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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Somjee v North West Regional Health Authority & Anor [1996] UKEAT 1366_95_0706 (7 June 1996)
URL: http://www.bailii.org/uk/cases/UKEAT/1996/1366_95_0706.html
Cite as: [1996] UKEAT 1366_95_0706, [1996] UKEAT 1366_95_706
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At the Tribunal
Before
THE HONOURABLE MR JUSTICE MUMMERY (PRESIDENT)
MR R SANDERSON OBE
MRS M E SUNDERLAND JP
(2) SEFTON HEALTH AUTHORITY
JUDGMENT
Revised (14 January 1997)
APPEARANCES
For the Appellant IN PERSON
For the Respondents MR J BENSON
(of Counsel)
Hill Dickinson Davis Campbell
Pearl Assurance House
Derby Square
Liverpool L2 9XL
MR JUSTICE MUMMERY (PRESIDENT) This is an appeal against the Industrial Tribunal held at Liverpool over a period of 17 days between June and September 1995. Miss Somjee conducted her case and this appeal in person. Mr Benson appeared for the Respondent Health Authorities.
In Extended Reasons notified to the parties on 2nd November 1995, the Industrial Tribunal explained why they had reached the unanimous decision that Miss Somjee was not discriminated against on racial grounds and why her application should be dismissed.
The Tribunal also decided that, in so far as her application related to allegations which predated May 1988 and did not constitute "continuing acts", it was out of time and was dismissed for that reason.
On 14th December 1995, Miss Somjee served a notice of appeal 45 pages long, verified by an Affidavit sworn on 20th February 1996 relating to complaints of bias and misconduct on the part of the Tribunal. In a letter dated 3rd April 1996 the Chairman provided his comments on the allegations that the proceedings had been improperly conducted.
The Proceedings
The proceedings for victimisation and discrimination contrary to the Race Relations Act 1976 (("the 1976 Act") were started as long ago as 2nd August 1989 when Miss Somjee presented her application. The following points on the proceedings should be noted.
(1) The Respondents were originally the Merseyside Regional Health Authority, whose responsibilities have since been assumed by the North West Regional Health Authority, and the South Sefton (Merseyside) Health Authority (now the Sefton Health Authority). Other respondents were disjoined by Order of the Tribunal made on 16th August 1989.
(2) This complaint was preceded by an unsuccessful complaint for race discrimination in connection with a review interview attended by Miss Somjee on 25th July 1988. That application, presented on 25th October 1988 (Case No.22397/88), was heard in February and April 1989, was dismissed, was the subject of an unsuccessful review hearing and was then appealed to this Tribunal. The appeal was heard in November 1995, but, for reasons explained in a judgment given on that appeal, the Tribunal reserved its decision until the present case had been decided and appealed.
(3) This case is, in part, a claim for victimisation relating to the termination of Miss Somjee's employment at Walton Hospital, Liverpool on 1st June 1989. On 25th August 1989 another application was presented to the Tribunal (No.18168/89) alleging unfair dismissal. That case was not combined with this case and had not, at the time of the hearing of this appeal, been decided by the Industrial Tribunal.
(4) During the course of these proceedings, there were interlocutory applications and decisions, including an unsuccessful request the proceedings be transferred to a different region. That request was refused by the Regional Chairman on 1st June 1995.
(5) When the hearing of the claim started on 5th June 1995 Miss Somjee made an application for the postponement of her case until the appeal against the refusal to transfer the proceedings out of the region had been determined. That application was refused. According to the Tribunal, Miss Somjee later withdrew the application for a postponement.
The Complaint
The essence of Miss Somjee's complaint is that she has been victimised for making an earlier complaint of racial discrimination and has been discriminated against in relation to the termination of employment on 1st June 1989. She also complains of mistreatment by fellow doctors, mainly after July 1988 by the failure to short-list her for, or appoint her to, a number of positions (including "her own") and by frustrating her efforts to find employment elsewhere.
The Facts
The Tribunal heard evidence from Miss Somjee, from seven witnesses, who were registrars or consultants or people who worked at Walton Hospital for at least part of the relevant period. The Tribunal considered over 1,000 documents. The following crucial findings of fact were made by the Tribunal -
(1) Miss Somjee, who was born in Pakistan, describes herself as a coloured Pakistani. She is also a British citizen.
(2) On 2nd June 1986 she was appointed for an initial period of one year as a registrar in the ENT Department at Walton Hospital.
