Mensah v East Hertfordshire NHS Trust [1998] EWCA Civ 954 (10 June 1998)

Peter Gibson L.J.: Mrs. Esther Mensah is a black lady of Ghanaian racial origin. She is a well-qualified and experienced nurse and midwife. She arrived in England in 1970 and has worked in various hospitals in England, has a certificate for teaching midwifery and runs her own agency nurse organisation. The East Hertfordshire NHS Trust ("the Trust") operates the Queen Elizabeth II Hospital ("the Hospital") in Welwyn Garden City. Mrs. Mensah worked on several occasions in 1990 in the Maternity Department of the Hospital as an agency nurse. In 1991 she made two applications for posts in the Hospital, one in the neonatal unit (which is separate from the midwifery unit), but was unsuccessful on each occasion. In late 1993 she made enquiries as to vacancies in the Hospital. Her complaint, which was made to an Industrial Tribunal on 8 January 1994, related to the way she said she was treated in response to those enquiries. In her Form IT1, which she completed herself, she complained of racial discrimination. The details which she gave of her complaint extended to 4 pages in manuscript.

Her account was as follows. On 3 December 1993 she enquired by telephone whether the Hospital had any vacancies for midwives, only to be informed that 5 E grade posts had just been filled. On 10 December she called again to express her concern about that information, spoke to a manager and was told that there had been complaints about her work from the sisters and a patient. She described those complaints as discriminatory. The director of midwifery services had previously informed her that nothing had transpired to cause concern and her fear of discrimination had been allayed. On another occasion information given by a manager to her that agency midwives were being booked had been denied by the director. The incidents in 1993 were described by Mrs. Mensah as follows:

"Around September/October 1993, I made another of those enquiries about any vacancy and was informed there was none. I felt despondent and asked whether there was any anticipation for any possible vacancy and was informed not in the near future. On the same day, I made enquiry on the neonatal unit and learnt from one of the sisters that there were one or two and that I should give my name and address for an application form to be sent on consultation with the manager and that I should expect a call by phone the next day to confirm. Towards the end of the following day, as nothing happened, I called to enquire only to be informed that they could not send me an application form. I could not believe this! The reason they could not send me an application form was because the vacancies were not confirmed yet. I felt I could be placed on a waiting list if that was the case. I did not expect the impossible. When I learnt on the 10 ^th of December that five or so vacancies have been held on the neonatal unit and five vacancies on the maternity, I could not believe my ears and straight away tried to complain to the director."

She sent to the Hospital a letter of complaint on 17 December 1993 but said that nothing was done. She asked how 10 vacancies from September / October appeared, advertisements had been placed, and the vacancies filled, and what were the qualifications, experience and ethnic origins of the "lucky nurses and midwives". She felt that she had been discriminated against because of her nationality and race and not because of her work. She referred to a number of provisions of the Race Relations Act 1976 including s.1(1)(a) and although she did not refer to s.4, it is obvious that she was alleging that the Trust in relation to employment by it at the Hospital was discriminating against her in the arrangements it made for the purpose of determining who should be offered that employment (s.4(1)(a)). The employment in question would appear to have been to fill one of the "five or so vacancies" on the neonatal unit or one of the five alleged vacancies in the midwifery unit.

However when Form IT3 was completed by the Trust giving notice of appearance and of its intention to resist Mrs. Mensah's application, it referred to an advertisement in the Nursing Times for E grade midwives on 10 November 1993 (the closing date for the return of applications being 24 November 1993), to the absence of a request from Mrs. Mensah for an application form and to the fact that when Mrs. Mensah telephoned in December 1993 she had already missed the closing date. But no mention was made of any vacancy arising in the neonatal unit about that time.

That hearing took place before the Chairman on 17 June 1994 and was attended by Mrs. Mensah in person and a legal representative for the Trust. A letter dated 29 June written on the instructions of the Chairman was sent to Mrs. Mensah and the Trust to record what was agreed or directed, viz. the Trust agreed to supply Mrs. Mensah within 8 weeks particulars of

The Trust also agreed to give particulars concerning the alleged unsatisfactory work of Mrs. Mensah. The letter recorded that the Trust's representative had informed the Chairman that 3 named persons would, if available, be called as witnesses. It was also recorded that the estimated length of hearing was 3 days. It is plain from that letter that it was envisaged that the 3-day hearing would be taken up with the complaint that Mrs. Mensah had not been allowed to fill one of the vacancies for the E grade midwives, including what she considered to be a false allegation about her previous work in the Hospital.

