Mason v Wirral Hospital NHS Trust [1996] UKEAT 506_96_2211

EAT

Mason v Wirral Hospital NHS Trust

[1996] UKEAT 506_96_2211 · 1996-11-22

MR JUSTICE MORISON (PRESIDENT) : The purpose of this hearing is to determine whether Mrs Mason has an arguable point of law in an appeal which she wishes to make against a decision of an Industrial Tribunal held at Liverpool which rejected her complaint that she had been discriminated against on the grounds of her race, but held that she had been unfairly dismissed and further held that her compensation should be subject to a 60% reduction by reason of contributory conduct.

The facts giving rise to the prospective appeal may be shortly stated and taken from the Industrial Tribunal's decision. Mrs Mason is a midwife. She was employed by the Wirral Hospital NHS Trust. They formed the view that she was not fulfilling her duties as a midwife in a competent and safe manner. Their assessment was that she needed to be given supervised training as to midwifery practice.

Mrs Mason believes that her employers were picking on her because of her race, and that they were effectively moving down a road which was going to lead to her dismissal. Thus, so to speak, conspiring to use her alleged lack of competence as a lever to remove her from employment.

She made a complaint along those lines to an Industrial Tribunal alleging she had been discriminated against on the grounds of her race, but that complaint was dismissed on 11th November 1994.

After the Industrial Tribunal case, a decision had to be made about her future. She had not completed a period of supervised practice, and the judgment that was made was that she was not safe to practice midwifery until she had.

Accordingly, a question arose as to where and when the retraining should occur. Following a meeting on 9th January 1995, it was explained to her that her accusations against the people she worked with at Arrowe Park, where she carried out her duties, made that place, in the employers judgement, inappropriate for her supervised practice. She was told that an independent person would arrange for such practice. Mrs Mason indicated that she would undertake it: a deadline was set. The tribunal say that Arrowe Park, the object of Mrs Mason's distrust was rightly not considered a suitable venue. They further said that the resentment that had motivated her earlier tribunal application "burnt on". Arrowe Park was unsuitable as a place for her supervised practice.

What happened was that an unsuitable place was chosen for her retraining: unsuitable that is, in terms of its distance from where she was located, and by reason of the hospitals trusts' failure to compensate her properly or at all for her travelling expenses.

Accordingly the Industrial Tribunal came to the conclusion that having effectively said to her "You will either carry out your retraining at this unsuitable place, or you will leave" the employers unfairly dismissed her. But they concluded that she had not been discriminated against by reason of her race.

The allegation of discrimination is based on section 2 of the Race Relations Act 1976 which is victimisation. They deal with the question of victimisation in paragraph 11:

"11. We were unanimous that the respondents did not victimise the applicant for having earlier made a complaint against them. We were quite satisfied that in deciding that she must undergo supervised practice, they were acting only in the best interests of their patients and, indeed, in the applicant's own best interests. The previous proceedings had nothing to do with their decision as to her future. Further, we were unanimous that in deciding that she should do the supervised practice in Lancaster, and in refraining from offering to pay her expenses, they were not influenced by her previous complaint; Lancaster was the venue recommended by Mrs White; they had their reasons for their attitude of expenses which, while we adjudged them variously, we nonetheless did not find amounted to victimisation. They were only doing their honest best to place the applicant."

It appears to have been the tribunal's reasoning, as we understand it, that Arrowe Park was not a suitable location for the retraining by reason of what she had been saying about the people who worked there. If those were bona fide complaints of discrimination of the grounds of race they would constitute a protected act within the meaning section 2.

Secondly, we understand the tribunal to be reasoning as follows: the employers would not be subjecting her to any detriment in consequence of her doing a protected act if they had arranged for her retraining to take place at another suitable location.

Thirdly, the choice of hospital which they did select was not suitable.

Fourthly, logically it did not follow that she had been discriminated against or subjected to a detriment as a result of the allegations she had made, but rather that her employers had failed to provide her with a suitable location to carry out her retraining.

It seems to us that unless it could be said that once she had made allegations of race discrimination at Arrowe Park, she had effectively prevented the employers from choosing a location other than Arrowe Park for her retraining, the employers were entitled to choose another suitable location, without being guilty of unlawful conduct.

It seems to us most improbable that a suggestion could properly be made that because, and merely because she had made allegations, bona fide (we must assume), about the staff at Arrowe Park that prevented the employers from deciding on a suitable place for her to do her retraining.

We are of the view that the Industrial Tribunal had to ask themselves the questions which are posed in the decision in Aziz . We have looked at paragraph 11, we are satisfied that effectively the tribunal have directed their attention to the question of causation and detriment and we are not persuaded that it is arguable that they have gone wrong.

We regard this decision as being sufficiently satisfactory to stand. Criticism has been made of paragraph 11, which we fully understand. But it does seem to us that more is expected of the tribunal than can reasonably be provided by them in decisions of this kind. Although, we, for our part, would reckon that in every race discrimination case alleging victimisation, it would be preferable if Industrial Tribunals were to set out with clarity the provisions which they are considering and how they have arrived at their decision, we think that they have done sufficient in this case. We are not persuaded that there is an arguable point of law despite the able argument of Mr Cape to whom we are grateful.