Appeal No. EAT/1393/01/TC

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 February 2003
Judgment delivered on 12 May 2003

Before
THE HONOURABLE MR JUSTICE RIMER
MR D A C LAMBERT
MR R N STRAKER

MRS E MENSAH 	APPELLANT

(1) HEATHERWOOD & WREXHAM PARK HOSPITALS 
NHS TRUST & 6 OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MRS E MENSAH
THE APPELLANT
IN PERSON	
Respondents (1 – 6)

Respondent ( 7 )	MR D MATTHEWS
(of Counsel)
Instructed By:
Messrs Radcliffes Le Brasseur 
Solicitors
5 Great College Street
Westminster
London SW1P 3SJ

MR T LINDEN
(of Counsel)
Instructed By:
EEF
Broadway House
Tothill Street
London SW1H 9NQ

THE HONOURABLE MR JUSTICE RIMER:

1.	This is an appeal by Mrs Esther Mensah against a decision of an employment tribunal sitting at Reading on 13 August 2001 and chaired by Mr C.E.H.Twiss. The tribunal’s extended reasons were promulgated on 5 September 2001. By their decision, the tribunal exercised their jurisdiction under rule 15(2)(c) of The Employment Tribunals Rules of Procedure (in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001) and struck out three originating applications that Mrs Mensah had made to the employment tribunal. There were seven respondents to the first two applications: (1) Heatherwood and Wexham Park Hospitals NHS Trust (“Heatherwood”), (2) Ms A Doak, (3) Ms J Ostler, (4) Mrs L Webb, (5) Mrs L Hughes, (6) West Middlesex University Hospital NHS Trust (“Middlesex”), and (7) The Royal Berkshire and Battle Hospitals NHS Trust (“Berkshire”). Only Berkshire was a respondent to the third application. Mrs Mensah appeared in person on this appeal, Mr Dennis Matthews represented the first six respondents and Mr Thomas Linden represented the seventh respondent, Berkshire. 

2.	In their extended reasons, the tribunal summarised the history of earlier proceedings Mrs Mensah had brought, and we will also summarise it. It is relevant because one of the grounds of appeal is that it is said that the tribunal paid undue regard to it and so took into account irrelevant matters. 

Earlier proceedings
3.	Mrs Mensah worked as a midwife for Berkshire, or their statutory predecessor, between 1974 and 1978. In about 1978, her name was removed from the roll of midwives, apparently on a ground relating to her conduct. The result was that she could no longer perform midwifery duties and Berkshire dismissed her. Her complaint of unfair dismissal to the industrial tribunal was dismissed in 1979.

4.	In 1993, Mrs Mensah applied for a review of that decision on the ground that fresh evidence had emerged. Her application was refused, and her appeal to this appeal tribunal was dismissed, as was her attempt to appeal against that decision to the Court of Appeal.

5.	Mrs Mensah was employed as a midwife by Middlesex between November 1994 and January 1996. Following the termination of that employment, she brought industrial tribunal proceedings against Middlesex and members of its staff claiming unfair dismissal and unlawful discrimination. Her applications were dismissed at hearings in July 1997 and February 1998, and her appeals were also dismissed.

6.	In August 1996, Mrs Mensah brought industrial tribunal proceedings against Berkshire alleging race discrimination and victimisation in relation to an unsuccessful application for the post of midwife in May 1996. That application was dismissed, as were Mrs Mensah’s application for a review, her appeal to this appeal tribunal and her application for leave to appeal to the Court of Appeal.

7.	In June 1997, Mrs Mensah commenced personal injury proceedings against Middlesex in the Brentford County Court. HH Judge Marcus Edwards dismissed her claim, saying in his judgment that he regarded her evidence as unreliable. The judge said that she had “an answer no matter how implausible, for every question. She was continually trimming her answers to meet questions.” The tribunal whose decision is under appeal to us recorded that that was also their experience of Mrs Mensah. They remarked, for example, that “her account of the basis of her disability discrimination claim in her Originating Application differs totally from the nature of her claim recounted to us today.”

8.	In July 1998, Mrs Mensah started a High Court action against Middlesex, Berkshire and others. The claims covered in part matters already the subject of prior employment tribunal applications. The action has been stayed.

9.	In January 1999, Mrs Mensah presented employment appeal tribunal proceedings against Middlesex, Berkshire and others. She alleged unfair dismissal and sex discrimination, complained that The Royal College of Midwives had conspired to prevent her employment as a midwife and complained that Berkshire had refused to supply references for her. Her applications were dismissed by the employment tribunal, which found that she had acted frivolously, vexatiously and unreasonably in pursuing her claims against Berkshire and another respondent. Her appeal to this appeal tribunal was dismissed. 

10.	Later in 1999, Mrs Mensah issued yet further proceedings against, among others, Middlesex and Berkshire claiming sex and race discrimination and resurrecting her claim that she had been unfairly dismissed in 1978. The complaints were struck out as frivolous and/or vexatious. Mrs Mensah’s appeals to this appeal tribunal were dismissed.

Current proceedings
11.	The tribunal explained that they had referred to the previous proceedings because, as they found “… to a very considerable degree, they deal with matters which are the subject matter of the present proceedings … indeed the only new matters appear to us to be [Mrs Mensah’s] complaint of race discrimination in respect of the events of 24 October 2000 and her complaint of disability discrimination. These complaints bear close similarity to the cases previously brought by [Mrs Mensah].” 

12.	As we shall explain, the third of Mrs Mensah’s applications simply sought to re-open the unsuccessful unfair dismissal application she had made against Berkshire in 1979. But her first two applications did raise new issues, even if they bore a similarity to claims she had brought in the past. They arise out of events occurring in September and October 2000, which were not, and could not have been, the subject of any of her prior applications. 

Events giving rise to the first two applications
13.	Mrs Mensah is a black African. In response to a newspaper advertisement, she applied to the first respondent, Heatherwood, for a midwifery job. On 27 September 2000, she was interviewed for the post by a panel comprising the third to fifth respondents: Ms Jane Ostler (Heatherwood’s clinical manager, obstetrics and gynaecology), Mrs Lena Webb (a personnel adviser) and Mrs Hyacinth Hughes (midwife manager, and a supervisor of midwives). Ms Ostler and Mrs Webb are white, Mrs Hughes is black. Mrs Mensah was told she would need three months’ supervision, which she accepted, although she regarded it as excessive. 

