England and Wales Court of Appeal (Civil Division) Decisions
You are here:
BAILII >>
Databases >>
England and Wales Court of Appeal (Civil Division) Decisions >>
Mensah v East Hertfordshire NHS Trust [1998] EWCA Civ 954 (10 June 1998)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/1998/954.html
Cite as:
[1998] EWCA Civ 954,
[1998] IRLR 531
[
New search]
[
Printable RTF version]
[
Help]
Case
No: EARTF 97/0610/B
IN
THE SUPREME COURT OF JUDICATURE
COURT
OF APPEAL (CIVIL DIVISION)
ON
APPEAL FROM THE EMPLOYMENT
APPEAL
TRIBUNAL
Royal
Courts of Justice
Strand,
London, WC2A 2LL
Date:
10 June 1998
B
e f o r e :
LORD
JUSTICE PETER GIBSON
LORD
JUSTICE HENRY
and
SIR CHRISTOPHER SLADE
-
- - - - - - - - - - - - - - - - - - - -
|
MENSAH
|
Appellant
|
|
-
and -
|
|
|
EAST
HERTFORDSHIRE NHS TRUST
|
Respondent
|
-
- - - - - - - - - - - - - - - - - - - -
(Transcript
of the Handed Down Judgment of
Smith
Bernal Reporting Limited
180
Fleet Street, London, EC4A 2HD
Telephone
No: 0171-421 4040
Official
Shorthand Writers to the Court)
-
- - - - - - - - - - - - - - - - - - - - - -
Mr.
Gary Morton (instructed by Angela Sumeray, Solicitors, 119 Kenton Road, Harrow,
Middx. HA3 OAZ for the Appellant)
Mr.
Philip Reed (instructed by Osborne Clarke, Hillgate House, 26 Old Bailey,
London EC4M 7HS for the Respondent)
APPROVED
JUDGMENT
Crown
Copyright
Peter
Gibson L.J.: Mrs. Esther Mensah is a black lady of Ghanaian racial origin.
She is a well-qualified and experienced nurse and midwife. She arrived in
England in 1970 and has worked in various hospitals in England, has a
certificate for teaching midwifery and runs her own agency nurse organisation.
The East Hertfordshire NHS Trust ("the Trust") operates the Queen Elizabeth II
Hospital ("the Hospital") in Welwyn Garden City. Mrs. Mensah worked on several
occasions in 1990 in the Maternity Department of the Hospital as an agency
nurse. In 1991 she made two applications for posts in the Hospital, one in the
neonatal unit (which is separate from the midwifery unit), but was unsuccessful
on each occasion. In late 1993 she made enquiries as to vacancies in the
Hospital. Her complaint, which was made to an Industrial Tribunal on 8 January
1994, related to the way she said she was treated in response to those
enquiries. In her Form IT1, which she completed herself, she complained of
racial discrimination. The details which she gave of her complaint extended to
4 pages in manuscript.
Her
account was as follows. On 3 December 1993 she enquired by telephone whether
the Hospital had any vacancies for midwives, only to be informed that 5 E grade
posts had just been filled. On 10 December she called again to express her
concern about that information, spoke to a manager and was told that there had
been complaints about her work from the sisters and a patient. She described
those complaints as discriminatory. The director of midwifery services had
previously informed her that nothing had transpired to cause concern and her
fear of discrimination had been allayed. On another occasion information given
by a manager to her that agency midwives were being booked had been denied by
the director. The incidents in 1993 were described by Mrs. Mensah as follows:
"Around
September/October 1993, I made another of those enquiries about any vacancy and
was informed there was none. I felt despondent and asked whether there was any
anticipation for any possible vacancy and was informed not in the near future.
On the same day, I made enquiry on the neonatal unit and learnt from one of the
sisters that there were one or two and that I should give my name and address
for an application form to be sent on consultation with the manager and that I
should expect a call by phone the next day to confirm. Towards the end of the
following day, as nothing happened, I called to enquire only to be informed
that they could not send me an application form. I could not believe this!
The reason they could not send me an application form was because the vacancies
were not confirmed yet. I felt I could be placed on a waiting list if that was
the case. I did not expect the impossible. When I learnt on the 10
th
of December that five or so vacancies have been held on the neonatal unit and
five vacancies on the maternity, I could not believe my ears and straight away
tried to complain to the director."
