Appeal No. EAT/87/90
EAT/88/90

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 6/7 November 1995
Judgment delivered on 25 October 1996

	Before

	THE HONOURABLE MR JUSTICE MUMMERY (P)

	MR R SANDERSON OBE

	MRS M E SUNDERLAND JP

MISS S SOMJEE	APPELLANT

MERSEYSIDE REGIONAL HEALTH AUTHORITY	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised 14 January 1997

	APPEARANCES

For the Appellant	MR T KING QC
	Quinn Melville
	15 Stanley Street
	Liverpool
	L1 6AA

For the Respondents	MR J BENSON
	(of Counsel)
	Hill Dickinson
	Davis Campbell
	Pearl Assurance House
	Derby Square
	Liverpool
	L2 9XL

	
MR JUSTICE MUMMERY (PRESIDENT)               This is an appeal by Miss Somjee against the decisions of the Industrial Tribunal held at Liverpool -
	(1)  over a period of 5 days in February and April 1989, which resulted in a decision explained in full reasons sent to the parties on 9th May 1989 that Miss Somjee's complaint of race discrimination, presented to the Tribunal on 25th October 1987, should be dismissed;
	(2)  Over a period of three days in November 1989, pursuant to a request for a review made by Miss Somjee on 4th May 1989 (and granted on 3rd August 1989).  The review hearing, which took place, resulted in the confirmation of the earlier decision of 3rd May.  Full Reasons for the review decision were sent to the parties on 20th November 1989.

The delays
	An immediate explanation is required for the exceptional length of time which has elapsed between the decision of the Industrial Tribunal and the determination of this appeal.  The explanation is as follows -
	(1)  At a preliminary hearing of the appeal on 17th July 1991 directions were given for the appeal to proceed to a full hearing.  Leave to amend was granted.  The Chairman's Notes of Evidence were ordered to be produced and five days were set aside for the hearing of the appeal.  In October 1991 the Chairman produced his Notes of Evidence, running to nearly 80 pages.

	(2)  On 22nd September 1994 the Appeal Tribunal dismissed an appeal by Miss Somjee from a decision of the Chairman of the Industrial Tribunal in December 1993 relating to cross -applications made by the parties to strike out pleadings in relation to another case brought by Miss Somjee against the Health Authority.

	(3)  On 18th December 1994, Miss Somjee sought a review of that decision of the Appeal Tribunal.

	(4)  On 19th May 1995 this Tribunal heard that review application and dismissed it.  It also took the opportunity to give directions for the hearing of these appeals on 5th and 6th November 1995.  It had come to light during the course of the review hearing that not all the directions made by this Tribunal on 17th July 1991 had been complied with, that a stay had been placed on the appeals and that no application was made to remove it.  There were delays by Miss Somjee, who did not provide her amendments to the Notice of Appeal until 1st February 1995.  The stay was made pending determination of outstanding matters and the Health Authorities solicitors  were informed of that fact by letter on 17th October 1991.

	(5)  On 6th and 7th November 1995 these appeals were heard.  It came to light during the hearing of those appeals that Miss Somjee's claim against the Health Authority, which arises out of the same background facts as these appeals, had not been determined.  In view of the impending hearing of that claim in the Industrial Tribunal and of the fact that the decision on it was likely to be appealed by the unsuccessful party, we decided, at the conclusion of argument on these appeals, to reserve our decision until after we had heard the anticipated appeal from the unfair dismissal decision.  Our reason for doing this was that we wished to have as complete a picture as possible of the plethora of complaints brought by Miss Somjee in the Industrial Tribunal in Liverpool against the Health Authority.
The Factual Background
	The Industrial Tribunal found the following salient facts -
	(1)  Miss Somjee was born in Pakistan on 18th March 1953.  She was trained at the Dow Medical College, Karachi, and qualified in 1978.  In August 1980 she came to England and passed the necessary exams to qualify for practice.  (In April 1989 she qualified as a Fellow of the Royal College of Surgeons).

	(2) Miss Somjee was appointed a Registrar by the South Sefton Area Health Authority and worked at the Walton Hospital, Liverpool.

	(3)  On 19th July 1988 she was given an assessment by Mr Ramadan.

	(4)  On 28th July 1988 she was interviewed by Professor Stell and Mr Bayley and an incident was alleged to have occurred at the interview which led her to present an originating application to the Industrial Tribunal complaining of race discrimination.

	(5)  In August 1988 Miss Somjee's contract was transferred to the Respondent, the Merseyside Health Authority.

