MISS E B DIME v BRENT, KENSINGTON, CHELSEA AND WESTMINSTER MENTAL HEALTH NHS TRUST [2002] UKEAT 0806_02_0611

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 0806_02_0611Case No Appeal No. EAT/0806/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS E B DIMEAPPELLANTBRENT, KENSINGTON, CHELSEA AND WESTMINSTER MENTAL HEALTH NHS TRUSTRESPONDENT
Before
His Honour Judge J McMullenDate 6 November 2002
[1]APPEARANCES For the Appellant MS E B DIME (The Applicant in person) and (The MR STEPHEN WHALE (of Counsel) Appearing under the Employment Law Appeal Advice Scheme HIS HONOUR JUDGE J MCMULLEN QC This claim is about race discrimination, victimisation, unfair dismissal and unlawful deduction of wages. It is an appeal by the Applicant in proceedings against a reserved decision of an Employment Tribunal sitting at London Central over eight days in 2002, promulgated with Extended Reasons of twenty pages on 18 June 2002. The Applicant was not represented. The Respondent was represented by Counsel. We will continue to refer to the parties as Applicant and Respondent. The Applicant made claims based on the jurisdictions we have outlined above. The Respondent denied the allegations.[2]The essential issues in the case were defined by the Tribunal, following an earlier directions hearing, as: 1 Direct race discrimination 2 Victimisation 3 Constructive unfair dismissal 4 Unauthorised deduction from wages Within those major headings were sub-headings, the most important of which was to determine whether certain aspects of the direct race discrimination and victimisation claims could be pursued, given that they related to a time three months before the Originating Application was presented. The Employment Tribunal decided against the Applicant on all her claims.[3]The applicant challenges that decision on grounds set out in a Notice of Appeal extending to 106 pages and in a Skeleton Argument presented today extending to 39 pages. She has today made submissions to us directly and has been assisted by Mr Whale, who has represented her under the ELAAS Scheme. We are very grateful to him for his help in clarifying the issues on the appeal.[4]The Applicant by profession is a clinical nurse specialising in alcohol and substance misuse. The Respondent is an NHS Trust engaged in the provision of treatment for mental health. The Tribunal dealt with a number of procedural issues and also with the substantive issues. The procedural issues were dealt with both at the outset of the hearing and at various stages during the course of the hearing. The decisions on some of the procedural issues, as well as the decision on the substantive issue, have led to a further challenge by the Applicant that the Employment Tribunal Chairman and each of the Lay Members were biased. We will return separately to the allegations of bias and procedural irregularity; suffice it to say that certain of the procedural issues were resolved at the outset including disclosure issues, the Applicant's application for adjournment, and the Applicant's application to call an additional witness, which was granted.[5]At the outset the Tribunal made clear that it found that the Applicant showed commendable command of the content of the documents. The Chairman, in the Extended Reasons, recorded that she had explained to her the procedure. At the outset of the Extended Reasons the Chairman recorded that the Applicant had a tendency to shout and to address the Respondent's witnesses in a confrontational way.[6]The Tribunal had evidence from the Applicant and from a witness, Mr W Acquaah. It had evidence from the Respondent in the form of nine live witnesses. In addition, documentary material had been received from two other persons, one for the Applicant, and one for the Respondent. The Tribunal had six volumes of agreed bundles, which are available to us and extend to almost 1000 pages. The directions given by the Employment Tribunal at its earlier hearing included a direction for the exchange, well in advance, of witness statements. This was not done by either party.[7]The Tribunal was well aware that the Applicant was unrepresented, and paid attention to that. Representation was an issue before the Employment Tribunal because the Applicant unusually put before it, in the course of her application for an adjournment, the circumstances in which she had initially been granted representation by the CRE which shortly before the hearing had been withdrawn. No reasons, the Applicant told the Tribunal, were given for this.[8]We too have been engaged in the issue of representation as will appear from our account of the allegations of bias, and also because the Applicant has disclosed to us in our papers the proceedings of the CRE which contain advice to her and assessment of the chances of success in her case. Invited by Mr Whale, the Applicant told us about the representation position. We consider that the Applicant was faced by the CRE with a difficult situation but all of this material was put before the Employment Tribunal and we consider that the Tribunal made allowances for the difficulties which she undoubtedly faced. We too have paid careful attention to the difficulty that an Applicant before us would have in commanding the voluminous documentation and the issues which she is presenting. She told us that she had had assistance from persons with various degrees of legal experience in presenting to us the Notice of Appeal and the Skeleton Argument.[9]We have, during an extended Preliminary Hearing, given careful attention to what she has told us as well as to the documentation we have looked at during the course of our preparation in advance of this case. What we describe in the following paragraphs will no doubt seem jejune to the Applicant given the amount of material she has put before us but we have attempted to extract the relevant material such as would enable us to tell the story and to make the decisions that we do.[10]The Applicant is black African. She was engaged by the Respondent in November 1998 from an agency. In November 1999 she was engaged as the Nurse Specialist in Alcohol, based at the Respondent's premises at Soho Square. Also in those premises was Ms M Daley. They got on. In July 2000 an entry appeared in the message log at the Soho Alcohol Unit addressed to 'Ebi' (which is the Applicant) stating that it is from 'everybody' saying this: " "Africa Rag" "Nobody wants you Nobody loves you and I am nobody"." The Tribunal found that the writing was that of another Ms Daly - Ms P Daly. The Tribunal found that on 5 September 2000 an argument took place between the two of them. The Applicant gave notice to Ms P Daly and to a relevant manager, Mr May, that she wished to complain about the treatment she was receiving and wished to initiate the grievance procedure. Mr May was the team manager and coordinator. On 7 September a telephone conversation took place between the Applicant and Miss Boother, an employee of a different Trust. As a result, the Applicant went to a staff meeting where the issue was discussed. The Applicant stood up and shouted at various other persons there. The relevant manager, Mr May, was concerned about the Applicant's behaviour. He spoke to her and told her that he was concerned for her wellbeing and asked her to go home pending the making of an Occupational Health Department appointment. Her absence would be authorised and paid. She sought advice from her Union. She typed a resignation letter but never handed it in. An appointment was made within the Occupational Health Department, which, as it happens, is part of a different NHS Trust. A further appointment was made with Dr Graneek of that Trust but she failed to attend. She had however seen a nurse, Ms Strover.[11]The Applicant was told in due course, by Ms Carroll, that there was an ongoing investigation pursuant to the Applicant's grievance recorded about Ms Daly. Ms Carroll is the Sector Manager (Hammersmith and Fulham) Substance Misuse Services. The Applicant continued to be at work while Ms Carroll continued her investigation into the grievances. During the course of this grievance investigation Ms Carroll interviewed a large number of people. On 13 November the Applicant attended the office to meet with relevant officers. The Tribunal found this:
"She was welcomed by Miss P Daly who told her, inappropriately, that she was being transferred to the CAPS Team."
The Tribunal decided that the meeting was a return to work interview because, although the Applicant was continuing in employment, she had been off sick. The Applicant, the Tribunal found, agreed to be redeployed to the CAPS Team while the investigation continued, but for a limited period. She so started on 14 November 2000. The work there was drug related and some alcohol related problems were also dealt with. She did not need to be inducted into the workings of this department, the Tribunal found.[12]The investigation continued and a meeting was set up for 30 November 2000 for the Applicant to attend but was cancelled because of the Applicant's Union representative's illness. On that date the Applicant made her first reference to direct discrimination but did not set out the grounds. Further cancellations of meetings with Ms Carroll took place until she finally attended an investigation meeting with her on 1 February 2001 accompanied by her Union representative. The Applicant failed to attend a further meeting on 12 February 2001, explaining that she had not been notified. The Tribunal did not accept that explanation. It turns out that the Applicant was no longer represented by her Union representative at that stage. Shortly thereafter the Applicant was rostered to do dispensing duties. The Tribunal found that this was something she was experienced in doing. On a straightforward dispute as to that issue the Tribunal found the Respondent's evidence credible. The Applicant was told to carry out the duties. She refused. On that basis Ms Carroll and another officer decided to suspend the Applicant. On 21 February 2001 she attended her last day. On 22 February 2001 the Applicant suffered a breakdown and was certified sick thereafter. On 14 March 2001 Ms Carroll issued her investigation report into the grievances submitted by Miss Dime, and the investigation of management about the Applicant's behaviour. It was Ms Carroll's recommendation that the issue be considered against the Applicant under the Respondent's disciplinary procedure.