Awaekpo v St Mary's Hospital NHS Trust & Ors [1999] UKEAT 139_98_2201

EAT
Awaekpo v St Mary's Hospital NHS Trust & Ors
[1999] UKEAT 139_98_2201 · 1999-01-22
MR JUSTICE MORISON (PRESIDENT) : The purpose of the hearing today is to determine whether there is an arguable point of law raised in an appeal which Dr Grace Awaekpo wishes to make against a decision of an Industrial Tribunal which was sent to her on 10th November 1997. She had brought a complaint against St Mary's Hospital NHS Trust and six named individuals alleging against them racial discrimination. The tribunal rejected her complaint.The extensive hearing before the Industrial Tribunal occurred over a period of one year and four months and involved 31 hearing days of which 13, that is the first 13, were directed to the question as to what issues fell for determination. The Industrial Tribunal made interlocutory orders identifying the issues, and in certain respects, refusing to allow matters to proceed. The interlocutory decision was sent to the parties on 4th March 1997 and it preceded the recommencement of the proceedings on 7th April 1997. There were then 18 further days of hearing which took place following the interlocutory decision.The essence of her complaint about the Industrial Tribunal decision may be summarised in this way. Firstly, the Industrial Tribunal failed to stand back and look at all her complaints in the round seeking to identify whether there was an underlying persistent policy of discrimination against her; instead, she said, the Industrial Tribunal had taken the case on piecemeal basis, on an incident by incident basis without having regard to the global picture. Secondly, as a result of that failure, the tribunal failed to appreciate that throughout the latter part of her employment she had been denied promotion and other opportunities to which she was entitled and which had been given to white comparators. Thus, for example, although there was a regrading exercise, in her particular case, she was not regraded.She was not given a chance to act up in a more senior position which could have led to promotion and to increased pay. She was not selected for 'on call' duties or given the opportunity to perform them from 1989 to 1991; such duties were invariably given to her white colleagues.She complains about the way the employers dealt with her opportunities to go on courses to advance her career. She complains that the tribunal refused to allow her to advance a case that the way the courses were allocated to employees to enable them to advance their careers. The tribunal at the preliminary stage had directed, having regard to her evidence and the whole of the evidence on this topic, that it was so weak and unsatisfactory that no case of racial discrimination had been made out which required the employers to deal with. She referred to the way the appraisals were dealt with and that there was, so she said, a pattern or practice of what went on which was to deny her anything of benefit, however small.She further complains that she was not promoted as she should have been but rather the more senior posts were allocated to people who were less well-qualified that she was. She suggested that the tribunal did not understand the process of drawing inferences because they made statements in the decision to the effect that there was no evidence on which an inference could be drawn. She says that there was evidence which would have entitled the tribunal to draw an inference had they been willing to do so, and the fact that the tribunal said that there was no evidence demonstrated a lack of understanding of the true approach to a case of race discrimination.It was said that there had been some kind of discussion behind her back between Counsel for the employers and the Chairman of the tribunal. She relies on two specific matters to support this. In relation to one of them, it was to the effect that the tribunal appeared to be aware of facts which they could not have been aware of from reading the papers; and secondly, that she was given some papers by Counsel for the employer during the course of the hearing, Counsel explaining that the Chairman had asked him to hand them over. She said the conversation between the Chairman and Counsel was one to which she was not a party, and that showed that there was a risk of prejudice or bias.Finally, she draws attention to the finding by the tribunal in relation to issue 6, which is staff appraisals, that the comparator to whom she referred was Asian, she being of African ethnic origin, and the tribunal said this:
"The only relevant comparator is an Asian gentleman whose appraisal strengthens the Respondent's case that there was no racial discrimination in operation within the appraisal system."
