Appeal No. EAT/771/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 30 October 1996

Before
HIS HONOUR JUDGE PETER CLARK
MR R H PHIPPS
MR A D TUFFIN CBE

MRS N BERRY	APPELLANT

LAMBETH SOUTHWARK & LEWISHAM HEALTH COMMISSION	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	APPELLANT IN PERSON	

			JUDGE CLARK:   The Respondent Lambeth Southwark & Lewisham Health Commission provides primary health care within the area which it serves.  Its activities include superintending the practises of local chemists and general practitioners.  These include a responsibility for the cost of medical prescriptions.  

	A potential cost saving connected with the practice of issuing repeat prescriptions without a doctor seeing the patient was identified by the Audit Commission.  The Respondent wished to investigate this possibility and obtained funding to finance a post of Co-ordinator for a twelve month period.  The post-holder would be required to speak with local chemists and general practitioners to seek ways of cutting out waste caused by unnecessary prescriptions.

	A job description for the new post was devised by two pharmacists, Messrs Cohen and Richardson, and an advertisement was published.  Five people responded to the advertisement and three were short-listed for the post including the Appellant, Mrs Berry.  The three short-listed candidates were each interviewed on 9 October 1995.  Thereafter the Appellant was not selected for the post.  The successful candidate (a white woman) is referred to as “KM”.  

	Mrs Berry complained to an Industrial Tribunal that she had been subjected to unlawful racial discrimination.  That complaint came before an Industrial Tribunal sitting at London (South) on 29 April 1996.  Evidence was heard on that day and written submissions were then sent by the parties and considered by the Tribunal on 10 May 1996.  The Tribunal dismissed the complaint.  Full reasons for that decision against which the Appellant now appeals, are dated 15 May 1996.

	In their reasons the Industrial Tribunal described Mrs Berry in this way:

“12.   Mrs Berry was born in India in 1959.  She came with her family to the United Kingdom a few years later and undertook all her education in this country.  Although she said that Punjabi is her first language, she impressed us has having a sound  command of English.  [Having heard her, we can well understand why that comment was made.]  She had an impressive educational record and was a qualified pharmacist.  Since qualifying, she had had a number of jobs and had also qualified as a teacher.  In particular, in a recent post, she had worked on the problems of repeat prescriptions.  It was recognised that her written application showed her to be a leading candidate and there was no hesitation in short-listing her.”

“KM” was described by the Tribunal in this way:

“...  KM appears to have come from Belfast and was born in 1962.  She had an impressive education record including a BSc in Pharmacy and Clinical Diplomas in the School of Pharmacy of the University of London.  Her current job was a Senior Pharmacist with the Greenwich Health Care Trust on a salary about the same as the one for the post.  She showed sound experience.    ... She had no specific experience in repeat prescription exercises but had general experience in drug usage review.”

	The Appellant’s case, as contained in her careful written submission to the Industrial Tribunal, was that the reasons given by the Respondent for her non-selection for the post were unsatisfactory and inadequate.  In the absence of a satisfactory explanation by the Respondent for what was admitted to be unequal treatment amounting to a detriment, she invited the Tribunal to infer that such treatment was on the grounds of her race, relying on the approach laid down in the Court of Appeal’s decisions in the cases of North West Thames Regional Health Authority v Noone [1988] ICR 813 and King v  The Great-Britain China Centre [1992] ICR 516.

	The Industrial Tribunal declined to draw that inference.  They found that what the Respondents were looking for was a qualified pharmacist who showed the potential for communicating well with other members of the National Health Service.  KM was preferred to the Appellant in order to achieve that end.

	The Tribunal considered the various points raised by the Appellant in her written submissions, which they summarised in paragraph 19 of the reasons, but the Tribunal accepted the explanations put forward by the Respondents’ witnesses.

	In this appeal Mrs Berry puts her case on the basis that the Tribunal’s decision was perverse, in the sense that no reasonable Tribunal properly directing itself, could have reached the conclusion which it did.  That is a heavy burden to discharge.  Having considered the Industrial Tribunal’s findings of fact, its approach in law, and its conclusions, we are unable to say that such an argument carries any prospect of success before a full hearing of the appeal tribunal.  

	Mrs Berry made these further points in oral submission to us.  First of all she complained that the Tribunal Chairman had pre-judged her case.  She drew our attention to a letter written by the Secretariat in the Regional Office to the Applicant with a copy to the Respondents’ solicitors dated 15 April 1996.  That letter deals with the question of directions.  But at paragraph 5 it says this:
“The Chairman has read the papers carefully and though he has no power to order a deposit, this not being a pre-hearing review, informally expressed a view that on the papers at least the respondents case was very strong indeed and the applicant should consider her position carefully before proceeding further with the case.”

She adds that at the hearing the Chairman made observations about possible cost orders being made against her.

	She puts that forward as an example of misconduct on the part of the Chairman in the way in which he dealt with these proceedings.  We cannot accept that submission.  The rules provide for costs warnings to be given in cases where it appears to a Tribunal that a party’s prospects of success are very poor and, because costs do not follow the event, it is considered right that a party should be in a position to consider his/her position before proceeding with the case, in the event that at the end of the day an order for costs is applied for by the other side if successful.  In fact no costs order was made in this case, and we do not regard that as an example of misconduct which vitiates these proceedings.

	She also complains that the Chairman was interfering with witnesses.  By that she meant was putting words into their mouth when they were giving evidence.  She says that the written reasons exaggerate the Respondents’ case.  She also says that the reasons make only a small point about the lack of ethnic monitoring on the part of the Respondents.  In fact the Tribunal say “we think that their ethnic monitoring could have been better and were somewhat critical that they did not apply normal practices of ethnic monitoring of applications.”

	It seems to us that these are all matters which the Tribunal, as the fact-finding body, must weigh in the balance before reaching a conclusion.  It is not our function and we have no power to reinvestigate the facts; to put our own weight on various factors in order to come to a different conclusion.  

	Finally, in her written submission to the Tribunal she referred to victimisation.  Mrs Berry is not a lawyer and perhaps did not appreciate that the expression “victimisation” has a particular statutory meaning under Section 2 of the Race Relations Act 1976.  There is no reference to victimisation in the Tribunal’s reasons.  We are not surprised.  This case does not fall within Section 2 of the Act.

	Having considered all the matters which have been advanced by Mrs Berry before us today, we are driven to conclude that there is no arguable point or points of law in this appeal and accordingly we must dismiss it at this stage.