(3) Her contract was renewed for a further year in 1987 and for another year in 1988. (In March 1989 she took her FRCS examination and passed).
(4) In October 1987 the Health Authority instituted a rotational system for a number of E N T registrars, which required them to move periodically from one hospital to another to enhance their training. Miss Somjee was not included in the rotation. She claimed that the rotation registrars were favoured. They were given more operative training and spent more time in the operating theatre. The Chairman of the ENT Department (Mr Ramadan) took steps to ensure that this would not be the case.
(5) On 28th July 1988 a registrars' review meeting took place. Miss Somjee was reviewed by Professor Stell (formerly Professor of Otorhinolaryngology at Liverpool University) and Dr Bayley, the Regional Post-Graduate Dean. Miss Somjee claimed that racist comments were made during the interview. That claim was rejected by the Industrial Tribunal in the earlier proceedings in which a separate judgment has been given.
(6) Between July 1988 and Miss Somjee's departure from Walton Hospital in June 1989, the relationship between Miss Somjee and her colleagues deteriorated. Complaints were made against her by colleagues about her manner and about incidents of alleged misbehaviour. Those incidents were rejected by Miss Somjee as fabrications produced to bolster the Health Authority's case against her. The allegations related to her bickering, insolence to senior registrars, threats of litigation and refusal to attend to patients. Miss Somjee made allegations of racism dating from October 1987. On 25th October 1988 she presented a complaint of racial discrimination to the Industrial Tribunal, relating principally to the registrar review interview of 28th July 1988. She claimed in these proceedings that the decision to remove her was made soon after she had instigated those earlier race discrimination proceedings.
(7) Miss Somjee's contract was due to expire in June 1989. On 10th March 1989 the Regional General Manager wrote to Miss Somjee confirming that fact. Miss Somjee replied that that amounted to victimisation and discrimination. It would have been advantageous for her to remain in post after 1st July 1989 when a new career structure and new conditions of employment of registrars were to be implemented. The date was set by a committee established by the department. Dr Bayley was a regional representative on that committee.
(8) Between January 1989 and June 1989 there were a number of further incidents: on 17th January 1989 at a meeting at the clinic with Mr Ramadan; on 16th February 1989 there was a altercation with Mr Swift about the cancellation and operation to be carried out by Miss Somjee; there was an offer of two weeks' special leave by Mr Thompson to Miss Somjee on 24th February. That was after the hearing of her application to the Tribunal on 21st and 23 February 1989. Miss Somjee believed this offer was an attempt to suspend her. On 3rd and 7th March there were further incidents about patient treatment again involving Mr Swift, a senior ENT registrar. There was another incident on 7th March involving Mr Siegler. There was an incident in April involving the breaking into her locker at the hospital. That incident was alleged to have involved Mr Ramadan. Miss Somjee complained that there was a failure to short-list her for her "own job" which had been advertised or for the position of two senior and two non-registrars. She also complained of late payment for a bank holiday on which she had worked, entitling her to extra pay for not taking a day off in lieu. She had encountered difficulty in obtaining a refund of her subscription to the Medical Defence Union. She had been refused permission to have access to patients' notes after she had left. She had made 40 or so unsuccessful applications for permanent and locum positions within and beyond the region. She had been provided with poor references. (We were shown a letter from Professor Jones dated 19th December 1989).
The Decision of the Industrial Tribunal
The Tribunal's reasons for rejecting Miss Somjee's complaints of race discrimination were as follows:-
(1) The Tribunal observed that certain aspects of the case required close scrutiny. The reason for rejecting Miss Somjee for further employment; the supposed strictness of the three-year rule in practice; the low number of major operations carried out by her, compared with those carried out by other registrars during the relevant period; the lack of unanimity among the Health Authority's witnesses about Miss Somjee's professional shortcomings and research capabilities and the omission of those criticisms from the Health Authority's Notice of Appearance; the paucity of specific instances and details of Miss Somjee's alleged aggressive and confrontational behaviour; the emphasis on team work in the context of Miss Somjee's alleged inability to "fit in".
(2) The thrust of Miss Somjee's case was that there had been a conspiracy involving seven doctors (and others) to disadvantage her, because of her race or because of her complaints of racism; and that they had committed perjury, fabricated documents and even jeopardised the wellbeing of patients in order to spite her.
(3) The Tribunal considered all the evidence, including their impressions of Miss Somjee as a witness and their impressions of the other witnesses, as well as the probabilities of the position, and concluded (paragraph 94) that -
"...the overwhelming impression was that the doctors were telling the truth."
