Mahlangu v London Borough Of Hackney Construction Services [1995] UKEAT 598_95_2007

EAT
Mahlangu v London Borough Of Hackney Construction Services
[1995] UKEAT 598_95_2007 · 1995-07-20
MR JUSTICE MUMMERY (PRESIDENT): This matter arises out of proceedings for race discrimination and victimisation brought by Miss Mahlangu in the Industrial Tribunal by two originating applications lodged on 26th October 1994 and 23rd February 1995. It is not necessary to examine the details of her complaints. They will be dealt with at a hearing before the Industrial Tribunal that has not yet taken place. It has not even been listed for hearing.The matter before the Appeal Tribunal arises out of enquiries initiated with the Central Office of Industrial Tribunals by Mr Kayode who now acts as the representative of Miss Mahlangu in proceedings against the London Borough of Hackney and Hackney Construction Services.The question discussed in correspondence and on the hearing of this appeal, is whether an Industrial Tribunal has jurisdiction under the Race Relations Act 1976 to grant an injunction against a respondent on the application of an individual applicant in Industrial Tribunal proceedings under the 1976 Act. The point has arisen in an unusual way. On 25th February 1995 Mr Kayode, who at that time was not representing Miss Mahlangu, wrote a letter of enquiry to the Secretary to Central Office of Industrial Tribunals at Bury St Edmunds. He said:

"Dear Sir/Madam

APPLICATION FOR AN EX-PARTE INJUNCTION

I need your help to find out what procedure I need to take to submit and obtain an ex parte injunction or prohibition. Who do I address and present such an application to? Should the application be in the format needed for the County Courts under County Court Rules and/or High Court under Supreme Court Practice? At what time of day should I submit to get a response within hours as it will be a matter of urgency as an application by interlocutory motion will be too late to stop and/or prohibit the event. I wish the tribunal to deal with?"He referred in the letter to various provisions in the legislation and to a decision and asked for advice on his query. That enquiry was forwarded on 28th February 1995 to the Industrial Tribunal office in Woburn Place to be considered by a Chairman. On 4th March 1995 a letter was written to Mr Kayode saying that the Regional Chairman of London (North) Region had asked the writer of the letter to inform Mr Kayode that the Industrial Tribunal has no power to grant an injunction to prevent acts of racial discrimination in the employment field. The letter referred to the provisions of Section 56 and 62 of the Race Relations Act 1976 , and commented on the decision in the case of Zarczynska v Levy [1978] IRLR 532 cited in Mr Kayode's letter of enquiry.On 6th March 1995 Mr Kayode, stating that he was the representative for Miss Mahlangu, wrote the Regional Office of North London at Woburn Place referring to the complaint lodged by Miss Mahlangu at the Industrial Tribunal. There was an attached application for an ex-parte injunction, which he asked to be considered. He asked as a matter of urgency for a decision by 7th March 1995 to enable for him to serve injunction on that day or on the 8th March 1995 before the event for which the injunction is sought started.The Tribunal wrote a letter on 25th(28th?) April 1995 to Mr Kayode saying:
"The Chairman to whom I have referred the file has asked me to inform you that an Industrial Tribunal has no jurisdiction to grant an injunction for reasons which have already been fully explained."
In those circumstances a Letter of Appeal was lodged with the Employment Appeal Tribunal on 7th June 1995. That is signed by Mr Kayode as "Representative for Miss Joyce Mahlangu". He states that the decision appealed against arises from an application made for an Ex Parte injunction and refused by a Chairman of Tribunal on the grounds that the Industrial Tribunals have no jurisdiction to consider an application for an Ex-Parte injunction. He referred to a letter of 28th February 1995 and a reply dated the 4th March 1995. He then set out the grounds on which brought the appeal. He said that the Industrial Tribunal were wrong in saying there was no power to consider the granting of an injunction under the Race Relations Act . The Tribunal has failed to take into consideration the decision of the Employment Appeal Tribunal that an Industrial Tribunal has jurisdiction to hear applications for an injunction. He relied on the case of Zarczynska v Levy . He complained that the Tribunal failed to consider, on the merits, the legal submissions that the Tribunal have jurisdiction. They failed to consider the documentation submitted for consideration on an Ex-Parte injunction. He made another reference in the grounds of complaint to the provisions of Order 29 of the Supreme Court Practice and concluded by saying that the Tribunal failed to recognise, consider or apply the various combinations of relevant sections within the framework and legal draughtsmanship of the Race Relations Act 1976 that establish, beyond reasonable doubt, that the tribunal has the same jurisdiction for interlocutory matters, mandamus, certiorari and prohibition (injunctions), as are exercised by County Courts.He made a further submission to the Employment Appeal Tribunal by letter of 6th July 1995.The question for decision on this appeal is whether there was a legal error on the part of the Industrial Tribunal Chairman in the decision that the application for the ex-parte injunction could not be entertained, because the Industrial Tribunal have no jurisdiction to grant it. Mr Kayode argued that there was jurisdiction. Mr Wolfe, for Hackney, argued that there is no jurisdiction.In his oral submissions Mr Kayode elaborated on his written argument. He accepts that he is unable to point to any specific section in the 1976 Act (or in any other Act) which expressly confers jurisdiction on an Industrial Tribunal to grant an injunction in an employment dispute. He referred to various sections of the 1976 Act, in particular Sections 1, 4, 53, 54, 56, 63 and the transitional provisions in paragraph 2 of Schedule II to 1976 Act. He also referred to the provisions giving jurisdiction to this Tribunal in Section 136 of the Employment Protection (Consolidation) Act 1978 , and to the provisions of Schedule 11 to the 1978 Act and the powers in paragraph 22. I have looked at those provisions. I have also looked at the authority relied on by Mr Kayode since his early correspondence with the Industrial Tribunal Zarczynska v Levy .In my judgment, none of those statutory provisions or authorities support the proposition advanced by Mr Kayode on the matter of jurisdiction. I accept the submission, made on behalf of Hackney by Mr Wolfe, that an Industrial Tribunal has no jurisdiction to grant an injunction for the following reasons. An Industrial Tribunal is a statutory body. It only has such powers as are conferred on it by statute. There is no provision in the Race Relations Act 1976 which gives it the power to grant an injunction. The Industrial Tribunal does not have any inherent or general jurisdiction. Nothing cited in the Zarczynska case points to the contrary. The specific statutory provisions which relate to injunctions in race relations matters are not applicable to proceedings before an Industrial Tribunal. They are not applicable to proceedings brought by an individual in an Industrial Tribunal alleging discrimination in the employment field.In those circumstances this appeal must fail. There was no error of law on the part of the Industrial Tribunal in declining jurisdiction to entertain the application for an ex-parte injunction. The appeal is dismissed.

