Appeal No. EAT/468/90

	EMPLOYMENT APPEAL TRIBUNAL
	4 ST. JAMES'S SQUARE, LONDON, SW1 4JU

		At the Tribunal
		On 23rd September 1991

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)

	MR A FERRY MBE

	MISS C HOLROYD

DR K BALACHANDRA	APPELLANT

SOUTHAMPTON & SOUTH WEST HAMPSHIRE
 HEALTH AUTHORITY	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	THE APPELLANT IN 	PERSON

	

	MR JUSTICE WOOD (PRESIDENT):  By an Originating Application which was dated 25th September 1987, Dr Balachandra complained of racial discrimination, - that is direct discrimination - and of victimisation against the Respondents who are the Southampton and South West Hampshire Health Authority.  He alleged in that Originating Application that he had been told in December 1986 that there would be a return to work after an earlier suspension and that by a telephone conversation, followed by a letter of the 28th August 1987, he was suspended instead of being asked to come back to work and that that suspension was pending a further disciplinary enquiry.  He also alleges that he had brought previous proceedings and that he was being victimised.

	The tenure of his case, as he has explained to us, is that he was being treated less favourably than three white doctors who were involved in the history of this matter, which revolves round a psychiatric ward in a hospital.

	Dr Balachandra has helpfully given us a chronology and also a skeleton argument;  we are grateful to him for the way that he has presented his case before us.

	As the Industrial Tribunal pointed out they were concerned with the period of three months prior to the issue of the Originating Application so far as any substantive allegation was concerned.  But of course they were looking at, and were asked to looked at a very substantial history in this matter.

	We are grateful to the learned Regional Chairman for the care with which the "Reasons" have been presented.  They were, of necessity, of very considerable length, some 30 pages and we will try to do justice to the care with which that Judgment was prepared and presented, although we propose to deal with this matter relatively shortly.

	The history of the problems which Dr Balachandra and the Respondents found themselves facing really originates from 1985.  There was a vacancy in a consultant post, a vacancy which was filled without the appropriate procedure under the Regulations.  This was subsequently put right;  the same Dr Crossley who had been appointed temporarily was appointed into the post.  The post was subsequently re-advertised and the second post was filled by Dr Linter, although the Applicant had applied for each of the posts.

	There followed a number of proceedings which are carefully set out in the Decision.  They are proceedings for judicial review, which were heard by Mr Justice Nolan, as he then was, in the February of 1985 and there is a history of disciplinary matters, warnings and other issues which are carefully examined in detail by the Industrial Tribunal.  We hope we will not be thought to be disrespectful to the way the appeal is presented if we leave it like that.  We fear that if anyone has to consider these issues in the future they cannot avoid reading that long Judgment of the Tribunal.

	The Tribunal made its assessment of the witnesses in paragraph 14, which is on page 6 of the Decision, they say:
"Next, before we list our findings of fact, we mention the witnesses themselves.  We regret to have to say, particularly of a person of the applicant's position and qualifications, that we found his evidence in part contradictory, in part unreliable, and in other part untrue.  We saw and heard him given his evidence and, more importantly, be cross-examined. All three members of the Tribunal independently reached the conclusion that they could not rely upon his evidence."

There were a substantial number of documents, some hundreds of documents in front of the Tribunal;  they had to examine transcripts and reports of enquiries.

	They traced the history through each stage and at each stage they find no evidence of racial discrimination nor complaints of racial discrimination.  In following that matter through they take each criticism and each stage in great detail.

	There came a time at the end of 1986 when Drs Crossley, Hopkins and Linter raised grievances about the plaintiff, that means that they were complaining about his work or his attendance or working with him, in other words there were problems to be solved.

	These grievances were not pursued in the usual way through the "Grievance Procedure" it may be because of the long history of the matter and the Defendant set up an inquiry. That Inquiry was called the "Heaton-Ward Inquiry".  That took place during the summer of 1987.  The plaintiff, on advice, did not take part in that Inquiry at all.

	The Tribunal had seen the transcript of all the evidence, they had the report.  At page 16 at sub-paragraph (ll) they comment:
"On 8 June 1987, a copy of the draft report was sent out to the applicant, in accordance with the terms of reference, for comment ... The response was a letter from the applicant's solicitors dated 14 July, giving the reason for the delay"

and then they summarise their comments saying:
"All we need say here is that the letter from the solicitors does not suggest anything in the nature of racial discrimination in the report."

The report suggested that a change of circumstances should be arranged - we use that word advisedly and very loosely - to remedy the situation described by the Committee, and on the 24th July 1987 Mr Shaw wrote to the Applicant suggesting a meeting and said in that letter:
"In the interim, however, we take the view that it would be inappropriate for you to resume your normal duties, and, therefore, I would request you to refrain from so doing prior to our meeting."

