England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2 Thursday, 6th December 2001

1. LORD JUSTICE HENRY: I will ask Lord Justice Ward to give the first judgment.
2. LORD JUSTICE WARD:Mr Rengasamy Balamoody appeals, with the permission of Lord Justice Mummery, against the order of the Employment Appeal Tribunal dated 5th December 2000 dismissing his appeal from the decision of the Employment Tribunal promulgated on 27th April 1999 that his claim of race discrimination be dismissed "on the basis that it is frivolous, in that it has no chance of success, and it is an abuse of process".

The material facts

3. Mr Balamoody is a Mauritian. He qualified as a State Registered Nurse in 1974. He was awarded a diploma in nursing by the University of London in September 1982. By 1992 he was the owner of a nursing home in Manchester. On 28th April 1993 he was convicted at the Manchester Magistrates' Court of the following offences contrary to regulation 15(3) of the Nursing Homes and Mental Nursing Homes Regulations 1984:

(1)On 8th September 1992 he was the only member of the nursing and/or caring staff on duty to provide care for five patients in residence at the time.

(2)On 4th November 1992 he failed to ensure that as part of the nursing and/or caring staff there was a registered general nurse on duty, leaving the home in the charge of two care assistants only.

(3)On 30th June 1992 he failed to provide ancillary staff to perform specifically catering duties, leaving such duties to be performed by nursing and/or caring staff.

(4)On 22nd June 1992 he failed to administer or record the administration of Temazepam to a patient.

(5)On 22nd June he failed to administer or record the administration of Largactil Elixir to a patient.

(6)On 30th June 1992 he failed to administer or record the administration of two Epanutin capsules, a Frusene tablet and a Thyroxine tablet to a patient.

He was fined £200.

4. In July 1993 the Manchester Health Authority withdrew his nursing home registration. It seems from the papers that there were proceedings before the Registered Homes Tribunal. The appellant says that in their report in February 1995 the tribunal rejected complaints about the level of staffing of which his first three convictions were examples. But although they appear to have accepted that he had "done everything to ensure the safety and well-being of his patients", the tribunal did not throw doubt on the complaints relating to the recording and administration of drugs. It appears, furthermore, that he was denied his licence to carry on that business at that stage.
5. In May 1994 the Manchester Health Authority reported the appellant's convictions to the respondent, the United Kingdom Central Council for Nursing, Midwifery and Health Visiting ("the Council"). As a result, the Council began disciplinary proceedings against the appellant, alleging that, having committed each of the offences set out above, he was guilty of misconduct. Under the applicable rules, proof of conviction alone did not constitute misconduct and misconduct was a matter for the Professional Conduct Committee to determine in accordance with its rules. There was a hearing on Tuesday, 29th July 1996, and the decision notified on 1st August 1996 was:

"That the conviction alleged in charges 1, 2, 3, 4, 5 and 6 was proved.

That in relation to the conviction found proved ... you are guilty of misconduct.

That the Registrar should be instructed to remove your name from the Register.

That removal should not be for a specified period of time."

6. Meanwhile Mr Balamoody, being aggrieved by the health authority's reporting him to the Council, issued an application to the Employment Tribunal on 24th May 1996 against the health authority complaining of the authority's racial discrimination. He complained that the matron of the nursing home, a Mrs Letham, a white lady, was in fact responsible for the matters for which he had been convicted and that she was guilty of other failures of administration or recording the administration of drugs to patients. In the course of a preliminary hearing in those proceedings the tribunal recorded that the appellant:

"... alleges that UKCC, in deciding to have a disciplinary hearing with a view to removing his qualifications against him only and not against the Matron, was also racially motivated and for that reason he seeks to join the UKCC as a respondent to this case."

7. That is what the Industrial Tribunal did. On appeal, however, the Employment Appeal Tribunal (with Mr Justice Lindsay presiding) held that the appellant's complaint was that he had been "singled out" for a disciplinary hearing unfairly and in a way that Mrs Letham (who should have been equally the subject, in his view, of a disciplinary hearing) was not selected for such a disciplinary hearing. Accordingly, his claim fell outside the ambit of section 12(1) of the Race Relations Act. The appeal was allowed and the Council was discharged from those proceedings.
8. On 25th November 1997 the Council rejected the appellant's first application for restoration to the register. It made recommendations in respect of further applications, saying:

"That you should be able to demonstrate insight into the gravity of the misconduct that led to your removal from the register.

That you should be able to demonstrate that you have reflected on the circumstances that led to your removal from the register.

That you should enable the Council to take up references from people who know and have worked with you either in your voluntary work or in any paid work you may take up."

9. He appealed against that rejection and his appeal was refused in May 1998.
10. Shortly afterwards, in the summer of 1998, he applied again to be restored to the register. The appellant appears to have acted to some extent upon the recommendations that had been made to him. He had, for example, a reference from a gentleman who was a previous employer, who had known the appellant for ten years and had found him thoroughly professional in his approach to his duties, and who added, relevantly:

"I have spoken to Mr Balamoody at some length since his removal from the register. I formed the impression that he now realises the error of judgment that led to his removal and I believe sincerely that he is now a wiser man for the experience. It is my firm belief that his approach, whilst extremely professional previously, notwithstanding the aberration that led to his removal from the register, will be now more circumspect in all aspects of any duties he may be required to perform.

Mr Balamoody was supported by other referees, including a general practitioner, though none appear to have addressed the specific matters to which the Council had drawn attention.

At some time in the course of 1998 the appellant made his own complaint to the Council about Mrs Letham and disciplinary proceedings were taken against her. By a letter dated 29th October 1998 the appellant was notified by the Council that no misconduct had been revealed on the part of Mrs Letham.

