MISS AGNES SITHOLE v CITY & HACKNEY PRIMARY CARE TRUST [2001] UKEAT 0248_00_0208

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 0248_00_0208

Case No Appeal No. EAT/0248/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MISS AGNES SITHOLEAPPELLANT

CITY & HACKNEY PRIMARY CARE TRUSTRESPONDENT

Before

Mr Justice Lindsay

Date 2 August 2001

[1]APPEARANCES For the Appellant BENJAMIN TAKAVARASHA Representative 67 Crescent Road East Ham London E6 1EB For the Respondent NICHOLAS CHRONINS Employed Barrister Instructed by Messrs Beachcroft Wansbroughs Solicitors 100 Fetter Lane London EC4A 1BN MR JUSTICE LINDSAY (PRESIDENT) We have before us the hearing of a full Appeal, the Appeal of Miss Agnes Sithole in the matter Sithole v the City & Hackney Community Services NHS Trust . Miss Sithole is a registered nurse working at Malpas Road Community Home, which is run by that Trust. She is a senior nurse who works there with people with severe learning difficulties. Today she has been represented by Mr Benjamin Takavarasha and the Trust by Mr Nicholas Chronins. We need to set something out of the history of the matter because the chronology is really necessary to an understanding of the case but it is not necessary to set out every single step in the chronology.

[2]The matter might be said to begin with the 14 August 1998 when Mr Takavarasha, even then acting on Miss Sithole's behalf, wrote to Miss Downton, the general manager of the NHS Trust, a letter that includes a complaint of harassment and less favourable treatment on racial or sexual grounds. On 26 August 1993 Miss Sithole had put her name to a letter of appointment of 5 August 1993 and also, round about the same time, terms of engagement emerged and a disciplinary policy also emerged and there are thus 3 documents here that I should, perhaps, have referred to before I got as far forward as 14 August 1998. Those 3 documents do have a relevance to later events and it is best to have them in mind from the start.

[3]The letter of appointment of 5 August 1993, page 289 of our bundle, is a new contract offered to and accepted by Miss Sithole. She had already been working at the Trust for some years but at this point her job changed and she had a fresh contract. And why I draw attention to it is that amongst its provision is this:

"Activities undertaken by nursing staff resulting in "

Back to Back" shift working, i.e. Night/Early or Late Night (unless at the specific individual request of the Manager) is unacceptable professionally and will result in disciplinary action being taken." It is signed on behalf of the Senior Personnel Officer and it is signed by Miss Sithole indicating her acceptance of the terms.

[4]The Trust had terms of engagement as to bank nursing staff. They included this:

"Bank Nurses must agree not to work through ONE 4 ONE in such a way that "back to back" (ie late followed by night or night followed by early) shifts occur, whether or not either of those shifts were worked through another employer."

[5]And finally of this clutch of relatively early documents there is the disciplinary procedure of the NHS Group that has a paragraph 12:

"Summary Dismissal The following list, although by no means exhaustive, summarises Gross Misconduct which may lead to Summary Dismissal:"

And there are a series of examples:- "(v) Negligent Behaviour Any action or failure to act which seriously threatens the health and safety or a patient, employee or member of the public." Why I draw attention to those at the outset is that as we go on to matters we will see that "back to back" working and whether there was breach of that provision as to disciplinary policy becomes the issue that the Tribunal had to look at.

[6]On 29 November 1998 Miss Sithole put her signature to a form IT1. It was later given the number 314/98. It was actually presented in the sense of being received by and accepted by the Employment Tribunal on 2 December 1998 and it made claims for sex discrimination and race discrimination.

[7]Miss Sithole was, at that time, 29 November, when she put her signature to the form, still employed. She was a deputy manager by then. As it transpired - and this is one of the things we will need to look at - she was dismissed on 2 December 1998, the very day she presented the IT1. On 29 December 1998 the NHS Trust lodged an IT3. It denied in several respects the allegations made in the IT1 and it said that further particulars would be needed of the IT1 before a proper answer was given.

