EMPLOYMENT
Civil procedure - local government - sex discrimination - slip rule - unfair dismissal

Caroline Elizabeth Bone v Newham London Borough Council: CA (Civ Div) (Lords Justice Buxton, Wall, Lady Justice Smith): 30 April 2008

The appellant (B) appealed against a decision of the Employment Appeal Tribunal (EAT) that an original unamended judgment of an employment tribunal, given in respect of unfair dismissal proceedings brought by B against the respondent local authority employer (N), had to stand.



B had applied to the tribunal alleging sex discrimination, victimisation and unfair dismissal. The tribunal promulgated its initial decision after a liability hearing, but its summary of conclusions in respect of victimisation failed to accord with its recorded decisions. B pointed out the deficiency, and the tribunal issued a certificate of correction under schedule 1 paragraph 37 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. A revised judgment was produced by the tribunal but it did not say that B's dismissal was an act of direct sex discrimination and victimisation.



At the remedies hearing, a second certificate of correction was issued under paragraph 37, clarifying that B's dismissal was direct sex discrimination and victimisation. N appealed to the EAT, which held that, in amending its decision as it had in the second certificate, the tribunal had gone well beyond what was permitted by the slip rule in paragraph 37. The EAT further held that it was constrained to conclude that the tribunal's original decision was the one which must stand.



Held: The tribunal's use of the slip rule to amend its judgment was impermissible and an error of law and the EAT was right to so hold. The critical question, however, was whether the EAT was right simply to allow N's appeal, thereby leaving the tribunal's original and unamended judgment in place. While there was no doubt that it was right that the tribunal's judgment could not be corrected under the slip rule, it did not follow that the EAT was 'constrained' to conclude that the original decision had to stand.



The tribunal manifestly intended to find that B's dismissal was direct sex discrimination and victimisation by N, and such a conclusion was properly open to it. It followed that by deciding that the original decision must stand, the EAT was perpetuating an injustice. The question arose as to what the EAT should have done. There was no doubt that it had the jurisdiction, before disposing finally of the appeal, to invite the tribunal to clarify its reasoning and its findings, Burns v Royal Mail Group Plc (formerly Consignia Plc) [2004] ICR 1103 EAT, and Barke v Seetec Business Technology Centre Ltd [2005] EWCA Civ 578, [2005] ICR 1373 applied. The EAT's determination was set aside and B's application was remitted to the same tribunal with directions.



Appeal allowed.



John Horan (instructed by the Citizens Advice Bureau) for the appellant; Jude Shepherd (instructed by the in-house solicitor) for the respondent.





Doctors - foreign nationals - legitimate expectation - recruitment

R (on the application of BAPIO Action Ltd & anor) v Secretary of State for the Home Department & anor (2008): HL (Lords Bingham of Cornhill, Scott of Foscote,Rodger of Earlsferry, Carswell, Mance): 30 April 2008
 The appellant secretary of state appealed against a decision ([2007] EWCA Civ 1139, [2008] ACD 7) that ministerial guidance issued to employing bodies within the NHS in April 2006 was unlawful.



In the autumn of 2005, the Department of Health had reviewed its position on the recruitment by the NHS of international medical graduates (IMGs). There had been considerable increases in the number of medical graduates emerging from medical schools in the UK who were UK nationals, and there was no longer perceived to be an NHS need to recruit IMGs.



The guidance was to the effect that, when NHS employers were looking for junior doctors to fill postgraduate training positions, applicants who were not nationals of the UK or any other European Economic Area (EEA) member state, and whose leave to remain in the UK would not extend beyond the duration of the position on offer, should not be offered the position unless there were no suitable candidates who were UK or EEA nationals.