14.	Heatherwood then told Mrs Mensah, by a letter of 17 October 2000, that her application for the midwifery post was unsuccessful. On 24 October 2000, she had a feedback discussion with Ms Ostler, whom she says explained to her that she “would not fit in,” that her “references were unsatisfactory” and that she had shown herself at interview as “aggressive”. Mrs Mensah admits that, at the interview, she had gesticulated in a manner which may have conveyed she was under some stress, as she was: she was being evicted from her flat and was suffering from other unidentified social problems. She claims, however, that the panel did not appreciate that gesticulation is a cultural practice with Africans and that they wrongly interpreted it as manifesting aggression.

15.	The only written reference which appears to have been sought and provided was from Middlesex. Middlesex asserts in its IT3 that its reference was “true and unfavourable.” It has been disclosed to Mrs Mensah, it is in the bundle before us, and it is unfavourable. It appears from the IT3 served by the first to fifth respondents that Berkshire had also provided some information over the telephone about Mrs Mensah, although there is no evidence as to what it was, but it did not provide a written reference. Berkshire’s IT3 asserts that Heatherwood did ask it for a reference, it telephoned Ms Angela Doak at Heatherwood about the matter, who then informed it that Heatherwood had already decided not to employ Mrs Mensah and so no reference was required. Berkshire denies, however, that it refused to provide a reference. Ms Doak, the second respondent, is Heatherwood’s assistant director of human resources, and she apparently spoke to Mrs Mensah on the telephone on 10 November 2000 and 9 January 2001. 

16.	Following the feedback discussion, and a further letter from Mrs Mensah, Ms Ostler wrote to Mrs Mensah on 7 December 2000, explaining further why her application had been unsuccessful. Ms Ostler wrote that the interviewing panel did not consider that Mrs Mensah:

 “… demonstrated any self-awareness of reflective practice or the changes that had taken place in the last 4 years. Also they were not convinced that you had any concept of the role of the supervisor of midwives. 

It was felt that your manner was at times aggressive, and also that you had a difficulty in recognising that you could be wrong. We also felt that you were not willing to take advice or help.

You mention in your letter about references, which we did discuss at interview, I asked if you could provide some contact names in order that we could approach them. You gave permission to do this and said that they would all be against you. However, the referees actually declined to provide a reference.”

17.	Ms Ostler wrote that she had not said that Mrs Mensah “would not fit into the establishment”, but that the panel felt she “would not fit into the team”. She said the panel reached this conclusion as a result of Mrs Mensah’s aggressive manner at interview. She concluded by saying:

“In summary, you were not successful in being offered a Midwifery post. We did consider supervised practice or a refresher course; however, normally we offer these on the basis that the candidate is considered suitable from [sic] employment in a substantive post on completion.

As I already mentioned I have given you part of this feedback on the telephone, which was a difficult conversation to help you to understand the rationale behind our decisions.”

We do not understand Ms Ostler’s point about the refusal to provide references, since Middlesex did provide a reference.

Mrs Mensah’s originating applications
18.	The matters before the tribunal were strike out applications. In order to assess them, the proper starting point for the tribunal was a consideration of the essentials of the claims made in the three applications which Mrs Mensah had presented. These needed to be considered in order to see if any of her allegations raised a case that deserved to go to a full hearing.  

(i) Application no 2700092/01 (“the first application”)
19.	This was presented on 15 January 2001. It is brought against all seven respondents. Mrs Mensah’s complaint covers about eight pages of manuscript, from which we derive the essence to be as follows. Mrs Mensah explains how, in August 2000, she responded to an advertisement for the midwifery job at Heatherwood, although she had not practised midwifery for four years. She attended the interview on 27 September 2000, which she says started 20 minutes late. She sets out the facts we have summarised relating to the interview and the rejection of her application. She alleges that she told Ms Ostler that “by contacting my previous employers & relying on their malicious references, she has victimised me under the Race Relations & Sex Discrimination Acts as I had taken proceedings on these against them before & is ongoing.” She asserts that Ms Ostler had also breached her “right of education and training in order to be legible [sic] for employment and that contravenes my human right.” She accuses the interview panel of not appreciating the cultural differences between her and them, as a result of which they wrongly interpreted her actions at interview as aggressive. She said she felt this was “stereotyping and indirectly discriminatory, whether conscious or unconscious.” She refers to Ms Ostler’s letter of 7 December 2000, in particular to its point that no references had been provided. As for the point there made that she would not “fit into the team,” she says she believes that “isolates me prospectively from their teams & so violates the Race Relations Act 1976 & the Sex Discrimination Act 1975.”

20.	In so far as any former employer refused to give her a reference, Mrs Mensah says this treated her unfavourably “in violation of my prospect of employment by victimisation and breach of my human right to work. Without a reference there is no hope for a job in any form or shape, because the law requires prospective employers to obtain two references prior to employment or training & education.” Mrs Mensah complains that Middlesex discriminated against her by giving her an unfavourable reference, the alleged discrimination being under the Sex Discrimination and Race Relations Acts and also the Disability Discrimination Act 1995. As for Berkshire, she complains that there was no need for them first to telephone Ms Doak about the giving of a reference: they should just have provided one and, if there was no cause for concern about the matter, they could and would simply have sent one. By amendments to her application following service of the IT3s, she refers to the fact that the IT3 served by the first five respondents reveals that Berkshire did provide some information during the telephone call, and she alleges that, whether a reference was refused or was unfavourable, it amounted to a violation of her prospect of work and training, a breach of the 1995 Act and of her human rights. She says that Middlesex’s and Berkshire’s contact with Heatherwood “aided and abetted” their decision not to offer her the post.

