Appeal No. EAT/0112/02 TM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 March 2003
Judgment delivered on 3 April 2003

Before
HIS HONOUR JUDGE PETER CLARK
MR C EDWARDS
MR A E R MANNERS

MS TRUTH DIALE	APPLICANT

PENDLEBURY HEALTH CARE LIMITED	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Applicant	MS TRUTH DIALE
(the Appellant in Person)	
For the Respondent	MR J PINTER
(Representative)
Instructed by:
Abbey Legal Protection
6th Floor
17 Landsdowne Road
Croydon
Surrey CR0 2BX	

HIS HONOUR JUDGE PETER CLARK

1	This is an appeal by Ms Truth Diale, the Applicant before an Employment Tribunal sitting at Manchester under the Chairmanship of Mr D A Leahy, against that Tribunal’s decision, promulgated with Extended Reasons on 20 November 2001, dismissing her combined complaints of racial discrimination and victimisation brought against her former employer, the Respondent, Pendlebury Health Care Limited.

2	The facts and findings of the Tribunal are fully set out in their Reasons and need not be repeated here.  The Applicant, who is of black African origin, commenced employment with the Respondent on 9 October 2000.  The Respondent operates a number of nursing homes in the North West of England.

3	The appeal focuses on allegations of bias and procedural unfairness on the part of the Tribunal and in particular the Chairman.  All other matters raised by the Applicant amount to challenges to the Tribunal’s findings of fact.  We have no jurisdiction to revisit the facts as found below and we did not understand the Applicant to pursue those matters.  Had she done so we would have been bound to reject those grounds of appeal and formally do so.

4	The allegations of what may broadly be described as misconduct on the part of the Tribunal were largely set out in an affidavit sworn by the Applicant on 8 February 2002.  The Chairman commented on those allegations in a letter to the Employment Appeal Tribunal dated 14 February 2002.

5	When the appeal came on for ex parte Preliminary Hearing before a division on which I sat on 15 July 2002 it became apparent to the court that material conflicts of fact arose in the competing accounts of what transpired below between the Applicant and the Chairman.  In these circumstances, following the practice laid down by Lindsay P in Facey v Midas Retail Security [2000] IRLR 812, paragraph 39, we directed that the Respondent be given an opportunity to file affidavit evidence in reply to that of the Applicant; we also permitted the Applicant to file further evidence from her friend, Ms Sinikiwe Mqwayi, who apparently attended the Employment Tribunal hearing, which took place on 5-7 November 2001.

6	In the event no evidence was forthcoming from Ms Mqwayi, but the Respondent filed a witness statement of Christopher Morse, its Managing Director and principal witness before the Employment Tribunal, dated 25 November 2002.

7	Having reviewed the matter on paper I gave further directions on 9 December 2002; in particular, that both the Applicant and Mr Morse should attend a restored bilateral Preliminary Hearing for the purposes of cross-examination.  I reserved the matter to myself and today sit with different members from those sitting on 15 July 2002.

Procedural Unfairness

8	Ms Diale raised five points.  We heard evidence on each of those issues from both the Applicant and Mr Morse.  Both were cross-examined.  We heard full submissions from Ms Diale and also received assistance from Mr Pinter, appearing on behalf of the Respondent.  In view of the lateness of the hour we took time to consider the matter.  Our conclusions are as follows, taking each complaint of misconduct in turn.

(1)	Evidence of Karen Ashworth

9	In case managing this matter below a Chairman directed sequential disclosure of witness statements to be relied on by the parties, the Applicant to disclose her witness statement first.

10	On receipt of that witness statement the Respondent prepared its own evidence in reply.  One of its employees, Karen Ashworth, a Care Assistant, was accused of racial harassment in the Applicant’s witness statement.  Mr Morse interviewed Ms Ashworth on 16 October 2001.  He asked her about the specific allegations made against her in the Applicant’s witness statement and recorded her responses which he typed up in a document of that date addressed to Mr Pinter.  We accept his evidence that he was present when that document, which we received in evidence and marked ‘A’, was signed by Ms Ashworth.  The Applicant did not accept that it was Ms Ashworth’s signature; we find that it was.

11	Statements were obtained by the Respondent from a number of potential witnesses in that way and forwarded to Mr Pinter.  He then used those ‘first draft’ statements as a basis for preparing more formal statements to be used before the Employment Tribunal.  Such a witness statement was prepared for Ms Ashworth.  We have marked that draft witness statement ‘B’.

12	It was intended by the Respondent’s representative that each deponent would sign his or her witness statement at the Employment Tribunal on the first day of the hearing.  Each did so with the exception of Ms Ashworth, who was unwell and did not attend.