Neither side appealed against or raised any point on the outcome of that hearing as recorded in that letter, nor did Mrs. Mensah object to the particulars provided. The Industrial Tribunal heard her complaint on 2 October 1995, Mrs. Mensah appearing in person. Its unanimous decision was that the Trust did not discriminate against Mrs. Mensah on racial grounds contrary to ss.1(1)(a) and 4(1)(a) of the 1976 Act. In its extended reasons it described Mrs. Mensah's complaint as that she had been discriminated against on racial grounds by the Hospital on or about 10 December 1993 in relation to an advertised vacancy at the Hospital for a midwife. It recorded that Mrs. Mensah gave evidence on her own behalf, that two witnesses, including a Mrs. Kelly, gave evidence for the Trust and that there was also documentary evidence put before it by both sides. It then carefully and in detail set out its findings of fact and then expressed its conclusion that, and its reasons why, there had been no discrimination. Nothing was said about the neonatal unit vacancies. The Tribunal ended by making two criticisms of the Trust's general handling of the matter, thereby to my mind demonstrating the Tribunal's even-handed approach.

Mrs. Mensah then applied to the Tribunal for a review, alleging a miscarriage of justice on a number of grounds including "d) 1) Mrs. Kelly gave evidence that she was not in charge of the Neonatal unit ... The incident of refusal of sending me an application form in October 1993 by the manager of that unit needs to be investigated further and this could only be possible with Mrs. Mary El Rays being called for questioning."

That application was refused. Mrs. Mensah then appealed to the Employment Appeal Tribunal on much the same grounds as those on which she relied for the review. There was a preliminary hearing of the appeal in the absence of the Trust. Mrs. Mensah was represented by counsel. On 13 May 1996 Butterfield J., giving the decision of the Employment Appeal Tribunal, granted leave, expressing some hesitation in doing so. He said:

"The single point on which we have been persuaded that there is an arguable error of law in the decision of the Industrial Tribunal, relates to the issue of the appellant's contact with the respondents in relation to the vacancies at the neonatal unit as opposed to the vacancies in the maternity unit. It is plain in our judgment that the findings of fact made in relation to the application for employment in the maternity unit are such that no arguable point is disclosed. However, bearing in mind the absence of any reference to the appellant's application in respect of vacancies at the neonatal unit and the silence of the tribunal's decision on that point, we consider on that ground alone that there is an arguable ground of appeal."

"We do not believe that it is a credible case to advance to us that the Respondents believed that as a result of that directions hearing, in some way Mrs Mensah had expressly or impliedly abandoned her claim in relation to the neonatal unit. The position is this : that under Schedule 1 of The Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 an Industrial Tribunal is required by Rule 9(3) to consider the terms of an IT1 and any written representations where an Applicant does not make an appearance before it. It seems to us, in those circumstances, that had Mrs Mensah not turned up at the hearing of her complaint, the Industrial Tribunal would have been required to examine with care the terms of her IT1 and any other documentation she had provided, if they were minded to dispose of the case in her absence. In such circumstances they would have been required to apply their minds to the questions raised by the allegations in the paragraphs to which I have referred, and to have adjudicated upon them having heard any evidence or read any documents by or on behalf of the Respondents.

It seems to us that the position cannot be any different or worse for her, when it comes to her making an appearance at the Industrial Tribunal on the date fixed for the hearing. Accordingly it seems to us that where a person who is unrepresented, particularly in a discrimination case, it is appropriate that the Industrial Tribunal should be astute to ensure that all matters contained within the IT1 are dealt with, or expressly abandoned, as the case might be, by the Applicant, when it comes to their giving evidence ; particularly in a case where it would appear that the Respondents had not engaged that part of her complaint in their IT3.

