Appeal No.	 EAT/705/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 November 1997

Before
THE HONOURABLE MR JUSTICE LINDSAY
MRS D M PALMER
MR A D TUFFIN CBE

MRS E MENSAH	APPELLANT

MRS K BELL & OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	IN PERSON	
For the Respondents	MR N VINEALL
(of Counsel)
Merriman White
3 Kings Bench Walk
Inner Temple
London
EC4Y 7DJ	

	MR JUSTICE LINDSAY:     We have before us appeals in the matter of Mrs Mensah against Mrs K. Bell & Others.  Mrs Mensah appears before us as the Applicant in person and Mrs Bell by Counsel, Mr Vineall.

	It is important in order to understand the foreground to have some knowledge as to the procedural background of the case.  On 12 May 1995 there was a procedural hearing at which it was held that, properly understood, Mrs Mensah’s complaint was one of direct discrimination relating specifically to a failure to consider her for employment in the Autumn of 1994.  It seems there was no appeal from that procedural hearing nor any review.

	The matter therefore went forward to the Industrial Tribunal and there was a hearing on 3 and 4 April 1996.  Generously, perhaps, the Industrial Tribunal then allowed, indeed suggested, that there might have been a case in victimisation of Mrs Mensah in addition to direct discrimination and on 23 April 1996 the Industrial Tribunal promulgated its decision.

	It was held unanimously, that:

“(i) the First Respondent, Mrs Bell, (I should have mentioned that the Second Respondent was Ms Barbara Sheard) was in breach of section 2(1)(d) and 4(1)(a) of the Race Relations Act 1976.  The application against the Second Respondent is dismissed.
(ii)  The question of remedy is adjourned to a date to be fixed if the parties do not reach agreement.”

	That was the decision of the Industrial Tribunal under the chairmanship of Mrs B.A. Calvert QC at London (North).  That contemplated that if the parties did not reach agreement then there would have to be a remedies hearing.  They did not reach agreement and there was a remedies hearing on 3 and 4 May 1996.  On 10 May 1996 the outcome of that remedies hearing was promulgated and it was again a unanimous decision, namely that:

“... the Respondent, Mrs Bell, is ordered to pay to the Applicant by way of compensation £1,750.”

	On 15 May Mrs Mensah applied for a review of that decision.  On 29 May that application was declined, by the Chairman alone, on the ground that it had no reasonable prospect of success.  

	On 4 June Mrs Mensah lodged a Notice of Appeal and on 17 March 1997 there was a preliminary hearing before the Employment Appeals Tribunal.  It was ordered that the appeal should go to full hearing.  An affidavit was required by Mrs Mensah on two particular points.  Mrs Mensah was directed to prepare an amended Notice of Appeal and on 26 March 1997 there was, indeed, an amended Notice of Appeal served by Mrs Mensah.

	It is only the amended Notice of Appeal that is before us but, it has to be remembered, it is an appeal against the decisions of 23 April 1996 (that is to say the main hearing), of the 10 May 1996 (the remedies hearing) and also of the 29 May 1996, when the Chairman declined the review

	In her skeleton argument Mrs Mensah seeks to revive some grounds that had been touched on in her earlier unamended Notice of Appeal.  In particular, we have in mind that she seeks to raise an argument under section 68(7)(b) of the Race Relations Act and claims thereby to pursue an argument going back to events in the Autumn of 1994.  That we do not permit.  That is not a ground in her amended Notice of Appeal which alone is the matter which was allowed to go to a full hearing and, in any event, in practical terms, it seeks to go behind the procedural ruling of 12 May 1995.  We see Mrs Mensah as properly to be confined to the various grounds which she conveniently and clearly specifies in her amended Notice of Appeal.  Taking those in order, the first is that the Industrial Tribunal did not consider making a recommendation under section 56(1)(c) of the Act.

	It is wrong to approach decisions of the Industrial Tribunal with a tooth-comb in hand and to seek, by careful linguistic analysis, to find what was and what was not considered.  But here there is no good reason to suppose that section 56 was not in the Tribunal’s mind.  They specifically refer to the section at paragraph 6.  They say:

“6  The only remedy which is available under section 56 of the Race Relations Act 1976 to Mrs Mensah is compensation.  ”

	Strictly speaking, if one takes that literally, it is incorrect but, in context, one has to see it as meaning that, in the events that had happened, it was only compensation that in practical terms was something that could usefully and practicably be awarded in Mrs Mensah’s favour.  It is to be remembered, too, that, unusually, here the employer itself was not a Respondent.  

	We are told by Mr Vineall that there was, in any event, no recommendation asked for in the course of argument below but, whether or not that was so, it is difficult to see what recommendation could have been given which, had it been implemented, would have obviated or reduced the adverse effect on Mrs Mensah that she complained of and which was held to exist but which was in relation only to hurt feelings.  We see nothing in that first ground.