13	She did not recover and never attended the hearing to give evidence.  In these circumstances Counsel then appearing for the Respondent applied to the Tribunal to have her witness statement admitted in evidence on the grounds that she was unable to attend through illness.  The Chairman pointed out that witness statement ‘B’ was unsigned.  At that point, which we find was during the evidence and not during closing submissions, as the Applicant suggested, Mr Morse pointed out that he had a copy of witness statement ‘A’.  Both witness statements were put before the Tribunal and, we accept from him, the lay members compared the two versions.  Since they were and are similar without being identical witness statement ‘A’ was formally accepted in evidence.  Ms Diale had received a copy of witness statement ‘B’ by way of disclosure of witness statements in advance of the hearing, sent by the Respondent’s representative on 22 October 2001.

14	The upshot, as the Tribunal record at paragraph 2 of their Reasons, was that the signed Ashworth witness statement ‘A’, itself not materially different from the disclosed witness statement ‘B’, was admitted in evidence, although the Employment Tribunal exercised caution as to the weight that could be attached to it, the witness not being available for cross-examination.

15	In these circumstances we find that no procedural irregularity occurred in respect of the evidence of Karen Ashworth.

(2)	Additional Evidence

16	The Tribunal hearing was originally listed for four days on 5, 6, 7 and 9 November 2001.  In the event the hearing was completed in the first three days.  On 9 November the Applicant received an additional bundle of documents from the Respondent’s representative under cover of a letter dated 31 October.  Those documents were given the original Employment Tribunal bundle numbering of 199-209; 117-127 in the Applicant’s appeal bundle.

17	The Applicant complains that the additional documents were used during the Employment Tribunal hearing without her having an opportunity to reply to them.

18	Mr Morse told us and we accept that he wanted the documents to deal with a point which is recorded at paragraph 7 of the Tribunal reasons; it related to the Respondent’s Macclesfield nursing home and his evidence that to justify the appointment of a Deputy Matron at that Home bed occupancy numbers had to rise from 46 to 51.  He gave that evidence; it was not challenged by the Applicant during her cross-examination of Mr Morse and the supporting documents were not, in those circumstances, required.

19	Perhaps of even greater significance is that at the hearing before us, on 21 March 2003, I asked the Applicant what points she would have taken on those documents had they been made available to her during the Employment Tribunal hearing on 5-7 November 2001.  She told us she had no points to make on those documents even now; she was stuck, she did not know how they would have helped her case.

20	It follows that, in our judgment, there is nothing in this point of appeal upon examination.
(3)	Contacting an American Lawyer

21	The Applicant contends that during the hearing, “out of the blue”, the Chairman asked her whether she had called a lawyer in America.  She could not understand the purpose of the question.  In her affidavit, paragraph 6, she said that she viewed this as a “prejudgment” although why she thought that was unclear in evidence to us.  The Chairman has no recollection of asking that question.

22	We find that the true context is that provided by Mr Morse.  He has a clear recollection that when the Applicant was explaining to the Tribunal her attempts to obtain representation (she appeared in person below) she said that even extended to contacting an American lawyer.  Mr Morse particularly remembered that remark because, being American himself, he thought it odd that she would contact an American lawyer to assist in her employment claim in this country.

23	Ms Diale put it to him in terms that he was lying about this during cross-examination before us.  We do not accept that he was; on the contrary he struck us as a careful, thoughtful, honest witness, as he did the Employment Tribunal (Reasons, paragraph 26).

(4)	Chairman’s Remarks

24	At paragraph 7 of her affidavit the Applicant contends that during the hearing, she then suffering some discomfort in her back, the Chairman said “what is back pain?”  This remark is denied, both by the Chairman and Mr Morse.  We do not believe that the remark was made; on the contrary on the Applicant’s account the Chairman asked Mr Morse to help the Applicant by picking up her books when she suffered an attack of pain in her back.  He did so.
25	In any event, the alleged remark strikes us as odd and does not amount to a display of bias or the appearance of bias against the Applicant.

26	Secondly, the Applicant alleges that the Chairman made a remark on 7 November, day 3 of the hearing, that the case may not be over the next day, however amusing it may be to her.  Again we find that an odd thing to say.  It is again denied by both the Chairman and Mr Morse.  We do not accept that it was said.

(5)	Indirect Discrimination

27	The Applicant alleges that at one point, during a discussion as to whether she had raised a complaint of indirect, as opposed to direct racial discrimination, the Chairman raised his voice and yelled the word ‘no’ at her.  That is firmly denied, both by the Chairman and Mr Morse, who told us that the Chairman conducted the hearing without raising his voice at any time.  We accept that evidence.

Conclusion

28	It follows that we reject the Applicant’s complaints of misconduct or procedural irregularity on the part of the Employment Tribunal Chairman.  Having carried out the exercise suggested by Lindsay P in Facey there is absolutely nothing in this appeal.  It is dismissed.