United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Ms N Sivanandan (The Appellant in Person)
For the Respondent	Mr C Quinn (of Counsel) London Borough of Enfield Solicitors Department PO Box 50 Civic Centre Silver Street Enfield EN1 3XA


 


Summary

Practice and Procedure – Estoppel or abuse of process

No grounds for re-opening the judgment of Judge Clark on an earlier appeal arising out of the same order. Judge Clark's judgment determinative of this appeal.

Costs

Limited order for costs against Appellant.


 


HIS HONOUR JUDGE RICHARDSON

1. This is an appeal by Ms N Sivanandan against a judgment of the Employment Tribunal dated 18 March 2005 sitting in Stratford by Chairman alone. The Chairman, Mr Lamb, struck out in part complaints by her in an Originating Application dated 17 February 2004. The complaints were against her former employers the London Borough of Enfield ("Enfield").
2. The appeal comes before me in somewhat unusual circumstances. It is the second appeal from the same judgment. Enfield also appealed, arguing that the proceedings should be struck out altogether. Enfield's appeal was first, it was heard by Judge Clark on 26 July 2005. In a judgment delivered on 12 September 2005 he allowed Enfield's appeal, and struck out the proceedings in their entirety. Ms Sivanandan applied for permission to appeal to the Court of Appeal. On 5 May 2006 there was an oral hearing of her application for permission to appeal. It was refused.
3. It is not unusual in the Appeal Tribunal for both parties to serve Notices of Appeal against the same decision. Usually the matter is noted by Appeal Tribunal staff, and a judge orders the two matters to be heard together. But on this occasion the matter was not noticed. Ms Sivanandan's appeal progressed more slowly, because it was at first considered it had no prospects of success at all. On 7 December 2005 there was a hearing before Mr Burton J, then the President. He was persuaded that two of the grounds were arguable and should go through to appeal. Unfortunately Ms Sivanandan did not tell him that she had lost the first appeal and was appealing to the Court of Appeal. If he had known of it, he would in all probability have stayed her appeal pending the outcome of the application to the Court of Appeal. Ms Sivanandan tells me, and I am perfectly ready to accept for present purposes, that she assumed Burton P would know all about the first appeal. That is the reason why she did not mention it to him.
4. Today is the full hearing of the appeal as directed by Burton P. The difficulty which Ms Sivanandan faces is obvious and it was pointed out by Burton P in a judgment sent to the parties after he appreciated that the first appeal had taken place and was being appealed in term to the Court of Appeal. He said:-

"It is clear that Ms Sivanandan's appeal to expand her post-discrimination claim is entirely dependent and parasitic upon the survival of her post-discrimination claim at all."

He also said:-

"It is plain that if Ms Sivanandan's application for permission to appeal Judge Clark's order to the Court of Appeal fails for whatever reason, this parasitic appeal must fall away."

Once the Court of Appeal reached its decision, the stay was removed and the appeal has been listed.

5. Today Ms Sivanandan seeks to argue that it is not the case that her appeal is parasitic upon the earlier appeal, and in any event she seeks to argue that Judge Clark was wrong and that I should reopen issues which he decided against her. At my instigation these points have been argued first. I have heard Ms Sivanandan arguments upon them. For reasons which I will explain later in this judgment, she has submitted to me that she was surprised that any such issue arose today. But she did of course come, as her skeleton argument makes claim, fully prepared to argue that Judge Clark's decision was wrong.
6. In order to deal with these matters I must first set out some of the procedural history. Fortunately the course of this history has been summarised more than once in earlier proceedings by the Court of Appeal. I will say no more than is absolutely necessary for today's purposes.

The First Tribunal Proceedings

7. Ms Sivanandan was employed by Enfield as a racial equality officer between 22 July 1996 and 11 December 1996. She worked within an organisation known as the Enfield Race Equality Council ("EREC").
8. On 8 March 1997 she presented a complaint to the Tribunal. She complained of racial discrimination, victimisation, unfair dismissal, breach of contract and sex discrimination. One of her complaints related to post-discrimination matters. She said:-

"I believe that after my dismissal the EREC director and EC continued to discriminate against me and victimise me, by not responding to my letters and complaints and not responding to the complaints of EREC clients and others who made enquiries or complaints about my dismissal."

Later she said:-

"I believe that there were unfair and unreasonable application of grievance and disciplinary procedures, breaches of principals and natural justice and breaches of good employment and equal opportunities, procedures and practices following my complaints about, amongst other matters, racial discrimination and victimisation to my detriment. I believe I have been less favourably treated on grounds of my race and because I have raised issues about racism, racial discrimination and victimisation and because I intended to take action under the Race Relations Act 1976."