[13]The Tribunal found that 15 March 2001 was the date from which the Originating Application might draw its sustenance, because on 14 June 2001 the Applicant presented her Originating Application. The Respondent wrote to the Applicant on 15 March asking her to attend a disciplinary hearing. She did not attend. A further hearing was convened. Again she did not attend. On 2 May 2001 the Respondent set out six allegations to be considered at a disciplinary hearing. It is not necessary for us to detail those allegations but they relate substantially to what the Respondent regarded as inappropriate behaviour by the Applicant against other members of staff and refusal to work according to reasonable directions. The Applicant was advised a decision might be taken if she failed to attend. On 8 May 2001 the Applicant presented grievances against Ms Carroll and other members of the management team. A disciplinary hearing scheduled for 15 May 2000 [2001] went ahead. The Applicant did not attend and it was adjourned. On the day of the adjournment, 7 June 2001, the Applicant resigned and claimed constructive dismissal. Nevertheless, the hearing took place. Following the disciplinary hearing on 7 and 8 June a letter was drafted notifying her of the result of the hearing but it was not sent. It did send a letter on 18 July, indicating that it had received her Originating Application. It denied that the Respondent was in a fundamental breach of contract and that at the disciplinary hearing it had been decided that the Applicant's contract of employment should be summarily terminated for gross misconduct. That was the scope of the evidence before the Employment Tribunal.[14]The Tribunal heard submissions, including a written Skeleton Argument presented by the Applicant, and by counsel for the Respondent. The Tribunal referred to those in its reasoning. The Tribunal then considered the complaints which had been made, taking first the issue of race discrimination. It correctly addressed itself to the relevant section of the Race Relations Act , Section 68(1), which requires the Tribunal to consider, in a case where a complaint has been presented late, whether the Tribunal might nevertheless hear a claim in accordance with what it considered to be just and equitable. It further directed itself that:
"… an act extending over a period shall be treated as done at the end of that period."
This was what the Tribunal considered to be the jurisdiction issue. The Tribunal set out the authorities upon which it was directing itself. These were all the appropriate authorities in our view - Barclays Bank plc v Kapur [1991] IRLR 136, Owusu v London Fire and Civil Defence Authority [1995] IRLR 574, Sougrin v Haringey Health Authority [1991] IRLR 447. The Tribunal found that the Applicant had not shown that there was any breach of a rule or regulation which had continuing effect and decided that the matters within her complaint did not fall within a continuing act as provided for by Section 68(7)(b).[15]It then considered whether it was just and equitable to extend the time pursuant to Section 68(6). In its approach to this the Tribunal recorded as follows:
"In reaching our decision on this issue we took into account the evidence of Miss Dime when questioned by the Tribunal. She told the Tribunal that she had sought advice from a Professor Grimes and knew of the three month time limit on 1 February 2001. She had one initial consultation with him and in March 2001 supplied him with full information."
The Tribunal also noted that the Applicant had been in touch with solicitors and with her Trade Union, in the latter case from 7 September 2000. The Tribunal then said this:
"The Tribunal was not satisfied that Miss Dime has put forward any evidence as to why it is just and equitable for the time limit to be extended and it is therefore the unanimous decision of the Tribunal that the matters about which she complains prior to 15 March 2001 are out of time and it is not just and equitable to extend time and therefore there is no jurisdiction for the Tribunal to determine these matters."
[16]The Tribunal then considered race discrimination and addressed itself correctly to Section 1(1)(a) and Section 4(2)(c) of the Race Relations Act 1976 . It then addressed itself to the relevant authorities which are King v The Great Britain China Centre [1991] IRLR 513 , as approved by the House of Lords in Zafar v Glasgow City Council [1998] IRLR 36 . The Tribunal summarised the effect of those judgments, correctly indicating that it was to look at primary facts and draw such inferences as it considered proper, bearing in mind that this is a notoriously difficult task to do, there usually being no direct evidence. Further, and this will become important later in this judgment, the Tribunal said this:
"In considering whether to infer discrimination the Tribunal must also be guided by the guidance given in Anya v University of Oxford [2001] IRLR 405 CA."
