Nwokenagu v Midland Nursing Home & Ors [1998] UKEAT 364_98_0105

EAT
Nwokenagu v Midland Nursing Home & Ors
[1998] UKEAT 364_98_0105 · 1998-05-01
MR JUSTICE LINDSAY : We have before us as a preliminary hearing the appeal of Miss E Nwokenagu against Dr Barrie Williams, T/A Midland Nursing Home, and against Mr I. Morrall and Staff Nurse Rubenna Saeed.The decision against which appeal is made is dated 28 November 1997 and was by the Chairman alone. The decision was this:
"In exercise of the powers conferred upon me by Rule 11 (5) of the Rules of Procedure set out in the Schedule to the Industrial Tribunals Rules of Procedure 1993 I refuse the application for a Review by the applicant on the grounds that it has no reasonable prospect of success."
The only appeal open to Miss Nwokenagu, at this stage, is against the decision of the Chairman alone on 28 November 1997, whereby he refused a review of the earlier decision of 28 October. That earlier decision had been the result of a hearing on two days, 14 and 15 October 1997 and that earlier decision was promulgated on 28 October 1997.At that earlier hearing only one matter had been determined. The unanimous decision of the tribunal on that day was that the Applicant, Miss Nwokenagu, was not discriminated against on grounds of race. The case had been brought originally as a claim of race discrimination and as a claim for unfair dismissal and, as the Tribunal said, in its full reasons for the earlier decision:
"That part of the case relating to unfair dismissal stands stayed pursuant to an order of 26 June last, so that we are dealing only with a case of alleged racial discrimination."
The Tribunal at that earlier hearing had found Miss Nwokenagu to be a truthful witness. What they said in their paragraph 7 was:
"We have to say that we find the applicant's evidence to be persuasive. We think she is an honest and truthful lady."
The principal question was therefore, not whether she was rightly or wrongly dismissed, but whether racial discrimination was involved in her dismissal and the Tribunal recognised that in their paragraph 11 of that earlier decision. They said:
"The question for us in this case is whether the respondent by its agents, Miss Saeed or Mr Morrall or by Dr Williams himself discriminated against the applicant on racial grounds."
The position was that no racial discrimination was found. First of all, so far as concerns direct racial discrimination, at that earlier hearing (I am looking at our page 32) they held:
"There is in this case, so far as we can see, no direct evidence of any racial discrimination against the applicant."
And then they considered whether it was proper to draw an inference of racial discrimination, recognising that it is seldom the case that one finds clear, direct evidence of it because it is a matter which people quite often either do not admit to or take some steps to conceal. In their paragraph 12, on our page 32 they conclude:
"In the circumstances of this case, we do not feel that it is safe to draw any inferences or conclusions from the facts as we know them, as to the reason why Miss Saeed fell out with the applicant on 16 July, as to whether or not she was motivated by some racial reason, as to whether or not it is true, as the applicant alleged, that Miss Saeed wanted to work with someone of her own race, or with a white member of staff. We simply do not feel that we can draw that conclusion. We do not know what prompted the dispute between Miss Saeed and the applicant ..."
And they then go on. They also say in their paragraph 13:
"Similarly, we do not feel that it is safe to draw any inference of racial discrimination from what we know of Mr Morrall's treatment of the applicant."
After all, they had found that the establishment at which these various people worked was an establishment at which there was an harmonious mix of races. What they say in page 32:
"There is no suggestion either from the applicant or from any other quarter that there was not a harmonious mix, they were all good friends, worked together and she had no real complaint about the atmosphere where she worked."
Thus it was that the Industrial Tribunal concluded in their paragraph 15:
"... we have nevertheless to say that so far as a complaint of racial discrimination is concerned, we cannot uphold that complaint."
On 11 November 1997 Miss Nwokenagu put in some 11 close written pages in support of an application for a review of that decision; inter alia , she asked that the Industrial Tribunal should deal with all the points that had been raised at the hearing and she claimed that the decision which the Industrial Tribunal had come to was not clear. I am looking at our page 46 where Miss Nwokenagu says:
"I am sending this application to request the tribunal to mention all the points which were discussed at the tribunal on 14th and 15th October 1997 and what was decided about each point, to be written in clear statement ..."
