MRS N BERRY v THE BETHLEM & MAUDSLEY NHS TRUST [1999] UKEAT 180_98_1509

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [1999] UKEAT 180_98_1509

Case No Appeal No. EAT/180/98

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS N BERRYAPPELLANT

THE BETHLEM & MAUDSLEY NHS TRUSTRESPONDENT

Before

Mr Justice Morison

Date 15 September 1999

[1]APPEARANCES For the Appellant MR S MUNASINGHE (of Counsel) Commission for Racial Equality Elliot House 10/12 Allington Street London SW1E 5EH For the Respondents MRS S MORRIS (Representative) Morris Lacey Management Consultants Ltd 27 The Green Ewell Epsom Surrey KT17 3JS MR JUSTICE MORISON : This is the second time that Mrs Berry's claim of unlawful race discrimination against the respondents has come before this court. This appeal relates to the Employment Tribunal decision promulgated on 19 th November 1997. The appellant, who is of Asian racial origin, is a well-qualified pharmacist. In May 1993 she applied for the post of Principal Pharmacist Clinical Services at the Bethlem Royal Hospital and the Maudsley Special Health Hospital, ["the respondents"] having seen the position advertised.

[2]Having requested an application form, the appellant completed it, setting out her qualifications. She also asked if she could pay a visit to the Hospital, since it was encouraging people who wished to do so to make visits prior to the short-listing operation. The completed application form was sent in on 17 th May 1993. Some time after the closure date for applications had passed, she visited the Hospital.

[3]Application forms were submitted by ten candidates. The responsibility for appointment lay with Mrs Edwards. She was not provided with the forms which showed the ethnic background of the applicants. Although some of the applicants had not used the official application form, Mrs Edwards did not consider this to be relevant. She drew a handwritten matrix which listed the ten applicants and gave marks for certain required criteria. Of the ten applicants the appellant was the only one who did not have a Post Graduate Clinical Qualification, which was mentioned on the advertisement as essential. From the matrix seven possibles were listed and three definite nos. After getting the opinion of another Principal Pharmacist, Ms Lockwood, the final shortlist for interview was refined to consist of five individuals, three Caucasians and two of Chinese origin. It was at that time that the appellant was excluded from the shortlist. One of the five finally short-listed withdrew before the final interview procedure.

[4]On discovering that she had not been short-listed the appellant rang the respondents. Mrs Edwards informed her that there had been insufficient information provided on her application form and that she had not met a lot of the criteria. On 3 rd August 1993 this was confirmed in writing. The written reasons for her not being short-listed were stated as follows:

"…there was insufficient information on your application form. (a) To allow me to complete a short-listing matrix for you based on the criteria listed in the personal specification. (b) for the degree of detail I would expect for a position as senior as this."

[5]The appellant submitted a race relations questionnaire under 64 of the Race Relations Act 1976. The appellant considered that she had been victimised against because of a previous complaint of race discrimination which she had lodged against previous employers of hers, the Ravensbourne Trust, which is within the same Regional Health Authority as the respondents. Mrs Edwards claimed that the reference in the questionnaire to the on-going claim for discrimination was the first time it had been brought to her attention.

[6]On 16 th August 1993 the Appellant filed an Originating Application claiming discrimination on the ground of victimisation. It was the appellant's belief that Mr Lea, who had been involved with investigating her claim of discrimination at the Ravensbourne Trust had made Mrs Edwards aware of her claim. The appellant claimed that on the occasion of her visit to the Hospital, Mrs Edwards mentioned Mr Lea, so the appellant assumed that Mrs Edwards was aware of her previous complaint and this had led to her not being short-listed.

[7]On 26 th March 1996, the appellant's complaint was dismissed by a Tribunal sitting at London South. They took the view that Mrs Edwards was unaware of the protected act and that on that ground she could not have been influenced by the previous proceedings. There could not, therefore, be a causal connection between the protected act and the unfavourable treatment.

[8]That decision was appealed, and in a decision dated 21 st November 1996, this Court remitted the case back to be re-heard before a differently constituted Tribunal. In remitting the case, four areas were highlighted which the Tribunal had failed to consider, and which this Court considered were fundamental to the fair hearing of the appellant's case. It was suggested that the Tribunal pay particular care to the following aspects of the claim:(1) consider the consistency in the application of the selection criteria, particularly whether there was a credible explanation for the appellant not being shortlisted;

(2) consider whether adverse inferences should be drawn from the answers given in the respondents' questionnaire, under section 65(2)(b) of the Race Relations Act and whether the evidence given at trial married with that given in response to the questionnaire;

(3) consider whether there is a conflict between what Mrs Edwards said in the letter of 3 rd August 1993 and the information set out in the handwritten matrix;

(4) consider whether there was any communication between Mrs Edwards and Mr Lea which was potentially adverse to the appellant.

[9]The appellant's claim was amended to include direct discrimination in addition to victimisation. The second tribunal hearing took place on 21 st July and 7 th October 1997 and a decision was promulgated on 19 th November 1997. It is from that decision that the appellant now appeals.

[10]Having briefly set out the background facts the Tribunal went on to find that the appellant was neither victimised against in terms of section 2(1)(a) of the Race Relations Act nor directly discriminated against on the ground of her race. On the issue of contact between Mrs Edwards and Mr Lea the Tribunal found that they had met when attending meetings, but those meetings were generally formal meetings for discussion and exchange of information on pharmaceutical developments and at no time during any of those meetings was the appellant discussed. The Tribunal went on to find that Mrs Edwards was not aware of the appellant's previous Tribunal proceedings, and had not been made aware of them by Mr Lea.

[11]Mr Munasinghe, whose arguments on behalf of the appellant were put with his usual skill, argued that the Tribunal failed to deal with his principal submissions, particularly the first three issues highlighted by this Court when it ordered the case to be remitted. By way of summary, Mrs Morris argued in response that the Tribunal had made clear findings dismissing the appellant's claims which could not be interfered with.

[12]Mr Munasinghe argued that the appellant had two central arguments in support of her case of discrimination, both of which were put to the Tribunal. She claimed that the criteria used by the respondents on the matrix were not applied uniformly and an investigation of each of the ten applicants would show that the appellant supplied comparable information to those eventually short-listed. The other principal submission was that given the information in her application form and the completion of the matrix, it was not credible for the respondents to argue that the reason she was not short-listed was lack of information.

[13]When this matter was heard before the first Tribunal, these issues raised by the appellant were not dealt with. So when her claim was remitted for re-hearing, both those issues were specifically highlighted as areas requiring careful consideration by the new Tribunal. Mr Munasinghe's complaint before us was that, again, the Tribunal hearing the case had failed to make findings of fact in relation those central issues. Although the Tribunal briefly set out some of his arguments, the judgment was silent on the crucial issues, specifically the first and third matters identified by this Court when the matter was first appealed.

[14]Furthermore, the Tribunal failed to consider the importance of the race relations questionnaire, which had been pinpointed by this Court at the previous hearing. At the previous appeal hearing it was indicated that the Tribunal may wish to consider the answers given in the questionnaire with care, and compare them with the respondents' other evidence given at the hearing, and in particular bear in mind the provisions of section 65(2)(b) of the Act when arriving at their decision. Mr Munasinghe argued that the Tribunal made no mention that they had considered the responses given in the questionnaire and whether or not it was reasonable to draw adverse inferences from the evidence.

[15]His final complaint was that a number of findings of fact made by the Tribunal were perverse and unsatisfactory given the weight of evidence on certain issues, particularly those relating to the appellant's level of experience.

[16]Having carefully considered both the arguments before us and the Tribunal decision we are in no doubt that many aspects of the Tribunal decision are unsatisfactory. Specifically, the decision does not set out in sufficient detail what was being argued on behalf of the appellant, and what the Tribunal's findings were on those issues. There are no findings in relation to issues one and three raised at the previous appeal hearing, namely, the appellant's arguments in relation to the application of the criteria stated in the matrix and whether there was conflict regarding the respondents' reasons for not short-listing the appellant.

[17]Where there is an allegation of discrimination based on comparators it is imperative for the Tribunal to deal with the matter properly and in sufficient detail, by making findings on each of the specific comparators raised by the applicant. It is insufficient for the Tribunal to say as it did in this case, "We have studied the application forms and it is clear the Applicant's form is lacking in detail." The Tribunal have misdirected themselves. The issue before them is whether the appellant has supplied insufficient information in comparison with the other shortlisted applicants.

[18]The one issue identified at the last appeal hearing which this Employment Tribunal has dealt with sufficiently is that issue relating to the complaint of victimisation. On the matter of communication between Mrs Edwards and Mr Lea, the Tribunal has come to clear findings of fact that Mrs Edwards was not aware of the appellant's previous Tribunal proceedings. This aspect of her complaint has been dealt with in adequate detail and the findings are clear. We cannot see any reason why that claim should be re-opened and accordingly the appellant's claim of victimisation remains dismissed.

[19]However, we find it disappointing that the Tribunal has failed to address the other matters which this court isolated as being fundamental to the fair hearing of the appellant's claim. We accept Mr Munasinghe's submissions that questions of consistency of application of the matrix criteria, the race relations questionnaire and the possibility of conflict between the matrix and what Mrs Edwards told the appellant have not been canvassed with the care and detail one would expect from a decision of a Tribunal. The appellant is entitled to know at the end of the day precisely why it is that her application has been rejected, if it has been, and to be satisfied and feel confident that the Tribunal have taken into account in arriving at their conclusion, all the relevant material considerations and arguments.

[20]It seems to us that the decision of the Tribunal in this case does not deal with the matters which were highlighted at the previous appeal hearing and to which we have referred in detail in this judgment. We do not consider that the appellant can reasonably be aware of precisely why it was that the Tribunal rejected her complaint, and accordingly we remit the matter of direct discrimination for reconsideration. We would again direct that the new Tribunal consider all the matters presented to them, and in relation to the appellant's claim in particular, we direct that they should pay careful attention to the first three of the matters which we identified at the previous appeal hearing. We must add that we are not indicating to the new Tribunal what inferences they should or should not draw and how they should decide the case.

[21]Accordingly, the appeal will be allowed in relation to the complaint of direct discrimination and the case will be remitted to a freshly constituted Employment Tribunal to hear and determine that complaint.