	The Applicant's Solicitor found little purpose in a meeting and wrote saying that the Authority had decided that there should be some disciplinary investigation as a result of the specific grievances put forward by the three doctors, which although mentioned to the "Heaton-Ward Inquiry" had not been resolved.  

	In fact those grievances were never resolved;  the plaintiff himself, Dr Balachandra complained;  there was a Hearing about his grievance, it was not upheld on the 17th November 1987.  Ultimately he received three month's notice to quit in February 1988 and there then followed High Court proceedings in Chancery Division and also in the Court of Appeal.  That is not the subject of these complaints which are of racial discrimination.

	Having set out all the facts the Industrial Tribunal, on page 24, turn to their actual Decision about this matter.  In paragraph 26 they remind themselves that the relevant three months are those which are the subject of any substantive complaint and they say:
"There are, essentially, two matters:  (a) those connected with the Heaton-Ward Inquiry and (b) the suspension which followed it."

	They then consider those matters and conclude:
"There is nothing else at all material which occurred within the 3 month period which could possibly be the subject of complaint by the applicant."

They then continue at paragraph 27 where they say:
"Taken at their face value, the actions in the three months period have no connection with the applicant's colour, race, or ethnic origin.  To satisfy us that they have, the applicant relies on a long history of what he says is discrimination, and most, if not virtually the whole, of the hearing before this Tribunal has been concerned with those past events, and, as will be seen, stretching, at some stages, into the future as well."

The Tribunal then start right back with the appointment of Dr Crossley, or rather they say the three appointments and they look at the whole matter thereafter in the greatest detail.  They find that there was no discrimination at each stage, nor indication of suggestion of discrimination and they go right through all the various matters ending up with the "Heaton-Ward Inquiry";  they say there is absolutely no substance to the Applicant's various allegations about that;  and they say there is no shred of evidence to support his allegations that the "Heaton-Ward Inquiry" in its institution;  constitution or conduct had anything to do with discrimination.

	They go into the aftermath in paragraph 33 and then in paragraph 34 they summarise thus:
"We find, as a fact, that throughout the whole sorry history of this matter there has been no discrimination on the grounds of colour, race or ethnic origin by the respondent.  In our view it is inevitable, and always was inevitable, that this application was doomed to failure."

	That is a very short analysis of the way in which this matter was dealt with, it occupied some five days Hearing with the most voluminous documentation.

	Dr Balachandra, as we have already indicated, has most helpfully summarised his comments and complaints;  he complains in essence, that throughout the period from 1985 in all that has happened he has been continuously harassed and victimised because of his race. The point taken, very generally, by the Industrial Tribunal throughout its reasoning is that Dr Balachandra has been having legal advice, whether from the Medical Protection Society, of which he is a member, or otherwise, and there is no suggestion that they have been able to find amongst the correspondence and that voluminous documentation that there is an allegation of racial discrimination or victimisation.

	Then the second point taken is that there were a repeated number of suspensions and long periods of suspension.  Again, as a general statement that is absolutely right.  There were problems in this particular psychiatric wing or ward and there was clearly very deep rooted problems and there were suspensions.  The point is why were there suspensions?  Were there suspensions because of racial discrimination.  Again that fact is found against him.

	Then it is said that there were no grounds to prevent Dr Balachandra's return to work and that if there were grounds then that was on the grounds of race.  Again that matter is looked at and that matter is examined with the greatest detail by the Industrial Tribunal and they find the fact against him.

	Fourthly, he says, that the grievances against him had no merit.  There again those were matters of enquiry and indeed ultimately the grievances were never the subject of a Decision.

	Then lastly, he says, and this is the general and the basic allegation made throughout, which he makes very fairly and succinctly and pointedly, that if you look at all the facts and draw the fair inferences from them, you had here a conflict, between on the one hand a health authority with three "white" doctors involved in this particular conflict and Dr Balachandra on the other side and he says:
"If you look at the way they dealt with me the only reasonable inference is that they did this on the grounds of my race"

	Although we have not referred to it and do not intend to refer to it in detail, there was a considerable amount of evidence that many other professional doctors from ethnic minorities were engaged in this Health Authority.  It is quite clear that the Tribunal gave the greatest care to weighing up those suggestions and the way in which they were put.  

	The real issue here as Dr Balachandra has put it to us is, that he was re-arguing his case before us. Our function here is to see whether there was an error of law in the Decision of the Industrial Tribunal.  We have listened to Dr Balachandra for rather more than our usual time on a Preliminary Hearing and we are quite unable, despite his able argument, to find that there was an error of law in the approach and in the Decision given in this case. We are unable to help him and it follows the Appeal must be dismissed at this stage.