Miss Somjee's Complaints
	The Industrial Tribunal considered the following complaints of direct race discrimination by the Health Authorities against Miss Somjee.

	(1)	Review interview - 28th July 1988
	All non-rotational registrars were interviewed on 27th and 28th July 1988 to review the progress of their careers and to give them advice of their future prospects.  Miss Somjee claimed that she was treated less favourably on racial grounds.  She was asked to consider following a different line.  At that time she had only published one paper and had not qualified as a FRCS.  

	(2)  Temporary training posts for rotating Registrars
	Miss Somjee complained that she was not put on the short list for this post, which was advertised by the Health Authority on 9th July 1988.  The closing date for applications was 23rd July 1988.  Twelve applications were received and referred to an appointing committee consisting of Professor Stell, Mr McCormick and a lay Chairman.  Seven applicants were short listed, but did not include Miss Somjee.  Five of the candidates were interviewed.  Three of those interviewed were white.  A Dr Sherman was appointed to the post.  Miss Somjee complained that there were racial grounds for not shortlisting her.

	(3)  Inadequate training for speciality
	There were five rotational registrars.  They were all British.  All the non-rotational registrars, except two, were from ethnic minorities.  Miss Somjee complained that she received less training on racial grounds.  The Health Authority contended that she received the same training facilities as other non-rotational registrars and denied that there was any racial discrimination.

Decision of the Industrial Tribunal
	The Industrial Tribunal rejected Miss Somjee's complaints for the following reasons:-

	(1)  General background (para 6)
	Though she was considered to be a good doctor ("very keen, very conscientious and eager to learn") it was considered that Miss Somjee found it very difficult to get on with her colleagues.  On 15th August 1988 Mr Ramadan sent a letter stating that he had received numerous complaints from her colleagues about her and advising her to try and get on better with them.  Miss Somjee rejected that criticism.  She felt a very strong grievance against the medical establishment in Liverpool.  She accused 10 people of discrimination against her on racial grounds.  The view formed by the Tribunal was that 
		"...the evidence of the applicant needed to be treated with some care".

	(2)  Interview - 28th July 1988 (para. 7)
	The Tribunal's conclusions on the interview were that -
	(a)  it was a purely educational matter, akin to careers advice to a pupil at school and was not connected with employment;
	(b)  if it was connected with employment, the Health Authority could not be liable, because it was not Miss Somjee's employer and the interviews were not with a view to future employment with the Health Authority (see S.4(2) of the Race Relations Act 1976);
	(3)  there was no evidence of discrimination against her on racial grounds.  The advice given to Miss Somjee was reasonable and good advice suitable to her position and she was not treated less favourably than other registrars on racial grounds.  Those conclusions were based on a consideration of evidence about the interview - about its educational function (review of careers and advice about the future); and about the fact that Miss Somjee, then aged 35, had twice failed to get her FRCS.  She failed against in October 1988 and finally passed in April 1989.  She had only published one paper.  The Tribunal accepted the evidence of Professor Stell and Mr Bayley (the post graduate Dean) in preference to Miss Somjee's evidence that Professor Stell did not say that he shortlisted posts in that region and that he was never going to shortlist her.

	(3)  Shortlist for temporary rotational registrar (para. 8)
	The 12 applications received in response to the advertisement for this post were considered by an appointing committee of Professor Stell, another consultant, Mr McCormick and a lay Chairman.  Miss Somjee's complaint was that she had not been included in the shortlist of seven on racial grounds and that she had been discriminated against contrary to S.4(1)(a) of the 1976 Act.  She specifically complained that a Dr Clarke, who was white, was shortlisted.  The Tribunal made a detailed comparison of Dr Clarke and Miss Somjee and concluded that there was "no evidence that race or colour had any effect at all".  There was express evidence from Professor Stell that his reasons for not shortlisting Miss Somjee were not racial grounds and had related to a report made by Mr Ramadan that Miss Somjee did not get on with her colleagues.

	(4)  Lack of adequate training (para. 9)
	An allegation of discrimination in relation to lack of training was made under S.4(2)(b) of the 1976 Act.  The five rotational registrars were all British.  They received better training than non-rotational registrars, because they would obtain experience at different hospitals and of different types of work.

