Appeal by sumithra hewage v grampian health board against an order of the employment appeal tribuna

SECOND DIVISION, INNER HOUSE, COURT OF SESSION Lord Justice Clerk Lord Bonomy Lord Nimmo Smith

[2011] CSIH 4 OPINION OF THE LORD JUSTICE CLERK in the appeal by SUMITHRA HEWAGE Appellant; against GRAMPIAN HEALTH BOARD Respondent: against An Order of the Employment Appeal Tribunal dated 15 April 2009 _______

For the appellant: Napier QC, Miss McCrossan, sol adv; Lefevre Litigation For the respondent: Truscott QC; R F Macdonald, Solicitor, NHS Scotland Central Legal Office

14 January 2011 Introduction [1] By decision dated 4 December 2007 the Employment Tribunal (ET) found that the respondent unfairly dismissed the appellant and unlawfully discriminated against her in terms of sections 1(1)(a) and 6(2)(b) of the Sex Discrimination Act 1975 and sections 1(1)(a) and 4(2)(c) of the Race Relations Act 1976; and continued the case in respect of the award of compensation. The finding of unfair dismissal was conceded at the hearing. The respondent appealed against the decision on the issues of sexual and racial discrimination. By a majority decision dated 4 February 2009 the Employment Appeal Tribunal (EAT) sustained the appeal on both issues and dismissed the application. That is the decision appealed against.

The legislation [2] Section 1 of the Sex Discrimination Act 1975 (the 1975 Act), as amended, applied at the relevant date.

It provided inter alia as follows: "1(1) In any circumstances relevant for the purposes of any provision of this Act, other than a provision to which subsection (2) applies, a person discriminates against a woman if (a) on the ground of her sex he treats her less favourably than he treats or would treat a man ..." ...

Section 5(3) provided inter alia that "Each of the following comparisons, that is (a) a comparison of the cases of persons of different sex under section 1(1) ... must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."

Section 6(2) provided inter alia that "It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her ... (b) by dismissing her, or subjecting her to any other detriment."

Section 1 of the Race Relations Act 1976 (the 1976 Act), as amended, applied at the relevant date. It provided inter alia as follows: "1(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if (a) on racial grounds he treats that other less favourably than he treats or would treat other persons ...

Section 3(4) provided inter alia that "A comparison of the case of a person of a particular racial group with that of a person not of that group under [s 1(1) or (1A)] must be such that the relevant circumstances on the one case are the same, or not materially different, in the other."

Section 4(2) provided inter alia that "It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee ... (c) by dismissing him, or subjecting him to any other detriment."

[3] Council Directive 97/80/EC had the aim of making the principle of equal treatment of men and women more effective. It was implemented in the United Kingdom by section 63A(2) of the 1975 Act. Council Directive 2000/43/EC concerns equal treatment on grounds of race, and was implemented by section 54A(2) of the 1976 Act. The effect of these provisions, which I need not quote, is that where in either case the applicant proves facts from which the ET "could conclude", in the absence of an adequate explanation, that the respondent has committed an act of discrimination, the ET shall uphold the

complaint unless the respondent proves that he did not commit that act. "Could conclude" in these provisions means that a reasonable tribunal could properly so conclude from all the evidence before it (Madarassy v Nomura International plc [2007] IRLR 247, Mummery LJ at para 57). If no adequate explanation is given by the respondent in such a case, the ET must make a finding that there has been discrimination (cf Igen v Wong [2005] IRLR 258, Peter Gibson LJ at paras 17-18).

[4] With effect from 1 October 2010, the 1975 Act and the 1976 Act have been repealed and superseded by the Equality Act 2010.

The Facts The background [5] The appellant is of Asian origin. From 1993 she was employed by the respondent at Aberdeen Royal Infirmary as a consultant orthodontist. In 1996 she was appointed Head of Service of the orthodontics department.

[6] Professor John Forrester was Head of Service of the ophthalmology department.

[7] The questions of unfair dismissal and discrimination, both sexual and racial, have their source in the conduct of an employee of the respondent, Mrs Helen Strachan. Mrs Strachan was the service manager for surgical specialties and had responsibilities in both departments. The ET concluded that Mrs Strachan was not a credible witness. It found that she had lied on certain crucial issues. It found that the appellant was a most impressive witness and that her evidence was entirely credible and reliable throughout.