Held: (Lord Scott dissenting) (1) (Per Lord Mance) The guidance was unlawful. The grant of highly skilled migrant programme (HSMP) status to IMGs within the UK, who enjoyed such status at the date of the guidance, had undoubtedly given those persons a legitimate expectation that they would be able to seek and obtain employment in the fields of their skill. The guidance would have undermined their legitimate expectations in a fundamental way. They would have come here intending to make the UK their main home. Their decision to come would necessarily have taken account of the prospect of employment in the NHS. Before the guidance, the normal practice was for leave to stay with HSMP status to be renewed without difficulty, provided the requirements for renewal were met. Even if the attrition rate for IMGs with HSMP status was in practice high, IMGs with that status would have expected to be able, if they wished, to stay here and be employed in the NHS until the time came when their leave could be made indefinite.



The introduction of a resident labour market test for those whose limited leave expired before the end of the post on offer would radically undermine that expectation. That could have been done by amending the immigration scheme, which would at least have involved a measure of parliamentary scrutiny. But, by issuing the guidance, the secretary of state for health as one emanation of the Crown was exercising her prerogative to give informal guidance inconsistently with the legitimate expectations generated by the immigration rules and the practice adopted by another emanation of the Crown, the home secretary. The inconsistency and its effects were so profound as to render such guidance invalid.



(2) (Per Lord Bingham) The guidance was unlawful. The Department of Health's object 'was to require that IMGs who had certain categories of limited leave to enter or remain in the United Kingdom (apart from those recognised as refugees) be treated as if they required a work permit to enter training positions in the NHS if the duration of their leave did not cover the duration of the training position for which they were applying'. In other words, a new term, unwritten and formally unauthorised, was being silently introduced into their permissions.



(3) (Per Lord Scott) The guidance was lawful. Two factors prevented a challenge based on legitimate expectations. First, the assurances relied on and the decision challenged had been made by different people: the assurances relied on had been made by the Home Office, whereas the decision had been made by the secretary of state for health. Second, the expectations of those concerned could not be elevated to a level that deprived the departmental policy on the employment of doctors at NHS hospitals of the flexibility that it needed to adjust to changing circumstances.



Appeal dismissed.



Jonathan Swift, Jonathan Moffett (instructed by the in-house solicitor) for the appellants; Rabinder Singh QC, Janet Kentridge (instructed by Linder Myers) for the respondents.





HEALTH

Administrative law - pharmaceuticals - confidentiality - consultation - fairness - National Institute for Health and Clinical Excellence

R (on the application of Eisai Ltd) (claimant) v National Institute for Health and Clinical Excellence (defendant) & (1) Shire Pharmaceuticals Ltd (2) Association of the British Pharmaceutical Industry (interveners): CA (Civ Div) (Lords Justice Tuckey, Jacob, Richards): 1 May 2008
 The appellant pharmaceutical company (E) appealed against a decision ([2007] EWHC 1941 (Admin), [2007] 10 CCL Rep 638) rejecting its challenge to guidance issued by the National Institute for Health and Clinical Excellence, in relation to the use of acetylcholinesterase inhibitors for the treatment of Alzheimer's disease, on grounds of procedural unfairness.



The institute had issued new guidance recommending the use of the drugs in issue only for patients with moderately severe Alzheimer's disease. E held the UK marketing authorisation for one of the drugs concerned and challenged the guidance in judicial review proceedings.



In its consultation process, the institute had made available to consultees, including E, a read-only version of an economic model in the form of a Microsoft Excel spreadsheet, which was used to assess the cost-effectiveness of the drugs. E requested, but was refused, a fully executable version of the model.



E's case was that the non-provision of a fully executable version rendered the consultation process unfair and that the decision to issue the guidance was, in consequence, unlawful. The institute's policy was not to release the fully executable version. E contended that the failure to provide the fully executable version was unfair because E was unable to test the reliability of the model by running sensitivity analyses and by tracking the formulae so as to check their accuracy. The institute argued that there was already sufficient disclosure, including provision of the read-only version on request, to meet the requirements of procedural fairness, and that the model was confidential and disclosure of the fully executable version would generate additional representations and unjustifiable delay in the appraisal process.



Held: (1) The institute was subject to the general principles of procedural fairness in relation to the appraisal process and, in particular, had to act fairly in the consultation exercise. In conducting the appraisal process, the institute was discharging an important public function which engaged a strong public interest. The institute accepted the need for a high degree of transparency in the process, with an exceptional degree of disclosure and consultation. That was the context within which the non-disclosure of the fully executable model had to be assessed. The importance of the model within the appraisal process was not in doubt. It was central to the appraisal committee's determination of a drug's cost-effectiveness.



