Appeal No. EAT/487/92
	EAT/613/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28th April 1994
	Judgment delivered on 21 June 1994

	Before

	THE HONOURABLE MR JUSTICE MUMMERY (P)

	MR J R CROSBY

	MR E HAMMOND OBE

MR Y A NATH	APPELLANT

EASTBOURNE HEALTH AUTHORITY	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR R ALLEN
(of Counsel)
Director of Legal Services
Royal College of Nursing
20 Cavendish Square
LONDON W1M 0AB

For the Respondents	MR D MATTHEWS
(of Counsel)
Capsticks
General Accident Building
77/83 Upper Richmond Road
LONDON SW15 2TT

	MR JUSTICE MUMMERY (PRESIDENT):   As this is not procedurally a straightforward case, it is necessary to start with a summary of the origin and course of these proceedings.

(1)  From July 1986 Mr "Krish" Nath was employed as a nurse behaviour therapist by the Eastbourne Health Authority ("the Authority").  On 2nd October 1989 Mr Nath and a white colleague, Mr Mark Hardcastle both started to attend a one-year tutor's course at the University of Surrey which would qualify them, when completed, to fill the position of Course Tutor to a planned new Behaviour Therapy Course (ENB 650.   Mr Nath continued to receive his pay from the Authority, subject to usual deductions.

(2)  On 20th February 1990 the Authority invited both Mr Nath and Mr Hardcastle to apply for the position of Course Tutor on the planned course.  Both candidates were interviewed on 16th March 1990.  Mr Nath's application for the post was unsuccessful.  Mr Hardcastle was appointed to the post of Course Tutor.

(3)  Following an unsuccessful grievance hearing on 12th June 1990 Mr Nath presented to the Industrial Tribunal on 28th July 1990 an application alleging both constructive unfair dismissal and race discrimination.   His complaint was that a candidate of lesser qualification, experience and competence (Mr Hardcastle) had been selected for the post of Course Tutor in preference to him, even though he had been requested to do a teaching course for this purpose.  He complained that, as confirmed to him by the Director of Nursing and Personnel, Mr Hardcastle had been funded by the authority to do the teacher training course with a view to teaching the course on which he was ultimately appointed Course Tutor.  Having failed to secure the post of Course Tutor, Mr Nath complained that he had only been offered a post as a staff nurse and had been forced to accept a post as a tutor some distance away in Guildford.
 
(4)  On 19th October 1990 the Authority gave notice of appearance.  The Authority disputed the allegation of constructive dismissal, alleging that Mr Nath had tendered his resignation voluntarily on 4th September 1989 in order to take up a full educational course.  The Authority denied the allegation of racial discrimination.  Its case, in brief, was that both Mr Nath and Mr Hardcastle had been invited to fill the post.  Both had been interviewed on 16th March 1990.  At the interview both were asked the same questions agreed by the interview panel in advance.  Following the interviews the panel members confirmed Mr Hardcastle as the person to be appointed to the post of Course Tutor.  The Authority denied that Mr Nath was requested to do teacher training for the purpose of taking up the post of Course Tutor to the planned course.  It was accepted that Mr Hardcastle was funded to do teacher training with a view to being an applicant for the post, but it was denied that he had been offered the post prior to the completion of the selection procedure.  As to Mr Nath's allegation of constructive dismissal, the authority alleged that Mr Nath had submitted his resignation to the Authority by a letter dated 4th September 1989, with the resignation to be effective from 30th September 1989.  This was alleged to be "in accordance with the respondent's requirement that members of staff taking up educational training resigned from their current post so that these posts could be filled in their absence."  The Authority's case was, therefore, that Mr Nath had resigned from the employ of the Authority voluntarily and with a clear understanding that a post would not be held open pending the completion of his educational course.  Finally, the Authority submitted that Mr Nath's complaint of racial discrimination was time-barred.  The complaint referred to Mr Nath's non-selection as Course Tutor for the planned course.  The selection decision was made on 16th March 1990.  Mr Nath's notice of application was not presented until 28th July 1990.

