Appeal No.	 EAT/478/95

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 November 1996

Before
THE HONOURABLE MR JUSTICE MORISON (P)
MISS C HOLROYD
MR R SANDERSON OBE

MRS N BERRY	APPELLANT

THE BETHLEM & MAUDSLEY NHS TRUST	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR S MUNASINGHE
(Of Counsel)
Commission for Racial Equality
Elliot House
10-12 Allington Street
London
SW1E  5EH	
For the Respondents	MRS S MORRIS
(Representative)
Aiken Driver Partnership
22 St Luke's Road
London
W11  1DP	

		MR JUSTICE MORISON (PRESIDENT):   This is a case in which Mrs Berry claims that she was unlawfully discriminated against on the grounds of race by the Bethlem & Maudsley NHS Trust.  Her application was founded on the provisions of Section 2 of the Race Relations Act 1976, namely, that she had been discriminated against by way of victimisation.  

	The facts which we take from the Industrial Tribunal’s decision can be cited shortly.  The first point to note is that Mrs Berry was born on 25 May 1959 and is, as the Tribunal described, a well-qualified pharmacist.  In the edition of the Pharmaceutical Journal dated 8 May 1993, she saw advertised a post as Principal Pharmacist (Clinical Services) by the Bethlem Royal Hospital and the Maudsley Special Health Hospital.  It was a post which carried an attractive salary; was said to be a new post, providing an opportunity to lead and develop clinical and drug information services 
in the Special Health Authority.  

	The Respondent Authority, as found by the Industrial Tribunal, forms part of the South-East Thames Regional Health Authority, although as a Trust within it, it exercises a substantial autonomy and receives a substantial part of its funding directly from the Department of Health.  

	Having seen the advertisement, Mrs Berry asked for an application form and was provided with one.  She filled in her application form setting out her qualifications and asked if she could pay a visit to the Hospital, since the Hospital were encouraging people who wished to do so to make visits prior to the shortlisting operation.  She sent in her application form on 17 May.  Some time after the closure date for applications had passed she visited the Hospital, and we understand that within the next day or two a decision was then made as to which of the ten candidates should be shortlisted for further interview.  In the event there were five people who were shortlisted for interview, of whom one withdrew before the final interview process.  Mrs Berry was one of the ten who had applied and was not successful, along with four other people.

	When told that she had not been selected for the shortlisting procedure, she made enquiries and asked if she could be given a written response telling her why she had not been shortlisted.  In due course she was sent a letter dated 3 August from Mrs Edwards, who was responsible for deciding who should be shortlisted.  It was in that letter that Mrs Edwards wrote: 
“... the reasons I gave you previously were that there was insufficient information on your application form:
a)	to allow me to complete a shortlisting matrix for you, based on the criteria listed in the personal specification.”

	The protected Act for the purposes of Section 2 which Mrs Berry referred to, was a complaint of race discrimination which she had lodged against previous employers of hers, namely the Ravensbourne Trust, which is geographically located within the same Regional Health Authority, but is a separate and discrete trust.  In the course of her dispute with the Ravensbourne Trust, it was part of her case that she had not been considered on the grounds of her race in the context of a redundancy situation for a post which was in fact suitable for her and was available to be filled.  As part of their defence to that case, as we understand it, Mrs Berry’s qualifications for that position were compared with the job specification.  That comparison was performed by a very senior man within the regional organisation, a Mr Lea.  

	It was the Applicant’s belief as a result of Mr Lea’s name being mentioned to her, so she said, by Mrs Edwards when she visited the Hospital, that the reason why she had not been shortlisted was because Mrs Edwards was aware of the previous complaint and for that reason decided that she should not be shortlisted.  Hence, her application to the Industrial Tribunal, which was considered by them at a hearing on 26 February 1995.  Mrs Berry appeared in person and the Respondent Hospital Trust were represented by Mrs Morris, a consultant.  In a short decision, the Industrial Tribunal rejected the complaint.  They were of the view that Mrs Edwards was unaware of the protected Act and that on that ground she could not have been influenced by the previous proceedings and that therefore there was no causal connection between the doing of the protected Act and the unfavourable treatment, namely the fact that she was not shortlisted.

	In a submission which was put, if we might respectfully say so, with his usual clarity, Mr Munasinghe on behalf of Mrs Berry attacks the decision of the Industrial Tribunal.  For reasons which we will give in a moment, we have been persuaded that the Tribunal decision is not satisfactory in a number of different respects.  What is required in this case is a re-hearing before a differently constituted Tribunal.  For that reason, the less that we say about the facts of this case the better, because it is our clear view that the new Tribunal who will be required to consider the matter should not be influenced by what we say, or perhaps what we do not say, at this time.  We should make it plain that we are not intending by what we say or do not say, to give any indication to such Tribunal as to how we think they should decide the matter when they come to hear it.  	
	