She
sent to the Hospital a letter of complaint on 17 December 1993 but said that
nothing was done. She asked how 10 vacancies from September / October
appeared, advertisements had been placed, and the vacancies filled, and what
were the qualifications, experience and ethnic origins of the "lucky nurses and
midwives". She felt that she had been discriminated against because of her
nationality and race and not because of her work. She referred to a number of
provisions of the Race Relations Act 1976 including s.1(1)(a) and although she
did not refer to s.4, it is obvious that she was alleging that the Trust in
relation to employment by it at the Hospital was discriminating against her in
the arrangements it made for the purpose of determining who should be offered
that employment (s.4(1)(a)). The employment in question would appear to have
been to fill one of the "five or so vacancies" on the neonatal unit or one of
the five alleged vacancies in the midwifery unit.
However
when Form IT3 was completed by the Trust giving notice of appearance and of its
intention to resist Mrs. Mensah's application, it referred to an advertisement
in the Nursing Times for E grade midwives on 10 November 1993 (the closing date
for the return of applications being 24 November 1993), to the absence of a
request from Mrs. Mensah for an application form and to the fact that when Mrs.
Mensah telephoned in December 1993 she had already missed the closing date.
But no mention was made of any vacancy arising in the neonatal unit about that
time.
On
28 April 1994 the Industrial Tribunal Chairman caused a letter to be sent to
each of Mrs. Mensah and the Trust, indicating that on 17 June 1994 there would
be a hearing for directions to:
"(a) clarify
the issues in the case and give any necessary Orders for further particulars;
(b) consider
what, if any, Orders are required for disclosure of documents and the
attendance of witnesses;
(c) arrange
if possible, for agreement as to documents;
(d) consider
how long the case is likely to last and give directions as to the date and
length of the hearing; and
(e) give
any further directions which may be necessary for the fair and expeditious
disposal of the case."
That
hearing took place before the Chairman on 17 June 1994 and was attended by Mrs.
Mensah in person and a legal representative for the Trust. A letter dated 29
June written on the instructions of the Chairman was sent to Mrs. Mensah and
the Trust to record what was agreed or directed, viz. the Trust agreed to
supply Mrs. Mensah within 8 weeks particulars of
(1)
the ethnic breakdown of midwives employed by the Trust between January 1990 and
January 1993,
(2)
the commission rate paid by the Trust to other agencies,
(3)
the number of vacancies for E grade midwives in November and December 1993,
and (4)
the number of applicants for those vacancies, stating whether they were
internal or external, and giving the ethnic origin, qualification and
experience of each.
The
Trust also agreed to give particulars concerning the alleged unsatisfactory
work of Mrs. Mensah. The letter recorded that the Trust's representative had
informed the Chairman that 3 named persons would, if available, be called as
witnesses. It was also recorded that the estimated length of hearing was 3
days. It is plain from that letter that it was envisaged that the 3-day
hearing would be taken up with the complaint that Mrs. Mensah had not been
allowed to fill one of the vacancies for the E grade midwives, including what
she considered to be a false allegation about her previous work in the Hospital.
Neither
side appealed against or raised any point on the outcome of that hearing as
recorded in that letter, nor did Mrs. Mensah object to the particulars
provided. The Industrial Tribunal heard her complaint on 2 October 1995, Mrs.
Mensah appearing in person. Its unanimous decision was that the Trust did not
discriminate against Mrs. Mensah on racial grounds contrary to ss.1(1)(a) and
4(1)(a) of the 1976 Act. In its extended reasons it described Mrs. Mensah's
complaint as that she had been discriminated against on racial grounds by the
Hospital on or about 10 December 1993 in relation to an advertised vacancy at
the Hospital for a midwife. It recorded that Mrs. Mensah gave evidence on her
own behalf, that two witnesses, including a Mrs. Kelly, gave evidence for the
Trust and that there was also documentary evidence put before it by both sides.
It then carefully and in detail set out its findings of fact and then expressed
its conclusion that, and its reasons why, there had been no discrimination.
Nothing was said about the neonatal unit vacancies. The Tribunal ended by
making two criticisms of the Trust's general handling of the matter, thereby to
my mind demonstrating the Tribunal's even-handed approach.
Mrs.
Mensah then applied to the Tribunal for a review, alleging a miscarriage of
justice on a number of grounds including "d) 1) Mrs. Kelly gave evidence that
she was not in charge of the Neonatal unit ... The incident of refusal of
sending me an application form in October 1993 by the manager of that unit
needs to be investigated further and this could only be possible with Mrs. Mary
El Rays being called for questioning."