[8]On 24 February 1999 Miss Sithole issued a second IT1, this time for unfair dismissal. That was given the number 579/99. She said, as was the case, that she had been employed for over 10 years down to 2 December 1998. She said she had been summarily dismissed and she asserted she was victimised on racial grounds and discriminated against on racial grounds. The less favourable treatment which she was claiming had represented victimisation was the fact that she had been dismissed. She said:

"At a disciplinary hearing on 2 December 1998 I was summarily dismissed by City & Hackney Community Services NHS Trust. I submit that not only did they act ultra vires in thus dismissing vis-a-vis the alleged offences as I will further elaborate below, but that I believe I was being victimised for asserting an employment right by complaining to Management, contrary to Employment legislation."

[9]On 24 March 1999 the NHS Trust entered its IT3 resisting the second IT1. They said that she had been dismissed for gross misconduct. They said that she had not complained about race discrimination or sex discrimination at any earlier point during her employment and they said that she had worked - and this became a leading issue - what were called "back-to-back" shifts and they claimed that the NHS Trust policy forbad that. They said:

"It is the stated policy of this Trust and is written into the Employment contracts of nursing staff that they are not to work "back-to-back" shifts i.e. shifts which are continuous to one another. There were also allegations that Miss Sithole had defrauded the Trust by claiming payment twice for the same hours worked. Following an investigation, a disciplinary hearing was called on 2 December 1998 where it was found that Miss Sithole had worked "back-to-back" shifts. The Trust's view was, that in working "back-to-back" shifts, Miss Sithole had acted in the negligent manner without consideration for the health and safety of clients and colleagues."

And a little later they said:

"Miss Sithole asserts that she was misled by differing definitions of what constituted "back-to-back" working. This is denied. There is a clear understanding, particularly at Malpas Road, that it was not acceptable to work continuous shifts. It is the Trust's case that Mrs Sithole was treated no differently from any other member of staff …"

[10]On 26 July 1999 a full merits hearing that had been expected and arranged to begin on that day was postponed but directions were given and, so far as concerns, victimisation, the "protected act" was identified as, indeed, was what was being said to be the consequence of the protected act. On that day the Tribunal at Stratford under the chairmanship of Mr J Cole sitting with Mrs Cairns and Mr Ramsay gave interlocutory directions and reasons and in paragraph 9 they have a passage under the heading " Agreed Issues". Having said that a list of certain outstanding issues was agreed as follows, (iv) is this:

"(iv) Was the Applicant victimised by her dismissal on 2 December 1998 and following her letter of complaint to the Respondent dated 14 August 1998 (the protected act) and within the meaning of the Race Relations Act 1976."

A little later, in the Tribunal's reasons of the same day, there was reference to Mr Takavarasha, then appearing for Miss Sithole, wanting to have a further opportunity to speak to his client and the Tribunal says:

"Likewise he said that there were other protected acts prior to 14 August 1998 but without time and the opportunity for research of his client's case he could not be more specific today."

And that led to their paragraph 15 where the Tribunal says:

"In the light of the applications put before us and to which we have already referred, we take the view that the Respondent is entitled to know precisely and quickly the full extent of the allegations put against it. We are not persuaded by Miss Bevitt (that was Counsel for the NHS Trust) that we should refuse Mr Takavarasha the time he seeks for instructions. However, we make absolutely plain that whilst we are prepared to allow Mr Takavarasha seven days from today (26 July), no further time extensions will be permitted. The agreed list of issues is as we have recorded but within seven days Mr Takavarasha, on behalf of the Applicant is required to particularise as follows:-"

And then at (b), which is the only relevant for immediate purposes, the Tribunal says:

"(b) any "protected acts" within the meaning of the Race Relations Act 1976 and the Sex Discrimination Act 1975 upon which the Applicant relies and prior to 14 August 1998, including full particulars and dates thereof."

[11]On 16 August 1999 the Applicant's victimisation claim was limited to the one protected Act, namely the complaint that had been made on her behalf on 14 August 1998. The Tribunal Chairman, on 16 August 1999 wrote a letter to the Respondent's solicitors with a copy to Mr Takavarasha saying this:

"A Chairman of the Tribunal has directed that as no particulars have been supplied of the proposed allegations against Catherine Downton nor any "protected acts" identified prior to 14 August 1998, the Applicants claims at the full merits hearing will be limited to those set out in paragraph 9 of the directions promulgated on 30 July 1999."

And that paragraph 9 goes back to and includes 9(iv) that we cited a moment ago as to the victimisation consisting of dismissal and being said to follow from the letter of 14 August 1998.

