Mensah v Whittington Hospital NHS Trust & Ors [1997] UKEAT 831_96_1911

EAT
Mensah v Whittington Hospital NHS Trust & Ors
[1997] UKEAT 831_96_1911 · 1997-11-19
MR JUSTICE LINDSAY : We have before us an amended Notice of Appeal by Mrs E. Mensah in the case Mrs E Mensah against Whittington Hospital National Health Service Trust and Others. Mrs Mensah has appeared today in person and the Trust appeared by Ms Omambala.It is necessary, in order to understand the case, to have some grasp of the procedural background to it and that begins, for immediate purposes, with Mrs Mensah's IT form of Originating Application on 23 February 1996. She claims in that unlawful refusal of employment under the Race Relations Act 1976 , Section 1(1)(b), Section 2(1), Section 4(1)(c), Section 31 and Section 33(1). At that time the Originating Application was against Mrs Marie Grant and Miss O'Hara. I think it says, in fact, "Miss O'Hara & Co". At that point, at all events, the Trust itself was not a party.The position complained about was that Mrs Mensah had applied for the job of a staff midwife E Grade and she had been discriminated against "whenever I applied for a job". She said that she re-applied again in November 1995 and was turned down. The box 10 which says "If your complaint is not about dismissal, please give the date when the action you are complaining about took place" is completed by her with the single date, "2nd December 1995" which we apprehend is the date when the turning down of her application in November 1995 got through to her.That was the IT1 application.

(x) :-

"On the 18th November 1995 the Applicant applied for the post of E Grade staff midwife with the First Respondent. She was shortlisted and interviewed on the 30th November 1995. She was not appointed.
Subsequent to her non appointment, the Applicant was offered a debriefing interview but she declined to take up the First Respondent's offer. The Applicant wrote a letter to the First Respondent's Chief Executive on the 30th October 1995 enquiring as to why she had not been appointed to a post in June 1992. A full written reply setting out the reasons for her non appointment was sent to her on the 24th November 1995. The reasons given were those recited at paragraph 8(iv) herein.If and in so far as the Applicant relies on incidents alleged to have occurred in June 1992, 1994 and August 1995, it is denied that the Tribunal has jurisdiction to hear those allegations by virtue of the fact that the Applicant's application was lodged out of time, and the Applicant made no complaint of race discrimination until her letter of 26th February 1996."So the position was that what one might call a "time-bar point", the point that Mrs Mensah was barred by a lapse of time from complaining, was taken from the very start on the part of the Respondents. The Notice of Appearance, in fact, although the IT1 seems to have been addressed only to individuals, was a response on behalf of the Whittington Hospital NHS Trust.On 20 June 1996 there was a one-day hearing before the Industrial Tribunal on a preliminary point and on 4 July 1996 the decision of the Industrial Tribunal, which was under the chairmanship of Mrs M.H. Don and had as members Mr B. Head and Dr O.Robinson, was promulgated to those interested and the unanimous decision of the Tribunal was this:
"(i) we only have jurisdiction to hear the application that the Applicant was racially discriminated against in respect of her application for employment which was rejected on 1 December 1995;
(ii) we allowed an amendment to the Originating Application to include the name of the third Respondent as Miss McMeehan and the name of the fourth Respondent as Whittington Hospital NHS Trust;(iii) we find that other acts of racial discrimination relied upon by the Applicant are out of time and it is not just and equitable to extend the time limit"And extended reasons were given for that conclusion.On 9 July Mrs Mensah asked for a review of the decision of 4 July. On 17 July the Chairman refused that review. On 30 July 1996 there was a Notice of Appeal by Mrs Mensah and on 17 March 1997 the matter came before His Honour Judge Peter Clark, Mr Lambert, and Mrs Rubin in the EAT by way of a preliminary hearing. It was ruled that the matter should go to a full hearing. It was also ruled that an amended Notice of Appeal should be lodged within 14 days. There were provisions for Skeletons and so on and the substantive Industrial Tribunal hearing was postponed so that this appeal could be heard first.Then, although it is undated (it is fairly recent) there was, indeed, a document describing amended grounds of appeal from Mrs Mensah. It raises three grounds of appeal. We emphasise that we are not concerned with the substantive question which is going forward for hearing, namely whether or not Mrs Mensah was racially discriminated against in respect of her application for employment which had been rejected on 1 December 1995. Nothing we say in any way touches that subject. It has not been raised before us. Mrs Mensah is fully able to develop that point when it comes on before the Industrial Tribunal, as fully as she chooses, no doubt, under the directions of the Chairman.So we look, therefore, simply at the grounds of appeal in Mrs Mensah's amended grounds of appeal and on the first of the points we make an assumption in her favour. The first of her points is that the Industrial Tribunal at the hearing on 20 June 1996 erred in law in considering the question of whether the Appellant's claim was in time, on the ground that it was inappropriate to do so at the preliminary hearing.We are content to assume that that was, indeed, a point that was raised by Mrs Mensah at the time. It might have been contested that that was not the case. Indeed, we think it would have been, but we are content to go forward on the assumption that the question was indeed raised.The Respondent first relies, in answer to Mrs Mensah's point, on Rule 6(1) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 that says:
"A tribunal may at any time before the hearing of an originating application, on the application of a party made by notice to the Secretary or of its own motion, determine any issue relating to the entitlement of any party to bring or contest the proceedings to which the originating application relates."