That
application was refused. Mrs. Mensah then appealed to the Employment Appeal
Tribunal on much the same grounds as those on which she relied for the review.
There was a preliminary hearing of the appeal in the absence of the Trust.
Mrs. Mensah was represented by counsel. On 13 May 1996 Butterfield J., giving
the decision of the Employment Appeal Tribunal, granted leave, expressing some
hesitation in doing so. He said:
"The
single point on which we have been persuaded that there is an arguable error of
law in the decision of the Industrial Tribunal, relates to the issue of the
appellant's contact with the respondents in relation to the vacancies at the
neonatal unit as opposed to the vacancies in the maternity unit. It is plain
in our judgment that the findings of fact made in relation to the application
for employment in the maternity unit are such that no arguable point is
disclosed. However, bearing in mind the absence of any reference to the
appellant's application in respect of vacancies at the neonatal unit and the
silence of the tribunal's decision on that point, we consider on that ground
alone that there is an arguable ground of appeal."
In
an amended Notice of Appeal the sole ground of appeal was that the Industrial
Tribunal erred in law in that it failed to give sufficient weight to, or any
weight at all, to Mrs. Mensah's application in respect of vacancies at the
neonatal unit.
On
the inter partes hearing of the appeal, the Employment Appeal Tribunal allowed
the appeal, Morison J. saying:
"We
do not believe that it is a credible case to advance to us that the Respondents
believed that as a result of that directions hearing, in some way Mrs Mensah
had expressly or impliedly abandoned her claim in relation to the neonatal
unit. The position is this : that under Schedule 1 of
The
Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993
an Industrial Tribunal is required by Rule 9(3) to consider the terms of an IT1
and any written representations where an Applicant does not make an appearance
before it. It seems to us, in those circumstances, that had Mrs Mensah not
turned up at the hearing of her complaint, the Industrial Tribunal would have
been required to examine with care the terms of her IT1 and any other
documentation she had provided, if they were minded to dispose of the case in
her absence. In such circumstances they would have been required to apply
their minds to the questions raised by the allegations in the paragraphs to
which I have referred, and to have adjudicated upon them having heard any
evidence or read any documents by or on behalf of the Respondents.
It
seems to us that the position cannot be any different or worse for her, when it
comes to her making an appearance at the Industrial Tribunal on the date fixed
for the hearing. Accordingly it seems to us that where a person who is
unrepresented, particularly in a discrimination case, it is appropriate that
the Industrial Tribunal should be astute to ensure that all matters contained
within the IT1 are dealt with, or expressly abandoned, as the case might be, by
the Applicant, when it comes to their giving evidence ; particularly in a case
where it would appear that the Respondents had not engaged that part of her
complaint in their IT3.
The
Industrial Tribunal plainly did not take into account in their decision the
contentions that she was making in relation to the neo-natal unit.
....
The
position might have been different had they asked themselves questions which
arose out of that part of her IT1 which related to the neo-natal unit.
Accordingly, as it seems to us, the panel of the EAT which concluded that there
was an arguable point of law, had correctly identified a point which, on
reflection, does demonstrate that there has been an error of law in the way
that the Tribunal has dealt with this case.
An
Applicant is entitled to a hearing of her Originating Application. That means
: of the allegations contained in the Originating Application. She has not had
such a hearing because the Industrial Tribunal, for whatever reason, had failed
to address their minds to the allegations she was making in relation to the
neo-natal unit."
The
Employment Appeal Tribunal then carefully considered the options open to it and
decided in favour of remitting the case to another Industrial Tribunal for a
full rehearing of the matters raised in her IT1. Leave to appeal was refused.
On an application to this court for leave the single Lord Justice (Mummery
L.J.) on paper also refused leave to appeal. But on the renewal by the Trust
of its application for leave, Waite and Potter L.JJ. gave leave to appeal,
Waite L.J. observing that the Trust's arguments appeared to raise a procedural
issue of some significance, which might have wider application than the facts
of the particular case.
Mr.
Philip Reed, appearing for the Trust before us as he did in the two Tribunals,
submits that the Employment Appeal Tribunal erred in law. He says that it
should not have considered r.9(3) which has no application to the facts of this
case. He argues that that Tribunal wrongly analysed the way in which that rule
operates in a race discrimination case, wrongly extrapolated from that to
produce a rule which, he said, offended against fundamental principles of
Industrial Tribunal procedure, and then wrongly found an error of law in the
breach of the rule thereby produced. Mr. Morton for Mrs. Mensah submitted that
the Employment Appeal Tribunal reached the right conclusion for the reasons it
gave.
