United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR WILLIAM D PANTON (Of Counsel) Instructed by Messrs Russell Jones & Walker Solicitors 4th floor Brazennose House Brazzennose Street Manchester M2 5AZ


 


JUDGE PETER CLARK

1. The history of this matter is that Mr Murali, who is of Indian ethnic origin, joined a specialist registrar training programme for overseas doctors in April 1996. He was employed at Greenwich District Hospital on a 1 year fixed term contract which expired on 30 September 1997. He was informed by a letter dated 14 February 1997 that his time on the training scheme would end at the expiry of his fixed term contract. The contract was not renewed and his training was treated as having terminated on the expiry date, 30 September 1997. He was informed of that decision by letter dated 10 September 1997.
2. On 7 April 1998 he presented an Originating Application to the Employment Tribunal (the first complaint) complaining of race discrimination and breach of contract, naming the same 3 Respondents as those who are Respondents to this appeal. The Respondents took the point that those complaints were out of time and an Employment Tribunal sitting at London (N) chaired by Mrs M H Don upheld that submission by a decision (the first decision) promulgated on 1 July 1998 following a hearing held on 19 June 1998.
3. On 23 September 1998 that same Employment Tribunal was reconvened to determine whether it would be just and equitable to extend time for the Appellant to bring his original complaint of race discrimination notwithstanding that it was out of time and to consider the question of reasonable practicability in relation to the breach of contract claim. Those issues were resolved in favour of the Respondents and the first complaint was dismissed by a decision (the second decision) promulgated with extended reasons on 6 October 1998.
4. On 22 December 1998 the Appellant presented a further Originating Application (the second complaint) naming the original 3 Respondents and complaining of breach of contract, racial discrimination and victimisation.
5. The second complaint came on for hearing before a different Employment Tribunal, chaired by Mrs E Prevezer, on 27 March 2000. The question was whether the second complaint raised a fresh cause of action which could not have been litigated before the Don Employment Tribunal. The Prevezer Employment Tribunal found that it did not for the reasons given with a decision promulgated on 6 April 2000 (the third decision). It is against that third decision that this appeal is brought.
6. Before the Prevezer Tribunal Mr Panton, then appearing on behalf of the Appellant as he does before us today, accepted that the first 20 paragraphs set out in the particulars of complaint in the second complaint drafted by the Appellant himself raised matters which were properly to be regarded as res judicata in the light of the earlier Don Employment Tribunal decisions.
7. However, it was argued that the subsequent matters particularly in relation to correspondence which took place after 6 October 1998, gave rise to a fresh cause of action. We have considered the submissions which Mr Panton makes in support of that contention before us today and considered the reasons given by the Prevezer Employment Tribunal.
8. It seems pellucidly clear to us from the way in which the second complaint was drafted that what happened was that the Appellant continued to make requests for a review of the original decision not to extend his training. Going back to 2 September 1997 that correspondence finally terminated with a letter from the Respondents dated 30 November 1998. We have no doubt that the Prevezer Employment Tribunal was entitled to conclude that the Appellant was simply going over old ground raising matters which could or should have been raised before the Don Employment Tribunal sitting in 1998. See Divine-Bortey-v-The London Borough of Brent [1998] IRLR 525. They were entitled to conclude in our judgment that the second complaint raised no new cause of action which could not have been previously litigated and in these circumstances and for the reasons which they gave they were entitled to dismiss the second complaint.
9. Having dismissed it the Respondents made an application for cost which was successful to the extent that the Prevezer Employment Tribunal awarded cost in the sum of £300 against the Appellant. We see no grounds for interfering with the finding that the Appellant acted unreasonably in pursuing his second complaint in the light of the Don Employment Tribunal decisions in relation to the first complaint.
10. In these circumstances we shall dismiss this Appeal.