United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS L ROHIT (of Counsel) Instructed By: Messrs Bailey Wright & Co Solicitors 3rd Floor, Guildhall Buildings Navigation Street Birmingham B2 4BT


 


JUDGE PETER CLARK: This is an appeal by Mrs Hartley against a decision of an Employment Tribunal sitting at Birmingham, promulgated with Extended Reasons on 28 January 1999, dismissing her complaint of unlawful racial discrimination.

1. The Appellant has been employed by the Respondent and its predecessor since 1971 as a nursing auxiliary. At the relevant time she worked on Merlin Ward at the Russell Hall Hospital. She was the only ethnic minority member of staff on that ward.
2. In September 1997 a monitoring exercise was carried out by the hospital pharmacy department into what seemed to be a large number of requests for the drug Temazepam on Merlin Ward. Some 200 tablets were unaccounted for. The finger of suspicion pointed at the Appellant. She, the Tribunal found, had been the only person on duty whenever drug checks showed drugs to be missing in quantity. When she was on holiday between 22 October and 19 November 1997, no such missing drugs were reported.
3. The police were informed. In due course the Appellant was suspended, a decision which caused her to be shocked and humiliated. She had an unblemished record of service.
4. On 30 January 1998 the police searched the Appellant's home for drugs, and then bailed her for one month pending investigation of an allegation of theft. The police investigation, the Tribunal found, was unconnected with the hospital's enquiries.
5. In February 1998 the Respondents realised that the system of strict controls over the dispensation of drugs such as Temazepam had not been followed. Accordingly, the Appellant's suspension was lifted. That did not alter the fact that the Appellant had been put through a traumatic experience. As a result of suffering stress she became unfit for work.
6. In determining her complaint of unlawful racial discrimination the first question for the Tribunal was whether the Appellant had suffered less favourable treatment than a comparator of different racial origins. On this question the Tribunal concluded that the Appellant, in being suspended pending investigation into any involvement in removing drugs, was treated no differently than any other member of staff upon whom suspicion fell. Specifically, a white nurse had been suspended one month before the Appellant on a different ward over an allegation of missing drugs. There was no conscious or subconscious discrimination against the Appellant on the grounds of her race, the Tribunal held. Accordingly the complaint failed.
7. In this appeal Ms Rohit, who did not appear below, attacks various findings of fact made by the Tribunal. In particular, she submits that the finding that there was no missing drugs during the period of the Appellant's holiday was not supported by the evidence before the Tribunal.
8. We have been referred to a number of documents which were in evidence. The principal document is a summary of occasions on which significant numbers of the drug Temazepam were unaccounted for on Merlin Ward. Eleven instances are there cited, none of them during the four week period of the Appellant's holiday.
9. In monthly checks there are odd drugs missing during that holiday period, but it is not for us to speculate as to precisely what evidence was given in relation to those matters. It seems to us, on the documentary evidence we have seen, that the Tribunal made a permissible finding of fact. The importance of that finding is that it supported the Tribunal's view that the Respondent had cause to suspend the Appellant in the first place. The fact that the control over drugs was not properly adhered to and that the employer's procedures were found to be wanting does not, of itself, give rise to an inference of unlawful discrimination, as the House of Lords pointed out in Zafar v Glasgow City Council.[1998] IRLR 36.
10. The further submissions made by Ms Rohit again raise evidential matters that the Appellant was the only black employee on the ward; that she as a nursing auxiliary had no legitimate access to drugs under the hospital's drugs policy; that in the course of the procedures applied to the Appellant, the Respondent was in breach of its own policy in not lifting the suspension earlier and further, in involving the police. All these matters, submits Ms Rohit, point ineluctably to the conclusion that the Appellant was picked on because she was the only black staff member on the ward. In these circumstances, submits Ms Rohit, the Tribunal's conclusion was perverse in law.
11. We have carefully considered those submissions, particularly since there is no doubt that the Appellant underwent a most unpleasant experience during her suspension. However, we bear in mind that our powers to interfere with Employment Tribunal decisions are limited to correcting errors of law.
12. We are unable to say that this appeal raises any arguable point of law, in particular on the perversity ground as it has been explained, for example, in East Berkshire Health Authority v Matadeen [1992] IRLR 336 and in those circumstances we shall dismiss the appeal at this preliminary hearing stage.