21.	The IT3 served by the first five respondents sets out the course of events as they perceived it, denies all allegations of discrimination and says that they reasonably concluded that Mrs Mensah was not a suitable candidate for a midwifery post, refresher course or supervised practice. Middlesex’s IT3 stated that it proposed to contend that Mrs Mensah’s complaint against them should be dismissed on the grounds that it was scandalous, frivolous or vexatious. Berkshire’s IT3 denied it had refused to provide a reference, that any act or omission on its part had any bearing on Mrs Mensah’s application for employment by Heatherwood, or that it had victimised her or breached her human rights.

(ii) Application no 2700546/01 (“the second application”)
22.	This was dated 19 February 2001 and presented to the employment tribunal on 23 February 2001. It joins the same seven respondents. By it, Mrs Mensah adds another two pages of arguments, but does not appear to add much in the way of material additional allegations, probably because the facts with which she has to play are anyway so limited. It alleges breaches of the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Human Rights Act 1998, but it is difficult to identify anything in the way of particularised complaints under these Acts. Its main purpose appears to be to advance a claim under the Disability Discrimination Act 1995. The basis for this appears to be that her apparent aggressiveness at the interview had led Heatherwood to conclude that she suffered from a disability for the purposes of the 1995 Act. She complains that Heatherwood had not given her “a chance to prove otherwise or find the underlined [sic] factor.” We do not interpret this application as advancing any arguable case that Mrs Mensah does or did suffer from any disability within the meaning of section 1 of the 1995 Act, which provides: 

“1. Meaning of ‘disability’ and ‘disabled person’

(1) Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.

(2) In this Act ‘disabled person’ means a person who has a disability.”

23.	The IT3 of the first five respondents denied all the claims and also took the point that the employment tribunal had no jurisdiction to hear any complaints in respect of matters occurring before 24 November 2000, given that Mrs Mensah’s application was only presented to the employment tribunal on 23 February 2001.

(iii) Application no 270091/01 (“the third application”)
24.	This application was also presented on 19 February 2001. It is brought simply against Berkshire. By it, Mrs Mensah claimed to re-open her unfair dismissal claim against Berkshire which was dismissed in 1979. She rehearsed, over some four pages, the history of her complaints against Berkshire about her treatment in the 1970s. She set out certain facts, which she says were not considered at the hearing of her complaint against Berkshire before the industrial tribunal in 1979. She says the tribunal did not consider her rights under EC law, the Equal Treatment Directive or article 119 of the EC treaty. She asserts that, by 1998, she had new evidence relevant to her 1979 claims, as a result of which she brought proceedings in 1999 against Berkshire and others to which we have already referred, which ended in failure for Mrs Mensah when the Court of Appeal refused her permission to appeal on 26 January 2001. She says that this was in disregard of her rights under EC law. She says that, as those rights have not yet been ruled upon, “I am not precluded to reapply.” We need not devote more time to this application. The employment tribunal struck it out and this appeal tribunal refused to permit Mrs Mensah to progress to a full hearing her appeal against that order, and dismissed that part of her appeal to this tribunal. We understand that the Court of Appeal has refused to permit Mrs Mensah to appeal against that dismissal. 

Mrs Mensah’s questionnaire
25.	On 9 March 2001, Mrs Mensah submitted, for answers by each respondent, a questionnaire under the Disability Discrimination Act 1995. She repeated in it the essence of her complaint, namely that (i) Heatherwood’s interviewing panel had concluded that she was aggressive, (ii) they had also concluded that she would not fit in, and (iii) they were therefore implying that she was subject to some form of physical or mental infirmity making it impossible for her to work as a midwife. She says these statements “discriminated against me if by your assessment, I was incapable to work nor be trained. By virtue of an incapacity – these comments/statements you made in your correspondence of 7/12/00 and your reply to my IT1 dated 9/2/01.” She went on in her questionnaire to allege that the respondents had acted unlawfully. She explained this by alleging that Heatherwood had failed reasonably to comply with the practice relating to people or prospective employees with a disability. She said it had victimised her by making contact with Middlesex and Berkshire “as they both had felt I was incapable mentally & physically to be employed as a midwife. This I believe is firmly expressed in the references and information obtained from them.” She said in the questionnaire:

“I believe that I passed that interview but was declined placements for the refresher course because of the response from my two previous employers [Berkshire and Middlesex]. The first had stated in 1977 that I was not suitable to practice midwifery because they had felt that I was mentally unwell & the second had implied the same & further added on the injury I had sustained. If I am mistaken could you certify the real concern of yours when my name appears on the roll of practicing midwives with the United Kingdom Central Council for Nursing Midwifery & Health Visiting as ‘safe to practice?’ What other convincing material evidence have you to decline me the vacancy & placement.”

None of the respondents replied to that questionnaire.

The order of 14 March 2001
26.	On 14 March 2001, there was a directions hearing before Mr R. Trickey sitting alone. His directions were sent to the parties on 28 March 2001. Only the first of Mrs Mensah’s three applications was formally before Mr Trickey on 14 March. Mrs Mensah appeared in person and the respondents were represented by solicitors. The procedural rules then in force were those in schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 (“the 1993 Rules”).

27.	By paragraph 1(a), Mr Trickey made a direction, under rule 6 of the 1993 Rules, for a preliminary hearing. It was to decide:

“(a) Whether [Mrs Mensah] has an entitlement to bring proceedings under the Race Relations Act 1976 against [Middlesex] and [Berkshire] (Rule 6) and whether the claims in this respect should be struck out as being scandalous, frivolous or vexatious under the provisions of Rule 13(2)(e) and to decide whether or not [Mrs Mensah’s] Application to the Tribunal should be amended in this respect.”

28.	Rule 13(2)(d) and (e) and (3) of the 1993 Rules were as follows:

“13. Miscellaneous powers
…

(2) A tribunal may –

…
(d) subject to paragraph (3), at any stage of the proceedings, order to be struck out or amended any originating application or notice of appearance, or anything in such application or notice of appearance, on the grounds that it is scandalous, frivolous or vexatious; 

(e) subject to paragraph (3), at any stage of the proceedings, order to be struck out any originating application or notice of appearance on the grounds that the manner in which the proceedings have been conducted by or on behalf of the applicant or, as the case may be, respondent has been scandalous, frivolous or vexatious; …

(3) Before making an order under sub-paragraph (d), (e) or (f) of paragraph (2) the tribunal shall send notice to the party against whom it is proposed that the order should be made giving him an opportunity to show cause why the order should not be made; but this paragraph shall not be taken to require the tribunal to send such notice to that party if the party has been given an opportunity to show cause orally why the order should not be made.”

