The Court of Appeal allowed the appeal of the East Hertfordshire NHS Trust against a decision of the Employment Appeal Tribunal, allowing the appeal of Esther Mensah against the dismissal by an Industrial Tribunal of her complaint that she had been discriminated against on racial grounds.
The applicant was a well qualified and experienced nurse and midwife of Ghanaian origin. Her complaint to the Industrial Tribunal, made in form IT1, related to the way in which a hospital operated by the trust had responded to her enquiries about vacancies in its midwifery and neonatal units. However, in form IT3, in which the trust gave notice of its intention to resist the application, no mention was made of vacancies in the neonatal unit, nor were such vacancies referred to at a hearing for directions. Neither side appealed against the outcome of the directions hearing.
The Industrial Tribunal unanimously dismissed the application. No reference was made in its extended reasons to the neonatal unit vacancies. The applicant appealed to the EAT on the ground, inter alia, that the question relating to the neonatal unit vacancies needed further investigation.
Her appeal was allowed on the basis that, under rule 9(3) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993, had the applicant not appeared at the hearing of her complaint, the Industrial Tribunal would have been required to examine with care the terms of her IT1 and any other documentation provided. They would thus have been required to apply their minds to, and adjudicate upon, the questions raised concerning the neonatal unit vacancies, and the applicant's position should not have been different or worse because she had appeared before the tribunal.
Gary Morton (Angela Sumeray, Harrow) for the claimant; Philip Reed (Osborne Clarke) for the Trust.
Lord Justice Peter Gibson said that the error of law identified by the EAT was that the Industrial Tribunal had failed to ensure that all matters contained within the IT1 had been dealt with or expressly abandoned by the applicant when it came to her giving evidence. That error depended on the existence of a duty on the Industrial Tribunal to hear every allegation in the originating application unless abandoned, and to act of its own motion even if the applicant did not support the allegation by evidence or argument.
There was no such duty in civil actions in the courts, even if the plaintiff was a litigant in person, and rule 9(3), on which the EAT had relied, did not provide a source for such a duty, since it was expressed to apply only where a party had failed to attend or be represented at the hearing. Furthermore, a long and consistent line of cases relating to unfair dismissal or redundancy gave no encouragement whatever to the existence of such a duty.
In the present case there had been a pre-hearing review to clarify the issues in the case. Had the applicant been unhappy about the outcome of the pre-hearing review, she could have appealed against it. Moreover, she had given evidence at the hearing of her application, and had chosen only to pursue her complaint about the midwifery unit. In those circumstances it could not properly be said that there had been a failure by the Industrial Tribunal to hear the originating application.
It was good practice for Industrial Tribunals to clarify with an applicant, particularly if unrepresented, the precise matters raised in the IT1 which were or were not to be pursued. It must, however, be for the judgment of the particular Industrial Tribunal whether of its own motion it should investigate any pleaded complaint which the applicant was not pursuing.