	There were two overseas rotational registrars who were both Irish.  Miss Somjee was not regarded as an overseas doctor because she came to the United Kingdom before 1985.  It transpired that it was a mistake to regard the two Irish doctors as qualifying for the overseas rotational registrar positions.  They were EC nationals and could not be regarded as "overseas".  The Tribunal held that there could be no discrimination in respect of the overseas posts, as Miss Somjee was not an overseas doctor and was not therefore no eligible in any event.  The Tribunal found that there was no evidence that the Health Authority had discriminated against Miss Somjee on racial grounds.  Further, as a non-rotational registrar she had received the same training facilities as other non-rotational registrars and, as a result of those facilities, had been successful in obtaining her FRCS.  The reason why she had not been appointed a rotational registrar was not a racial one.  There were no vacancies after 1987, save for a temporary appointment for which she had not been shortlisted.

General Points relevant to the Industrial Tribunal's Decision
	Before we deal with the detailed submissions which were made by Mr King QC, on behalf of Miss Somjee, we should mention a number of other general background factors relevant to an understanding of the arguments.

	A registrar is expected to obtain another qualification, such as FRCS, and to publish papers in professional journals relating to research.  There were two kinds of registrars.  The ordinary or non-rotational registrars were employed in one hospital.  The rotational registrars were transferred from one hospital to another and obtained wider experience.  Out of 13 registrars, four were rotational, plus the two overseas registrars already mentioned.  There was fierce competition for the rotational posts and appointments to them are made on behalf Health Authorities by consultant committees chaired by a layman.

Miss Somjee's Submissions
	Mr Timothy King QC originally made an application for leave to adduce fresh evidence on appeal.  This included evidence which apparently emerged during the course of the separate proceedings brought by Miss Somjee for unfair dismissal.  She was conducting that case in person.  The application was made late and, after argument, we decided to refuse leave to admit the new evidence on grounds that it was highly unlikely to have any important influence on the outcome of the case.

	Mr King's submissions on the appeal may be summarised as follows:-
	(1)  Mr King correctly  accepted that Miss Somjee could only appeal to this Tribunal on a question of law.  In so far as he was arguing that the Tribunal's decision was perverse, he accepted that he had to establish that no reasonable Tribunal, properly directing itself in law, could have reached the decision under appeal.

	(2)  Mr King also accepted, correctly in our view, that -
		(a)  an Industrial Tribunal can only review its decisions on limited grounds (see Rule 10 of the 1985 Regulations, now Rule 11 of the 1993 Regulations) in relation to fresh evidence and in the interests of justice.  The fresh evidence must have become available since the conclusion of the hearing, provided that it could not have been reasonably known of or foreseen at the time of the hearing.  As for the interests of justice, Mr King accepted that, in general, the failure of the parties' legal representative will not normally constitute a ground for review, though he submitted that the Tribunal retains a discretion to grant a review and a mistake on the part of a representative is not always conclusive against the grant of a review.

	(3)  On the law relating to race discrimination Mr King referred to a line of authorities, culminating in King v. Great Britain China Centre [1991] IRLR 13 and contended that, once Miss Somjee had shown that she, as a person of one racial group, had been treated less favourably than a person of another racial group, then, in the absence of an innocent explanation from the Health Authority, which the Tribunal could properly accept on the evidence, the Tribunal should draw the inference that there was racial discrimination and that it was perverse of the Tribunal to have done otherwise.

	(4)  On the individual heads of complaint Mr King's detailed submissions were as follows -
		(a)  Interview - 28th July 1988
		It was perverse of the Tribunal to find that the interview was "purely educational" and did not relate as well as to Miss Somjee's future employment with the Health Authority within S.4(1) of the 1976 Act.  Mr King made detailed reference to exhibited documents, correspondence and pages in the Chairman's Notes of Evidence and argued that the Tribunal ignored crucial areas of evidence: the fact that the contracts of all registrars under review were about to be transferred to the Respondent Health Authority; the position and influence of Professor Stell as regards both future appointments, both as to career rotational posts and that of senior registrar; the equally influential position of Dr Bayley, who sat on all senior registrar appointments committees in the region; and the significance of the use of the interview of the annual report form on registrars, a form which had an employment purpose.

