United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M S PANESAR (Of Counsel) Instructed by Commission for Racial Equality Maybrook House(5th Floor) 40 Blackfriars Street Manchester M3 2EG


 


JUDGE ALTMAN

1. This is an Appeal from the Employment Tribunal sitting at Manchester on 26 March 1999. The decision of the Tribunal was to dismiss the Appellant's claim of race discrimination at a Preliminary Hearing on the basis that in the way it was expressed at the very end of the decision that

"it is in the interests of justice that the [Appellant'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."

It is not altogether clear on a strict view of those words whether those 3 matters are separate or whether the finding of frivolousness is on the basis that there is no chance of success.

2. The claim for discrimination by the Appellant was on the ground of race arising from the allegation that the Respondents refused to restore him to the Register of Nurses after a prior suspension. The case raises issues as to the precise scope of a Tribunal's jurisdiction in relation to their powers to strike out.
3. The Appellant was the owner of a Nursing Home in 1992 and in 1993 he was convicted in the Magistrates Court of criminal offences in relation to the conduct of that Home. Throughout those proceedings, the Respondents' disciplinary proceedings (if they can be so termed), and the Tribunal proceedings, the Appellant has maintained his innocence of the matters alleged against him. The Matron of the Home was a Mrs Lehman. She is white. She was never prosecuted.
4. In July 1996, following the Respondents' disciplinary procedures, the Appellant was struck off the Register of Nurses. In November 1997 he made an unsuccessful application to be restored to that Register.
5. In May 1998, the Appellant's Appeal against the decision to strike him off the Register was heard and was unsuccessful. And in December that year a further application for restoration was unsuccessful. Meanwhile, in 1998, after he had failed to be restored to the Register for what appears to be first time, the Appellant lodged a complaint of misconduct against the Matron who was never prosecuted. She was investigated by the Respondents and in 1998 the Appellant was told that the Respondents found no misconduct against her.
6. From the time of his first mentioning it, the Appellant has maintained that Mrs Lehman was guilty of misconduct and indeed he has attributed to her the act of misconduct of which he was found responsible. He makes clear in his originating application that essentially it is she that he sought to have viewed as a comparator. In addition, he would wish to refer to a nurse who was convicted of murder in Saudi Arabia, so the Employment Tribunal found, and to reports in publications of other nurses who were found guilty of misconduct; for these were cases where the nurses were not struck off.
7. In the conclusions of the Tribunal the Chairman directed her attention to the legal provisions under Section 12 of the Race Relations Act 1976 which applies the liability for discrimination under Section 1(1)(a) of that Act to professional bodies such as the Respondents and she considered the position as to comparators. The Chairman said this:

"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."

Reference was made to S 3(4) of the Act as the source of that proposition.

8. In paragraph 7 the learned Chairman came to her judgment that in fact the real complaint of the Appellant was that he had received unfair treatment at the hands of the Respondents and that he held a genuine sense of grievance both as to his being struck off and as to his being refused restoration. The Chairman pointed out:

"This Tribunal has no jurisdiction to hear complaints of unfair treatment by the respondent. It has jurisdiction to hear claims of race discrimination."

9. The Chairman then considered the comparators. It is clear, it seems to us, from the decision of the Tribunal, that the one matter that exercised the Chairman's mind was whether this really was a claim of race discrimination. That is why she appears to have made the distinction between the real complaint and the theoretical complaint of race discrimination. Then in dealing with the comparators the Chairman points out that none of them were convicted, and certainly the Matron in charge of the Home was not convicted. We are mindful of the fact that the rules of the Respondents do not permit them, in exercising their disciplinary powers, to rely exclusively on the fact of a criminal conviction. They have to be satisfied of the elements which made it up. However, that is not in itself a direct element in these claims, as we understand it, for race discrimination and it has not been suggested that that was not done.
10. The Chairman also points out that there was no complaint about Mrs Lehman except by the Appellant and that was after he had been struck off. So the Chairman came to the view that she could not be considered as a true comparator. 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 was not a true comparator and she was, after all, the main person who was referred to in his application by the Appellant himself. The Chairman then considered the other examples of white female nurses and found this:

"The Appellant has no personal knowledge of those cases … The Appellant has trawled through newspapers and other publications and highlights examples of white female nurses who, the Appellant 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…. None of the examples are true comparators for the purposes of the Appellant's claim under S.12 Race Relations Act 1976 … The Appellant does not seek to compare like with like."

