MRS E MENSAH v WEST MIDDLESEX UNIVERSITY HOSPITAL NHS TRUST & OTHERS [1999] UKEAT 424_99_2307

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [1999] UKEAT 424_99_2307

Case No Appeal No. EAT/424/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS E MENSAHAPPELLANT

WEST MIDDLESEX UNIVERSITY HOSPITAL NHS TRUST & OTHERSRESPONDENT

Before

Mr Justice Charles Mr D J Hodgkins Cb Mrs T A Marsland

Date 23 July 1999

[1]APPEARANCES For the Appellant The Appellant in person For the Respondents MR JUSTICE CHARLES: This appeal comes before us today by way of Preliminary Hearing. The purpose of that hearing is for the Appellant to demonstrate that the appeal raises points of law that are reasonably arguable. The parties are Mrs Mensah and the West Middlesex University Hospital NHS Trust and some individuals. At the commencement of today's hearing, Mrs Mensah, who appears in person before us and appeared in person below, indicated that she had not been feeling well and was not sure that she would be able to do herself justice in presenting her appeal. A possibility was investigated between us and Mrs Mensah that the matter could be adjourned until a date next week when an appeal in which she is involved is due to be heard by me. On considering that possibility she felt that it would cause her further problems and, in our judgment, sensibly said that she would see how she got on in presenting her appeal. We record that with the assistance of her written skeleton, she made submissions to us and did not demonstrate during the hearing that she was having any difficulty caused by the illness she referred to earlier.

[2]The appeal is against a decision of the Employment Tribunal sitting at London North on 9 and 10 February 1999. The Extended Reasons for that decision were sent to the parties on 3 March 1999. The decision was a unanimous one and was as follows:

"(i) with the consent of the Applicant the Fourth Respondent, Ms R Chong, is dismissed as a respondent in these proceedings; (ii) the Applicant's complaint of direct racial discrimination fails; and (iii) the Applicant's complaint of racial discrimination by way of victimisation fails."

[3]Paragraph 2 of those Extended Reasons indicates that Mrs Mensah's complaint was more wide ranging and included a claim for unfair dismissal. But the Employment Tribunal decided at a Preliminary Hearing that it had no jurisdiction to hear that claim and the hearing before them was to determine Mrs Mensah's complaints of racial discrimination. It was apparent from the oral submissions made to us today that Mrs Mensah does not agree with the decision at that Preliminary Hearing..

[4]Mrs Mensah's grounds of appeal in her Notice of Appeal are as follows:

"(a) There was deliberate omissions and the decision was made in the presence of lies on oath evidence of conspiracy and misrepresentation as well as false accusations which were not investigated fully. (b) No reasonable Tribunal can come to this decision on the abundance of evidence before it. Misapplication of law and facts. (c) wrong to refuse to adjourn proceedings to enable me to compile and consolidate the evidence in my submission in written version."

[5]As we have said before us Mrs Mensah appeared in person, but also she helpfully supported her arguments by a written skeleton which was provided to us before the hearing. Mrs Mensah is well aware of the procedure and the purpose of the present hearing because this is not the first appeal she has brought before us.

[6]Her Skeleton Argument clearly sets out in numbered paragraphs the points upon which she relies and it reflects and adds to her Notice of Appeal. It is in the following terms:

