Appeal No.	EAT/1393/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 June 2000

Before
HIS HONOUR JUDGE J ALTMAN
MR P R A JACQUES CBE
MISS D WHITTINGHAM

MRS E M D MENSAH	APPELLANT

1) THE ROYAL COLLEGE OF MIDWIVES & OTHERS
2) THE NURSING & MIDWIFERY STAFFS NEGOTIATING COUNCIL 	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING/RACIAL DISCRIMINATION

Revised

	APPEARANCES

For the Appellant	THE APPELLANT IS IN PERSON.	

HIS HONOUR JUDGE J ALTMAN:

1.	This is an appeal from the decision of the Employment Tribunal sitting at London (North) on 12 August 1999 and promulgated at 3 September 1999.  It is also an appeal from the refusal of the full Tribunal in a decision wrongly dated on 12 August 1999 and promulgated on 2 September 1999 to review the original decision.  Both matters come before us by way of preliminary hearing to determine whether there is a point of law, such as to enable this matter to be argued in full before the Employment Appeal Tribunal.  This matter goes back a long way.  Originally, the Appellant took proceedings against the West Middlesex University Hospitals NHS Trust, in relation to her contract of employment and unfair dismissal claim for an itemised pay slip and for pay in lieu of notice.   She also took proceedings against them for racial discrimination and this was later varied to include claims for sex discrimination and equal pay, under the Sex Discrimination Act and under the Equal Pay Act.  

2.	At the heart of that series of complaints was the issue as to whether or not the Appellant was an employee, or whether she was self-employed.  The main contention, so it appears from the Notes of Appearance of the Respondents in these proceedings was that, whilst the Appellant was engaged as what was called a ‘Bank Midwife’ she had no fixed hours of work.  Furthermore, the employer could not require the bank midwife to work for any particular session, nor could the bank midwife require the opportunity to work for any particular session or for any total number of hours, and remuneration, it appears, was dependent upon actually working.  

3.	The Appellant worked in that capacity for the hospital trust but it was found that she was not an employee.  No doubt the test of whether there is a “mutuality of obligation” was not made out on the basis of the facts that I have just outlined.  On 23 July 1997 the claim for unfair dismissal, itemised pay slip and pay in lieu of notice were dismissed, on the preliminary issue, as to whether or not the Appellant was an employee.  In February 1999 the discrimination claims were dismissed.  The race discrimination complaint on its own terms and the sex discrimination complaint then being 3 years out of time.  Those matters have been subject to challenge in a number of courts.  The matter came before the Divisional Court of the Queen’s Bench Division, initially for an application for leave to apply for judicial review, before Sullivan J.  His decision was later upheld but it is important to quote that in refusing leave to apply for judicial review, the learned judge said: 
“I can find no basis for your contention that the conditions of service are unlawful.  Complaints of this kind are more properly addressed to an Industrial Tribunal.” 

4.	However by then the Appellant was taking proceedings not against the National Health Trust but against the Nursing & Midwifery Staffs Negotiating Council.  She has a sense of grievance, that she has never had a proper opportunity of employment and that being a ‘Bank Midwife’ gave her none of the secure features of an ordinary contract of employment, to which she felt she was entitled. And in many respects, because of the lack of jurisdiction of the various courts and Tribunals, the main substance of her grievance has never, to any great extent, been heard in court or Tribunal as a result.  She has taken many proceedings to seek to achieve that result.  In the light of those comments of Sullivan J., in due course proceedings were commenced against both the Royal College of Midwives and also the Nursing & Midwifery Staffs Negotiating Council and the matter came before the Employment Tribunal on 12 August 1999.  And the Employment Tribunal considered the submission of the Respondents’ that the claim should be dismissed as being vexatious on the grounds:
1)	That both that the matters canvassed had already been fully litigated and
2)	 Secondly that they were out of time.

5.	In the extended reasons the Chairman set out a careful history of proceedings on which I have already drawn extensively in outlining the history of this matter.  In paragraph 5 of the decision, the Employment Tribunal point to the extent to which an opportunity had been given to the Appellant to set out her various concerns.  They were summarised as being a complaint against these respondents for not supporting the originating application, against the West Middlesex University Hospitals’ NHS Trust in both July 1997 and February 1999.  The Learned Chairman said: 
5.“This cannot be a basis for a renewed Originating Application.  It also appears from the Applicant’s further and better particulars that she attempted to join the First and Second Respondents to the previous case and was unsuccessful.”
At the heart of the complaint that has been argued before us, the Appellant has reiterated that the Negotiating Council in particular, she would say, should have taken steps to protect the position of bank midwives, by way of ensuring they became employees; and that that was a matter of sex discrimination because there are far more women bank midwives than men.  

6.	The Employment Tribunal then pointed out in their words: 
“It is clear that the Employment Tribunal has already adjudicated on all the matters the Applicant seeks to raise now.”          
They then point out that the issue of fact as to whether or not the Appellant was an employee had already been determined and that she had not been discriminated against on grounds of race and that the claims for sex discrimination and claims under the Equal Pay Act were out of time.  The Employment Tribunal then draws attention to the fact that the employment, which has given rise to the current complaints of the Appellant, came to an end in January 1996 and that therefore the matters before the Employment Tribunal were nearly three years out of time.  The Employment Tribunal goes on to describe the current complaint as identical with the old one.  

