England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE LTA 97/5256/K

IN THE COURT OF APPEAL (CIVIL DIVISION) LTA 97/5260/K

ON APPEAL FROM THE EMPLOYMENT APPEAL Tribunal LTA 97/5262/K

LTA 97/5263/K

Royal Courts of Justice

Strand, London WC2

Monday, 7 July 1997

B e f o r e:

LORD JUSTICE WAITE

LORD JUSTICE SWINTON THOMAS

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S. SOMJEE

Appellant/Applicant

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NORTH WEST REGIONAL HEALTH AUTHORITY

(Formerly Mersey Regional Health Authority)

Respondent

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(Computer Aided Transcript of the Palantype Notes of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

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The Applicant appeared in person

The Respondent did not appear and was not represented

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J U D G M E N T

(As approved by the Court )

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©Crown Copyright

LORD JUSTICE WAITE: The applicant, Miss Shehnaz Somjee FRCS is, by her own description, a coloured Pakistani. She is also a British citizen. She was born in Pakistan on 18 March 1953. She trained in Karachi and qualified there as a doctor in 1978. After working as a house doctor in Pakistan she came to England in August 1980. She passed the necessary qualifying examinations for practice here in November 1980 and worked in various hospitals as a house officer and senior house officer until appointed to the post of ear nose and throat registrar by the predecessor of the respondent Health Authority in June 1986. She has attained the distinction of a fellowship of the Royal College of Surgeons.

On 25 October 1988 she presented a complaint ("the first complaint") to an Industrial Tribunal of race discrimination in the course of her employment. The first complaint was heard over five days in February and April 1989. The applicant was represented by a member of the Commission for Racial Equality. Her complaint alleged direct discrimination under three heads:

(1) Failure to short-list her for a vacancy in the temporary post of rotating registrar;

(2) Hostile and biased remarks addressed to her by two doctors in the course of a routine career assessment interview;

(3) Failure to accord her adequate training in her speciality.

As to (1), the Industrial Tribunal found, after detailed examination of the circumstances of the various candidates (including their race and professional qualifications) and hearing evidence as to the criteria adopted for selection, that the applicant had not been discriminated against on racial grounds when she was not placed on the short list. As to (2), there was an acute conflict of evidence between the applicant and the interviewing doctors as to what had been said at the interview. The Industrial Tribunal preferred the doctors' evidence and rejected Miss Somjee's version of the interview. It commented generally that the applicant's evidence needed "to be treated with some care". As to (3) the Tribunal made the finding that the applicant had received the same training facilities as other non-rotational registrars (a group which contains many members of ethnic minorities), and that there were no vacancies for appointment or training as rotational registrars. Her claim was dismissed.

Miss Somjee requested and was granted a review of that decision. The review hearing, at which the applicant this time represented herself, occupied a further three days, during which the Tribunal dealt with allegations firstly that two doctors had given inaccurate evidence at the main hearing about the qualifications for the post of senior registrar and secondly that an assessment document referring to Miss Somjee had been fabricated. Both those serious allegations were rejected, and the original decision of the Tribunal was confirmed.

From those decisions, on the first complaint and on the review, she appealed to the Employment Appeal Tribunal, where she was represented by leading counsel. The appeal was dismissed on 25 October 1996, following a hearing on 6 and 7 November 1995, on the ground that all issues involved questions of fact and credibility on which the Industrial Tribunal had reached findings that could not possibly be described as perverse.

On 2 August 1989 the applicant had presented another complaint ("the second complaint") against the Health Authority. By then she had been dismissed from her employment on 1 June 1989. That dismissal, coupled with further omissions of her name from short lists prepared for senior registrar appointments, was relied on as an instance of victimisation - the protected act being the making of the first complaint. Conjoined with the victimisation claim were numerous alleged instances of direct discrimination, including harassment and use of insulting language by her colleagues or other members of the medical establishment.

