United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON
For the Respondents	MR A LESLIE (Representative)


 


JUDGE PETER CLARK: On 23 April 1996 Mrs Mensah, the Appellant before us, presented an Originating Application to the Industrial Tribunal listing the following complaints:

Breach of the Employment Protection Act 1978, amended.

Breach of the Health & Safety Act 1976.

Breach of the Race Relations Act 1976.

Unfair Dismissal - She named four employees of the

West Middlesex University Hospital NHS Trust as Respondents.

She gave the following details of her complaint. On 8 November 1994 she commenced work with the Respondent as a bank midwife. The bank system is well known throughout the health service; it allows hospitals to engage nursing staff to work as and when required.

Within a short time she sustained an injury to her shoulder and received medical treatment. In January 1995 she notified the Occupational Health Officer, who thought she was unfit to be employed. However, she was permitted to continue with her work on the bank. She goes on to complain of bullying at work.

In July 1995 she applied unsuccessfully for a part-time post with the Respondent. She states that she was told that no post was available; however she then learned that another midwife had obtained a part-time post. She thought that she had been discriminated against.

She refers to a complaint allegedly made against her by a patient, about which she was spoken to by Mrs Tebby, the Senior Manager. She alleges that Mrs Tebby's treatment of her concerning that complaint amounted to victimisation.

She made a further job application to the Respondent in January 1996. She was short-listed and attended for interview on 25 January 1996. The interviewing panel concluded that she had not demonstrated up-to-date knowledge of developments in clinical practice by her answers given at interview. She was not offered the post. Thereafter she was removed from the bank register on that ground and on the ground that the Respondent had earlier received complaints about her work. That she alleges constituted unfair dismissal.

The Respondent resisted her various complaints in a Notice of Appearance entered on 18 June 1996.

A directions hearing was held before a Chairman sitting at the London (North) Industrial Tribunal on 11 October 1996. Certain directions given on that occasion are recorded in the Industrial Tribunal's letter dated 18 October, including a direction that the parties exchange witness statements not later than 28 days before the full merits hearing of the case.

Thereafter the Appellant pursued in correspondence various requests for discovery and access to potential witnesses employed by the Respondent for the purposes of questioning them and taking statements.

The matter came back for a further directions hearing on 14 March 1997. The orders made on that occasion are contained in a letter from the Industrial Tribunal dated 26 March 1997. It is against certain of those orders that this appeal is now brought.

Interlocutory Appeals

We remind ourselves that we do not have a general power to review interlocutory orders made by Industrial Tribunals. We can only interfere if an error of law is shown. Medallion Holidays v Birch [1985] ICR 578. In considering such an appeal we have directed ourselves in accordance with the three-fold test identified by Wood J, in Adams and Raynor v West Sussex County Council [1990] IRLR 215, namely:

(a) Whether the order was made within the powers given to the Tribunal?

(b) Whether the discretion had been exercised within guiding legal principles? eg as to confidential documents in discovery cases and

(c) Whether the exercise of the discretion could be attacked on Wednesbury principles, that is to say where the Chairman has taken into account irrelevant factors, or failed to take into account relevant factors, or has otherwise reached a conclusion which no Chairman, properly directing himself could reach.

The Appeal

Mrs Mensah attacks the following orders made by the Chairman on 14 March 1997:

(1) Discovery

The Appellant sought discovery of the patient records of 8 named patients. The Chairman held that such documents were not relevant to the issues in the case, and refused to order discovery.

We have been referred to the well known House of Lords decision in Science Research Council v NASSE [1979] ICR 921. Mrs Mensah submits that without examining those records the Chairman could not properly rule on that application.

Mr Leslie argues that an Industrial Tribunal is first entitled to enquire as to whether such documents could be relevant. Here he submits they are not. The basis on which the Appellant was not offered the post in January 1996 and was removed from the bank register related solely to her answers given at interview, and, in relation to removal from the register, her record of complaints by patients. Documents relating to those complaints have already been disclosed. Neither issue is advanced by looking at patient records. Mrs Mensah seeks to rely upon them to show that she was a competent midwife. However, submits Mr Leslie, that is not the issue.

In our judgment the Chairman was entitled to conclude that these documents were not relevant. We shall not interfere with that ruling.

Similarly, we can see no grounds for interfering with the Chairman's refusal to order discovery of references prior to the Appellant commencing work with the Respondent.

(2) Joinder

The Appellant applied to join two further Respondents, Maria Cross, who chaired the interview panel in January 1996 and the Royal College of Midwives, the trade union to which the Appellant belonged until January 1997.

The Chairman refused both applications.

Today, she does not pursue her appeal against the refusal to join Ms Cross, but does so in relation to the Union.

Like the Industrial Tribunal we are unable to see how the Union could be liable to the Appellant in relation to the complaints made in these proceedings. Her complaint is that she did not receive assistance and support from the Union in connection with her various disputes with the current Respondents and indeed, other Respondents in other litigation in which she is engaged. That is not a ground for joinder in these proceedings. Again, we can discern no error of law in the Chairman's approach.

It is convenient at this stage to deal with an application by the Appellant to appeal out of time against an order of a Chairman contained in a letter dated 8 April 1997, refusing her application to join the Royal Berkshire NHS Trust as a party to these proceedings. She first raised the possibility of an appeal against that order in a letter to the Registrar dated 2 July 1997.

Her reasons for not appealing earlier were first, that it was an oversight, and secondly that she had hoped, by writing to the Tribunal on 22 April, to persuade the Chairman to alter this order.

Neither is a sufficient reason, in the exercise of our discretion, to extend time for appealing. See United Arab Emirates v Abdelghafar [1995] ICR 65. Accordingly we shall not entertain that appeal.

(3) Witness Orders

The Chairman refused witness orders in respect of some 12 named individuals on the grounds that they could not provide relevant evidence.

It seemed to us, listening to Mrs Mensah's submissions, that she wanted those persons to attend the Tribunal for the purposes of cross-examining them. That is not the function of witness orders. On that additional ground we uphold the Industrial Tribunal's order.

(4) Race Discrimination - limitation

Mrs Mensah complains that at the directions hearing on 14 March the Chairman did not consider whether her claim of race discrimination related to a series of continuing acts within the meaning of Section 68(7)(b) of the Race Relations Act 1976. That is correct. Questions of limitation under the Act are to be dealt with at the full merits hearing scheduled to begin on 22 September 1997.

The question of what preliminary issues should be taken is very much a matter for the discretion of the Industrial Tribunal. We see that in this case the Chairman ordered two issues, whether the Appellant was an employee within the meaning of Section 230 of the Employment Rights Act 1996 for the purposes of bringing an unfair dismissal claim, and whether her complaint under the Health and Safety legislation was an assertion of a statutory right within the meaning of Section 104 of the 1996 Act (formerly Section 60A of the Employment Protection (Consolidation) Act 1978) are to be taken at a preliminary hearing to be held on 23/24 July, together with other contractual matters to be dealt with on a merits basis.

The Appellant, it seems to us, is not prevented from arguing the continuing act point at the hearing in September. Accordingly we can see no substance in this ground of appeal.

It follows that the Appellant has failed to make out any error of law in the orders made by the Industrial Tribunal and in these circumstances this appeal must be dismissed.

Nigel:

(Note from Debra)

MRS E MENSAH - V - WEST MIDDLESEX UNIVERSITY

HOSP. NHS TRUST & OTHERS

There is now an application for leave to appeal.

Iris

(PS There is no log at the moment)