Mrs Strachan's allegation against Professor Forrester [8] On 5 April 2002 Mrs Strachan accused Professor Forrester of having deliberately manipulated his theatre list for 3 April to engineer the cancellation of several operations, one of which was an operation on Mrs Strachan's mother. She told him that she would "never allow this to happen again." Mrs Strachan's accusation was untrue. She claimed that the information on which she had based it had come from one of Professor Forrester's colleagues. That too was untrue. Professor Forrester's colleagues were wholly supportive of him. His decision to cancel the operations had been based on his clinical judgment.

[9] On the same day, Professor Forrester resigned from the position of Head of Service. He made it clear to the respondent's senior management that he would not be willing to return to that position if Mrs Strachan continued to have responsibilities in his department.

[10] The resignation led to a review of the department. Miss Deb Grant, the assistant chief executive,

prepared a paper setting out the issues. That led to a decision to reorganise the department with Professor Forrester returning as Head of Service assisted by a deputy who would deal with day to day matters. The respondent thereafter relieved Mrs Strachan of involvement in the running of Professor Forrester's department. Deb Grant was a party to that decision. She was aware of Mrs Strachan's "behaviour issues" and required her to undergo counselling. The respondent advertised the position of Head of Service.

Professor Forrester was the only applicant and was duly re-appointed.

The appellant's meeting with Mrs Strachan and Mrs Edith Munro [11] On 9 September 2003 the appellant had a monthly meeting with Mrs Strachan and the clinical nurse manager, Mrs Edith Munro. Mrs Strachan said that she intended to attend the appellant's monthly staff meetings. The appellant said that the meetings dealt with clinical matters and that her staff had told her that if Mrs Strachan were present at the meetings, they would not feel able to express themselves fully and without inhibition. Mrs Strachan and Mrs Munro were abusive, hostile and aggressive towards the appellant. The appellant was upset by this experience and was reduced to tears. When she made to leave the room, Mrs Strachan put her hand to the door to stop her from leaving. She said that they did not wish Mrs Strachan's assistant service manager, Gillian Cartwright, who was in the adjoining room, to see the appellant in such a distressed state.

[12] Mrs Strachan and Mrs Munro denied the appellant's account in all its essentials and alleged that it had been the appellant who had been the aggressor. The ET found that they were evasive and unconvincing witnesses and that they had been neither credible nor reliable. It found the appellant's account of this incident to be convincing. Her account was supported by Gillian Cartwright, whom the ET found to be entirely credible and reliable, and by other members of staff who held the appellant in high regard.

Gillian Cartwright's complaint [13] At about this time, Gillian Cartwright made an informal complaint about Mrs Strachan's conduct and went on sick leave. In January 2004, on her return, she made a formal complaint against Mrs Strachan for unreasonable behaviour. In April 2004 Gillian Cartwright resigned. In due course the investigating panel found that most of Miss Cartwright's allegations were well founded. It found that on occasions Mrs Strachan had been hostile, confrontational and aggressive, and concluded that it was her responsibility to change her behaviour.

The appellant's resignation as Head of Service [14] After the meeting on 9 September, the appellant showed symptoms of stress. On 6 October she was assessed by the respondent's consultant occupational health physician, Dr Elizabeth Murphy, as having workplace rather than health problems. On 7 October 2003 the appellant had a meeting with Mr Alex Cumming, the respondent's chief executive, about the difficulties that she had experienced with Mrs Strachan and Mrs Munro. She told him what had happened at the 9 September meeting. She said that it would be difficult to work with them. Mr Cumming simply told her to take some time off. On 30 November 2003 the appellant resigned from the position of Head of Service. On 9 December 2003 she formally complained to Mr K McLay, the associate medical director, about the treatment that she had received at the hands of Mrs Strachan and Mrs Munro at the meeting. The complaint was made and dealt with under the respondent's Dignity at Work policy and procedure. In January 2004 Mr McLay referred her complaint to the NHS Grampian medical director, Dr Roelf Dijkhuizen.

The interviewing issue [15] Over a period of about two years the appellant had made regular requests to Mrs Munro and to Sister Moira Munro, who had nursing responsibilities in the department, that, contrary to existing practice, a consultant orthodontist should sit on interviewing panels for the appointment of dental nurses. Mrs Munro and Sister Munro would not agree.