Six weeks later, on 9th December 1998, the appellant's further application to be restored to the register was rejected, and this time the committee made no recommendation in respect of his further application. His application to quash that decision by way of judicial review was dismissed by Lord Justice Judge and Mrs Justice Rafferty on 18th July 2000.

On 16th December 1998 he applied to the Industrial Tribunal, and this is the application which is now the subject of the appeal. He stated in box 1 of the application form that he wished the tribunal:

"To determine whether or not I have been discriminated contrary to the provisions of the Race Relations Act 1976."

11. In fact, he went further in box 11 in giving the details of his complaint, because he there said:

"I strongly feel that I have been the subject of direct discrimination and victimisation by the UKCC for Nursing, Midwifery and Health Visiting.

The person I have been discriminated against is a white lady. Her name is Mrs Patricia Anne Letham. The UKCC had taken disciplinary action against me and struck off my nursing qualifications to my detriment and I lost my rights to apply for employment as a qualified senior staff.

The UKCC had stated allegations relating to matters about drug administration or recording, misconduct on my part. A letter dated 29 October 1988 from the UKCC, referring to allegations reported to UKCC about the white lady - matters of failure to record or administer drugs - the UKCC stated `The Committee do not determine that the allegations constituted misconduct'. I was struck off in 1996. The UKCC had rejected my application for restoration back on the Register on two occasions. I am very aggrieved." [My emphasis added]

In a statement in support of that application he says, among other things:

"The person whom I feel I have been discriminated against is a white lady."

12. He says with reference to the UKCC's refusal to act upon his complaint against Mrs Letham:

"I felt strongly that I have been the subject of racial discrimination by the UKCC."

13. Then he sets out in paragraph 13 the detriment he has suffered: "As a result of it I have lost my rights of employment as a qualified senior staff. I have lost my right to apply for jobs advertised for senior qualified staff as my qualifications of SRN and RMN have been struck off. I have been the subject of economic loss, deprived of my professional status and I had to suffer a lot of stress."
14. He complains later of the failure to take disciplinary proceedings against the white lady, Mrs Letham. He concludes:

"I have been singled out, being the subject of victimisation and racial discrimination which are unlawful and improper and contrary to the Race Relations Act 1976. I refer to Section 1, Section 2, Section 12 of the Race Relations Act 1976." [Again my emphasis added]

15. In its grounds for resisting that complaint the Council referred to the meeting of the Professional Conduct Committee held on 7th December 1998, the second time it refused to reinstate him. The grounds continue:

"The Applicant's application was unsuccessful. The Respondent denies that the decision of the Committee not to restore the Applicant's name to the Register was in any way discriminatory contrary to the Race Relations Act 1976. The Applicant failed to convince the Committee that he should be restored to the Register. The matters considered in reaching this decision were:

(i)the questions under Rule 22(3)(e) of the Nurses, Midwives and Health Visitors (Professional Conduct) Rules 1993 Approved Order 1993;

(ii)whether on the balance of probabilities the material the Applicant placed before the Committee made it appropriate to grant his application for restoration; and

(iii)whether the Applicant had accepted the decision of the 29th July 1996."

16. The next ground advanced was this:

"The Applicant further contends that the Respondent discriminated against him by singling him out for a disciplinary hearing unfairly and that Mrs Letham, the matron in the nursing home at the time of the proceedings, was not selected for a disciplinary hearing. This claim has already been dealt with by a decision of the Employment Appeal Tribunal on 5th December 1996. The EAT held in relation to this very point that `there is no other provision of Part II which has a chance of applying to the nature of the complaint that Mr Balamoody makes against the UKCC.' In light of the finding of the EAT, a copy of which is enclosed, the Respondent does not intend to deduce (sic) further evidence unless directed to by the Tribunal."

17. The chairman then made attempts to clarify the issues that arose on those papers. At first she directed that the real and only issue was that it appeared that Mr Balamoody was intending to allege that the respondents refused his application to restore him to the register on racial grounds. He replied to that suggestion and said that so far as he was concerned:

"The main issues of my Originating Application noted that allegations reported about the white lady, Mrs P A Letham, the UKCC did not consider those allegations constituted misconduct. The UKCC chose not to take any disciplinary action against the white person."

18. Then he said:

"The issue about the UKCC failure to restore my name on the Register is also another factor and additional to my complaint."

19. In the result, the chairman directed that:

"... the Tribunal proposes to treat this claim as a claim that the respondent discriminated against the applicant on racial grounds by refusing his application to be restored to the register. Insofar as the applicant seeks to allege that the respondent singled him out for a disciplinary hearing when they treated a white woman differently, it has been established that the Tribunal has no jurisdiction to hear a complaint on those grounds but if the applicant can show that the respondents themselves made decisions he would be entitled to call evidence of them in order to invite the Tribunal to infer the later act was on racial grounds."

20. On 26th March 1999 the Employment Tribunal held a preliminary hearing at which the chairman, Mrs Porter, sat alone. By then, in addition to his main complaint about discriminatory treatment compared with Mrs Letham, the applicant had referred to various newspaper reports of other nurses who had been found guilty of various misconduct, some of it drugs related, but who had nonetheless not been struck off the register. The most notorious was Nurse Deborah Parry, who had been convicted of murder in Saudi Arabia.
21. The chairman stated the purpose of the preliminary hearing to be:

"... to decide whether or not the applicant's claim should be struck out as frivolous and/or vexatious and, if the claim was not so struck out, for the purpose of a pre-hearing review, to determine whether any allegation made by the applicant has no reasonable prospect of success."