The position might have been different had they asked themselves questions which arose out of that part of her IT1 which related to the neo-natal unit. Accordingly, as it seems to us, the panel of the EAT which concluded that there was an arguable point of law, had correctly identified a point which, on reflection, does demonstrate that there has been an error of law in the way that the Tribunal has dealt with this case.

The Employment Appeal Tribunal then carefully considered the options open to it and decided in favour of remitting the case to another Industrial Tribunal for a full rehearing of the matters raised in her IT1. Leave to appeal was refused. On an application to this court for leave the single Lord Justice (Mummery L.J.) on paper also refused leave to appeal. But on the renewal by the Trust of its application for leave, Waite and Potter L.JJ. gave leave to appeal, Waite L.J. observing that the Trust's arguments appeared to raise a procedural issue of some significance, which might have wider application than the facts of the particular case.

Mr. Philip Reed, appearing for the Trust before us as he did in the two Tribunals, submits that the Employment Appeal Tribunal erred in law. He says that it should not have considered r.9(3) which has no application to the facts of this case. He argues that that Tribunal wrongly analysed the way in which that rule operates in a race discrimination case, wrongly extrapolated from that to produce a rule which, he said, offended against fundamental principles of Industrial Tribunal procedure, and then wrongly found an error of law in the breach of the rule thereby produced. Mr. Morton for Mrs. Mensah submitted that the Employment Appeal Tribunal reached the right conclusion for the reasons it gave.

In my judgment the proper approach for this court as a second-tier appellate court is to concentrate not on whether the Employment Appeal Tribunal was wrong in law but whether the Industrial Tribunal erred in law (see, for example, Campion v Hamworthy Engineering Ltd. [1987] I.C.R. 966 at p.972). Without there being such error of law by the Industrial Tribunal there was no jurisdiction for the Employment Appeal Tribunal to interfere.

The error of law identified by the Employment Appeal Tribunal is that the Industrial Tribunal failed to ensure that all matters contained within the IT1 were dealt with or expressly abandoned by Mrs. Mensah when it came to her giving evidence. Another way in which the Employment Appeal Tribunal put the same point was to say that the Industrial Tribunal failed to hear part of the originating application. It necessarily follows therefore that the error of law found by the Employment Appeal Tribunal is dependent upon the existence of a duty on the Industrial Tribunal so to ensure, or a duty to hear every allegation in the originating application unless so abandoned, the Industrial Tribunal being bound to act of its own motion even if the applicant does not put forward evidence to make good the allegation nor argues in support of it. In this context it should be borne in mind that the details given by an applicant of his complaint in his IT1 in some cases are lengthy and diffuse.

There is no like duty in civil actions in the courts, even if the plaintiff is a litigant in person. It is every judge's frequent experience that more points are taken in a plaintiff's pleadings than are pursued at the trial and I cannot believe that a plaintiff who fails at the trial to take and prove a claim made in his pleadings could at the appellate stage successfully contend that the trial judge erred in law if he did not draw that claim to the plaintiff's attention to see if it had been abandoned.

Does r.9(3), on which the Employment Appeal Tribunal relied, provide a source for such a duty? It does not apply directly to the circumstances of the present case, the sub-rule only being expressed to apply where a party fails to attend or to be represented at the time and placed fixed for the hearing, and the Employment Appeal Tribunal only referred to it as providing an argument that Mrs. Mensah should not be in a different or worse position than if she had not attended or been represented. But logically, with respect, that does not follow: the circumstances are different. In any event, as Mr. Reed pointed out, if r.9(3) had applied in the present case it would not have resulted in Mrs. Mensah being in a better position than in fact occurred. It was for her to prove that she had been relevantly discriminated against and that would require evidence. In the absence of her or a representative for her, as no evidence had been proffered by her on the neonatal unit point, the Industrial Tribunal would have been bound to dismiss her complaint. I cannot see that help to found the duty can be derived from r.9(3) in the present case.

"(1) The tribunal shall, so far as it appears to it appropriate, seek to avoid formality in its proceedings and shall not be bound by any enactment or rule of law relating to the admissibility of evidence in proceedings before the courts of law. The tribunal shall make such enquiries of persons appearing before it and witnesses as it considers appropriate and shall otherwise conduct the hearing in such manner as it considers most appropriate for the clarification of the issues before it and generally to the just handling of the proceedings."

