Banai v Southend Health Authority (Southend Hospital) & Ors [1991] UKEAT 102_90_2009

EAT
Banai v Southend Health Authority (Southend Hospital) & Ors
[1991] UKEAT 102_90_2009 · 1991-09-20
MR JUSTICE WOOD (PRESIDENT): We have before us four Appeals by Dr Banai. They are Preliminary Hearings in that we hear one side only and we are looking to see whether the Decision in each case discloses an error of law which merits further argument. It is only if there is an error of law that this Court can hear an Appeal and interfere.There are four cases numbered EAT 102/90; EAT 173/90; EAT 293/90 and EAT 138/91. We have heard them one after the other as a matter of convenience, and we are grateful to Dr Banai for stating clearly what his objection is in each case and how he would put his Appeal.The first one is the case against Southend Health Authority (Southend Hospital) EAT 102/90. In that case the Originating Application was "struck out" on the grounds that it was frivolous.An application had been made by Dr Banai to the Southend Health Authority for the post of Senior Grade Physicist in April 1988 and it was conceded that any application in respect of that matter would have been out of time. But in January and February 1989 Dr Banai saw an advertisement for a Senior/Basic Grade Physicist with the Southend Health Authority. He sent a postcard to a Dr Peter Rudd asking that his previous application be reconsidered.The Tribunal heard the Applicant and considered the matter, and they put his case in this way in paragraph 9 of the Decision they say:
"The applicant's case is that he does not normally begin proceedings under the Race Relations Act when he fails to get a response to a job application. He concedes that there may have been a good reason why he did not receive the Senior Physicist post when he applied in 1988, but since this later application in January 1989 was at the basic grade, his not being short-listed must have been on the grounds of race discrimination."
The Tribunal then look at the advertisement and consider the question of the postcard and how it should be dealt with; they say this in paragraph 11:
"The Tribunal finds that the applicant made no job application in January 1989 and his postcard requesting that his previous application be reconsidered was not addressed to the proper quarter. The applicant made no attempt to follow up his postcard to Dr Rudd by contact with the Unit Personnel Department, or with Dr Rudd whose telephone number was within the advertisement."
They therefore find that there was no application within time; it was not even an application; they therefore strike that case out as frivolous pursuant to the Industrial Tribunal Rules.Dr Banai appealed against that Decision by a Notice of Appeal that was some twelve days out of time and that Notice of Appeal was rejected. He also applied for a Review and his letter applying for a Review is dated 16th August 1989.The decision on the application for Review is promulgated on the 8th September 1989 and that decided in paragraph 3:
"The respondent pleaded that there was no record of the postcard being received. The Tribunal accepted the applicant's evidence that a postcard was sent to Dr Rudd, but found as a question of fact that it did not amount to being a job application addressed to the proper quarter."
That was because there was some difficulty over the evidence but the Tribunal accepted Dr Banai's own evidence and they rejected his application for Review.It is from that decision to reject the application for Review that this Appeal now proceeds.The basis put before us by Dr Banai is contained in that letter to which we have already referred of the 16th August 1989. The basis of the criticism for the refusal to Review is reference to a Department of Chemistry at the Imperial College; the fact that it is said that that Department has been discriminatory and the main part of the letter is dealing with that aspect. Right at the end there is a possible suggestion that by not replying to the postcard there was victimisation, then he comments on the Full Reasons and suggests that there are many errors of law.It seems to us that the Decision was based on a simple finding of fact, namely, that there had been no application when that postcard was sent, that therefore there was no basis for the allegation being made and that the application was frivolous.As to the Review it simply turned on a further criticism of the issue of fact. The other matters raised by Dr Banai had not been raised before the Tribunal at the main Hearing and it seems to us that there is no error of law in that Decision or in the decision