MR V VENKATASAMY v CHELSEA & WESTMINSTER HEALTHCARE NHS TRUST [2001] UKEAT 784_00_0108

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 784_00_0108

Case No Appeal No. EAT/784/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR V VENKATASAMYAPPELLANT

CHELSEA & WESTMINSTER HEALTHCARE NHS TRUSTRESPONDENT

Before

Mr Justice Lindsay

Date 1 August 2001

[1]APPEARANCES For the Appellant The Appellant in person MR JUSTICE LINDSAY (PRESIDENT) We have before us, by way of a preliminary hearing, the appeal of Mr V Venkatasamy in the matter Venkatasamy v Chelsea & Westminster Healthcare NHS Trust . Mr Venkatasamy has been before us this morning in person.

[2]The history begins with his presentation of an IT1 on 20 November 1998; he was a staff nurse. He claimed that he had been victimised by a white male charge nurse and the victimisation was because he had earlier lodged a complaint against that white male. The victimisation was said to have consisted of having had a deputy sister report back on his work, which was not a case that was applicable generally, and represented victimisation, he said.

[3]On 14 December 1998, the NHS Trust entered its IT3 and discrimination and victimisation were denied. That first IT1 was given a number that ended 761/98. On 11 February 1999 there was a second IT1, given a number ended 821/99, and in it Mr Venkatasamy made a further allegation based on incidents of 21 November 1998 and 8 February 1999. On 17 March 1999 there was an amended IT3 on behalf of the NHS Trust, and on 14 July 1999 there was a third IT1, given a number ending 299/99.

[4]By now, Mr Venkatasamy had been dismissed; he had been dismissed on 5 July 1999, and he was claiming for unfair dismissal, amongst other complaints. On 22 July 1999 there was an IT3 from the NHS Trust that made the point that Mr Venkatasamy had not served the necessary one year in order to be able to claim for unfair dismissal. Then, between 3 August 1999 and 1 February 2000, there were some six days of hearing at the Employment Tribunal, plus one day which the Tribunal spent alone in Chambers on the case, and on 15 March 2000 the Decision was sent to the parties.

[5]It was the Decision of the Tribunal at London North, under the chairmanship of Mr P R K Menon, and it was:

"The unanimous decision of the Tribunal is that the Applicant's three Originating Applications alleging race discrimination and victimisation under sections 1(1)(a), 2 and 4 of the Race Relations Act 1976 by the Respondent fail and all those claims are dismissed."

It was a Decision of some twenty two close-typed pages, dealing with all three IT1s. Both sides had been represented at the hearing by Counsel.

[6]On 27 March Mr Venkatasamy applied for a review in all three cases and on 14 April, he put in a Notice of Appeal to the EAT. On 2 May 2000 the Chairman refused the review on the grounds that it had no reasonable prospect of success, but, of course, the Notice of Appeal continued.

[7]On 27 June 2000 an affidavit was filed by Mr Venkatasamy as to bias, and also more generally perhaps, to allege failings at the Employment Tribunal. There were a number of allegations that the Tribunal had failed to consider this or that, or had failed to understand this or that, and had come to conclusions contrary to the evidence, and had failed to notice discrepancies, and there were five short allegations said to be of bias, one being the refusal to entertain the review.

[8]As is the usual practice in these cases, the affidavit as to bias was sent to the Chairman for comment and on 12 September the Chairman gave his comments. On 8 December, Counsel who had acted for Mr Venkatasamy wrote him a letter which included this:

"The Chairman appeared to be fair at the start of the proceedings and in fact had made a point of telling those present that this particular Tribunal had recently sat on a similar case and were well versed on the question of victimisation/discrimination. There was an occasion that I recall the Chairman suggesting that I was not doing a very good job of presenting your case when I was cross examining a witness for the NHS Trust. I do not recall the particular witness nor on which day this happened. I was not able to make a note of everything that transpired at the hearing as I appeared alone to represent you. The particular incident started with the Chairman commenting that he needed to make a full note of the evidence in case there was to be an appeal and asking me to deal with one statement/document at a time. I got the impression the Chairman was not particularly impressed with my performance that day."