The Tribunal preferred to doctors' evidence to that of Miss Somjee, where there was a conflict.
(4) On the individual complaints the conclusions of the Tribunal were as follows:-
(a) Termination of contract (paras. 96 - 98)
The date for the introduction of the new career structure for registrars was not influenced by the Health Authorities in order to exclude Miss Somjee. The general position was that registrars' post was a training one, which should not be held (subject to certain exceptions) by the same person for more than a period of three years. The Tribunal accepted the general position and found that there were no grounds for the exceptional treatment of Miss Somjee in the light of what they had found to be her "disruptive and unpleasant behaviour" (para. 96).
(b) Special leave (para. 98)
There was nothing to criticise in the Health Authority's attempt to persuade Miss Somjee to take two weeks' special leave in February 1989. The Tribunal rejected her allegation of "attempted suspension". The letter dated 24th February 1989 referred to the stress and embarrassment which Miss Somjee was bound to feel in the case that was going on at that time.
(c) Failure to re-appoint Miss Somjee to old post (para. 99)
The Tribunal held that the contract was properly terminated on valid grounds that logically explained the decision not to re-appoint.
(d) Failure to short-list for senior rotating registrar posts (paras 100 -101)
The short-listed and successful candidates were preferred on the basis of qualifications and experience. That was borne out by examination of the Applicants' CVs. Miss Somjee had committed disruptive behaviour and the Health Authority was entitled to take that into account in deciding whether or not she should be short-listed.
(e) Interference with duties in February 1989 (para. 102)
Miss Somjee's complaints under this head were rejected. The Tribunal's view was that she had deliberately stirred up trouble.
(f) Operative Training (para. 103)
The Tribunal accepted the explanation of the Health Authority for the fact that Miss Somjee had less operative training than the other registrars.
(g) Insulting language - 11th March 1989 (para.104)
The Tribunal concluded that Miss Somjee was to blame for this incident. She had threatened Mr Swift when his conduct was not subject to criticism.
(h) Miscellaneous matters (paras 105 -108)
The Tribunal accepted the Health Authority's evidence on complaints made about the lockers, about the delay in payment of the Bank Holiday pay and the dispute about access to patients' notes. (Miss Somjee showed us photographs of the lockers in question). The Tribunal evidently accept the explanations given in a letter dated 13th September 1989 about Miss Somjee's failure to identify her unoccupied locker, after she had been required to respond to a notice. Failure to do so resulted in breaking into lockers of other people who had not responded.
(5) Out of time complaints
The Tribunal found that the incidents which had occurred in February and March 1989 were out of time and the Tribunal refused an extension, as they considered that there was no reasonable excuse for being out of time. The application was presented on 2nd August so that complaints of matters which had occurred before 3rd May 1989 were time-barred.
Miss Somjee's Submissions
Miss Somjee made lengthy submissions based on her Notice of Appeal and her Skeleton Argument. The essence of them may be summarised 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 the 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 reply 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. Miss Somjee that there was a breach of the various Articles of the European Convention; that those Human Rights guaranteed by that Convention are general principles of European Community law; that European Community law had precedence over United Kingdom domestic law and that Article F2 of the Maastricht Treaty is directly effective in the United Kingdom. That Article provides -
"The Union shall respect fundamental rights guaranteed by the European Convention ... and as they result from the constitutional traditions common to Member States, as general principles of Community law."
She also referred to S.1(2) of the European Communities (Amendment) Act 1993 and submitted that the Article in the Maastricht Treaty was binding and directly effective in the United Kingdom. She made reference to other Articles in the Convention: Articles 3, 6(1), 13, 14, 17 and 18.
The Health Authority's Submission
The essence of the submissions of the Health Authority may be summarised as follows:-
(1) The hearing before the Tribunal was fair, independent and impartial. It had lasted 17 days during which the Tribunal had abundant opportunity to observe all the witnesses, including Miss Somjee, and to make fair assessment of their reliability as witnesses.
(2) The allegations of bias were unsubstantiated and based on the subjective perception by Miss Somjee of any finding or decision made against her. She had failed to satisfy the objective test of the reasonable observer, who was not a party to the proceedings or associated with a party: Peter Simper & Co v. Cooke [1986] IRLR 21. Miss Somjee's criticisms of the conduct of the hearing were inaccurate and distorted.