And then there is sub-section (2) which is procedural.So there is no doubt, in our view, that the Industrial Tribunal had jurisdiction to rule on the question that was posed for it at the preliminary hearing. It is quite often a very convenient course to take to find out just what are the issues that are going to need to be litigated. Here, the time-bar had been taken from the outset in the IT3; everyone knew the point was there to be taken and was taken.It would be quite unreasonable for the parties to have to be obliged to spend time and money investigating earlier events than those relating to the turning-down in November and December 1995 only to find that at the substantive hearing itself the time-bar point was successful and all that time and money investigating those earlier issues had been wasted. Far better, one might think, to find out in advance just what the real issues were to be.An unusual feature of the appeal before us is that both Mrs Mensah and Ms Omambala have relied on the same case, Lindsay v Ironsides Ray & Vials [1994] ICR 384, in this area. At page 392 C, numbered paragraph 3, the Employment Appeal Tribunal there says:
"(3) There may be some cases in which it is appropriate at a preliminary hearing to make a make a ruling on the question whether acts complained of as racial discrimination are out of time. Such a course will be appropriate where a ruling at that stage will enable the respondent to know the substantive case against it and where such a ruling will shorten the proceedings overall."
And then there is a reference to a case, Catering & Allied Services (London) Ltd v Howell (unreported), 30 July 1993 and the conclusion of the passage is that:
"In that case there were strong grounds for holding that the respondent company was entitled to know what the substantive issues were and for shortening the overall proceedings by identifying substantive issues before the full hearing."
That is a passage which Ms Omambala adopts on behalf of the Respondents.The IT1 that Mrs Mensah lodged in February 1996 purports to go right back to events in June 1992 and plainly it was appropriate to find which events could, indeed, lead to awards and be usefully contested and which others may have fallen out by way of time-bar. We do not see that there is any error of law in the Tribunal here determining that it was appropriate at the hearing before them to rule on the subject as they did. This first ground of Mrs Mensah's therefore fails.The second ground is not unrelated. It begins with the same words:
"The Industrial Tribunal at the hearing on the 20th of June 1996 erred in law in considering the question of whether the appellant's claim was in time since:"
And it continues:
"(b) the claim was clearly in time given the date of the act complained about is stated in the IT1 as 2nd December 1995 and the IT1 was received by the Industrial Tribunal on 28th February 1996."
The 2nd December 1995 was the date filled-in in box 10 of Mrs Mensah's IT1 as the date when the action she was complaining of took place.That is the second ground.Plainly the court has to look beyond the complainant's form of complaint. It must look to see whether in this particular instance section 68(1) is satisfied. It cannot just assume that the complainant has got it right and still less can it simply assume that the complainant has got it right when the Respondent has itself raised the time-bar point from the outset. For example, if box 12, the heading of which is "Please give details of your complaint" in some other case had mentioned only dates and events in, let us say 1994, it would hardly avail an Applicant with such a box 12 to be able to say, "Ah, but in box 10 I had specified a date of only two months ago". One has, in other words, to look beyond the sheer form of the complaint and to look, to some extent, at the substance of the complaint".In the Lindsay case, unlike ours, the Applicant had not specified a single date. In that case what was said was that the complaint was on-going over the date 23 January 1991 and that was taken by the Tribunal, in that Lindsay case, to mean discrimination over a period, both before and after the specified date of 23 January 1991. In the Lindsay case, in relation to Miss Lindsay's complaint that there had been continuing discrimination against her and that her complaint was of continuing discrimination, it has to be remembered that the nature of her complaint had the characteristic of being capable of being in a continuing form. She was employed by the Respondent from 10 October 1988. She had, in June 1989, had her request for financial assistance turned down. In October 1990 a funding of a revision course was refused to her. In January 1991 she was told that her Articles would be terminated. She was refused funding in November 1990. She was refused funding in January 1991 and in January 1991 her employment was terminated and all that was in the course of one continuing employment. On the particular facts of that case the EAT were thus able to take the view that it would be better that matters were left over to a subsequent interlocutory hearing. What they held at page 392 between B and C, or beginning perhaps better at B:
"It was neither necessary nor appropriate on the preliminary hearing in this case for the industrial tribunal to inquire further into the matter: for example, by inquiring whether there were acts complained of at an earlier date or whether any of the acts extended over a period and whether it was just and equitable, in all the circumstances of the case, to consider any such complaints which were out of time. Those were all matters more appropriately left either to a subsequent interlocutory hearing, such as a request for particulars or for discovery, or to the hearing of the complaint when the merits of the matter would be fully investigated. The tribunal erred in law in inquiring into the complaint in detail and deciding that the whole matter was out of time."