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.
12. It is trite to observe that the punishment by professional bodies for misconduct varies and the simple fact of the existence of misconduct was found by the Chairman not to be sufficient to satisfy the requirement of there being the same features or at least not material differences as between the two individuals.
13. It is said on behalf of the Appellant that the Chairman did not then go on to consider the possibility of a hypothetical comparator. It is difficult to see how such a concept would fit into a case of this kind. In paragraph 8 of the decision, in reference to the alleged comparison with a nurse who has apparently been treated differently on a basis of a newspaper report the chairman said this:

"The [Appellant] at the Tribunal will seek to make the Respondent justify the difference in treatment of such nurses

and indeed a hypothetical comparator must surely be a nurse subject to disciplinary proceedings for misconduct whether real or hypothetical."

The Chairman goes on:

"Potentially the respondent could be asked to justify its decision to strike off or not strike off a large number of nurses over a considerable period of time. In essence, the Appellant is asking us as a Tribunal to substitute our view for that of the Respondent and decide that Mrs Lehman and the other white female nurses should have been struck off or, alternatively, that the Appellant should be restored to the Register. That is not the function of this Tribunal."

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.
15. The Chairman then concluded paragraph 7 of her reasons (returning to that for a moment) with what seems to us to be an important part of the decision:

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

We observe that it is true that in some cases the identification of comparators does require an input from the Respondent. An Appellant may show a case to answer in relation to a comparator without being able to prove their validity. Indeed the substance of a hearing is often devoted to argument as to whether a named person is an appropriate comparator or not and indeed some race discrimination cases may be assisted in their progress by aPreliminary Hearing to consider the very issue as to whether there is a comparator and if so who.

16. But in this case there was no scope on the finding of the Tribunal for an argument that there was an appropriate comparator. The Employment Tribunal then went on to make another finding which is that the application was an abuse of the process of the Tribunal, relying in effect on the passage which I have quoted, that the function of the Tribunal is not to substitute its own views, and no doubt referring back to the finding to which I referred that the real complaint was not a complaint of race discrimination but one of simple unfair treatment.
17. The rules of the Employment Tribunal's Constitution and Rules of Procedure Regulations 1993 provide the power to strike out that a Tribunal has. Rule 13(2) provides:

"A Tribunal may …

(d) 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."

That is subject to sub paragraph 3 which provides that the party concerned must be given an opportunity

"to show cause why the order should not made; but this paragraph shall not be taken to require the Tribunal to send such notice to that party if the party has been given an opportunity to show cause orally why the order should not be made".

18. Complaint has been made in this case that these proceedings were struck out without hearing evidence but it is clear from the passage to which I referred that that is exactly the procedure that is contemplated by the regulations. What is envisaged is that if the matter is plain without the need for evidence it is right that a claim should be struck out.
19. On behalf of the Appellant Mr Panesar has submitted that the use of the words 'scandalous, frivolous or vexatious' is not designed to cover cases where there is no reasonable prospect of success. He says that Parliament, in another part of these regulations has already catered for the prospect of success to be considered by a Tribunal in a different way. Regulation 7 provides for a pre hearing review and in sub paragraph 4 it says that:

"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"