	The second ground was that the Industrial Tribunal erred in not considering and in not awarding aggravated damages to the Applicant, Mrs Mensah.  Again, Mr Vineall’s first answer is that the Industrial Tribunal was not invited to do so.  But, whether or not that is the case, one has to remember that jurisdiction under the Act is not specifically to award damages, let alone aggravated damages.  It is to require compensation to be paid - section 56(1)(b) - but then the provisions go on to show that the compensation is to correspond with civil damages that could be awarded in the County Court had the case been a case under section 57.  Section 57 does not indicate any ability to fix damages otherwise than by reference to ordinary compensatory principles.  The fact that section 56(4)(a) makes special provision for increased compensation in very special circumstances itself points to normal awards being simply compensatory awards.

	We have had our attention drawn to the case of McConnell v Police Authority for Northern Ireland [1997] IRLR 625, where at paragraph 19, the Court of Appeal in Northern Ireland, dealing admittedly with a different Act but one not altogether removed in principle, said that:

“It follows from these principles that an award an aggravated damages should not be an extra sum over and above the sum which the tribunal of fact considers appropriate compensation for the injury to the claimant’s feelings.  Any element of aggravation ought to be taken into account in reckoning the extent of the injury to his feelings, for it is part of the cause of that injury.  It should certainly not be treated as an extra award which reflects a degree of punishment of the respondent for his behaviour.”

	Furthermore, if the County Court practice is a guide, which is what the Act suggests, then aggravated damages, if to be awarded, have to be expressly claimed from the outset.  That is clear from the County Court Rules Order 6, Rule 1(b).  Here there was no such express claim.
Even, therefore, had Mrs Mensah at the hearing asked for aggravated damages (let that be assumed in her favour) even so it would have been difficult for the Tribunal to make such an award in her favour, given that there had been no express claim from the outset nor any amended formula by which it was claimed.  In the circumstances we see no hope of success for Mrs Mensah in this second ground.

	Turning to the third ground, here Mrs Mensah complains that there was no award of interest.  The Race Relations (Interest on Awards) Regulations 1994 required the Industrial Tribunal to consider whether an award of interest should be made and, moreover, that has to be considered even if no application is made for it, Regulation 2(1)(b).

	If it is decided by the Industrial Tribunal not to award interest then the written reasons have to include why that was decided - Regulation 7(2).  So the Chairman should have had this drawn to her attention, as Mr Vineall candidly accepts.  It could be, perhaps, that the award of £1,750 was intended to be an “all-in award” but, if that was the case, then the interest element would have had to have been specified - see Regulation 7(1).  Ordinarily, therefore, the response to the point about interest which Mrs Mensah sensibly raises would be to remit the matter to the Industrial Tribunal to decide whether interest should be payable and, if not, giving reasons for why it should not and, if it should, then specifying the amount of the interest pursuant to the regulations - see Regulation 6(1)(a).

	But there is here a real difficulty and that is that the Chairman, Mrs B.A. Calvert, has retired since the hearing and it is plainly unsatisfactory to send the matter back to some other constitution of Industrial Tribunal.  So what we do about the interest point, which is a point on which Mrs Mensah succeeds, is that if the parties cannot come to terms as to the amount of interest payable within seven days from today, then the following course should occur: -

	First, Mrs Mensah should send to us in writing, at the EAT, her reasons why interest should be paid and her submissions as to what the interest rate or rates should be and the dates to and from which interest should run.  She is to send that in writing not only to us at the EAT, but also to the Respondent within seven days of the failure to agree terms, if there has been a failure to agree terms.

	Then the Respondent is to have seven days after receiving that from Mrs Mensah to answer her arguments with whatever counter-arguments the Respondent wishes us to consider as to whether or not interest should be paid, the rate or rates that are applicable and the dates to and from which interest is to be paid, if interest is to be paid.  The Respondent is to send that not only to us at the EAT but also to Mrs Mensah.

	Finally, Mrs Mensah is to have four days thereafter - four days from her receipt of the Respondent’s submissions as to interest - in order in writing to reply, sending a copy to us and a copy to the Respondent.  The position will then be that we will have to decide the interest amount, if any, on the basis of those written submissions.  This is slightly cumbersome machinery but, given that we cannot remit to the same Tribunal as heard the matter, it seems to be quite the most economical and sensible approach on the question of interest, which, as I have indicated, is an issue on which Mrs Mensah in principle succeeds.