The Lindsay case is not an authority that no interlocutory hearing can properly go into subjects related to time-bars. Indeed, the Lindsay case contemplated that there may, in that passage that I have just read, be a subsequent interlocutory hearing on that very point and, moreover, in the passage that I earlier read, it acknowledged, at page 392, paragraph (3), that there may be cases where that would be appropriate. There is nothing about the Lindsay case which bars an Industrial Tribunal from looking into time bar points when they are duly raised and here they were duly raised. They were taken by the Respondent at the outset.The date in box 10, "2 December 1995", plainly related only to the turning-down of Mrs Mensah's application in November 1995, as notified to her in December 1995. It was highly convenient and quite appropriate to obtain, at the earliest stage, a ruling on whether complaints of matters in June 1992, in 1994 and in August 1995 could be, and should be, investigated because if they need not be investigated then the costs of the parties on both sides and the time taken up with the case would be shortened. It seems to us that there can be no complaint that that was the course which the Industrial Tribunal preferred. Certainly there is here no complaint which amounts to any error in law and that ground therefore fails.The third of Mrs Mensah's grounds is that, in any event, the Industrial Tribunal erred in finding that the matters complained of were not a continuous act for the purposes of section 68(7)(b) of the Race Relations Act 1976 .The line between separate acts of discrimination and continuing acts will not always be easy to draw. Even when they are done in the course of one continuing employment they can be either examples of separate specific acts or of some form of continuous discrimination. Mrs Mensah has drawn our attention to the case of Owusu v London Fire & Civil Defence Authority [1995] IRLR 574. It is necessary to quote some of the passages from this decision, which is a decision of the Employment Appeal Tribunal, Mummery J, sitting with Mrs Boyle and Mr Phipps. Paragraph 15 of the decision on page 576 reads as follows:
"The primary submission made by Mr Kibling is that the tribunal misdirected themselves in law in failing to regard as continuing acts the failure to regrade from MG12 to MG11 and failure to give an opportunity to act up to MG11 when such opportunities arose. He complains that the tribunal erred in law in treating those as one-off acts and not as continuing acts."
Then the other side of the coin was presented by Mr Stewart. At paragraph 18 it says:
"Mr Stewart repeated in essence the submissions he made on this point to the industrial tribunal. In the course of his arguments he made many propositions on which there is no dispute. It comes in the end to a short issue between the parties as to the application of the principles relating to one-off acts and continuing acts to the facts of this case. What he says is that the complaint of failure to regrade and failure to be given an opportunity to act up are no different than the specific instances stated in relation to the complaints of failure to promote, shortlist and to appoint. They are specific one-off instances, not continuing acts. They are out of time. The tribunal's decision was correct."
So that is Mr Stewart's argument.Then the EAT continues:
"We agree with him to this extent: that if Mr Kibling had unwisely persisted in his complaints on this part of the case about failure to promote and short-list, those are undoubtedly specific instances, all of which occurred outside the three-month period."
Pausing there, it is interesting therefore to note that, notwithstanding that the EAT were dealing with a case where there was one continuing employment, nonetheless complaint about failure to promote and shortlist were "undoubtedly specific instances all of which occurred outside the three month period".Then in paragraph 19, the Tribunal continued:
"We do, however, agree with Mr Kibling that in this case the tribunal erred in law in failing to treat the acts complained of on regrading and failure to give the opportunity to act up as continuing acts. We emphasise that all these matters are matters of allegation only. Nothing has been proved. But in our view the allegations amount to a prima facie case that there was a continuing act. The continuing act was in the form of maintaining a practice which, when followed or applied, excluded Mr Owusu from regrading or opportunities to act-up."