[16] Mr Colin Larmour, a consultant orthodontist, was appointed to succeed the appellant as Head of Service, at first temporarily and, after April 2004, permanently. Within days of his appointment, the question of the composition of interviewing panels was reconsidered. On 12 December 2003 Mr Larmour met with the appellant and Sister Munro to discuss the question. He then discussed it with a consultant in the maxillo-facial department, who agreed with the appellant's proposal. Mr Larmour then spoke with Mrs Munro and Sister Munro. They agreed immediately that a consultant would sit on interviewing panels for dental nurses. That arrangement was put in place on the same day.

Support for Mr Larmour [17] At about the time of Mr Larmour's appointment as acting Head of Service, the respondent's Operations Manager Alisdair Chisholm told him that if he should have any problems with Mrs Strachan, he had to let him know; and Mr McLay told him to "be friends with the service manager and you'll get

anything signed."

Dr Dijkhuizen's investigation [18] In March 2004 Dr Dijkhuizen decided that there should be a formal investigation into the appellant's complaint, to be conducted by a panel of three under the respondent's Dignity at Work policy.

Mrs Strachan's false allegation [19] In her response to the appellant's complaint, Mrs Strachan referred to the fact that Gillian Cartwright had been on sick leave suffering from work-related stress. She said that Miss Cartwright's stress had been caused by the appellant's behaviour. In her evidence to the ET Miss Cartwright called this "a blatant lie."

The truth was that Miss Cartwright considered that her stress had been caused by Mrs Strachan herself.

The draft report [20] The panel interviewed Sister Munro as a witness on behalf of Mrs Strachan and Mrs Munro. It did not give the appellant the opportunity to call witnesses. On 15 June 2004 the main body of the panel's report was sent to the appellant. The panel narrated the conflicting positions of the appellant and of Mrs Strachan and Mrs Munro; but failed to resolve the conflict. It reached no conclusions and made no recommendations. Without having spoken to Mrs Strachan or Miss Cartwright on the subject, the panel repeated Mrs Strachan's false allegation against the appellant. Dr Murphy reported to Mr Cumming that the appellant was clearly distressed by the content of the report. Dr Dijkhuizen thought that the report was weak and that its recommendations were too little and too late.

[21] On 24 June 2004 the appellant met with Mr Chisholm and asked him to relieve Mrs Strachan of any responsibilities in her department. Mr Chisholm did not do so.

The final report [22] On 6 August 2004 the panel issued its report in its final form to Dr Dijkhuizen. The report made certain recommendations, but by and large it simply repeated the stated positions of the appellant and of Mrs Strachan and Mrs Munro. While the panel found that Miss Cartwright's absence was not caused by the appellant, it failed to say what the cause was; or to record that Mrs Strachan had lied to it; or to record that Miss Cartwright had raised a grievance against Mrs Strachan. The obvious and immediate question was what action should be taken in the light of the report.

The aftermath [23] On 20 August 2004 the appellant had a meeting with Dr Dijkhuizen to review the report. She again asked that Mrs Strachan should be removed from duty as service manager for her department. Dr Dijkhuizen said that there was no basis for such action in the report. He said that Mrs Strachan and Mrs Munro considered that the report was "totally unsatisfactory" and that its recommendations were inappropriate; and that they were seeking an apology from the appellant for having made the complaint in the first place. On 26 August 2004 Dr Dijkhuizen wrote to the appellant, Mrs Strachan and Mrs Munro.

He said that he would write to them again within the week of 13 September 2004 to indicate "how we will take the recommendations of the report forward." However, on 15 September 2004 he wrote to them to say that he would not recommend that any action should be taken on the report. His main reason was the passage of time since the appellant's complaint had been made. This letter caused the appellant further distress.

[24] Dr Dijkhuizen admitted that he had shelved the report and that he could have sent it back to the panel with an instruction to resolve the outstanding issues. He was unable to give the ET a satisfactory explanation for his failure to do so. The ET held that the explanation that he offered was neither credible nor reliable. On 25 November, Dr Dijkhuizen wrote to the appellant to say that no action would be taken against Mrs Strachan regarding her false accusation about Gillian Cartwright.

