Appeal No.	 EAT/938/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 April 1997

Before
THE HONOURABLE MR JUSTICE MORISON (P)
MR E HAMMOND OBE
MRS M E SUNDERLAND JP

MR P MUNGAL	APPELLANT

TWICKENHAM & ROEHAMPTON HEALTHCARE NHS TRUST	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE BY OR
REPRESENTATION ON
BEHALF OF THE 
APPELLANT	

	MR JUSTICE MORISON (PRESIDENT):     At this hearing the Appellant has not appeared, as is his entitlement, but we have had the benefit of a skeleton argument from him dated 7 April 1997, and we have been informed by telephone this morning that there will be no appearance by him or on his behalf and we were invited, as we now do, to consider the papers in this case and to take into account in arriving at our decision the skeleton argument which has been presented to us.

	We should make it plain that we have looked at that skeleton argument with care and discussed it amongst ourselves, as indeed we have discussed the terms of the decision.  Essentially the position is this.  The Applicant claimed that he had been unfairly selected for redundancy and subjected to detrimental treatment contrary to the Race Relations Act 1976.  In paragraph 3 of the decision of the Industrial Tribunal they succinctly summarise all the complaints which the Applicant was making.

	In paragraph 4 they indicate that there was a complaint of race discrimination and of a dismissal which was attributable to his race and a failure to consult with him prior to his dismissal on grounds of redundancy.  They noted that no questionnaire had been served under the Act.

	At the beginning of the hearing before the Industrial Tribunal, Mr Levinson, on behalf of the employers, the Twickenham and Roehampton Healthcare NHS Trust, took the point that a number of the incidents about which complaint had been made, occurred more than three months before the application had been presented to the Industrial Tribunal and the Industrial Tribunal considered, as they were required to do, whether these or any of the acts were of a continuing nature within the meaning of Section 68(7).

	In reaching their conclusions as to whether they should exercise any discretion which arose and, it is to be noted that they have a wide discretion under the legislation, the Tribunal said this at paragraph 10:

“10.  In so doing, [that is in considering whether it was just and equitable in all the circumstances to consider the allegations] we had regard to the fact that the applicant had been represented by his union throughout.  Further, he had been receiving legal advice from Mr Rudy Narayan, an expert in civil rights, since at least 1992.  Mr Narayan’s letter of March 30 1993 states that proceedings had been started as at that date, which would almost have been in time, but they were not in fact received at the Central Office until May 11 1993.”

	The Applicant in this case is a Registered Mental Handicap nurse, having undergone his training in April 1966.  He had progressed to a very senior management grade, Grade 1, carrying with it a salary of some £20,000 to £22,000 a year.  Between paragraphs 17 to 25 of the decision the Industrial Tribunal record certain historical facts.  At paragraph 26 they noted that the Applicant did have difficulties with his Line Manager, a Mr Murphy.  Both Mr Murphy and another gentleman, who was in management, said that the Applicant was not, for them as non-nurses, an easy person to manage.  Being at the top of the nursing grades, it was both appropriate and likely, the Tribunal noted, that the Applicant’s Line Manager would not be a nurse, but a Manager.  Mr Murphy kept contemporaneous notes of his meetings with the Applicant and it was on that basis, no doubt, that he gave his evidence.

	The Applicant had an extended period of sick leave between March and October 1992.  On his return from illness on 13 October 1992 the Applicant went to see one of his managers and questioned about various problems which had been discovered in his absence on sick leave.  He was suspended for a period of time on the grounds that it was suspected that there had been an abuse of the hospital’s drug policy but, having regard to the fact that it was subsequently ascertained that it was not entirely his fault and that others had been involved, his suspension was lifted.

	There was a further discussion about the drug’s policy on 11 February 1993 and there was an allegation by the Applicant that he was aggressively dealt with at that meeting, although the Industrial Tribunal reject that allegation, not least because no allegation was put to Mr Murphy in cross-examination.

	The Tribunal then turned to consider the redundancy situation.  The Tribunal found that the Health Authority began preparing for Trust status in December 1992 and started off with a set target of a 7% cut in their budget.  The selection for redundancy, was not performance related but based upon objective criteria.  The Managers were aware that there had been difficulty between them and the employee, but the person concerned who had to take the decision did not regard the Applicant as a trouble-maker, nor did he dislike him personally and Mr Murphy told the Tribunal that he had not sought to have the Applicant removed for being a trouble-maker.