The Employment Tribunal's decision

22. No evidence was called. The chairman confessed that she took a preliminary view that the claim should not be struck out but should be allowed to proceed on the basis of the letter of 28th January 1999, which I have just quoted. She said at paragraph 3 of her Extended Reasons:

"I indicated a preliminary view that whether or not the applicant had been treated differently on the grounds of race was largely a question to be decided on the evidence and that a striking out order would be unusual ..."

23. Her conclusions were:

"6.The applicant's claim is, on the face of it, one of direct discrimination in that the respondent, a qualifying body, discriminated against him by striking him off the Register and refusing to restore him to the Register. This falls within s.12 Race Relations Act 1976 (`RRA 1976'). The applicant must show that the respondent has treated him less favourably than it treats or would treat other persons s.1(1)(a) RRA 1976. A comparison can be made with either an actual or hypothetical comparator. However, in making the comparison the relevant circumstances of the two individuals must be the same or at least not materially different. S.3(4) RRA 1976.

7.Having given careful consideration to the arguments put forward by the applicant I find that what the applicant is really complaining about is unfair treatment by the respondent. I have reached this decision mindful of the fact that the applicant is unrepresented and will not necessarily use the correct words or phrases to support his claim. I have therefore concentrated not merely on his words but on the true meaning of his words. The applicant clearly holds a genuine sense of grievance against the respondent for striking him from the Register and refusing to restore him to the Register. This Tribunal has no jurisdiction to hear complaints of unfair treatment by the respondent. It has jurisdiction to hear claims of race discrimination under Section 12 Race Relations Act 1976. However, the applicant, although he seeks to compare himself to white female nurses who remain on the Register, does not raise true comparable treatment. I find as follows:-

7.1Mrs Lehman (sic), the Matron in charge of the home of which the applicant was proprietor in 1992, was not convicted of criminal offences in the Magistrates' Court. Allegations against her were not brought to the attention of the respondent until the applicant himself issued a complaint against her in relation to her actions as Matron in his nursing home after he had been struck off the Register. Mrs Lehman (sic) is not a true comparator for the purpose of the applicant's claim under s.12 Race Relations Act 1976.

7.2The applicant seeks to compare himself to a number of other examples of white female nurses who were not struck off the Register. The applicant has no personal knowledge of those cases. The applicant has no connection with them. The applicant has trawled through newspapers and other publications and highlights examples of white female nurses who, the applicant says, from the reading of those newspapers and publications, are guilty of the same or worse conduct as that alleged against him but who have not been struck off the Register by the respondent. He gives as an example Deborah Parry. None of the examples are true comparators for the purposes of the applicant's claim under s.12 Race Relations Act 1976. None of the comparators put forward by the applicant in submissions are comparators whose circumstances are the same as or not materially different to the applicant. The applicant does not seek to compare like with like.

In the absence of any true comparators the applicant raises no prima facie case of race discrimination. His claim is frivolous in that it has no substance."

24. Then the chairman turned to another topic and said:

"8.Further, the pursuance of this case by the applicant is an abuse of process. The applicant seeks to compare himself against any white female nurse who, on the basis of newspaper reports, has been apparently treated differently to him. The applicant at the Tribunal will seek to make the respondent justify the difference in treatment of such nurses. Potentially the respondent could be asked to justify its decisions to strike off or not strike off a large number of nurses over a considerable period of time. In essence, the applicant is asking us as a Tribunal to substitute our view for that of the respondent and decide that Mrs Lehman (sic) and the other white female nurses should have been struck off or, alternatively, that the applicant should be restored to the Register. That is not the function of this Tribunal.

9.It is in the interests of justice that the applicant's claim be struck out on the basis that it is frivolous, in that it has no chance of success, and it is an abuse of process."

The decision of the Employment Appeal Tribunal

(His Honour Judge J Altman presiding)

25. The Appeal Tribunal observed that the chairman had pointed out that none of the comparators had been convicted as Mr Balamoody had been. Moreover, there was no complaint about Mrs Letham except by the appellant, and that was made after he had been struck off. The Appeal Tribunal then said at paragraph 10 of the transcript of its judgment:

"It seems to us that that was a view to which the Chairman was entitled to come. She had directed herself as to the law. She directed herself as to the elements relating to that comparator and on the face of it there was good reason for the Chairman to come to the view that Mrs Lehman (sic) was not a true comparator and she was, after all, the main person who was referred to in his application by the Appellant himself."

26. Dealing with those nurses who had been the subject of publicity to which the appellant referred the tribunal, the Appeal Tribunal again upheld her decision, saying in paragraph 11:

"And again it is quite clear that the Chairman had considered the law and the elements and had highlighted the difference and the Chairman was saying, in effect, that there were no features in the cases of those nurses from which it could be said that they could be compared. The reason for this it seems to us is obvious. The only linking factor seems to be guilt of misconduct. But that of course covers many degrees and types in any disciplinary process where professional people are being investigated."

27. The Appeal Tribunal then dealt with the hypothetical comparator, having noted that the chairman, in the course of her judgment, had said that a comparison could be made with either an actual or a hypothetical comparator. The Appeal Tribunal held, in paragraph 14:

"It is true that the Chairman did not refer in terms to the possibility of a hypothetical comparator. However what emerges from that decision, and what is perhaps common sense, is that any proposed journey down the road to consider a hypothetical comparator would inevitably mean that the Tribunal would be looking at what the Respondents as an organisation did in general and would form its own judgment as a Tribunal as to the way in which the Respondents dealt with disciplinary cases. Not only was that not a matter, it seems to us, that they were called upon to deal with in the sort of allegation that is made here, but it is clearly not related to the nature of the allegation that was being made. What was being alleged in this case was specific discrimination and it does not seem to us that there was any error of law in failing to go through a process of identifying a hypothetical comparator and then coming to the conclusion that none such would be appropriate. That was not the nature of the application."