The appellant's resignation [25] On 30 November 2004 the appellant wrote to Mr Chisholm applying for a review of the outcome of the report. On 24 December 2004, when she had still not received a reply to her application, she submitted her resignation with effect from 31 March 2005. Mr Chisholm did not reply to her until 17 January 2005.

The appellant's intimation of her grievance [26] On 10 April 2005 the appellant intimated a formal grievance to the respondent's human resources manager, Miss Ashley Catto, under the Employment Act 2002 (Disputes Resolution) Regulations 2004.

On 18 May she specified the grievance. By letters of 30 June 2005 and 22 August 2005 the British Medical Association amplified it on her behalf. It alleged that in the 17 months before her resignation she had suffered discriminatory treatment, both sexual and racial. This allegation was based on one specific comparison, namely the case of Professor Forrester. The grievance specified that when Professor Forrester had complained against Mrs Strachan, she had been relieved of responsibilities in his department.

[27] A panel was appointed to consider the appellant's grievance. Miss Catto and Julie Fletcher, the assistant general manager, carried out an investigation. Their report went to the panel as part of the management case. They reported that the evidence gathered would certainly support the view that Mrs Strachan had a tendency to be abrupt and assertive at times; but that no one interviewed had seen or found evidence of bullying. The ET considered that, given her knowledge of the findings on Gillian Cartwright's complaint, Miss Catto had been economical with the truth.

[28] The panel did not report until 22 March 2006, almost a year after the appellant resigned. It held that her grievance was partly justified, mainly in relation to the respondent's delay in dealing with it, but it rejected her allegations of bullying and harassment and of discrimination on grounds of sex or race.

The application to the ET The application form [29] In the application form ET/1 the appellant made it clear that she alleged that she had been unfairly dismissed and that she had suffered discrimination, both sexual and racial. There was an explicit crossreference between the section relating to unfair dismissal (section 5) and the section relating to discrimination (section 6). In relation to the complaint of discrimination, the appellant referred for comparators to "other white male consultants" (p 7). In its reply form ET/3 the respondent denied that there had been a constructive dismissal; but did not respond on the question of discrimination. The respondent did not call for further particulars of the discrimination case, as the ET rules allowed (Employment Tribunal Procedure Regs 2004, Sched 1).

The hearing before the ET [30] During the hearing, the appellant's evidence in relation to discrimination was led without objection.

Moreover, at the hearing the respondent chose not to call Mr McLay or Mr Chisholm or Miss Catto. On the penultimate day, the respondent conceded that the appellant had been unfairly dismissed. The closing submissions on behalf of the parties were therefore confined to the discrimination element.

The decision of the ET [31] It being conceded that the appellant suffered an unfair constructive dismissal, the ET directed its attention to the allegedly discriminatory elements in the dismissal. It considered three specific aspects of discrimination. The first related to a comparison with the respondent's treatment of Professor Forrester. It

is agreed that there was a proper foundation for this in the appellant's ET/1. The second and third related to the respondent's treatment of Mr Larmour. The relevance of this is disputed. The ET then dealt with a number of other aspects of discrimination. I need not go into these. It is conceded by counsel for the appellant that there was no foundation for them in the ET/1.

Professor Forrester [32] The ET concluded that there were "marked similarities" between the case of Professor Forrester and that of the appellant. It was satisfied that there was a like for like comparison between them. It found that when Professor Forrester resigned as Head of Service because of Mrs Strachan's conduct, Mrs Strachan was relieved of responsibility in his department; whereas when the appellant resigned as Head of Service for the same reason, the respondent allowed Mrs Strachan to retain her responsibilities in the appellant's department and appointed another consultant, Mr Larmour, to succeed the appellant on a temporary basis, thereby preventing her from seeking re-appointment as Head of Service. It found the respondent's explanation unconvincing. It concluded that the appellant' complaints of sexual and racial discrimination in this respect should be upheld.

Mr Larmour [33] The ET found that the appellant's repeated efforts to have a consultant included on the relevant interviewing panel had been thwarted by Edith Munro and Moira Munro; whereas within days of Mr Larmour's succeeding her, Edith Munro and Moira Munro had agreed to the proposal. Here, too, the ET considered that there was a like for like comparison. It regarded their change in attitude to be "astounding and inexplicable" and regarded the respondent's suggested explanation as being inadequate. It concluded that in this respect too there had been both sexual and racial discrimination.

