Appeal No. EAT/0688/02 SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 June 2003

Before
HIS HONOUR JUDGE PETER CLARK
(SITTING ALONE)

MRS E MENSAH	APPELLANT

(1) WEST MIDDLESEX UNIVERSITY HOSPITAL NHS TRUST	RESPONDENTS
(2) MRS B TEBBY

Transcript of Proceedings

JUDGMENT

RULE 3 (10) APPEAL

Revised

	APPEARANCES

For the Appellant	MRS E MENSAH
(the Appellant in Person)	
For the Respondent	MR A LESLIE
(Solicitor)
Instructed by:
Messrs Radcliffes LeBrasseur Solicitors
5 Great College Street
Westminster
London SW1P 3SJ	

HIS HONOUR JUDGE PETER CLARK

1	On 8 November 2001 the Applicant, Mrs E M Mensah, presented a complaint to the London (South) Employment Tribunal, case number 2305834/2001.  The Respondents to her complaint were first, Mrs Brenda Tebby, a manager employed by West Middlesex University Hospital NHS Trust and the Trust as Second Respondent.

2	In the body of the complaint Mrs Mensah asserted that she was employed by the Second Respondent from 2 September 1973 and that her employment ended on 29 January 1996.  The nature of her complaint is put in this way in Box 1:

“Unreasonable termination of my work as a Bank Midwife on single engagements.  Contract of employment in breach of the Race Relations Act.  Disability Discrimination Act.  Sex Discrimination Act & the Human Rights Act.”

3	By way of background which I take from the Extended Reasons promulgated by a Tribunal sitting under the Chairmanship of Ms C Hyde on 23 May 2002 to hear this application, the Applicant commenced work with the Royal Berkshire Hospital in September 1973 as a midwife.  That employment ended in 1978.  Thereafter her name was removed from the roll of midwives but she was subsequently restored to the roll.  Between November 1994 and January 1996 she worked as a midwife for the Second Respondent.

4	Mrs Mensah has taken proceedings on a number of occasions over the years.  I note in an extensive bundle which she has placed before me a decision of Slynn J, then President of the EAT, dated 8 February 1980 in earlier proceedings upholding a decision by the Registrar that that particular appeal disclosed no question of law so that the EAT had no jurisdiction to entertain the appeal.  History now repeats itself in 2003.

5	Ms Hyde’s Tribunal dismissed the complaint, first, on the basis that the complaints under the Sex Discrimination Act 1975, Race Relations Act 1976 and Disability Discrimination Act 1995 and in relation to her employment under the Employment Rights Act 1996 were all out of time and it was not just and equitable to extend time in the discrimination claims, nor was it not reasonably practicable to bring the complaints under the Employment Rights Act 1996 in time.

6	Secondly, the application was struck out under Rule 15 (2) (c) of the Employment Tribunal Rules of Procedure 2001 on the basis that the Originating Application was misconceived in that it had no reasonable prospect of success.

7	The Notice of Appeal submitted by Mrs Mensah against that decision is dated 29 March 2003, received on 1 April.  By a letter dated 6 March which must, it seems to me, be an error for 6 April 2003, the Registrar directed under Rule 3 (7) that no further action should be taken on the Notice of Appeal on the basis that it raised no error of law; the jurisdiction of the EAT being limited under section 21 of the Employment Tribunals Act 1996 to correcting errors of law by the Employment Tribunal.

8	Dissatisfied with that direction the matter has been referred to me under Rule 3 (10) of the Employment Appeal Tribunal Rules 2001 for further consideration.  For the purpose of this hearing Mrs Mensah has submitted a Skeleton Argument, an extensive bundle of documents and has addressed me in person.

9	The question for me is whether this appeal raises any question of law which might result in the decision below being overturned.  It therefore follows that she must raise points in relation both to the limitation findings by the Tribunal and the finding that the claims were misconceived under Rule 15 (2) (c).

