Appeal No EAT/1477/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 30 November 2000

Before
HIS HONOUR JUDGE J ALTMAN
MS J P DRAKE
DR D GRIEVES CBE

MS JOYCE NNADI	APPELLANT

BRENT, KENSINGTON, CHELSEA & WESTMINSTER
MENTAL HEALTH NHS TRUST	        RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	MR V ONUEGBU
Solicitor
Messrs Nathanniel & Co
Solicitors
422 Kingsland Road
Dalston
London E8 4AA	

JUDGE J ALTMAN

1	This is an appeal from a decision of the Employment Tribunal, sitting at London South, over 21 days, during 1999.  It was a monumental case.  There had been 2 substantial interlocutory hearings, a great deal of time was spent in assembling and identifying the case which the Appellant brought; evidence was heard from two witnesses on behalf of the Appellant, and 16 witnesses on behalf of the Respondents.  The bundle of documents contained over 834 pages including subdocuments, and the decision of the Chairman covered some 30 pages. 

2	The matter comes before us by way of preliminary hearing to determine if there is a point of law that can be argued in full, before the Employment Appeal Tribunal.  The process by which a Tribunal has to reach a decision involves first, the identification of the complaints, secondly the consideration of the evidence, thirdly deciding what happened as a result of that evidence, and fourthly deciding what inferences should be drawn, and what legal conclusions should be drawn from those facts.  

3	Of course, there was a mass of evidence in this case, which did not all point in one way.  It is possible to pick some evidence which supports findings of the Tribunal, and it is possible to pick some evidence which contradicts it; that has to be distinguished from the facts that the Tribunal find.  In order to succeed in establishing an error of law, on the grounds that the Tribunal has been perverse, it is not sufficient simply to show that there is evidence which could come to a different conclusion, or to disagree, as we are sure the Appellant does, with many of the findings of the Tribunal.  It has been suggested that the Employment Tribunal failed to apply the principles in King v China Clay Company . But that does not create a requirement of law, that establishes the sort of inference which a Tribunal may draw, not must draw, in certain circumstances.  

4	I will say a little more about the detailed arguments before us, in a few moments, but we have listened very carefully to the very comprehensive submissions put on behalf of the Appellant by Mr Onuegbu and considered his Skeleton Argument in detail, and we have failed to discern any point of law which is capable of argument in full.  But at the back of this appeal, according to the finding of the Employment Tribunal, is a woman embarking on a career she regarded as a vocation, with many good and appropriate qualities for that work identified and recognised by her employers.  She is now without that work, and believing that the reasons that she was, in some respects, badly managed, as the Tribunal found, was due to her race.  The conscientiousness of the Appellant, and the failings of the Respondent to manage her career satisfactorily, are clearly and emphatically established in the findings of the Tribunal.  

5	The only issue on which the Appellant differs essentially from the Employment Tribunal is on the question as to whether such treatment is attributable to her race.  In addition, of course, she does take issue with the degree of mismanagement and some particular incidents which were found not proved by the Tribunal.  The submissions of the Appellant in this Skeleton Argument cover essentially the way in which the decision of the Tribunal is framed.  Having set out the history of the actual proceedings, in paragraphs 8 - 12 the complaints raised by the Appellant are set out.  Those were agreed as a proper list of the complaints at the outset of the proceedings.  

6	In his Skeleton Argument, Mr Onuegbu makes a number of references, first of all, to the findings of fact in the paragraph headed 15, because after setting out the complaints, the Tribunal went on to set out their findings of fact.  The first complaint is that in Section 15 subparagraph (xii) the Tribunal must be in error in referring to a meeting on 26 November because the Appellant was not at work and he says there never was a meeting. But there was an assertion before the Tribunal of such a meeting.  They may have made a mistake as to the date, we do not know, we have not all the Notes of Evidence before us.  

7	At that time, the Appellant wrote a letter on 24 November 1997 which it is suggested the Employment Tribunal should have considered to be the reason for the racial discrimination, which then followed, and should have treated it as what has been called a “protected act”, but that was not one of the complaints in the section to which we have just referred.  