[34] The ET next considered the contrast between the support that Mr Chisholm and Mr McLay gave Mr Larmour in his dealings with Mrs Strachan and their failure to support the appellant when she had to deal with the same problem. It found that they clearly knew that Mrs Strachan could be difficult to work with.

It found that, on Mr Larmour's being appointed to take over from the appellant, Mr Chisholm and Mr McLay had been supportive to him in the respects to which I have referred; whereas the appellant had been told by Mr Cumming to take time off and had not been offered by Mr Chisholm, Mr McLay or Mr Cumming anything like the immediate support that was offered to Mr Larmour. The ET found the respondent's explanation to be inadequate and concluded that on this issue too there had been sexual and

racial discrimination.

[35] The ET also made findings of discrimination in relation to certain other matters which, it is conceded, were not covered by the ET/1. Overall, it concluded that in the instances where it found that there had been discrimination, the cumulative effect of these was the cause of the appellant's resignation and of her unfair constructive dismissal. Counsel for the appellant accepted that the ET made an error (at para 132 ) in basing its conclusion on discrimination on the cumulative effect of all of these matters. He conceded that it had no warrant for doing so save in relation to the three matters relating to Professor Forrest and Mr Larmour.

The decision of the EAT Relevancy [36] The EAT's first conclusion was that the question of a discriminatory dismissal was not a proper issue in the case. It reached this conclusion on a reading of the appellant's ET/1 [37] In my opinion the EAT was in error on this point. On a fair and reasonable reading of the ET/1 it is clear that the appellant gave notice in the cross-referenced sections 5 and 6 that she sought a remedy in respect of a dismissal that was both unfair and discriminatory. The respondent cannot reasonably have read the application in any other way, not least because the BMA had already given notice on the appellant's behalf that the appellant alleged that the dismissal was discriminatory. Moreover, the respondent did not call on the appellant in terms of the Tribunal Rules (supra) to provide further and better particulars of her claim; did not take any preliminary point before or at the outset of the hearing as to the relevancy of the discrimination case; allowed the appellant's evidence on discrimination to be led without objection and did not take any relevancy point about discrimination in its grounds of appeal to the EAT. [38] In considering this matter the EAT relied on its own decision in Ladbrokes Racing Ltd v Traynor ([2007] UKEATS/0067/06/MT); but in that case the ET/1 gave no hint of the case that was presented by the applicant before the ET, and the evidence for the applicant was led under objection. This case is distinguishable in both respects.

[39] The EAT also concluded that, at best for the appellant, the only evidence relevant to discrimination was that which referred to Professor Forrester as a comparator. I do not agree. The appellant's ET/1 gave notice that the comparators on which she relied were white male consultants. She specifically mentioned

Professor Forrester and, in the circumstances, it was obvious that the only other white male consultant who could be a relevant comparator was Mr Larmour. I therefore consider that the case of Professor Forrester and the case of Mr Larmour in relation to the interview issue and the support issue were relevant matters. For these reasons, I consider that the appellant's discrimination case had a proper foundation on these grounds in the ET/1.

Onus of proof [40] The EAT considered that the ET had erred in its approach to the onus of proof. In applying the first stage of the test laid down in Igen (supra), the ET had wrongly thought that it had to assume that there was no adequate explanation for the less favourable treatment of the appellant. Moreover, the ET had considered only whether the appellant and her chosen comparators had received different treatment. A difference in status and a difference in treatment did not suffice to establish a prima facie case against the respondents. Lastly, in deciding whether the first stage of the Igen test was met, the ET should have considered carefully whether Professor Forrester and Mr Larmour were appropriate comparators. Instead it had addressed that issue only at the second stage, in considering whether there was an adequate explanation for the discrimination. The ET had thus failed properly to apply the Igen test.