29.	We comment first that whereas sub-paragraph (d) is directed to the content of the documents there referred to, sub-paragraph (e) is directed to the party’s conduct of the proceedings. We do not understand why Mr Trickey’s order focused on paragraph (e) rather than (d), since it does not appear to us that Mrs Mensah’s conduct of her proceedings – which she had only just commenced – even arguably merited the sort of order that paragraph (e) empowered tribunals to make. We infer that the reference to paragraph (e) was probably a mistake. However, mistaken or not, there is no escaping that that is the particular sub-rule to which paragraph 1(a) of Mr Trickey’s order was directed.

30.	We comment secondly that paragraph 1(a) may perhaps be said to leave obscure whether the latter part of it was intended to raise the question of whether Mrs Mensah’s race relations claims against the other respondents should be the subject of the rule 13(2)(e) inquiry, or whether this too related only to her claims against Middlesex and Berkshire. Bearing in mind the interest which the solicitors for the first to fifth respondents later showed in paragraph 1(a), we understand that they regarded it as having the wider meaning. For our part, we do not regard that as its more natural sense, and we do not consider it reasonable to proceed on the basis that that is how Mrs Mensah would have understood it. But, for reasons given, we would anyway regard a bid by any of the seven respondents to strike out Mrs Mensah’s applications under rule 13(2)(e) of the 1993 Rules as hopeless. 

31.	Paragraph 1(b) of Mr Trickey’s order then directed that the preliminary hearing was also to be devoted to hearing:

“(b) … an application by [Mrs Mensah] in respect of her claim that she had lodged a disability discrimination claim in this case under [the 1995 Act] and as to whether or not such a claim should be added to the existing claim, whether such a claim is out of time and whether or not, if it is out of time, it is just and equitable to extend that time.”

32.	As we have said, only the first of Mrs Mensah’s three applications was formally before Mr Trickey on 14 March 2001, although either she (or perhaps the solicitors for the other parties) had also informed him of the presentation by her of her second application, which is the explanation for this paragraph. It appears from a Note which Mr Trickey later added to his order (before it was sent to the parties) that he had in the meantime learnt that Mrs Mensah had indeed presented her second application; and by his Note he, in effect, confirmed that the preliminary hearing was also to deal with the points raised in paragraph 1(b).

33.	By paragraph 2 of the order, Mr Trickey then directed that “Following the preliminary hearing, there will be a Pre-hearing Review under Rule 7 to consider the contents of [Mrs Mensah’s] Originating Application and whether or not the contentions of [Mrs Mensah] have a reasonable prospect of success.” (Our emphasis). The paragraph, as originally drawn, was directed only to Mrs Mensah’s first application, but the Note to which we have referred also extended it to include her second application. The reference to rule 7 was to rule 7(4) of the 1993 rules, which provided:

“(4) If upon a pre-hearing review the tribunal considers that the contentions put forward by any party in relation to a matter required to be determined by a tribunal have no reasonable prospect of success, the tribunal may make an order against that party requiring the party to pay a deposit of an amount not exceeding £150 as a condition of being permitted to continue to take part in the proceedings relating to that matter.”

34.	If such an order were to be made, but not complied with, then the tribunal had a jurisdiction, under rule 7(7), to make a striking out order. Accordingly, paragraph 2 (read together with the Note) told Mrs Mensah that, at the preliminary hearing – and to the extent that her claims survived the matters directed to be heard under paragraphs 1(a) and (b) – she faced an inquiry as whether her first and/or second applications had a reasonable prospect of success. 

35.	On 4 April 2001, the solicitors to the first to fifth respondents wrote to the tribunal asking it to consolidate the first and second applications, and to direct that “the preliminary hearing and pre-hearing review ordered in the first set of proceedings be extended to cover the issues raised in the second set of proceedings so that all issues are dealt with at the same time.” By a letter of 1 May 2001, Mrs Mensah was notified that Mr Hollow, a chairman of the tribunal, had directed that both should be heard together. The preliminary hearing was to have been heard on 27 April 2001, but had been postponed. 

36.	On 30 May 2001, the solicitors for the first five respondents wrote again to the tribunal asking that paragraph 1(a) of the earlier order should also extend to Mrs Mensah’s sex discrimination claim. By a letter of 8 June 2001, the tribunal notified those solicitors that Mr Hollow had amended the earlier order as requested, and a copy of the relevant letter was sent to Mrs Mensah. On 15 June 2001, with a copy to Mrs Mensah, the tribunal notified the solicitors that the preliminary hearing on 9 July 2001 would be dealing with the first and third cases. It is unclear why the tribunal seems to have forgotten that directions had also been given for the second application to be dealt with on that day as well. 

37.	The preliminary hearing was due to come on for a substantive hearing on 13 August 2001. On 10 August, the solicitors for the first to fifth respondents wrote to Mrs Mensah saying that they would be inviting the tribunal to exercise its powers under rule 13(2)(d) of the 1993 Rules as well as any power it might have under rule 13(2)(e). That step was partially in the right direction, since (as we have said) rule 13(2)(e), focusing as it does on conduct, held out little hope for the respondents. But it ignored the fact that by then the 1993 Rules had been replaced with the 2001 Rules, set out in schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001. The new equivalent of rule 13(2)(d) of the 1993 Rules was, with one material change, now rule 15(2)(c) of the 2001 Rules, to which we will come.  

