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 Tuesday, 24th April 2001

Tuesday, 24th April 2001

1. LORD JUSTICE MUMMERY: This is an application for permission to appeal. The application is made by Dr Saxena, who was working as a locum medical officer in Her Majesty's Prison Service until 18th October 1995 when his position was terminated.
2. The circumstances in which his position was terminated led Dr Saxena to bring a case in the Employment Tribunal. His application, which is dated 28th July 1998, was received by the Employment Tribunal on 13th August 1998, well outside the three-month time limit for bringing a complaint of the kind which he wished to make; that is a claim for unfair dismissal and also a claim for race discrimination under the Race Discrimination Act 1976.
3. Dr Saxena was sentenced to a term of imprisonment which he served between 1998 and the beginning of March this year. He also had the misfortune to be made bankrupt. He informed me in the submissions which he has made in person this afternoon that he was discharged from his bankruptcy a week ago. The imprisonment and the bankruptcy obviously created difficulties for Dr Saxena in pursuing his claim. His claim was resisted by the Prison Service. They denied that he was entitled to bring a claim for unfair dismissal, contending that he was not an employee. They took the obvious point that his claim was out of time and also contended that he had not served for the relevant qualifying period in order to be entitled to bring a claim for unfair dismissal. They also denied that race was the ground on which his position in the prison was terminated.
4. The proceedings, however, have never reached a hearing, and that is one of Dr Saxena's complaints. What happened was that on 5th January 1999 Dr Saxena's proceedings were stayed on the ground of his bankruptcy. The reasons for the decision are explained in the extended reasons given by the chairman of the tribunal on that date following a preliminary hearing which had taken place on 9th December 1998. It was explained that Dr Saxena was at that date an undischarged bankrupt. Inquiry was made of the Trustee in bankruptcy, who informed the tribunal that the Trustee, Mr David Stokes (a partner in Cork Gully), did not support Dr Saxena's application to the tribunal. Accordingly, the tribunal said, in accordance with the provisions of Part 9 of the Insolvency Act 1986, the tribunal had no jurisdiction to hear the matter, and all proceedings were stayed. That was followed by an order on 11th July 2000 in which the tribunal dismissed Dr Saxena's applications as vexatious, and for want of jurisdiction.
5. Under the Employment Tribunals Regulations 1993 employment tribunals have a wide range of powers for regulating their procedures. They are specifically given the power in Regulation 13(2)(a) to strike out any originating application on the grounds that the manner in which the proceedings had been conducted by or on behalf of the application had been scandalous, frivolous or vexatious. They also have the power under 13(2)(d) to strike out any application on the grounds that it is scandalous, frivolous or vexatious.
6. In the extended reasons for their order of 11th July 2000 the tribunal referred to the fact that the proceedings had been stayed on the grounds that Dr Saxena was a bankrupt and that leave of the court and of the Trustee in bankruptcy had not been obtained. The tribunal stated that a letter had been written to Dr Saxena notifying him of the tribunal's intention to dismiss his cases as vexatious, because they should not have been brought without the consent of the court, and he had been invited to make objections in writing. He wrote a letter of 28th June from which it was clear that he was still bankrupt and that his bankruptcy had not been annulled or revoked, and that he had not obtained the requisite consent to bring the proceedings.
7. The tribunal concluded that the proceedings were improperly brought and could not properly be continued. So the tribunal had no jurisdiction to entertain them. They were dismissed under the provisions of Rule 13(2) of the 1993 Regulations as an abuse of the process, and vexatious.
8. Dr Saxena was dissatisfied with that result and sought to appeal to the Employment Appeal Tribunal. The Employment Appeal Tribunal Rules 3(2) provide that the period within which an appeal to the Appeal Tribunal may be instituted is 42 days from the date on which the extended written reasons for the decision or order of the Employment Tribunal were sent to the appellant. Dr Saxena signed a notice of appeal dated 8th August 2000, but it was not received by the Employment Appeal Tribunal until 27th September 2000. That is out of time. The tribunal has power to extend time in cases where there is a satisfactory excuse for failure to comply with the time limit. Dr Saxena accordingly made an application to the Registrar of the Employment Appeal Tribunal for an extension of time. That extension was refused by the Registrar as set out in an order of 20th November 2000. It was stated in that order that consideration was given to Dr Saxena's letter of application and to his submissions, and also to a letter from the Prison Service setting out their contentions. It was then stated as follows:

"It is considered that there has been shown no exceptional or acceptable reason why the notice of appeal could not have been presented within the time limit laid down.

And it is ordered that the application for an extension of time in which to present the notice of appeal is refused."