8	Mr Onuegbu then considered the deliberations of the Tribunal in paragraphs 20 - 22.  The first matter for concern is the identification of comparators.  One of those is set out to be Mrs Keyes.  It is suggested that her treatment as a comparator is inappropriate because she was pregnant and therefore not capable of being a comparator with someone who was not.  That of course, depends on the circumstances.  

9	In the decision at paragraph 27 the Employment Tribunal considered the question of comparators, they eliminated some and dealt with Mrs Keyes, so far as the timing of the assessments and reviews which she had, ignoring her period of maternity absence.  Those periods were important, because they are the stepping stones to re-grading, permanent employment and promotion.  Clearly, therefore, the various circumstances of Mrs Keyes were considered and the Tribunal chose to set aside her maternity absence.  

10	In general terms, in considering maternity absence, and the reason for it, the Courts have established, it is true, that there is no comparable condition that can give rise to a comparator who is not absent through pregnancy.  But that is a different point.  There may be features of the working conditions of a woman who is pregnant that may provide a yardstick to compare with a fellow employee during that time.  In this particular case, the Employment Tribunal came to the conclusion, in some respects, that she was not better off than the Appellant, in some that she was, and that in any event she was not treated any more favourably than was the Appellant, in accordance with the Respondents’ procedures.  It seems to us therefore, that whilst of course, it can be argued that she was not an appropriate comparator, it cannot be established as a matter of law that it was an error to treat her as one, and therefore no argument on appeal arises upon it.  

11	Other comparators were mentioned in connection with the re-grading exercise and we have no reason to suppose that they did not figure in the decision of the Tribunal in an appropriate way on the basis of the evidence before the Tribunal.  

12	It is then said that in relation to paragraph 21 there was a general criticism that there were insufficient findings of fact.  We disagree.  The matter of comparators was explored in the decision and the Tribunal then went on to consider the explanation for the difference of treatment, as between the Appellant and Mrs Keyes, relating to induction course dates, supervision and assessment.  

13	The finding that the Tribunal accepted the Respondents’ explanation is challenged, it is suggested that no explanation was in fact given.  Under paragraph 32, page 103 of the documents we have been given, the witness said that he may have:
“ cancelled due to other priorities on the ward”
 though he could not be sure.  The Employment Tribunal referred to something similar in their decision, under paragraph 22, which I have just dealt with.  There were further submissions in relation to Mrs Keyes and the difference between her and the Appellant, and some of the differences between her and the other comparators, are pointed out.  

14	However, although the Appellant was complaining that she was not re-graded, and supervised, and reviewed, and nor did she have induction meetings in accordance with the procedure, as she should have done, or in relation to others, it must nonetheless be observed that the Tribunal found that there was a parallel process going on at the same time.  The Tribunal found that re-grading after a period of time was not automatic, and there were many meetings between the Respondents and the Appellant, as found by the Tribunal, in which, whilst there were many areas of her work which were applauded, the Respondents were expressing the view that she had difficulty in relationships with fellow employees, and the Respondents had to investigate an occasion when it was said that she did not supervise the ward she was supposed to be in charge of.  The Appellant denied that she was due to be in charge of it.  It was the finding of the Employment Tribunal, effectively, that the delay in re-grading was related to the desire of the Respondents that the Appellant should first overcome those difficulties.  

15	There was a complaint that in later paragraphs, the Employment Tribunal confused the nature of the night duty experience that was being denied to the Appellant.  However the Tribunal were concerned with it as part of the induction programme, as set out in paragraph 23.  It is suggested that, in paragraphs 25 and 26, attention was not given to the fact that the Appellant used her own time for study, that one of the courses was a mandatory one, that it was Mr Proctor who would be the person involved, and the Tribunal are criticised for not specifying why they did not accept the Applicant’s evidence that she was refused permission to attend one of the courses.  The Employment Tribunal has plenty of opportunity to look at evidence and assess witnesses, and sometimes it cannot descend to explain every single thought process that they had.

16	Then in paragraph 27 the Employment Tribunal dealt with the absence of supervision courses, to which I have referred, and the argument is that they should have inferred race discrimination.  No doubt that was an argument presented to the Tribunal, and a view that the Appellant has, but it was not an error of law to fail to make the inference.  In the Skeleton Argument, Mr Onuegbu sets out a number of facts, which could have led the Employment Tribunal to find that there were differences in treatment in reviews and assessments, but the Tribunal, in paragraph 28 found there was no difference in treatment in that respect.  There were differences of dates.  However the Tribunal had clearly exercised a balancing act in the assessment of the evidence.  