The tribunal’s decision
38.	At the outset of its reasons, the tribunal said this:

“The Order made by Mr Trickey on 14 March 2001 referred to this Tribunal considering whether or not the various claims should be struck out as being scandalous, frivolous or vexatious under the provisions of Rule 13(2)(e), the relevant rule enforce [sic] at the time. On 16 July 2001, the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 came into force. At the beginning of the hearing we made it clear that we would not only be considering whether or not an Order should be made pursuant to Rule 7 [rule 7 of the 2001 regulations essentially mirrors rule 7 of the 1993 Rules, and we quote the material parts below] but also whether [Mrs Mensah’s] complaints might be struck out on the grounds that they were scandalous, misconceived or vexatious under the provisions of the new Rule 15(2)(c). The parties were invited to address the Tribunal accordingly. It was also made clear that the Tribunal would be considering those matters in relation to all [Mrs Mensah’s] complaints currently before the Tribunal. As a preliminary matter, [Mrs Mensah] confirmed that she understood the Tribunal did not have a jurisdiction to deal with a free-standing claim under the Human Rights Act and that any such claim must be pursued elsewhere. We did, however, confirm to her that in coming to our decision on the matters before us, we would consider that any relevant legislation in a way which was compatible with her human rights. In so far as [Mrs Mensah’s] Originating Applications make free-standing claims under the Human Rights Act, those claims are dismissed.”

39.	Before coming to the tribunal’s decision, we notice what may perhaps be an unsatisfactory feature of the 2001 Rules. Rule 7(4) and (7) provide:

“(4) If upon a pre-hearing review the tribunal considers that the contentions put forward by any party in relation to a matter required to be determined by a tribunal have no reasonable prospect of success, the tribunal may make an order against that party requiring the party to pay a deposit of an amount not exceeding £500 as a condition of being permitted to continue to take part in the proceedings relating to that matter. (Our emphasis) …

(7) If a party against whom an order has been made does not pay the amount specified in the order to the Secretary either-

(a) within the period of 21 days of the day on which the document recording the making of the order is sent to him, or

(b) within such further period, not exceeding 14 days, as the tribunal may allow in the light of representations made by that party within the said period of 21 days,

the tribunal shall strike out the originating application or notice of appearance of that party or, as the case may be, the part of it to which the order relates.”

40.	Rule 15(2)(c) and (3) of the 2001 Rules then provide, so far as material, as follows:

“(2) A tribunal may –
…
(c) subject to paragraph (3), at any stage of the proceedings, order to be struck out or amended any originating application or notice of appearance, or anything in such application or notice of appearance, on the grounds that it is scandalous, misconceived or vexatious. (Our emphasis)  …

(3) Before making an order under sub-paragraph (c) … of paragraph (2) the tribunal shall send notice to the party against whom it is proposed that the order should be made giving him an opportunity to show cause why the order should not be made; but this paragraph shall not be taken to require the tribunal to sent such notice to that party if the party has been given an opportunity to show cause orally why the order should not be made.”

41.	Regulation 2 of the 2001 Regulations defines “misconceived” as a word whose meaning “includes having no reasonable prospect of success.” (Our emphasis)

42.	We draw attention to those provisions because it appears to us that a claim which has “no reasonable prospect of success” for the purposes of rule 7(4) must equally, in the light of the regulation 2 definition, be a claim which is “misconceived” for the purposes of rule 15(2)(c). That being so, we find it difficult to see in what circumstances it would be appropriate to visit the applicant whose claim has “no reasonable prospect of success” merely with the penalty of a rule 7(4) deposit rather than a rule 15(2)(c) dismissal. It is apparent that the tribunal appreciated that, were the respondents to satisfy them that Mrs Mensah’s claims had no reasonable prospect of success, then they could strike them out under rule 15(2)(c); and they made it clear at the outset that that was a jurisdiction which they would consider exercising. We turn now to the tribunal’s decision.

Race discrimination
43.	The tribunal dealt first with, and rejected, one aspect of Mrs Mensah’s complaints of race discrimination against Middlesex, relating to the reference it had provided. The complaint was that Middlesex had knowingly aided Heatherwood to do unlawful discriminatory acts contrary to section 33 of the Race Relations Act 1976. The tribunal dealt with this in paragraphs 15 to 17. They referred to certain observations as to the meaning of word “aids” in section 33 made by Lords Hope of Craighead and Millett in their speeches in Anyanwu and another v. South Bank Student Union and another (Commission for Racial Equality intervening) [2001] 1 WLR 655 and by Lord Millett in his speech in Hallam and another v. Avery and another [2001] 1 WLR 655. They then referred to the fact that Middlesex had provided an unfavourable reference to Heatherwood for Mrs Mensah. They then held that, putting Mrs Mensah’s case at its highest, it could not be said that, by the giving of that reference, Middlesex had “knowingly aided” the commission of any allegedly unlawful discriminatory acts by Heatherwood. The tribunal concluded that this part of Mrs Mensah’s case against Middlesex had no reasonable prospect of success and dismissed it.

44.	The tribunal then dealt with Mrs Mensah’s other complaints of race discrimination and victimisation against Middlesex and Berkshire. They said this in paragraph 18 of their reasons:

“18. As indicated in the notes appended to the Order of 14 March 2001 [Mrs Mensah] claims that her complaints of sex and race discrimination against [Middlesex] and [Berkshire] relate to a failure to provide a reference. Both Mr Pinder and Mr Leslie [solicitors for the respondents] referred us to the case of Adekeye v. The Post Office (No. 2) [1997] IRLR 105 in which it was held that Section 4(2) of the Race Relations Act only protects those whose employment continues at the time of the act of discrimination. The protection of the Race Relations Act in regard to discrimination and victimisation does not, therefore, extend to [Mrs Mensah]. We agree with that contention. The complaints of race discrimination and racial victimisation against [Middlesex] and [Berkshire] are clearly misconceived and are dismissed.”

45.	Mrs Mensah’s claim for race discrimination against Heatherwood was combined with claims against the second to fifth respondents, Ms Doak, Ms Ostler, Mrs Webb and Mrs Hughes. The latter four respondents are all employees of Heatherwood, although the tribunal did not consider it necessary to analyse on what basis, if any, they were joined as respondents to the applications. The tribunal disposed of this part of Mrs Mensah’s claim in paragraphs 22 and 23 of their extended reasons:

“22. [Mrs Mensah] asserted that the first to fifth respondents did not take account of cultural matters when considering her behaviour at the interview. We take fully on board her contention that the mere fact that there was a black member on the interview panel does not necessarily mean there was no discrimination shown to her. Nevertheless, taking into account all of the documentary evidence of previous cases, their similarity to the present and the information about the events of October 2000 that [Mrs Mensah] has provided us with, we consider that it is very unlikely that a Tribunal would find in her favour on the issue of race discrimination. [Mrs Mensah] clearly has a burning sense of injustice in regard to her rejection for employment by the first five respondents and believes this was occasioned by discrimination at the interview and the business of the references. We think she is exceedingly unlikely to persuade a Tribunal that this is the case.