[9]On a date in January 2001, the actual date is not given, the Chairman responded to that letter of 8 December that had come from Mr Venkatasamy's Counsel. On 25 April the Employment Appeal Tribunal gave leave for an amended Notice of Appeal, and on the same day the amended Notice of Appeal was received.

[10]So far as concerns the complaint as to the conduct of the Employment Tribunal, and of its conduct being indicative of bias, the form of complaint in the amended Notice of Appeal is now this:

"The conduct of the hearing by two members of the panel fell short of the desired standard and, did not measure up to the standard of justice. One member of the panel was always asleep or dozing off and, the other member arguing with my counsel, as indicated in his letter dated 8 th December 2000."

It is to be noted that the person who is said to have slept is not even identified, not even in terms of whether it was the Chairman or someone on the left or right of the Chairman. The days of the six days of the hearing are not identified when the member was said to be asleep or dozing off. The Chairman in his comments made the point that he would have noticed if a lay member was always asleep, and it is to be borne in mind that the original complaint (with our emphasis) was:

"One side member was always asleep during the Hearing. My Counsel should have objected to the Chairman that something should have been done about it"

It seems to us a fair point that the Chairman would have noticed if someone alongside him was always asleep. It is noticeable also that in his letter Mr Venkatasamy's Counsel says nothing as to any member of the Tribunal sleeping, or dozing off. The allegation, as it seems to us, is so exaggerated - that he was always asleep or dozing off - so unparticularised and so unsupported as to be devoid of any weight.

[11]So far as concerns the argument with Counsel, one has to note what Counsel actually says, he says: "I got the impression" which is very different from there being a serious argument in the sense of a dispute at an unpleasant level or a material confrontation. It is quite often that Chairmen have to pull up Counsel or correct Counsel. All that seems to have occurred here, so far as described by Counsel, is that a suggestion emerged that Counsel was not doing a very good job. That, as it seems to us, falls short of any direct rebuke or any unnecessary or unpleasant confrontation.

[12]These two elements, the sleeping and the dozing off and the treatment of Counsel, are the only matters finally relied upon in the amended Notice of Appeal as to bias or misconduct at the Employment Tribunal level, and they must be rejected as being insufficient to be indicative of a serious danger of bias or misconduct or prejudice on the Tribunal's part, so the complaint as to bias or prejudice fails.

[13]As for other issues, Mr Venkatasamy says:

"Clearly I have been victimised and this is supported by the fact that it was required to file 3 separate IT1s in support of my claim for victimisation and discrimination."

That is amplified in his amended Notice of Appeal where he says:

"The grounds upon which this appeal is brought are as follows: (1) The Law has been wrongly applied and no reasonable tribunal could have reached such a decision."

That, as it seems to us, is quite hopeless as a ground of appeal. What law is it that has been wrongly applied? What was the wrong application? The Employment Tribunal set out the relevant sections and the leading cases in the area. We see no error of law that can fall within that ground (1) of the amended Notice of Appeal.

[14]Next in his amended Notice of Appeal, Mr Venkatasamy says this:

"A failure of the panel to understand serious nursing issues which had resulted in an unfair and unreasonable decision. They had relied only on what the respondent's parties had to say without any firm evidence."

What he is there saying is that it was wrong of the Employment Tribunal to accept the other side's evidence, but that represents no error of law. The Employment Tribunal has a series of tasks and one of them includes deciding which evidence it is to prefer, where there is conflict. What the Respondent said was evidence; the Employment Tribunal was entitled to prefer it to Mr Venkatasamy's evidence. Whether the events were serious or even life-threatening, the Employment Tribunal was still entitled to accept what the Respondent said in preference to what Mr Venkatasamy said. It is no error of law to identify that the Tribunal preferred the evidence of the other side; indeed if that was the case, almost every piece of hostile litigation would include automatically error of law.

