England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
(MR JUSTICE ELIAS)

		Royal Courts of Justice Strand London WC2 Friday, 26th January 2001

Friday, 26 January 2001

1. LORD JUSTICE TUCKEY: Mrs Mensah applies for permission to appeal from the decision of Elias J who, on 5th October 2000 refused her three applications for permission to apply for judicial review of various decisions of the Employment Tribunal and the Employment Appeal Tribunal.
2. Shortly, the background to these applications is as follows. Between 1973 and 1978 the applicant was employed at the Royal Berkshire and Battle Hospital as a midwife. She was dismissed from this employment when she was struck off as a midwife by the professional body. In March 1981 she was reinstated. Between 1994 and 1996 she worked as a bank midwife (that is to say, on a casual basis filling temporary vacancies) for the West Middlesex University Hospital. In 1996 she was removed from the bank list because the hospital thought she had deficiencies in her professional knowledge and was advised to go on a midwifery course, which she did not do. In November 1998 she enquired about such a course at the Thames Valley University but did not apply because she discovered it was run in conjunction with the West Middlesex Hospital.
3. These events have spawned a large number of claims by the applicant. It is not necessary to refer to the whole history, but the important features of it for present purposes are that in 1979 an industrial tribunal dismissed the applicant's claim for unfair dismissal and race discrimination against the Berkshire Health Authority, arising out of her dismissal the previous year. In 1997 an Employment Tribunal dismissed similar claims against the West Middlesex Hospital Authority on the ground that a bank midwife was not an employee. The present and other proceedings started by the applicant are essentially an attempt to re-litigate the issues in those two tribunal hearings.
4. Thus, the first case (3230) relates to an application to the Employment Tribunal which the applicant made on 7th January 1999 alleging unfair dismissal against both hospital authorities, the Secretary of State for Health, the Royal College of Midwives for failing to advise and help her to prepare her claims, and a doctor who prepared a psychiatric report on the applicant in 1977 for the purposes of the disciplinary proceedings which led to her being struck off. On 26th October 1999 the Employment Tribunal dismissed these applications on the grounds that they were out of time, had already been adjudicated on and were frivolous and vexatious. The following month the Employment Tribunal refused to review this decision.
5. The applicant's grounds for judicial review of those decisions say that the issues raised were not the subject of previous decision because they raised new acts; that they were within time because time runs from the date of knowledge and there was no knowledge in this case until 5th November 1998 when she inquired about the course at Thames Valley University; that there is no time bar under EEC law; and that the allegations of race discrimination were within time because the discrimination had been continuous.
6. I am afraid to say that there is nothing in any of these points, and if there were, judicial review is not the means by which to pursue them. Complaints of this kind have to be made within the statutory framework which requires them to be made within a certain time and lays down an appeal process to the Employment Appeal Tribunal and from there to the Court of Appeal if, but only if, there are any arguable grounds of appeal which in this case there are not.
7. Mrs Mensah submitted that these claims had never been heard on the merits. I cannot agree with that. She further submitted that European law now says that there should be no time bar. For that she referred to the facts of the well-known case of Webb v Emo Air Cargo(UK) Ltd and to other cases including Defrenne v Sabena, which she says show that there should be no time limits for bringing claims of this kind and insofar as the English legislation says there are, it is contrary to the Treaty of Rome. I am afraid, with the greatest respect, Mrs Mensah has misunderstood the effects of those decisions which decide no such thing. The events which gave rise to the issues which were considered by the European Court in Webb v Emo Air Cargo and subsequently by the House of Lords took place eight years before the final decision. But that is because of the length of time the appeal process took. The statutory time limits laid down by English law did not apply. Mrs Webb's proceedings had been started in time.
8. Mrs Mensha further submits that the decision of the tribunal in 1997 was wrong because she was an employee at the time -- she was a bank midwife -- and European Court of Justice decisions support this submission. Whether or not she was an employee was, I suspect, although I have not seen the decision of the tribunal, largely a question of fact. Any right of appeal from that decision (and I am not saying she had one) lay to go to the Employment Appeal Tribunal and then to the Court of Appeal. It was not open to Mrs Mensah to take further proceedings to raise the same point again in the way she did. Still less is any decision on this point susceptible to judicial review.
9. The second case (3231) relates to an application made to the Employment Tribunal on 5th May 1999 alleging unfair dismissal, race and sex discrimination against the two hospitals, Thames Valley University and a lecturer at that university. The allegations again relate to the applicant's employment with the two hospitals. On 8th July 1999 the Tribunal struck out this application on the basis that it was out of time, frivolous and vexatious, and related to matters that had already been adjudicated upon. The applicant seeks judicial review of the Employment Tribunal's subsequent decision not to review it and the Employment Appeal Tribunal's refusal to allow the applicant to appeal out of time and subsequent rejection of her appeal at a preliminary hearing.
10. The applicant alleges bias against the chairman of the Tribunal, who apparently had been involved in an earlier decision adverse to the applicant. She says in her application for judicial review that the appeal was out of time due to stress and mental exhaustion; that ignoring those features was a breach of her human rights, as indeed was the conduct of the parties who she says have treated her so badly, and she makes the same points about the complaints being continuous and the ruling being contrary to European Law. In my judgment there is nothing in these grounds which gives the applicant any basis for judicial review.
11. The third case (3229) relates to an application made to the Employment Tribunal on 8th January 1999 in which the Royal College and the Nursing and Midwifery Staff Negotiating Council are the respondents. The allegations are that the respondents should have assisted her in her cases against the hospitals and that the conditions of service of bank midwives are unlawful. This application was struck out by the Employment Tribunal on 12th August 1999 as being vexatious, out of time and relating to matters already litigated, and because the applicant was not employed by either respondent. The applicant seeks judicial review of this decision, the Tribunal's subsequent decision not to review it, and the Employment Appeal Tribunal's dismissal of the applicant's appeal at a preliminary hearing.
12. The applicant's grounds are that the Employment Tribunal should have told her that they had no jurisdiction, that they failed again to apply European Law and that her claims had not already been heard. I have already dealt with some of these points and what I have said about them applies here as well. There is little doubt however that the Employment Tribunal had no jurisdiction to hear this case since although it arose out of the events to which I have referred, the applicant was not employed by either of the respondents. It was not the Tribunal's duty to advise Mrs Mensah of her rights, if any, against those parties. Certainly there is nothing in the allegations which the applicant makes which gives her any right to a judicial review of the decisions Tribunal she impugns.
13. It follows from what I said that there is nothing in any of these three applications for judicial review and permission to appeal against the judge's decision to this effect must be refused.
(Permission to appeal refused)