	Paragraph 47 records the Tribunal’s decision that they were satisfied that the Applicant was not selected on any personal grounds, whether in relation to his difficulties with Mr Murphy or his race.  The Applicant has adduced no evidence of either different treatment of other white managers at Grade 1, or any disparate effect of their objective approach and there is no direct evidence of racial motivation in his selection for redundancy.

	On 24 March 1993 the Applicant was informed by letter that his post was at risk.  Mr Murphy asked the Applicant what he thought, and the Applicant said at that meeting, “I am attending to sit and hear what you have to tell me”.  He was offered a list of vacancies.  He took it away.  He was not interested in talking about the redundancy or the risk to his job.  He did not say anything at all.  The selection of his post was confirmed.

	Again, the Tribunal refer to the fact that throughout the Applicant was advised by his unions, initially NUPE and later the Royal College of Nursing.  The Tribunal regarded certain allegations as linked; dealt with some on the basis of the time limit and dealt with others on the basis of their merits.  

	Paragraphs 77 and 78 and also paragraphs 86 to 89 of the Industrial Tribunal Decision read:

“77.  In so doing, we again had regard to the fact that the applicant had been represented by his union throughout.  Further, he had been receiving legal advice from Mr Rudy Narayan, an expert in civil rights, since at least 1992, and we took into account the fact that in his letter of March 30 1993, Mr Narayan had represented to the Respondent that proceedings had already commenced.  There is therefore no excuse for the further delay from March 30 to May 11 1993.
78.  The applicant was fully aware of the allegations he now asks the Tribunal to determine, but chose to take no action thereon.  He had available to him both union and legal advice, and it was clear from his evidence that he is not inarticulate and is aware of the Respondent’s grievance procedure.
86.  As regards the selection for redundancy, that was on objective grounds, and the Applicant failed to co-operate in such a way as to deprive himself of any realistic prospect of alternative employment.  
87.  Accordingly, there is no evidence that there was any less favourable treatment of the Applicant within the meaning of the Race Relations Act 1976 s.1. and we do not look to the Respondent for any further explanation of this.
88.  There was no material upon which we were minded to draw an inference that any member of the Respondent’s staff was racially prejudiced towards the Applicant, and as already stated, there was no questionnaire served.  We have heard lengthy evidence from Mr Drew and Mr Murphy, who impressed us as fair and objective, but struggling with the Applicant’s refusal to respond to management.  We are satisfied that the selection for redundancy was for the reasons stated, not performance-related but driven by budgetary pressures.  The explanations given by the Respondent of its actions are at least adequate.
89.  In all the circumstances, the Tribunal finds that the applicant was not treated less favourably than either an actual or a theoretical person of a different racial origin in similar circumstances and accordingly it is the unanimous decision of the Tribunal that the applicant’s claim under the Race Relations Act 1976 is dismissed.”

	It seems to us that the real point that is made in the Notice of Appeal, which has been filed in this case, is the complaint that the Industrial Tribunal effectively failed to consider whether the background incidents were continuous acts capable of forming a policy, rule or practice, extending over a period of time, and reference was made to the decision in Owusu v London Fire & Civil Defence Authority [1995] IRLR 574.  It seems to us that, whilst it might have been better had the Industrial Tribunal referred to the interlinking of these allegations in some more positive way, we have no doubt at all, from the terms of the decision, that they had looked at the question as to whether these were continuing acts because indeed they, themselves, direct their attention to the relevant section of the act.  

	In our view there are no grounds for thinking that the Industrial Tribunal has failed to take into account that which they would have been very well aware of and accordingly, it seems to us, that there being no merits in the other points in the Notice of Appeal, this appeal should be dismissed.

Mr Justice Morison:                                                                                            1/5/97

EAT/938/96 - MR P MUNGAL V TWICKENHAM & ROEHAMPTON 
                        HEALTHCARE NHS TRUST

I have a query regarding the above judgment.
Would you please let me know if you wish paragraph 85 of the Decision of the Industrial Tribunal included in the paragraphs to be incorporated.  I noticed this para was marked with a blue pen on the Decision of the IT in the same way as paras 86 to 89.

Thank you.

Iris 
(Typing)