[15]Next, Mr Venkatasamy in his amended Notice of Appeal says:

"A failure on the panel members to consider a letter dated 1st September 1999, from my doctor authorising me to stay off sick"

But the contract of employment for Mr Venkatasamy had earlier terminated; it had terminated on 5 July 1999, and in any event, the Employment Tribunal gave full consideration to the evidence as to his sickness, see their paragraphs 9(51) (53) (54) (57) (58) and their paragraph 16.

[16]Lastly in the amended Notice of Appeal Mr Venkatasamy says:

"Please see particulars of grounds of appeal forwarded by Murray Maclean & Krieger, solicitors, on 28 th June 2000."

We do not propose to deal separately with each of the nineteen separate alleged grounds. Some say that the Employment Tribunal failed to consider a document or an argument, but it cannot be assumed simply from the fact that a Tribunal does not expressly mention a subject that it did not have it in mind. Both parties were professionally represented, as we have mentioned, and both put in written final arguments. The Tribunal would naturally concentrate on the issues identified as significant in those written final arguments and Mr Venkatasamy has not referred us to any argument that was referred to in the final address by Counsel and yet was overlooked. That the Tribunal knew that racial discrimination was in issue, from the outset, is plain. It is referred to by the Tribunal in their paragraphs 2 and 4. The Tribunal was fully aware that there had been shortcomings in the hospital's equal opportunities policy - see their paragraphs 12(2) and 12(3) where they describe his Counsel's arguments - but it is a mistake to think that because there has been a breach of an equal opportunities policy there is necessarily, and without more, a case of racial discrimination that can be acted on by the Tribunal.

[17]At several points in his catalogue of alleged defects the Appellant, as it seems to us, misunderstands the role of the Employment Appeal Tribunal. Criticism is made of the Employment Tribunal for accepting Mr McKeating's evidence or his version of events. But it has to be remembered that the Employment Tribunal is the master of fact. A complaint that the other side's evidence has been preferred is not a complaint that indicates some error of law; it is merely the Tribunal doing its job. Thus in paragraphs 5, 6 and 7, criticism is made of the Tribunal in accepting the Respondent's version; that is not an error of law - and so also Mr Venkatasamy complained of Mr McKeating's word being taken as against his, but that is exactly what the Tribunal is entitled to do if they think that is the right course, having heard the evidence and seen the witnesses. Some complaints, as it seems to us, are misplaced almost to the point of absurdity; thus one of the complaints by Mr Venkatasamy is this:

"The Tribunal failed to consider the seriousness of giving a wrong infusion to a patient by the Respondent. One panel member had asked "

What is an infusion?". The Tribunal accepted the Respondent's version of events and even accepted when the Respondent was informed on time about the wrong infusion being given they did absolutely nothing." Why was it wrong for a member of the Tribunal to ask "What is an infusion"? Strictly speaking, even a cup of tea is an infusion. Should a member of a Tribunal, not knowing what precisely was the technical significance of an infusion in the context of nursing, have remained ignorant if he had doubts about the meaning, or should he have asked the question "What is an infusion"? Plainly it was right, if he had doubts, to ask what was an infusion in the particular context.

[18]Mr Venkatasamy then goes on to say that it was the Respondent's version that was accepted. That, as we have mentioned already, is part of the Tribunal's task Moreover, one has to recollect that the Tribunal had to decide the case on the evidence that was then in front of it. There is an allegation that concerns removal of drugs from a controlled drugs cupboard, the Tribunal says:

"On the same day, 28 August 1998, Sister Scantlebury stopped the Applicant on seeing him remove drugs from a Controlled Drugs (CD) Cupboard on his own which was contrary to the Ward's drugs administration policy which required the presence of two qualified nurses during the handling of the drugs."