9. There were preliminary hearings at which the Tribunal determined Enfield to be her employer and determined that she had been dismissed on 11 December 1996. A full hearing of the proceedings was listed for September 2000. On 6 September 2000 the proceedings were struck out. In summary, they were struck out because her conduct at and of the proceedings on 5 September made it impossible for the hearing to continue. An appeal to the Employment Appeal Tribunal was dismissed on 23 July 2002. An application for permission to appeal to the Court of Appeal was refused on 7 October 2002.
10. On 10 December 2002, the very last day of the limitation period for contract claims, Ms Sivanandan commenced proceedings in the High Court for breach of contract. These proceedings were in due course struck out, Ms Sivanandan unsuccessful appeal to the Court of Appeal being determined on 20 January 2005.

The Second Tribunal Proceedings

11. In the meantime Ms Sivanandan commenced further proceedings in the Employment Tribunal by an Originating Application dated 17 February 2004. She said that she did so by reason of a concession allegedly made by Enfield during the High Court proceedings. Many different Respondents were named in the Originating Application, but there is no appeal from a Tribunal order striking out all but Enfield. Against Enfield the claim was for post-termination discrimination and victimisation by failing to give her access to contractual grievance and disciplinary procedures and to address serious complaints that she had made. This conduct was alleged to have continued from 1996 or 1997 to date and to amount to a "continuing act". But particular reference was made to an exchange of correspondence in November 2003, which was said to constitute further discrimination and victimisation within the 3 month primary time limit for an application to the Tribunal.
12. The Chairman struck out all claims apart from the claim for post-termination discrimination based on the correspondence in November 2003. As to this he said:-

"The fact that there have been the previous proceedings which I have recited and the passage of time are not factors which should compel the Tribunal towards a disproportionate response by striking out the contents of the Originating Application in their entirety. Obviously the request made in November was a repetition of a request made years previously but it was triggered by a new event, the concession in the High Court proceedings and is not therefore to be treated as mere repetition."

13. The Chairman held that all claims prior to November 2003 were out of time. There was no continuing act because there was no reference to any action between 1998 and 2003. It was not just and equitable to extend time.

Enfield's Appeal

14. As I have said, Enfield's appeal was heard first. It was successful. The appeal was struck out. Judge Clark upheld Enfield's argument that the Tribunal ought not to have permitted Ms Sivanandan to bring fresh Tribunal proceedings raising a complaint which was or should have been raised in the original Tribunal proceedings which was struck out in September 2000.
15. He accepted that she should have raised, and found that in fact she did raise, her present complaint in the earlier proceedings. It was therefore before the Tribunal when the Tribunal struck the proceedings out. He accepted and acted on familiar principles dating back to Henderson v Henderson [1843] 3 Hare 100. He saw no exceptional circumstances which would allow the claim to proceed. He concluded:-

"In my judgment the present complaint is an abuse of the process. It is an attempt to re-litigate a complaint which was or ought to have been raised in the first complaint which has been struck out. It is not a question of proportionality as the Chairman held. The present claim ought to have been struck out as an attempt to re-litigate a decided issue."

16. As I have said, permission to appeal was refused by the Court of Appeal. Gibson LJ said that he was not persuaded that Ms Sivanandan had a real prospect of succeeding on submissions for the reasons given by HHJ Clark. He said in response to one particular point:-

"There is no reason to confine her general undated complaints to pre-termination events. Once the Tribunal ruled in her favour that Enfield was her employer she did not amend her IT1, however, she was well aware of her rights under her contract of employment to Enfield's grievance and disciplinary procedures; hence the reference to such procedures in her IT1 and her expressed pleading to that effect in the amended particulars of claim in the County Court case."

Ms Sivanandan's submissions and my conclusions

17. I asked Ms Sivanandan to address me as I have said first of all on the question how her appeal could survive in the allowing of her cross appeal under striking out of the proceedings. She made the following submissions to me.
18. First, she submitted that she had a legitimate expectation that the appeal would be heard because of a dictum by Sedley LJ when dealing with an application by Enfield for an extended civil restraint order. A judgment was handed down on 29 June 2006.
19. In paragraph 7 of his judgment Sedley LJ said the following:-

"From that point on the proceedings pursued by Ms Sivanandan beginning with the allegations in the initial claim which was eventually struck out in September 2000 and continuing through the other actions and claims by which she has sought to replicate her case have been unsuccessful and in considerable part misconceived. The single possible exception which will not be affected by the present application is the appeal currently pending in the Employment Appeal Tribunal which the Employment Appeal Tribunal must now deal with on whatever merits it possesses."

