United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE BY OR ON BEHALF OF THE APPELLANTS
For the Respondents	MRS JONES Messrs Hempsons Solicitors Portland Tower Portland Street Manchester M3 2JA


 


MR JUSTICE KIRKWOOD: This is an appeal on an Interlocutory point. By a Form IT1 received by the Industrial Tribunal on 21 November 1997, the Applicant, Dr Gawad Rasmy, complained of racial discrimination and of unlawful deduction of wages under Section 13 of the Employment Rights Act 1996.

In July 1996 the Applicant undertook a clinical attachment at Stepping Hill Hospital, which is part of the Stockport Healthcare NHS Trust. The relevant consultant there (in Obstetrics and Gynaecology) was Dr McFarlane. Without going into the detailed background, the purpose of that clinical attachment was to assist Dr Rasmy in achieving the goal for which he had come to the United Kingdom from Egypt in 1993, namely, to prepare him for and to pass the examination for membership of The Royal College of Obstetricians and Gynaecologists.

In July 1996 Dr Rasmy had no medical registration in this country. The British Council was prevailed upon to sponsor him and that sponsorship facilitated registration to practice as a Medical Practitioner given by the General Medical Council, to run for a year from 28 October 1996. Attempts by Dr Rasmy to pass the professional examination to which I have referred, were not successful and the temporary registration ran out.

Dr Rasmy's application to the Industrial Tribunal, was, as I said, on 21 November 1997. Upon receipt of it, Dr McFarlane, who was one of the Respondents, (the other being the Hospital) wrote a detailed letter of explanation to the Regional Secretary of Industrial Tribunals. That set out in detail what was to follow by way of formal Notice of Appearance on Form IT3 on 23 December 1997. There was a denial of both discrimination and denial indeed that the Applicant was ever employed, so that the Employment Rights Act did not apply. Furthermore, it was said the discrimination claim was out of time. Dr McFarlane also wrote to Dr Buchanan of The British Council on the subject of the sponsorship and his concerns about Dr Rasmy and perhaps also to a Dr Armstrong, at the British Medical Association.

On 9 January 1998 Dr Rasmy issued a Writ against Dr McFarlane at the Queen's Bench Division of the High Court. He claimed against Dr McFarlane damages for deception and dishonesty and slander. He referred in the Writ to the letters the doctor had written to Drs Buchanan and Armstrong. On 3 February 1998 a summons was issued on Dr McFarlane's behalf for the action to be struck out. It appears, however, that in the meantime Dr Rasmy had caused judgment to be entered on his Writ. On 10 February 1998 he issued a summons for the damages to be assessed.

On 3 March 1998 Dr McFarlane issued a summons for the judgment to be set aside and for an extension of his time to serve his defence and also for striking out. Those various summonses were returnable on 17 March, 15 April and 27 May.

Meanwhile, by a letter of 12 January 1998, the Industrial Tribunal fixed a pre-hearing discussion appointment for 16 February 1998. On 16 February the Applicant told the Chairman that he had an action pending in the High Court in which the facts substantially overlapped the facts of the Industrial Tribunal complaint. The Applicant was anxious lest the two different trials produced contradictory findings. The Respondents accordingly agreed that the Industrial Tribunal proceedings should be stayed, pending outcome of the High Court action, in which at that stage the Writ had been issued and judgment entered. The following summonses to which I have referred had not yet been issued, save for the defendant's summons to strike out.

It is against the Chairman's order staying the proceedings that the Applicant appeals. Before coming to his Notice of Appeal there are two matters that I need to mention. Upon receipt of Notice of Hearing of this appeal, Dr Rasmy replied that his case was now before the House of Lords and that these Industrial Tribunal proceedings had better halt, pending a decision by the House. An enquiry by the Employment Appeal Tribunal of the House of Lords Judicial Office produced no trace of an appeal pending there. It could be that Dr Rasmy is referring however to some correspondence he has been having. We have seen a short reply to a letter he apparently wrote to Lord Richard. We have not seen anything that begins to suggest that this Interlocutory appeal should not be dealt with by us today.

When Dr Rasmy received the Notice of Hearing of this appeal and responded to it in the manner I have indicated, he concluded his letter in response by saying:

"I am therefore returning the enclosures of your letter dated 3 April 1998."

Those enclosures included a form in which he was asked to indicate whether he would be represented or present at the hearing. He returned that uncompleted. They included a notice about the citation of authorities. He returned that as well. The office of the Employment Appeal Tribunal has tried to get in touch with Dr Rasmy on the telephone to be told that, as we understand it, he is no longer at that address. Everything therefore has been done to inform Dr Rasmy of today's hearing and no indication has been given to him that the Notice of Hearing for today has in any sense been withdrawn, or that the hearing will not proceed today.

In his Notice of Appeal Dr Rasmy makes two main points. The first is that whereas the letter of 12 January appointing a hearing before the Tribunal on 16 February, referred to it being an appointment for a pre-hearing discussion, the Extended Reasons given by the Chairman of the Industrial Tribunal for the decision on 16 February, refers to it as having been a Directions Hearing and Dr Rasmy says that was an error regarding the procedures.

Having regard to the way in which that hearing proceeded by considering the inter-relation and possible overlap of the two sets of proceedings to which I have referred, we are quite unable to see that it matters what title was given to the events that occurred on that day.

The second point upon which Dr Rasmy seeks to rely is an argument, as we have understood it, that since he had entered judgment in his action in the Queen's Bench Division and was able to show that to the Industrial Tribunal, he established as a fact both that he was an employee of the NHS Trust, a matter which is in issue in these proceedings and secondly, that he had been slandered by Dr McFarlane.

It is somehow on the basis of those grounds and an assertion that the Tribunal ignored the existence of the entered judgment, that Dr Rasmy seeks to have set aside the order staying these proceedings, pending resolution of the proceedings in the Queen's Bench Division. Not much has happened in the Queen's Bench action since 16 February, except that, so we are informed, the judgment entered in default has been set aside and the Defendant has had time for his defence extended.

Mrs Jones who represents the Defendant to that action and the Respondents to this Tribunal application, tells us that Dr Rasmy now has pending an appeal against an Interlocutory Order in the Queen's Bench Division action. That is, we presume, although we do not know for certain, an appeal against the Order setting aside the default judgment and giving leave to defend.

However that may be, it seems to us that the Queen's Bench action is very much alive and proceeding, so that nothing has occurred since 16 February to indicate that either the Order made by the Chairman on that occasion was wrong, or that it is now appropriate, in the proceeding before the Industrial Tribunal, for the stay on it to be removed. Accordingly this appeal will be dismissed. The result will be that the Industrial Tribunal proceedings remain stayed until resolution of the Queen's Bench action.