17	Then in paragraph 29, the Tribunal deals with the explanation for the failure to re-grade as being an acceptable investigation.  Mr Onuegbu deals with the question of the pregnancy of the comparator, to which I have already referred.  

18	Then in paragraph 30, there is reference to a letter written by the Applicant on 5 May, which it is said, should have been treated as a protected act.  However, there is nowhere any claim by the Appellant that that was being said, and we have looked at the analysis of complaints, at the beginning of the Tribunal decision, agreeing with the Appellant.  It is clear that although, in relation to a letter of 6 June 1998, the Tribunal acknowledge such a claim by the Appellant, it was never part of the Appellant’s case, as agreed at the outset of the hearing.  Clearly it would have had to be.  Mr Onuegbu says that, of course, one has to respond to the Respondents’ case as it comes out; but we see no reason to support the proposition that the Employment Tribunal erred in law in failing to consider that allegation.

19	The Tribunal also made other findings about the letter of 5 May.  They found that it was not a contemporaneous document.  Mr Onuegbu is clearly concerned about that, understandably, and he points out that the Employment Tribunal may have been expecting too similar a use of the English language on the part of the Appellant, as the Tribunal exercises, and he questions how the fact that someone describes a letter in a contemporaneous document as a letter written the previous month, “in April 1998”, rather than “last month”, as relevant.  We can understand that reference very well.  One might say “April 1998” when pinpointing a month from a distance; someone is more likely to say “last month” if they were referring to it as the month just gone by.  That was a view of English usage, it seems to us, that the Employment Tribunal were entitled to take, and we are of the view that there was no point of law arising upon it.  Paragraph 32 simply contends that the finding was perverse.  However we find that there was material before the Tribunal upon which they were entitled to reach their conclusion: we find no point of law arising from that.  

20	In particular it was suggested that there was no basis upon which the Tribunal could conclude that the Respondents’ policies were incomprehensible.  It is not often that Tribunals express themselves in such clear terms about the inadequacies of employers’ documentation, particularly one such as these Respondents, and they were clearly driven to a very strong and critical view of them.  Of course, they had material upon which they could base that judgment, they read the documents themselves, and no point of law arises upon it. 

21	In paragraph 36 it is stated that the first formal grievance was contained in the letter of 6 June. That finding is criticised.  It is suggested that it was the letter of 5 May.  However the letter of 5 May does not read as a formal grievance letter as part of a procedure, although of course, the Employment Tribunal made other findings about its authenticity.  It is true that the Employment Tribunal observed that there is no reference in that letter to race discrimination, and we have been reminded of the authorities which point out, quite naturally, the inhibition on an employee of making that allegation during the course of employment. But that seems to us a factual statement.  The Tribunal go on in fact to record that race was mentioned in a letter only 19 days later.  It does not seem to us, therefore, that that observation is a material part of the Employment Tribunal’s reasoning and therefore no point of law arises upon their making that observation.  

22	Also it is suggested that the Tribunal failed to find that the letter of 6 June was a protected act, and that the Applicant was therefore victimised.  That argument was flagged up at the beginning of the Employment Tribunal’s decision in their list of complaints, and in paragraph 40, the Tribunal say in terms that the suspension and the initiation against her of disciplinary charges was not as a consequence of her having raised a grievance against Mr Proctor.  There were disciplinary proceedings raised against the Appellant on a number of grounds following her suspension; there is no doubt that on the face of it, there does appear to be a coincidence of dates between, on the one hand, the Appellant’s raising of a grievance, and secondly, the initiation of the disciplinary procedure  However, this is openly analysed by the Employment Tribunal, and Mr Onuegbu criticises their conclusion as he, and the Appellant, are entitled to do.  But we are of the view that the Employment Tribunal set out the essential facts, and came to a conclusion they were entitled to come to: that the claim of unlawful victimisation, essentially that letter of 6 June, must fail.  