At the hearing of the second complaint, which took place before an entirely different Chairman and members from those who had dealt with the first complaint, the applicant was not represented and conducted her own case. The hearing lasted for no less than 17 days. It was protracted by cross-examination of the employers' witnesses on the part of Miss Somjee which the Tribunal described as "meandering and unfocussed". Making every allowance for the difficulties in presentation of her own case the Industrial Tribunal described the impression she left on their members in this way:

"She was unnecessarily confrontational and unpleasant. She seemed unable to appreciate that her actions and behaviour demonstrated precisely those characteristics which, according to the respondents, had caused her downfall. Furthermore, the nature of the logic she applied did indicate propensity to infer racism and mistreatment on the flimsiest grounds."

It would be an impossible task at a hearing such as this, devoted only to the issue of leave to appeal, to summarise in detail all the allegations made by the applicant at the hearing of the second complaint. It will be sufficient to say of the Industrial Tribunal's grounds for rejecting the second complaint that they were in summary the following: There was no evidence to support the conspiracy which Miss Somjee had alleged on the part of doctors and medical staff to disadvantage her because of her race or her complaints of racism or to commit perjury or to fabricate documents. She had a propensity to jump to conclusions and to assume that matters were proven on weak grounds. On the other hand, the doctors who denied racial discrimination and victimisation had given the Tribunal the overwhelming impression that they were telling the truth. Their evidence and explanations were preferred in relation to all incidents. The unanimous view of the Tribunal was that the serious accusations levelled by Miss Somjee against her former colleagues were scandalous and wholly without foundation.

On each of the numerous episodes relied on by the applicant the Industrial Tribunal accepted the particular explanation given by the Health Authority's witnesses and rejected the allegation of unlawful conduct. Certain items of complaint alleged to constitute race discrimination had occurred long before the expiry of the time limit for the lodging of a complaint laid down by the Race Relations Act. The Tribunal declined to entertain them.

From the dismissal of the second complaint the applicant appealed to the Employment Appeal Tribunal. Her grounds of appeal, as amplified in the oral argument which (again representing herself) she addressed to the Appeal Tribunal, were summarised in the judgment given on its behalf by Mummery J as follows:

"(1) The Tribunal was not impartial or independent. She submitted that the real danger of bias would have been obvious to any reasonable person. She cited the instance of her father, a retired judge, who felt compelled to speak out about the conduct of the Tribunal. She explained that she had proceeded under protest after refusal of the transfer of her case out of the region and the refusal of her application for a postponement pending her appeal on the transfer application. She went on to submit that the Tribunal had made up its mind before the hearing had started and had then engaged in oppressive and discriminatory conduct against her.

(2) The hearing was not fairly conducted in accordance with the principles of natural justice. The conduct of the hearing was also contrary to the European Convention for the protection of Human Rights and Fundamental Freedoms, in particular Articles 6(1) and 13. The hearing was acrimonious. The Tribunal had acted on personal prejudice and extraneous factors.

(3) The Tribunal erred in not finding victimisation and direct discrimination. It adopted a wrong approach and reached a perverse conclusion. The cause of the Health Authority's conduct was victimisation. That did not have to be the sole reason for less favourable treatment in order to attract liability.

(4) The Tribunal made erroneous findings of fact, for which there was no evidence or no credible evidence. Indeed, Miss Somjee went so far as to say that the facts were ´fraudulently found'. She cited as an example the fact that the Tribunal had relied on the General Whitley Council Regulations in relation to the length of a registrar's appointment, when those regulations were not legally binding and had not been observed by the Health Authorities in the past.

(5) The Tribunal perversely based their conclusions on unsubstantiated and contradictory hearsay against the weight of independent documentary evidence. She submitted that there was clear evidence of victimisation and direct discrimination and cited as an example the Tribunal's treatment of the evidence of Mr Ramadan.

(6) The Tribunal relied on documents and letters which had been produced for the first time after the hearing had started and indeed after Miss Somjee's evidence had been given to the Tribunal.

