United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR JARVIS (Representative)


 


MR JUSTICE KIRKWOOD: This is the preliminary hearing of an appeal by Mrs Jarvis against the dismissal by an Industrial Tribunal at Bedford of complaints of discrimination on the grounds of race. The tribunal heard the case over some eight days between March and July 1997, and its extended reasons were given in writing on 11th September 1997.

The appellant's application to the Industrial Tribunal, form IT1, was on 12th February 1996. The appellant Mrs Jarvis, who is of Chinese origin, qualified as a State Enrolled Nurse in 1974 and as a Theatre Nurse in 1997. She took up a post with the respondent, the Three Shires Hospital Trust in 1989. The Three Shires Hospital is a private hospital. The respondents, the owners of it, made its operating theatre facilities, including the services of theatre nurses, available to consultants who came to operate on private patients, and the respondent was paid for that. It was an important source of funds for the respondent. Those visiting consultants were not employees of the respondent, but rather in the nature of clients.

The appellant's appointment in 1989 was as a nurse on Grade D. In 1990 she applied for appointment to the higher grade, Grade E. For reasons which the Industrial Tribunal found, she was not successful. In 1991 the appellant received a first written warning for indelicate and unprofessional language. In January 1993 the appellant was laid up for some 55 days with illness. The Industrial Tribunal noted that as a throat cancer, though in that instance it may have been some other complaint. The appellant returned to work but was then seriously ill again in November 1993 and was off work for some 150 days until mid-April of the following year. The tribunal found that on her return the appellant was found by the matron to be under stress and more disposed than previously to be argumentative. The matron, as the tribunal found, tried without success to persuade the appellant to seek counselling or treatment.

The appellant had in the past assisted a consultant, Mr Pyke, a consultant otolayngologist in the theatre. At a date which the tribunal did not find, Mr Pyke had considered the appellant to be lacking in the skills necessary to help him with his work, and had asked that she not be rostered for his operations.

On 7th March 1995, the appellant was in fact rostered to assist Mr Pyke, he complained about her performance and said again that he would prefer if she did not assist him future. The appellant was very upset about that, and the Industrial Tribunal found facts relating to that. But the appellant was not thereafter rostered to help Mr Pyke.

In early 1995 a vacancy for a Grade E theatre nurse arose. Particular skills and aptitude were required for that post. It was not in fact advertised. In the result, another Grade D theatre nurse was promoted to the post. The Industrial Tribunal found reasons for that and why the appellant was not promoted.

An incident occurred on 5th July 1995 which resulted in disciplinary proceedings against the appellant, and on 26th July a final written warning.

On 6th September 1995 that was reduced to a first written warning, but the 28th July decision held until that appeal. No allegation of racial discrimination was made at that time.

Meanwhile, a post arose at Grade E for a recovery team nurse. The appellant and others applied, the appellant was unsuccessful. The Industrial Tribunal found the reasons, one was the extant final written warning.

The Industrial Tribunal also found:

"3 ... q) The management regime at the hospital was strict to the point of being autocratic at times. The attitude of Sister Wilson towards the applicant was often domineering and the applicant was not by nature able to stand up to much pressure of that sort.

r) The applicant did change for the worse in her behaviour and competence after her return to work from illness. There is a probability that she was much affected by her medical treatment at least until July 1995."

The application to the Industrial Tribunal was, as I have said, on 12th February 1996. In her application the appellant made three complaints. The first two were discrimination:

"i) by being excluded from assisting one of the consultants, Mr Pyke, to the detriment of my career and a continuing slur on my personal and professional integrity. I am the only staff member treated in this way.

ii) By being graded on a lower scale than other white workers of lesser qualifications and experience.

iii) By being victimised by management ..."

and that was in relation to a Race Relations Act questionnaire. That third complaint was not pursued at the hearing.

At the beginning of the hearing before the Industrial Tribunal application was made for leave to amend the first two grounds of complaint. So far as the first was concerned that related to working with Mr Pyke. The Industrial Tribunal found that, upon analysis, the first amendment, namely to add the words:

"and on a continuing basis as part of a policy or practice being subjected to disciplinary steps where white nurses would not have been and/or were not"

was seeking to introduce a further example of discrimination, that is to say a policy of subjecting the appellant to disciplinary steps where a white nurse would not have been so discriminated. The tribunal took the view and ruled that that amendment should not be allowed, there had been plenty of time to do it at a much earlier stage, and to allow the amendment would risk the incurring of further delay and costs, and so the amendment was not allowed.