	Against that background we now turn to the criticisms of this Industrial Tribunal.  It seems to us that any Industrial Tribunal faced with a complaint of this nature, would have wished to have considered the consistency in the application of criteria, which was the basis for the non-selection of her for shortlisting purposes.  The Act itself requires Industrial Tribunals to have regard to any breach of a code of practice, Section 47(10).  Nowhere in their decision do the Tribunal appear to have directed themselves as to any code of practice, or to have addressed the issue which seems to us to fall for consideration in a case such as this, namely, whether there is a credible explanation for her not being shortlisted on the basis of the application of the stipulated criteria. 
	
	There are two matters on which reliance is particularly placed, namely, that what was apparently being sought having regard to the notes of interview of those who were interviewed, was somebody who had previous experience in psychiatry in a psychiatric environment, and had presentational skills for teaching.  If those were the two principle criteria, then the question arises as to why it was that three people were shortlisted, who themselves had no previous experience in a psychiatric unit.  That is the sort of issue which the new Tribunal will wish to examine with care.  	
	Secondly, Tribunals have the assistance in many race discrimination cases of a race relations questionnaire.  It seems to us that they should direct their attention to Section 65(2)(b) of the Act when arriving at their decision.  That section specifically entitles the Industrial Tribunal to draw inferences adverse to the employer who has completed such a questionnaire if in fact it is vague or otherwise unsatisfactory.  In this case, the Industrial Tribunal make no particular reference to the questionnaire and it seems to us that the new Tribunal will wish to consider with care the answers that were given in the questionnaire and marry that up to the evidence which they receive at the hearing and then if appropriate, apply the provisions of Section 65(2)(b).

	The third criticism of the decision is that they do not appear to have directed their minds to the explanation which she was given for her non-shortlisting by the letter dated 3 August 1993, to which I have referred.  It appears that at a somewhat late date the handwritten matrix, which was prepared by Mrs Edwards, was produced to the Industrial Tribunal.  It could be argued that she has completed the matrix in relation to Mrs Berry in no different sense from the way that she completed the form in relation to others who were shortlisted.  It seems to us that a new Tribunal will wish to consider whether there is any possible conflict between what Mrs Edwards said in that letter of explanation, and the matrix document which we have before us.

	The fourth matter relates to the potential points of contact between Mr Lea who was aware of Mrs Berry’s application to an Industrial Tribunal, as a result of the terms of a letter which he wrote (which formed the subject matter of those proceedings dated 6 August 1992), and Mrs Edwards, who was responsible for the shortlisting.  It is plain, as it seems to us, from an internal memorandum which has properly been provided to us and was before the original Industrial Tribunal, that Mrs Edwards had formed links with the region’s pharmacy network for perfectly sensible and good reasons, that she worked with Mr Lea on regional pharmacy committees of various sorts and may have had contact with him through pharmacy managers’ meetings and other such meetings within the network as she has described it.  She says that she was the Pharmacy Manager and Representative for the Dispensary Managers’ network and the Psychiatric Pharmacists’ network.

	It seems to us that an Industrial Tribunal when approaching a case of discrimination such as this, ought to be addressing its attention in great detail to the opportunity for the decision making having become contaminated as a result of Mrs Berry’s previous application to an Industrial Tribunal.  We would have expected a Tribunal decision which has applied its mind to this issue, to set out with some care what the contacts and opportunities for contact were before reaching any conclusion in this matter.  It seems to us that they should be asking themselves the question: is it credible that Mrs Edwards was unaware of Mrs Berry’s application to an Industrial Tribunal, and in reaching that conclusion should inform itself as best as it can through cross-examination and so forth, of the points of contact to which I have made reference and to their knowledge of the way organisations work.

	Those matters have not been canvassed, it seems to us, with the care and in the detail that one would expect from a decision of an Industrial Tribunal.  It seems to us that an Applicant who is alleging race discrimination is entitled to know at the end of the day precisely why it is that his or her application has been rejected, if it has been, and to be satisfied and feel confident that the Tribunal have taken into account in arriving at their conclusion, all the relevant material considerations which might lead them to draw inferences in accordance with the well-known decision in King.  Where inferences are to be drawn the Tribunal will want to examine the underlying facts with considerable care and in some detail.  

	It seems to us that the decision of the Industrial Tribunal in this case does not overtly deal with the matters to which we have referred in sufficient detail, to give an indication that the matters have been properly taken into account in their decision.  Accordingly we do not consider that Mrs Berry can reasonably be aware of precisely why it was that the Tribunal had rejected her complaint, in the sense that she cannot be satisfied that they have applied their minds to everything that ought to have applied their minds to.  It seems to us that that complaint is justified.

	Accordingly, and repeating that we are not indicating to the new Tribunal what inferences they should or should not draw and how they should decide the case, we consider that this appeal should be allowed and the matter remitted for hearing before a newly constituted Tribunal.

	I have not dealt actually in the judgment with your submission that we ought to draw the inferences ourselves, but I will add that.  The reasons why we are not prepared to draw the inference ourselves is because it seems to us that that would be equally unfair on the Hospital if we were to do so.  They would come away from here with a great sense of injustice.  

	I hope that this case can be put back into the system quickly, because it seems to me that owing to the passage of time since the original decision for reasons which we all understand, there should be no further delay.  It is right that this matter should be dealt with promptly.