[12]On 23 November 1999 until 30 November 1999 there were some 4 days of hearing at the Employment Tribunal at Stratford. Mr Takavarasha appeared for Miss Sithole and Miss Bevitt of Counsel for the Respondents. On 28 November there were written final submissions from Mr Takavarasha to the Employment Tribunal (although there is some reasons she says, to believe they were not taken into account) and on 30 November 1999 there were written final submissions from Miss Bevitt.

[13]On 22 December 1999 the decision of the Tribunal was sent to the parties. It was the decision of the Tribunal at Stratford sitting under the chairmanship of Mrs E Prevezer with Mr Heron and Mr Ramsay and it was:

"The unanimous decision of the Tribunal is that (i) the Applicant's claim for unfair dismissal (claim no 3200579/99) is dismissed; (ii) the Applicant's claim for sex discrimination and race discrimination (claim no 3203314/98) is dismissed; (iii) the acts complained of up to June 1998 were committed outside the time limits laid down in both the Race Relations Act 1976 and the Sex Discrimination Act 1975 and therefore this Tribunal has no jurisdiction to rule on those matters."

[14]On 11 January 2000 Miss Sithole sought a review of that decision from the Employment Tribunal. On 31 January 2000 she lodged a Notice of Appeal against that decision. It included many grounds including that the Employment Tribunal had shown bias against her in the course of the case. It is a very long Notice of Appeal, some 28 pages or so long. On 8 March 2000 the Employment Tribunal declined to review its decision of 22 December. On 17 March 2000 Mr Takavarasha swore an Affidavit as to bias on the Tribunal's part and as to misconduct on their part. One of the objects of requiring an Affidavit of that kind is so that they can be sent to the Chairman concerned for his or her comments and on 1 March 2000 the Chairman Mrs Prevezer commented on the Affidavit and, on 11 April 2000, so also did the Regional Chairman.

[15]It was in that shape, then, that the matter first came before the Employment Appeal Tribunal as a Preliminary Hearing on 15 June 2000. It is important to notice that only 2 aspects of the long Notice of Appeal were allowed to go to a full hearing, in other words to come forward to us today. Firstly, so far as concerned the unfair dismissal side of the case the questions were raised as to whether the Employment Tribunal had sufficiently had regard to the contractual terms as to "back-to-back" working and as to Miss Sithole's awareness or unawareness or understanding or misunderstanding of the position relating to "back-to-back" working and any disciplinary code relating thereto. Also the question was permitted to come to a full hearing as to dismissal as a sanction in respect, in particular, of comparison with the treatment of any one or more other people found guilty of the practice of "back-to-back" working.

[16]That is one broad head that was allowed to go to a full hearing. The second, which is not unrelated, can be described as victimisation; was Miss Sithole given a heavier penalty than was customary for such offences she was found guilty of because she was black or because she was a woman or indeed because she was both black and a woman? And, if so, did that represent victimisation or discrimination in respect of her complaints as to those subjects? No other matter - and the decision of the Employment Appeal Tribunal makes this quite clear - no other matter was permitted to go forward to a full hearing and so allegations of bias and misconduct, for example, on the part of the Employment Tribunal have not come forward to us.

[17]An amended Notice of Appeal was directed and on 29 June 2000 that amended Notice of Appeal took written form. On 14 July Miss Sithole sought a review of the Employment Appeal Tribunal's decision but it was refused and it was made clear that the appeal as to race discrimination and sex discrimination had been dismissed. The victimisation issue went forward but in no other way was race discrimination or sex discrimination to be a subject for the appeal. There is mention in the papers of some application to the Court of Appeal. We have not actually got the papers relative to that but all we can say is that there seems not to have been any appeal against the decision of the Employment Appeal Tribunal limiting the case of the way that it did or, indeed, any other application to the Court of Appeal being successful.

[18]So, the limitation imposed by the Employment Appeal Tribunal on 15 June stands. On 27 July 2000 the NHS Trust, as it is entitled to do, put in the Respondent's answer and that touched on or raised some further points that it wished to have argued namely:

"(i) No argument was put before the Employment Tribunal that the Appellant was victimised by being dismissed on 2 December 1998 by reason of lodging a claim with the Employment Tribunal on 2 December 1998. (ii) Alternatively, the Respondent and the dismissing officer would not and could not have victimised the Appellant by reason of proceedings being brought in the Employment Tribunal on 2 December 1998 given that the Respondent did not receive the Notice of Originating Application until 8 December 1998, six days after the decision to dismiss was taken nor was it aware of the existence of the Originating Application until that date."

