that the internal process was concluded. There is no lawful process by which Ms. Griffiths could, without more, increase the sanction from a final written warning to dismissal
- According to the policy of my employer, BSUH, Regulation 5 did not apply to my job role so I cannot be said to be in breach of Regulation 5. Furthermore, the CQC Inspection Report confirmed BSUH policy was compliant with Regulation 5 (the Fit and Proper Person Test).
On 26 May 2017, the Chief Executive Ms. Marianne Griffiths wrote to me to inform me she was dissatisfied with the responses I provided to Dr. Findlay and therefore I was required to meet with her to discuss the disciplinary findings. I met Ms. Griffiths on 8 June 2017 and by letter on 28 June 2017 she informed me I was to be dismissed and that my last working day would be 27 September 2017, given I was required to work my 3 months notice period. Her letter confirmed that:
- It was no longer tenable for me to be employed in a leadership role as Associate Director of Transformation given the disciplinary findings against me.
- The disciplinary outcome meant that I was in breach of Regulation 5 of the Health and Social Care Act (2008) (Regulated Activities) Regulations 2014 (Fit and Proper Person Test).
On 8 February 2018 Dr. Bill Kirkup CBE published his review into the widespread failings by Liverpool Community Health Trust and it was his recommendation that the Government should undertake an independent review of Regulation 5. Consequently, in July 2018 the then Minister of State for Health, Stephen Barclay MP, commissioned Mr. Tom Quark QC to review and make recommendations concerning Regulation 5.
On 6 February 2019 Mr. Kark QC published the findings of his review, which revealed that as part of his review he had interviewed my Union representative Mr. Corrado Valle, Managers in Partnership. It was also evident that my experience, pertaining to the abuse of Regulation 5 by Ms. Griffiths, had been captured within the report albeit anonymously. Mr. Valle making reference to the fact that employers use Regulation 5 as a “last resort dismissal”.
Paragraphs 10 and 11 of the introduction to the review report makes clear that Regulation 5 is intended to apply to Board Directors and those performing equivalent roles and reads:
“The culture and management of each hospital Trust flows from the management team…It is for this reason that the Fit and Proper Person Test, which is supposed to apply to senior management, i.e. Board Directors (both executive and non-executive) and those performing equivalent roles, should be of the greatest significance and capable of being a profound force for improvement. At present, it is not, because it is not properly applied in every Trust”.
Chapter 2 of the review report considers who is covered by Regulation 5 and it is clear that BSUH as my employer was in its right to specify that the Regulation would only apply to Executive and Non-Executive Directors and those in equivalent roles and that it did not apply to my job role as Associate Director of Transformation, because I did not operate at Board level. In fact my contract makes clear that my line manager was the Chief Executive as the member of the Board. Chapter 2 reads:
2.11 Subparagraph (2) provides-
(2) Unless the individual satisfies all the requirements set out in paragraph (3) (a service provider) must not appoint or have in place an individual..
(a) as a director of the service provider, or
(b) performing the functions of, or functions equivalent or similar to the functions
of ……a director
2.12 Part of the effect of Subparagraph 2 (b) is, that although everyone on the Board of Directors will be caught by the test, it is left in the hands of each Trust who else they regard as being required to meet the test. This raises its own problems.
2.13 Subparagraph 2 (b) may lead to a lack of transparency and can cause unfairness if the Trust decides to use the FPPT to remove someone on the grounds that they are not a Fit and Proper Person (FPP) despite not being a Board director. Although it seems unlikely to be a common issue, we heard stories of this test being used as a vehicle for Trusts to have another bite of the disciplinary cherry by using the FPP test as an add-on measure to remove individuals on the ground that they were not FPP compliant, after disciplinary proceedings had been concluded with only a warning or suspension. The National Officer of ‘Managers in Partnership’ Corrado Valle told us:
“The purpose of the regulations was to shield the public, but in reality it has been turned into a sword against managers. It is used where every other means of dismissing someone has failed. The employer uses FPPR as a last resort dismissal”
2.14 For many reasons it seemed to us that there should be absolute clarity as to who is regarded as covered by the test and who is not so as to remove any doubt. To that end we will recommend that the Trusts should be required to declare who, apart from Board members, they regard as directors for the purposes of Regulation 5.
Clearly, Ms. Griffiths was not in a position to dismiss me on the basis that the disciplinary findings against me meant that I was in breach of Regulation 5 given it did not apply to my job role as Associate Director of Transformation as confirmed by BSUH policy in relation to this matter, as my employer. Furthermore, Ms. Griffiths signed an agreement on 31 March 2017 which made clear that as Chief Executive of BSUH from 1 April 2017 she was required to adhere to BSUH’s policies and procedures when dealing with the staff employed by BSUH.
It cannot be denied that the only reason Ms. Griffiths dismissed me from my post was because she did not agree that it was tenable for me to continue in my role given the disciplinary findings against me. However, the outcome of the disciplinary procedure, which was made available some 6 months before Ms Griffiths took up her position as Chief Executive of BSUH, was that I could continue in my role and there is no legal provision whatsoever that permits Ms Griffiths to circumvent due process simply because she does not agree with the outcome.
This is why my fight for justice must continue and your support to cover my legal costs and secure the best legal representation possible going forward is greatly appreciated.
Justice for me is Justice for us.
COST AWARD AGAINST ME
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Donations received via the GoFundMe Platform
Initially when setting up my crowdfund appeal I signed up to the crowdfund platform ‘GofundMe. Unfortunately, I experienced some difficulties and my requests for help were not addressed. Consequently, I decided to create this Website and to work with another crowdfunding platform.
It is necessary to place on record that I received 12 donations by way of the GoFundMe platform and that this amounted to a total of £710 for which GoFundMe has made three deposits to my crowdfunding bank account for £362.62; £294.90 and £28.88 (Total =£686.40).