"1) The decision of the employment tribunal was in breach of my right under British Law and in breach of my right under European Community Law. a) I did not have a fair hearing because my evidence were almost totally misinterpreted and misapplied while the respondents evidence and testimonial amid lies on oath were accepted. b) The evidence were not properly considered to extract the truth and the lies. c) Documents that would prove my version of facts were not produced even after an order from the Chairman and the proceeding continued to my detriment. d) There were evidence to prove race discrimination but these were ignored. e) There were numerous opinions to confirm a breach of contract but these were ignored as they do not feature in the decision. i) Ref Sandhu v (1) Department of Education and Science (2) London Borough of Hillingdon [1978] IRLR 209. ii) Birmingham City Council and Equal Opportunities Commission IAC 1155 House of Lords. f) There were enough evidence to prove that I was unfavourably treated in breach of the law which amounted to an omission and an abuse but they did not feature anywhere in the decision. i) Songrin v Haringey Health Authority [1992] IRLR 416 CA. ii) Barclays Bank v Kapur and Others [1991] ICR 208 House of Lords Lord Griffiths. iii) Hitchcock v Dinton Nursing Home IT Southampton 23/12/94 Ref 62238/93. iv) Burdett Coutts and Others v Hertfordshire County Council Queens Bench 1983. v) Rigby v Ferodo Ltd [1987] House of Lords. vi) Walker v Northumberland County Council [1995] I AU ER 737. vii) Ballantyn v Strathclyde Health Authority (unreported) EAT. viii) Secretary of State for Employment v Mann E A T/930/94 and EAT/54/95. ix) Simmenthol [1978] ECR 629 para 19. 2) No reasonable Tribunal would arrive at such a decision considering the substantial evidence adduced in my defence during the hearing and in the documentation before it. This breaches my civil and human right. 3) The ET failed to properly analyse the reasonableness of the decision to terminate my bank employment based on the other options opened to me if indeed my performance at the interview was deemed to be "poor"

. That decision in letter dated 29 th January 1996 breached my right under the Race Relations Law 1976 s.4(2); my right to work under the European Social Charter and Article 119 of the EC Law Directive 2 and 5. i) Medigard Services Ltd v Thame

[1994] IRLR 504

. ii) Emmett v Ministry for Social Welfare and the Attorney General

[1991] IRLR 381

. 4) Lying on oath should not have been brushed under the carpet by E T. Likewise the defamatory statements that were made by the respondents I "was dangerous" with no real proof except speculation based on hearsay evidence. This statement underpins the theory of conspiracy under s.33 of the Race Relations Act 1976 and it is a misapplication of fact by E T to be silent on it in the decision. This action by E T condones criminality and an omission to my detriment. Was that the basis of my "dismissal". Ref. Trapp v McKie [1979] IWLR 377 House of Lords. 5) It was a misdirection in refusing to adjourn the proceeding in order to give me adequate time to analyse the respondent documents and witness statements, which I had received out of date in complying with the order of E T, in order to enable me to give a comprehensive and chronological closing submission. 6) It was against my human right to be subjected to that amount of stress. Counsel later used my emotional upset, as he has always done to indicate whether it was correct to employ someone in such a situation. This confirms the existence of the lingering past history from the Royal Berkshire Hospital. This makes me wonder again and again. Is there no differentiation in Britain of emotional distress and aggression? 7) I have been wrongly accused, discriminated against and victimised in breach of the Race Relations Act 1976, the European Community Law and Social Charter. 8) I honourably request that the above given grounds, would give enough cause to uphold my appeal application and so remit the complaint to another constituted tribunal to consider what remedy is to be ordered."

[7]I say at this stage, that we have considered that Skeleton Argument, the Notice of Appeal and the documents before us and Mrs Mensah's oral submissions before us, and although we accept that Mrs Mensah maintains vigorously that(a) conclusions of fact reached by the Employment Tribunal, and

(b) assertions made against her by her employers relating to her competence, are ill-founded, we have been unable to identify any points of law that are raised on this appeal that are reasonably arguable. It is therefore our decision that this appeal is dismissed and I shall now expand on our reasons for that.

[8]As appears from her Notice of Appeal and Skeleton Argument, and as I have just mentioned, the main thrust of Mrs Mensah's appeal is that there was more than sufficient evidence before the Employment Tribunal to found her claims and that before the Employment Tribunal witnesses on behalf of the Respondents were not telling the truth. This is the essential basis of points 1(a) (b) (d) and (f) and 2 in her Skeleton Argument. The assertion in paragraph 1(a) that there was a lack of fairness is not a free-standing point, but is based on her complaint that the Employment Tribunal did not accept her evidence and complaints. Her position is that she produced an abundance of evidence and her view of that evidence is that it was entirely convincing.

[9]However, the statutory fact finding body is the Employment Tribunal and in our judgment points 1(a) (b) (d) and (f) and 2 are assertions which, on a proper analysis amount to points that the Employment Tribunal made incorrect findings of fact and therefore none of these points raise any points of law that are reasonably arguable.