That case contains an exhaustive analysis by the Court of Appeal of the material which should be examined by an Employment Tribunal and it includes reference to the guidance providing relevant codes of practice including that issued by the CRE.[17]The Tribunal then concluded that if it were wrong on the issue of discrimination prior to the relevant date, the issue which it had to decide was whether the Applicant had been discriminated against in the course of events which we have described above. It took into account the evidence of Mr Acquaah who had been called by Miss Dime:
"He told the Tribunal that race did not come into his discussions with Miss Dime. He said that Miss Dime said that she felt she was being unfairly treated but that he did not know why. He said that Miss Dime felt that she was not being supported enough within the team. Mr Acquaah was a black work colleague and he specifically said there was no complaint of race discrimination by the Applicant made to him up to February 2001. We take particular note of this evidence as it is likely that Miss Dime would have confided in a fellow black colleague."
The Tribunal therefore concluded that if it were wrong about the issue of jurisdiction, there was no evidence from which it would infer that the Respondent treated the Applicant less favourably on account of her race prior to 15 March 2001.[18]The Tribunal then turned to the issues succeeding 15 March, which it defined as being the disciplinary hearing and the new grievances which she presented. The Tribunal found that the hearing took place following a number of adjournments. There was no evidence of any comparator and no evidence from which the Tribunal could infer that the dealings with Miss Dime's disciplinary hearing or her grievances against the various officers were because of her race. The Tribunal therefore rejected her claim of direct race discrimination.[19]It then turned to the issue of victimisation. It found, in relation to the jurisdiction issue, that it had no complaint to consider this issue prior to 15 March 2001 for the same reasons as it had decided in its principal decision. The Tribunal correctly addressed itself by reference to Section 2(1)(c) and 2(1)(d) of the Race Relations Act 1976 and the relevant authorities which we hold to be – Aziz v Trinity Street Taxis Ltd [1988] IRLR 204 and Nagarajan v London Regional Transport [1999] ICR 877 . It noted that the Applicant had relied upon her grievance against Ms Daly and Mr May on 6 September 2001 as the protected act. She alleged that all other matters amount to victimisation because she presented that grievance which was a protected act. The grievance made no allegation of race discrimination or alleged any facts upon which a breach of the act could have been founded. The Tribunal thus determined that the Applicant failed to show any causal link between the grievance and the matters about which she complained.[20]The Tribunal then turned to the claim of constructive unfair dismissal. It correctly addressed itself to Section 95(1)(c) of the Employment Rights Act and to the relevant authorities which we hold to be - Western Excavating (ECC) Ltd v Sharpe [1978] ICR 221 and Hilton v China Limited – Builders Merchant [2001] IRLR 727, this deals with the implied term of mutual trust and confidence and draws on an earlier judgment, Malik v BCCI . Those were correct self directions. The Tribunal concluded that the Applicant's claim that her treatment by the Respondent from September 2000 to June 2001 as being a breach of the express term of her contract of mutual trust and confidence failed. The Tribunal examined each of the issues upon which she had made her complaint at length and dismissed each one as being either a breach in itself of the contract of employment, or together, constituting a fundamental breach.[21]The Tribunal then turned to the claim of unauthorised deduction of wages and concluded that the Applicant had failed to adduce any evidence and had not proved on the balance of probabilities that there had been any unauthorised deduction. It therefore rejected all of the Applicant's claims.[22]In her grounds of appeal, as refined with the assistance of Mr Whale today, the Applicant takes the following points: (i) That the Employment Tribunal misapplied the law. This relates to a claim that the Tribunal, in its finding on jurisdiction, got the dates wrong when it recorded her knowledge of the obligation to make a claim within three months of the relevant act. The Tribunal had made a decision expressly on the dates but in her further grounds of appeal, at paragraphs 11.2.3 and 11.2.4, the Applicant submits as follows:
"11.2.3 I approached Prof. Grimes for free legal advice in February 2001. I was able to supply him with further information after attending my initial investigation meeting of 1 st February 2001 with the Respondents investigating officer to my complaint, Ms Carroll. 11.2.4 During the course of the month of February, I supplied Prof. Grimes further information as I came in possession of the same to assist him. On 12 th March 2001, I approached my union …"