As to that, Mr Venkatasamy says:

"The Tribunal failed to consider that administering control drugs (CD) does not involve two qualified nurses. Only one nurse needs to be qualified. Opening the cupboard door of the (CD) cupboard does not contravene the Ward's drug administration policy. No such policy was produced by the Respondent at the Tribunal hearing. I now enclose a copy of that policy for the purposes of this Appeal."

But Sister Scantlebury, a black, gave evidence which a Tribunal accepted. Even if a policy document is now produced to the contrary, that proves no error of law on the material which was in front of the Tribunal at the time they had Sister Scantlebury's evidence given to them.

[19]Then Mr Venkatasamy says:

"The Tribunal failed to consider further victimisation on the 5 July 1999 when the Respondent dismissed me from my employment just four weeks before I was due to complete my year's service in order to deny me a claim for unfair dismissal."

But the Tribunal specifically referred to that in their paragraph 16. The Tribunal well knew the claim included a claim for victimisation - see their paragraph 5. The subject of the "rushing through" (if one can so describe it) of procedures to avoid a claim for unfair dismissal was in front of the Tribunal, it was considered by them. In effect, they were, no doubt, saying that the Hospital Trust would have rushed through the procedure whether a person was black or white, and whether the person was male or female. It would have been, at the time, a wish by any employer to proceed quickly to avoid the change in regulations which was in mind. One does not prove discrimination by showing that one was treated as everyone else would have been treated, nor does one prove that a point was not considered by saying that it was not decided in one's favour.

[20]Mr Venkatasamy says that the Respondent could have adjourned the proceedings against him, and he adds:

"Are they suggesting that they are in a better position and more qualified than a doctor to determine whether or not I am in a position to return to work?"

But Mr Venkatasamy went on sick leave on 18 February. The Tribunal said in their paragraph 9(52):

"(52) The Applicant went on sick leave on 18 February 1999 and apart from returning to work on 16 May he was off sick until the termination of his employment on 5 July 1999. (53) On 14 April 1999, the Applicant was seen by Dr Howard Vaile of Occupational Health. Dr Vaile could see no medical reason for supporting the Applicant's wish to reduce his working hours or to avoid night shift work in the future."

[21]There were then some meetings convened, and Dr Vaile advised again - and his final advice was as the Tribunal said in their paragraph (57):

"Dr Vaile could find no reason for changing his medical assessment."

And there was yet another meeting, which is described by the Tribunal in their paragraph (58):

"The Applicant attended but said that he had been advised by his solicitor to say nothing. He handed a medical certificate for certified absence for one month from 23 June 1999. He said he was still sick. He did not seek an adjournment."

That there could have been an adjournment says nothing to disprove the Tribunal's view which was given towards the end, where they say in paragraph 16:

"The Hospital dismissed the Applicant for genuine reasons - capability,"

And where, towards the end of their Decision, they say:

"The Applicant had a sickness record of five months (from 17 February to 5 July 1999 - with only one day's attendance during that period) and given that he had only been employed for six months by 17 February 1999, the Hospital had genuine reasons for dismissing him on the grounds of capability. In the circumstances, the dismissal was not an act of race discrimination or victimisation against the Applicant contrary ……."

And they mention the various sections which had been in play.

[22]Mr Venkatasamy even claims that the rightness of his case is proved by the number of IT1s that he lodged. He says:

"Clearly I have been victimised and this is supported by the fact that it was required to file three separation IT1s in support of my claim for victimisation and discrimination."

That argument, were it to be right, would lead to the ridiculous view that a person who filed four complaints necessarily had a stronger than one who had only filed only one.

[23]We have read through Mr Venkatasamy's various complaints; we have not dealt with each of them expressly; we have dealt, I hope, with the more likely runners that he invites us to look at, but we have not been able to find any arguable error of law and accordingly we must dismiss the appeal even at this preliminary stage.