United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 534_94_1312

Appeal No. EAT/534/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 13 December 1994

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR L D COWAN

MR W MORRIS

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MISS D Z E WILLIAMS          APPELLANT

HARINGEY HEALTH AUTHORITY          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant IN PERSON


 


MR JUSTICE MUMMERY (PRESIDENT) This is an appeal by Miss D.Z.E. Williams against the decision of the Industrial Tribunal held at London North on 2 and 3 February 1994. The Industrial Tribunal unanimously decided, for Full Reasons notified to the parties on 18 February, that the Respondent to the proceedings, the Haringey Health Authority, had not unlawfully discriminated against Miss Williams on the ground of her race.

Miss Williams, who conducted her case in person both before the Industrial Tribunal and before us, was dissatisfied with that decision. She appealed by a Notice of Appeal dated 16 March. She stated in the Notice of Appeal that the grounds of her appeal were these: that bias was used to influence the interpretation of the evidence given; that the Tribunal erred in its application of the Race Discrimination Act 1976, Section 1(1)(b) and in doing so the Industrial Tribunal had itself discriminated against her.

As Miss Williams was alleging bias against the Tribunal the Registrar invoked the normal procedure of requiring Miss Williams to make an affidavit setting out the grounds of her complaint. Miss Williams made an affidavit on 11 May and then, in accordance with the usual procedure, a copy of that affidavit was provided to the Chairman of the Tribunal for him to comment upon.

In order to understand the points made by Miss Williams on the appeal it is necessary to look first at the Decision. The Industrial Tribunal had referred to them, by an Order of this Tribunal made on 29 January 1993, Miss Williams' complaint of racial discrimination in relation to the conduct of an internal appeal hearing of the Health Authority.

Miss Williams' complaint was that at the internal appeal hearing, which took place on 18 April and 21 May 1990, the Chairman of the appeal panel had acted in a way that was racially discriminatory against her, in that he would not allow her to put questions to a witness; that he had altered the phraseology of her questions so that they were really of a different sense and that he had ignored, at the adjourned hearing on 21 May, what had happened on the first day of the hearing on 18 April and had made her feel racially inferior and inadequate, had threatened her and had subsequently sent her out of the hearing when she burst into tears, because of his attitude.

The Tribunal, at the one and a half day hearing on 2 and 3 February 1994, heard evidence from Miss Williams and also heard evidence for the Respondents from the Chairman of the appeal panel, Mr Murphy, and from Miss Howells, the Director of Personnel. The Tribunal noted that there was a conflict of the evidence given and stated this:

"3 ..... Having heard the various witnesses give their evidence and having observed their demeanour in the witness box we preferred wherever there was conflict the evidence of the Respondent and its witnesses to that of the Applicant. We therefore found the following facts proved on the balance of probabilities after considering the whole of the evidence both oral and documentary and after listening to the factual and legal submissions made by and on behalf of the respective parties".

The Tribunal set out in a number of paragraphs their findings of fact. The Tribunal found that the panel had been convened on 18 April under the chairmanship of Mr Murphy. It was adjourned part-heard to 21 May. Miss Williams became distressed. A note was taken of the hearing by Miss Howells, the Director of Personnel, who acted as Secretary to the panel, giving advice where necessary on the Health Authority's policy and procedures. They noted that Miss Howells was a person of considerable experience. They found, as a fact, that the eventual transcript made by Miss Howells was an accurate and bona fide record taken from contemporaneous notes and written up shortly thereafter. They found it was a record of what had happened and there was no reason to believe that anything of importance was not included.

The Tribunal found that the transcript demonstrated that Miss Williams made no complaint of what had happened on 18 April, when she felt she was able to vindicate herself. What she relied on was a complete change in the behaviour of the Chairman on 21 May, when it is clear from the transcript that questions were put by all sides. The Tribunal found that the Chairman did not, on racial grounds, treat Miss Williams less favourably than he would treat any other person.