23	I revert now to paragraphs 39 - 40 of the Tribunal’s decision and the suggestion, in that, that the Appellant’s conduct had already been reported to the line manager, Mrs Barnes.  Mr Onuegbu says that that was an error of law because they should have considered whether the letter was a prohibited act.  But again, that is simply a matter of the thought process and reasoning of a Tribunal, and they were entitled to follow their own processes, it seems to us.  

24	There was the allegation against the Appellant, as part of the disciplinary proceedings, of the Appellant having been abusive at the meeting of 5 June to Mr Proctor.  The evidence before the Tribunal was that Mr Proctor, when interviewed about this by the Respondents, denied that there had been any verbal abuse, and indeed, Mr Onuegbu says, in his Skeleton Argument, that all the Respondents’ witnesses gave evidence that the Appellant did not verbally abuse them.  Yet, he observes, this was a subject of the alleged report from Mr Proctor.  

25	In their conclusion the Employment Tribunal said:
“The allegations against the (Appellant) were not trumped up charges.  They were matters of legitimate management concern and indeed at the end of the day some of them contributed to the disciplinary warning issued to the (Appellant)”

Mr Onuegbu says that they should have found that they were trumped up.  But the fact remains, it seems to us, that by referring to the fact that only some of those allegations form part of the disciplinary warning, the Employment Tribunal were acknowledging that some of them were unsubstantiated.  The fact that there were matters of complaint against the Appellant, which were not supported, was therefore right at the front of the Employment Tribunal’s mind when they were assessing the evidence.  The Appellant may feel that she was being badly treated by the employers, but clearly the Employment Tribunal were directing their minds to it, assessing the evidence, and then coming to the conclusion, as they did in the very next sentence, that:
“The Tribunal rejects the allegation that the (Appellant’s) suspension and initiation against her of disciplinary charges was as a consequence of her having raised a grievance against Mr Proctor and accordingly, that complaint of unlawful victimisation must fail.”

26	The Tribunal considered the evidence, and accepted that some of the charges were not substantiated against the Appellant.  They had assessed all the evidence, and they came to the conclusion that the process of the disciplinary hearing was not related to unlawful victimisation, following upon the earlier letter.  That was a judgment on the evidence they were entitled to come to; it is one that the Appellant disagrees with, but we can see no error in law in the Tribunal’s conclusion; they were not compelled by any principle of law to come to the opposite conclusion.  

27	A number of other matters were raised, really dealing with criticisms of the Respondents which were sustained, and in conclusion, Mr Onuegbu says that the Employment Tribunal was perverse and biased, and came to a conclusion which could not be supported on the evidence.  

28	Mr Onuegbu has also criticised the interlocutory proceedings, and we have read such criticism, and we have seen the responses from the Chairman concerned.  In particular, Mr Onuegbu said that he raised the issue of trust and confidence, and yet in the letter from Mr Peters, he said that he could not recollect whether the issue of trust and confidence was raised in the proceedings, but that if it had, he would have disregarded it, as would his members, as being irrelevant to the issues before the Tribunal, there not being an issue of constructive unfair dismissal.  It is pointed out that the issue of mutual trust and confidence was raised, and Mr Peters is criticised for not having it in his mind, when he wrote the letter.  But we see no inconsistency between an issue being raised at a hearing between February and August 1999 and Mr Peters, when he wrote a letter on 11 May 2000, being unable to bring to his mind every single point, including this one.  

29	The Employment Tribunal effectively found that the Appellant had been, in some ways, badly treated by her employer.  We live in a society which has selected only certain categories of bad treatment by an employer as giving rise to a complaint before a Tribunal, one of which is racial discrimination.  The Tribunal found that that was not the explanation in this particular case.  We find that there was no error of law in their decision whatsoever, and accordingly this appeal must be dismissed at this preliminary stage. 

30	At the conclusion of the hearing, the Appellant sought leave to appeal on the ground of the reference to the hypothetical comparator not being employed as a yardstick by the Employment Tribunal and their not considering whether trust and confidence was a detriment. We find that such arguments do not have a reasonable prospect of success, bearing in mind the general introduction to the basis of our judgment, and the impossibility of addressing every argument specifically.  Accordingly, leave to appeal is refused.