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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Harrold v Wiltshire Healthcare NHS Trust [1998] UKEAT 236_98_0604 (6 April 1998) URL: http://www.bailii.org/uk/cases/UKEAT/1998/236_98_0604.html Cite as: [1998] UKEAT 236_98_0604, [1998] UKEAT 236_98_604

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APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


JUDGE PETER CLARK: Mrs Harrold appeals against a reserved decision of the Bristol Industrial Tribunal, sitting over three days in October 1997, dismissing her complaint of direct discrimination and victimisation on the grounds of her race. Extended reasons for that decision are dated 17th November 1997.

The outline facts as found by the tribunal are these. The appellant, who is black and of Afro-Caribbean racial origin, commenced employment with the respondents predecessor in 1980. She qualified as a State Enrolled Nurse, then a District Enrolled Nurse, and by early 1993 was employed at Grade E as part of a district nursing team based at the Giffords Surgery, Melksham. During that year she commenced a course to convert her qualification to that of Registered General Nurse; she was also redeployed to the Devizes Community Hospital carrying out the duties of a Grade D Registered Nurse, although her Grade E salary was protected.

In November 1994 she applied to the respondents for sponsorship for district nurse training. She was invited for interview, but her application failed.

On 12th December 1995 she presented an Originating Application to the Industrial Tribunal complaining of discrimination on racial grounds. At a hearing held on 18th March 1996 that complaint was compromised between the parties on terms that the appellant be allowed unpaid leave to enable her to undertake a course leading to a diploma in Higher Education in Nursing Studies and the respondents agreed to pay £1,000 towards her course fees.

On 7th October 1996 the appellant wrote to Miss Prior, who had dealt with her previous application for sponsorship for District Nurse training, indicating that she intended to renew her application for 1997 and asking for all relevant information. The application was passed to a Mrs King, who had taken over from Miss Prior. Mrs King sent the appellant an application form on 24th October; the closing date was 31st December 1996. No further information was sent, so the tribunal found, although unknown to the appellant, the selection criteria were later altered compared with those which had applied on the previous occasion in three respects; the criterion of "living in the area" was dropped and two were more added, "presentation of application" and "content of applications". The tribunal found that the new criteria were not communicated to any of those applying for sponsorship in 1997.

A short-listing procedure was carried out, involving a scoring matrix. There were six applicants in all, including the appellant. One applicant was not seeking a place 1997 and therefore was not assessed in detail. The appellant came second last of the remaining five candidates; the two white highest scoring candidates were invited for interview. Only one, known as DS, accepted that invitation and she was offered sponsorship. Subsequently a fresh candidate applied, and without re-running the competition she, also white, was offered sponsorship.

On 4th February 1997 Mrs King wrote to the appellant informing her that she had been unsuccessful and inviting her to a feedback session. A meeting was held on 18th April 1997 between Mrs King and Miss Love, who had carried out the short-listing exercise, and the appellant. The appellant was left with the impression at the end of that meeting that Mrs King and Miss Love were uniformly critical of her.

On 1st May 1997 the appellant presented her second complaint to the Industrial Tribunal, alleging both discrimination and victimisation on the grounds of her race. The tribunal appreciated, from her amended form IT1 following an interlocutory hearing held in July 1997, that she relied upon the history, as we have set it out, as supporting an inference of discrimination and/or victimisation.

In their extended reasons the present tribunal, chaired by Mr C G Toomer, found at paragraph 21 that there was no evidence of racial bias on the part of the respondents or their employees. Again, at paragraph 28 they found that the change in selection criteria was not effected deliberately with the intention of placing the appellant at a disadvantage, and at paragraph 29 they found that the failure to short-list the appellant was not racially motivated. Nor did the history displace their finding that the appellant had not been discriminated against or victimised on the grounds of her race.

However, the tribunal also directed itself in accordance with the well-known guidance of Neill LJ in King v Great Britain China Centre [1992] ICR 516 as approved by the House of Lords in Zafar v Glasgow City Council [1998] IRLR 36, at paragraph 20 of the reasons. They found that the appellant was treated less favourably that DS in that she was not short-listed for sponsorship, but they accepted the respondent's explanation as to why DS was preferred as a result of the point-scoring exercise. Having set out their reasons in some detail, the tribunal concluded that the complaint failed.

In this appeal Mrs Harrold takes three points.

The first ground of appeal is that the tribunal applied the wrong test to determine whether or not she had been directly discriminated against on racial grounds in relation to the change of selection criteria.

We have considered carefully paragraph 28 of the reasons. It is correct to say that motive and intention is irrelevant in considering a complaint of direct discrimination, unless, of course, such motive or intention is shown by the evidence, in which case, the complaint will be made out. It is not, however, a necessary part of the applicant's duty in establishing direct discrimination to show such motive or intention. However, we do not think that the tribunal stopped there; they also went on to consider whether the change in criteria had in itself a discriminatory effect. They found that there was nothing inherently discriminatory in the new criteria which were added, nor in the single criterion which was deleted from those which applied on the last occasion when she made application for sponsorship. In these circumstances, we are not satisfied that the tribunal fell into error or failed to apply their self-direction in accordance with the guidance in King.

The second ground of appeal is that there was no evidence to support the tribunal's finding at paragraph 10 of their reasons, that no information, apart from the application form, was sent out to the other candidates, in the same way as none was sent to the appellant between December 1996 and January 1997.

Mrs Harrold tells us that the respondent's witnesses gave evidence to the effect that no documents were sent out to the various candidates. That evidence was plainly accepted by the tribunal. In these circumstances, the second ground of appeal is not made out.

The third and final way in which the appeal is put is that the tribunal failed to take into account the pattern of treatment of the appellant compared to other white staff over a period of time beginning in about 1993.

We cannot accept that submission. The Industrial Tribunal at paragraph 19 of their reasons clearly had in mind the way in which the appellant put her case by reference to the factual background, and they considered it at paragraph 30 of their reasons, and came to the conclusion that it would not be proper to infer from the fact that she had been unsuccessful in the past, that she had been unsuccessful because of her race.

Having considered the three specific matters put before us by Mrs Harrold today, and looked at the decision as a whole, bearing in mind that this Industrial Tribunal saw and heard the witnesses over a period of three days, we have come to the conclusion that this appeal raises no arguable point or points of law which ought to proceed to a full hearing, and accordingly, we must dismiss it at this preliminary hearing stage.