DR J M NIRMAL v NORTH TEES & HARTLEPOOL NHS TRUST [2000] UKEAT 379_00_1306

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 379_00_1306Case No Appeal No. EAT/379/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
DR J M NIRMALAPPELLANTNORTH TEES & HARTLEPOOL NHS TRUSTRESPONDENT
Before
Mr Recorder Brian LangstaffDate 13 June 2000
[1]APPEARANCES For the Appellant MR S MUNASINGHE (of Counsel) Commission for Racial Equality Maybrook House (5th Floor) 40 Blackfriars Street Manchester M3 2EG MR RECORDER LANGSTAFF QC : On 9th February 2000 the Newcastle-upon-Tyne Employment Tribunal rejected a claim by the appellant, Dr Jasumati Nirmal, that she had been discriminated against on the grounds of her race. The Employment Tribunal had deliberated for one day, having earlier heard the evidence over the course of a day and had the benefit of extensive written submissions from both parties. Indeed, Mr Munasinghe, who has appeared for the appellant today, tells us that his skeleton argument to us is in many ways similar to the arguments which he addressed as his closing submissions to the Employment Tribunal.[2]The facts I will state shortly, for amongst other reasons, the Employment Tribunal decision sets out the facts in some detail. Dr Nirmal had been employed as a consultant paediatrician in the North Tees & Hartlepool NHS Trust for several years. She applied in 1998 for the award of discretionary points, which might be awarded to consultants in replacement of the previous scheme for Grade C awards. There was a pool of applicants. She was not selected for the award of discretionary points. If she had been, that would have helped augment her salary. In her complaint to the Employment Tribunal that her race was the reason for her not being awarded a discretionary point or two or three, she compared her case with two others and sought to compare her case with a third, who were of white Caucasian origin, who had been awarded such discretionary points. She made out, it appears to us, having seen the evidence as reviewed by the Employment Tribunal, a powerful case that she had been treated less favourably than those of a different racial origin. In particular, the scheme under which she applied was in operation for the first year. The reason for its introduction was that it had been felt that the previous system for award of salary bonuses for performance had been so subjective that in the North Tees & Hartlepool NHS Trust it had disadvantaged consultants who were from the ethnic minority communities.[3]Accordingly, it was, one might have thought, incumbent upon the employer to set out criteria against which any award might be objectively judged and to that end it appears an application and a procedure by which that application form was to be considered, was established much in line, we gather, with guidance which emanated from the NHS Executive. It is difficult to resist the conclusion that the criteria that were set out were largely ignored. One of the purposes of setting out criteria is to avoid the impact that personal subjective knowledge may have which either consciously or subconsciously may discriminate against others on the grounds of their race or, as it may be, their gender. Of the two candidates with whom Dr Nirmal thought to compare herself, one was not of the required years of service. One might have expected, therefore, in any scheme in which criteria were objectively based, that she would have been excluded from consideration at all. The second had not completed an evaluation form and on that basis too one might have expected any exclusionary process, properly applied, to have excluded her. The Employment Tribunal commented that the failure to complete a formal application was a principled approach by the consultant as though it were a plus point for her, when in fact it should have resulted in her application, one might have thought, being rejected in limine. It was not made clear to the appellant which criteria in particular would be applied and which not.[4]There was a pool which consisted of approximately 50/50 split as between those of white Caucasian origin and those from minority-ethnic communities. Of those, only one non-white Caucasian was selected for the award of discretionary points.[5]There was an appeal procedure. The problem with the appeal procedure is that it would, inevitably, look at the situation of those who had not been awarded points first time round, and the ability to award points was necessarily financially limited. Unless, therefore, the appeal committee could reallocate points and effectively go through the process again, the decision by the first committee would necessarily have an influence. It is to be noted that the decision of the appeal committee, without giving any specifics in any document which we have seen, was to the effect that there were flaws in the procedure of the original discretionary points committee. This made it necessary for the appeal committee to review the position of the disappointed applicants, most of whom, as will be apparent, were from minority ethnic backgrounds.