The Application to the Court of Appeal seems to have been on 18 October 2000 but, as I say, we have not actually got the papers relating to that, nor does it seem to bear on what we have to decide.

[19]On 29 November 2000 the case came on at the Employment Appeal Tribunal inter partes but for directions only and Chairman's notes were directed but on limited subjects, (not generally but just on limited subjects) and those were received on 9 February 2001. That is, I hope, quite sufficient of the chronology to set the scene for the questions that were permitted to come forward to a hearing and the first is the unfair dismissal question and in particular "back-to-back" working and the sanction for "back-to-back" working.

[20]The Appellant's skeleton argument at its 3.4 and 3.5 say this:

"3.4 In dismissing the Appellant, the Respondent deliberately relied on the letter of the law and not the spirit of the law. We shall rely on the principle of the common good used in other areas of the law. Besides as at paragraph 40 of the Appellant's witness statement (page 189), the Respondent took the Appellant's 'back-to-back' shifts out of the context of the working culture within the Health Service at large (page 346). 3.5 Comparison has also to be made with how the Respondent treated more leniently others known or unknown who were technically similarly in breach of gross misconduct as at paragraph 2.5 on page 358, which incidentally also establishes the case for victimisation."

[21]The Employment Tribunal referred to the contract providing that 'back-to-back' working was unacceptable and would result in disciplinary action being taken. We cited from that contract earlier. What the Tribunal says is this in their paragraph 10:

"In July 1993 she was appointed as a team leader and had a new contract of employment which set out various terms, including a condition that: "

Activities undertaken by nursing staff resulting in 'back-to-back' shift working i.e. night/early or late night (unless at the specific individual request of a manager) is unacceptable professionally and will result in disciplinary action being taken …" It is to be noted it " will " result in disciplinary action not that it merely " may " have that result.

[22]As for her treatment in comparison with that of others, the Tribunal heard evidence that only her case could be substantiated by evidence. There were suspicions about others but only hers could be substantiated by evidence. The Employment Tribunal held that her action was not only in breach of contract but they said it was "potentially a risk to residents". They say that in their paragraph 24.

[23]While in 2 instances of the number of cases in which Miss Sithole was accused of engaging in 'back-to-back' working she sought to excuse the 'back-to-back' working by asserting that there had been some break between the 2 stints of work, one case was accepted by her as having been 'back-to-back' working. The Tribunal said:

"On 9 and 10 April the Applicant accepted that she did work a back to back shift. She did a late shift and then a night shift and an early shift followed by a late shift."

[24]There was a disciplinary enquiry and hearing conducted by Miss McCollin and that enquiry concluded:

"After the adjournment Miss McCollin read from the disciplinary policy and decided that the Applicant's behaviour was negligent by putting herself and her patients and her colleagues at an unacceptable risk by working without adequate rest periods between her shifts, contrary to the policy and to the terms of her contract. She was therefore summarily dismissed for gross misconduct."

[25]No other member of staff at the Malpas Road site where Miss Sithole worked was found to have been working back to back shifts. The Tribunal says that in its paragraph 36. Miss Sithole embarked on a disciplinary appeal which was heard by Miss Clark, the Executive Director of the Trust and Miss Clark in fact also gave evidence to the Employment Tribunal. The Tribunal said of that appeal process:

"Miss Clark informed us that each nurse is responsible for their own working shift if they work outside the rotas as set down in Malpas Road and, as a senior nurse, the Applicant must have known that it was forbidden to work back to back shifts. She knew what her obligations were to the Trust and to the residents and each senior nurse is responsible for their own working arrangements. Therefore she dismissed the Applicant's appeal."

[26]The excuse for 'back-to-back' working in the particular incident which Miss Sithole did accept had occurred was merely that it had been an oversight - see paragraph 43 of the Tribunal's decision. The Tribunal had before it the well-known case of British Home Stores Ltd v Burchell [1978] IRLR and that is an appropriate case for a Tribunal to look at when misconduct is the issue. The Tribunal referred itself to Section 98 and they concluded:

"Having considered all the evidence and found the facts as set out above, this Tribunal considers that the Respondents acted reasonably in all the circumstances in treating the conduct of the Applicant as sufficient to dismiss the Applicant. This was a reasonable decision in all the circumstances bearing in mind that the Applicant was a senior nurse looking after vulnerable residents in a home and their care was of primary importance to the Respondents, bearing in mind that a senior nurse cannot be supervised at all times."