And a little later she says:
"The content of the decision received is not clear to understand due to how it is stated. I need it to be clearly stated.
I request tribunal to review the content of this decision and to send to me the complete [version of] what my case contained and all which were really discussed at the hearing on 14th and 15th October."So that is the nub of her complaint as it could be today. However, we are unable to find that the decision of 28 October was unclear. The familiar test in this area is that proposed in Meek v City of Birmingham District Council [1987] IRLR 250 . Does the Applicant know why he or she has won or lost? Miss Nwokenagu plainly failed at that initial hearing because she failed to prove (and the onus was on her) any racial component in the way in which she was unfavourably treated. It is not enough to be unfavourably treated in order to sustain a case for racial discrimination. One has to show some nexus, some link, with race, and that component was not proved.So that for Miss Nwokenagu to complain that the decision was not clear does not take her any further because the decision does, in our judgment, fulfil the test which is required, namely, the Meek v City of Birmingham test . As to its failure to deal with every point that was raised, it is certainly no part of an Industrial Tribunal's decision to deal with every point that is raised or discussed before it. An Industrial Tribunal, including one composed of a Chairman alone, has to have some discretion as to what it or he deals with. Of course, if a Chairman fails to deal with a matter which is truly crucial, then his decision stands to be attacked as being inadequate, but we do not see that to be the case here.So that the position was then that the matter went forward to review. The Industrial Tribunal's powers to review are currently found in this context at rule 11 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 , Schedule 1. The rule provides that:(1) Subject to the provisions of this rule, a tribunal shall have power, on the application of a party or of its own motion, to review any decision on the grounds that -"And then the various grounds are specified. This, of course, was an application by the party, rather than by the tribunal of its own motion. The Regulations set out a number of grounds (a) - (e), of which the most commonly raised is (e) that the interests of justice require such a review. Sub-rule (5) says:
"(5) An application for the purposes of paragraph (1) may be refused by the President or by the chairman of the tribunal which decided the case or by a Regional Chairman if in his opinion it has no reasonable prospect of success."
I am indebted to the members sitting with me for their drawing attention to this form of words, which is in marked contrast to the form of words used in other forms of review. Thus, for example, when one is looking at the Rules of Procedure applicable to appeals against Improvement and Prohibition Notices, the review power which is in rule 11 applicable to that subject not only includes the ability of a Chairman to decline a review if, in his opinion, it has no reasonable prospect of success, but adds in that context "and he shall state the reasons for his opinion". And equally, moving on to page 170 in the Butterworth collation, in dealing with the case now of rules and procedures applicable to appeals against non-discrimination notes, again the applicable rule not only allows the President or a Regional Chairman to decline a review if it has no reasonable prospect of success, but again states "and he shall state the reasons for his opinion".So that the law in this area must be that where the legislature requires opinions to be stated for the turning-down of an application for a review it says so, as it does in those latter two cases. Coming back to the applicable rule 11 (5), there is no such addition. It suffices for the Chairman of the Tribunal who decided the case merely to state that in his opinion it has no prospect of success. It therefore makes it difficult for an applicant to light upon some error of law, but, doing the best we can with the material which Miss Nwokenagu has put in front of us, we are unable to see an error of law in the Chairman here concluding that her application for a review should be turned down on the grounds that it had no reasonable prospect of success. There is nothing that we have been able to find that suggests that the earlier Tribunal had been wrong in law in concluding that the necessary racial element, the necessary racial component, had not been proved to exist. It is very much a matter for the Industrial Tribunal, seeing and hearing the witnesses, to determine just what the evidence adds up to and we cannot say that the earlier Tribunal was wrong, in law, to conclude that that component had not been proved to have existed and, in turn, we find it impossible to say that the Chairman in the second matter, that is to say the decision of 28 November 1997, was wrong in law.Accordingly, the only matter which Miss Nwokenagu is, at this stage, able to raise by way of an appeal fails and we dismiss the matter even at this preliminary stage.