(7) The Tribunal wrongly failed to draw adverse inferences from Mr Ramadan's omission to rely to the S.65 questionnaire without reasonable or credible excuse. (His evidence was that he could not remember receiving a questionnaire).

(8) The Tribunal did not take account of the Health Authority's failure to implement their own Equal Opportunities Policy.

(9) The Tribunal wrongly refused to extend the time limit for making complaints that preceded the three-month period.

(10) The Tribunal refused Miss Somjee the opportunity to cross-examine certain of the Health Authority's witnesses.

(11) She had appeared in person, whereas the Health Authority were legally represented. The parties were therefore unequal and she was disadvantaged.

(12) The Health Authorities changed the grounds of their defence at the hearing and indeed after her evidence was taken without giving her an opportunity to consider the new grounds and new amendments. The Health Authorities had invented a defence and had engineered delay for that purpose. No genuine explanation for their so acting had been given.

(13) There should be a reference to the European Court of Justice."

That appeal was rejected at a hearing held on 25 October 1996. The Appeal Tribunal concluded that the issues for the Industrial Tribunal had all been factual, leading to findings of which no criticism could be made on the ground of lack of support from the evidence or on the ground of perversity. As to the allegations of bias, the Appeal Tribunal ruled:

"As to the conduct of the hearing by the Tribunal, we are satisfied that there was no breach of the rules of natural justice or any other rules such as to make the rejection of her case unfair, perverse or legally erroneous. We have the benefit of the Chairman's comments on the allegations made by Miss Somjee about the conduct of the hearing (we refer to his letter of 3rd April 1996). We agree with him that the bulk of the allegations in the Notice of Appeal (which were repeated in the Skeleton Argument and in Miss Somjee's oral submissions to us) are criticisms of the final factual conclusions of the Tribunal and are in truth an attempt by her to have her whole case re-heard. That is not permissible, unless an error of law is established. In particular, the Chairman denied the allegations of bias, of derogatory remarks and impolite conduct. He explained that fresh documents were admitted from both sides during the hearing. The witnesses, which Miss Somjee said she was denied an opportunity of cross-examining, were not in fact called by the Health Authority and Miss Somjee had not sought witness orders against them. As to the postponement of the hearing, that had been refused because the postponement was not warranted. Miss Somjee had proceeded under protest and, in the Chairman's recollection, had later withdrawn that protest. The Chairman also dealt with the particulars incidents alleged to have occurred in the hearing (for example the one involving Miss Somjee's father0 and denies allegations, such as he winked at the Health Authorities counsel, Mr Benson."

I have referred to the fact that the applicant's dismissal on 1 June 1989 had been relied on in the second complaint as an act of discrimination. It was also relied on in a third set of proceedings launched by originating application to the Industrial Tribunal on 23 August 1989 claiming unfair dismissal ("the unfair dismissal claim"). In January 1996 the applicant (renewing a request which had been made unsuccessfully on earlier occasions) applied for the unfair dismissal claim to be transferred from Liverpool to London. Her grounds were that the Liverpool Industrial Tribunals had shown bias against her. The transfer application was rejected by the Regional Chairman. She appealed to the Employment Appeal Tribunal. Her appeal in this respect was also heard on 25 October 1996, when it failed on the ground that the decision whether or not to transfer the unfair dismissal claim to another area was entirely within the discretion of the Regional Chairman whose decision was not demonstrated to have been misdirected in law or plainly wrong in result and could not therefore be assailed.

Following the applicant's failure in these four appeals to the Employment Appeal Tribunal (the two in respect of the first complaint, the one in respect of the second complaint and the one in respect of refusal of a transfer of the unfair dismissal claim) the respondent Health Authority applied to the Employment Appeal Tribunal for an order that their costs of those appeals should be paid by the applicant. That application was made under Rule 34 of the Employment Appeal Tribunal Rules 1993 which provides:

"34.-(1) Where it appears to the Appeal Tribunal that any proceedings were unnecessary, improper or vexatious or that there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings the Tribunal may order the party at fault to pay any other party the whole or such part as it thinks fit of the costs or expenses incurred by that other party in connection with the proceedings.