[27]So far as concerns comparisons with others, in the light of Miss Sithole receiving the sanction of dismissal, the Tribunal said this:

"We accept the evidence of the Respondents when they informed us that, in 1991, the procedures were not clearly laid down and that Mr Gopaul was disciplined because of his working back to back shifts and that subsequently the procedures were tightened up and all nurses were informed that back to back shifts were not allowed and would lead to disciplinary action. In fact the Applicant's contract, which was signed in 1993, as quoted above, sets out the reference to back to back shifts. We therefore do not accept that the previous manager, Mr Ababio, treated Mr Gopaul differently because of the Applicant's sex. There was no evidence before us to show that anybody else, male or female, had been treated any differently by Mr Abadio and we conclude that the difficulties arose because he came in as the new manager to a home which had been run in part by the Applicant for some considerable time with slack procedures, and she could not accept the changes that were taking place."

[28]Chairman's notes of evidence were received, as we mentioned earlier, on a number of issues. It is claimed that the Applicant herself accepted that she had been told that 'back to back' working was not permitted. The Chairman's notes record her as saying:

"I had been told by my line manager at supervision that back to back working was not allowed"

Although to be fair one has to add the rest of the sentence which suggests that she was alleging with some confusion in the matter. The rest of the sentence is "mixed messages that it was in no win situation."

[29]Mr Elroy Thomas gave evidence saying that back to back working was not allowed. He was a shift leader at Malpas Road. Mr Lydia Shoko, a nurse who worked at Malpas Road for some 10 years, said that back to back working was not allowed. Mr Nancoomarsing Gopaul, who we have already referred to and who was chiefly the comparator identified by Miss Sithole, said that back to back working was a serious offence because of the fatigue that could set in and that the well-being of patients and fellow professionals could be compromised. He also said that a letter had been circulated indicating the seriousness of back to back working and that Miss Sithole would have received a copy.

[30]The Chairman's notes show Jacqueline Clark saying that "had anyone else been found guilty of back to back working they too would have been dismissed" and Catherine Downton, the general manager, she has recorded as saying:

"Back to back shift working is working one shift followed by another without adequate break in between. This applies when one of the shifts work is a night shift. This is not acceptable working practice. It is a health and safety risk as staff are potentially dangerous, they have not had adequate breaks from duty, my prime concern was the protection of residents at Malpas Road; they are a particular vulnerable group of people."

[31]There had been an earlier incident, it seems, she said:

"I therefore met with the Applicant together with Mr Saib on 10 September 1998, I informed her that it had been brought to my attention that she may have been working back to back shifts which was in breach of her contract, potentially a risk to residents."

And then a little later:

"Before the meeting of 10 September I decided after taking advice from Human Resources that it was not necessary to suspend the Applicant because it was more important to prevent her from doing back to back shifts from then on, because the concern was the Health and Safety risk it can cause to residents."

[32]Patrick Nsiah-Ababio gave evidence. He said amongst other things:

"Back to back shift arises when someone works a late shift followed by a night shift or night shift followed by an early shift. I consider this to be very serious and unacceptable behaviour and I would hope that they would tell me if it impinges on their work at Malpas Road. It must be taken seriously as it may lead to a staff member hurting him or herself, a colleague or resident because they are fatigued. I have a responsibility to ensure that the staff are not at danger to themselves or the residents. Occasionally it may be necessary to require staff to work back to back shift but only in the most exceptional circumstances. I do not even remember the last time it was necessary to do so, it is sometimes necessary to have people working the following shifts but never to do a repeat second shift. The Applicant stated that it was not clear what a back to back shift was, I find this very hard to believe given that she was a deputy manager and was also the acting manager for at least six months before I took up the post."

