United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	The Appellant in person with assistance from Mr U Galbraith-Martin (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


THE HONOURABLE MR JUSTICE MAURICE KAY

1. This is the Preliminary Hearing of an appeal against a decision of an Employment Tribunal. Those short words do nothing to elucidate the very considerable history of Mr Balamoody's claims.
2. The background is that Mr Balamoody was by profession a nurse with high qualifications. He became involved in a nursing home project, the nursing home being known as Hawthorn Villa. In 1993 the Health Authority prosecuted Mr Balamoody for a number of alleged offences and he was convicted. In due course two things happened thereafter. First, his case was considered by the Registered Homes Tribunal in 1994 in relation to a number of complaints. Some of them were dismissed but others were found proved. Secondly, after that hearing the Health Authority reported the matter to the United Kingdom Central Council for Nursing Midwifery and Health Visiting (UKCC); that was in May 1995. In 1996 Mr Balamoody was struck off by the UKCC. That attenuated history gave birth to a number of applications by or on behalf of Mr Balamoody. In essence his case is that he has been the victim of race discrimination.
3. We do not have all the Orders made in the various jurisdictions which have had to consider Mr Balamoody's grievance. So far as the Employment Tribunal is concerned one can trace this history. There was a hearing in the Industrial Tribunal on 22 August 1996 which, addressing matters of time and jurisdiction, produced a decision that was favourable to Mr Balamoody. His case was permitted to proceed to a substantive hearing. Thereafter there was a further hearing before a different Employment Tribunal on 11 July 1997. On that occasion, which again was considering interlocutory matters, Mr Balamoody's case was struck out. The Chairman was Miss A F W Woolley sitting alone. Mr Balamoody appealed against that decision. On
   2 March 1999 in this Employment Appeal Tribunal, then presided over by His Honour Judge Peter Clark, his appeal was dismissed. It is an inescapable and important fact of the history thus far that it is not suggested that that decision of the Employment Appeal Tribunal was erroneous. We know nothing of any attempt to take that decision to the Court of Appeal Civil Division.
4. Digressing for a moment, it is apparent from what we have been told by Mr Balamoody and/or Mr Galbraith-Martin, who has been assisting Mr Balamoody under the ELAAS Scheme, that Mr Balamoody has also commenced proceedings against UKCC and has been engaged in litigation in the High Court as well as in the Employment Tribunal and the Employment Appeal Tribunal arising out of his grievance, which we perceive to be a single grievance, however it is formulated and reformulated. Sadly for Mr Balamoody, his litigation efforts have not so far borne fruit, although we are told that the Court of Appeal Civil Division has recently granted permission to appeal in respect of a case in which UKCC is the Respondent.
5. We now revert to his claims against the Manchester Health Authority in our jurisdiction. His original case having ground to a halt in March 1999 when the Employment Appeal Tribunal dismissed his appeal, earlier this year he commenced fresh proceedings in the Employment Tribunal against Manchester Health Authority. Again, his complaint is one of race discrimination and victimisation. He sets out his grievance about Manchester Health Authority having reported him to the UKCC in order to have his nursing qualifications struck off. He set out his case on the basis of less favourable treatment. Once again his case came before Miss A F W Woolley in the Employment Tribunal. On this occasion Miss Woolley struck it out on the ground that it is frivolous. The important passage in Miss Woolley's Extended Reasons is to be found in paragraph 6 which reads as follows:

"I accept that all the present complaints of the applicant against the Health Authority were those litigated in those previous proceedings. I find that the applicant is wrong when he says that they are new complaints. I accept he may well have new evidence on which he wishes to reply but that does not make them new complaints. They are old claims which he has put forward on which he hopes to have new evidence. I find that the applicant may not now pursue those claims because the law provides that the parties to a dispute can only re-open it in certain ways and on certain issues. This is not within the category of the ways in which the disputes can be re-opened. I find that these matters are res judicata."

Miss Woolley came to certain other decisions and has helpfully filled in some of the jurisdictional and argumentative gaps.

6. The new evidence to which Miss Woolley was referring is the attempt by Mr Balamoody to rely on the circumstances of another nurse. That other nurse is a white woman who was prosecuted by the Manchester Health Authority under provisions of the Registered Homes Act 1984 and was convicted of some but not all of the offences with which she was charged. The date of conviction was 8 March 1999 and Mr Balamoody states that he only became aware of the material facts on 27 January 2001. His complaint is that that nurse was not reported to UKCC and has not been struck off. We have no doubt at all that the Employment Tribunal was correct to characterise all this, not as a new case or new complaint, but as further evidence in support of the old case. After all, all the decisions relating to Mr Balamoody about which he seeks to complain were made some years before the case of this other nurse arose.
7. We have come to the conclusion that Mr Balamoody's 2001 application was properly struck out by the Employment Tribunal on the basis that he was seeking to re-litigate the case that had previously been advanced, but, it is accepted, properly rejected by the Employment Appeal Tribunal in 1999. Although this seems to us to be a matter of certainty and to put Mr Balamoody in a position where the present appeal has no prospect of success so that it will not be allowed to proceed beyond today's hearing, we are bound to say that on purely personal grounds we have some sympathy with Mr Balamoody. He is a litigant in person, albeit one of considerable skill and intelligence, and albeit that he has had the benefit of Mr Galbraith-Martin's commendable services today. We have concentrated on this case as a case within our own jurisdictional field. We do not pretend to know or to comprehend the issues that may or not arise in relation to the case against UKCC, nor do we venture into the law relating to registered residential homes. It is apparent from the history that one of the jurisdictional points that went against Mr Balamoody in his original application to the Employment Tribunal and his first appeal to the Employment Appeal Tribunal related to the relationship between the jurisdiction of those bodies and the jurisdiction of the Registered Homes Tribunal. It is possible, we say no more than that, that the Registered Homes Tribunal was not correct in declining to become involved in the allegation of discrimination. However, that can not affect the decision that we have to make here within the four corners of the Race Relations Act and the law as it applies in the Employment Appeal Tribunal.
8. It is our collective view that Mr Balamoody has addressed us with great courtesy and diligence. It is also our view that a litigant in person faced with the interwoven and overlapping provisions of complex legislation in different areas inevitably faces considerable difficulties. We wish that the law were not as complicated as it is. It is for those reasons that we are minded to express the sympathy to Mr Balamoody which I have already expressed. However, that does not enable us to find any legal peg upon which to hang a ground of appeal on a point of law which would have any prospect of success in this Employment Appeal Tribunal. At one point it was contended by Mr Balamoody that he could avail himself of the judgment of the Court of Appeal in Care First Partnership Ltd v Roffey [2001] IRLR 85. However, it is abundantly clear that that decision was not concerned with interlocutory strike out on the grounds that are claimed as frivolous, but was concerned with whether there was an additional power to strike out on a basis of:

"No reasonable prospect of success."

at the commencement of a substantive hearing. That is not the procedural field in which we find ourselves here.

9. We should add for completeness sake that Mr Balamoody did apply to the Employment Tribunal for a review of the decision whereby he was struck out on the basis that his claim was frivolous. The Chairman, Miss Woolley, declined to review the matter on the ground that:

"It [that is the review] has no reasonable prospects of success."

It seems to us that that decision was inevitable, as indeed we are sorry to say, is ours. Therefore this appeal will be dismissed on the basis that if it were to go any further it would have no prospect of success.

10. We express our gratitude to you Mr Balamoody and also to you Mr Galbraith-Martin for your assistance through this complex history.