Rule 15

23. We have considered the provisions of rule 15(2)(c), which give a Tribunal discretion to strike out proceedings on the grounds that they are misconceived in the sense that they have no reasonable prospect of success. This provision, brought in by the 2001 Procedure Regulations, is a new power given to Tribunals and we interpret it to mean that a Tribunal may strike out a claim if it considers that it is very unlikely to succeed. It does not, we believe, impose a requirement that a claim should be incapable of success: indeed there may be a possibility, albeit a small one that an applicant might succeed. Nevertheless, we have very much in mind that the parliamentary draughtsman saw fit, in defining ‘misconceived’ in Regulation 2 as including having no reasonable prospect of success, he did not say that a claim must have no prospect of success (at all). We have no hesitation in finding that Mrs Mensah’s complaints of sex and race discrimination and victimisation fall fairly and squarely within the test set out in Rule 15 and Rule 2 and so strike out those complaints.”

Disability discrimination
46.	The tribunal dealt with this in paragraphs 24 to 26 of their reasons. They said:

“24. … In the particulars of claim she states that she was ‘unsuitable to be employed as a midwife by references received. This violates my right to work under the [1995 Act].’ In her oral submission to us, [Mrs Mensah] asserted that aggression is a disability being a sign of stress. She told us she had been to a doctor about stress in 1977 and last went in October 2000 telling him that she was aggressive. She asserted that the respondents had a duty to make adjustments when they went to the interview at Wrexham Park Hospital.

25. [Mrs Mensah’s] Originating Application did not disclose any claim at all under the [1995 Act]. She gave no particulars of her alleged disability and when pressed by us to amplify the nature of her disability, her response was vague and wholly unconvincing. 

26. We have no hesitation in finding that [Mrs Mensah’s] complaint of disability discrimination is wholly without merit and strike out her Originating Application.”

Discrimination and Victimisation on the grounds of sex
47.	The tribunal summarily dismissed these claims against all respondents. They concluded that were groundless and fanciful. 

Mrs Mensah’s third originating application
48.	This was the application by which Mrs Mensah sought to re-open the alleged unfairness of Berkshire’s dismissal of her in 1978. As we have said, the tribunal struck that claim out.

The appeal
49.	Mrs Mensah has been permitted by this appeal tribunal to appeal on the basis of certain limited grounds of appeal, which have been set out in an amended notice of appeal. They are confined to her first and second applications. No appeal has been permitted against the decision of the employment tribunal to strike out her third application.

Ground 1
50.	The first ground is that the procedure before the tribunal was unfair. What is said is that Mrs Mensah had been notified of a preliminary hearing under rule 13 of the 1993 Rules in respect of Middlesex and Berkshire, to be followed by a pre-hearing review under rule 7 of those Rules. In the event, the tribunal dealt with applications under rule 15(2)(c) of the 2001 Rules, being applications aimed at striking out the entirety of her claims against all respondents. It is said that Mrs Mensah, a litigant in person, was given inadequate notice of this change of tack, so that the procedure was unfair.

51.	The response of the respondents is this. By the order of 14 March 2001, Mrs Mensah was put on notice that the employment tribunal would decide as preliminary matters: (i) under para 1(a), whether her race discrimination claims against Middlesex and Berkshire were sustainable or not; (ii) under the same paragraph, whether her race discrimination claims against the other respondents ought to be struck out as being scandalous, frivolous or vexatious, although it is conceded that strictly the reference to rule 13(2)(e) focused only on her conduct in processing her claims to date, and that it is arguable that paragraph 1(a) anyway was only directed at the claims against Middlesex and Berkshire; (iii) under paragraph 1(b), whether her disability discrimination claim could be added to her other claims and whether it was barred by time; (iv) subject to all this, under paragraph 2, whether any claims still alive at that point had “a reasonable prospect of success”, failing which she might only be allowed to pursue them on prior payment of a deposit. By the middle of June 2001, Mrs Mensah knew that paragraph 1(a) of the March order had been amended to cover also her sex discrimination claims against the various respondents, and in the meantime the order had been extended to subject the second application to the provisions of both paragraphs 1(a) and 2. Most importantly, paragraph 2 made it clear that the tribunal would be considering whether Mrs Mensah’s claims had a “reasonable prospect of success” so that she was squarely on notice that that issue was going to be the subject of argument before the tribunal. True it is that originally she would only have appreciated that the relevance of that inquiry would be as to whether she would have to pay a deposit as the price of being allowed to progress her applications to a full hearing. But by August 2001, the 2001 Rules were in force so that a conclusion that the applications had no reasonable prospect of success entitled the tribunal to go one stage further and strike them out altogether. By then, therefore, the tribunal had a wider jurisdiction as to how deal with the applications. But the key issue with which Mrs Mensah was faced remained the same as it had always been, namely: did her claims have a reasonable prospect of success? She knew that she had to argue this, she prepared for that argument and she sought to make good her case. Paragraph 3 of the tribunal’s extended reasons show that they made it clear at the outset of the hearing that they would be considering whether Mrs Mensah’s complaints were “scandalous, misconceived or vexatious under the provisions of the new Rule 15(2)(c)”. In these circumstances, the respondents submitted that there was no procedural unfairness on Mrs Mensah merely because the jurisdiction of the tribunal had been enlarged by the time of the hearing. On instructions, Mr Matthews says that Mrs Mensah did not seek an adjournment, although she tells us that she did and it was refused. There is no reference to any such application or refusal in the tribunal’s reasons, and we find it difficult to resolve that conflict. However, Mrs Mensah knew at the outset of the hearing that the tribunal was going to be invited to exercise its rule 15(2)(c) powers, and always knew that the, or at least a, crucial question for the tribunal was whether her claims had a reasonable prospect of success.  