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MR JUSTICE MUMMERY (PRESIDENT): Following the dismissal of the appeal an application has been made Mr Wolfe for an order for costs under Rule 34 of the Employment Appeal Tribunal Rules 1993 . That provides:
"34.-(1) Where is appears to the Appeal Tribunal that any proceedings were unnecessary, improper or vexatious or that there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings the Tribunal may order the party at fault to pay any other party the whole or such part as it thinks fit of the costs or expenses incurred by that other party in connection with the proceedings.
(2) Where an order is made under paragraph (1) of this rule, the Appeal Tribunal may assess the sum to be paid or may direct that it be assessed by the taxing officer, from whose decision an appeal shall lie to a judge."Mr Wolfe makes an application that the costs of the respondent be paid in the sum of £250.00 which he says is less than the full amount of costs incurred in resisting this appeal.Mr Kayode disputes that this is an appropriate case for costs.In my view, it is appropriate to order costs. The position is that this appeal was unnecessary and it was unreasonable to bring it. Mr Kayode made an enquiry, before he launched an application for an ex-parte injunction, about the jurisdiction of the Tribunal. He was sent a letter which explained the position correctly. There was no jurisdiction in an Industrial Tribunal to order an injunction in a race relations case. He was specifically notified of the section in the Act which sets out the remedies available to an individual who brings a case under 1976 Act in the Tribunal (Section 56). Although he had had the position explained to him, he proceeded with the application. A further letter was sent explaining, for the reasons already given, that there was no jurisdiction. Mr Kayode then brought this appeal. When I asked him at the outset which section of the Act conferred the power to grant an injunction, he was unable to do more than say that it was conferred in "a round about way" by reference to the sections in his legal argument. In my view, the argument is misconceived. It never stood any chance of succeeding. It has put the respondents to unnecessary expense. In my view, they are fully justified in asking for a contribution to their costs today.£250.00 is a reasonable assessment of the costs which ought to be ordered I make that order.