United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


JUDGE PETER CLARK: Midwives play an important role in health care in the hospitals of this country. Because of the nature of their work prospective employers are entitled to expect that qualified midwives seeking employment have an adequate knowledge of up-to-date midwifery practice.

Mrs Mensah is black. She hails originally from Ghana and has lived in this country for many years. She first qualified as a midwife over 20 years ago.

In recent times she has made a number of unsuccessful applications for permanent midwifery posts in various hospitals. When she is rejected she brings complaints of racial discrimination and victimisation. She has become a persistent litigant.

This case concerns an application for the post of Grade E midwife which, following an interview held on 8th May 1996 at the Royal Berkshire Hospital, Reading, was rejected. She was one of two applicants for the post. Both applications failed.

The interview was carried out by Sister Plummer, a midwifery sister at the hospital, and a colleague, Sister Hamon. That interviewing panel had prepared a list of key questions designed to reveal candidates' knowledge of up-to-date practice and to test their suitability for the post.

In the light of the appellant's answers to some of those questions the panel members gave evidence to the Industrial Tribunal, which evidence the tribunal accepted, that they were not satisfied as to her suitability for the post.

The appellant's complaint under the Race Relations Act 1976 fell into two parts. First, direct discrimination. The tribunal found no evidence of less favourable treatment, and declined to draw an inference of discrimination. The explanation given by the respondents for rejecting the appellant's application, unconnected with the appellant's race, was accepted by the tribunal.

Secondly, victimisation. The appellant points to a long history concerning complaints made by her about racial discrimination practised against her by this respondent, and its predecessor. She was dismissed from the same hospital in 1978 and a job application which she made in 1994 for a vacant post at the hospital failed. She also believes that word has spread through the midwifery profession about her which has resulted in all her job applications being unsuccessful.

The interviewing panel members gave evidence that they were unaware of this background. The tribunal accepted that evidence. They found that in these circumstances there was no causal connection between the protected acts relied upon by the appellant and the panel's decision not to appoint her to the post. Accordingly this limb of her complaint also failed. The application was dismissed.

Now there is an appeal. Mrs Mensah takes the following principle points. First, that she did not receive a fair hearing, either before the interviewing panel or before the Industrial Tribunal; secondly, that she was not given a proper opportunity to discredit the testimony of the panel members to the effect that they were unaware of the appellant's relevant background, in particular by the tribunal refusing an application which she made for discovery of certain references which she believes have been provided by the hospital to prospective employers since her original dismissal in 1978; and finally she contends that the appeal should be allowed to proceed to a full appeal hearing with a view to the case being remitted for a fresh Industrial Tribunal hearing at which all matters can be fairly and properly ventilated.

We have considered these arguments, foreshadowed in the Notice of Appeal and an affidavit sworn by the appellant on 14th February 1997, to which the tribunal Chairman responded by letter dated 13th March 1997. We also have considered the skeleton argument prepared for the purpose of this appeal hearing by the appellant.

We remind ourselves that we can only interfere with Industrial Tribunal decisions where an error of law is made out. We cannot retry the factual issues.

We say at once that if the two principal findings of fact mentioned above can stand then, subject to the fairness of the tribunal's proceedings, the tribunal, in our view, reached a permissible conclusion.

As to those findings, it is clear that Mrs Mensah challenged the veracity of the respondents' witnesses' evidence in cross-examination. She pointed out, among other things, that she had referred to her earlier employment at the hospital in her job application covering letter, which the tribunal found the panel members had read the night before the interview. All of these were matters to be taken into account by the tribunal in deciding whether or not it could believe those witnesses. There was plainly evidence before the tribunal on which it could reach the findings that it did.

We are not satisfied that discovery of the references was necessary for the fair disposal of the proceedings. Having listened to Mrs Mensah's submissions we suspect that her real purpose in seeking access to those documents is to test her own conspiracy theory; that the profession is out to exclude her. That is an understandable aim, but not a legitimate purpose for which discovery is intended.

As to the fairness of the tribunal proceedings, we have considered the points made in the appellant's affidavit. In our view they are fully dealt with by the Chairman in his response. We accept his account. We can see no grounds therefore for interfering with the tribunal decision on this basis.

Ultimately we are driven to conclude that no error of law has been identified in this appeal and accordingly it must be dismissed.