Many litigants in the Industrial Tribunal appear in person or with lay representatives and despite the wide discretion given to the Tribunal by r.9(1) it is conceivable that the courts might have recognised a duty such as that implicitly found by the Employment Appeal Tribunal. However a long and consistent line of cases gives no encouragement whatever to the existence of such a duty and consistently with the procedural rules, which apply in the same way to unfair dismissal or redundancy cases and to discrimination cases, there has been no difference of approach between the two types of cases.

I can start with Craig v British Railways (Scottish Region) (1973) 8 I.T.R. 636. In that case (in relation to an application for a redundancy payment), it had been contended in the National Industrial Relations Court that an Industrial Tribunal has a duty to ensure that all relevant evidence is before it and that that duty was particularly high if one of the parties is not legally represented. In rejecting that contention, Sir Hugh Griffiths, giving the judgment of the Court, said (at p.637):

"It is the duty of the parties to present the relevant evidence before the tribunal. That is not, of course, to say that where persons appearing before a tribunal are not legally qualified and are manifestly unversed in legal procedure that the tribunal will not give them such assistance as they can in presenting their case. But it cannot be too emphatically stated that the duty lies upon the parties to place the relevant evidence before the court".

"It certainly is not enough, in our judgment, that the point was not taken owing to a wrong, or what turns out in the light of after events to have been a wrong, tactical decision by the appellant or his advocate. It would certainly not be enough that the omission was due to the lack of skill or experience on the part of the advocate. It would certainly not, we think, be enough that the omission could have been made good had the industrial tribunal chosen to suggest the point for consideration to the appellant or his advocate. It is well established in these tribunals, and we hope in this appeal tribunal, that where the representation is a non-professional representation, or possibly even where it is an inexperienced professional representation (if such a thing can be conceived), in listening to an argument put forward by an advocate or evaluating a point of law put forward by an advocate, the tribunal will be as helpful as possible, perhaps by itself refining and improving the argument, perhaps by suggesting to the advocate that the argument might be put in a different or more favourable fashion, something of that sort. But we think that it is very far from the duty or indeed the practice of the chairman of industrial tribunals that they should be expected to introduce into the case issues which do not figure in the presentation on the one side or the other, at any rate in normal circumstances".

Next in Derby City Council v Marshall [1979] I.C.R. 731, a constructive dismissal case, an employer failed to prove in the Industrial Tribunal what it had to prove in resisting the employee's claim, viz. the reason for the dismissal and that it acted reasonably in relying on such reason. It was suggested by the employer that it was for the Industrial Tribunal to investigate both whether there was any reason which the employer could have relied on in the constructive dismissal situation and whether the employer could establish that it had acted reasonably in dismissing the employee. Bristow J, giving the judgment of the Employment Appeal Tribunal, said (at pp. 735,6):

"We think that is a wrong view of the obligations of the industrial tribunal. They are a tribunal resolving a dispute, inter partes. Of course, if one party is totally inarticulate the tribunal will do what it can to see if that party has got an arguable case, and, if it has, to do justice to that case. But the obligation of putting forward the case is upon the party".

More recently in Dimtsu v Westminster City Council [1991] I.R.L.R. 450 the employee's trade union representative conceded before the Industrial Tribunal that the employee could not make a complaint under the Race Relations Act 1976 about a particular matter because that complaint was out of time. But no application was made to the Industrial Tribunal to exercise its power under s.68(6) of that Act to extend time. On appeal evidence was presented to the Employment Appeal Tribunal that the employee's representative did not know about s.68(6) and it was argued that the Industrial Tribunal Chairman should in the circumstances have raised the question whether the employee wished to apply for an extension of time. Knox J., giving the view of the majority of the Employment Appeal Tribunal, held that there was no error of law in the Chairman not raising the question, saying (at p.452):

"First, they consider that this case falls within the general principles recognised in Kumchyk v Derby County Council , supra, that a point not taken in the Industrial Tribunal cannot be taken in the Employment Appeal Tribunal even though the failure to take it below was due to lack of skill or experience of the advocate and that the omission could have been made good had the Industrial Tribunal chosen to suggest it for consideration."