		(b)  Mr King submitted that it was perverse of the Tribunal to find that, even if the interview did relate to employment, that there was no evidence of discrimination on racial grounds.  There was prima facie evidence to the effect.  Miss Somjee, as a person of one racial group, had been treated less favourably than persons of another racial group.  There was a stark contrast between the advice offered to white doctors at the review at the same time as Miss Somjee and that offered to non-white doctors, including her, as to the prospects of future employment in the United Kingdom.  There was undisputed evidence that Miss Somjee, by her status and date of entry, was entitled to be treated as a career registrar eligible to pursue a career in the United Kingdom.  Racial grounds were evident in the conduct of the Health Authority in the shortlisting of a white doctor (Dr Clarke), but not Miss Somjee, for the temporary rotational post and in the approving of rotational posts for him and Dr Viannie in February 1989 without considering Miss Somjee.  Further, the Tribunal had reached a perverse decision in accepting evidence of Professor Stell and Dr Bayley in preference to the evidence of Miss Somjee as to what actually happened at the interview and to maintaining the decision on that point in the application for review.  Mr King referred in detail to the evidence produced at the review hearing about Professor Stell's subsequent behaviour in May 1989.  That evidence was alleged to undermine Professor Stell's reliability as a witness.

		(c)  Shortlist for temporary rotational post
		Mr King argued that it was perverse of the Tribunal to find that there was no discrimination against Miss Somjee on racial grounds in the failure to shortlist her for the temporary rotational post.  There was prima facie evidence of discrimination on racial grounds on comparison of the qualifications of Miss Somjee and Dr Clarke who was shortlisted.  Professor Stell's explanation as to why Dr Clarke was shortlisted, but Miss Somjee was not, lacked credibility.  Evidence at the review hearing cast doubt on whether Professor Stell had seen Mr Ramadan's report on which he is said to have relied at the time of the shortlisting or even at the time of the interview on 28th July.  There was fresh evidence on this point undermining the credibility of the explanation given by Professor Stell.  That evidence concerned the true nature of the post.  Miss Somjee's case had been that the so-called temporary post was intended to be a permanent one.  Documents not available until immediately before the review hearing demonstrated that the contract in fact awarded to Dr Sherman was one renewable from year-to-year.  She had made unsuccessful attempts to obtain these documents on discovery at an earlier stage.  It was perverse of the Tribunal to refuse a review having regard to the fresh evidence or to the evidence which should be admitted on the appeal on the principles of Ladd v. Marshall [1954] 3 All ER 745.  The documents could not have been obtained with reasonable diligence for use at the Tribunal.  They were relevant and apparently credible and would probably have an important influence on the result of the case.

		(d)  Training opportunities
		The Tribunal were perverse in finding that there was no evidence that the Health Authority had discriminated against Miss Somjee on racial grounds in respect of training opportunities afforded to her to become a career rotational registrar.  The Tribunal were also perverse in finding Miss Somjee had never been a rotational registrar because there were no vacancies after 1987, other than the temporary appointment for which she had not been shortlisted.

		The fact was that Miss Somjee was a person of one racial group, who had been treated less favourably than persons of another racial group.  By her status and entry date into the United Kingdom, Miss Somjee was entitled to be treated as a career registrar eligible to pursue a career in the United Kingdom.  The Health Authority had treated her as a non-career doctor.  This was to be contrasted with the difference in treatment of the two white Irish doctors who were reviewed with Miss Somjee in July 1988 and appointed to the overseas rotational posts in February 1989.

		It was perverse of the Tribunal to accept the explanations given by Professor Stell and Dr Bayley that those appointments had been overseas appointments, for which Miss Somjee was not eligible and that a genuine mistake had been made in believing that the two Irish doctors were eligible for such appointments.  The contents of the review interview with those doctors conducted by Professor Stell and Dr Bayley in July 1988 were in contrast with the belief that those doctors had overseas status and were not eligible to pursue a career in the United Kingdom.  Those appointments were only cancelled after Professor Stell had given evidence on this issue on 23rd February 1989 in the Industrial Tribunal.

		(e)  Training facilities at Walton Hospital
		Mr King argued that it was wrong and perverse of the Tribunal to refuse a review, in the interests of justice, on the Tribunal's findings that Miss Somjee had received the same training facilities as other non-rotational registrars and that, as a result of those facilities, had been successful in obtaining her FRCS.  The issue of training at Miss Somjee's own hospital was not investigated by the Tribunal in order to justify the findings of the Tribunal.  The findings ignored her complaint of indirect discrimination in the quality of training opportunities as between herself, as a non-rotational registrar, and those offered to rotating registrars, who were all white.  Her representative had failed to pursue the issue of indirect discrimination at the resumed hearing at the Industrial Tribunal.  The issue had been dropped by the representative without Miss Somjee's consent.  Failings of her representative should not and did not preclude a review of the findings in the interests of justice under Rule 10(2)(e) of the 1985 Rules.