	The fourth ground of Mrs Mensah’s Notice of Appeal, as amended, is that the Industrial Tribunal was perverse in not finding any direct discrimination against her.  The Industrial Tribunal held that Mrs Bell, the Respondent, would have had the views that she expressed about Mrs Mensah’s application for work about any other applicant similarly experienced and qualified and so on, regardless of race.  On this I should read what they held:  The Industrial Tribunal held, at paragraph 18:

“We are satisfied that in 1992 Mrs Bell was concerned about her [Mrs Mensah] lack of recent clinical experience.  In her evidence she said that she had made her an offer and she was waiting for Mrs Mensah to come back and discuss whether she would do some time practising without being paid.  She did not approach Mrs Mensah again and Mrs Mensah did not approach Mrs Bell because she felt her attitude was hostile to her [and now comes the important sentence].  We find that Mrs Bell at that time would have had the same views about anyone with a lack of recent clinical experience as a midwife whatever their race or ethnic origin.”

	No reason has been advanced before us to enable us to come to a view that that last important sentence is a sentence which the Industrial Tribunal, properly instructing itself, could not have uttered.  It seems to us that perversity is a very difficult thing to prove and here we cannot say that no Industrial Tribunal, properly instructing itself, could have come to the conclusion in that important sentence.  Perversity therefore fails.

	The fifth ground which is advanced, is that it was wrong of the Industrial Tribunal to hold that there was no racial discrimination simply on the basis of there being no racial motive.  That we see to be a misunderstanding of the important paragraph 18 of the main decision.  It holds that Mrs Bell, as I have just cited, would have treated anyone in Mrs Mensah’s position as she treated Mrs Mensah.  In other words, there was no discrimination on any grounds.  It is true that later on in the same paragraph the Industrial Tribunal concludes:

“No other actions on the part of either Mrs Bell or Ms Sheard lead us to draw the inference that they were based on a racial motive.  Therefore the application under section 1(1)(a) fails.”

	Mr Vineall readily concedes that the reference there to racial motive is a misunderstanding by the Industrial Tribunal but it is not a misunderstanding that has any substantive consequence.   There is not a finding that there was no racial motive and that therefore there was no racial discrimination.  Looking to the paragraph as a whole, the conclusion was that there was no discrimination whatsoever, not on any basis, and one cannot have racial discrimination if there is no discrimination at all.  It might be useful for me to repeat the important sentence “We find that Mrs Bell at that time would have had the same views about anyone with a lack of recent clinical experience as a midwife whatever their race or ethnic origin”.  It is not a holding that merely because there is no racial motive there can be no racial discrimination.  It is a holding that there was, in fact, no discrimination at all.

	The sixth of Mrs Mensah’s ground is that she had insufficient time to cope with a late discovery of documents on the Respondent’s part.  Documents were faxed to Mrs Mensah on the very day of the hearing, 3 April 1996.  She says that she was invited by the Chairman to “take a couple of minutes” to look through them.  She says she felt disadvantaged at having to look at them so quickly in the context of the hearing itself.  In any event, she says the documents produced were obscure.  She had earlier been clearly told by the Industrial Tribunal that if she wished to ask for an Order for documents then that would have to be done at the hearing itself.  On 1 April she was written to by the Industrial Tribunal and was told:

“Your letter of 20 March has been referred to a Chairman of the Tribunals who has instructed me to inform you that if you wish to make applications for Documents and Particulars you must ask at the Tribunal at the hearing.
The case is too late to make orders before the hearing.  The Tribunal is a judicial body and unless it is Tribunal hearing [sic] the case ...”

	I do not quite understand the rest of that grammar but the point was made that if Mrs Mensah wanted documents she would have to apply for an order and that so late was her application that by then the application would have to be made at the hearing itself.  In fact, no order was made for documents but they were produced, presumably voluntarily.

	We have the Chairman’s comments on the subject and what the Chairman says in her letter of 24 July is this:

“It is correct that the Respondents had not disclosed some documents to which the Appellant was entitled until requested to do so by the Tribunal.  They were faxed to the Tribunal on the first day of the substantive hearing (3 April).  The Appellant was given time to examine the documents and no limit was put on that time.  The Appellant did not apply for further time to study the documents nor did she ask for an adjournment.”

	So it is common ground that she was given time to examine the documents.  There is no evidence that she asked for further time and there is no evidence that she asked for an adjournment.  Mrs Mensah is plainly an intelligent woman who would have been thoroughly aware that she could apply for an adjournment for more time to consider the documents if she had felt it necessary, but we have to accept that she did not make that application and accordingly that ground, the sixth ground, fails.

	The seventh ground was that the Industrial Tribunal failed to add Watford Hospital NHS Trust as a party.  Mrs Mensah’s IT1, the Originating Application, is undated but it was made before 3 April 1995 and it did not include the Trust as a Respondent.  It was not until the main hearing on 3 April 1996, that is to say a year later, that any application is even said to have been made for the joinder of the Trust.  