What she says is the fact that an employer does not discriminate against somebody of Asian ethnic origin does not answer the question as to whether a person of African ethnic origin has been discriminated against. Accordingly, she says, that this is another indication that the Industrial Tribunal did not fully understand the nature of the discrimination case which was dealing with.She considered that the whole process in the Industrial Tribunal showed that the tribunal was biased in favour of the respondents, and that she was putting forward a case which every reasonable tribunal should have found proved.It seems to us, having considered this case with some care, that we should not allow the case to proceed any further because we are not persuaded that there is an arguable point of law.This was a difficult case for the Industrial Tribunal to manage. It is apparent that the first part of the hearing was devoted to the tribunal seeking to identify, as best as it could, precisely what the allegations were that were being made against the respondents. The respondents were entitled to know, in advance of their case, precisely what case they had to meet, so that they could obtain the necessary evidence to deal with those points, and so that they would not be wasting resources by dealing with points which the tribunal did not consider should be dealt with. Accordingly, that was a proper exercise of the tribunal's discretion to spend time seeking to identify the issues. Having done so, it is not in the least bit surprising that the tribunal's decision was structured on the basis that each and every allegation that she was making should be referred to in the decision and dealt with. That is the structure of the tribunal's decision.It seems to us, in accordance with a recent decision of the Court of Appeal, that it would be impossible for any Employment Appeal Tribunal to infer that merely because the tribunal did not say that they had had regard to the totality of the complaints in looking at each and every individual aspect of them, the tribunal had somehow fallen down in its duty. It would be impossible to conclude, we think, on the basis of the Court of Appeal's judgment, that the Industrial Tribunal here have not had in mind the possibility that there was in existence a pernicious practice of discrimination against her, as evidenced by the individual items with which they were dealing. In other words, by dealing with the specific incidents we are not prepared to infer that the Industrial Tribunal has failed to have regard to the totality of them in arriving at their determination.The second point that she makes falls very much into the same category. It seems to us that they were entitled to form a view as to whether she had been discriminated against by being denied what she describes as anything beneficial. They looked and were entitled to look at the opportunities for promotion and matters of the kind to which reference has been made. It seems to us wrong that merely because the tribunal have not referred to these as part of a piece, to conclude from that that the tribunal have in some way failed in their duty. We are not prepared to infer that in this case. Equally, the tribunal were entitled to conclude that the complaint, about appointments to senior and acting posts were out of time. It was her case to us that some people were appointed on 1st October 1993 which was within three months of the date of her IT1. That appears to contradict the finding at paragraph 8 in relation to issue 3 (on page 123 of our bundle). The position is that the fact that the people were appointed to act up on 1st October was not necessarily the date on which the act complained of took place, namely the decision by the employers not to appoint her to act up. It seems to us that there is no merit in that point.As to the general tone of the decision and their unwillingness to infer differential treatment on grounds of race. It seems to us unfair to criticise the tribunal's decision on this matter. When the tribunal find that there was no evidence of discrimination, they may be taken to be saying that there was no evidence from which they could infer that there was any race discrimination, particularly as they had expressly directed themselves to the decision of King v GB China Centre , where the question of drawing inferences is dealt with in full.In relation to the complaint that the Chairman and the barrister may have been having discussions. It is noteworthy that that was not mentioned in the affidavit which was required to be sworn by the appellant on this appeal. She had made certain complaints about the way the case had been handled by the Industrial Tribunal and was required to swear an affidavit, which she did. The affidavit is headed:
"IN THE MATTER OF APPLICATION TO COMPLAIN ABOUT THE CONDUCT OF THE HEARING BY THE INDUSTRIAL TRIBUNAL."
Nowhere in that document does she make any reference to the alleged contact between the barrister and the learned Chairman. I am not satisfied that she provided any satisfactory explanation as to why that contention had not been raised by her before. It seems to us that she was given her chance to make complaint about the way the tribunal dealt with her case, and that this is an additional point to which we should give no weight.On the question of comparators. Whilst we understand and accept that it is logically fallacious to conclude that because X has not discriminated against Y, an Asian, therefore, X will be unlikely to have discriminated against Z, an African, in this case the Industrial Tribunal have simply said that the relevant comparator, being an Asian gentleman, strengthens the respondents' case that there was no racial discrimination in operation. What can be said is that the employers at any rate were not discriminating against all people who were of a different colour than white. The word 'strengthen' shows that they were not making the connection of the sort about which legitimate complaint could be made.In those circumstances, neither on the general approach of the Industrial Tribunal, nor on the particular matters to which I have referred, are we satisfied that there is an arguable point of law. We have not dealt in this judgment and have not sought to deal with all the points which have been raised in the Notice of Appeal. It has to be said that the Notice of Appeal in this case, running to 20 pages, does not properly comply with the provisions of the Practice Direction. What is required is a short and succinct summary of the points of law which an appellant wishes to raise.The appellant is a professional person but does not have any particular knowledge of the law. We are prepared to accept the Notice of Appeal, albeit that it departs from the Practice Direction, but it will explain to her why it is that it would inappropriate to descend into detail and deal with each and every point made. As we explained to Dr Awaekpo before these proceedings commenced, our powers are limited to putting right points of law. We are satisfied that we have considered the arguments which she feels able to put forward under that hearing, but we have to say that they do not, in our judgment, amount to arguable points of law fit for hearing before a full tribunal. Therefore, as we say, the appeal will be dismissed.