		(f)  Miscellaneous detailed points
		Mr King made a number of other detailed points of fact about the Tribunal's treatment of evidence on the use of Miss Somjee's examination failures and the failure to publish papers and the records of the white rotational registrars and as to how the appointment of four white doctors to rotational posts had come about.

		In conclusion, Mr King contended that the Tribunal's perversity on the issues summarised above affected their approach to the evidence on the review hearing in connection with Miss Somjee's complaint about the genuineness of the appraisal form and the failure of the Tribunal to order discovery of the assessment forms in relation to other registrars who were reviewed at the same time as her or to allow witness orders in respect of two consultants who had told her that they had never seen these forms before.

Conclusions
	By way of preliminary observation Mr Benson, on behalf of the Health Authority, pointed to the extent to which this appeal was based on the alleged perversity of the Tribunal's conclusions on issues of fact; in particular, in accepting the evidence of one witness in preference to that of another witness.  The Health Authority contended, and we agree, that this is insufficient to constitute perversity for the purposes of an appeal to this Tribunal on a question of law: Chin v. British Aerospace [1982] IRLR 83.

	In these circumstances, the Health Authority based their opposition to the appeal on the submissions that there were unappealable findings of fact made by the Tribunal after the fullest possible detailed consideration of a mass of evidence.

	On the detailed points made by Mr King in support of the appeal, we accept the arguments advanced by Mr Benson on behalf of the Health Authority.  His detailed submissions were as follows:-
	(1)  Interview - July 28th July 1988
	The Tribunal was entitled to accept the evidence of Professor Stell and Dr Bayley in preference to the evidence given by Miss Somjee and were also entitled to confirm their decision on the review.  There was no perversity in their conclusion rejecting Miss Somjee's complaint.

	The overwhelming evidence was that Professor Stell was not responsible for drawing up or influencing the final short list of candidates.  There was evidence on which the Tribunal were entitled to find that the interview in 1988 was purely educational and not an employment matter.  That conclusion was not affected by the fact that Professor Stell read Mr Ramadan's report (about Miss Somjee's attitude) at the interview and subsequently used it on an employment related matter.  Nor was that conclusion affected by the fact that the annual report's contents may have contained information which would affect a prospective candidate's chances of obtaining a post.  The fresh evidence sought to be adduced on this was unlikely to have any important influence on the result of the case.

	(2)  Short list for temporary rotational posts
	There was clear evidence, which the Tribunal were entitled to accept, as to why Miss Somjee had not been shortlisted.  The Tribunal's conclusion could not be characterised as perverse.  The comparison between Miss Somjee and Dr Clarke went beyond qualifications.  There was evidence that the decision to shortlist was based on the perceived inability of Miss Somjee to get on with her colleagues.  The Tribunal were entitled to accept that evidence.  That conclusion was not invalidated by the fact that Dr Sherman was confirmed in the post for which he had been selected the year earlier or by other detailed points raised by Miss Somjee on this appeal.
	(3)  Inadequate training
	There was also evidence on which the Tribunal were entitled to conclude that Miss Somjee had not been discriminated against by not being adequately trained in her speciality.  There was no evidence that the Health Authority persistently treated Miss Somjee as a non-career doctor.  There was no difference between the treatment of Miss Somjee and Drs Vianne and Dr Clarke who were, by mistake, appointed to the overseas posts for which Miss Somjee was not eligible.  The Industrial Tribunal were entitled to accept the explanation about the appointments and subsequent cancellation of those appointments.

	(4)  Training facilities at own hospital
	Miss Somjee called no evidence to substantiate her complaint that she was not given adequate training in her speciality.  On such evidence as there was the Tribunal were entitled to conclude that she had received the same training as other non-rotational registrars.  If her representative had not pursued the point of indirect discrimination, that was not a matter for criticism of the Tribunal or of the Health Authority.  There was nothing perverse or legally erroneous in the Tribunal's refusal to grant a review on that point.

	(5)  Miscellaneous matters
	There was no error of law in the Tribunal's decision in placing emphasis on Miss Somjee's failure to pass her FRCS examination at an earlier date or on her failure to publish papers.

	The crucial fact is that the whole case largely turned on question of credibility and there was nothing perverse or legally wrong in the Tribunal preferring the evidence of the witnesses given by the Health Authority.  The case of perversity has not been made out on either appeal.  Both appeals are therefore dismissed.