10	I mentioned that Mrs Mensah is an experienced litigant.  The Tribunal make that point at paragraph 52 of their Extended Reasons.  She was aware of the time limits.  All of these complaints, save for the victimisation complaints, necessarily concerned her employment with the Second Respondent which ended in January 1996.  It follows that the complaint brought in November 2001 fell outside the ordinary time limit of three months for each of those complaints.

11	The question then for the Tribunal was whether it could be said that it was not reasonably practicable to present the complaints under the Employment Rights Act 1996 in time and, in relation to the discrimination claims, whether it was just and equitable to extend time.

12	Those are essentially questions of fact for the Employment Tribunal.  Given the history of the matter and her knowledge of employment law and practice I can see nothing in the grounds of appeal which begins to challenge the Tribunal’s findings on time as a matter of law.

13	Turning to the strike out order under Rule 15 (2) (c).  Insofar as these complaints had previously been litigated, it is an abuse of process for fresh proceedings to be started on matters which have been earlier determined by a Tribunal.

14	But further than that, I raised with Mrs Mensah the Court of Appeal decision in Divine-Bortey v London Borough of Brent [1998] IRLR 525 with which she tells me she is familiar.  There a point arose during evidence given in an unfair dismissal hearing which the Applicant later sought to rely on as forming the basis for a complaint of unlawful racial discrimination against his former employer.  He issued a fresh Tribunal application after the unfair dismissal hearing had been concluded.  The Court of Appeal held that such a second application should be struck out on the basis of the old rule in Henderson v Henderson [1843] 3 Hare 100 that it is for a party to bring the whole of his case before the Court or Tribunal at one time.

15	The principle behind that rule is a long-standing one.  It is the principle of finality of litigation.  Unless there was something new raised in this application it seems to me that no complaint in law can be made against this Tribunal’s decision.

16	The Originating Application refers to a reference which was written by Mrs Tebby, the First Respondent, and dated 12 October 2000, for use in an application by Mrs Mensah for employment in that year at Wexham Park Hospital.  That reference is referred to in Employment Tribunal proceedings in the Reading Tribunal, to which the Second Respondent, West Middlesex, was a party.  In a Notice of Appearance in those proceedings dated 9 February 2001 reference was made to that document, which was said to be a true and unfavourable reference.

17	In due course, on 10 August 2001 the Applicant received a copy of that reference.  The Reading application then came on for hearing on 13 August 2001.  At that hearing the application made by Mrs Mensah was dismissed.  She tells me that she asked the Reading Tribunal to hear her complaint of victimisation arising out of Mrs Tebby’s reference.  If so, then that was a matter to be dealt with in those proceedings.  If the Tribunal failed to deal with that matter, that would be a potential matter for appeal.  Alternatively, if it was not raised in those proceedings it ought to have been.

18	Thus, even if it is open to an Applicant to complain of victimisation under the Race Relations Act 1976 in relation to events after termination of employment, in the same way that it is in relation to a claim under the Sex Discrimination Act 1975 (see Coote v Granada Hospitality Ltd No. 2 [1999] IRLR 452), it seems to me that this is something which ought to have been litigated in the Reading proceedings and not left to further later proceedings which these are.

19	Mrs Mensah insists that her European law rights have been breached by this Tribunal.  I do not accept that they have, nor do I accept that there is a prohibition on member states imposing reasonable limitation provisions.

20	In these circumstances it seems to me that there is nothing in this appeal which raises a question of law such as to give the EAT jurisdiction.  In reaching that conclusion I have also considered the allegations of bias in an affidavit sworn by Mrs Mensah in these proceedings on 5 August 2002.  I have considered the Chairman, Ms Hyde’s comments dated 5 February 2003.  I agree with the view which she expresses, that really these are not complaints of bias (that is, prejudgment, or the appearance of prejudgment) rather complaints about the outcome of the Preliminary Hearing before Ms Hyde’s Tribunal.

21	The Applicant complains that evidence was heard at that Preliminary Hearing.  I have received no authority for the proposition that evidence cannot be heard at a Preliminary Hearing; it frequently is.

22	For these reasons I uphold the Registrar’s direction.  There will be no further action taken on this appeal.