MISS J GARDNER v NORTH BRISTOL NHS TRUST [2001] UKEAT 0510_01_1009

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0510_01_1009Case No Appeal No. EAT/0510/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS J GARDNERAPPELLANTNORTH BRISTOL NHS TRUSTRESPONDENT
Before
MISS RECORDER SLADE QCDR D GRIEVES CBEMRS T A MARSLANDDate 10 September 2001
[1]APPEARANCES For the Appellant MR J TAYLOR (of Counsel) Appearing under the Employment Law Appeal Advice Scheme MISS RECORDER SLADE QC This is the Preliminary Hearing of an appeal by Miss Gardner against the decision of an Employment Tribunal sitting at Bristol which heard her case on four days in January 2001. The Employment Tribunal dismissed her claims of race discrimination, unfair dismissal, another claim of race discrimination and victimisation. The complaints were made in two Originating Applications presented on 30 November 1999, relating to race discrimination, and 28 June 2000 relating to unfair dismissal, race discrimination and victimisation.[2]On this Preliminary Hearing we have been assisted by Mr Taylor, under the ELAAS scheme, who has made one discrete point on behalf of Miss Gardner relating to the Human Rights Act 1998 and the interpretation of the Race Relations Act 1976 in light of the Human Rights Act 1998. So far as the other matters which are raised in this appeal are concerned, Miss Gardner has represented herself and has done so very thoroughly.[3]We are concerned to ascertain whether the Grounds of Appeal in Miss Gardner's case raise any arguable points of law. We say at the outset, that the decision of the Employment Tribunal is, in our view, an admirable analysis of the facts and the law relating to those facts. We are concerned to see whether the Tribunal erred in law in its application of the law and whether it adopted a perverse decision when it came to its conclusions.[4]We will briefly outline the facts as found by the Tribunal. The Appellant before us, Miss Gardner, was engaged on 9 November 1999 as a phlebotomist. That job consisted of taking blood samples from patients in the hospital in which she worked. That job did not require any specific qualifications, but a short period of training. The Appellant, Miss Gardner, was assessed by a Dr Whitehead, the consultant haematologist, on 11 February 1999. She failed that test. She had a further assessment in March 1999 and again she failed. She continued to work and train under supervision. Thereafter Miss Gardner was taken through the Respondent's capability procedure. A decision eventually had to taken as to how to proceed since it was concluded that she had failed to demonstrate that she was capable of undertaking her work properly. On 23 August 1999 a decision was taken to redeploy Miss Gardner within the Respondent Trust. Various attempts were made to identify suitable alternative employment. Miss Gardner was given a four week trial period as a receptionist in the general office. At the end of that trial period a report was made that Miss Gardner had failed to master the equipment, namely the photocopier, document binder and franking machine and had not followed instructions. The trial therefore failed. There were further attempts to find an alternative post for Miss Gardner. Those having failed, she was dismissed on 30 March 2000. There was an appeal against that decision. The appeal itself was dismissed on 12 October 2000.[5]The Tribunal carefully considered Miss Gardner's contention that the underlying cause of her actual or perceived failure to perform was race discrimination. The Applicant is black. She also indicated that there might be religious discrimination emanating from the fact that she is a Seventh Day Adventist. The Tribunal correctly directed themselves as to the law in the consideration of whether to draw an inference that the actions taken in respect of Miss Gardner were as the result of race discrimination. They concluded that they were not. Having set out their conclusions on the evidence, in paragraph 18 of their decision they say this:
"For these reasons we reject the Applicant's evidence as to the reasons for her failure to perform and accept the evidence of the Respondent's witnesses. In those circumstances there is no basis for an inference of racial discrimination, since the Respondent's actions are satisfactorily explained."
[6]The Employment Tribunal were concerned to discover whether there was any evidence that the Applicant had been treated less favourably as a result of bringing a claim of race discrimination. They did not consider that there was any basis for Miss Gardner's criticism of management's actions following her complaint. They therefore dismissed Miss Gardner's complaint of victimisation.[7]The Tribunal then considered the complaint of unfair dismissal and came to the conclusion that the dismissal was a fair one.[8]The Tribunal then considered whether the Applicant, Miss Gardner, could make any complaint under the Human Rights Act 1998. They dealt with that matter in their decision. They also were concerned to ascertain whether the fact that the Applicant is a Seventh Day Adventist in any way affected the Respondent's attitude towards her. They concluded that it did not.[9]Dealing with the question of whether any error of law or perversity can be said to be apparent from this Employment Tribunal decision, in our judgment, the Employment Tribunal directed itself entirely correctly as to the law, as to race discrimination, as to victimisation under the Race Relations Act 1976 and as to unfair dismissal. As to whether its conclusion on any of those heads of claim can be said to be perverse on the findings of fact made by the Tribunal, in our judgment it cannot be said that any of the Tribunal's conclusions was perverse. Further, we are not satisfied, and indeed it really has not been said before us, that there was evidence presented to the Tribunal which the Tribunal wrongly ignored or which made the conclusion of the Tribunal perverse.[10]We turn now briefly to the argument raised by Mr Taylor on the effect of the Human Rights Act 1998 on the construction of the Race Relations Act 1976. Mr Taylor directs us to paragraph 29 of the Tribunal's decision in which there is set out a passage from one of the Respondent's witness statements in which the witness refers to problems caused by the Appellant's religious beliefs in that the witness considered that the Appellant would rarely come and sit with the team who were having coffee at coffee time because, for religious reasons, the Appellant disapproved of other people drinking coffee. She also referred to the Appellant's apparent reluctance to work on Saturdays despite being rostered to do so and that it was because of the Appellant's religious convictions that she was reluctant to work on Saturday. The period of time of course which this passage in the statement was dealing with was the period when the Appellant was working as a phlebotomist, which period came to an end on 30 July 1999, well before the presentation of the first complaint to the Tribunal on 30 November 1999.[11]Whatever may be the merits of the argument that since the enactment of the Human Rights Act 1998 , the Race Relations Act 1976 should be read and construed so as to give effect to Convention rights, in this particular case, the right to exercise a particular religious practise, and notwithstanding the debate that there is as to the retrospective or otherwise effect of the Act, the Applicant, Miss Gardner, did not raise before the Tribunal as a specific ground of complaint the matters referred to in paragraph 29 of the Tribunal's decision. Whilst it was entirely appropriate for the Tribunal to refer to those matters in its decision, to see if they shed any light on the complaints which were before them, nonetheless, in our judgment, the matters raised, in the submissions of Mr Taylor, about the law in general as to the construction of the Race Relations Act 1976 in the light of the European Convention, do not take this particular appeal any further.[12]Accordingly, in our judgment, this appeal raises no arguable points of law and we dismiss the appeal.