Appeal No EAT/1188/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 2 November 2000

Before
HIS HONOUR JUDGE H WILSON
MR P R A JACQUES CBE
MR R N STRAKER

MRS V MAKANI	APPELLANT

THE ROYAL FREE HAMPSTEAD NHS TRUST	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MISS J BEALE
(of Counsel)
	
For the Respondents	MR J HOLL-ALLEN
(of Counsel)
Messrs Le Brasseur & Tickle
Solicitors
Drury House
34-43 Russell Street
London WC2B 5HA	

JUDGE H WILSON

1	This is the full hearing of the appeal by the original Applicant, Mrs Makani, against the decision of the Employment Tribunal sitting at London North, that her complaints of race discrimination and constructive dismissal should be dismissed as there was no case to answer.  

2	The Employment Tribunal heard evidence from the Applicant who relied on her written statement which was read silently by the Tribunal, amplified by oral evidence-in-chief and by cross-examination.  At the conclusion of the Applicant’s evidence, the Respondents submitted that there was no case to answer and for the reasons set out in their lengthy extended reasons, the Tribunal upheld that submission.  

3	It was common ground that it is a rare case which justifies dismissal on the basis that there is no case to answer, and we indicated at the outset that we would be most helped by Mr Holl-Allen dealing first with the justification for the decision by the Employment Tribunal.  He appeared for the National Health Trust as he had appeared for them before the Employment Tribunal.  The Appellant was represented today by Miss Beale, who acceded to the course which we proposed at the outset of the hearing.  

4	Mr Holl-Allen submitted that there were two possible grounds to justify a finding of no case by an Employment Tribunal: the first concerned frivolous cases, with which we were not concerned at all.  The second were those exceptional cases where the Employment Tribunal can properly conclude that an application is without merit because, at the end of the Applicant’s evidence, there are no matters of substance which call for an answer.  

5	There are a number of cases which establish the principle to which we were referred, helpfully, by Mr Holl-Allen.  Those cases are Coral Squash Clubs [1979] 1 ICR 607 and that portion of Mr Justice Slynn’s judgment at page 611(g) together with his reference to the judgment of Mr Justice Phillips in the earlier case of Ridley which is referred to in Harvey and is reported in [1978] 13 ITR 195.  

6	The earliest of the cases which found the principle in question was the judgment of Mr Justice Phillips in the case of Oxford-v-Department of Health and Social Security [1977] ICR 884 at page 886 et seq.  Then came another decision by Mr Justice Phillips in 1978 Humphreys-v-St George’s School [1978] ICR 546 at page 549(a) and especially (f), and the later case of Owen & Briggs -v- James [1981] ICR 377, the judgment of Mr Justice Slynn, as he then was, at page 384(d).

7	So, says Mr Holl-Allen, despite the principle, there does remain a jurisdiction for a Tribunal to accede to submission of no case in exceptional cases of race or sex discrimination, and of constructive dismissal, although it must, by definition, be sparingly exercised, and only applies if the case is without merit because there is nothing calling for an explanation.  

8	Mr Holl-Allen relied upon his submission that there was nothing arising that called for explanation in the Applicant’s case here.  The matter came down to two specific incidents and we do not propose to rehearse in detail the general background history of this case in view of the decision to which we have come.  But in order to explain and illustrate why we have come to the decision we have reached, it is necessary to refer to the two incidents in 1998.  

9	There was an incident in July 1998 which involved errors in the administration of drugs to a patient.  Two nurses were involved and there was also a lower grade nurse as well.  The Employment Tribunal stated that the Applicant did not accept that she was to blame for the defective administration.  Paragraph 6 of the extended reasons goes on to say that, in effect, the Applicant’s position was not accepted by the Respondent Trust: they found that all the nurses were at fault.  It seems to us that that does raise an issue of substance which called for evidence from the Respondent Trust, so that the Tribunal would have to decide between what the Applicant claimed, namely that she was not to blame, and what the Trust claimed, namely that they were all to blame.  It could not be done without evidence from the Trust.  

10	There was a further point concerning that incident, because the Applicant had been on a special training course, but apparently she said that, although she had not followed her training, the practice on the ward was different from the training she had received.  That too, required a decision which was impossible for the Tribunal to make without having heard what the Trust had to say about it.  

11	The later incident in November 1998 also involved another nurse and involved the wrong administration of blood platelets.  In that incident, the Applicant admitted her mistake, and according to paragraph 8 of the extended reasons, it was agreed that the Applicant should undertake a two week period of supervised practice.  That began on 23 November and the Applicant said, according to paragraph 8 of the Decision, that little supervision actually took place.  However paragraph 9 states that as a result of what the Supervising Practice Development Nurse observed, there were concerns about the Applicant’s practice, and it was proposed that she be transferred to another ward in order that her general nursing skills could be monitored.  That seems to us to be a fundamental matter which called for justification with evidence by the Respondent, particularly in view of what the Applicant’s evidence was, concerning the degree of supervision.  It seems to us that such a step with a nurse of the length of experience of this nurse, was a step which could contribute considerably to the case of constructive dismissal.  Whether it would or not, would of course, depend on the view formed by the Tribunal of all of the evidence, including that which they did not hear.  It seems to us therefore that, for those reasons, there were matters of fundamental importance that should have required evidence from the Respondent.  

12	Another issue mentioned by Miss Beale, which will be open on re-hearing, is the question of representation and the procedural arrangements which are set out in the document attached to her skeleton argument in support of the appeal.  It does seem that there are not many issues, if any, to do with matters in 1995 because, in the first place, Mr Holl-Allen does not seem to rely too much upon those matters, and in the second place, we note that there was representation to do with those matters.  Secondly, it occurs to us that the Tribunal, to whom this matter is remitted, will be most helped if attention is concentrated to the later events.  

13	It remains only to say that we do not consider that this is one of those very rare and exceptional cases where a finding of no case is justified.  The submission having been made, in our view, it should have been refused because of the matters of dispute and substance which emerged from the Applicant’s own evidence, and called for an answer.  We therefore order that the matter be remitted to a differently constituted Tribunal for re-hearing on the issues at large between the parties.

With regard to costs: it seems to us that no Order should be made against the Trust but that there should be a detailed assessment of the legal aid costs, and we would express the view that it would be of great assistance to the Tribunal if the Applicant’s legal aid is continued.