At the end of the hearing the panel considered the evidence taken over the period of two days. The Tribunal found that no part of the decision of the appeal panel was affected by racial discrimination. The Tribunal commented on various allegations that were made by Miss Williams. They found that the paraphrasing of her questions by the Chairman was not detrimental to Miss Williams and she had not been treated less favourably on racial grounds. The adjournments were granted to allow Miss Williams to compose herself. They were not detrimental to her. In fact, they were beneficial to her, because they enabled her to compose herself.

The Tribunal also found that, when the Chairman suggested on various occasions that Miss Williams might pursue lines, that was not damaging to her. It was an attempt to help her case. She was not treated less favourably on racial grounds. The Tribunal found that on 21 May the Chairman had been extremely indulgent to Miss Williams in allowing her to put questions in addition to those put by her representative. Again, the Chairman they found was trying to help Miss Williams at a time when she was not doing herself justice.

Having found those facts the Tribunal applied Section 1(1)(a) of the Race Relations Act. They pointed out, correctly in our view, that a person who complains of racial discrimination has to establish that case and, if that case is not proved on a balance of probabilities, the complaint will fail.

The Tribunal pointed out, again correctly, that what Miss Williams had to show was that what had happened to her at the appeal panel hearing constituted a detriment and that she was the victim of unlawful discrimination on racial grounds. The Tribunal pointed out, correctly, that racial discrimination is not established by proof of honest belief that one is being treated less favourably. A subjective interpretation of the Section is not warranted. What has to be proved is less favourable treatment in fact. The Tribunal noted that Miss Williams had not complained of the Chairman's conduct on the first day of the hearing. Her complaints were directed to his conduct at the resumed hearing on 21 May.

The Tribunal went on to make various comments about Miss Williams' evidence. They did not find it reliable or credible. They make comments on the position which she had taken in the hearing before them. For all the reasons stated in that document the Tribunal dismissed the application.

On her appeal Miss Williams made the allegations in the Notice of Appeal. These were amplified in her affidavit sworn on 11 May. In her affidavit Miss Williams, a registered nurse, registered midwife and registered health visitor, stated that the Chairman of the Tribunal at London North, had included with his Decision, Miss Williams' letter of complaint dated 8 May 1993 addressed to the Regional Office of the Industrial Tribunal Chairman. We have been shown a copy of that letter. That was a letter sent to the Regional Office at London North, Woburn Place, making a number of complaints and allegations.

In her affidavit Miss Williams alleged that by the inclusion of that letter with his Decision the Chairman of the Industrial Tribunal, at the hearing of 2 and 3 February, showed he allowed circumstances surrounding that letter to influence him to the extent that he was biased against her at the hearing. She could not, therefore, expect a fair hearing and decision from him. She says that, if it was not for that bias, the Chairman would, from the evidence that was given on 2 and 3 February, have realised that the transcript referred to in the decision (that is the transcript of the appeal panel hearing) was not bona fide, as he found and that her claim against the Haringey Health Authority was a valid one under the Race Relations Act. She complained that the Chairman's bias against her allowed him to accept that false transcript as valid. That was detrimental to her case. If it was not for the Chairman's bias and his interpretation of the evidence, he would have taken into consideration that both the Health Authority's witnesses, Miss Howells and Mr Murphy, said they did not recognise the transcript. She complained that the bias of the Chairman caused him to completely ignore the importance of another letter of 19 October 1990, which was included in the exhibits to the Decision. She complains that the Chairman's bias caused him to err in the interpretation of other documents. If it was not for that bias then her complaint would have been upheld on the evidence. Finally, she says that the Chairman's bias is illustrated by the degradation of her and her character throughout the reasoning of his decision.