The majority expressed themselves as fortified by three considerations which have some parallel with the present case. The first was that the jurisdiction was intended to provide a speedy remedy and already in that case 3½ years had elapsed. The second was that as between the parties the fault lay on the employee in failing to take the point. The third consideration was this:

"Thirdly, we regard it as important that the principles set out in Kumchyk v Derby County Council be upheld, and not eroded by qualifications based on inferences which a chairman of an Industrial Tribunal might make. In saying this the majority would not wish to cast any doubt on the propriety of the long-established practice whereby chairmen of Industrial Tribunals give assistance where it is needed in the formulation and presentation of the cases of persons before them, be they applicant or respondent, who have not got the benefit of professional representation and indeed on some occasions when they have such representation. But this must be a matter for the judgment of the Industrial Tribunal in each individual case and should not be erected into an obligation which if not fully complied with leads to a conclusion that an error in law has been committed."

The Kumchyk principles have been referred to with approval in three decisions of this court (see Hellyer Brothers Ltd. v McLeod [1987] 1 W.L.R. 728 at pp. 761,2 and Jones v Governing Body of Burdett Coutts School , The Times 22 April 1998 and Divine-Bortey v Brent London Borough Council , The Times 20 May 1998). In the Divine-Bortey case Simon Brown L.J. (with whom Swinton Thomas and Potter L.JJ agreed) relied on the three considerations referred to by Knox J. in Dimtsu, the third of which I have cited verbatim. Moreover, where an issue which, in the language of Arnold J., did not feature in the presentation of a party is raised on appeal but would require new factual investigation, that issue will not be allowed to be raised (see Kumchyk at pp. 1123,4).

The purpose of the pre-hearing review was expressly stated as being (inter alia) to clarify the issues in the case. There is no evidence as to what occurred at the review other than the contents of the letter of 29 June 1994. We therefore have no evidence that the contents of the originating application and notice of appearance were not considered by the Chairman as the rule requires, though it is possible that the unaccountable absence from the notice of appearance of any reference to the neonatal unit complaint misled the Chairman. It is clear from the originating application that Mrs. Mensah was indignant that she had not been given the chance to apply for any of the vacancies both in the midwifery unit and in the neonatal unit. But the absence of any reference in the letter of 29 June 1994 to the particulars which she would have needed for pursuing her complaint over the neonatal unit vacancies strongly suggests that she did not indicate to the Chairman that she was pursuing that complaint. The complaints in relation to the vacancies in each of the midwifery and neonatal units would appear to be no different in kind, and Mr. Morton for Mrs. Mensah frankly accepted that she needed precisely the same information for her complaint about the neonatal unit vacancies. Moreover Mrs. Mensah knew from what was said the names of the potential witnesses for the Trust. They were not staff concerned with the neonatal unit and they did not include Mrs. El Rays to whose attendance as a witness Mrs. Mensah was, after the Industrial Tribunal's decision, to attach importance. If Mrs. Mensah was unhappy about the outcome of the pre-hearing review, she could have appealed. She did not.

Moreover at the hearing of her originating application she gave evidence on her own behalf. She could have given evidence in support of the neonatal unit complaint. She did not. She chose to pursue only her complaint about the midwifery unit. In these circumstances in my judgment it cannot properly be said that there was a failure by the Industrial Tribunal to hear the originating application.

I would emphasise that Mrs. Mensah's case has never been that she indicated to the Chairman at the pre-hearing review that she wished to pursue her complaint relating to the neonatal unit vacancies. But she has never explained why she did not so indicate or seek to obtain the consequent directions, nor why it was that at the hearing of her originating application she did not pursue that complaint by giving evidence about it. Mr. Reed has told us that at the hearing of the originating application the whole of the evidence related to the complaint about the midwifery unit vacancies. The complaint about the neonatal unit vacancies simply did not feature at all, and Mrs. Mensah has chosen not to explain her conduct. She is a professional person who at least on paper has shown herself to be articulate and well able to express herself.