28. Their conclusion was, in paragraph 16:

"But in this case there was no scope on the finding of the Tribunal for an argument that there was an appropriate comparator."

29. The Appeal Tribunal turned to a submission advanced on behalf of the appellant that the words "scandalous, frivolous and vexatious" were to be narrowly construed, were not designed to cover cases where there was no reasonable prospect of success and that, if it had been intended to give a power to strike out where there is no prospect of success, the draftsman would have said so in regulation 13 or referred to it in regulation 7. Regulation 7(4) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 1993 allowed the tribunal to make an order against a party if contentions put forward by that party had no reasonable prospect of success. By contrast, rule 13(2)(d) permitted proceedings to be struck out on the grounds that they were scandalous, frivolous or vexatious. Counsel for the appellant argued that Parliament intended those words to have a narrower meaning when used in these rules than when used in other jurisdictions and that proceedings should not be regarded as frivolous even if there was no prospect of success at all. The Employment Appeal Tribunal rejected that submission. They held, in paragraph 22:

"We would say that `frivolous' means very often `lacking in substance'. Whilst in this jurisdiction we would very rarely look to the more technical approach of other courts to this type of thing, the words `frivolous or vexatious' have been used in the courts for over a hundred years at the least, and the Supreme Court Practice defines `frivolous or vexatious' as applying to cases which are `obviously frivolous or vexatious or obviously unsustainable'.

They upheld the chairman's drawing a distinction between there being no prospect of success at all and no reasonable prospect of success.

They went on to deal with the question of abuse and said, in paragraph 25:

"The other matter is the finding that there was an abuse. That, it seems to us, strictly speaking must be wrong. There is no power for an Industrial Tribunal to strike out on the grounds of an abuse of process. However it is probable, we would have thought, that the same principles are intended to apply to the word `scandalous'. Be that as it may, the Chairman reached alternative decisions. Finding that the claim was `frivolous' in that it had no chance of success was one she was entitled to come to, and indeed was one which, on the way the case was presented, seems eminently reasonable. And we can find no error law in the approach that she made in that respect."

The appeal to us

30. Two grounds are put forward: first, that the EAT erred in its construction of regulations 7 and 13 of the Regulations; secondly, that it erred in finding that there was no need for the Employment Tribunal to give consideration to the position of a hypothetical or notional comparator.

The meaning of "scandalous, frivolous or vexatious"

31. First, as to the meaning of "scandalous, frivolous or vexatious", those words appear in regulation 13(2) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993, which provides:

"A tribunal may ...

(d)subject to paragraph (3), at any stage of the proceedings, order to be struck out or amended any originating application ... on the grounds that it is scandalous, frivolous or vexatious; ..."

32. Subparagraph (3) provides that the party concerned must be given adequate opportunity to deal with the matter, and that has been satisfied in this case.
33. Regulation 7(4) provides:

"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. Those rules have now been changed and replaced by the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001, which we have been told came into force on 16th July 2001. The matter is now governed by the new regulation 15(2), which reads as follows:

"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; ..."

35. "Misconceived" is defined in regulation 2(2) to include "having no reasonable prospect of success". I refrain from commenting on what changes will be brought about by the amendment to the rules and deal with the matter only on the facts that were before this tribunal.
36. The appellant's case is that the Employment Tribunal had no jurisdiction to strike out a claim on the basis that it had no substance, which is the same as saying that it had no prospect of success. The submission is that the power to deal with such a case is limited by regulation 7(4) to requiring the applicant to pay a deposit. The appellant would seek to draw no distinction between a case which has no prospect of success at all and a case which has no reasonable prospect of success. In support of his submissions he refers to Care First Partnership Ltd v Roffey [2001] IRLR 85, where the Court of Appeal held, as it is stated in the headnote:

"The EAT had correctly upheld the employment tribunal's decision that it had no jurisdiction to strike out the applicants' claims at the start of the hearing on the grounds that they stood no reasonable prospect of success."

37. In my judgment the meaning of the words "scandalous, frivolous or vexatious", as they have appeared in the Rules of the Supreme Court, has been long established. In Attorney General of the Duchy of Lancaster v London and North Western Railway Company [1892] 3 Ch 274, Lindley LJ said, at p.277:

"It appears to me that the object of the rule [Order XXV, rule 4] is to stop cases which ought not to be launched -cases which are obviously frivolous or vexatious, or obviously unsustainable ..."

38. In Dyson v Attorney General [1911] 1 KB 410, Fletcher Moulton LJ said, at p.418:

"Now it is unquestionable that, both under the inherent power of the Court and also under a specific rule to that effect made under the Judicature Act, the Court has a right to stop an action at this stage if it is wantonly brought without the shadow of an excuse, so that to permit the action to go through its ordinary stages up to trial would be to allow the defendant to be vexed under the form of legal process when there could not at any stage be any doubt that the action was baseless. ... To my mind it is evident that our judicial system would never permit a plaintiff to be `driven from the judgment seat' in this way without any Court having considered his right to be heard, excepting in cases where the cause of action was obviously and almost incontestably bad."

39. The terminology in the Civil Procedure Rules is different. CPR 3.4(1)(a) allows the court to strike out a statement of case if it appears that the statement of case discloses "no reasonable grounds for bringing ... the claim". Part 24.2(a)(i) gives the court a new power to enter summary judgment against a claimant if it considers that "that claimant has no real prospect of succeeding on the claim or issue". Under CPR 52.3(6)(a) permission to appeal will only be given where the court considers that the appeal would "have a real prospect of success". There is probably very little difference between those three expressions. "Real" means that the prospects of success must be realistic rather than fanciful. If the grounds are fanciful, they are not likely to be reasonable.
40. The Employment Tribunal operates under its own rules and, to quote Browne-Wilkinson J (as he then was) in Kelly v Ingersoll-Rand Co Ltd [1982] ICR 476, at p.480:

"It is to be remembered that industrial tribunals are statutory bodies whose powers are exclusively conferred and regulated by statute. They have no inherent jurisdiction: any jurisdiction they have has to be found in their regulating statutory provisions."