[10]Point 3 in Mrs Mensah's Skeleton is directed to the Employment Tribunal's consideration of the reasons given by the Respondents to end her "bank employment", or her engagement on the Bank of Midwives used by the Respondents. In view of the decision at the Preliminary Hearing this fell to be considered by the Employment Tribunal in respect of the decision under appeal, and thus in the context of her claim for discrimination and not in the context of any claim for unfair dismissal. This assessment of the reasons given by the Respondents for their decision not to employ Mrs Mensah on a full-time basis (which were essentially the same as their reasons for no longer engaging her on the Bank of Midwives) in the context of a claim of race discrimination, is very much one of fact for the Employment Tribunal. In our judgment the Extended Reasons show that the Employment Tribunal approached this assessment in the correct way and in our judgment this point, that is point 3 in the Skeleton Argument, does not raise any point of law that is reasonably arguable.

[11]Point 1(e), as we understand it, is to a large extent directed to Mrs Mensah's breach of contract claim, or her claim for unfair dismissal, which were dismissed at an earlier stage. It also raises points as to the reasons given by the Respondent employers for not engaging Mrs Mensah on a full-time basis and for dispensing with her services as a Bank Midwife. Again, in respect of this point, it is in our judgment one which is directed to the fact finding exercise and we can discern no error in approach and thus any error of law by the Employment Tribunal. In our judgment this point, notwithstanding the reference to authorities made by Mrs Mensah, raises no reasonably arguable point of law.

[12]Point 1(c) relates to an assertion that documents were not produced. Today Mrs Mensah explained to us that the document referred to was a document which was presented to her, as we understood it, when she was engaged as a Bank Midwife. Her contention is that she should never have been so engaged and that she should have been engaged on a full-time basis. In that respect she referred to section 218 of the Employment Rights Act. She also told us that she had been employed fairly consistently over the years but in support of that, referred to documents showing that the last baby that she had delivered was in 1992, albeit as we understood her, she said that she remained working and we accept that she could be working without necessarily delivering babies. However,(a) we do not understand how section 218 would be applied, and

(b) her case was that she was engaged as a Bank Midwife, not that she was employed on a full-time basis. Indeed, her very complaint is that she should not have been so engaged.

[13]She refers to an order for production of the document we have referred to, which she says was made during the course of the hearing. Then she says what happened was that on the next day the Respondents arrived saying they could not find the document. If a document cannot be found, it cannot be found. Mrs Mensah is doubtful as to the truth of the assertion that the document cannot be found. Indeed, I think she goes further and says that her position is that she does not accept that the document could not be found. However, again, that was a matter for the Employment Tribunal in the conduct of their fact finding exercise and we have concluded that no reasonably arguable point of law is raised by point 1(c).

[14]I have now dealt with the arguments set out in the Skeleton Argument in the light of the oral submissions made to us. The additional point raised in the Notice of Appeal relates to the refusal of an adjournment. That application and refusal are dealt with in paragraphs 4 and 5 of the Extended Reasons. In our judgment, those paragraphs and the refusal recorded therein to allow an adjournment, do not give rise to any point that can be said to constitute an error of law by the Employment Tribunal that is reasonably arguable. This issue is a matter for the Employment Tribunal in the exercise of their discretion in the conduct of the hearing.

[15]Finally, we would mention, although this was not a point raised in argument, or in Mrs Mensah's Notice of Appeal, that the recent decision of the House of Lords in the Nagarajan case does not, on the facts of this case, raise any points of law that would be reasonably arguable, even if, and I repeat, even if it was open to Mrs Mensah to base arguments on that recent decision of the House of Lords, having regard to the fact that the Employment Tribunal decided the case before the House of Lords decided the Nagarajan case.

[16]For the reasons we have given, we have concluded that this appeal raises no points of law that are reasonably arguable and it is therefore dismissed.

[17]Mrs Mensah has asked for leave to appeal. In our judgment this is not a case in which we should give leave to appeal. We are quite clear that this appeal raises no reasonably or properly arguable point of law and the consequence of that is that she will have to go the Court of Appeal to seek leave if she wants to pursue the matter.