(2) Where an order is made under paragraph (1) of this rule, the Appeal Tribunal may assess the sum to be paid or may direct that it be assessed by the taxing officer, from whose decision an appeal shall lie to a judge."

Special arrangements were made for that application ("the costs application") to be heard by a re-constitution of the Appeal Tribunal members who had heard the four appeals, including Mummery LJ (as he had by then become). That hearing took place on 18 April 1997. The application failed in respect of the appeals relating to the first complaint. In respect of the other two appeals it succeeded to the extent that the applicant was ordered to pay £2,500 towards the estimated costs of the Health Authority which are £7,765. The grounds for that order ("the costs order") were that the two appeals in question had been founded on allegations which were not substantiated by evidence and were bound to fail.

The applicant, in other words, had been responsible for "unreasonable conduct in bringing the proceedings", within the terms of the rule.

As a result of that long procedural history there are before the court this morning the following applications for leave to appeal against the following decisions of the Employment Appeal Tribunal:

(1) LTA 97/5260/B and 5262/B - dismissal on 25 October 1996 of the two appeals from the orders of the Industrial Tribunal in relation to the first complaint and the review hearing.

(2) LTA 97/5263/B - dismissal on 25 October 1996 of the appeal regarding the second complaint.

(3) LTA 97/5256/B - dismissal on 25 October 1996 of the appeal against refusal of a transfer of the unfair dismissal claim.

(4) LTA 97/5256 and 5263 - the costs order of 18 April 1997.

Substantial grounds in support of the proposed appeals have been lodged by Miss Somjee who has addressed us for something over an hour-and-a-quarter in their amplification, giving us the benefit of a full, clear and courteous argument. I will deal in the order which I have just mentioned with the grounds of proposed appeal upon which she relies in respect of each of her applications.

The first complaint and the review.

Her grounds in summary are that evidence given by the respondent before the Industrial Tribunal was perjured; that evidence emerging in her unfair dismissal claim established a conspiracy to pervert the course of justice in relation to the conduct of one of the respondent's witnesses; that there is prima facie evidence of forgery in relation to an appraisal form completed in respect of her; that the explanations provided by the respondent for its behaviour in recruitment matters are contradicted by evidence that she has given in her unfair dismissal claim; and perversity and natural justice are alleged in respect of a refusal by the relevant Tribunal to permit her to bring further evidence in relation to this. She contends further that the Appeal Tribunal acted ultra vires and outside the law when reviewing its own order; that it had acted in breach of Article 6(1) of the European Convention on Human Rights; that the Industrial Tribunal was biased; that the hearing of the case before the Industrial Tribunal was unfair because one of the members was asleep for part or a great deal of the time; that on that issue the Appeal Tribunal had made a mistake of fact leading to that last allegation being removed from the final version of the Appeal Tribunal's judgment that was handed down; unreasonableness or bias was also alleged on the part of the Appeal Tribunal in covering up the Industrial Tribunal's conduct; the conclusions drawn by the Industrial Tribunal on discriminatory operative training are contended to have been contradictory and wrong in law; generally, the Industrial and Appeal Tribunals had passed the buck to each other and failed to adjudicate a number of issues.

In relation to the second complaint her proposed grounds in summary are that the Appeal Tribunal had failed to adjudicate on the issue of breach of natural justice, bias and breach of European Union law and the European Convention on Human Rights. Complaint is again made about the omission of reference to the Tribunal member who was allegedly asleep. A general cover-up is contended for on the part of the Appeal Tribunal in respect of bias in the Liverpool Tribunal. The Appeal Tribunal is accused of having pre-judged the merits of the transfer of her unfair dismissal claim. The Regional Chairman, refusing such a transfer, is charged with bias and having failed to supply adequate reasons for his decision. The Appeal Tribunal is accused of having reached in that respect an absurd result, misdirected in law. I should just correct one error in that point. The summary that I have just given is of Miss Somjee's grounds in respect of the refusal of the transfer appeal. So I have taken that slightly out of order.

