United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Val Rowlands, lay advocate
For the Respondents


 


JUDGE COLLINS:

1. This is an appeal against the decision of an employment tribunal sitting at London North. Their reserved extended reasons were promulgated on 8 October 1999. By its decision the tribunal rejected the appellant's claim that she been victimised under s.2 Race Relations Act 1976. For the reasons which I am about to give, which do not appear in the Notice of Appeal, it seems to us there is a reasonable argument that the tribunal misdirected itself on a fundamental question of law.
2. The basic facts are that the appellant was a Senior Night Sister employed by the respondents between 1977 and 1999. In 1999 Manor House Hospitals, the second respondents, closed down. Mrs Rollins-Elliot was the Matron and everybody was dismissed by reason of redundancy. In her originating application Mrs Rooproy claimed that she had been discriminated against because she had made a claim to a tribunal in relation to discrimination under the 1976 act. That claim had not been resolved by the time of the dismissal. The form of the discrimination was in relation to the reference which it was agreed that all employees should receive at the termination of employment. She says first, that she was the only person who was left out for getting a reference; every one else's references were ready when they went to get them. Second, when she did get a reference it was niggardly in its content compared with those of others and drew specific attention to the fact that she had made an application to a tribunal, which Mrs Rooproy claims was calculated to put any employer off employing her.
3. It is clear from her originating application that it is the provision of the reference and only the provision of the reference and its circumstances which constitute a claim that she was discriminated against. There is mention in her originating application of her having met Mr Taylor the Managing Director in the course of the afternoon. The tribunal accepted her account of that conversation that he had been abusive and insulting to her because of her original application to the tribunal and had told her that she could hardly expect a reference, having regard to her behaviour. However the tribunal also found as a fact that there had not been communication between Mr Taylor and Mrs Rollins-Elliot about the reference. They held that although he had been abusive and unpleasant to Mrs Rooproy in relation to the reference, that had no connection with what Mrs Rollins-Elliot actually did. The position was in due course remedied because Manor House Hospitals eventually issued Mrs Rooproy with an acceptable reference in a form suggested by the Royal College of Nursing, but damage had already been done by that time because Mrs Rooproy had lost an opportunity over some months to apply for alternative employment backed up by a good reference. The tribunal's reasons are arguably shot through with error. An example may be given by reference to paragraph 13 where it is said: -

"Our conclusion is that it was not by any conscious or unconscious desire to victimise Mrs Rooproy that the reference was not available for her to collect when she went to the hospital on the morning of 30 March. Mrs Rollins-Elliot had no way of knowing that Mrs Rooproy would go to collect her P45 and the reference at that time."

That is repeated in paragraph 16: -

"It was not, in our view, on account of conscious or subconscious desire to victimise Mrs Rooproy."

And in paragraph 18: -

"We accept Mrs Rollins-Elliot's evidence as that she was not consciously or unconsciously motivated by a desire to victimise the Applicant for having brought the previous proceedings."

4. The tribunal appeared to proceed on the assumption that there was less favourable treatment although they do not articulate it in those terms. That assumption appears to be made in paragraph 19 of their reasons and it seems obviously arguable that the contents of the reference amounted to treating her less favourably than other nurses were treated. What seems to us to be arguably wrong is the question which the tribunal asked themselves. It seems to us that they have may have misread the decision of the House of Lords in Nagarajan v London Regional Transport [1999] IRLR 572. It may be that the true rationale of that decision is that the tribunal only has to ask itself two questions :-

Was the appellant treated less favourably than another?

Was that because she had made a previous complaint to a tribunal?

The tribunal appears to have thought that motive, conscious or unconscious, was relevant.

5. Accordingly this case must proceed to a full hearing but the Notice of Appeal does not reflect any of these points. It is concerned with seeking to maintain a free-standing and independent claim to discrimination based on the words used by Mr Taylor.
6. In the light of the tribunal's findings of fact the originating application states no case for such a free-standing claim. The tribunal's reserved reasons including a note of submissions to them, appear to suggest that no claim was made for such a free-standing claim. We think that those grounds are unarguable and are not going to allow the case to proceed on them. The case will proceed to a full hearing on the question of whether or not the tribunal misdirected itself in relation to the correct test under s.2 of the act. And in order to regularise the position, we shall give the applicant permission to amend her notice of appeal to reflect the matters I have mentioned in the course of this judgment by Friday 24 March.