Title: Appeal No.
Author: Julia Evans
Last saved by: jury
Company: IALS

Appeal No.	 EAT/124/94
		 EAT/427/95

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 December 1996

Before
THE HONOURABLE MR JUSTICE MORISON (P)
(IN CHAMBERS)

MRS E D MENSAH	APPELLANT

THE ROYAL COLLEGE OF MIDWIVES	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant | APPELLANT IN PERSON
For the Respondents | NO APPEARANCE BY OR ON BEHALF OF RESPONDENTS

		MR JUSTICE MORISON (PRESIDENT):   The Employment Appeal Tribunal on 17 November 1995 heard Mrs Mensah’s appeal against the decisions of Industrial Tribunals held first at London (North) on 30 November 1993 and secondly at London (North) on 16 December 1994.  

	The issue before the Employment Appeal Tribunal on that occasion was whether the Industrial Tribunal had correctly concluded that her applications were out of time, and, had it arisen, not to exercise their discretion in her favour. 

	The Employment Appeal Tribunal, in what can be described as a full and succinct history of the matter, rejected those appeals, and expressed considerable sympathy and concern about the position in which Mrs Mensah now finds herself.  On 12 November 1996, that is very nearly one year later, Mrs Mensah applies to this Court for a review of that decision.  The grounds upon which that application for a review is based, is that the Employment Appeal Tribunal and I think the Industrial Tribunal, both failed to deal with a complaint that she was making that the Respondents, The Royal College of Midwives, had acted in breach of contract.

	The basis for that submission is to be found in the Industrial Tribunal form (IT1) which was lodged in the case of 20672/93 and in the following words:
“... The Royal College of Midwives is in breach of the law in not giving me assistance, even though I was a full member.”

In Box 1 describing “Say what type of complaint(s) you want the Tribunal to decide” Mrs Mensah had put “Racial Discrimination”.  That was the only matter of complaint which was before the Industrial Tribunal and it is not surprising that there was no reference to breach of contract, particularly bearing in mind that I think the extension of jurisdiction provisions had not then come into force enabling an Industrial Tribunal to deal with a breach of contract case.

	However, before the Employment Appeal Tribunal, Mrs Mensah had presented to my distinguished predecessor, a written Skeleton Argument dated 3 November 1995 in which she says that the College, in giving assistance to others in the same situation as herself, was acting:
“in violation of the Race Relations Act 1976 and the Trade Union and Labour Relations (Consolidation) Act 1978 as amended.  It is also in breach of the European Social Chapter, the European Convention on Human Rights Articles 5,6 and 14 of Section 1 of the Convention.  This sums up the outline arguments on my case.”

	The first question which logically arises is whether the application for a review should be accepted or rejected having regard to the lapse of time.  I put that to one side and consider, first, the second question which is, assuming it were within time, would this be an appropriate case for a review.  The grounds for a review, namely that the Appeal Tribunal failed to consider whether there was a breach of contract, must be rejected.  It was the duty of this Court to address complaints about the decision of the Industrial Tribunal.  The Industrial Tribunal had made no ruling on the question and the Appeal Tribunal were not themselves required to deal with it.  Indeed I suspect that Mrs Mensah did not have breach of contract in mind when she presented her complaints to the Industrial Tribunal.  Following the decision of the Employment Appeal Tribunal, Mrs Mensah appealed to the Court of Appeal and then sought to leave to appeal to the House of Lords.  Having failed to upset the decision she now seeks a review.  In my view it is clear that this is not an appropriate case for a review and, had the application been timeous I would have rejected it on the merits.  Had I been required to rule on the time issue, I would have felt bound not to extend time as I am not satisfied that Mrs Mensah has shown any good reason for the delay.  She should have applied for a review and exercised her appellate rights, if she were so minded.

	I turn to one final matter which is really the substance of the problem in this case.  Mrs Mensah was a distinguished and well-qualified midwife.  She was disciplined by the disciplinary body who governs and controls the practice of midwifery.  She had her Certificate removed for a period from 1978 until I think 1981, when it was restored to her.  She was a member of The Royal College of Midwives (a trade union) and she was represented by them during the disciplinary process.  She was subjected to considerable strain and pressure during the course of those proceedings and she was asked to submit to various psychiatric procedures which, she says, were designed, effectively, to put her under further pressure to make it look as though she was not only guilty of the misconduct alleged, but was also suffering mental ill-health.

	Having heard what Mrs Mensah has got to say, I feel some concern.  She, so far as I can tell, has a perfectly well-balanced outlook, but obviously is concerned about her present position.  She says that there is a continuing problem because it is almost impossible for her to obtain employment in this country as a midwife, because reference will be made to the past events.

	I have listened with care to what Mrs Mensah now says.  I have considerable sympathy with her position and admiration for her determination to clear her name.  What I think she is particularly looking for at the present time is some approach from The Royal College of Midwives to talk with her and to discuss with her what possibilities there remain for her in the medical world in this country.  It seems to me that The Royal College of Midwives should consider very carefully their continuing responsibility towards her.  It obviously has been difficult for them in the recent past as they have been a target of these proceedings.  Now that these proceedings have been brought to an end against them, it does seem to me that it would be entirely within the spirit of co-operation which should exist between a trade union member and trade union, that they should now listen to what she has to say and perhaps make some kind of positive response to her, so that she may understand where her future lies.  

	I will ask that the last part of this decision be copied and made available to The Royal College of Midwives, in the hopes that they will respond favourably to it.

	The last part of the judgment that I have given I can only send to them with your [Mrs Mensah] permission - because these are private proceedings.  Would you permit me to send it to them?  It will just be the last part and with your permission I will enclose a covering compliment slip and I will send it to The Royal College of Midwives.  I do not know whether it will do any good or not.  Thank you for your time.  I am sorry that I could not help you on this.

	I have listened with care to what Mrs Mensah now says.  I have considerable sympathy with her position and admiration for her determination to clear her name.  What I think she is particularly looking for at the present time is some approach from The Royal College of Midwives to talk with her and to discuss with her what possibilities there remain for her in the medical world in this country.  It seems to me that The Royal College of Midwives should consider very carefully their continuing responsibility towards her.  It obviously has been difficult for them in the recent past as they have been a target of these proceedings.  Now that these proceedings have been brought to an end against them, it does seem to me that it would be entirely within the spirit of co-operation which should exist between a trade union member and trade union, that they should now listen to what she has to say and perhaps make some kind of positive response to her, so that she may understand where her future lies.  

	I will ask that the last part of this decision be copied and made available to The Royal College of Midwives, in the hopes that they will respond favourably to it.

	The last part of the judgment that I have given I can only send to them with your [Mrs Mensah] permission - because these are private proceedings.  Would you permit me to send it to them?  It will just be the last part and with your permission I will enclose a covering compliment slip and I will send it to The Royal College of Midwives.  I do not know whether it will do any good or not.  Thank you for your time.  I am sorry that I could not help you on this.

© Copyright 1997

EAT/124/94