over the Review, bearing in mind the Rules of Industrial Tribunals in those matters.That Appeal is dismissed at this juncture.The second one is the case brought by Dr Banai against Associated Nuclear Services. EAT 173/90.This was a more complicated matter, the Tribunal sitting in London (South) under Mr Bano on the 13th November 1989 dismissed the application and awarded a sum of £500 costs against Dr Banai.The complaints were of racial discrimination. The Originating Application was dated the 20th May 1989 and there were two bases; the first, that over a two year period Dr Banai had applied for a number of appointments but was not invited to interview and also that he had been discriminated against for other reasons.There were four applications made by Dr Banai to the Respondents, Associated Nuclear Services. That Company was established in 1967 and provides engineering and scientific consultancy services to a number of clients; it also specialises to a lesser extent on safety related issues in the oil and gas industries. It has two technical departments and the Managing Director was Dr Woodfine who gave evidence before the Tribunal. The number of staff employed was about sixty.The first of Dr Banai's four applications was what is called a "speculative" application but the other three were in response to advertisements placed by the Respondents in, I suppose, a scientific paper called "The New Scientist".The first advertisement which is referred to as 88/1 was "for a suitably qualifiedstaff to work in the area of Environmental Safety". He was advised of his rejection on the 14th March 1989.The second advertisement was described as 88/7 and that was for "both experienced personnel and recent graduates in physics, chemistry or mathematics to work on Safety Assessment" his rejection in this case was dated 25th July 1988.Then thirdly, there was an advertisement described as 89/6 which was for "suitably qualified biological and environmental scientists" and the rejection there was dated the 5th May 1989.The Tribunal note that in his final submissions Dr Banai did not seek to pursue his allegation of direct discrimination and therefore they were considering indirect discrimination under Section 1(1)(b) of the 1976 Act.The first of the requirements related in the submission of Dr Banai to age discrimination. He relied on the well known case of Perera v. Civil Service Commission and the Department of Customs & Excise [1982] ICR 350 and in the Court of Appeal [1983] ICR 428. The suggestion was that the criteria were in effect age criteria and that a smaller proportion of persons or particular racial groups could comply with it.The Industrial Tribunal consider that matter and also consider the wording of the various advertisements. They in fact reject it. They do so in paragraph 8 of the Decision which reads as follows:
"Advertisements 88/1 and 89/6 both specify that applicants should be`graduates in the biological, chemical or environmental sciences, preferably with a minimum of two years relevant experience'. In relation to advertisements 88/1 Mr Martin, whose evidence we accept, told us that the respondents were essentially seeking staff with an interest in environmental matters, including biologists, who would be able to carry out work on the behaviour of radioactivity in the human environment. The respondents were also interested in chemists, although their requirement was closer to environmental chemistry. Mr Martin said that it was decided not to invite the applicant for interview for this vacancy because his qualifications and experience were not relevant and because in his application form the applicant did not identify any aspect of environmental work as being of interest to him. The company's requirements were similar in respect of advertisement 89/6 and the applicant's qualifications were again not relevant."
They reject the criteria based on age.They then consider the second basis of the submission which was that the Respondents were demanding "exceedingly relevant experience".The Tribunal comment that the vacancies required expertise in the "life sciences" or very closely related disciplines for the assessment of the environmental impact of releases of radioactivity and then they continue:
"we are satisfied that the selection criteria which the respondents applied were those which they genuinely considered necessary for the posts concerned. We accept that the applicant's qualifications were not relevant to those positions and we have, in any event, no evidence that the qualifications or experience specified by the respondents favoured any particular racial group."