(5)  On 31st January 1991 the Industrial Tribunal held at Brighton began to hear argument on the preliminary point as to whether Mr Nath's complaints of unfair dismissal and of racial discrimination were time-barred.   The hearing was not completed on that day.  It was adjourned until 4th March 1991.  For reasons notified to the parties on  29th May 1991 the Industrial Tribunal unanimously decided that -
(a)  the effective date of termination of Mr Nath's employment with the Authority was 30th September 1989.
(b)  It was reasonably practicable for him to have presented his complaint of unfair dismissal within the period of 3 months stipulated in S.67(2) of the Employment Protection (Consolidation) Act 1978.  It was not so presented.   Accordingly, the Tribunal had no jurisdiction to consider that complaint.
(c)  With regard to the complaint of racial discrimination under S.54(1) of the Race Relations Act 1976, the act complained of was done on 16th March 1990, but, in all the circumstances, the Tribunal considered it just and equitable that the complaint be considered notwithstanding that the complaint was not presented (ie, the originating application was not received at the Central Office of the Industrial Tribunals in London) until 28th July 1990.

(6)  The hearing of the complaint of racial discrimination was held at Brighton on 27th and 28th January 1992 and 18th May 1992.  For reasons notified to the parties on 4th June 1992 the Industrial Tribunal unanimously decided that Mr Nath's application failed.  The substance of the decision was that the primary facts indicated that there had been discrimination of some kind so that the Authority, as employer, was called upon to give an explanation and, failing a clear and specific explanation given by the employer to the Tribunal's satisfaction, the Tribunal could draw an inference of unlawful discrimination.  Having set out in paragraph 7 of the decision what the Tribunal describe as "the details of the various witnesses and a summary of [the Tribunal's] interpretation of their evidence", the Tribunal concluded in paragraph 8 that Mr Nath had performed very badly at the interview, that the interview was crucial to the process of selection and that the Authority had therefore discharged the burden on them of providing a clear and specific explanation of the reasons for the choice of Mr Hardcastle.

(7)  On 3rd July 1992 the Royal College of Nursing, acting on behalf of Mr Nath, wrote to the Industrial Tribunal seeking a review of the decision on time limits notified on 23rd May 1991.  The application for a review was sought under paragraph 10(1) of the Industrial Tribunals (Rules of Procedure) Regulations 1985.  The ground of the application for a review was that a document had come to light during subsequent litigation which was entirely consistent with Mr Nath's claim that he did not resign his employment and which made it clear that Mr Hardcastle had not resigned his employment.  The significance of the document had not been appreciated until counsel's opinion had been obtained on 30th June 1991, primarily in relation to the decision of the Industrial Tribunal notified on 4th June 1992 on the substantive claim of racial discrimination.  The document in question was a letter dated 11th September 1989 from Mr Hardcastle to a Mr Hopper, his line manager with the Authority.  The letter read as follows:
	Dear Mr Hopper,

	As from 18-9-89 I intend to transfer from my current position as the Wealdon based Nurse Behavioural Therapist to a seconded post on a Cert Ed Course which will be jointly funded by Service/Education.  The intention being that this will enable me to teach an ENB.cc 650."
It was contended on behalf of Mr Nath that the letter made it clear that during the course Mr Hardcastle would remain funded by the Authority.

(8)  On 21st July 1992 the Chairman of the Industrial Tribunal held at Brighton (not the same Chairman who sat at the Industrial Tribunal held at Brighton in January and March 1991 to determine the preliminary points on time limits) notified the parties that the application for a review made by the Royal College of Nursing on behalf of Mr Nath was refused.  The ground of refusal was that the Chairman was not satisfied that the letter dated 11th September 1989 could not have been produced at the hearing.  In any event, he was of the view that it would not have had any material bearing on the decision made by the Tribunal.  He refused the request for an oral hearing.

The appeals
	The proceedings and decisions summarised above have generated two appeals.
(1)  A notice of appeal dated 16th July 1992 against the decision of the Industrial Tribunal notified to the parties on 5th June 1992 rejecting the complaint of racial discrimination.
(2)  A notice of appeal dated 28th August 1992 from the decision of the Chairman of the Brighton Industrial Tribunal refusing the request for a review of the earlier decision that Mr Nath's complaint of unfair constructive dismissal was time barred.

