Appeal No. EAT/702/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 26 June 1997

Before
HIS HONOUR JUDGE J HULL QC
MR D J JENKINS MBE
MRS D M PALMER

MS S M MISHRIKI	APPELLANT

WEST MIDLANDS RHA & OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MS M O'ROURKE
(Of Counsel)
Ms A Anstey
BMA Legal Dept
BMA House
Tavistock Square
London
WC1H  9JP	
For the Respondents	MR P DEAN
(Of Counsel)
The Lewington Partnership
Midland House
132 Hagley Road
Edgbaston
Birmingham
B16  9NN	

		JUDGE HULL QC:   We have been very much troubled by this case and the way in which it has developed.  I will not go through the facts for the purpose of saying what our decision is, because I think everybody in this room probably knows the outline of them.  It is a case in which there is an averment of race discrimination, and perhaps more to the point, sexual discrimination made by the Appellant.

	The Industrial Tribunal dealt with the complaints and gave a fairly lengthy judgment.  It is alleged that they dealt quite insufficiently with various points and important matters which were put forward by the Applicant.  The Applicant is a professional lady of high reputation.  She is a Consultant in E.N.T. (ears, nose and throat) surgery.  She was applying for a post and alleges that a committee, on which a number of distinguished public men sat to hear her application for the post, was motivated by prejudice and discriminated against her.  Most of the members of the committee were medically qualified consultants, themselves of high reputation.

	It is not alleged merely that there was unconscious bias, or anything of that sort, it is alleged for the reasons in the Notice of Appeal and amplified in the Skeleton Arguments which we have seen, that there was actual dishonesty by the members of the committee, all but one of whom clubbed together, realising that there was no other way to stop the application succeeding, by inventing reasons which would cover what was in fact a determination not to appoint the Applicant, who is a lady and who is of Egyptian origin.

	We cannot think of a more serious allegation of its type in these circumstances, and that was what was laid before the Industrial Tribunal.  Quite clearly if these allegations are correct, they reflect on the honour and standing of the members of the committee.  It has been made plain to us that that is asserted and not withdrawn.  We have looked in particular at the evidence of one of the witnesses who asserts those matters repeatedly and emphatically.  

	It is said that in the circumstances the Industrial Tribunal, who dismissed the allegations and found that the Applicant had not been treated with discrimination both by way of gender and by way of race, failed to deal adequately with these matters and that their decision was perverse.  It is quite plain from reading the Skeleton Argument that Ms O’Rourke does not shrink as Counsel from saying that.  As I said these are very serious matters.

	When the matter came before our Tribunal, chaired by our President on 29 November 1996, it gave leave for this appeal to proceed.  We are told that this Tribunal expressed the view by its President that this was, on the face of it, an important case, and would require this Tribunal to give a careful judgment on matters of considerable importance to the public as well as to the parties.  The Tribunal ordered that the appeal be allowed to proceed to a full hearing and that the parties do agree their own Notes of Evidence taken by the Industrial Tribunal for the assistance of the Employment Appeal Tribunal.  

	In all the circumstances we have to say that we are rather surprised that that was said and the Respondents of course were not represented before our Tribunal.  It does seem to us that in the circumstances the usual order to be made by our Tribunal would have been for the Chairman’s Notes of Evidence to be requested, because of course, quite apart from the interests of the parties, although those are paramount, there is the public interest, and the interest of the Tribunal when its decision is attacked “root and branch” as it is.  That was not done and in purported compliance with the our Tribunal’s order, we are told that - today being Thursday - on Tuesday of this week for the first time Ms O’Rourke sent those parts of the evidence which she particularly wanted to rely on to Mr Dean, asking him to agree them, and we have seen the results of that; there are about 10 or 15 pages of evidence in respect of much of which Mr Dean has had to say he has no note.  Other parts of it of course he confirms in substance.  But they are, as Ms O’Rourke put it, “the cherries which are picked out”, the bits on which she particularly wants to rely.  On the strength of this, we shall be invited by the Appellant to make the findings which I have indicated.

	It is perfectly true, and we have reflected on this, that there might well be a way in which this case could be decided which would not involve us going into these very serious matters at all.  But in the circumstances we do not think that that would be satisfactory, nor do we think it satisfactory for this Tribunal to embark on hearing an appeal on the basis that if we decide it in one way then we have sufficient material but not if we are constrained to decide it another way.  

	In those circumstances, we have all read the papers in our file.  For my part I have read the great majority of the papers, though not all, in the agreed bundle of documents, and the Notes of Evidence which are now handed to us.  We have all reached the conclusion that we are not prepared to embark upon this appeal on the basis of what has been laid before us and that we are not prepared to consider making the very serious decision which we are invited to make, with all the consequences which that may involve, both for the parties and for others who are not before us today.  We are not prepared to do so without calling for the Chairman’s Notes of Evidence.  Ms O’Rourke accepts full responsibility for the way in which this attempt to agree notes was handled.  We think it quite wrong that the matter should have been left so long, and in the event, having looked at the product of that very belated, quite inadequate, attempt to comply with our Tribunal’s orders, we say that it is not sufficient for our purposes.  

	That is enough of criticism.  We feel strongly that the suggestions are of a very serious kind against the honour of professional men and women, and we are not prepared to embark on them without all the material which we think we ought to have.  That is our decision.