52.	We are satisfied that Mrs Mensah had always known that that question was going to be on the table at the preliminary hearing. It had been expressly identified by paragraph 2 of Mr Trickey’s order. The only change brought about by the 2001 Rules was that an adverse finding against her on it could result not just in the imposition on her of a monetary deposit, but in her claims being struck out altogether. In those circumstances, we are not persuaded that there was any procedural unfairness to Mrs Mensah. She is not an innocent in these matters. She clearly has a close familiarity with the relevant areas of the law. She has an unusually long history of experience with the procedures of industrial and employment tribunals. We are satisfied that she knew the nature of the issue which was going to be argued at the hearings, and we have no doubt that she argued as forcefully and fluently as she did before us that her claims against all the various respondents were as near as gilt edged as makes no difference. We are not satisfied that there was any procedural impropriety vitiating the tribunal’s decision, and we reject the first ground of appeal.

Ground 2
53.	The second ground is that the tribunal gave inadequate consideration to whether or not Mrs Mensah was a disabled woman and so failed to give directions for an inquiry as to that. We consider that there is nothing in this ground of appeal. Mrs Mensah made no suggestion in her first application that she suffered from a disability, and although the main point of her second application appears to have been to raise a claim under the Disability Discrimination Act 1995, she did not allege in it any facts supporting a contention that she was subject to any long-term disability within the meaning of section 1 of that Act. Her case based on alleged disability discrimination, as presented to the tribunal, appears to have been founded on an argument that she was an aggressive person. By contrast, her previous stance had been that, if Heatherwood had regarded her as aggressive, it was erroneously misinterpreting a national trait which allegedly favours the accompaniment of words with hand movements; and that, in so far as she was suffering from any stress at the interview, it was a temporary one referable to particular problems she was then facing. As it seems to us, Mrs Mensah adduced no material at all before the tribunal to show that there was any substance in her claim to be the victim of a disability within the meaning of section 1 of the 1995 Act, and we can identify no error of law in the tribunal’s summary conclusion that her disability discrimination claim was hopeless on the facts and should be dismissed.

Ground 3
54.	The allegation here is that the tribunal erred in law in treating the provision of references for Mrs Mensah as not capable in law of amounting to acts of race discrimination. This ground could only apply to the acts of Middlesex and Berkshire. The difficulty with this part of Mrs Mensah’s case is that at the material time Mrs Mensah was an employee of neither Middlesex nor Berkshire, nor was she an applicant for a job with either of them. In those circumstances, we consider the tribunal was correct to conclude, as it did, that the decision of the Court of Appeal in the Adekeye case represented an insurmountable hurdle for Mrs Mensah. That authority shows that section 4 of the Race Relations Act 1976 protects applicants for employment and employees. It does not protect ex-employees against acts of race discrimination or victimisation by a former employer. In our view, there is nothing in this ground of appeal either.

Ground 4
55.	The next ground relied on is that it is said that the tribunal misdirected itself by taking account of irrelevant material, in particular by referring to His Honour Judge Marcus Edwards’s finding on Mrs Mensah’s reliability as a witness.

56.	There is no substance in this either. Bearing in mind that one of the matters before the tribunal was Mrs Mensah’s third application which, almost incredibly, sought to re-open an unfair dismissal claim she had brought over 20 years earlier, the tribunal inevitably had to look at the background which it did, if only in the context of dealing with that application. Moreover, whilst it is true that the tribunal referred to Judge Edwards’s findings as to Mrs Mensah’s reliability, they did not themselves place any apparent reliance on it. They referred to it and said that their own findings were to the like effect. We infer that they were relying on their own assessment of Mrs Mensah, not on Judge Edwards’s. We are unable to conclude that the references by the tribunal to the history of the Mensah claims and litigation resulted in any errors of law in the overall conclusions to which the tribunal came.

Ground 5
57.	This ground is to the effect that the tribunal failed to consider relevant material. In particular, it is said that the tribunal failed to have regard to the significance of Middlesex’s failure to answer race relations questionnaires, and failed also to have regard to the fact that race discrimination claims tend to be particularly fact-sensitive and often necessarily involve the drawing of inferences. In this connection, Mrs Mensah points in particular to the explanation that Heatherwood declined to offer her the job in part because she would not “fit in.” The argument is that one inference from this is that she was being excluded on grounds of race, a matter which could only be evaluated after a full hearing.

58.	We see no basis for any conclusion that the tribunal omitted to have regard to whether or not race relations questionnaires were completed. In fact, the questionnaire directed at Middlesex was premised on the basis that no reference was provided by it, whereas one was. Nor can we see that there is any ground for the suggestion that they did not pay sufficient regard to the very well-known feature of race discrimination claims that they will often be heavily dependent on the drawing of inferences from primary facts. 

59.	As regards the first five respondents, in particular Heatherwood, the tribunal concluded on the facts before it that Mrs Mensah’s claim that those respondents had unlawfully discriminated against her on racial grounds had no reasonable prospect of success, and so they struck it out. They gave their reasons for that conclusion in paragraphs 22 and 23. They took into account that Mrs Mensah had previously made very similar claims, but of course they also focused on the particular facts relating to her job application to Heatherwood. They referred to her burning sense of injustice at not being given the job and to her belief that she was the victim of race discrimination at the interview. Although they do not refer to it in terms, it is obvious that they must have had regard to the “will not fit in” point. But Mrs Mensah herself concedes that she may have come across at the interview as aggressive (which she either seeks to explain away or turn into the basis of a disability discrimination claim), which is unlikely to have helped her application for the midwifery post; and, in addition, she was an applicant who not only had had no experience of midwifery for four years, the one reference provided for her was thoroughly unfavourable. Moreover, the “will not fit in” reason received a cogent explanation in Ms Ostler’s letter of 7 December 2000, and plainly had nothing to do with race and everything to do with the interviewing panel’s perception of her ability to play her part in a midwifery team, in which teamwork is all important. In short, everything points to the conclusion that Mrs Mensah did not get the Heatherwood job because she was viewed as unsuitable for it on her merits, being an unsuitability which had nothing to do with her race or her sex. 

60.	That was the tribunal’s conclusion. They decided that this was a claim which had no reasonable prospect of success. In our view, that was an assessment which they were entitled to make and, having made it, they were justified in exercising their jurisdiction under rule 15(2)(c) to strike out the race discrimination claims against the first five respondents. We cannot identify any error of law in their arrival at that conclusion, although we should also deal here with Mrs Mensah’s final ground of appeal, which is related to this ground.

61.	The point raised there is that the tribunal misdirected itself as to the correct test under rule 15(2)(c). The proposition is that it is only open to a tribunal to strike out a claim under that paragraph if it concludes that the claim has no prospect of success at all. It is said that the tribunal was wrong to proceed on the basis that it could exercise the jurisdiction if satisfied merely that the claim had no reasonable prospect of success.

62.	Bearing in mind that the meaning of “misconceived” in rule 15(2)(c) includes “having no reasonable prospect of success” the proposition advanced by Mrs Mensah is an unattractive one. It invites us to interpret rule 15(2)(c) by reference to a formula which the legislature has (no doubt deliberately) not used rather than by reference to the one it has. On the other hand, we would agree with Mrs Mensah that it is no part of the function of rule 15(2)(c) to enable tribunals to strike out claims which may arguably have a prospect of success. It is not for a tribunal at a preliminary hearing to deprive claimants of their right to proceed to a full hearing if they have a claim which has a reasonable prospect of ultimately proving to be well founded, even if the tribunal’s provisional assessment is that it is likely to fail. The striking out power conferred by rule 15(2)(c) is in our view confined to those plain cases in which the tribunal is satisfied either that the claim is inevitably bound to fail or is one whose prospects of success are no better than merely fanciful. In our view, the use of the phrase “having no reasonable prospect of success” in the definition of “misconceived” was intended to extend the jurisdiction to the latter type of case.

63.	We admit to having had a degree of concern about this aspect of Mrs Mensah’s appeal. In paragraph 22 of their reasons, the tribunal expressed their view that it was “exceedingly unlikely” that Mrs Mensah would be able to make good her race discrimination claim against the first five respondents at a full hearing; and in paragraph 23 they interpreted “having no reasonable prospects of success” as including a case which was “very unlikely to succeed.” We would not ourselves adopt formulae of that sort as being a safe explanation of the type of case to which rule 15(2)(c) is intended to be directed. In our view there will be many cases which, at a preliminary stage, a tribunal may well regard as being “very unlikely to succeed,” but which they would, we consider, be wrong to strike out. We consider that the limits of the jurisdiction are as we have earlier mentioned.

64.	But, even so, we can see no error of law on the part of the tribunal in concluding that Mrs Mensah’s claims were “misconceived” in the sense of “having no reasonable prospect of success.” For reasons we have given, it appears to us to be clear that she was and is able to advance no factual case from which there is any rational basis for an inference that she failed to get the job because she was the victim of race or sex discrimination. All the available evidence points to the inference that her application failed on the merits. Her case boils down to nothing more than the making of an assertion of race and sex discrimination and victimisation, being one for which there is no arguable evidential support. In our view, it is a case which the tribunal were entitled to conclude had no reasonable prospect of success.

65.	As regards Middlesex and Berkshire, we add only that we can see no error in the tribunal’s conclusion that Mrs Mensah had no arguable claim against them based on race discrimination or victimisation contrary to section 2 of the Race Relations Act 1976. We have referred to the reliance placed by the tribunal on the Adekeye decision. As regards the tribunal’s decision that Mrs Mensah has no arguable claim against Middlesex for unlawful aiding under section 33 of the 1976 Act, we also regard that decision as unimpeachable. In the Anwanyu case, supra, Lord Bingham of Cornhill said, at [2001] 1 WLR 638, at 640:

“5. The expression ‘aids’ in section 33(1) is a familiar word in everyday use and it bears no technical or special meaning in this context. A person aids another if he helps or assists him. He does so whether his help is substantial and productive or whether it is not, provided the help is not so insignificant as to be negligible. While any gloss on the clear statutory language is better avoided, the subsection points towards a relationship of co-operation or collaboration; it does not matter who instigates or initiates the relationship.”

66.	In the same case, at p. 654, Lord Millett said:

“49. … But aiding is a very different concept from encouraging or inducing on the one hand and causing or procuring on the other. It requires a much closer involvement in the act of the principal.”

67.	In Hallam and another v. Avery and another [2001] 1 WLR 655, at 661, Lord Millett repeated what he had said in the Anwanyu case as to the sense of the meaning of “aids” in section 33. In our view, Mrs Mensah showed no arguable case against Middlesex for alleged unlawful aiding. The decision not to employ her was exclusively that of Heatherwood. The tribunal were right to dismiss this part of Mrs Mensah’s claim too. 

68.	We do not interpret the notice of appeal as raising any challenge to the tribunal’s dismissal of Mrs Mensah’s sex discrimination claims and those based on alleged victimisation under section 4 of the Sex Discrimination Act 1975. But, for good measure, Mr Linden submitted that Mrs Mensah’s section 4 claim against Berkshire was manifestly hopeless. Mrs Mensah had admittedly brought a sex discrimination claim against Berkshire in 1999, but that claim also included allegations of unfair dismissal and race discrimination; and in 1997 she had brought a personal injury claim against Berkshire. The notion that Mrs Mensah could hope to prove that Berkshire was or might have been influenced in relation to the request for a reference by reason of the sex discrimination claim Mrs Mensah had brought against Berkshire in 1999 was remote in the extreme; in any event, even if Berkshire had given a reference for her, it could only have given an unfavourable one. In fact, it gave no reference because Heatherwood had already decided not to employ her. Mr Linden says that in those circumstances there was and is no reasonable basis on which Mrs Mensah might hope to establish a case of section 4 victimisation against Berkshire. We agree. 

69. 	In our view, there is no substance in Mrs Mensah’s appeal. We dismiss it.