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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Berry v Bethlem & Maudsley NHS Trust [1998] UKEAT 180_98_1703 (17 March 1998) URL: http://www.bailii.org/uk/cases/UKEAT/1998/180_98_1703.html Cite as: [1998] UKEAT 180_98_1703

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APPEARANCES

 

For the Appellant	MR S MUNASINGHE (of Counsel) Instructed by: Ms P Grant Principal Litigation Officer Commission for Racial Equality Elliot House 10-12 Allington Street London SW1E 5EH


 


MR JUSTICE BELL: This is a preliminary ex parte hearing in respect of an appeal by Mrs Berry against a decision of the Industrial Tribunal for London (South) entered in the Register on 19th November 1997, after a hearing on 21st July 1997 and 17th October 1997. The decision was that the applicant's claim for direct discrimination under s.1(1)(a) of the Sex Discrimination Act 1975 and discrimination under s.2(1)(a) of the Act be dismissed.

The matter had already been before the Employment Appeal Tribunal because there had been an earlier decision of a differently constituted Industrial Tribunal rejecting Mrs Berry's claim. The Employment Appeal Tribunal presided over by the President, Morison J, had isolated four matters where it thought that the original Industrial Tribunal in its reasons had not dealt adequately with points which could be made on behalf of Mrs Berry. So the matter went back before a new Industrial Tribunal whose decision, to which we have just referred, is now appealed against.

Mr Munasinghe has represented Mrs Berry throughout, and this morning has identified three points which he would wish to argue.

I propose on behalf of all three of us to do my best to describe those points with a view to Mr Munasinghe, if he wishes, amending his Notice of Appeal and redrafting his skeleton argument to make the basis upon which he would make the points at the full hearing absolutely clear.

The first point is this. It was the respondent's case that the applicant and appellant, Mrs Berry, did not make the final short list of five for the job for which she was applying with the respondent because as was explained to her in a letter dated 3rd August 1993, there was insufficient information on her application form to allow Mrs Edwards, working on behalf of the respondents, to complete a short-listing matrix for Mrs Berry based on the criteria listed in the personal specification, nor was there sufficient information on degree of detail which Mrs Edwards would expect for a position as senior as the one applied for. Mr Munasinghe's point is to argue that those reasons for Mrs Berry not making the final short-list are inconsistent with the fact that the respondent was able to make out a matrix scoring the various matters which were essential for the job, and met by the candidates, including Mrs Berry, and scoring the desirable criteria for the job, which were met by the candidates including Mrs Berry. Moreover, Mr Munasinghe argues, the reasons given in the letter are inconsistent with the fact that Mrs Berry did make a preliminary short-list of seven candidates. It may be that the answer to Mr Munasinghe's point, (because the tribunal came back to this at paragraph 25 of its decision, where it said: "It is quite clear that the reason the applicant was not short-listed was because of the lack of information and detail on her application form.") was that Mrs Berry gave enough information to make the last seven, but that when it was decided to reduce that short-list of seven to five, the respondent authority did not have sufficient information from her to justify her inclusion in that short-list of five. Having said that, however, we think that the point Mr Munasinghe has made does warrant further argument inter partes on a full hearing before this tribunal.

Mr Munasinghe's second point is related to some extent to the first. He argues that looking at the application forms put in by the various candidates, it was perverse of the tribunal to decide, as in effect it did, that she did not give sufficient information. Mr Munasinghe says that Mrs Berry filled in all the parts of the form which were required of her, and if she did not give sufficient information, it could only be because she did not volunteer it in a space at the end of the form which enabled the applicants to add further information if they wished. Moreover, Mr Munasinghe says that if one compares the information given by Mrs Berry with that given by or on behalf of the applicant who eventually got the job, she gave as much detail and information as he did. This point amounts to arguing that the decision of the tribunal was perverse. But there is a further facet to it, because Mr Munasinghe says that the Industrial Tribunal did not grapple with or in fact deal with this point at all and, therefore, implicitly, there is some reason for supposing that it did not take it into account or perhaps did not appreciate that it was being made.

The third point of appeal is by extension of the second point. It is this. That if Mrs Berry's application form is viewed properly, it is not right to say as the respondent's matrix which presently appears at page 19 of our bundle says, in column D, that there was no evidence on her form in respect of three matters. The information was in fact there. Again, we have some reservation about this point. It may be that it was a matter of fact which the Industrial Tribunal did in fact bear in mind and has taken account of, but to some extent at least, it is connected with the second point, as indeed to some extent the second is connected with the first point which is in turn a point of law which requires further argument.

In any event, we have decided that this matter should go to a full hearing. We have said what we have this morning so that when it is reduced to a transcript, Mr Munasinghe on behalf of Mrs Berry can read it through, see if it does adequately encapsulate the points which he wishes to make, and whether it does so or not, seriously consider whether he needs to amend the Notice of Appeal. In any event, we would invite him to and indeed direct, that he prepares a skeleton argument on behalf of Mrs Berry to be filed not less than 28 days before the hearing of the matter, which will no doubt be drafted by Mr Munasinghe in the light of the way we have understood and tried to express his points in this judgment.

There should be skeleton arguments on both sides not less than 28 days before the hearing. We give leave to amend the Notice of Appeal within 14 days of obtaining a copy of the transcript of what we have just said. There must be production of the Chairman's notes of evidence of cross-examination of Mrs Edwards only. It occurs to us, though he may not thank us for it, that the matter ought to go back before the President, because he dealt with it in the first place. The rationale of his decision of allowing the appeal in the first place was that the Industrial Tribunal had not dealt or had not dealt clearly with points which could be made for Mrs Berry which is really the thrust today. We will suggest it for listing before the President, even though it is category C.