In regard to the second complaint the application to amend the grading complaint was that there should be allowed to be added the words:

"this being part of the continuing policy or practice"

In that regard, the tribunal was of the view and held that the words of the amendment were arguably implicit in the existing second head of discrimination and merely served to clarify it. In those circumstances the amendment was allowed.

The fact that leave to amend to allege a continuing policy was given, should not lead to any inference that the matters alleged, namely a continuing policy, were established. That was a matter to be tried by the tribunal in its hearing of the case as a whole.

One of the matters which the Industrial Tribunal had to consider was whether the complaints to the Industrial Tribunal, either or both, were out of time. The Industrial Tribunal did not hear that preliminary issue as a preliminary issue, but heard the whole of the case so as to be able to see that issue in the whole context.

At the end of the hearing the Industrial Tribunal's findings were both as to the time limit, whether the complaints were out of time, and incidentally as it turned out, as to the merits.

On the first complaint, which I refer in summary as the "Mr Pyke complaint", the tribunal found that it was out of time:

"6 a) ... No application was made by the applicant for an extension of time ... Instead, the applicant relies upon the proposition that in each case of alleged discrimination [that is to say both the Mr Pyke case and grading case] there was a policy or practice which continued so as to make each complaint timeous. The Tribunal does not agree and in that regard accepts Mr Choudhury's submission that in the case of what can be called the Pyke incident the removal from Mr Pyke's roster of the applicant was a discrete event in April 1995 and that what followed is to be seen as the continuing consequence of that event. ... The matter would be otherwise if the Tribunal were of the view that the respondent operated a policy or practice of keeping the applicant away from Mr Pyke and that such was a detriment within section 4 of the Act but the Tribunal does not so find. Mr Pyke was, as became common ground, not himself guilty of discrimination within the Act. He had every right to ask that the applicant should not for the future assist him. Both he and the respondent tried to soften the blow by suggesting that she go on a course and it was not their fault that she took that amiss. It follows from that that the first head of discrimination alleged is out of time and cannot be considered by the Tribunal. For that reason alone the Tribunal would dismiss it as it must on the view which it takes of the time for presentation. However, on its findings given above, the Tribunal would, aside from the issue of time for presentation, have not been satisfied on a balance of probabilities that the respondent had in any way whether by apparent conduct or as a matter of inference discriminated against the applicant in its handling of the Pyke incident. It was not wholly without significance in this regard that the applicant was later to annoy another surgeon, Mr Hamer nor that the respondent took no steps to keep her away from any other surgeon. There was no reason to suppose that it would have acted differently with regard to a white nurse, faced with a delicate and commercially relevant problem of this sort."

So in regard to that episode, the Industrial Tribunal made its findings both as to time limits and merits in that way.

So far as the grading complaint of discrimination is concerned, the tribunal reiterated that there had been no application for an extension of time; that the appellant relied upon policy or practice. Then the tribunal found as follows:

"6 b) ... It finds no sufficient evidence of a practice or policy of a continuous nature with regard to the grading of the applicant such that the complaint can be said to have been presented in time. Insofar as the applicant relied upon the 1989 grading and the 1990 application, there appear to the Tribunal to be no arguable grounds for linking them to the promotion or appointment in May and August 1995. The 1989 grading was decided by a different matron and was not challenged at any time. The 1990 application was stillborn because of Mrs Sullivan's view on top-heavy grading of nurses in the hospital. As for the rejection of the applicant in 1995 there were good reasons why the respondent was doubtful at that time of he ability to fill the post properly however well her qualifications stacked up in comparison with the successful appointees. In addition, it seems to the Tribunal that she had become more difficult after her return from lengthy sick absences and that that was a factor that could be and was reasonably taken into account. Finally, by the time of the August appointment the Applicant had been disciplined and had a final written warning on her file. That too was a factor that the respondent could take into account. These considerations weigh with the Tribunal in its decision that no policy or practice with regard to the promotion of staff from ethnic minorities operated in relation to the applicant by reference to the promotion and appointment in 1995. In those circumstances the second head of alleged discrimination was presented out of time and cannot be dealt with by the Tribunal."

