Mensah v Grant & Anor [1999] UKEAT 938_98_2602

EAT
Mensah v Grant & Anor
[1999] UKEAT 938_98_2602 · 1999-01-01
MR JUSTICE CHARLES : The parties to this appeal are Mrs E.M. Mensah, who was the Applicant in the Industrial Tribunal and(1) Mrs Maria Grant,(2) Miss O'Hara,(3) Miss McMeehan and(4) Whittington Hospital NHS Trust, who were the Respondents in the Industrial Tribunal.Mrs Mensah appeals against a decision of the Industrial Tribunal London (North). That decision was made after a hearing on 19 May 1998 and the Extended Reasons of the Tribunal are dated 4 June 1998.The Industrial Tribunal dealt with three applications.The first is numbered 12805/96 and concerned an application for employment made by Mrs Mensah in November 1995 which was rejected on 1 December 1995 after she had been interviewed. Two of the Respondents, namely Miss O'Hara and Miss McMeehan took part in that interview.The second application is number 2201743/97 and is based on an application made by Mrs Mensah for an F Grade post in November 1996. Mrs Mensah was not short listed for that post.The third application is numbered 2202478/97 It concerns an application made by Mrs Mensah for a Grade D post. She was interviewed pursuant to that application but was not appointed.The Tribunal heard evidence from Miss O'Hara who was an interviewer for the post for which the Applicant applied in November 1995. That application was the subject of claim No.12805/96. The Tribunal did not hear from Mrs McMeehan.The decision not to short list in case number 2201743/97 was taken by a Ms Buckley. She gave evidence before the Tribunal.Ms Buckley was also on the interviewing panel for the Grade D post for which Mrs Mensah applied. It is this application which underlies case number 2202478/97.In all her applications Mrs Mensah asserted racial discrimination and victimisation pursuant to sections 1 and 2 of the Race Relations Act 1976 . In all the cases these allegations were rejected. Paragraphs 16 and 17 of the Extended Reasons are in the following terms:
"16 From the facts shown above there is nothing in the evidence of the Applicant to show that the reason why she was not chosen for any of these jobs was because of her race. The Applicant in evidence to us claims that the reason she was not selected even though she was well qualified was because of the earlier incident of malpractice that had taken place in 1978 and because she had lost her midwifery certificate and it was put on her records and referred to ever since that time.
17 The Respondents in their evidence had given an adequate explanation as to why the Applicant was not selected for the jobs. It is clear that the Respondents followed a proper method of selecting candidates for the jobs which were on offer and followed their proper procedures in accordance with their agreed process. They refused to short list the Applicant in the first application because in the opinion of Ms Buckley her application form did not show that she had satisfied the criteria to be short listed. In the other two jobs the Applicant in interview failed to satisfy the panel that she met the requirements for the post. We can draw no inferences from the facts that the reason why the Applicant was not selected was because of her race. For these reasons therefore these claims are dismissed."We pause to comment that the reference in paragraph 17 to the first application is to case number 2201743/97 rather than to case number 12805/96 (which was the first in time). This is apparent because it is in respect of case number 2201743/97 that Mrs Mensah was not short listed by Ms Buckley.This case comes before us on a preliminary hearing pursuant to the Employment Appeal Tribunal Guidance Notes (Preliminary Hearing/Direction) and under paragraph 14 of the Practice Direction (Employment Appeal Tribunal - Procedure) 1996 to determine whether the Notice of Appeal raises a reasonably arguable point of law.In her Notice of Appeal Mrs Mensah sets out her grounds of appeal as follows:
"There was procedural irregularity which amounted to an obstruction of justice.
The decision is perverse because of the evidence before IT. One respondent was not available to give evidence."These grounds were supported by further and lengthy particulars contained in a document dated 13 July 1998 and a lengthy affidavit dated 20 August 1998 sworn by Mrs Mensah.The procedural irregularity which is relied on by Mrs Mensah is that the Tribunal refused an application made by her for discovery of computer records held by the NHS Trust. As to perversity Mrs Mensah makes a number of points both in writing and orally. We do not propose in this judgment to deal specifically with each and every one of them. The Respondent who was not available to give evidence was Miss McMeehan.In her PHD form Mrs Mensah proposes the following amendment to her Notice of Appeal:
"To include misapplication of the law, Sex Discrimination Act 1975, Data Protection Act 1984, Breach of Contract.
Appeal against the decision of 19th May 1998 changing the earlier decision of 15/4/98."As to this proposed amendment relating to misapplication of the law, we can see no reasonably arguable case that these points should be added. The case below was not put on the Sex Discrimination Act, the Data Protection Act or Breach of Contract, albeit that they may have been mentioned by Mrs Mensah. So far as the reference to the Sex Discrimination Act 1975 is concerned, we understand that this relates to the fact that a male, and Mrs Mensah says inexperienced, nurse was appointed to a post for which she applied. So far as the references to the Data Protection Act and Breach of Contract are concerned we are puzzled as to what the bases for these claims would be and what the jurisdiction of the Tribunal in respect of them would be.In our judgment these additional claims which did not form part of the original applications before the Industrial Tribunal, or their decision-making process, should not be added at this stage.So far as the decision of 19 May 1998 is concerned, this is included in the bundle of documents before us and is a decision to correct a clerical mistake contained in the decision sent to the parties on 22 April 1998. It restores Miss O'Hara as a Respondent to the proceedings and sets out that the correct names of the Respondents are the four Respondents we have referred to earlier. This is a decision which assists Mrs Mensah in that it confirms that Miss O'Hara remains a Respondent and we do not see any basis upon which Mrs Mensah should be permitted to appeal against it.