Thus Dr Banai's case on indirect discrimination was rejected after careful consideration.The Tribunal also rejected his complaint of victimisation and indeed on issues of time they find that three applications were out of time and they do not consider it right to exercise their discretion on the just and equitable ground to extend time. So there are many ways in which they find Dr Banai fails in his application.The Tribunal then go on to consider costs.In his Notice of Appeal Dr Banai goes back to the principles of Perera v. Civil Service Commission and the Department of Customs & Excise [1982] ICR 350, and he in effect was arguing to us with great clarity the points that he had already made to the Industrial Tribunal. He was arguing the age bar; he provided for our help, an analysis of the Applicant's ages; qualifications and so on which had been before the Tribunal. Before us his case really was that the Tribunal were wrong in the view of the facts which it had taken, but as he knows well the issue before us is whether there is an error of law, which is disclosed on the face of the documents which indicates that a full Hearing should take place. The phrase he uses is:

"a rehearing with another tribunal with more professional insight"

that ought to take place and he also challenges the Decision on costs.We have taken some time and care to look through the whole of that matter, as is indicated by the length of that part of our Judgment, but we are quite unable to discern any error of law and that Appeal also must be dismissed at this stage.The third Appeal is number EAT 293/90 and this is a shorter matter.The application in this case is against Imperial College of Science and Technology and secondly, the Science & Engineering Research Council.The reason for the second Respondents being cited, we understand from Dr Banai, is that although the appointment is made by the Imperial College the appointment has to be approved by the Science & Engineering Research Council.In this case Dr Banai presented an Originating Application on the 14th August 1989 and it was in respect of two applications. First, for the post of a Lecturer in Mechanical Engineering; and secondly, for a PDRA appointment in Oxide Superconductors, and those posts are both at the Imperial College of Science.The first application was made in January 1989 and he was informed on the 26th January that he had not been included in a short list.The second application was made on the 12th July 1989 and he was informed on the 29th July that he could not be offered the post.It follows from those dates quite clearly that his complaint to the Industrial Tribunal on the grounds of discrimination was "in time" in respect of the second application, but "out of time" in respect of the first application and it is the Decision of the Industrial Tribunal that he should not be allowed to proceed with his substantive allegation on the first application in respect of the post of Lecturer in Mechanical Engineering. The Tribunal also did not see fit to extend time under the just and equitable clause in Section 68(6) of the Race Relations Act 1976.The point made here by Dr Banai is that the first substantive allegation should not have been struck out, or not proceeded with because it could be evidence which was relevant to the way in which Imperial College and the Science & Engineering Research Council were conducting their appointments. That was not something that was decided against him by the Industrial Tribunal. Whether or not the Tribunal which hears the substantive allegation in connection with the second allegation allows that evidence to be called, being in some ways corroborative of the allegation of discrimination in respect of the second application, is not before us, it is entirely a matter for the Tribunal when that issue arises. But so far as the actual Decision in that case, namely that the first of the substantive allegations was "out of time", we can find no error in that part of the Decision.That Appeal therefore is also dismissed.The last case is one in which a learned Regional Chairman Mr Sara sitting at Bristol on the 8th February, 1991 "struck out" an application by Dr Banai under Rule 12(e), which is the "striking out" Rule, on the grounds that it was vexatious.Dr Banai did not attend nor was he represented. The Respondents The Bristol & Weston Health Authority, who were concerned in an earlier matter, in front of that Regional Tribunal, were represented by a Solicitor.However, there were written representation from Dr Banai and the learned Chairman considered all those matters. He took into account the fact, that in November 1989 an application had been made against the same Respondent claiming racial and sexual discrimination. But that had been dismissed with costs, and that he was aware of the reasons. Also there was a reference to a number of previous allegations. In considering whether the matter was frivolous or vexatious the learned Chairman took into account Section 42 of the Supreme Court Act 1981 and other matters connected with that Section.Those are matters which in our judgment need further argument. However, we see no reason why the Respondents, the Bristol and Weston Health Authority should incur further costs unless they particularly wish to attend on that occasion. In the circumstances and in the light of the very general approach of the learned Regional Chairman we shall ask the Treasury Solicitor to appoint an Amicus Curiae to argue the matter generally because it seems to us that there may be matters of general public interest in the light of the way in which the learned Chairman approached the matter.So that will go forward to a Full Hearing. We shall ask for the Treasury Solicitor to appoint Counsel as a Amicus Curiae and if he or Dr Banai would like any further directions as to documentation or other matters then application can be made to me alone at 10 o'clock any day on short notice and I will deal with any necessary directions for that Hearing.The estimated length of that Hearing is one day.