	Mrs Mensah says that “at the main hearing itself I requested that the hospital be made or added as a defendant since the hospital was responsible for the act of its employees”.  Even if an application had been made, and this is disputed by the Respondents, it would have been unfair to the two individual Respondents, Mrs Bell and Ms Sheard, to have the claim hanging over them put off yet longer.  The application, had it been made, would undoubtedly have been dismissed.  We say “had it been made” because whether it had been made, as I indicated, is in dispute.

	The Chairman herself deal with this by saying that she has no note of any such application being made, nor is there any reference to it in the Tribunal’s decision.  Had any such application been made it would have been well out of time.  The Originating Application is dated 21 February 1995.  Nor was such an application made at the hearing for directions on 25 May 1995.  So that even if there was an application made of this character, it was hopelessly out of time.  It would, in any event, almost necessarily have been turned down at the suit of the two existing individual Respondents.  We find here no error of law.

	So as far as concerns Mrs Mensah’s appeal, and apart from her success as to interest (as to which we have made the particular provisions we have already indicated) the appeal is dismissed.  But there is a difficulty here and that is that there is a cross-appeal.  The cross-appeal raises, in part, a question as to quantum which is, broadly speaking, not a point of law or at any rate not wholly of law but also raises a point of some difficulty about the nature of the comparator that the Industrial Tribunal should have had in mind when considering victimisation of Mrs Mensah.  It is to be remembered that victimisation was a point that emerged at the hearing itself and as a consequence of an intervention, helpful to Mrs Mensah, on behalf of the Tribunal.

	We do have a difficulty with the cross-appeal.  So far as concerns the award of damages of £1,750 in Mrs Mensah’s favour, it is the present Respondent’s case that that was hopelessly out of line with what it should have been.  It is, says Mr Vineall, a case which, if to be met with any award at all, must surely have been met with an award at the very bottom end of the appropriate scale, namely an award in the order of £500 or so, and yet, says Mr Vineall, arithmetically correctly, an award emerges some three and a half times greater than that.  We are invited to say that that was hopeless.  

	We do not feel able to accept that argument.  The nature of an award for hurt feelings is always unscientific.  One cannot simply pick up some scale and come out with a scientifically verifiable figure.  Hurt feelings are not things that, strictly speaking, can be measured in money but their measurement in money is a task which the Industrial Tribunal has thrust upon it, but it cannot be expected to be a process that is scientific in its accuracy or verifiability.  Leaving aside for the moment the point about the comparator, if one looks at the question of quantum on its own, we do not feel able to discern any point of law such that the award can be set aside.  We do not have to say that we would have arrived at a sum of £1,750 nor that we would have come to a lower sum, or, indeed, a higher sum, but, if we simply ask ourselves the correct question - which is whether an Industrial Tribunal, properly directing itself, could have come to the figure of £1,750 - we do not feel able to say assuredly that it could not.  But that is, for the moment, leaving aside the point of law about the comparator.  

	Turning to that it is, as Mr Vineall readily accepts (and, indeed, argues) a point which has considerable ramifications and not simply in relation to Mrs Mensah but to claimants, no doubt, up and down the country and in other cases.  It is not satisfactory, in our view, that the point, which is a point of some subtlety, should be determined with no adequate response in the sense that Mrs Mensah, although undoubtedly an intelligent lady, has no legal qualifications.  She is a midwife.  

	Given that unsatisfactory background (which to a small extent is compounded by the fact that some, at least, of the papers on which the Respondent intends to rely arrived so late that they have not been able to be considered by the EAT) we think the better approach as to the comparator point is to adjourn it, retaining it in the EAT, but on the basis that it should come back in a situation in which Mrs Mensah is either assisted by an adviser or by a representative from ELAAS (Employment Law Appeal Advice Scheme) who has had the opportunity of looking into the subject and preparing an argument, or, failing those, that there should be an amicus curiae. 

	Precisely what the practical directions we would need to give are we are not sure about but, in the first place, we shall be inviting Mrs Mensah to deal with the comparator point on the adjourned hearing by way of either obtaining professional legal assistance by the ELAAS system or possibly even by legal aid or failing that, as I have mentioned, that an amicus should be appointed.

	If the cross-appeal comparator point is determined in Mrs Bell’s favour then that will have an effect, or may have an effect, on quantum and it could be that if Mrs Bell succeeds on the comparator point the £1,750 would fall to be reduced on the basis that there was a point of law which was, indeed, put to the Industrial Tribunal and which they ignored.  But, assuming for the moment that the comparator point is not successful so far as concerns Mrs Bell, then we leave the £1,750 as it is, although, of course, there is going to need to be an adjustment for interest as we have indicated.