Procedural Irregularity

As mentioned earlier this relates to a refusal of an application for discovery. At the hearing before us we permitted Mrs Mensah to show us computer print-outs which she said should have been disclosed to her. As we understood them these related to her comparatively recent medical records and not to the incident of malpractice referred to in paragraph 16 of the Extended Reasons of the Tribunal which had taken place in the late 1970s or to her medical records at that time. Mrs Mensah drew to our attention that the records showed that they had, at one time, been in the possession of Mrs Grant (the first named Respondent). We do not see how this advances her argument or demonstrates that the Tribunal erred in law in not ordering discovery of computer records held by the Whittington NHS Trust. As we understood her written and oral points, the records that Mrs Mensah was primarily seeking related to matters which took place in 1977 or 1978. This is because Mrs Mensah maintains that what happened in 1977 or 1978, and the fact that records of such matters have been kept, or are known to those that consider her job applications at the NHS Trust, have had the result that she has not obtained employment.The lack of discovery as to these matters could not have prejudiced Mrs Mensah because, as is apparent from paragraphs 2 and 11 of the Extended Reasons, the Tribunal accepted what she said about these matters. Paragraphs 2 and 11 are in the following terms:
"2 The background to the case is that the Applicant came here as a nurse in about 1970 and qualified as a midwife in 1971 and worked well at various hospitals including the West Middlesex. She was promoted to a sisters post and worked there until 1978. There appears to have been allegation of medical malpractice at that time and her certificate from the Central Board of Midwifery CBW was withdrawn for a time and at the same [time] the Applicant informed us that she was declared mentally sick. As a result she was not able to work. The Applicant claims these records were put on to a computer and as a result she has been unable to obtain further employment. There was no evidence from the Applicant that this happened because of her ethnic origin. However the Applicant claims that her problem stemmed from that time.
11 The Applicant claims that she has been unable to work since the incidents that took place in 1977 or 78 and that since then her name has been on the computer with her records and although she has had her midwife certificate returned to her the persons involved in interviewing her for these posts at the Whittington Hospital knew of past record and it was for this reason that she was not appointed to these posts. The Applicant maintains that she is well qualified and is able to carry out the many procedures that had been outlined to us and her work book shows that she had delivered many babies during her time in England. She refused to volunteer for a refresher course which had been suggested to her by the Respondent's witnesses as she maintained that she was a good worker and that she knew her job. She also objected to the fact that the Respondents had appointed to the post in 1995 (12805) the Dutch male midwife stating that the law should protect persons living in this country and this was part of the discrimination."It seems that Mrs Mensah does not, or may not, accept the conclusion of the Tribunal that what happened in 1977 or 1978 did not happen because of her ethnic origin. However, this is a finding of the Tribunal.It is clear that Mrs Mensah feels aggrieved as to what happened in 1977 or 1978 and has done so ever since it happened. She also says that more recently she has been working and that nothing has gone wrong which shows, so she says, that she is suitable for appointment by the Whittington Hospital NHS Trust. She denies that she was ever mentally sick and, as we understand it, has taken proceedings to challenge the conclusion that she was. It is apparent from the submissions made to us that the Tribunal in paragraphs 2 and 11 correctly identified that it is the incidents in 1977 or 1978 that underlie Mrs Mensah's conviction that she has been discriminated against and victimised.These incidents however do not establish the racial discrimination and victimisation under sections 1 and 2 of the Race Relations Act, which she seeks to rely on in the cases under appeal. Further, the Tribunal plainly had regard to this history and concluded on the facts that no inference of racial discrimination or victimisation was to be drawn.In our judgment the refusal to order discovery is not something that led to any unfairness, or something that can found a reasonably arguable point of law on this appeal.

Perversity

In our judgment the Extended Reasons demonstrate that the Tribunal approached their tasks correctly and had evidence upon which they could properly reach the findings that they did. In our judgment there is no reasonably arguable point of law that the Tribunal were perverse.

The fact that Mrs McMeehan did not give evidence

For present purposes we will accept that Mrs Mensah was surprised that Mrs McMeehan did not attend and that she would have liked to have asked her questions. However, as we have mentioned earlier, Miss O'Hara who interviewed Mrs Mensah with Miss McMeehan, did give evidence and in our judgment the fact that Miss McMeehan did not appear before the Tribunal or give any evidence did not, in the circumstances, result in any unfairness and does not found a reasonably arguable point of law.For the reasons given we dismiss this appeal.