In respect of the victimisation appeal the grounds of complaint are in summary that the Industrial Tribunal conducted its case unfairly, that she appeared only under protest. Bias is alleged. In the Appeal Tribunal the President, Mummery J, is accused of showing antagonism when he warned Miss Somjee as to the possible costs consequences of her persistence in the appeal. Complaint is made that the respondent was allowed to change its defence almost daily. Complaint is made of the refusal of an adjournment. Reference is made to the confrontation with her father. Reference is again made to the inequality of the parties because she was representing herself. Unspecified breaches are alleged of the European Convention on Human Rights and, generally, the decision is claimed to have been improper.

In regard, finally, to the costs appeal Miss Somjee contends that the discretion was exercised perversely because there had been no unreasonable conduct on her part in maintaining the appeals in question. The Appeal Tribunal is charged again with bias because of the warning on costs to which I have already referred. There are further invocations of the European Convention on Human Rights and a series of repeated complaints about the antecedent history of the proceedings and the treatment by the Tribunals concerned of her various allegations.

Having stated all those grounds, I think it is appropriate that I should deal with them compendiously. In so far as they contain accusations of bias against the Industrial Tribunal those charges were fully investigated by the Employment Appeal Tribunal and found to be without foundation. It is unnecessary to say more than that the Appeal Tribunal's investigation had been full and fair, and its conclusion, wholly exonerating the Chairman of the Industrial Tribunal from any breach of natural justice in the hearings accorded to the applicant, is in my view fully justified.

As to the remaining grounds, including the serious allegations which Miss Somjee herself has described in her address to us as involving conspiracy, perjury and forgery against medical staff, they for the most part merely repeat allegations of fact on which the applicant has failed. They therefore provide no basis for any appeal. The transfer appeal stands on a slightly different footing in that the attack is there made on the exercise of the Regional Chairman's discretion to refuse a transfer. Since the basis of that attack is that the Regional Chairman should have taken account of Miss Somjee's criticism of the Industrial Tribunal's conduct of the hearings, criticism which has been found to be without foundation, it must, in my judgment, necessarily follow that any appeal from the exercise of that discretion would also be hopeless.

I should add for completeness that Miss Somjee has taken us in detail in her oral address through the provisions of the Treaty of Rome, the relevant articles and the provisions of the European Convention on Human Rights. She has also reminded us of the relevant terms of the Race Relations Act. The references to European law are apt in the sense that all discrimination in England is dealt with under the Race Relations Act with an eye to the policy considerations imposed by European law. For my part, I am completely satisfied that there is not the least danger of a successful contention that those principles were breached at any stage of the proceedings with which these appeals are concerned.

As to the general allegations that she has had a raw deal, I find those to be without any foundation at all. Miss Somjee cannot say that her initial complaint was brushed aside. On the contrary she had a hearing before the first Industrial Tribunal with representation on the part of the Commission for Racial Equality and on appeal to the Appeal Tribunal with representation by leading counsel. Her endeavours since the first complaint have been prompted by a refusal to accept failure. She, if I may presume to advise her, should not lose sight of the fact that although race discrimination is a serious evil which the law is rightly astute to prevent, the opportunity to complain of discrimination puts a powerful weapon in the hand of the complainant. Charges of race discrimination are extremely hurtful and are not always easy to resist, at all events without time, trouble and expense. Those who abuse the right of complaint by over-persistent or unscrupulous use of it must expect to suffer the consequence of having such misuse penalised by adverse costs orders. Such an order was made in this case by the Appeal Tribunal. It was, in my view, amply justified.

The matter is acte claire. No issue of community law arises and, accordingly, there is no case for making any reference of a question to the European Court of Justice.

I would, for my part, dismiss all the applications.

LORD JUSTICE SWINTON THOMAS: I agree.

Order: Applications dismissed.