The tribunal went on to find that, in any event, there had not been discrimination against the appellant on the grading matter within the meaning of Part II of the Act. That is the way in which it dealt with that second complaint of discrimination.

The appellant seeks to appeal against all those findings, and she has been assisted today on this preliminary hearing by a family friend, Mr Jarvis who has presented her points in a lucid fashion.

Taking the appellant's own written Notice of Appeal, and considering that together with the oral argument, it seems to us that the first ground upon which she seeks to pursue an appeal is that the Industrial Tribunal erred in not allowing, in the exercise of its discretion the amendment sought at the outset to argue that the Pyke matter was part of a continuing policy or practice of discrimination. In reliance upon that the appellant seeks to rely on evidence that was in fact before the Industrial Tribunal to argue that the decision of the tribunal was perverse and contrary to natural justice in that it decided only after the hearing not to exercise it's discretion as to the amendment.

This ground of appeal seems to us to be misconceived for these reasons: First of all the tribunal ruled on amendment before hearing the case as a whole; secondly, Mr Pyke was not, as came to be agreed, guilty of any discrimination; thirdly, the Pyke matter was found by the tribunal to be a discrete incident; and fourthly, despite the ruling on amendment, the tribunal plainly heard evidence and considered the question of a continuing policy and rejected that allegation. We are unable to see any argument for an appeal that by error of law the Industrial Tribunal did an injustice in the way it approached the case.

The further argument in relation to the Pyke matter is that what Mr Pyke said in connection with the incident of 5th March 1995 was fabricated by him, and latched onto by hospital staff as part of a continuing policy or campaign. Again, this is part of the appellant's argument that there was indeed continued discrimination so that the Industrial Tribunal was wrong not to allow the amendment and to find this complaint out of time.

That is all of course a matter of evidence and findings on the evidence and that is peculiarly within the remit and responsibility of the Industrial Tribunal.

Then in the appellant 's second ground she relies upon s.69(1) of the Race Relations Act 1976, which is the section which deals with the conclusiveness of findings by an Industrial Tribunal. It is argued that the finding of a tribunal is not conclusive within the meaning of that section if the evidence upon which it is based is inaccurate on the face of it, or if fraud is shown, or if in short the tribunal was misled in a fraudulent fashion by the material put before it.

What the appellant says about that is that her own evidence was not given appropriate consideration by the Industrial Tribunal, and that the evidence adduced before the Industrial Tribunal was inaccurate on the face of it. It was inaccurate, she says, and a deliberate misrepresentation of the facts. The appellant there seeks to reargue a number of points in the evidence before the Industrial Tribunal.

It is true that there was substantial conflict of evidence before the Industrial Tribunal. There is nothing unusual about that. We take this argument to be an argument that, on the appellant's case, the evidence can be impugned and that the Employment Appeal Tribunal should overturn the findings of fact of the Industrial Tribunal. That is a misconception of the Employment Appeal Tribunal's role which is not to interfere with the decision of the Industrial Tribunal on the basis of findings of fact, but only if there is an error of law. In this instance, Mrs Jarvis, the appellant, clearly demonstrates conflict of evidence, but does begin to illustrate or demonstrate to us in the evidence, much of which she has produced in its original written form and we have read, that there is fraud which she would need to demonstrate to make a case arguable.

It is further argued that there were certain issues of fact from which the Industrial Tribunal did not rule and that the tribunal should not have decided the case on the basis of the matters that were in fact controversial.

It is quite clear to us that the key issues were before the Industrial Tribunal and in its mind; in particular and plainly in its mind was the question of whether there was a campaign or culture of racism in the respondent hospital, for that cries out from a good deal of the material that was adduced on the appellant's behalf. The tribunal is not obliged to rehearse all the evidence on each side in giving its reasons. Its task is to make findings of fact necessary in its decision, from the evidence it has heard and read. That is just what this Industrial Tribunal did. The hearing took place over eight days; the appellant was represented by Counsel; the Industrial Tribunal plainly had and read a considerable quantity of evidence oral and written; and it plainly approached its task with care. It is important to remember that it saw and had the opportunity of evaluating the witnesses.

The heart of the appellant's appeal is her dissatisfaction with the outcome and with the Industrial Tribunal's findings of fact. She does not demonstrate to us any arguable point of law. In those circumstances, this appeal will be dismissed at this stage.