Ms Sivanandan submits that this means that any appeal on this matter must be an appeal on the merits set out in her grounds of appeal. In other words she is entitled to have the Appeal Tribunal address her substantive grounds without any reference to the question whether in effect her appeal has been disposed of by the judgment of Judge Clark.

20. I reject that submission. In my judgment it places a weight on the words of Sedley LJ which he cannot possibly have intended. All he was saying was that her proceedings from September 2000 onwards if not before, had been unsuccessful and in considerable part misconceived. The outstanding matter in those proceedings which had not been ruled on was the appeal before the Appeal Tribunal with which I now have to deal. Sedley LJ was concerned simply to say that the Appeal Tribunal must deal with it in accordance with law and was not precluded by anything in the application with which he was dealing from considering this matter.
21. Secondly, Ms Sivanandan submitted that the hearing that she had before Judge Clark was unfair for two reasons. Firstly, she submitted, Judge Clark did not know about her appeal and therefore he did not have the advantage of hearing her argument on other matters relating to post termination discrimination. Secondly, she submitted that the hearing in front of Judge Clark was unfair because he produced authority shortly before the hearing to which she did not have any proper opportunity to reply. If she had done she would have been able to bring to the attention of Judge Clark authority in her favour, such as, for example, BCC v Keeble which would have persuaded Judge Clark to take a different view of the case. She also submitted that her hearing before the Court of Appeal on the question of leave was unfair. She told me that the Court of Appeal had not had her skeleton argument (as opposed I think to her counsels skeleton argument) at the time when it determined the application for permission to appeal. But she also told me that the Court of Appeal then looked at that document over an extended lunch break and I have no doubt that if there had been anything in it which could have persuaded the Court of Appeal to take a different view it would have reopened the question of permission to appeal.
22. I do not accept that Judge Clark in any way dealt unfairly with Ms Sivanandan or for that matter that there was any unintentional unfairness at the hearing. The matters with which her appeal is concerned relate to what would have been, if the two appeals had been merged, a cross appeal logically following after the first appeal. Judge Clark would not, in determining the issues on the first appeal, have benefited from argument on what would have been a cross appeal. As to authorities BCC v Keeble is directed to the question when it is just and equitable to extend a time limit. That is a very different issue to the issue with which Judge Clark had to deal.
23. Thirdly Ms Sivanandan submitted that Judge Clark was simply in error in the principal conclusions which he reached. She said that he was in error to say the either her post discrimination claim against Enfield was or that it should have been part of the first Tribunal proceedings. Further she sought to argue that Judge Clark was in error in dealing with the relevance of general knowledge in 1997 and thereabouts of the right of an application in relation to post termination discrimination.
24. I reject those submissions. In the first place, I simply do not consider that it is right and appropriate for me to reopen arguments of law which have been determined by Judge Clark and considered by the Court of Appeal on an application for leave. But even if it were right it seems to me that Judge Clark reached the correct conclusion for the correct reasons.
25. Fourthly Ms Sivanandan sought to persuade me to exercise a Taylor v Laurence jurisdiction. She submitted that this was a case which under that jurisdiction might be reopened. The invocation of a Taylor v Laurence jurisdiction (now encapsulated in CPR 52.17) would be a course to be taken in front of the Court of Appeal if there were any merit in it. There is, in my judgment, on the basis of what Ms Sivanandan said to me no merit in it in any event. The circumstances of which she has told me do not come within measurable distance of meeting the Taylor v Laurence criteria. As I say if it were to be raised at all it would be a matter for the Court of Appeal but I do not wish to give the slightest encouragement to any such application which would, in my judgment, be misconceived.
26. Ms Sivanandan also submitted that Judge Clark erred in law in failing to take her case at its highest when determining the first appeal. I do not accept that Judge Clark made any such error. What he had to do was to evaluate the question of whether the post termination discrimination claim was or should have been in the first Tribunal proceedings. He did precisely that and in my judgment his conclusion was correct.
27. I return finally then to the starting point. Is it correct that this appeal is parasitic upon the first appeal now determined against Ms Sivanandan by Judge Clark and now finally at an end, leave to appeal having been refused. In my judgment it plainly is. The reasoning of Judge Clark which prevented her from bringing a claim based on correspondence in 2003 would equally apply to any post termination claim of a similar nature.
28. For those reasons the appeal will be dismissed.

Judge's Note

Later on the same day I gave judgment on an application for costs. That judgment was given with reasons. It is not included in this judgment.