It is with diffidence that I reach a conclusion different from that reached by the Employment Appeal Tribunal, with the present President presiding, on a point relating to the procedure of Industrial Tribunals, and my misgivings are greatly increased by the fact that a former President, Mummery L.J., would not have given leave to appeal. But for the reasons which I have given, I have reached the clear conclusion that the Employment Appeal Tribunal was not entitled to find an error of law by the Industrial Tribunal in this case. I would strongly encourage Industrial Tribunals to be as helpful as possible to litigants in formulating and presenting their cases. It is always good practice for Industrial Tribunals to clarify with the applicant (particularly if appearing in person or without professional representation) the precise matters raised in the IT1 which are to be pursued and to seek confirmation that any others so raised are no longer pursued. But it must be for the judgment of the particular Industrial Tribunal in the particular circumstances of the case before it whether of its own motion it should investigate any pleaded complaint which it is for the litigant to prove but which he is not setting out to prove. In X v Z Ltd. [1998] I.C.R. 43 at p.54 Waite L.J. referred to the rule that the Tribunals themselves are the best judges of case management decisions. The Employment Appeal Tribunal has done precisely what Knox J. rightly said should not be done, namely to erect what is a matter for the judgment of the Industrial Tribunal into a duty leading to a conclusion that an error of law has been committed when that duty has not been complied with. There was no such duty and accordingly there was no error of law.

I have found the course of this case a little puzzling. It seems clear from her various written applications which are before us that Mrs. Mensah is an intelligent lady, well capable of formulating in appropriate language, at least in writing, any complaints which she wishes to pursue and furthermore of understanding the basic legal issues in the case. The application form IT 1, which she prepared herself, made it clear that, at least at that time, she wished to pursue claims against the Trust of racial discrimination not only in regard to the vacancies for the maternity unit but also in regard to those for the neo-natal unit. The manner in which she conducted her case thereafter is all the more surprising.

She herself attended the hearing for directions which took place before the Industrial Tribunal on 17 ^th June 1994. The Tribunal's letter of 28 ^th April 1994 had explained to her the objects of the hearing, of which the first was to "clarify the issues in the case and give any necessary orders for further particulars". The letter dated 29 ^th June 1994 sent to her by the Tribunal a few days later is the only evidence as to what occurred at the hearing. In my judgment, however, the almost irresistible inference from the terms of that letter, coupled with the fact that Mrs. Mensah never complained about the directions contained in it, is that she gave no indication whatever to the Tribunal that she still wished to pursue her claim in regard to the vacancies at the neo-natal unit. Furthermore, when she subsequently attended the full hearing before the Tribunal, she adduced no argument or evidence to support this particular claim.

We can only speculate as to the reasons for her silence on this issue at those points of time. However, in the light of the directions given on 29 ^th June 1994, in which she had acquiesced, and in the light of her failure to adduce any argument or any evidence at the subsequent full hearing before the Industrial Tribunal to support her claim relating to the vacancies at the neo-natal unit, I have to agree with Peter Gibson L.J. that the Tribunal cannot be said to have erred in law in failing to deal with that complaint. The authorities to which he has referred in my judgment preclude findings of any legal duty on the part of the Tribunal to deal with it of its own motion, or of any corresponding legal right in Mrs. Mensah to have it dealt with in the circumstances of this case.

I too would strongly encourage Industrial Tribunals to be as helpful as possible to litigants in formulating and presenting their cases, particularly if appearing in person. There must, however, be a limit to the indulgence which even litigants in person can reasonably expect. The desirability in principle of giving such assistance must always be balanced against the need to avoid injustice or hardship to the other party on the particular facts of each case. This, in my judgment, is a very good reason for holding that the manner and extent of such assistance should generally be treated as a matter for the judgment of the Tribunal and not as subject to rigid rules of law. In the present case, the Trust was in my judgment reasonably entitled to expect that the Tribunal would in its decision be dealing with only those issues which had been covered by the directions of 29 ^th June 1994 and Mrs. Mensah's oral submissions and evidence.

	MENSAH	Appellant
	- and -
	EAST HERTFORDSHIRE NHS TRUST	Respondent

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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Mensah v East Hertfordshire NHS Trust [1998] EWCA Civ 954 (10 June 1998) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1998/954.html Cite as: [1998] IRLR 531, [1998] EWCA Civ 954

England and Wales Court of Appeal (Civil Division) Decisions