Kenbata v Unison [2015] EWCA Civ 604

Case No A2/2014/2428[2015] EWCA Civ 604
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE PETER CLARK)
Venue Royal Courts of JusticeDate Friday, 15 May 2015
Strand
London, WC2
B E F O R E:
LADY JUSTICE SHARP
Between
KENBATAApplicant-v-
Between
UNISONRespondent
(Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
The Applicant appeared in person for in person for The Respondent did not appear and was not represented
J U D G M E N T

LADY JUSTICE SHARP:

[1]This is a renewed application for permission to appeal against the order of His Honour Judge Peter Clark. That order was promulgated on 24 June 2014.[2]The judge decided that there had been no error of law in the Employment Tribunal's decision to strike out the applicant's race relations claim as hopeless. He also found that the Employment Tribunal was entitled to characterise the claim as vexatious and therefore order him to pay the costs, but the judge reduced the amount the applicant had to pay on the ground that the Employment Tribunal did not give reasons for finding that it was inappropriate to consider the applicant's limited means when ordering him to pay the costs. The parties consented to the judge dealing with the issue of costs and he reduced the costs order from £1,800 plus VAT to £500 excluding VAT.[3]The applicant was employed by Hertfordshire County Council ("HCC") in their highways department from 29 November 2005. He joined the respondent union on 25 May 2012 after having been warned that he was not matched to a post in a restructuring exercise being carried out by HCC. He was dismissed by reason of redundancy on 30 September 2012.[4]The applicant overheard a conversation between two officers of HCC, a Mr Patel, the claimant's line manager, and Mr Hennessey, the transition manager, which he recorded on his telephone. In part of that conversation it was said that Mr Price, the union branch secretary, had raised the applicant's case with Mr Hennessey and questioned whether the applicant's non-assimilation into the new structure was because of his race. This formed the basis of the applicant's claim for race discrimination against the union, a matter justiciable under section 57 of the Equality Act. He said that in raising the issue of his race in connection with his position in the proposed restructuring without his permission, the respondent union Unison through Mr Price was treating him less favourably than a white member of the union. The detriment was said to be the adverse effect this allegation might have on his claim for redundancy.[5]Mr Kenbata, who appears in person this morning, has produced some further written arguments which I have read, and in addition his skeleton argument, which was produced for the purposes of the hearing before the judge. He draws my attention to paragraph 16 of that skeleton argument, where reference is made to the detriment he says he suffered as a result of the act of discrimination, which include:
"Injury to feelings, a loss of confidence and trust in the transformation process in which Mr Price and Mr Hennessey [were involved], the disruption caused to my preparation for the HCC transformation process and the eventual withdrawal of all advice and support by the respondent as a result of this case. I was also made redundant by HCC."
[6]The focus of his arguments for today is that part of his case where he says that the detriment included injury to feelings and loss of confidence. Mr Kenbata says that these matters were not considered as they should have been by the EAT.[7]The claim was, I am afraid, hopeless for the reasons articulated by the judge at paragraphs 7 to 12 of his judgment The further point which Mr Kenbata relies on this morning does not in my view undermine in any way the reasons the judge gave for rejecting Mr Kenbata's appeal.[8]First, the applicant had in fact raised the possibility of race discrimination with HCC, both before and after the conversation with Mr Patel. The factual assumptions therefore by Mr Price were correct, as the judge said. In those circumstances, while it may be assumed Mr Price would not have raised the point in relation to a white trade union member, applying the approach of Mummery LJ in Madarassy v Numura International [2007] ICR 867, this did not, without more, raise the spectre of race discrimination.[9]Secondly, it cannot, as the judge said, be detrimental for a trade union representative to raise the possibility of race discrimination on behalf of a black trade union member who has himself consistently raised that allegation.[10]Third, there was a finding that there was no evidence that the applicant's non-assimilation into the new structure and his eventual redundancy was race-related. The judge said that this was a permissible finding by the Employment Tribunal and no grounds have been advanced for this court to go behind the decision of the judge, or the Employment Tribunal on its finding of fact.[11]I turn next to the issue of costs. The Employment Tribunal decided the applicant's claim was vexatious because it was hopeless and because it was brought with the improper motive of improving his potential case against HCC. I should mention that it emerged in the Employment Tribunal hearing that the applicant had lodged a separate racial discrimination claim against HCC on 28 August 2012, which was also dismissed, and subsequently to the Employment Tribunal hearing this claim but by a different Employment Tribunal. That factual finding as to motive was not challenged by the applicant in his grounds of appeal to the judge. It was therefore not open to the applicant to challenge them below and it is not open to him to do so today. The finding of vexatious litigation in the Marler sense, see Marler v Robertson [1974] ICR 72 at 76E, must therefore stand.[12]The application as it is put in the papers, and as Mr Kenbata has carefully elaborated this morning, raises no point which is capable of surmounting the relevant threshold for an appeal. Accordingly this renewed application is refused.