Cromwell v South Birmingham Health Authority [1994] UKEAT 53_93_2004

EAT
Cromwell v South Birmingham Health Authority
[1994] UKEAT 53_93_2004 · 1994-04-20

JUDGE J HULL QC:

In this case Ms Cromwell appeals to us from the decision of the Industrial Tribunal sitting at Birmingham on 2nd November 1992, and promulgated on the 3rd December 1992, to whom she had complained of discrimination. I do not need to go into all the facts.Ms Cromwell is a State Enrolled Nurse, a person with qualifications and she had risen to Grade E. She complained to the Tribunal, as I say, that she had been discriminated against and if one looks at her Application one can see that what she complained of to the Tribunal was an appraisal which was made of her ability by Mrs Griffin. Mrs Griffin had given certain marks to her and Ms Cromwell said to the Tribunal:

"I believe that I have been discriminated against on racial grounds"

I should explain that Ms Cromwell is a black lady as some other Nurses in the same employment in Birmingham are, and she said:
"1) My appraisal was carried out by the Nursing Officer and not the Sister who I report to.
2) My appraisal was different in its type and content to other nurses of the same grade.3) I was asked to sign a report that I had objected to earlier.4) I was marked lower than other nurses of the same grade.5) I was given a 5 for a task I do not carry out."It may very well be that the system of making these appraisals is unsatisfactory or unsatisfactory in certain respects. That is, of course, not a matter for us. It may very well be, since human beings are, as they say, "only human" that this appraisal was, indeed, inaccurate. I think in one way at any rate it was altered by Mrs Griffin. It may be that some other person should have taken the appraisal and, perhaps, would have marked it differently; it certainly appears from what we have heard that a different appraiser, if I could call her that, had appraised other nurses on a rather different basis. That does not seem very satisfactory unless everybody has these matters explained to them, because we have no doubt at all that these appraisals are important to the nurses concerned and, no doubt, it is a system which obtains generally in the National Health Service. So it may very well be that Ms Cromwell had substantial complaints to make, not merely nominal complaints, but complaints which could have been justified and proved. But what the Tribunal was concerned with was not whether the appraisal was correct, because the Tribunal with its Chairman and its two Industrial Members are not qualified to do the appraisal themselves. What they are qualified to do, and are required to do, is to decide whether this appraisal was wrong because of some racial discrimination. If it were, that would of itself be unlawful, it is unlawful to discriminate against any person on the grounds of race or ethnic origin in the employment field and in other places too. So that was the task which the Tribunal undertook and was required to undertake.The decision was promulgated in December and we will look at the decision - but before we come to that we should say that Ms Cromwell attended in person and she produced at the hearing a long list of complaints which we ourselves have seen, which is with our papers, and she recounts a number of incidents from 1988 onwards at any rate which she said showed that she was being discriminated against or treated unfairly. The Tribunal, therefore, was asked about these. The Tribunal gave a short adjournment for them to be looked at but then decided the case simply on the basis of the complaint that had been made to them. That was the appraisal. They went into that. It is clear that the Industrial Tribunal took their task seriously and having made certain criticisms and comments on the appraisal, they said:
"For the application to succeed it would need to be established that, on racial grounds, Ms Cromwell was treated less favourably than other persons were treated or would have been treated. We have been unable to find anything to indicate that Ms Cromwell's race or colour had any influence on the way she was treated at any point. Direct evidence that discrimination is racial is seldom forthcoming. We recognise this and we would be ready to infer that any less favourable treatment Ms Cromwell received was on racial grounds if we could properly do so in the light of the evidence, but it would not be right for us to make any such inference in this case."
On the 11th January 1993 Ms Cromwell put in her Notice of Appeal and she made a number of complaints. She complained that the Commission for Racial Equality which had helped her with her complaints had put forward only a fraction of the statement she had given to them, and that was without her knowledge.The Tribunal had to deal with what was put before them and I have said what was put before them and they did deal with it. If matters were not put forward that Ms Cromwell wanted considered then that may be a source of grievance to her, but we cannot criticise the Tribunal for not considering them. She said:
"I was NOT given the opportunity to say all that I wanted to . . . I had not much chance to speak. . .They refused to look at documents."
That was what, of course, she had produced belatedly, these various complaints. She also makes complaints relating to the appraisal. She says:
"The only three trained West Indians there were ALL given not only the lowest marks, but were given appraisals in the same manner."
She makes comments on the appraisal and on the person who made it.After she put in her Notice of Appeal, there was a preliminary hearing at which the appeal was ordered to proceed. On the 15th November of last year a great misfortune befell Ms Cromwell, she was apparently taken ill and she has written a number of letters about that topic to this Tribunal. She was taken to a psychiatric unit, we know nothing about the nature of her illness apart from what she has told us, and she was actually detained in hospital for no less than 3 months, that and her letters suggest to us that her illness was a severe one. The Respondents suggested that Ms Cromwell, as a result of that, might not be in a fit condition to proceed with her appeal and that we should perhaps not hear the appeal. As I say, she was discharged two months ago and she assured us today that she was fit to appeal and wished to go on with her appeal and so we heard it and did not exercise any power to adjourn or stay the proceedings. It is true that at one stage, shortly after she was taken ill, she wrote a very magnanimous letter in which she expressed a feeling of solicitude for her colleagues and former colleagues and wished not to hurt them and said that on that ground she wished to withdraw her appeal. Mrs McDonald invited our attention to that too. We felt that nonetheless, since she had changed her mind and wished to go on with the appeal, we should hear it and so we have heard it today.Ms Cromwell has invited our attention to what was said by the Chairman, concerning various complaints she has made, she says that there are certain untruths which are stated by the Chairman and we paid attention to that of course. She complains that there are inaccuracies in her record. Each Member of this Tribunal has read all the papers and we have not only heard Ms Cromwell but of course we have discussed the case among ourselves. We have to remind ourselves that we are allowed to hear appeals from the Industrial Tribunal only on questions of law. In that way our jurisdiction is very much narrower than that of many other courts of appeal. The Court of Appeal itself, in the Supreme Court, can of course hear appeals on facts as well as law and can consider the evidence. The Crown Court, to take another example, is entitled to consider appeals on facts as well as law and to rehear all the evidence. But Parliament has said, in the Statute which created our jurisdiction, that we are confined to points of law. In other words, the industrial tribunals are the sole tribunals of fact on complaints such as this and we can interfere on an appeal only if we can discover an error of law. So that is the point on which we must keep our eyes fixed.We have, as I say, considered all these documents, in particular everything which was said by the Tribunal; what was said to the Tribunal itself; and what has been said in the very numerous documents which Ms Cromwell has written and what she has said to us today. It appears to us that she is thoroughly competent to present her appeal, so far as a lay person can when the appeal is limited to questions of law. She appears to us to be coherent and thoughtful and to have put before us, quite properly and fairly, what her contentions are. Having thought about all those matters as carefully as we can, bearing in mind the nature of our jurisdiction and our responsibility in a case like this, we have come to the conclusion that none of us can see anything which could possibly be called a point of law in the case. In those circumstances, whatever other complaints Ms Cromwell may have and however just those complaints may be, whatever other avenues she may have to make representations, for example, about her record, the data on her data sheet, those being matters on which the Industrial Tribunal itself commented, we ourselves cannot interfere with this case because we can find no point of law. It would be quite pointless for us to call on Mrs McDonald to tell us what the views of the authority are, and the submissions of the authority on this case, because unless there is a point of law we are simply helpless; we cannot reach any decision or give any help to the Appellant at all. So being very grateful to Ms Cromwell for her assistance to us and her very moderate way of putting her complaints, nonetheless we cannot help her and unhappily the appeal falls to be dismissed.