It seems to us, therefore, that the finding by the Tribunal of knowledge following contact with Professor Grimes is a correct finding, by reference to no other document than the further provisions of the grounds of appeal. In any event, although this did not form part of the Tribunal's reasoning, the Applicant, in her grounds of appeal, fixes as the date of her contact with solicitors, 9 April 2001. She told us today that on that date she knew there was a three month time limit and this was the first time that she knew about it. It seems to us that, from that time at least, the Applicant knew and could have encompassed some of the events which the Tribunal had shut out. As we say, the Tribunal did not consider this matter, but it does add support for the principal finding which it made about knowledge in early February. The Applicant, under this head, also complains that the Tribunal had misdirected itself on the nature of an ongoing act, that is, the grievance. We have set out the chronology about this matter which indicates by reference to the findings of the Tribunal that the Tribunal, having looked expressly at those authorities which regulate the meaning of an ongoing act, cannot be faulted for its decision that there was no matter that fell within that definition. (ii) The Applicant complains that the Tribunal failed to apply relevant codes of practice . When we referred to the Tribunal's self direction on Anya we indicated that that authority included guidance to Tribunals which included also a reference to the codes of practice. It seems to us that by express reference to Anya the Tribunal has encompassed its approach to the relevant codes of practice. (iii) The Tribunal failed to ask correct legal questions . The approach to this is, as Mr Whale put it, illustrated by its approach to the comparator. As we indicated the Tribunal allowed the Applicant to call evidence from Ms P Daly as a comparator. In fact Ms Daly did not appear, and so the Applicant's claim of a directly relevant comparator could not be assisted by live evidence from that comparator. Nevertheless the Tribunal had in front of it a submission. It is not necessary in our judgment for a live witness to attend to illustrate a difference of race. It may well be that it could easily have been accepted that Ms P Daly is of a different race. Nevertheless the criticism of the Tribunal is that it failed to move on and consider in the alternative the hypothetical comparator. In our judgment this is a difficult contention because the Applicant had based her case throughout on an actual comparator and when Ms Daly failed to attend she could still, and did, maintain that argument before the Tribunal. It seems to us that if the Tribunal rejected the actual comparator it would also have rejected the hypothetical comparator. The Court of Appeal in Balamoody v UK Central Council etc [2002] ICR 646 did not require a hypothetical comparison to be made in all circumstances. In either case it cannot be faulted. (iv) The Tribunal exercised its discretion with apparent bias and contrary to the rules of natural justice . This aspect of the bias claim relates to the timing of the service of witness statements. We have already explained how the Tribunal dealt with the failure by both sides to serve witness statements on time. The Applicant claims that the order of the witnesses' evidence was changed. That must be a matter for the respective parties and of case direction for the Tribunal. Its decision on not interfering with the Respondent's decision as to the order of witnesses, cannot be faulted. Further the Applicant claimed today that the Tribunal had given a direction that all witnesses should be excluded from the hearing until it came their time to give evidence. The substance of this is that the Applicant contends that a witness who gave evidence at the end of the Respondent's case had been present throughout the hearing. This issue is dealt with by the Applicant in an affidavit, but as a matter of principle, it seems to us that the hearing in public will contain all persons interested in the hearing. In our experience, extremely rarely is any witness excluded from the proceedings in England and Wales. The allegation is that a person who hears the evidence may be able to change their evidence. That is true, but in this case the evidence had been adduced on witness statements and we do not accept from the Applicant that there had been a blanket direction by the Chairman that all witnesses should be excluded, otherwise she would have made that clear in the written reasons of the Tribunal and in her comments upon the Applicant's evidence. (v) The Tribunal exercised its discretion wrongly . This relates to the exercise of its discretion to decline to extend time. As Mr Whale put it, it went with his early point, and we need spend no time on it. (vi), (vii) and (viii) The Tribunal made decisions without sufficient evidence to support them . By way of illustration Mr Whale put before us a statement of Ms Corney which had been taken on oath in Australia, and an unsigned statement of Ms Boother which had been submitted by the Respondent. Again, we consider this is a matter of case management for a Tribunal to determine whether to admit such material in the first place and what weight to give it. We see no error of law in the decision which it made. It was also contended that the Tribunal had made an adverse finding against the application about the evidence on deductions. We reject that contention. The Applicant told us that she had some material about money but in our judgment the Tribunal's decision, that she had failed on the balance of probability to establish her claim, was one which was open to it to make. (ix) An irrelevant consideration was used to arrive at certain decisions . This was a reference to the evidence of Mr Acquaah which was the subject of a passage in the Applicant's affidavit, which had been ordered by the Registrar of the Employment Appeal Tribunal to be sworn, and was the subject of a comment by the Chairman and the Lay Members. In particular the Lay Member, Mr P Woods, said this about Mr Acquaah (the finding on whose evidence we have related above):
"On page 2 of Miss Dime's affidavit, in discussion of Mr. Acquaah's evidence she states that "the panel left itself open to the complaint of bias with the assumption that I could only freely confide in a fellow black person about my experiences of racial discrimination."
