England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE LEVY)

		Royal Courts of Justice Strand London WC2 Tuesday, 10th July 2001

1. LORD JUSTICE MUMMERY: This is an application by Mrs Esther Mensah who makes an application in person for permission to appeal against the decision of the Employment Appeal Tribunal on 17th April 2001. The Appeal Tribunal refused Mrs Mensah's application for a review under rule 33 of the Employment Appeal Tribunal Rules 1933 of its earlier order made on 1st May 1998. The application was refused on the grounds that it had no reasonable prospect of success. In order to succeed on her application for permission to appeal, Mrs Mensah must satisfy the Court that this proposed appeal has a real prospect of success. To decide that it is necessary to set out in some detail the earlier history of her dispute which led to the unsuccessful application for review.
2. From 8th November 1994 to 29th January 1996 Mrs Mensah was a bank nurse with the West Middlesex University Hospital Trust. She had originally qualified as a midwife in 1971 and was reinstated to that position in 1981. She issued an application on 22nd April 1996 claiming that she had been unfairly dismissed from her employment as a bank nurse. She gave her dates of employment as those which I have indicated from November 1994 to January 1996, when she was dismissed. She also claims breaches of the Employment Protection Consolidated Act 1978, the Health and Safety Act 1976 and the Race Relations Act 1976.
3. The Employment Tribunal held a preliminary hearing on 15th August 1997 in order to determine whether Mrs Mensah was entitled to bring the proceedings. If she was not an employee within the meaning of the legislation, she was not entitled to have access to the tribunal in respect of her claim. The tribunal unanimously decided in extended reasons dated 15th August that it had no jurisdiction to consider the claim for unfair dismissal because she was not an employee. They also decided that, if she had been an employee, contrary to their decision, she had not been employed for two years continuously and that period was at that time the qualifying period to acquire the right not to be unfairly dismissed. For that reason also they had no jurisdiction.
4. Mrs Mensah then sought a review of that decision. That was refused on 18th September 1997 on the grounds that it had no reasonable prospect of success. In the reasons the chairman said this:

"1. The application for a review dated 26 August received on 29 August 1997 raises many points arising out of the Applicant's unhappiness with the decision promulgated on 18 August 1997. What is set out in her 9 page letter relates to matters raised, or which were capable of being raised, at the hearing on 23 July 1997. Furthermore, the items set out are matters which may be more appropriately dealt with by way of appeal rather than a review.

2. The interests of justice do not require a review."

5. Mrs Mensah then appealed to the Employment Appeal Tribunal. Her appeal was heard on 1st May 1998. A judgment was given on behalf of the tribunal by His Honour Judge D M Levy QC. The conclusion of that tribunal, before which Mrs Mensah appeared in person, was that there was no error of law in the decision of the Employment Tribunal, holding that it had no jurisdiction to hear her case as she was not an employee and had not satisfied the qualifying period. The tribunal said this in its concluding remarks:

"Essentially the issues before us were two. First, did Mrs Mensah have a fair hearing in the Industrial Tribunal. We are satisfied that she did. Secondly, whether the decision in the Industrial Tribunal is in any way wrong. We are satisfied it was not."

6. On 22nd October 1998 the Court of Appeal refused permission to appeal. Mrs Mensah later sought the review already mentioned. She wrote to the Appeal Tribunal on 30th March 2001 addressing her letter to His Honour Judge Levy, saying that the matter must be heard again by the Appeal Tribunal on the basis of new evidence and because a recent decision of the European Court of Justice confirmed her claim to be an employee of the West Middlesex University Hospital. She sets out in that letter, which I have summarised, the basis of her request for a review.
7. The grounds of appeal against the refusal of the review are these: Mrs Mensah submits that she should have an avenue of appeal or review on the basis of her new evidence; that under the European Community Law, there is a duty to hold such a review, and that a decision of the European Court of Justice in the case of Bunderasbeits of the 6th May 1998 there is confirmation of her status as an employee.
8. As already indicated, Mrs Mensah can only be granted permission to appeal if she can show that this appeal has a real prospect of success. She would have to show that the refusal of the review contained an error of law or was it was itself erroneous because it was perverse in the sense that because no reasonable tribunal appreciating her application and the ground for it would have refused to exercise its discretion to grant a review.
9. I have considered these points and the further arguments which Mrs Mensah has addressed today. I have come to the conclusion that this appeal has no real prospect of succeeding. The reasons are, in my judgment, evident from the history of this matter, as stated. There was a decision, as long ago as August 1997, holding that there were two grounds on which there was no jurisdiction to entertain a claim for unfair dismissal. The tribunal not only held that Mrs Mensah failed to establish that she was an employee, but they also held that she could not satisfy the qualifying period requirements which were then in force. That was a period of two years continuous employment, and on the dates given by Mrs Mensah in her own application, she had worked at the University Hospital for less than two years. Those appeals were unsuccessful in the Appeal Tribunal and she failed to get permission to appeal to the Court of Appeal.
10. In my judgment the matters set out in the letter to His Honour Judge Levy did not justify the grant of the review requested. The Appeal Tribunal was entitled to exercise its discretion to reject the application. The proposed appeal has no prospect of succeeding on the grounds which have been set out by Mrs Mensah in her application notice. For these reasons, the application is refused.
(Application for permission to appeal refused)