If failure to promote, shortlist and appoint can, even during one continuous employment, be "undoubtedly specific instances", then a fortiori, one would think, so could turnings-down of a prospective employee be, as was what happened to Mrs Mensah, because there there is not the nexus of there being one continuous employment. The Owusu case draws attention to the fact that a practice or policy can be such as to be a continuing discrimination, and that makes perfect sense, of course, where there is continuing employment. But after each occasion on which Mrs Mensah was turned down, would there be any need for the Trust to have a practice or a policy in respect of turning her down? There is no indication that they had any notion that she would even apply again, let alone that she would apply again in circumstances in which they would feel it necessary to turn her down as a matter of practice or policy. But that consideration apart, one has to recognise that the line is never going to be easy to draw, it is going to be very much a line that has to be drawn on the facts of each case by reference to those facts.We would not, I think, be content to draw a distinction, which does seem to have been touched on in the Industrial Tribunal, between the turning-down of an Applicant and regarding that as an act and an omission to employ a person, which would be regarded as an omission. That seems to us far too artificial a distinction to be drawn in this area of the law. But the Industrial Tribunal did have the facts explained to them and heard argument on them. It is not enough for Mrs Mensah to say as she does "My name is on the Trust's computer" or "My name is in their records". That does not prove a continuous policy or practice of discrimination. Even had it been proved below (as to which there is no mention whatsoever) it would not, of itself indicate some continuous practice or policy of discrimination or prejudice. One would need to go the extra step of showing that not only was Mrs Mensah's name on the records or on the computer but that it was put there for some discriminatory purpose, that there was some note or record that suggested that, as a matter of discrimination, she should be declined or have her applications made less easy to succeed in the future. That is evidence which there is no clue that the Industrial Tribunal ever had presented to it.Perhaps more generously than we should have done, we have heard Mrs Mensah at length and she has drawn our attention to a letter of 16 April 1992. One has to note how old the date is. The Whittington Hospital then wrote to her, saying among other things:
"I see from our records that one of our senior midwives spoke to you last September advising you that you needed a statutory midwifery refresher course in order to practice."
Whether that was right or wrong the mere fact that her name existed amongst the hospital's records and that the hospital records indicated that a senior midwife had spoken to her in that behalf, is very far from anything indicative of a continuous policy of discrimination. Equally, Mrs Mensah drew our attention to a more recent letter. That was of 24 November 1995, from the hospital to her, where the letter says:
"You applied for a staff midwife post in the Maternity Department of the Whittington Hospital in April 1992. You were interviewed on 10 June following which you were informed that your application for the post had not been successful."
Mrs Mensah says "Why would they keep a record if it was not to discriminate against me". But that, I am afraid, is hardly evidence of anything except, perhaps, paranoia. The letters do not prove, even had they been brought to the attention of the Industrial Tribunal (as to which we say nothing) that there was anything that could be regarded as a policy or practice of discrimination such as to make earlier events such that they could properly be examined at the substantive hearing which will shortly now proceed.The Industrial Tribunal seems to have been given no facts from which it could have held that each separate earlier turning-down was not a discrete act but was rather part of a continuous process of discrimination or policy of discrimination. This ground we see to fail.Accordingly, having dealt with each separate ground, we must dismiss Mrs Mensah's appeal, but we should say this. As her last point Mrs Mensah indicated that Mrs Don, who had been the Chairman of the Industrial Tribunal under appeal, had earlier been a Chairman on 30 November 1993 of an Industrial Tribunal which had ruled that another of Mrs Mensah's applications was out of time and that that Tribunal therefore did not have jurisdiction to hear that other application. Mrs Mensah tells me that later on that decision was overturned and it was shown, she says, that Mrs Don and the two members then with her, Mr Goldwater and Mrs Pugsley, had got that wrong. But one cannot assume simply because a Chairman sitting with two members had got one matter wrong that she necessarily gets all later decisions wrong, especially when sitting with other members. I am not sure that that was a point that Mrs Mensah was making but she did say that, on reflection, she was unhappy having had Mrs Don as the chair of the Industrial Tribunal under appeal. However, that is a point that can only be taken before the case begins or as it begins, rather than after the result has gone against one. One cannot have an action replay (so to speak) on any such ground.Accordingly, having considered each of the grounds in Mrs Mensah's amended Notice of Appeal we dismiss her appeal.