7.	In support of her appeal, the Appellant has raised a number of matters:
First she complains that the decision of the Employment Tribunal did not specify in terms what parts of her current complaint had been adjudicated upon previously.  
We have read the decision carefully, but it is quite clear that the Employment Tribunal have referred to the fact that the questions as to whether or not she was an employee has been determined, and furthermore have considered whether or not, she was discriminated against on racial grounds.  Secondly, we have considered whether or not the Respondents to these proceedings have effectively a case to answer in the grievance between the Appellant and the Hospital Trust because leave was refused to join these Respondents in those proceedings.  
The Appellant would say: 
“ Well, this is a different matter.” 
Her complaint is against these Respondents for not doing enough to make sure that she was an employee.  Her contention however, had been that she was an employee.  

8.	It seems to us, that that second matter to which the Appellant refers may not have been specifically spelt out in the decision of the Employment Tribunal. But it must be implicit in it, where they take into account the failure of the Appellant to have the 1st and the 2nd Respondents’ in these proceedings joined to the earlier ones.  Furthermore, it does not appear that they were taking a strictly legal approach as to whether or not this was a case of what is called ‘Res Judicata’ or ‘Issue Estoppel.’  They took the view on all the facts that the proceedings were vexatious and implicit in that is that the new complaint, under whatever umbrella, really added nothing new in substance.  We can see no error of law whatsoever in that approach by the Employment Tribunal.  They had the facts before them and they came to a conclusion it seems to us, to which they are entitled to come.  

9.	Next the Appellant pointed out that she understood that Sullivan J was indicating that an industrial Tribunal should hear her complaints and that it was inappropriate in those circumstances for an Employment Tribunal to refuse to do so.  But all that Sullivan J was doing was suggesting that Industrial Tribunals were a more appropriate venue, to which complaints should be ‘addressed.’  The Appellant did address her complaints and they were dealt with.  There is nothing in what Sullivan J said to indicate any obligation on the part of an Employment Tribunal to take on her complaints.  Thirdly, the reason why the claim under the Sex Discrimination Act was out of time was that the Appellants’ case, was that she did not realise that she could bring a complaint for sexual discrimination.  However, traditionally, ignorance of the law has always been held by the Courts not to avail anyone as an explanation for delay. 

10.	Although in some cases, it may be reasonable to extend time, as was done in some other cases, clearly where a case is three years out of time, such enormous delay is something that an Employment Tribunal is entitled to take into account, when refusing to permit a case to proceed.  After all, the purpose of reasonably applied time limits is so that witnesses can speak of things they really remember and that matters can be dealt with properly on the evidence.  Furthermore, time limits are important because where there are disputes between parties, it is only right and proper that after a certain length of time, parties should be able to carry on with their lives with any of these issues behind them, and not having the risk of litigation hanging over them forever.  

11.	So all jurisdictions would agree that the rights to a fair trial and proper adjudication of disputes do require reasonable and proper time limits as long as they are fairly applied by a judicial body.  It is suggested that under article 119 of the Treaty of Rome, there is no time limit and that therefore, we should permit an application under article 119.

12.	Article 119 may provide in certain circumstances the way in which we should look upon, or the Employment Tribunal should look upon, complaints brought under the statutes.  There is then jurisdiction to apply the principles under that article.  However we know of no direct jurisdiction to make a complaint to an Employment Tribunal under the specific article. Because of the “European Dimension”, we are asked to refer this matter to the European Court and the Appellant says that the European law has a different definition of an employee to that of our domestic law and that therefore the dismissal of her application on the ground that she was not an employee is one which, in the European Court would be unsustainable (I use my own words).  That is again new matters that have come to the Appellant.  It seems to us however, that again the question of time limit arises and it does not seem to us that this is a case on such facts as we have, which merits a reference to the European Court.  

13.	In all those circumstances therefore and for the reasons that we have outlined, we have come to the conclusion that on the original case, there is no point of law which could be argued before the full Tribunal and therefore we dismiss that part of the appeal at this stage.  So far as the subsequent request for a review is concerned, the learned Chairman took the precaution of arranging for that to be considered by the full Tribunal. They then clearly considered the matter at some length, and very helpfully, if we may say so, full-extended reasons for refusal were given.  

14.	The Employment Tribunal considered a new letter that had been produced dated 23 June 1999 as new evidence to justify the application for a review, so far as the Appellant maintained and also to consider further matters.  All the submissions were considered very carefully by the Employment Tribunal but they came to the conclusion that there was no merit in the application and it was refused.  Whether to grant a review is a matter within the discretion of the Employment Tribunal on grounds clearly set out by statute, and we have seen nothing within the extended reasons to give rise to an argument that the Employment Tribunal erred in law in the way they approached the exercise of that discretion.  Accordingly, the appeal from that decision falls also to be dismissed at this stage.