In
my judgment the proper approach for this court as a second-tier appellate court
is to concentrate not on whether the Employment Appeal Tribunal was wrong in
law but whether the Industrial Tribunal erred in law (see, for example,
Campion
v Hamworthy Engineering Ltd.
[1987] I.C.R. 966 at p.972). Without there being such error of law by the
Industrial Tribunal there was no jurisdiction for the Employment Appeal
Tribunal to interfere.
The
error of law identified by the Employment Appeal Tribunal is that the
Industrial Tribunal failed to ensure that all matters contained within the IT1
were dealt with or expressly abandoned by Mrs. Mensah when it came to her
giving evidence. Another way in which the Employment Appeal Tribunal put the
same point was to say that the Industrial Tribunal failed to hear part of the
originating application. It necessarily follows therefore that the error of
law found by the Employment Appeal Tribunal is dependent upon the existence of
a duty on the Industrial Tribunal so to ensure, or a duty to hear every
allegation in the originating application unless so abandoned, the Industrial
Tribunal being bound to act of its own motion even if the applicant does not
put forward evidence to make good the allegation nor argues in support of it.
In this context it should be borne in mind that the details given by an
applicant of his complaint in his IT1 in some cases are lengthy and diffuse.
There
is no like duty in civil actions in the courts, even if the plaintiff is a
litigant in person. It is every judge's frequent experience that more points
are taken in a plaintiff's pleadings than are pursued at the trial and I cannot
believe that a plaintiff who fails at the trial to take and prove a claim made
in his pleadings could at the appellate stage successfully contend that the
trial judge erred in law if he did not draw that claim to the plaintiff's
attention to see if it had been abandoned.
Does
r.9(3), on which the Employment Appeal Tribunal relied, provide a source for
such a duty? It does not apply directly to the circumstances of the present
case, the sub-rule only being expressed to apply where a party fails to attend
or to be represented at the time and placed fixed for the hearing, and the
Employment Appeal Tribunal only referred to it as providing an argument that
Mrs. Mensah should not be in a different or worse position than if she had not
attended or been represented. But logically, with respect, that does not
follow: the circumstances are different. In any event, as Mr. Reed pointed out,
if r.9(3) had applied in the present case it would not have resulted in Mrs.
Mensah being in a better position than in fact occurred. It was for her to
prove that she had been relevantly discriminated against and that would require
evidence. In the absence of her or a representative for her, as no evidence
had been proffered by her on the neonatal unit point, the Industrial Tribunal
would have been bound to dismiss her complaint. I cannot see that help to
found the duty can be derived from r.9(3) in the present case.
Industrial
Tribunal proceedings are characterised by their informality and, as r.9(1)
provides,
"(1)
The tribunal shall, so far as it appears to it appropriate, seek to avoid
formality in its proceedings and shall not be bound by any enactment or rule of
law relating to the admissibility of evidence in proceedings before the courts
of law. The tribunal shall make such enquiries of persons appearing before it
and witnesses as it considers appropriate and shall otherwise conduct the
hearing in such manner as it considers most appropriate for the clarification
of the issues before it and generally to the just handling of the proceedings."
Many
litigants in the Industrial Tribunal appear in person or with lay
representatives and despite the wide discretion given to the Tribunal by r.9(1)
it is conceivable that the courts might have recognised a duty such as that
implicitly found by the Employment Appeal Tribunal. However a long and
consistent line of cases gives no encouragement whatever to the existence of
such a duty and consistently with the procedural rules, which apply in the same
way to unfair dismissal or redundancy cases and to discrimination cases, there
has been no difference of approach between the two types of cases.
I
can start with
Craig
v British Railways (Scottish Region)
(1973) 8 I.T.R. 636. In that case (in relation to an application for a
redundancy payment), it had been contended in the National Industrial Relations
Court that an Industrial Tribunal has a duty to ensure that all relevant
evidence is before it and that that duty was particularly high if one of the
parties is not legally represented. In rejecting that contention, Sir Hugh
Griffiths, giving the judgment of the Court, said (at p.637):
"It
is the duty of the parties to present the relevant evidence before the
tribunal. That is not, of course, to say that where persons appearing before a
tribunal are not legally qualified and are manifestly unversed in legal
procedure that the tribunal will not give them such assistance as they can in
presenting their case. But it cannot be too emphatically stated that the duty
lies upon the parties to place the relevant evidence before the court".