41. The power to strike out has been exercised by the Industrial and Employment Tribunals. In E T Marler Ltd v Robertson [1974] ICR 72, at p.76, Sir Hugh Griffiths said:

"If the employee knows that there is no substance in his claim and that it is bound to fail, or if the claim is on the face of it so manifestly misconceived that it can have no prospect of success, it may be deemed frivolous and an abuse of the procedure of the tribunal to pursue it."

42. In Mulvaney v London Transport Executive [1981] ICR 351, at p.355, Slynn J (as he then was) stated:

"These cases are not easy. There may well be instances where a tribunal can say, on the face of the application and the reply, that a case is so misconceived that it ought not to be allowed to continue."

43. In Care First Partnership Ltd v Roffey, Aldous LJ said, at para 22:

"The jurisdiction of the tribunal is governed by the Rules. They, when read, indicate that a strike-out can only happen at the preliminary stage or during the hearing of the case under rule 13(2) which entitles the tribunal to strike out any application on the grounds that it is scandalous, frivolous or vexatious. The standard set by that rule is that which was applied in Order 18, rule 19 of the Rules of the Supreme Court, namely that the application was bound to fail. The lesser standard of proof which is sought to be prayed in aid in this case [no reasonable prospect of success] is contrary to the expressed intention of the Rules. In my view, it would be odd to strike out a claim before completion of the applicants' evidence because it appeared to have no reasonable chance of success, unless the Rules specifically so provided."

44. In the same case my Lord, Sir Christopher Slade, said, at para 38:

"I would, for my part, accept that such jurisdiction may indeed be desirable in cases where the application is as a matter of law on any footing bound to fail. But at least in many such cases any such application will, by its very nature, be `vexatious' within rule 13(2)(d) of the 1993 Rules, so that in such cases the jurisdiction to strike out will be conferred by that rule. Rule 13(2)(d) has not been invoked by the appellant on this appeal for obvious reasons."

45. I do not understand my Lord to be saying that a claim may be vexatious only where as a matter of law it is bound to fail and that the rule does not also apply to claims which are utterly hopeless on their facts or on mixed facts and law.
46. The chairman of the Employment Tribunal concluded that the appellant's claim was frivolous "in that it had no substance". In applying that test, she applied a test which fell well within the parameters of meaning given to the words by the authorities I have cited, and with which I agree. By saying that the claim had no substance, she must be taken to be meaning that it had no substance whatsoever and that it was utterly hopeless and bound to fail. She was applying the right test. She was not judging by the standard of no reasonable prospect of success, which is a lower standard. She did not misdirect herself and there is no error of law in her approach.
47. In relying on Care First Partnership Ltd v Roffey the appellant appears to me to misunderstand what was at issue in that case. It was not, as Sir Christopher Slade pointed out, a case where reliance was placed on regulation 13(2) and it was not a case disposed of as scandalous, frivolous or vexatious. On the contrary, the employers relied on the general power given under rule 13(1) for the tribunal to regulate its own procedure in order to carve out of that a power akin to the power given by CPR 24 to strike out a claim on the basis that, if all the evidence in the witness statements of the applicants was accepted as factually correct, there was no reasonable prospect of the claim succeeding. The Employment Tribunal held that it did not have the jurisdiction to make the order sought, and that was upheld by the Employment Appeal Tribunal and affirmed by the Court of Appeal. The rationale of the judgment is set out in para 30 of Aldous LJ's judgment. He said:

"To incorporate the powers given in Part 3.4 of the Civil Procedure Rules would, in my view, be contrary to the intention of the Employment Tribunal Rules. They were brought into existence in 1993, before the CPR was conceived. They set out a system for removing hopeless cases. Prior to the hearing the rules enable the tribunal to require a deposit and give a warning as to costs if a case has no reasonable prospect of success. At any time the case can be struck out if it is scandalous, frivolous or vexatious. By the time of the hearing, witness statements may have been exchanged, but the nature of a case does not change during the time immediately before the hearing to when it actually starts. If the tribunal had no power to strike out a case prior to the hearing because it had no reasonable prospect of success, absent express provision, it would appear to me to be contrary to the intention of the Rules that such a power should exist at the beginning of the hearing before evidence has been heard."

48. I have spent some time dealing with that case because it was largely on the basis of that case that Lord Justice Mummery thought this court should consider this appeal.
49. Although the matter is strictly not before us because there is no respondent's notice raising the point, I would not for my part, and without full argument, wish it to be thought that I agree with the judgment of the Appeal Tribunal that there is no power for an industrial tribunal to strike out on the grounds of an abuse of process. In Ashmore v British Coal Corporation [1990] 2 QB 338, Stuart-Smith LJ said, at p.347:

"The expression `frivolous or vexatious' in rule 12(2)(e) [which seems to be the predecessor of the current regulation 13(2)(d)] includes applications which are an abuse of process: see E T Marler Ltd v Robertson [1974] ICR 72, 76, per Sir Hugh Griffiths. Whether or not an application should be struck out on this ground is a matter for the discretion of the tribunal, which can only be challenged on the basis that the tribunal has misdirected itself in law or reached a decision to which no reasonable tribunal could come: see Medallion Holidays Ltd v Birch [1985] ICR 578."