. She then goes on to link this with her inference of the tribunal's inadequacy and prejudice: It was I who asked the question of Mr Acquaah at the conclusion of cross-examination of his evidence on day 3, 24 April.' He had been giving evidence on Miss Dime's induction and feelings of competence. I asked him whether, at any time, Miss Dime had expressed to him any concerns of discrimination against her on the grounds of race. Mr. Acquaah's reply was "No". (my notes confirm). My question was a "face-value" question in a situation where Miss Dime had alleged that she had suffered detriment because of her race. Mr. Acquaah was Miss Dime's only live witness (there was a witness statement from Carey) and he was clear that she had never expressed such concerns to him." In the light of that response it seems to us that the Applicant's contention about considering an irrelevant matter must fail. (x) The Tribunal made a perverse decision As to this, we disagree. There was evidence before the Tribunal for each of the decisions which it made. We are told, however, that this claim is based upon the allegation that the Tribunal did not conduct itself in an impartial way and in accordance with the rules of natural justice.[23]This naturally leads to the Applicant's affidavit, to which we have briefly referred. The flavour of her approach to this subject can be gathered by the first principal paragraph:
"I am alleging bias on the part of the Tribunal panel firstly because there was no black person on the panel, even though I am aware that this is not a requirement. Consequently, there was no check on the panel and the Chairman with respect to attitudes, assumptions, prejudices, preconceptions and beliefs through the lack of a member from the ethnic minorities. … The panel left itself open to the complaint of bias with the assumption that I could only freely confide in a fellow black person …"
We asked Miss Dime about that issue. It seems to us that the central premise for her dissatisfaction with this case, is that there was no black person on the panel. This has been effectively dealt with in our judgment by the comments of both of the Lay Members and by the Chairman. The practical position is that in London Central, where a race discrimination claim is made, steps are taken in every case to ensure that there is on the panel a person who has experience of race relations matters. This is pursuant to an undertaking given in Parliament at the time of the passage of the Race Relations Act and represents, in our experience, the practice of Employment Tribunals throughout the United Kingdom. Both of the Lay Members in this case were members of the appropriate panel. It goes without saying that race discrimination claims can be adjudicated by persons with appropriate experience and training of any racial group. We regret that the Applicant has made this allegation based upon this central false premise. Just so that our position is made clear, the Lay Members of this Appeal Tribunal have had the benefit of racial awareness training and are experienced in this field.[24]The Applicant makes a large number of allegations about procedural irregularity. In our judgment the Tribunal did make considerable concessions for the Applicant and recognised the principle of inequality of arms in its case management. The Chairman has responded on each of the issues which the Applicant raises which do not go to the allegation of direct actual bias, leaving that matter to this Appeal Tribunal, and to matters of law, which again she leaves for this Appeal Tribunal. We accept what the Chairman tells us about how the proceedings were conducted and what steps were taken to balance the inequality of arms which was apparent at the hearing as a matter simply of representation. It is not unusual for a Tribunal to be addressed by an Applicant in person and by counsel. We are satisfied that steps were taken in this case to make due adjustments for that and the volume of material which was being put before it. We say that, not only because we accept what the Chairman has said and reject the central premise of the Applicant's case, but because also we have had the advantage of reading comments made by the two Lay Members.[25]In those circumstances, we hold that the Tribunal and each member of it is not guilty of actual bias, nor of apparent bias, nor are there procedural irregularities indicating misconduct by the Chairman or the Members in the treatment of the Applicant's case. This appeal is dismissed.