In
Kumchyk
v Derby City Council
[1978] ICR 1116, an unfair dismissal case, it was sought to introduce a new
issue in the Employment Appeal Tribunal which had not been taken before the
Industrial Tribunal. Arnold J., giving the judgment of the Employment Appeal
Tribunal, (at p.1123) said of the omission to take the point:
"It
certainly is not enough, in our judgment, that the point was not taken owing to
a wrong, or what turns out in the light of after events to have been a wrong,
tactical decision by the appellant or his advocate. It would certainly not be
enough that the omission was due to the lack of skill or experience on the part
of the advocate. It would certainly not, we think, be enough that the omission
could have been made good had the industrial tribunal chosen to suggest the
point for consideration to the appellant or his advocate. It is well
established in these tribunals, and we hope in this appeal tribunal, that where
the representation is a non-professional representation, or possibly even where
it is an inexperienced professional representation (if such a thing can be
conceived), in listening to an argument put forward by an advocate or
evaluating a point of law put forward by an advocate, the tribunal will be as
helpful as possible, perhaps by itself refining and improving the argument,
perhaps by suggesting to the advocate that the argument might be put in a
different or more favourable fashion, something of that sort. But we think
that it is very far from the duty or indeed the practice of the chairman of
industrial tribunals that they should be expected to introduce into the case
issues which do not figure in the presentation on the one side or the other, at
any rate in normal circumstances".
Next
in
Derby
City Council v Marshall
[1979] I.C.R. 731, a constructive dismissal case, an employer failed to prove
in the Industrial Tribunal what it had to prove in resisting the employee's
claim, viz. the reason for the dismissal and that it acted reasonably in
relying on such reason. It was suggested by the employer that it was for the
Industrial Tribunal to investigate both whether there was any reason which the
employer could have relied on in the constructive dismissal situation and
whether the employer could establish that it had acted reasonably in dismissing
the employee. Bristow J, giving the judgment of the Employment Appeal
Tribunal, said (at pp. 735,6):
"We
think that is a wrong view of the obligations of the industrial tribunal. They
are a tribunal resolving a dispute, inter partes. Of course, if one party is
totally inarticulate the tribunal will do what it can to see if that party has
got an arguable case, and, if it has, to do justice to that case. But the
obligation of putting forward the case is upon the party".
More
recently in
Dimtsu
v Westminster City Council
[1991] I.R.L.R. 450 the employee's trade union representative conceded before
the Industrial Tribunal that the employee could not make a complaint under the
Race Relations Act 1976 about a particular matter because that complaint was
out of time. But no application was made to the Industrial Tribunal to
exercise its power under s.68(6) of that Act to extend time. On appeal
evidence was presented to the Employment Appeal Tribunal that the employee's
representative did not know about s.68(6) and it was argued that the Industrial
Tribunal Chairman should in the circumstances have raised the question whether
the employee wished to apply for an extension of time. Knox J., giving the
view of the majority of the Employment Appeal Tribunal, held that there was no
error of law in the Chairman not raising the question, saying (at p.452):
"First,
they consider that this case falls within the general principles recognised in
Kumchyk
v Derby County Council
,
supra, that a point not taken in the Industrial Tribunal cannot be taken in the
Employment Appeal Tribunal even though the failure to take it below was due to
lack of skill or experience of the advocate and that the omission could have
been made good had the Industrial Tribunal chosen to suggest it for
consideration."
The
majority expressed themselves as fortified by three considerations which have
some parallel with the present case. The first was that the jurisdiction was
intended to provide a speedy remedy and already in that case 3½ years had
elapsed. The second was that as between the parties the fault lay on the
employee in failing to take the point. The third consideration was this:
"Thirdly,
we regard it as important that the principles set out in
Kumchyk
v Derby County Council
be upheld, and not eroded by qualifications based on inferences which a
chairman of an Industrial Tribunal might make. In saying this the majority
would not wish to cast any doubt on the propriety of the long-established
practice whereby chairmen of Industrial Tribunals give assistance where it is
needed in the formulation and presentation of the cases of persons before them,
be they applicant or respondent, who have not got the benefit of professional
representation and indeed on some occasions when they have such representation.