[33]Doreen McCollin says this, or is so recorded in the Chairman's notes:

" The Applicant had then presented her case; she read from the brief notes that she had brought with her to the hearing, these appear at page (545) for one of the bundle, she provided me and Mr Gopaul with copies on the day. She explained that she had different understanding of back to back shift working to her line manager Patrick Nsiah-Ababio, I found this difficult to accept as it is very straightforward definition. A back to back shift arises where person works a late shift followed by night or a night shift followed by an early shift. This is stated expressly in the Applicant's letter of appointment see page (330), and is standard term in line with general professional standards. The Applicant disputed two of the allegations of 'back to back' shift working but admitted one, for that one an incident had risen early whereby she needed to change her original shift at Malpas Road from an early to a late shift because of personal reason, she would then work the night shift through one for one. The Applicant did not appreciate irrespective of what the reason was for working the back to back shift that it was unacceptable, in any event there would be no obligation for her to carry out night shift for one for one."

[34]We have already referred to the Applicant's letter of appointment, the terms of engagement and the Trust's disciplinary policy. The Employment Tribunal directed itself correctly on the law as far as we can see and had evidence justifying, so far as we can see, the conclusions at which it arrived. On this part of the case there was in our view no error of law. The Employment Tribunal was entitled to take the view that the employer had conducted such enquiry as was necessary and that the enquiry had manifested a serious health and safety risk type of offence and that it was the sort of case which could be regarded by a reasonable employer, given these particular terms of contract policy and so on, as fit to be met with dismissal. There was, as it seemed on the evidence, a true Health and Safety case; so the Tribunal found.

[35]So far as concerned comparison with Mr Gopaul's case, he was given a written warning but the Employment Tribunal said that back in 1991, when his offence was committed, procedures were not so clear and not so strict. One gets the impression that it was, in fact, Mr Gopaul's earlier defaults that led to a tidying up of policies. The Tribunal took the point that the contractual terms of that earlier time were different. Mr Gopaul gave evidence including this:

"Soon after my disciplinary hearing the letter was circulated round the Trust from Pam Hibbs, District Nursing Officer specifically stating the seriousness of working back to back shifts. The Applicant would have received a copy of this letter. Subsequent terms and conditions of employment viewed by the Trust now specifically states that dismissal may be appropriate for back to back working."

A little later:

"I was disciplined in 1991 back shift is a night shift plus a day shift, there were no policies at that time saying that it was illegal but following my disciplinary all shift staff were written to and was put into the contract it became a disciplinary matter."

[36]So, plainly Mr Gopaul's case was not only some several years before but that in those days the contractual terms and the whole disciplinary approach to 'back to back' working was different. It has to be remembered that the question for the Employment Tribunal was not whether they would have dismissed Miss Sithole and the question for us is not whether we would have dismissed Miss Sithole. Rather, the question is, 'Did the Employment Tribunal err in concluding that dismissal was within the range of responses open to a reasonable employer on the material which this employer had in front of it after conducting a reasonable investigation?' The question of the reasonsonableness of the investigation here eventually answers itself because as we mentioned, Miss Sithole admitted that one incident, of 'back to back' working was accepted and we have seen the evidence that emerges in the notes of evidence and the findings of fact that derived from that evidence.

[37]We have been unable to light on any material finding for which there was no evidence at all. It does not assist the Appellant to say that there was some evidence, usually hers, to the contrary. If the Employment Tribunal has some evidence to support its conclusions then it is entitled to have preferred that particular evidence and hence to have come to that conclusion.

[38]So far as concerns the directions that the Tribunal gave itself on the law, we have not been able to see any error in those directions. So far as concerns the dismissal side of the appeal and whether dismissal was met within appropriate sanction and whether the sanction was more severe than it would have been for others, all those aspects of the appeal, as it seems to us, have disclosed no error of law and as to that part of the case we must therefore dismiss the appeal.

[39]The second part is victimisation, as we have explained, in particular relative to the sanction of dismissal. It is crucial, if victimisation is to be fairly looked at, that the Respondent and the Employment Tribunal should know what protected act is being said to have triggered the particular unfavourable treatment that is alleged. The unfavourable treatment here, as we have said is fixed from the limited form in which the matter was allowed to go forward at the Employment Tribunal and is the dismissal on 2 December 1998. It was Miss McCollin who advised dismissal.

[40]The Tribunal said of her:

"Miss McCollin did not know that the Applicant had complained of sex discrimination or racial discrimination and therefore she could not have been victimising the Applicant because of those matters."