The review appeal
	Although the appeal against the refusal of a review was brought later than the appeal against the dismissal of Mr Nath's complaint of racial discrimination, we shall deal with the review appeal first.  Mr Nath sought a review of the preliminary decision that his complaint of unfair dismissal was out of time.  For the following reasons we have decided to allow Mr Nath's appeal.
(1)  The Tribunal had power to review its own decision on the ground, inter alia, that new evidence had become available since the conclusion of the hearing to which the decision related, provided that its existence could not have been reasonably known of or foreseen: Rule 10(1)(d) of the 1985 Rules.

(2)  The letter dated 11th September 1989 was not before the Tribunal which heard the preliminary issue.  It is not in dispute that the existence of the letter only came to light during the course of the later hearing by the Industrial Tribunal of the complaint of racial discrimination.  The letter is referred to in the summary of the evidence given by Mr Hardcastle contained in paragraph 7 of the decision.  The letter of 11th September 1989 came to light after the second day of that hearing and before the third when the adjourned hearing resumed on 18th May 1992.  Mr Hardcastle was recalled to produce a copy of that letter.  The Tribunal noted, as part of Mr Hardcastle's evidence, that the point of the letter was to make it clear that Mr Hardcastle was not resigning when he left to go on the course and that, on the face of it, the document seemed to indicate that he expected to be re-employed at the end of his Certificate of Education course.  The full relevance of the letter only became clear when counsel was instructed in relation to the appeal against the dismissal of the complaint of racial discrimination.

(3)  Neither of the reasons given by the Chairman for refusing the appeal can be supported.  The first reason given was that the Chairman was not satisfied that the letter of 11th September 1989 could not have been produced at the hearing ie, the hearing of the preliminary issue.  He gave no reason for making that assertion.  It is now clear that, at the time of the preliminary hearing, Mr Nath was not aware of the existence of that letter.  It had not been disclosed by the Authority at the time of the time limits hearing.  He did not have a copy of it.  It only came to light at the hearing in 1992.

(4)  The second reason given by the Chairman was that, in his view, the letter would have not have any material bearing upon the Tribunal's decision on time limits.  This reason cannot be supported.  It is clear from the decision on the time limits point that there were canvassed before the Tribunal two possible dates for the effective date of termination of Mr Nath's employment, the 30th September 1989, on which date the notice given in Mr Nath's letter of 4th September 1989 expired, and the later date of 29th July 1990 on which date the notice given in Mr Nath's letter of 19th July 1990 expired.  The Authority successfully argued for the earlier date.  Mr Nath gave evidence that in September 1989 he was not resigning from his employment from the Authority, but merely from the post which he then had, from the clinical side to go to the educational side, as he put it.  Mr Nath's evidence was rejected.  The Tribunal found that when Mr Nath wrote his letter of 4th September with full knowledge of the consequences he intended to resign from his employment with the Authority.  That letter was effective to do so.  His employment effectively terminated on 30th September 1989 and his complaint was therefore presented to the Industrial Tribunal after the expiration of the three month period.  The letter sent by Mr Hardcastle dated 11th September 1989 is material to the issue before the Industrial Tribunal.  The letter tends to support Mr Nath's case that he had only resigned from his post and still remained employed by the Authority when he went on the course.  The letter is relevant to the treatment accorded by the Authority to Mr Hardcastle.  It also supports the argument advanced by Mr Nath that he stayed in the employment of the Authority while he was on the training course.

	In our view, the Chairman erred in law in refusing a review of the decision on the preliminary issue on time limits.  No reasonable Chairman, who appreciated the facts of the case and the significance of the letter of 11th September 1989, would have refused the review on the ground that new evidence had become available since that decision was made.  It was material evidence.  Its existence could not have been reasonably foreseen by Mr Nath.  The review appeal is accordingly allowed.

