United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS MOOR (of Counsel) under ELAAS on behalf of the Appellant


 


HIS HONOUR JUDGE CLARK: This is an appeal by Mrs Moyo, the Applicant before the London (North) Employment Tribunal sitting on 10 September 1997, against that Tribunal's decision to dismiss her complaint of unlawful racial discrimination against the Respondent, British Nursing Corporation. That decision with extended reasons was promulgated on 31 October 1997.

The Appellant, who is black, applied to the Respondent, a Nursing Agency , for membership in May 1996. She is a Registered General Nurse. On 14 June 1996 she was interviewed by an officer of the Respondent, Ms Watson. She was asked for her passport as a means of identification according to Ms Watson, whose evidence was accepted by the Tribunal. It was her evidence that everyone was asked for their passport.

The Appellant produced a Lesotho passport marked "cancelled". It contained a condition that she was not to remain in the United Kingdom later than 30 June 1970. Ms Watson then telephoned the Home Office Immigration Department at Lunar House to be told that they were not happy with the Appellant's right to work, on that information.

Ms. Watson then telephoned the Appellant, whom the Tribunal found was uncooperative, and later she rejected the Appellant's application for membership.

At the Tribunal hearing, for the first time, the Appellant produced a letter dated 16 February 1990 from the Home Office, enclosing a certificate of her registration as a British Citizen.

In these circumstances, bearing in mind the Respondent's obligation under the Employment Business Regulations Act 1976 to investigate the Appellant's right to work in the United Kingdom, the Tribunal concluded that their refusal to enrol the Appellant was not an act of unlawful racial discrimination.

Against that decision, the Appellant appeals and today appears represented by Ms Moor of Counsel under the ELAAS Pro Bono Scheme. In her original Notice of Appeal, the Appellant took a number of points and also alleged bias against the Tribunal Chairman, a matter which she developed in an affidavit sworn in these proceedings. Those various grounds and complaints are now abandoned before us and Ms Moor has concentrated her fire on one point. She challenges the findings in paragraphs 5 and 10 of the Tribunal's reasons wherein they accept Ms Watson as a witness of truth when she said that she had been instructed to ask everyone for a passport and that she did so as a part of the normal procedure.

Ms Moor submits that although there was evidence to support that finding in the form of the oral evidence given by Mrs Watson, nevertheless that finding of fact was perverse in the sense indicated by Lord Justice May, "my goodness that must be wrong". She relies on the following documentary evidence which was before the Tribunal in support of such an argument. First that in the Section 65 Questionnaire Response from the Respondent, it was said that the Appellant's application for membership was rejected because of her failure to produce valid identification and secondly that when asked about the Respondent's procedure at the interview no mention was made by the Respondent in their Answer to it being normal procedure to request a passport from everyone. Next it is said that at the interview the Appellant produced three documents which sufficiently identified her; a birth certificate giving her name, age and address, which was issued in Lesotho together with Council Tax and Water Rate bills. Finally, Ms Moor draws attention to the pre-interview letter sent to Mrs Moyo which refers to two forms of identification evidence which an Applicant is required to produce, but there being no suggestion that everyone should produce a passport. That was limited to non-Europeans and Mrs Moyo pointed out in her application form that she is a British Citizen.

Those matters were all before the Employment Tribunal. We see, for example, in paragraph 4 of their reasons that they refer to Ms Watson's evidence as to the practice to ask everyone for their passport in spite of the wording on the form which was sent to the Applicant, that is the pre-interview letter. It is also clear that the Tribunal had before them the Section 65 Questionnaire and heard evidence as to the documents which she did produce at the interview. The question for us is whether, in spite of that evidence to the contrary, the Tribunal's finding of fact that Ms Watson spoke the truth when she said that she was instructed to ask everyone for a passport at interview, was perverse in any of the senses identified by Mr Justice Mummery in Stewart & Cleveland Guest Engineering Limited (1994) IRLR 440 at 443.

We have each of us asked ourselves that question and each come to the firm conclusion that such a finding cannot be characterised as perverse. In these circumstances, this being the sole point advanced before us at this ex-parte preliminary hearing, we shall dismiss this appeal.