50. I accept that to be the approach which we must adopt in this appeal.

The need for a comparator

51. By section 1(1) of the Race Relations Act 1976:

"A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if -

(a)on racial grounds he treats that other less favourably than he treats or would treat other persons; ..."

52. Section 2 provides for discrimination by way of victimisation, where:

"A person (`the discriminator') discriminates against another person (`the person victimised') in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has -

(a)brought proceedings against the discriminator or any other person under this Act; ..."

53. The critical section is section 3(4), which provides:

"A comparison of the case of a person of a particular racial group with that of a person not of that group under section 1(1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."

54. The task set by section 3(4) is broadly to compare like with like. It is the same under section 5(3) of the Sex Discrimination Act 1975. If the applicant can point to an actual person whose circumstances are the same or not materially different from his own, then so much the better. Frequently, however, there may be no actual comparator whom it can be shown has been treated more favourably than the applicant. In those circumstances it is necessary to construct a hypothetical comparator to show how a person of the other racial group would have been treated. The concept of the hypothetical comparator can often be crucial to the operation of the Act. That does not appear to be in dispute. The chairman of the Employment Tribunal correctly stated that "a comparison can be made with either an actual or hypothetical comparator". The Appeal Tribunal referred to that without dissenting from it. Mr Mark Sutton, counsel for the respondent, for whose submissions I am indebted, accepts in his skeleton argument that the appellant does not have to show that an individual has actually been treated more favourably; a comparison can be made with a hypothetical comparator. If one is seeking to find a minutely exact comparator, it is possible to define that comparator, whether actual or hypothetical, as a white nurse, whether male or female, who had been removed from the register for conduct of a kind similar to, or not materially different from, the misconduct found against the appellant, who had applied for the second time to be restored to the register. In my judgment at the bare minimum the hypothetical comparator in this case is a person of another racial group from the appellant, a white nurse, who had been removed from the register for misconduct and was seeking to be restored thereto.

Mrs Letham as the actual comparator

55. In my judgment both the Employment Tribunal and the Employment Appeal Tribunal were correct in rejecting her as a proper comparator. It has to be borne in mind that the discrimination which is the subject of this complaint is the discrimination (or, I might add, the victimisation) which occurred when the appellant was refused reinstatement to the register, not the earlier occasion when he had been struck off it. Mrs Letham is not in the appropriate control group, both because she has not been found guilty of misconduct at all (still less convicted of relevant offences) and because, never having been struck off, she is not in the appellant's position of applying to be reinstated. In my judgment neither tribunal erred in this respect.

The nurses referred to in press reports as possible comparators

56. In my judgment both tribunals were again correct in rejecting any of these persons as in fact being in comparable circumstances to the appellant. Unlike Mrs Letham, they may have been found guilty of misconduct, but, useful as they may have been as comparators for the claim the appellant sought to bring against the Council in 1996 relating to his being struck off, they are not strictly comparable in circumstances where, having been struck off, he is seeking reinstatement.

The hypothetical comparator in this particular case

57. The crucial question in this appeal is whether or not it was necessary, on the particular facts and in the circumstances of this case, to require a hypothetic comparator. That, in my judgment, is a matter of law because it goes to the manner in which the tribunal is to approach a case. If a hypothetical comparator is required and the tribunal does not direct itself to the need for that control group against which to test the alleged discriminatory treatment, then the tribunal would err in principle. It would not simply be an error in the exercise of discretion.
58. Mr Sutton accepts that in many, if not most, cases of discrimination a hypothetical comparator can be an essential tool. But he submits, first, that if it appears that the complaint relates to specific discrimination, where the applicant points to unfavourable treatment compared with a particular person and where only that comparison is relied upon, then the hypothetical comparator is irrelevant and unnecessary. Secondly, he submits that it is not the duty of the tribunal to construct the applicant's case and construct a hypothetical comparator, although he accepts that the tribunal will be lenient with litigants in person who may struggle with this concept. He submits that the effect of the chairman's judgment, as it is set out in paragraph 7, is that she has characterised the complaint to be as follows: "... what the applicant is really complaining about is unfair treatment by the respondent. ... This tribunal has no jurisdiction to hear complaints of unfair treatment by the respondent." He submits that the tribunal was entitled to come to that view in the light of the insistence of the appellant on making the treatment meted out to him compared with the treatment received by Mrs Letham the main plank of his complaint. There is force in that submission. But notwithstanding that, what cannot be overlooked is that the complaint here is that the treatment (whatever the treatment was) was unfair because it was based on racial grounds. That was why he was complaining of racial discrimination and victimisation. It was not simply a question of unfairness.
59. I have further difficulty about the chairman's approach. When one looks back to the appellant's application form, to the statement that accompanied it and to the exchange of correspondence which led to the identification of the issues on 28th January 1999, it is plain to me that the appellant was at all times putting the disparity of treatment between him and Mrs Letham at the forefront of his case. Despite that, the issue identified in the letter of 28th January, and in my judgment correctly identified, to be the claim with which the tribunal was to be concerned was the claim "that the respondent discriminated against the applicant on racial grounds by refusing his application to be restored to the Register". That was indeed what he was complaining about, even though he would have described it only as his additional ground. The tribunal relegated the question of being singled out for a disciplinary hearing to an ancillary position beyond the jurisdiction of the tribunal to consider, save only in so far as any evidence that might be led to the tribunal could lead to the inference that the "later act" (which I take to be the refusal to reinstate him) was on racial grounds. In my judgment the chairman lost sight of the issues she had herself identified to be the proper issues before the tribunal. She allowed herself to be side-tracked by the appellant's apparent insistence on complaining about Mrs Letham. I have sympathy for the tribunal, but that does not deflect my criticism that the chairman failed to sit back, take the view which she had already taken that part of the complaint was unfounded, and then ask herself whether there was some evidence to support an inference that the refusal to restore him to the register was tainted with racial discrimination. As I shall show in a moment, that evidence seems to me to have been before the tribunal. As a consequence, on the facts of this particular case it was incumbent on the chairman to construct a hypothetical comparator and test the case against that benchmark.
60. I am fortified in that conclusion by observations of Lindsay J in Chief Constable of West Yorkshire v Vento [2001] IRLR 124, when he said (to quote from the headnote):

"In deciding that the applicant had been treated less favourably than the employers would have treated a hypothetical male comparator, the tribunal did not err in constructing an inference of the hypothetical case from how the employers treated actual unidentical, but not wholly dissimilar, cases.