The robustness or reliability of the model was therefore a key question. For the thorough testing of reliability, a fully executable version was required. The institute used that version for quality assurance of its own model and insisted that, if consultees put forward a model of their own, they provided a fully executable version to facilitate review. Sensitivity analyses could not be carried out with the read-only version. The fact that the institute, as the decision-maker, was responsible for checking the reliability of the model, did not answer the question whether fairness required consultees to be given the opportunity to test the reliability of the model themselves, for the purpose of making informed representations on it. To limit the extent to which consultees could engage in the legitimate task of testing such an important element in the appraisal process seemed to be unfair.



(2) Models were commissioned from academic centres by the secretary of state and were supplied to the institute on terms which imposed only a duty of confidentiality on the secretary of state in respect of the contractor's business and affairs. There was no express duty of confidentiality restricting the use or disclosure of the model; and there was no reason why, in the circumstances, such an obligation should be implied so as to prevent the disclosure that E sought.



(3) Even if the release of the fully executable version would add to the appraisal process, the additional time or cost to the institute should not weigh heavily in the balance in deciding whether fairness required release.



(4) Notwithstanding the institute's considered position to the contrary, procedural fairness did require release of the fully executable version of the model.



Appeal allowed.



David Pannick QC, Tom de la Mare (instructed by Arnold & Porter) for the claimant; Nigel Giffin QC, Daniel Stilitz (instructed by Beachcroft) for the defendant; Nigel Kennelly (instructed by Ashurst) for the first intervener; Ivan Hare (instructed by the in-house solicitor) for the second intervener.





CRIMINAL

Police - road traffic - breath tests - driving while over the limit - police powers and duties

Ryan McNeil v Director of Public Prosecutions DC (Lord Justice Latham, Mr Justice Underhill): 28 April 2008
 The appellant motorist (M) appealed by way of case stated against the decision of a magistrates' court to convict him of driving over the alcohol limit.



M had failed a roadside breath test and had been required to produce a specimen of breath at a police station in relation to an offence of driving over the alcohol limit.



At the station, a pro forma document, namely MGDD/A (Station Procedure), was used with a view to administering an intoximeter breath test.



M provided two breath specimens but indicated that he had burped in the course of providing the second specimen. That indication was in response to a question, namely question A17 prescribed by the form, as to whether he had brought up anything from his stomach since he had started to use the intoximeter. A note to the question stated that if a police officer received a positive answer to that question there was reasonable cause to believe that the instrument used had not produced a reliable indication, and directed the officer to require a specimen of blood or urine. The officer followed that direction and required M to provide a specimen of blood. M was convicted of driving over the limit on the basis of the analysis of a specimen of blood that he provided. M contended that, as it was settled law that a specimen of breath that had been affected or potentially affected by reflux or regurgitation from the stomach was to be treated as a specimen of breath for the purposes of the Road Traffic Act 1988, an indication obtained from an intoximeter in such circumstances could not be regarded as unreliable for the purposes of section 7(3)(bb) of the act, so as to entitle a police officer to require a specimen of blood.



Held: Although no blame attached to the police officer for following the procedure prescribed by the pro forma document, the fact remained that the cause that he thought he had had, namely that the breath specimen tested by the intoximeter had not given a reliable indication of the amount of alcohol in R's breath was not, in law, capable of rendering that indication unreliable, Zafar v DPP [2004] EWHC 2468 (Admin), [2005] 169 JP 208. and Woolfe v DPP [2006] EWHC 1497 (Admin), [2007] RTR 16 applied. It followed that the officer had not been entitled to require M to provide a specimen of blood, and, accordingly, M's conviction was quashed.



Appeal allowed.



Nigel Ley (instructed by Byrne Frodsham) for the appellant; Andrew Clarke (instructed by the Crown Prosecution Service) for the respondent.