[6]The Employment Tribunal were hampered further by the fact that, contrary to guidance given by the CRE, the notes to show the application of criteria on an objective basis and to explain the reasons for the selection and award of one person rather than another, had gone missing and there were no notes to show how individuals were selected, how the points were apportioned or what, in fact, the basis for the appeal decision was.[7]Against that background it may be said that it is difficult to think of a more cack-handed approach to the award of disciplinary points and one more inclined to pose rather than to answer the problems which had earlier been identified, that the system was producing racial inequality. This, it may be said, was compounded by the way in which the employers answered the questionnaire under s.65 of the Act and by their failure to recognise, until some stage during the proceedings, that one of the comparators was not in fact qualified for an award.[8]The Employment Tribunal have demonstrated to us in their decision that they were aware of these defects in procedure. The decision runs to some 14 pages and although Mr Munasinghe has criticised it before us for failing to pay any sufficient or proper account to statute, in fact, the tribunal at paragraph 12 of its extended reasons sets out the appropriate sections of statute in full.[9]Although Mr Munasinghe describes the practice of the points committee as a policy to outcast the ethnic minority consultants, and although it must be apparent why Dr Nirmal should feel that was the case from the brief history which I have recited, the Employment Tribunal had that in mind and refer, in terms, to that submission.[10]The tribunal criticise the way in which the points were awarded. Eventually they say in paragraph 19 of their decision:
"19 The DPAG [ the appeal committee ] expressly approved for reconsideration Drs Kalia Kidambi and Mahapatra who subsequently were awarded points by the DPG. The DPAG found no justification for a further review of the applications of Dr Nirmal and Dr Tosson. The applicant although placing the date of the act complained of at the DPG meeting in fact accepted in the course of her evidence that it was the combined process of the DPG and the DPAG together in respect of which she made complaint and accordingly accepted that it was the combined work of the DPG and the DPAG which the Tribunal should consider. In the light of the applicant's less favourable treatment under King [ King v Great Britain China Centre [ 1991] IRLR 513 ] we were required to analyse, as approved in the case of Zafar [ Zafar v Glasgow City Council [1998] IRLR 36 ] whether an inference of racial discrimination could be drawn in the absence of satisfactory explanation. What the Tribunal found however was a perfectly satisfactory explanation for the differential treatment of the applicant and accordingly the applicant's primary case failed. The explanation was that her comparators were better qualified to be awarded discretionary points that she was."
The tribunal then went on to consider breaches of procedure and amongst breaches of procedure which have been drawn to our attention is the fact that Professor McLatchie sat on both the points committee and the appeal committee and thereby, Mr Munasinghe submits, was in effect sitting as a judge on appeal from his own decision.[11]In dealing with any allegation that an individual has been discriminated against on the grounds of race, there is a two-stage process. First of all, less favourable treatment has to be established. That on its own, as Mr Munasinghe freely accepts, does not establish discrimination on the grounds of race, although it may establish discrimination. The second step is to ask whether but for the race of applicant the less favourable treatment would not have been given. It is that question which the Employment Tribunal were specifically addressing at paragraph 19 of their decision. It is plain from the careful and thorough way in which they analysed the evidence that they had in mind the several persuasive points which might very well, in a different case with different evidence and different personalities before them, have persuaded them that indeed the treatment accorded this applicant might have been or was on the basis of her race. But they considered it in her case with the evidence that there was in her case and they appear to us to have asked themselves the questions which statute obliges them to ask. We do not think that any Employment Tribunal, considering the matter in the full as they are bound to do, would be obliged to come to the conclusion that Dr Nirmal must have been discriminated against on the ground of her race. This Employment Tribunal decided the opposite. It is, in effect, their decision. We do not think that there is sufficient grounds for plea for perversity. We cannot say that the decision was one which was wholly impermissible.[12]For those reasons, despite the background as we have recited it, we feel obliged to say that this appeal would have no reasonable prospect of success before a full hearing of the Employment Appeal Tribunal. We refuse permission for it to go to such a hearing and accordingly this appeal must be dismissed.