20. It is argued that if Parliament had intended the power to strike out for there being no prospect of success they would either have said so in regulation 13 or have referred to it in regualtion 7. We disagree. It is to be noted that regulation 7 provides a regime which is much more generous to applicants before Tribunals than parties before the ordinary courts. Ordinary court procedures entitle a court to strike out an action on the ground that it has no reasonable prospect of success. The only power that a Tribunal has where the Chairman considers, and the members where they are sitting consider, that there are no reasonable prospects of success, is to compel the Applicant to place a sum of money, which the regulations require he or she must be able to afford, on deposit as in earnest of being allowed to proceed.
21. It would seem to us that it is not totally different to say something has no reasonable prospect of success than to say something has no prospect of success at all and the Respondents argue that the regulation 13 can apply to the latter. Mr Panesar says that although in other jurisdictions that may be the application of those words, Parliament has indicated a more narrow meaning to the words 'scandalous, frivolous or vexatious' by dealing with prospects of success in paragraph 7.
22. We do not see why, simply because of the power to deal with cases where the Chairman has made a judgment, a qualitative judgment, and tries to suggest that perhaps the breaks should be put on in action, that that should relieve an Applicant of the normal meaning of the words 'scandalous, frivolous or vexatious'. Mr Panesar then says that those words do not really mean that. He has referred to the reference in Harvey to a case in which the word 'frivolous' was looked at in the context of a second application covering the same grounds as the first application. But of course the term may mean a number of different things. Mr Panesar has helpfully referred to the definition of the word 'frivolous' in a dictionary as being "not serious or sensible" but "silly" or "unworthy of serious or sensible treatment." 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'.
23. It seems to us that the learned Chairman drew a clear distinction at the outset of her decision. In paragraph 3 she demonstrates that she is alive to the difference because she adverts to her preliminary view that the case should been

"decided on the evidence and that a striking out order would be unusual but that in those circumstances the appropriate course may be to consider an order for a deposit on the grounds that the claim had no reasonable prospect of success."

24. In the end of her judgment the chairman uses the phrase 'It has no chance of success.' The distinction between those provisions is obvious. If we seek the intention of Parliament we would ask why did they not use the phrase, often seen in legislation, of the alternatives, namely "no or no reasonable prospect of success"? If Mr Panesar is right we say, rhetorically, why does it not refer in regulation 7(4) to any matter that has 'no, or no reasonable, prospect of success', but it does not. That is confined to cases where there is no reasonable prospect of success. It is a trite observation that there where there are no reasonable prospects of success, there may be some prospects of success and that is the case that we have to consider.
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 of law in the approach that she made in that respect.
26. Mr Panesar says that the Chairman was confused as between the words 'frivolous' and the term 'no chance of success'. If the term historically has in the courts been used to apply to something which is not sustainable it seems to us that there are cases where 'frivolous' can cover that instance. 'Frivolous' may of course cover other types of instance such as illustrated in Harvey.
27. Before departing from this case however we would wish to point out that it is recognised that racial discrimination is a pernicious evil and it is recognised that it rarely shows its face but hides, at it were, in the undergrowth. It is therefore important in racial discrimination cases that in appropriate circumstances an employer may be called upon to provide an explanation for some act or omission without which explanation it would be reasonable to draw an inference of discrimination.
28. It is therefore important clearly not to over use the preliminary hearing and the strike out provisions nor to take an over technical view of originating applications and the way in which a party puts their case, because these sorts of cases are difficult. 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. But those are only general matters. In this particular case it seems to us that the Chairman had reached a decision which was eminently reasonable for her to reach. Some comment was made about the desirability in racial discrimination cases of dealing with these matters by way of preliminary hearing. There are a large number, sadly, of reasonable and properly brought allegations of race discrimination. It is right that where a Tribunal can discern one that has no merit at all, it should not distract a Tribunal and delay those cases which really do need to be decided. It would be quite wrong to restrict, in appropriate case such as this the power of a Chairman to deal with these matters by way of preliminary hearing.
29. Finally, criticism has been made of the fact that the Chairman sat alone. We would only say this. It is not our job to suggest to a Chairman the way in which their entitlement to sit alone should be exercised. No doubt factors that they do take into account include the extent to which, before it begins, a party may be content with that procedure, and the risk that a party against whom a finding is made in the absence of members may possibly for no good reason have a sense of grievance in that there is a feeling that only one person has made the decision.
30. Those are matters no doubt which Chairmen always take into account and nothing arises in relation to this particular Appeal upon it. Accordingly it seems to us that this Appeal must be dismissed.