Appeal No. EAT/368/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 20 October 1994
	Judgment delivered on 9 November 1994

	Before

	THE HONOURABLE MR JUSTICE PILL

	MR T S BATHO

	MR P DAWSON OBE

MR M E MORRISON-HODO	APPELLANT

NOTTINGHAM AREA HEALTH AUTHORITY & OTHERS	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR M FORD
(Of Counsel)
	Nimoh Akainyah & Co
	92 Coldharbour Lane
	Camberwell
	London
	SE5 9PU

For the Respondents	MR P CAPE
	(Of Counsel)
	Oxley & Coward
	285/287 Glossop Road
	Sheffield
	S20 2HB

 	MR JUSTICE PILL:   This is an appeal by the Nottingham Area Health Authority and others against the decision of the Industrial Tribunal held at Nottingham from 19th to 25th March 1993 whereby, in a unanimous decision, they held that the Applicant Mr E T Morrison-Hodo was not discriminated against on the ground of his race and was not victimised for making a complaint of racial discrimination.

	The Tribunal found that the Applicant was of African origin and was 51 years of age.  He commenced a post-graduate nurse training course at the Nottingham School of Nursing in September 1989.  He made a considerable number of complaints of racial discrimination.  He also complained that he had been victimised because of the complaints of racial discrimination he had made.  On 18th October 1991, while a student on the D57 ward at the Queen's Medical Centre, Nottingham, he was suspended.

	It is noted in the decision that the evidence in the case took up three full days and that submissions were made on a fourth day.  The Tribunal dealt one by one with the allegations of racial discrimination.  Having set out the evidence, they repeatedly state their conclusion in words to the effect that the relevant decisions "clearly had nothing whatever to do with race".  At a preliminary hearing, it was decided (His Honour Judge Peppitt QC presiding) that the appeal should proceed to a full hearing only on two of the grounds of appeal.  These both relate to the victimisation claim.  It was claimed that the Applicant was suspended because on 17th October 1991 he had complained to Mrs Bradley, the Senior Tutor at the School of Nursing, of racial discrimination on D57 ward.  It is submitted that the finding of the Tribunal that there had been no victimisation was based upon a finding of fact for which there was no evidence or alternatively no sufficient evidence and further that the finding that the Applicant had not been victimised was perverse.

	Section 2(1) of the Race Relations Act 1976 provides, in so far as is material:-

	"A person ("the discriminator") discriminates against another person ("the person victimised") in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has ......

	(d)  alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act".

It is common ground that the issue which arose was whether the cause of the Applicant's suspension on 18th October 1991 was his complaint on the previous day that he had been the victim of racial discrimination.  The Tribunal held at paragraph 20 that the Appellant was not "victimised for making complaints of racial discrimination".  It has to be recognised that what is agreed as the relevant question was not specifically posed as such in any part of the Tribunal's decision and the terms of Section 2 are not set out.  The allegation is set out in general terms at the beginning of the reasoned decision and the finding, already mentioned, is set out in general terms in the final paragraph.  That formulation, or lack of formulation, is not however fatal to the Tribunal's decision.  We look to see whether, as a matter of substance, there is evidence to support the basic findings of fact and whether it can fairly be concluded that the relevant question has been addressed by the Tribunal.

	We have been addressed at length by both Counsel upon the documentary evidence before the Industrial Tribunal.  Mr Cape, for the Health Authority, concedes, and rightly in our view, that the Tribunal were not justified in reaching the conclusion that the complaint of racial discrimination was a counter-complaint to complaints made against the Applicant by nurses on Harvey II ward.  He is also forced to concede that the Tribunal in paragraph 16 became hopelessly lost.  They have telescoped events and on four occasions in the paragraph have referred to Harvey II ward when the reference, if material on the Section 2 issue, should have been to D57 ward.

	Having come to the conclusion that the Section 2 complaint must be remitted, we do not propose to set out extracts from the documents before the Tribunal to demonstrate the inadequacy, in our view, of the summary of events in paragraph 16 in the context of a Section 2 complaint.  Indeed there is a risk that detailed reference and comment could have the effect of prejudicing the re-hearing.  Suffice it to say that we do not regard the points brought to our attention as an unjustified use of the toothcomb in the circumstances.  Mr Cape has valiantly sought to justify the paragraph and the findings in it as not constituting or leading to a fundamental error.  He has further argued that the finding in paragraph 13 that the School of Nursing, under whose control the Applicant was, "would automatically suspend any student against whom a complaint was made pending investigation" but that comment arose in relation to an event which occurred in different circumstances a year earlier.  Mr Cape makes the further submission that the Applicant presented his case as one of direct racial discrimination.  Such questions as he asked in cross-examination were directed to that subject and even a litigant in person should not be allowed to have a second bite of the cherry.

	The Tribunal's attention does appear to have been concentrated on the racial discrimination claim with references to the victimisation claim appearing only at the beginning and end of the reasoned decision.  The way the parties each put their case may have contributed to that.  The Applicant was however entitled to have his victimisation claim considered and the Tribunal obviously understood that the claim was before them.  The claim was itemised in box 1 of IT1 and the Applicant's supporting statement, having referred consecutively to the complaint of racial discrimination and to the suspension on the following day, concluded with the statement "I also believe that I have been victimised as a result of me lodging a complaint of racial discrimination".  That claim under Section 2 is separate and distinct from the complaint also made under Sections 1(1)(a) and Section 4 of the Act.  It raises a different question and this Applicant was entitled to have the question considered specifically and sufficiently.

	We have come to the conclusion that the issue has not been addressed sufficiently by the Tribunal or in the decision.  Some of the findings made are inconsistent with the evidence.  The relevant evidence as to the sequence of events does not appear in the decision and there are no findings of fact upon those events.  The case will be remitted to the Industrial Tribunal as originally constituted if possible, for re- hearing the Section 2 issue.  Our findings should in no way be taken as an indication as to how the Tribunal should view the evidence.

	The finding upon racial discrimination will stand.