CAMDEN & ISLINGTON MENTAL HEALTH NHS TRUST (NOW MATERIALLY SUCCEEDED BY: CAMDEN & ISLINGTON MENTAL HEALTH & SOCIAL CARE TRUST) v MS J A AKINMOLASIRE [2003] UKEAT 0332_03_0910

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0332_03_0910Case No Appeal No. EAT/0332/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
CAMDEN & ISLINGTON MENTAL HEALTH NHS TRUST (NOW MATERIALLY SUCCEEDED BY: CAMDEN & ISLINGTON MENTAL HEALTH & SOCIAL CARE TRUST)APPELLANTMS J A AKINMOLASIRERESPONDENT
Before
His Honour Judge Prophet Mr D Chadwick Mr K EdmondsonDate 9 October 2003
[1]APPEARANCES For the Appellant MR MARTIN WARD (of Counsel) Instructed by: Messrs Beachcroft Wansboroughs Solicitors 100 Fetter Lane London EC4A 1BN For the Respondent MS J A AKINMOLASIRE (the Appellant in Person) HIS HONOUR JUDGE PROPHET Ms Akinmolasire submitted a complaint to the Employment Tribunal at London (Central) on 7 February 2002 in which she complained of racial discrimination by her former employer, a National Health Service Trust.[2]That discrimination was alleged to have arisen by the decision to dismiss her from her employment with effect from 29 November 2001, but also by specific incidents during her employment and also by virtue of victimisation. The Trust denied racial discrimination and victimisation.[3]The case came up for hearing before an Employment Tribunal sitting at London (Central) on 21 to 25 October 2002, with Mr P R K Menon as the Chairman and Mr D R Heard and Ms S Newte as the lay members. That hearing was followed by a chambers meeting on 6 December 2002 with the written decision and Extended Reasons being promulgated on 14 February 2003.[4]The decision reads:
"The unanimous decision of the Tribunal is that: (i) the Applicant's complaint of race discrimination against the Respondent under sections 1 (1) (a) and 4 (2) (c) succeeds and the Respondent is Ordered to pay the Applicant the sum of £2,240.00 in respect of the said act of race discrimination; the said sum of £2,240.00 being the total sum of £2,000.00 for injury to the Applicant's feelings and the sum of £240.00 interest thereon at 6% from 22 October 2001 to 25 October 2002."
[5]On the face of it, the form of that decision is unusual in that there is the (i) preceding the actual decision itself which suggests that the Tribunal intended to say more in the decision. This is confirmed by the Extended Reasons where the Tribunal indicate that several of the complaints of race discrimination in the Originating Application failed. It appears, therefore, that the decision itself was incomplete and that a full reading of the reasons is necessary to ascertain what the Tribunal decided in respect of the various claims.[6]However, the appeal by the employer concerns the only finding which favoured the complainant; indeed, the one that is set out under their heading " Decision ". The appeal is based first, on a submission that the Tribunal found in favour of the complainant in a matter which was not a complaint within the Originating Application. Secondly, that the Tribunal failed to apply the correct test of discrimination under the Race Relations Act 1976 and, thirdly, that there was no evidence to support the Tribunal's finding that the complainant suffered a detriment on racial grounds.[7]His Honour Judge Peter Clark in chambers ordered a direct full hearing of the appeal and we are constituted today to hear that appeal.[8]Mr Ward of Counsel, who was the representative of the employer at the Employment Tribunal, represents them again today. Ms Akinmolasire has attended but is not represented, as indeed she was not at the Employment Tribunal hearing. However, the Originating Application was prepared on her behalf by solicitors.[9]When we look at the first point of appeal by Mr Ward, we find that there is no specific complaint in that Originating Application of race discrimination arising from a failure by the employer to investigate a complaint made by Ms Akinmolasire at the end of the extended probation review meeting in October 2001.[10]There was a directions hearing before Mr G P Sigsworth, Chairman of the Employment Tribunal, on 23 May 2002 where again Ms Akinmolasire was represented by a solicitor, but again no specific complaint of this nature was identified. No request for any amendment to the Originating Application seems to have been made.[11]At the hearing itself, no submissions were advanced on either side relating to this particular complaint, and it therefore came as a surprise to the employers when they received a copy of the reserved decision of the Employment Tribunal to find that the Tribunal had considered and found in favour of Ms Akinmolasire on this matter.[12]We agree with Mr Ward that there was thereby a failure by the Employment Tribunal to follow the guidance of the Court of Appeal in Chapman v Simon [1994] IRLR 124 , which makes it clear that an Employment Tribunal dealing with race discrimination complaint can only attend to those matters which are specifically complained about.[13]As the Employment Tribunal in effect reached a decision on a matter which it was not open to them to adjudicate upon, there was a misdirection by the Employment Tribunal to itself. It must follow that the proper course for us to take is to allow the appeal and to quash that part of the decision of the Employment Tribunal which has been appealed to us today.