Where there is no evidence as to the treatment of an actual male comparator whose position is wholly akin to the applicant's, a tribunal has to construct a picture of how a hypothetical male comparator would have been treated in comparable surrounding circumstances. Inferences will frequently need to be drawn. One permissible way of judging a question such as that is to see how unidentical but not wholly dissimilar cases were treated in relation to other individual cases. It is not required that a minutely exact actual comparator has to be found. If that were the case then isolated cases of discrimination would almost invariably go uncompensated."

61. I am far from saying that in each and every case the tribunal has to be robustly interventionist and do the task which the applicant is not doing for himself or herself. Every case is different. But in this case, in my judgment, the chairman should have given in to her first instinct, which was: "... that whether or not the applicant had been treated differently on the grounds of race was largely a question to be decided on the evidence and that a striking out order would be unusual ..."
62. It follows that in my judgment she erred in not having regard to any hypothetical comparator; she misdirected herself and she fell into error.
63. In my judgment the Appeal Tribunal fell into similar error. They concentrated on, as they put it, "What was being alleged in this case was specific discrimination ..." (that is to say, the complaint about Mrs Letham) and thus they too lost sight of the proper issue posed at the beginning of the chairman's judgment relating to the refusal to reinstate the appellant. If the case had been properly confined to Mrs Letham, then I might have agreed that "... it does not seem to us that there was any error of law in failing to go through a process of identifying a hypothetical comparator and then coming to the conclusion that none such would be appropriate."Their error is revealed in the next sentence, namely: "That was not the nature of the application." The error of the Appeal Tribunal, like the error of the chairman, was not to ask again what the true nature of the application was. As soon as it is focused on the refusal to reinstate, then all the circumstances of the case should have been looked at to see whether any inference could be drawn from the facts which might give rise to a prima facie case of racial discrimination.
64. In deciding whether or not there was some evidence from which such an inference may be drawn of discriminatory treatment, the material circumstances seem to me to be arguably these. I say "arguably" because I express no concluded view as to whether or not they will eventually pass muster. But in looking at the case as it should have appeared to the tribunal, the following factors seem to me to stand out:
65. First, the misconduct found against the appellant, whilst it has to be treated as sufficient to strike him off the register, still was not the most heinous. The first three convictions seem to relate more to the running of the nursing home, and thus to his fitness as the owner of a registered home, rather than to his fitness as a nurse. The convictions and the misconduct relating to administering or failure to record the administration of drugs is no doubt a serious matter, but regard also has to be had to the fact that:

(i)the charges relate to only three occasions;

(ii)small quantities of drugs were involved;

(iii)evidence would be required to establish how serious the offences relating to these specific drugs were.

(iv)the offences took place in 1992 and there was no evidence of any other offending either before then or thereafter in the period leading up to the striking off the register four years later.

(v)the press reports reveal what might be obvious: namely, that not every person guilty of misconduct is struck off, and it is not immediately apparent from the papers before us what aggravating circumstances operated against the appellant or what mitigating circumstances appear on the face of the documents to exculpate the other nurses.

66. Secondly, being struck off the register was a serious punishment in addition to the £200 fine which had already been imposed. Its effect was to deprive the appellant of his livelihood as a nurse, the profession he had served for 22 years. To strike him off without limit of time was even more serious. His first application for reinstatement was rejected. There is nothing on the papers to indicate why his application was refused, although, in making their recommendations in respect of a further application, one gains some idea of the thinking of the Professional Conduct Committee. Demanding an insight into the gravity of the misconduct and demonstrating that he has reflected on the circumstances which led to his removal from the register may seem to an Employment Tribunal unversed in the ways of the Professional Conduct Committee to be laying down standards far removed from the gravity of this particular misconduct.
67. Thirdly, at the time of his second rejection he had already been unable to carry out his profession for two and a half years.
68. Fourthly, the appellant may by then have become something of an irritant to the Council. They had been joined in the 1996 application to the Industrial Tribunal. He had appealed the 1997 refusal to restore him to the register. He had complained, no doubt with racial overtones, about the conduct of Mrs Letham and he had launched this application shortly after that had been turned down.
69. Fifthly, when his second application was rejected in December 1998 no reasons for the rejection appear in the written notification to him and this time no recommendation was made in respect of further applications. There is nothing in the papers before us identifying informatively why the Professional Conduct Committee rejected that application. There were only bald assertions in the grounds for resisting the application that the committee had duly considered the questions under rule 22(3)(e) of the Professional Conduct Rules, but I have seen nothing which sets out that rule or indicates what relevant questions can arise under it. Although it is said that the committee considered whether on the balance of probabilities the material the applicant placed before the committee made it appropriate to grant his application, there is no identification of that material or what part of it the committee accepted or what part it rejected. There is nothing to indicate how the committee viewed what may seem to be impressive enough references. The third reason was that the committee had considered whether the appellant had accepted the decision of 29th July 1996. There is nothing to indicate how they treated the referee's opinion on that question. There is nothing to indicate why it was still so important two and a half years later for him to have to admit his guilt before reinstatement could be made.
70. In my judgment the tribunal had to ask itself whether, having regard to those or some of those facts, it was at least arguable that the appellant was treated differently from the way in which a hypothetical comparator would have been treated and, if so, whether that was by reason of the appellant's race.
71. The tribunal perhaps ought to have borne in mind Nagarajan v London Regional Transport [1999] ICR 877 and ought to have reminded itself that, even if a finding of direct discrimination did not require that the discriminator was consciously motivated in treating the complainant less favourably, it was nonetheless sufficient if it could properly be inferred from the evidence that, regardless of the discriminator's motive or intention, a significant cause of his decision to treat the complainant less favourably was that person's race, and that it is sufficient if there is conscious or subconscious influence by those racial considerations.
72. In all the circumstances I am satisfied that the appellant's claim ought not to have been dismissed as frivolous or vexatious. On the material before me, I would have to say that the refusal to reinstate him was perhaps so harsh that it called for investigation and for some explanation by the Council of the reasons for their condign treatment of the second approach to restore him to the register. The Employment Tribunal did not appear to be as cautious about strike out as the Employment Appeal Tribunal suggested they should be. The Employment Appeal Tribunal had said, wisely:

"Very often an applicant may not be sure of what lies behind something that concerns him and it can only be decided after evidence has been given."

73. In my judgment this was just such a case. It ought not to have been stopped as it was. In my judgment the appeal should be allowed.
74. I have adverted earlier to the fact that the claim was clearly, on the face of the documents before the Employment Tribunal, a claim both for discrimination and victimisation. The appellant had made an earlier complaint against the Council under the Act. In line with The Chief Constable of West Yorkshire Police v Khan (decided in the House of Lords on 11th October 2001), the comparison to be made would be between the treatment afforded to the complainant who has done the protected act and the treatment which was or would be afforded to other applicants for reinstatement who had not done the protected act and who were applying for reinstatement in similar circumstances. Because the result of my allowing the appeal must be that the matter be referred back to the Employment Tribunal, it will be appropriate for the Employment Tribunal then to consider whether it is open to the appellant to advance this alternative ground, which in my judgment is just as arguable as his discrimination claim.
75. I would therefore allow the appeal and refer the matter back to the Employment Tribunal, emphasising that they must, when they consider the matter, give as much or as little weight to the observations I have made about the merits of this case as they consider to be appropriate. I am not saying that this was a case of racial discrimination or victimisation, only that it may be. The Employment Tribunal must judge the matter on the merits as they see them.
76. SIR CHRISTOPHER SLADE: I agree.
77. I add a few observations of my own because I was a party to the decision in Care First Partnership Ltd v Roffey. In that case Lord Justice Aldous and I decided that rule 13(1) of the 1993 Regulations (which, as my Lord, Lord Justice Ward, has pointed out, have now been replaced by the 2001 Regulations) does not give the Employment Tribunal the power to strike out an application on the grounds that it has no reasonable prospect of success. I adhere to that view. But there is a real difference between striking out on those grounds and striking out on the ground that an application is on any footing bound to fail. In the passage from my judgment in that case which Lord Justice Ward has already quoted, I expressed the view obiter that, at least in many cases of the latter nature, such an application would by its very nature be "vexatious" within rule 13(2)(d) of the 1993 Regulations. I would now be prepared to go further than that and hold that any application which has no chance whatever of success, whether because of the facts or the law or both, is capable of being regarded as "frivolous" and/or "vexatious" within the meaning of rule 13(2)(d) and that an Employment Tribunal accordingly would have had jurisdiction to strike out an application which had no chance of success on such grounds while that rule was still in force.
78. The chairman of the Employment Tribunal in the present case found that Mr Balamoody's claim was "frivolous in that it has no substance", and later that it was "frivolous, in that it has no chance of success". It follows from what I have already said that I agree that the application could properly have been struck out on the basis of the view expressed by the Employment Appeal Tribunal in paragraph 25 of its decision as follows:

"Finding that the claim was `frivolous' in that it had no chance of success was one she was entitled to come to, and indeed was one which, on the way the case was presented, seems eminently reasonable. And we can find no error of law in the approach that she made in that respect."

79. Accordingly, thus far, in my judgment, Mr Balamoody's case is not well founded. But to say that an application "has no chance of success" was the equivalent of saying that it cannot on any footing succeed.
80. The chairman of the Employment Tribunal had said in terms that a comparison can be made with either an actual or a hypothetical comparator. As the Employment Appeal Tribunal pointed out, however, the chairman did not refer further in terms to the possibility of a hypothetical comparator. The Employment Appeal Tribunal, in paragraphs 13 and 14 of its decision, gave reasons for concluding that, on the particular facts of this case, the chairman fell into no error of law in failing to attempt to go through a process of identifying a hypothetical comparator. The Tribunal appeared to think that this course was justified, in particular because it regarded the complaint as being simply one of "specific" discrimination only and nothing else.
81. Those reasons were forcefully supported and amplified by Mr Sutton in his able argument. But for the reasons given by Lord Justice Ward, I am persuaded that both the Employment Tribunal and the Employment Appeal Tribunal erred in law in their approach to this matter. I am likewise persuaded that Mr Balamoody's application is not bound to fail if it is allowed to go forward. Accordingly, this was not, in my judgment, an appropriate case for the draconian remedy of striking out. I would accordingly concur in allowing this appeal and in the order which my Lord has already proposed.
82. LORD JUSTICE HENRY: I agree with both judgments. Therefore the appeal will be allowed and the decision of the Employment Tribunal quashed. The matter should be referred back to the Employment Tribunal.
Order: appeal allowed with costs; decision of Employment Tribunal quashed and matter referred back to the Employment Tribunal.