United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 72_94_0911

Appeal No. EAT/72/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 9 November 1995

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR J R CROSBY

MR E HAMMOND OBE

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MRS B G LA-TOUCHE          APPELLANT

THE ROYAL LONDON TRUST          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR P RANDOLPH

(Of Counsel)

Messrs Ramnarine &Mungol

Solicitors

789 London Road

Thornton Heath

Surrey

CR7 6AW


 


MR JUSTICE MUMMERY (PRESIDENT): This is the Preliminary Hearing of an appeal by Mrs Beatrice La-Touche in a dispute between her and The Royal London Trust. The appeal is against the unanimous decision of the Industrial Tribunal held at London (North) on 5 November 1993. In the full reasons sent to the parties on 7 December 1993, the Tribunal explained why they did not have jurisdiction to consider Mrs La-Touche's complaint of unfair dismissal. The reason for their lack of jurisdiction was that they found, as a fact, that she had attained the normal retiring age for an employee, holding the position that she held before the effective date of termination. The Tribunal also decided that The Royal London Trust had not unlawfully discriminated against her on the grounds of race. Mrs La-Touche appealed against that decision by a Notice of Appeal served on 17 January 1994. The ground of her appeal was that the decision of the Industrial Tribunal erred in law, because there was no evidence to support the fact found by them that her birth date was 1925, or there was insufficient evidence for such a finding. The decision that her birth date was 1925 was perverse and wrong.

The purpose of the hearing today is to decide whether the Notice of Appeal raises an arguable point of law. The Appeal Tribunal only has jurisdiction to hear appeals on points of law from decisions of Industrial Tribunals. It has no jurisdiction to hear an appeal on a point of fact. The Industrial Tribunal has exclusive jurisdiction to determine facts relevant to claims under the Employment Protection Act, the Race Discrimination Act and other relevant legislation.

Mr Randolph appears for Mrs La-Touche. He sought to demonstrate that there was an error in the Tribunal's finding that Mrs La-Touche's birth date was 1925. The Tribunal stated in their decision that they had heard evidence from Mrs La-Touche and a witness called on her behalf. They had heard evidence from The Royal London Trust and two witnesses from them. The evidence they heard disclosed a conflict of fact. They said that, having observed the demeanour of the witnesses giving evidence, they preferred the evidence given by the Respondents to that which was given by Mrs La-Touche. They made certain findings of fact. Mrs La-Touche is a black South African, employed by The Royal London Trust from 14 July 1980, latterly as a nursing sister. It was a term of her employment that employees, male or female, holding the position that she held, would retire at the age of 65. On 29 April 1992, Mrs La-Touche retired, having prior to that date attained the age of 65; born, they found, on 10 December 1925.

The Tribunal found that the Trust had not unlawfully discriminated against her on the grounds of her race, by contacting the South African Nursing Council in early 1992, to seek confirmation of her nursing qualifications and training that she had undertaken in obtaining that qualification. They also found that the Trust had not unlawfully discriminated against her on the grounds of her race, by denying her access to procedures whereby she might further dispute the matter, in circumstances where she had been encouraged, over a lengthy period of time, to produce documentation which was relevant to establishing the true date of her birth.

The Tribunal dealt in detail with the evidence on the crucial question of fact, the date of birth of Mrs La-Touche, in the absence of a Birth Certificate. Having reviewed the evidence before them, they came to the conclusion in paragraph 6 that her birth date was the 10 December 1925, so that her age on 29 April 1992 was over 66. In those circumstances they found that they had no jurisdiction to hear her complaint of unfair dismissal. On the allegation of unlawful discrimination on the grounds of race, they found that, in view of the inconsistent information supplied by Mrs La-Touche, and the fact that information had come to the ears of a Mrs Garbutt that Mrs La-Touche had admitted to a third-party that she was 66, the Trust had a duty to put the matter beyond doubt and make the enquiries for further information. They said that, at a time when Mrs La-Touche had obtained the Certificate of Assessment of Age in South Africa, to the effect that she was born in 1931, she persisted in using the 1925 birth date for the purposes of her Marriage Certificate in the U.K. and her British passport. They concluded by saying there was no evidence that the Trust would have treated more favourably an employee at a different place. Mrs La-Touche made no complaint on that score.

We have to ask what is wrong in law with that decision? Mr Randolph went directly to the Certificate of Assessment referred to in the decision. He submitted that the Certificate was strong evidence of her age; raised a presumption as to her age, only rebuttable by cogent evidence to the contrary. It was conclusive on the question of the jurisdiction of the Tribunal. We have looked at the Certificate of Assessment of Age made on 24 December 1984 by a magistrate in South Africa. It was stated to be made for official purposes, and was to the effect that Mrs La-Touche, then referred to as Zungu, appeared before him. It stated his conclusion that from enquiries made and from her appearance and the contents of a declaration made by her, her age was to be assessed as 53 and that her date of birth was 1931. The Certificate states that she was informed that in no circumstances would this be amended and would determine her age of retirement. With the Certificate of Assessment of Age is a copy of the Declaration made by Mrs La-Touche on oath, that, to her knowledge and belief, she was born on 10 December 1931, and that her birth was never registered.

Mr Randolph has also referred us to a number of other documents, in particular new documents not before the Industrial Tribunal. He submits that they ought to be admitted in evidence on this appeal. We have looked at those documents to see what they say. Our conclusion is that, even if they had been before the Industrial Tribunal, they would not have provided reliable or probative evidence on the question of Mrs La-Touche's true age. Those documents are all dated after the date of her retirement. There is a Certificate of Naturalisation originally issued on 11 July 1986. That stated her date of birth as 10 December 1925. That date could not have been on the basis of the Certificate of Assessment made by the magistrate in South Africa. It was not until June 1993 that that was amended, on Mrs La-Touche's application, to read 10 December 1931. A similar comment can be made on amendments made to the passports held by Mrs La-Touche, both British and South African. In our view, these new documents, if they had been before the Tribunal, would not have falsified the conclusion of the Tribunal on the evidence that, as a matter of fact, Mrs La-Touche was born in 1925. It is not disputed by Mr Randolph that the consequence of that is that the Tribunal has no jurisdiction to hear her claim of unfair dismissal.

The short answer to this appeal is that the decision of the Industrial Tribunal on jurisdiction was based on a finding of fact, the age of Mrs La-Touche at the date of retirement. They found that, as she was born in 1925 on the evidence before them, she was over the age of retirement in 1992. That is a conclusion of law, which inevitably follows from the finding of fact. The appeal is on jurisdiction, but the only way in which the jurisdiction decision can be found to be wrong, is by demonstrating that the finding of fact is wrong. This is in substance an appeal on fact. We cannot entertain it. There is no prospect of this appeal succeeding on that basis. It should be dismissed at this stage.