[41] In my opinion, the EAT's strictures on this point are not well-founded. Reading the decision as a whole, I think that it is plain that the ET decided that a conclusion was there to be drawn that the respondent treated the appellant differently from the two comparators and to her detriment; and that, in light of their handling of the appellant's complaints, that difference in treatment justified a prima facie inference of discrimination which it was for the respondent to rebut. The majority view of the EAT was that the ET had fallen into error in saying that at the first stage the Igen test required it to make an assumption (ET, paras 107ff). In the majority view of the EAT, the ET was not required to do so, still less was it required to make an assumption for the purpose of shifting the burden of proof (EAT, para 73). I do not agree. In my view, in considering what inferences or conclusions could be drawn from the primary facts, the ET had to assume that there was no adequate explanation for those facts (Igen, supra, at paras 21-22; Annex (6)). At that stage, of course, it was sufficient for the ET to decide whether on the primary facts it could conclude, in the absence of an adequate explanation, that the respondent had committed an act of discrimination. If the ET so decided, then the burden of proof moved to the respondent (Igen, supra, at para 17). In my view, the ET's approach was correct.

Choice of comparators [42] The EAT decided (para 82) that Professor Forrester and Mr Larmour were not appropriate comparators in that in neither case was like being compared with like. It held that Professor Forrester's circumstances were substantially different from the appellant's. He had been appointed Head of Service of what was a much larger department, to restore order there. Unlike the appellant, he had resigned in anger on learning of Mrs Strachan's serious unfounded accusation against him. He had made it clear that he would not return if Mrs Strachan continued to have responsibility for the ophthalmology department. Noone else had applied for his post. The respondents had arrived at a pragmatic solution by which Mrs Strachan was removed. By contrast, before her resignation as Head of Service the appellant had not sought Mrs Strachan's removal. She had done so only months later. When she resigned as Head of Service Mr Larmour had been available to replace her. On the interviewing issue, at the meeting on 12 December 2003 Sister Munro had agreed to seek the views of the maxillo-facial department on whether there should be a consultant on the interviewing panel. On learning that they had no objection, she had agreed that a consultant should take part on a trial basis. The appellant's earlier requests had involved no such interdepartmental approach. The supportive comments made to Mr Larmour had to be placed in context. He was new in post and there had been difficulties with the service manager. There were no findings as to what support the appellant had been given when she was new in post, or about what the respondents would have done if Mr Larmour had asked for action to be taken about Mrs Strachan.

[43] The EAT therefore decided to allow the respondent's appeal rather than remit the case to the ET for reconsideration. In doing so, in my opinion, the EAT erred. The EAT did not suggest that the ET's adoption of the cases of Professor Forrester and Mr Larmour as comparators was irrational. Instead, it simply substituted its own judgment on the point on a consideration of the findings in fact. That is not, in my view, the correct approach. Unless the ET's judgment on a question of that kind is absurd or perverse, it is not for the EAT, or this court, to impose its own judgment on the point (Salamis (Marine and Industrial) v Forbes 2006 SC 621; Piggott Brothers & Co Ltd v Jackson [1992] ICR 85; Chief Constable of West Yorkshire v Vento [2001] IRLR 124 at paras 16-18). Whether the appropriateness of the appellant's chosen comparators arose at the first or second stage of the Igen test, the fact is that the ET considered that Professor Forrester and Mr Larmour were appropriate comparators, as in my view they were entitled to do.

Conclusions on this appeal The objective test [44] The existence or otherwise of the discrimination alleged is a question to be determined objectively on the facts. In the context of the legislation with which we are dealing, discrimination may be conscious or unwitting (Nagarajan v London Regional Transport [1999] 4 All ER 65, Lord Nicholls at p 885E).

Discrimination: The "something more" [45] On its findings in fact, it was obviously open to the ET to conclude that the respondent treated Professor Forrester and Mr Larmour differently from the appellant in a material respect on each of the points that I have discussed.

[46] On the face of it, that evidence entitled the ET at stage one of its consideration to conclude that the appellant was treated not only differently from her two colleagues, but treated differently to her detriment.

[47] But that alone was not sufficient. Before a prima facie inference of discrimination could be drawn, there had to be something more (Madarassy v Nomura International plc, supra, Mummery LJ at paras 5456, St Christopher Fellowship v Walters-Ennis [2010] EWCA Civ 921, Mummery LJ at para 18).