A little later the Tribunal says this at their paragraph 58:

"The Applicant alleges that she was victimised by being dismissed because she had raised sex and race allegations against the Respondents. There was no evidence before us to let us conclude that this was the case. The Applicant had not made allegations of race and sex discrimination until it was obliquely mentioned in August 1998 and she was offered the opportunity of raising a grievance about this matter and she failed to do so. We are satisfied that Miss McCollin did not know that the Applicant had alleged that she had been racially or sexually discriminated against when she held the disciplinary hearing which led to the Applicant's dismissal. Therefore the Applicant's claim of victimisation under these Acts is dismissed."

[41]Miss McCollin's evidence included that, as at the investigation stage she had had no previous knowledge of the Applicant. Her written evidence also included at paragraph 40 the following:

"The Applicant's previous disciplinary record had no bearing whatsoever on my decision. I had only found out about the Applicant's previous disciplinary record when I was told by her representative at the beginning of the hearing. My decision stands alone."

[42]Miss Clark, as we know, upheld that decision on appeal. It seems that no awareness of Miss Sithole's racial or sexual discrimination complaints had found their way through to Miss McCollin or to Miss Clark nor, as it would seem, even a suspicion of the likelihood of those complaints having been made. It might be a surprising conclusion but, of course, we are not in a position to re-open the facts. We can only deal with errors of law. It was for Miss Sithole to prove a link between the alleged protected act and the later less favourable treatment of the dismissal. But no causal link between the latter of August 1998 and dismissal in December 1998 was in fact made out. The Employment Tribunal had the benefit of seeing and hearing the witnesses and they are the masters of fact. It may be a little surprising that those responsible for the dismissal had so little knowledge of the past. But the causal connection had to be proved by Miss Sithole and it was not upheld.

[43]Startling statistics - and they are startling - have been drawn to our attention by Mr Takavarasha. But, of course, statistics, although perhaps proving a general case and very useful in indirect discrimination cases, do not prove a particular case of direct discrimination or direct victimisation and so, although they are startling, they do not truly assist Miss Sithole. The claim for victimisation, thus, as it seems to us, rightly failed. Mr Elroy Thomas had said of 'back to back' working:

"Back to back, is not allowed. On the night shift, you can't work the next day whether you start 7.30 or 10 o'clock or 11 o'clock am. Not allowed to work the next day its not OK. I am West Indian she wasn't treated differently from other members of staff."

[44]Jacqueline Clark had said:

"Had other members of staff been found to have worked back to back shifts exactly the same level action would have been taken."

That was evidence which the Tribunal received and was entitled, if it chose, to accept.

[45]Dealing with the possibility that the dismissal on 2 December 1998 was triggered by the IT1 which was presented on the very same day, there are a number of issues which Mr Chronin has drawn attention to. First of all, the point was not open to the Applicant below in the light of the Employment Tribunal's letter of 16 August 1999 which specifically drew attention to what the single protected act was.

[46]Secondly, no doubt in consequence of that, the point was not ventilated below at all. And, thirdly, we could not allow it under some discretion (if we had discretion, which we probably would have) because we could not deal with it without there being fresh findings of fact or a remission in order to establish those fresh findings of fact.

[47]But, in any event, there is no evidence that the Respondent did know of the presentation on 2 December 1998. The Chairman was asked not only for Chairman's notes of evidence but to indicate if the case was that no evidence had been given on certain specific subjects and the Chairman answers there was no evidence as to when the Respondent first knew of the application which was submitted to this Tribunal on 2 December in Case No 314. The Notice of Appearance was served on 29 December. The unfair dismissal claim was submitted on 24 February in Case 579. There is no indication whether the Respondents knew when these claims were made except through the Tribunal's system. The Tribunal's system is that when the IT1 is received, then, after it is registered and noted and so on, a copy of it is sent out to the Respondent and so it would be rare, indeed, for a Respondent to know on the very same day, through the agency of the Tribunal, that the IT1 had been presented on that day. In the nature of things the likelihood would be, if the Respondent was simply relying on knowledge derived from the Employment Tribunal itself, that it would not acquire that knowledge until later. Mr Chronin also reminds us of Chapman v Simon emphasising that the Employment Tribunal is not to be expected to rule upon and should not rule upon, issues that were not properly fully before it.

[48]Mr Takavarasha has identified no error of law properly-so-called in relation to the directions which the Tribunal gave itself referable to the Nagarajan case. We have been unable to find any error of law on the victimisation side of the case and accordingly, having now dealt with both aspects of the two only that were permitted to come to a full hearing, we must dismiss the Appeal.