But this must be a matter for the judgment of the Industrial Tribunal in each
individual case and should not be erected into an obligation which if not fully
complied with leads to a conclusion that an error in law has been committed."
The
Kumchyk
principles have been referred to with approval in three decisions of this court
(see
Hellyer
Brothers Ltd. v McLeod
[1987] 1 W.L.R. 728 at pp. 761,2 and
Jones
v Governing Body of Burdett Coutts School
,
The Times 22 April 1998 and
Divine-Bortey
v Brent London Borough Council
,
The Times 20 May 1998). In the
Divine-Bortey
case Simon Brown L.J. (with whom Swinton Thomas and Potter L.JJ agreed) relied
on the three considerations referred to by Knox J. in
Dimtsu,
the third of which I have cited verbatim. Moreover, where an issue which, in
the language of Arnold J., did not feature in the presentation of a party is
raised on appeal but would require new factual investigation, that issue will
not be allowed to be raised (see
Kumchyk
at pp. 1123,4).
It
may be that in exceptional circumstances it would be just to allow an issue not
raised below to be taken on appeal. But the circumstances of the present case
hardly suggest that this is such a case, still less that there was a duty on
the Industrial Tribunal of its own motion to cause that issue to be raised
before it.
In
the present case there was a pre-hearing review under r.7. That is a review, in
the words of r.7(1) :
"consisting
of a consideration of -
(a)
the contents of the originating application and notice of appearance;
....
and
(c) any oral argument advanced by or on behalf of a party."
The
purpose of the pre-hearing review was expressly stated as being (inter alia) to
clarify the issues in the case. There is no evidence as to what occurred at
the review other than the contents of the letter of 29 June 1994. We therefore
have no evidence that the contents of the originating application and notice of
appearance were not considered by the Chairman as the rule requires, though it
is possible that the unaccountable absence from the notice of appearance of any
reference to the neonatal unit complaint misled the Chairman. It is clear from
the originating application that Mrs. Mensah was indignant that she had not
been given the chance to apply for any of the vacancies both in the midwifery
unit and in the neonatal unit. But the absence of any reference in the letter
of 29 June 1994 to the particulars which she would have needed for pursuing her
complaint over the neonatal unit vacancies strongly suggests that she did not
indicate to the Chairman that she was pursuing that complaint. The complaints
in relation to the vacancies in each of the midwifery and neonatal units would
appear to be no different in kind, and Mr. Morton for Mrs. Mensah frankly
accepted that she needed precisely the same information for her complaint about
the neonatal unit vacancies. Moreover Mrs. Mensah knew from what was said the
names of the potential witnesses for the Trust. They were not staff concerned
with the neonatal unit and they did not include Mrs. El Rays to whose
attendance as a witness Mrs. Mensah was, after the Industrial Tribunal's
decision, to attach importance. If Mrs. Mensah was unhappy about the outcome
of the pre-hearing review, she could have appealed. She did not.
Moreover
at the hearing of her originating application she gave evidence on her own
behalf. She could have given evidence in support of the neonatal unit
complaint. She did not. She chose to pursue only her complaint about the
midwifery unit. In these circumstances in my judgment it cannot properly be
said that there was a failure by the Industrial Tribunal to hear the
originating application.
I
would emphasise that Mrs. Mensah's case has never been that she indicated to
the Chairman at the pre-hearing review that she wished to pursue her complaint
relating to the neonatal unit vacancies. But she has never explained why she
did not so indicate or seek to obtain the consequent directions, nor why it was
that at the hearing of her originating application she did not pursue that
complaint by giving evidence about it. Mr. Reed has told us that at the
hearing of the originating application the whole of the evidence related to the
complaint about the midwifery unit vacancies. The complaint about the neonatal
unit vacancies simply did not feature at all, and Mrs. Mensah has chosen not to
explain her conduct. She is a professional person who at least on paper has
shown herself to be articulate and well able to express herself.
It
is with diffidence that I reach a conclusion different from that reached by the
Employment Appeal Tribunal, with the present President presiding, on a point
relating to the procedure of Industrial Tribunals, and my misgivings are
greatly increased by the fact that a former President, Mummery L.J., would not
have given leave to appeal. But for the reasons which I have given, I have
reached the clear conclusion that the Employment Appeal Tribunal was not
entitled to find an error of law by the Industrial Tribunal in this case. I
would strongly encourage Industrial Tribunals to be as helpful as possible to
litigants in formulating and presenting their cases. It is always good
practice for Industrial Tribunals to clarify with the applicant (particularly
if appearing in person or without professional representation) the precise
matters raised in the IT1 which are to be pursued and to seek confirmation that
any others so raised are no longer pursued. But it must be for the judgment of
the particular Industrial Tribunal in the particular circumstances of the case
before it whether of its own motion it should investigate any pleaded complaint
which it is for the litigant to prove but which he is not setting out to prove.