(3) On other points, the Tribunal's jurisdiction was limited to questions of law. The Health Authority submitted that this appeal was an attempt by Miss Somjee to have a re-hearing of her case on the merits. It was for the Industrial Tribunal to decide which evidence to prefer, to decide what weight or significance to attach to particular evidence. The findings of fact made by the Tribunal were supported by evidence.
(4) It was not for this Tribunal to substitute its own views for those of the Industrial Tribunal, who had seen and heard the witnesses give their evidence before making factual findings.
(5) There was no legal error by the Tribunal in admitting further documents at the hearing. The Chairman had given leave to both sides to adduce further evidence. Miss Somjee was given an opportunity to consider the "new documents". The explanation for late documents was that new allegations were made by Miss Somjee during the course of the hearing. In other instances the Health Authorities had been unaware of documents in the possession of particular witnesses. The reaction of Miss Somjee to these developments was to allege that the documents had been concocted or fabricated.
Conclusions
In our judgment, there is no error of law in the decision of the Industrial Tribunal. We accordingly dismiss this appeal for the following reasons.
(1) The Tribunal gave themselves a proper self direction in law relating to -
(a) race discrimination and victimisation (sections 1 and 2 of the 1976 Act): see paragraphs 75 and 76; and
(b) (time limits - 3 months) and the power to extend time limits under S.68: see paragraph 77.
(2) After scrutinising a great deal of oral and documentary evidence, the Tribunal made one finding of fact of overwhelming importance: that there was no conspiracy against Miss Somjee to disadvantage her because of her race or her complaints of racism (paragraph 79) or to commit perjury or to fabricate documents. The Tribunal properly made allowances for the difficulty which Miss Somjee faced in presenting her own case acting as both witness and advocate over a 17 day hearing (paragraphs 89 - 91).
(3) The Tribunal's view was that Miss Somjee had a propensity to jump to conclusions and to assume that matters were proven on weak grounds. On the other hand, the Tribunal formed the overwhelming impression that the doctors, who denied racial discrimination and victimisation, were telling the truth. The Tribunal preferred their evidence and their explanations of the incidents. There is no legal error in coming to such conclusion. 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" (paragraph 114).
(4) The Tribunal did not fall into the error of simply deciding the case on the basis of the generalised explanation for a variety of specific instances. The Tribunal made specific findings on each individual complaint in the Originating Application (paragraphs 96 - 108). The Tribunal made unappealable findings of fact without any legal error. On each incident they accepted the particular explanation given by the Health Authorities witnesses and rejected the allegation made by Miss Somjee of unlawful conduct. The Tribunal were entitled to come to those conclusions.
(5) Certain complaints were clearly out of time, though the Tribunal were entitled to take notice of them in evidence in relation to those complaints that were in time. After hearing Miss Somjee's explanation for not beginning the proceedings earlier (ignorance of the time limit), the Tribunal exercised their discretion to conclude that it was not just and equitable to extend the time. There was no reasonable excuse for her failure to make herself aware of the three months time limit.
(6) 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 particular incidents alleged to have occurred in the hearing (for example the one involving Miss Somjee's father) and denies allegations, such as he winked at the Health Authorities counsel, Mr Benson.
Clearly, Miss Somjee is very dissatisfied with the result of the hearing. She believes that she has not received fair treatment and that the dismissal of her case is unjust and wrong. In a letter to this Tribunal dated 10th May 1996 she raises comments and objections to the Chairman's comments and also on the Health Authorities' response to her allegations in the Notice of Appeal. He repeats her complaint of the Chairman winking at Mr Benson and the impolite treatment of her father during the hearing. She alleges that the Chairman's family had received healthcare at the Health Authorities' Hospitals and cites a particular instance of the birth of a baby in August 1995. She added that the Chairman's comments were "dishonest and untruthful". As to her protest against the case proceeding, she said she had reinstated her protest. She had requested witness orders, but they had been refused. She added to this the allegation, which had been repeated a number of times over the years, that the Tribunal had wrongly delayed her victimisation and unfair dismissal cases until after her appeal in the first race discrimination case.
Finally, we have reached the conclusion that there is no question of interpretation of the European Community law on which we would be entitled to exercise a discretion to make a reference to the European Court of Justice under Article 177. We reject Miss Somjee's argument that the question should be referred as to whether F2 of the Maastricht Treaty is capable of being directly effective in the United Kingdom. It is not necessary to have such a ruling in order to decide this appeal.
For all the reasons explained above, this appeal is dismissed.