9. Dr Saxena then appealed against a Registrar's order to the President of the Employment Appeal Tribunal, Lindsay J. Lindsay J heard the appeal in the absence of Dr Saxena, who was still serving his sentence of imprisonment at that time. The respondent Prison Service was represented by counsel. The judgment of the President sets out in detail the background to the application for an extension of time and Dr Saxena's appeal. After considering the various arguments the President concluded that no extension of time should be granted for the reason that the claim was bound to fail whatever reasons Dr Saxena had for being out of time.
10. The points made by the President were that Dr Saxena's claim was not a purely personal one, so the benefit of it vested in the Trustee, subject to a trust in favour of Dr Saxena in respect of any part of the fruits of the claim which related to personal injury or harm. Lindsay J said that the appeal was bound to fail for that reason and therefore there was no point in granting an extension of time for appealing against the order of 11th July dismissing the claim as vexatious.
11. In the very helpful written submissions and in his oral argument today Dr Saxena has made five main points. The first is that the Employment Tribunal had no power to strike out his claim before hearing the evidence. He relied on the recent decision in the House of Lords in Marwood v South Bank University in which the view was expressed that it was wrong of the Employment Tribunal in that case to strike out a claim without hearing it. Secondly, Dr Saxena said that the hearings both in the Employment Tribunal and in the Employment Appeal Tribunal had been conducted in his absence and he was entitled to have a hearing at which he was present. He said it was wrong both of the Employment Tribunal and the Employment Appeal Tribunal to dismiss his applications without hearing his evidence. Thirdly, he disputed the legal proposition that his rights of action for unfair dismissal and race discrimination vested in the Trustee. He said this was not the case, it was not what was being described in some of the legal authorities as a "hybrid case". He says this is a personal claim, which is vested in him and, even if it was vested in the Trustee at any previous date, he was now discharged from his bankruptcy and should be entitled to proceed with his claims. Fourthly, he alleges that there had been irregularities, even fraud, in relation to the deduction of tax and national insurance contributions in relation to his payment. Fifthly and finally, he says that this is a case of direct or indirect race discrimination by which he has been forced out of his position in the Prison Service. There were a number of other detailed points which Dr Saxena has made, but these, I think, are a fair summary of the main arguments.
12. As I have explained to Dr Saxena he requires permission to appeal. He can only appeal on a point of law. Permission should only be granted to him for an appeal if I am satisfied that he has a real prospect of success. As I have also pointed out to Dr Saxena, his case does have a number of serious difficulties. He was out of time by a long way for instituting his proceedings in 1999. The matters that he was complaining of occurred in 1995. He was also out of time in bringing his appeal from the Employment Tribunal's decision to dismiss it to the Appeal Tribunal. He needed an extension of time and both the Registrar and the President of the tribunal exercised their discretion to refuse an extension. This court is only entitled to interfere with that exercise of discretion if the decision of the Appeal Tribunal was plainly wrong, erroneous in principle or failed to have regard to some relevant factor or had some regard to some irrelevant factor.
13. The bankruptcy is also a serious problem for Dr Saxena since it is undoubtedly the case following the recent decision of this court in Ord v Upton [2000] 2 WLR 755, that causes of action, including hybrid causes of action, vest in a Trustee by virtue of the provisions of section 283 and 306 of the Insolvency Act 1986.
14. In addition I have reached the conclusion that Dr Saxena is wrong as a matter of law in his submission that the Employment Tribunal did not have power to strike out his claim without a hearing. Obviously a tribunal should be cautious in exercising the power that it has to strike out, because the effect of it is to deprive a person of an opportunity to bring their evidence and their witnesses to the tribunal to establish their case.
15. But like other courts and tribunals employment tribunals do have power to protect their own procedures against the bringing of cases that are bound to fail. In my view the Employment Tribunal in this case was entitled to conclude that Dr Saxena's claim was bound to fail on the ground that the claims which he may have had vested in the Trustee in bankruptcy at the relevant time. The benefit of those claims have not been assigned by the Trustee back to Dr Saxena. No order of the court had been obtained for the bringing of the proceedings. Finally, the Trustee in bankruptcy did not himself support the bringing of the proceedings. So in my view Lindsay J was right to regard the claim as one which was bound to fail.
16. I appreciate Dr Saxena's grievance that these hearings were conducted in his absence by reason of his imprisonment; but he was able to make his points by correspondence to the tribunal before it made his decision.
17. As regards the allegations of fraud in relation to tax and national insurance contributions they are, in my view, irrelevant to his claims for unfair dismissal and race discrimination and nothing in the papers before me contains credible evidence that there have been irregularities of the kind that he alleges.
18. As for the exercise of the discretion of the tribunal in refusing to extend time for appealing I have reached the conclusion that the tribunal was fully entitled to take the position for the reasons I have mentioned, that his claims were bound to fail, and therefore no purpose would be served in extending the time. I would not interfere in those circumstances with the discretion of the Employment Appeal Tribunal in refusing to extend time.
19. For all those reasons I have reached the conclusion that this appeal against the order of the Employment Appeal Tribunal of 30th January this year has no real prospect of succeeding. I would therefore refuse the application.
(Application refused; no order for costs).