In
X
v Z Ltd.
[1998] I.C.R. 43 at p.54 Waite L.J. referred to the rule that the Tribunals
themselves are the best judges of case management decisions. The Employment
Appeal Tribunal has done precisely what Knox J. rightly said should not be
done, namely to erect what is a matter for the judgment of the Industrial
Tribunal into a duty leading to a conclusion that an error of law has been
committed when that duty has not been complied with. There was no such duty
and accordingly there was no error of law.
In
the light of that conclusion it is unnecessary to consider Mr. Reed's more
ambitious further contention that if the Employment Appeal Tribunal was right
to find an error of law, it erred in the exercise of its discretion in
remitting all the matters raised in the originating application to another
Industrial Tribunal for a rehearing.
I
would allow the appeal, discharge the order of the Employment Appeal Tribunal
and restore the decision of the Industrial Tribunal.
Henry
L.J.: I agree.
Sir
Christopher Slade: I have had the advantage of reading the judgment of Peter
Gibson L.J. in draft. I entirely agree with it and add a few observations of
my own only because we are differing from the Employment Appeal Tribunal.
I
have found the course of this case a little puzzling. It seems clear from her
various written applications which are before us that Mrs. Mensah is an
intelligent lady, well capable of formulating in appropriate language, at least
in writing, any complaints which she wishes to pursue and furthermore of
understanding the basic legal issues in the case. The application form IT 1,
which she prepared herself, made it clear that, at least at that time, she
wished to pursue claims against the Trust of racial discrimination not only in
regard to the vacancies for the maternity unit but also in regard to those for
the neo-natal unit. The manner in which she conducted her case thereafter is
all the more surprising.
She
herself attended the hearing for directions which took place before the
Industrial Tribunal on 17
th
June 1994. The Tribunal's letter of 28
th
April 1994 had explained to her the objects of the hearing, of which the first
was to "clarify the issues in the case and give any necessary orders for
further particulars". The letter dated 29
th
June 1994 sent to her by the Tribunal a few days later is the only evidence as
to what occurred at the hearing. In my judgment, however, the almost
irresistible inference from the terms of that letter, coupled with the fact
that Mrs. Mensah never complained about the directions contained in it, is that
she gave no indication whatever to the Tribunal that she still wished to pursue
her claim in regard to the vacancies at the neo-natal unit. Furthermore, when
she subsequently attended the full hearing before the Tribunal, she adduced no
argument or evidence to support this particular claim.
We
can only speculate as to the reasons for her silence on this issue at those
points of time. However, in the light of the directions given on 29
th
June 1994, in which she had acquiesced, and in the light of her failure to
adduce any argument or any evidence at the subsequent full hearing before the
Industrial Tribunal to support her claim relating to the vacancies at the
neo-natal unit, I have to agree with Peter Gibson L.J. that the Tribunal cannot
be said to have erred in law in failing to deal with that complaint. The
authorities to which he has referred in my judgment preclude findings of any
legal duty on the part of the Tribunal to deal with it of its own motion, or of
any corresponding legal right in Mrs. Mensah to have it dealt with in the
circumstances of this case.
I
too would strongly encourage Industrial Tribunals to be as helpful as possible
to litigants in formulating and presenting their cases, particularly if
appearing in person. There must, however, be a limit to the indulgence which
even litigants in person can reasonably expect. The desirability in principle
of giving such assistance must always be balanced against the need to avoid
injustice or hardship to the other party on the particular facts of each case.
This, in my judgment, is a very good reason for holding that the manner and
extent of such assistance should generally be treated as a matter for the
judgment of the Tribunal and not as subject to rigid rules of law. In the
present case, the Trust was in my judgment reasonably entitled to expect that
the Tribunal would in its decision be dealing with only those issues which had
been covered by the directions of 29
th
June 1994 and Mrs. Mensah's oral submissions and evidence.
I
would concur in allowing this appeal.
Order: Appeal allowed; order nisi against legal aid fund with nil contribution.
(Order
not part of the judgment of the court)