[48] This is not a case where, as the EAT seems to suggest, there is evidence of differential treatment of the appellant and the named comparators, but nothing more. The common thread that explains the actions of the appellant, Professor Forrester and Mr Larmour is the behaviour of Mrs Strachan who, on the ET's findings, can fairly be said to have been the cause of all the trouble. In my opinion, the "something more" can be found merely in the irresolute response of the respondent's senior management to Mrs Strachan's behaviour and their failure to deal with her effectively. But there was considerably more than that. There was, for example, the eight months delay in the issuing of the final report of Dr Dijkhuizen's investigating panel (ET, para 33); the inability of Dr Dijkhuizen adequately to explain why he had not had the panel resolve the unresolved issues (ET, para 40); and the craven decision of Dr Dijkhuizen, after the hostile reaction of Mrs Strachan and Mrs Munro to the panel's report, not to recommend that any action should be taken on it (ET, paras 37-38). There was also the failure of the respondent's general manager, Mr Chisholm, to reply to the appellant's request for a review before she resigned (ET, para 43) and the failure of the respondent to take any disciplinary action, however mild, against Mrs Strachan for her behaviour.

[49] In relation to Mr Larmour, on the interview issue, there was the "astounding and inexplicable"

change in attitude by Edith Munro and Moira Munro within days of the appellant's resignation as Head of Service (ET para 112).

[50] All of these points have to be seen in light of the respondent's failure to lead any of its senior management to explain the differences in treatment. Counsel who represented the respondent at the hearing made what was no doubt a considered decision to lead only Mrs Strachan; Mrs Munro; Dr Dijkhuizen; Mr Larmour; Mrs Helen Kelman, the respondents' General Manager; and Miss Grant. If the respondent's senior management had had an answer to the claim, Mr McLay, Mr Chisholm and Miss Catto were the people to give it.

Disposal [51] Counsel for the appellant submitted that even if we were to disregard the other incidents for which the appellant had no foundation in her ET/1, we would be entitled to sustain the ET's conclusion only on the basis of the Professor Forrester issue and two issues relating to Mr Larmour. However he accepted that we could do so only if that conclusion was inevitable. I cannot see how such a conclusion could be open to us.

[52] Since the ET expressly relied for its conclusion on discrimination on the totality of the matters to which it referred, we cannot say whether the ET would have reached the same conclusion if it had taken into account only the relevant matters. That is a question for the ET which heard the case.

[53] Counsel for the respondent submitted that if we were minded to allow the appeal we should remit the case for reconsideration by a differently constituted tribunal. In my opinion, the proper course is to remit the case to the same tribunal. A new tribunal would have to rehear the case in full on evidence that is now stale. That would be quite unnecessary in the circumstances. The tribunal members who heard the case have made clear and detailed findings in fact and will have a good recollection of the evidence. The only issue for the ET to resolve is whether, if the other matters were to be disregarded, it would reach the same or a different conclusion on the three issues to which I have referred.

[54] I propose to your Lordships that we should allow the appeal; quash the decision of the EAT; and return the case to the Employment Tribunal which heard it to decide whether, if it had had regard only to the three relevant issues, it would have come to the same or a different conclusion; and, in the light of its decision on that point, to proceed as accords.

SECOND DIVISION, INNER HOUSE, COURT OF SESSION [2010] CSIH NO.4

Lord Justice Clerk Lord Bonomy Lord Nimmo Smith

OPINION OF LORD BONOMY in the appeal by SUMITHRA HEWAGE Appellant; against GRAMPIAN HEALTH BOARD Respondent: against An Order of the Employment Appeal Tribunal dated 15 April 2009 _______ For the appellant: Napier QC, Miss McCrossan, sol adv; Lefevre Litigation For the respondent: Truscott QC; R F Macdonald, Solicitor, NHS Scotland Central Legal Office

14 January 2011 [55] I agree that, for the reasons given by your Lordship in the chair, this appeal should be dealt with as you propose.

SECOND DIVISION, INNER HOUSE, COURT OF SESSION Lord Justice Clerk Lord Bonomy Lord Nimmo Smith

[2010] CSIH NO.4 OPINION OF LORD NIMMO SMITH in the appeal by

SUMITHRA HEWAGE Appellant; against GRAMPIAN HEALTH BOARD Respondent: against An Order of the Employment Appeal Tribunal dated 15 April 2009 _______ For the appellant: Napier QC, Miss McCrossan, sol adv; Lefevre Litigation For the respondent: Truscott QC; R F Macdonald, Solicitor, NHS Scotland Central Legal Office

14 January 2011 [56] I also agree.