The affidavit was sent to the Chairman. He commented in detail on the allegations against him and the Tribunal in a letter of 7 June. Miss Williams has made submissions on the contents of this letter. She disagrees with most of what the Chairman says in the letter. I will read the letter out in full in order to be fair to the Chairman against whom these allegations have been made. He says:

"2 I was the Chairman of the Tribunal which heard the above matter. The decision was reserved out of consideration for the Applicant as the documents disclosed that she had not enjoyed the best of health and in particular had suffered a minor stroke".

I pause to mention that Miss Williams has informed us that that stroke had been suffered not in 1994, but as long ago as June 1988. He states:

"3 I did not send out the decision, nor did I make any direction as to what should accompany it. I have spoken to Miss Farrow the clerk who sent out the decision and while she does not remember sending out this decision in particular she confirms that it is her practice to include in the envelope any bundle which has been submitted by the party and which has not already been returned. She says that she had not read the file nor was she familiar with its contents. I was not aware of the letter dated 8 May 1993, [that is the letter I have already referred to sent to the Regional Chairman at London North] until today when I went through the Tribunal file to see if I could find it.

4 The hearing concentrated on the alleged conduct of the Chairman of the appeal panel which heard the Applicant's appeal against dismissal. There was a conflict of evidence on a number of issues, and we were unanimous in finding for the Respondent on each and every one of them.

5 I can confirm that at the hearing the Applicant was treated with kindness, patience and understanding. We listened carefully to what she had to say, and considered carefully all documents to which we were referred. The Applicant denied that the Respondent's note-taker was present at the appeal hearing and claimed that the record was a fabrication. The note-taker gave evidence at the hearing and her evidence was accepted by the Tribunal. I reject any allegations of bias and each and every one of the various points made by the Applicant in her affidavit".

At the hearing today, Miss Williams has concentrated on the allegations of bias. She has repeated the matters stated in her affidavit. She says in particular that the Chairman at the hearing on 2 and 3 February was influenced by her letter of complaint of 8 May 1993. She repeated her allegation that the minutes of the appeal panel hearing made by Miss Howells were fraudulent. She repeats her complaint of her original grievance that she was dismissed following a stroke without ever having a fair hearing.

What Miss Williams wants, she says, is justice and a chance to ventilate these complaints in further detail at a full hearing. In summary she says that this decision is erroneous, because it was reached through bias. It is a perverse decision. In support of that allegation she has referred us also to the documents contained in two bundles before the Industrial Tribunal, a bundle of her documents and an exhibit R1, which contains, in particular, the minutes of the two days of the appeal panel hearing on 18 April and 21 May 1990.

We have carefully considered all the circumstances relating to Miss Williams' allegation of bias against the Industrial Tribunal. In our view, she has failed to establish that the Tribunal did not give her a fair and impartial hearing. We have seen the Chairman's comments. Although Miss Williams does not agree with them, they are sufficient to satisfy us that there was no bias affecting this decision.

As to the other ground of appeal, that the Tribunal misinterpreted the Race Relations Act, it is our view that the Tribunal gave a correct interpretation of that Act when they said in paragraph 4 of their Decision that, "it is not sufficient to establish a case of racial discrimination that a complainant honestly believes that he or she is being treated less favourably". A subjective interpretation of the section is not correct. What has to be established, the Tribunal said, "is that the complainant in fact received less favourable treatment on the ground of race". Miss Williams failed to establish that.

In brief, Miss Williams has not satisfied us that there is an arguable point of law on this appeal. She is naturally dissatisfied with the result. She has had a difficult time: first, with health problems, although some time ago, and then, as she mentioned to us this morning, with the death of her mother. We sympathise with the problems which Miss Williams has mentioned to us, but they are not legally relevant to the decision of the appeal. The only thing that is legally relevant to the appeal is whether the decision of the Industrial Tribunal contained an error of law, in the way it applied the law or interpreted it or conducted the hearing.

We are not persuaded that there is any arguable point of law. There is no point, therefore, in this matter proceeding to a full hearing. Miss Williams' appeal will be dismissed today.