The discrimination appeal       
	We shall also allow Mr Nath's appeal against the decision of the Industrial Tribunal rejecting his complaint of racial discrimination.  We have outlined the substance of the decision.  It is not necessary on this appeal examine all the details of the evidence recorded in the decision.  We are satisfied that the Tribunal erred in law and that this matter should therefore be remitted to be dealt with, if possible, by the same Industrial Tribunal which hears the review of the decision on the preliminary issue on time limits.
	The reasons for our conclusion are as follows:-
(1)  The Tribunal summarised in considerable detail the evidence given by various witnesses in a manner more reminiscent of a summing up than of a statement of findings of fact.  When it came to making the decision the Tribunal failed to take account of all the relevant circumstances in the case.  In the concluding paragraph of the decision the Tribunal dealt only with the circumstances of the interview of 16th March 1990.  The reason for their conclusion that the Authority had discharged the burden of providing a clear and specific explanation of their reasons for the choice of Mr Hardcastle was based solely on the evidence accepted by the Tribunal about the performance of Mr Nath at the interview.  The Tribunal gave no consideration to the evidence concerning the treatment of Mr Nath prior to the interview.  In particular, it does not appear that the Tribunal gave any consideration to the differential treatment of Mr Nath and Mr Hardcastle by the Authority relating to 
(a)  their respective attendance on the training course at the University of Surrey and the funding of that course; and
(b)  the requirement that Mr Nath should resign from the Authority before he went on the training course which would equip him as a Course Tutor.   The Authority made no such requirement of resignation on Mr Hardcastle.

(2)  The earlier instances of differential treatment of Mr Nath and Mr Hardcastle would be relevant to the consideration whether there had been racial discrimination in the decision not to appoint Mr Nath to the position for which he applied, but to appoint Mr Hardcastle instead.  A pattern of previous discriminatory treatment by the Respondent to a complaint of racial discrimination is relevant: WPMT v. Singh [1988] ICR 614 at p.620.  The Industrial Tribunal did not come to any conclusions about the apparently discriminatory earlier treatment of Mr Nath as compared with Mr Hardcastle.  It was important that they should do so as part of the process of drawing inferences in a discrimination case: King v. Great Britain China Centre [1992] ICR 516 at 528F - 529C.

(3)  The decision is open to the criticism that the Tribunal did not give a sufficient account of the facts and reasoning of its decision to enable the parties or this Tribunal to know why the parties have won or lost.  Instead of stating findings of fact on the evidence, the Tribunal adopted the course of setting out over five pages or so a summary of the evidence given by each witness in turn.  The summary is prefaced by these words -
"We set out below the details of the various witnesses called before us and a summary of our interpretation of their evidence."
Unfortunately, it is not possible to say with sufficient certainty from a reading of that summary precisely what facts were found by the Tribunal and what facts were relied upon them in coming to their decision, other than the brief account contained in paragraph 8 which concentrates solely on the interview of 16th March 1990.

	For these reasons we are satisfied that this Tribunal erred in law in rejecting Mr Nath's complaint of racial discrimination.  It did not make clear findings of fact on all relevant material.  It did not take sufficient account of all the relevant material, in particular the earlier events pre-dating the relevant interview.

	Mr Matthews, on behalf of the Authority, attempted to defend the decision on the basis that the Tribunal had made all the findings of fact necessary to dispose of the case; that the decision was in a form and for reasons which made it clear why Mr Nath had lost and this Tribunal should be slow to conclude that, because the decision does not mention some particular point, the Tribunal therefore overlooked it.  Mr Matthews attempted to argue that the only matter before the Tribunal was whether Mr Nath had been the subject of racial discrimination on 16th March 1990 when a white colleague was preferred to him for appointment as Course Tutor.  His complaint had been characterised in his originating application as a discrete and `one off' omission on the part of the Authority.  It was not put in the terms of a continuing act or series of acts, each of which required an explanation on the part of the Authority, culminating in the interview on 16th March.  It was not apparent that Mr Nath was relying on events prior to 16th March.

	We are unable to accept those submissions.  Even if the events prior to 16th March were not the subject of a specific complaint of racial discrimination, they were relevant to the decision on the matter that was complained of.  As explained above, the Tribunal does not appear to have taken those matters into account.  We reject a "long stop" argument advanced by Mr Matthews that Mr Nath should be estopped or otherwise debarred from requiring further findings of fact by the Tribunal by reason of his statements contained in his originating application and relied upon by the Authority in determining its approach to the litigation.

	For these reasons the discrimination appeal will be allowed.