North West Thames Regional Health Authority v Noone
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY,LORD JUSTICE BALCOMBE,LORD JUSTICE STOCKER |
| Judgment Date | 15 July 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J0715-1 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 88/0619 |
| Date | 15 July 1988 |
[1988] EWCA Civ J0715-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(Sir Ralph Kilner-Brown)
Royal Courts of Justice
Lord Justice May
Lord Justice Balcombe
and
Lord Justice Stocker
88/0619
MISS JANET SMITH, Q.C., MR. S. MUNASINGHE AND MR. K. MENON (instructed by Messrs Karim Laxman) appeared on behalf of the Appellant/Appellant.
MR. JEFFREY BURKE, Q.C. and MISS C. BOOTH (instructed by Messrs Capstick Hamer & Co.) appeared on behalf of the Respondent/Respondent.
By section 54 of the Race Relations Act 1976 a complaint that a person has been discriminated against on the grounds of race may be presented to an industrial tribunal. If that tribunal finds that complaint well founded, section 56 (1) sets out the remedies which the industrial tribunal is empowered to grant. It is perhaps convenient to read the whole of the subsection into this judgment:
"56 (1) Where an industrial tribunal finds that a complaint presented to it under section 54 is well-founded, the tribunal shall make such of the following as it considers just and equitable—
(a) an order declaring the rights of the complainant and the respondent in relation to the act to which the complaint relates;
(b) an order requiring the respondent to pay to the complainant compensation of an amount corresponding to any damages he could have been ordered by a county court or by a sheriff court to pay to the complainant if the complaint had fallen to be dealt with under section 57;
(c) a recommendation that the respondent take within a specified period action appearing to the tribunal to be practicable for the purpose of obviating or reducing the adverse effect on the complainant of any act of discrimination to which the complaint relates."
Section 57, which is briefly referred to in section 56, in effect equates for the purposes of compensation a finding of discrimination to a finding of a tortious act against the person complained of.
In this particular matter the complainant, who is the appellant before us, complained on 4th April 1984 that the respondents had discriminated against her on racial grounds in that they had failed to offer her a post as a Consultant Microbiologist at the Ashford Hospital. Her complaint was dated 1st July 1984. It was upheld by an industrial tribunal on 27th March 1985 and on that occasion the industrial tribunal, in addition to finding the complaint made out, awarded under section 56 (1) (b) of the Act the sum of £5,000 by way of compensation. On that occasion in November 1985 the industrial tribunal adjourned any question of further relief under subsection (l) (c) of section 56. However, it is to be noted that at the end of the decision of the industrial tribunal on that first occasion, they said:
"If it is within their powers [the powers of the Industrial Tribunal] it is the intention of the Tribunal subject to argument by the respondents to recommend that by the 1 September 1985 the respondents take steps to offer to the applicant a consultant post as micro-biologist. Failing agreement between the parties by the 11 April 1985 the Tribunal will re-list the case for argument of that subject."
It is quite clear that at that stage, at any rate, it was the intention of the Industrial Tribunal, in so far as they could, to ensure that the appellant in whose favour they had found discrimination proved, should be appointed to a post as a consultant microbiologist in the respondents' area.
The parties were unable to come to an agreement and accordingly the matter of further relief was considered again by the Industrial Tribunal on 18th November 1985. Evidence was called and argument heard on that occasion and in paragraph 4 of their decision the Tribunal wrote as follows:
"The Tribunal are satisfied that the applicant should, if possible, be offered an appointment and so the recommendation we make is that: before the 1 June 1987 the respondents seek the authority of the Secretary of State under Regulation 5 (3) of the National Health Service (Appointment of Consultants) Regulations 1982 to dispense with the requirements of Regulation 5 (1) of the Regulations in relation to an appointment to a post of Consultant Microbiologist in the North West Thames Regional Health Authority if such a post becomes available and that they offer the applicant for that appointment."
Misunderstanding seems to have occurred between the Industrial Tribunal, the Employment Appeal Tribunal and others on the precise phraseology used by the Industrial Tribunal on that second occasion. In my view it is quite clear that what they were seeking was the appointment of the appellant to a consultancy job within the respondents' area, but I suspect they realised that they could not go quite as far as that in their recommendation and accordingly the recommendation was worded as I have read, namely that they offer the applicant "for" that appointment. However the presence of the word "for" in that recommendation has not been noted, in particular by some reports of the results of the decision in this case and comments upon it, and it is a matter to be remarked upon so that any errors there may be may be corrected.
Thereafter the respondents before us appealed to the Employment Appeal Tribunal against both the finding of discrimination and the relief which the Industrial Tribunal had ordered, as I have indicated. That came before the Employment Appeal Tribunal on 14th November 1986. The Employment Appeal Tribunal set aside the finding of racial discrimination. In...
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