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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Mensah v. Royal Berks & Battle Hospital NHS Trust & Ors [2000] EAT 1390_99_1207 (12 July 2000)
URL: http://www.bailii.org/uk/cases/UKEAT/2000/1390_99_1207.html
Cite as: [2000] EAT 1390_99_1207
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| At the Tribunal | |
| On 9 April & 5 June 2001 | |
Before
HIS HONOUR JUDGE D WILCOX
MR D J HODGKINS CB
MR P R A JACQUES CBE
MRS E M D MENSAH APPELLANT
(1) ROYAL BERKS & BATTLE HOSPITAL NHS TRUST
(2) WEST MIDDLESEX UNIVERSITY HOSPITAL NHS TRUST
(3) MS S McDONALD
(4) THAMES VALLEY UNIVERSITY
RESPONDENT
| APPELLANT | |
(2) WEST MIDDLESEX UNIVERSITY HOSPITAL NHS TRUST (3) MS S McDONALD (4) THAMES VALLEY UNIVERSITY |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
PRELIMINARY HEARING
- There are several applications before us made by the Appellant, Mrs Mensah, they relate to the hearing of the Tribunal of London North on 8 July 1999, that was an interlocutory hearing. It was where the decision of the Tribunal was that the Applicant's originating application be struck out under r.13 (2) (d) of the Rules of Procedure, set out in schedule 1 the Employment Tribunal constitution and Rules of Procedure Regulations [1993] on the grounds that it is frivolous and vexatious. Secondly, an appeal against a refusal of a review. So far as both of these appeals are concerned, one of the principal matters, identified in the course of her submissions by the Appellant, Mrs Mensah, is the fact that the Chairman sat alone. She sat alone both at the interlocutory hearing of 8 July and alone when she considered whether or not to grant a review of her early decision.
- In that connection, we have had our attention drawn to the case of Mobbs v Nuclear Electric PLC [1996] IRLR 536. That was a decision of the Employment Appeal Tribunal with Judge Howell presiding. It is right that during the course of that judgment which is shown to us in the Hallbridge abridgement of 1996 that the judge held that in a case where there was a hearing on the merits, and issues of fact were to be determined, the presumption would be that a full Tribunal, constituting the industrial jury the scheme provides for, should hear and determine facts. We wholly accept that approach. In this case, however, the Chairman on 8 July 1999 was considering interlocutory matters, wholly and solely of law and in our judgment had a discretion to sit alone and that was a discretion that she was entitled in the circumstances to exercise.
- Generally speaking on matters of law, where there are core matters of law and are not matters of fact and law mixed, it may even be considered desirable for a Chairman to sit upon her own or his own as the case may be. So far as the review was concerned, it strikes us that it was inevitable. She having made a decision to sit on her own, it was only she constituting the early Tribunal who could review her own decision and again, we think it was wholly a matter within her discretion and we cannot at this stage, second guess or criticise the exercise of that discretion. There is nothing wrong in law about it. Secondly, Mrs Mensah says that the Chairman was biased. There is no evidence before us, adduced either by Affidavit or otherwise by Mrs Mensah to support that. It is an assertion that she makes. But when that assertion was tested in the course of argument, it was evident to us that the bias that she feels, the Chairman was affected by, was because the Chairman found against her.
- We think that there are no matters that have been put before us today that would warrant a further investigation of that. We think that it is noteworthy that in all the written submissions that have been made and indeed, in the grounds of appeal that have been carefully drafted by Mrs Mensah, there is no characterisation of her complaint as one of bias. We do not think that is a matter that need and should in justice go further. We then come to the merits of the hearing of 8 July. It seems to us, that having looked with care at the reasoning of the Tribunal Chairman, that one cannot fault her reasoning as to the effect of earlier Tribunal decisions, upon the scope of the complaints made by the applicant and which were considered. She found in relation to the first Respondent that the first Respondent had dismissed Mrs Mensah on 3 February 1978 and had never been employed by the first Respondent since that date.
- When I say she found, she was bound on the material before her to so conclude because the decision of a Tribunal speaks for itself in these circumstances. The conclusion that the complaint of unfair dismissal against the first Respondent had already been litigated and was res judicata and had no prospect of success was inevitable. The other reason is a compelling one that, that complaint was out of time. In relation to the second, third and fourth Respondent's, she considered the position under r.13 (2) (d) and she considered the arguments, made on behalf of the second, third and fourth Respondents by Miss Jones, - that the issues raised related to a period of employment from November 1994 and until 29 January 1996 and had already been litigated in the 1996 proceedings brought in the Employment Tribunal by Mrs Mensah against the second and third Respondents.
- Furthermore there is a time element there. Events that are subject to the claim against the second, third and fourth Respondents took place at latest on 29 January 1996, then more than 3 ½ years before the hearing conducted by the Tribunal. Equally the status of Mrs Mensah in the complaints against the second and third Respondent's were considered and the finding of the original Tribunal, which of course bound this Chairman, was that Mrs Mensah was not an employee. That letter had been tested up to the Employment Appeal Tribunal and indeed, to the Court of Appeal and so there is compelling material that would warrant her, as a matter of judicial duty to so find. In all the circumstances, whilst we understand that there is a residual resentment by Mrs Mensah, as to her status and in her opportunity to follow her calling, this goes back for many years. We take that into account, none the less and we cannot find any arguable matter in the material before us, that she had adduced both in documentary form and has presented in the course of her able argument before us today. We therefore are constrained to dismiss these appeals and do so.
| For the Appellant | THE APPELLANT IN PERSON |
JUDGE D WILCOX: