Balamoody v Manchester Health Authority [1999] UKEAT 1288_97_0203

EAT
Balamoody v Manchester Health Authority
[1999] UKEAT 1288_97_0203 · 1999-03-02
HIS HONOUR JUDGE CLARK: This is an appeal by Mr Balamoody against interlocutory orders made by a Chairman, Miss AFW Woolley, sitting alone at the Manchester Employment Tribunal on 11 July 1997, promulgated with extended reasons on 30 July 1997, whereby it was ordered:(1) that his Originating Application presented on 24 May 1996, containing two allegations of unlawful racial discrimination (complaints A and B) against the Respondent, Manchester Health Authority, be struck out under Rule 13(2)(d) of the Employment Tribunal Rules of Procedure 1993; and(2) that his application to amend that Originating Application by adding two further allegations of unlawful discrimination (complaints C and D) be refused.

Background

There is a complicated history. We take what appear to us to be the relevant matters from material provided by the Appellant.Mr Balamoody is Mauritian and of Asian ethnic origin.In 1974 he qualified as a State Registered Nurse and in 1975 as a Registered Mental Nurse. The professional body, charged with the responsibility for professional standards in nursing is and was the United Kingdom Central Council for Nursing, Midwifery and Health Visiting (UKCC).The Respondent, formerly North Manchester Health Authority, was the authority responsible, inter alia, for granting registration for Nursing Homes in its area. On 14 May 1992, the Respondent certified that the Appellant was granted registration for the Milestone Nursing Home, 145 Church Lane, Moston, Manchester (the Home) as a Nursing Home within the meaning of the Registered Homes Act 1984 (the 1984 Act).The matron of the Home was at all relevant times Mrs Patricia Letham. She is white.Complaints were made to the Respondent concerning the conduct of the Home and in due course the Appellant appeared on six charges brought by the Respondent in relation to the running of the Home before the local magistrates. He was convicted on all charges on 28 April 1993 and sentenced to fines and an order was made for prosecution costs on 19 May 1993. He served a Notice of Appeal against conviction and sentence to the Crown Court but that appeal was abandoned in December 1993.Following his conviction and sentencing by the magistrates, the Respondent gave notice of its proposal to cancel the registration of the Appellant in respect of the Home on 13 June 1993. Having heard representations by him on 29 June the Respondent decided to confirm the cancellation and communicated that decision to him on 26 July 1993.Against that decision the Appellant exercised his statutory right of appeal under the 1984 Act to the Registered Homes Tribunal. That Tribunal sat on 13-15 April 1994 and decided to uphold the Respondent's decision to deregister the Home.Secondly, the Respondent reported the fact of the Appellant's convictions to UKCC on 24 May 1994. On 27 February 1996 UKCC served notice of a disciplinary hearing, to take place on 29 July 1996, at which certain charges would be considered by the Council's Professional Conduct Committee (PCC) and a determination made as to whether the Appellant's name should be removed from the register or whether he should be cautioned as to his future conduct.Following that hearing the PCC decided to remove the Appellant from the register. Against that decision the Appellant exercised his statutory right of appeal to the High Court under section 13 of the Nurses and Midwives and Health Visitors Act 1979 (the 1979 Act).

The Employment Tribunal Proceedings

Having commenced proceedings by way of Originating Application against this Respondent only on 24 May 1996, the matter came before an Employment Tribunal chaired by Mr D A Leahy on 22 August 1996 (the Leahy Tribunal). That Tribunal concluded that the Appellant's complaint, which was identified as being that the Respondent reported the Appellant to UKCC but not the white matron, Mrs Letham, and had therefore treated him less favourably on grounds of his race, was brought within time.Secondly, the Tribunal rejected an argument advanced on behalf of the Respondent that, the Appellant not being their employee within the meaning of section 78 of the Race Relations Act 1976 (the 1976 Act), he was unable to show that any discrimination under Part I of the Act was unlawful under Part II. The Leahy Tribunal took the view that both in deregistering the Nursing Home and in reporting the Appellant to UKCC , the Respondent's acts fell within section 12(1)(a) of the 1976 Act. The Tribunal further rejected an argument advanced by the Respondent that such claims were excluded by section 54(2) of the 1976 Act on the basis that although the Appellant had a right of appeal against deregistration under the 1984 Act, that appeal process did not allow for appeal based on a complaint of racial discrimination.Thirdly, the Tribunal ordered that UKCC be joined as second Respondent to the Appellant's complaint. Against that last order UKCC successfully appealed to this Employment Appeal Tribunal (EAT). In a judgment delivered by Lindsey J on behalf of the EAT on 5 December 1996, this Tribunal held that the Appellant's complaint that he had been singled out for a disciplinary hearing whereas Mrs Letham had not, could not be said to fall within section 12(1) of the 1976 Act. On that basis UKCC was disjoined from the proceedings. The EAT did not feel it necessary to go on to consider the further argument under section 54(2).We turn now to the orders, made by Miss Woolley, which are the subject of this appeal. By the time that the case reached her on an application by the Respondent dated 29 May 1997 for an order striking out the Originating Application on the grounds that the Originating Application, erroneously referred to as the Notice of Appearance, was frivolous and vexatious, the Appellant sought to add two further complaints by way of amendment to his Originating Application. Helpfully, the Chairman identified the relevant complaints A-D as follows:

Complaint A

It is alleged that the Respondent's referral of the Appellant's convictions to UKCC was an act of discrimination in that the case of Mrs Letham, who is white, was not so referred. She also holds nursing qualifications and is subject to the regulatory procedures of UKCC.

Complaint B

The Respondent's withdrawal of the Appellant's Home registration was an act of discrimination on racial grounds.

Complaint C

The Appellant contends that the Respondent applied a condition to the registration of the Home in May 1992 that it should accommodate a maximum of 16 residents which it would not have applied to a white owner. He had discovered that the new owner of the Home, who is white, was registered for a higher number of residents.

Complaint D

The Respondent applied a condition of a certain staffing level at the Home which would not have been applied to a white owner. This was a point which he raised on appeal to the Registered Homes Tribunal as did he raise the substance of complaint C.

The Law

We begin with the scheme of the 1976 Act. Part I defines discrimination to which the Act applies. Section 1(1)(a) defines direct discrimination and section 1(1)(b) indirect discrimination. Section 2 defines victimisationAn act of discrimination or victimisation will only be unlawful if it falls within Part II of the Act. Section 4 provides for unlawful discrimination in employment. Employment means, by section 78(1), employment under a contract of service or of apprenticeship or a contract personally to execute any work or labour. No employment relationship as there defined exists between the Appellant and the Respondent in this case.Section 12(1) provides:
"(1) It is unlawful for an authority or body which can confer an authorisation or qualification which is needed for or facilitates engagement in a particular professional trade to discriminate against a person (a) in the terms on which it is prepared to confer on him that authorisation or qualification; or (b) by refusing or deliberately omitting to grant his application for it; or (c) by withdrawing it from him or varying the terms on which he holds it."
Section 54 provides:
"(1) A complaint by any person (the complainant) that another person (the Respondent): (a) has committed an act of discrimination against the complainant which is unlawful by virtue of Part II; or (b) is by virtue of section 32 or 33 to be treated as having committed such an act of discrimination against the complainant may be presented to an industrial tribunal.
(2) Subsection I does not apply to a complaint under section 12(1) of an act in respect of which an appeal or proceedings in the nature of an appeal may be brought under any enactment."Section 32(2) provides:
" that anything done by a person as agent for another person with that other's authority shall be treated for the purposes of the Act as done by that other person as well as by him."
Section 33(1) provides:
"that a person who knowingly aids another person to do an act made unlawful by the Act shall be treated for the purposes of the act as himself doing an unlawful act of the like description."
Turning to the procedural rules applicable in this case, Rule 13(2)(d) of the Employment Tribunal Rules of Procedure provides that an Employment Tribunal may, at any stage of the proceedings, order to be struck out an Originating Application, or anything in it, on the grounds that it is scandalous, frivolous or vexatious. A frivolous claim is one that has no substance in it and is bound to fail or on the face of it is so manifestly misconceived that it has no prospect of success E T Marler v Robinson (1974) ICR 72 .The power to allow an amendment to an Originating Application is contained in the Employment Tribunal's general power to regulate its own procedure under Rule 13(1). Guidance as to the principles to be applied when considering an application for leave to amend is to be found in Selkent Bus Co Ltd v Moore (1996) ICR 836 . In particular, where the application is hopeless on its face, the application should be refused per Mummery J 843A.Against that background the Chairman dealt with Complaints A-D as follows:A. She held that this complaint did not fall within Part II, and particularly section 12 of the 1976 Act. The Respondent's act in referring the Appellant's convictions to UKCC did not fall within section 12(1). The Respondent was not a qualifying body within the meaning of the section.She also rejected an alternative argument advanced by the Appellant that the Respondent committed an unlawful act by aiding and abetting UKCC to do an act made unlawful by the 1976 Act under section 33. The Chairman applied the ruling of the EAT in the UKCC appeal that UKCC had not done an unlawful act by considering the reference by the Respondent of the Appellant's convictions in disciplinary proceedings. In these circumstances she found that this complaint was frivolous and should be struck out under Rule 13(2)(d).B. The withdrawal of registration of the Home by the Respondent was an act falling within section 12(1)(c). However that act was an act in respect of which an appeal could be (and was) brought under statute, that is, the 1984 Act, and accordingly the Tribunal's jurisdiction was excluded by virtue of section 54(2) of the 1976 Act. Accordingly that complaint was also struck out under Rule 13(2)(d).C. The act complained of, namely, the Respondent's imposition of an allegedly discriminatory ceiling on the number of residents in the Home, fell within section 12(1)(a). However that was again an act in respect of which an appeal could be brought under the 1984 Act, thus excluding the Tribunal's jurisdiction by virtue of section 54(2) of the 1976 Act.D. The act here complained of, relating to staffing levels at the Home, fell potentially within section 12(1)(a) or (c), but was again subject to a right of appeal under the 1984 Act and was thus similarly excluded by the provisions of section 54(2) of the 1976 Act.In these circumstances the Chairman refused the Appellant's application for leave to amend the Originating Application to add Complaints C and D.

The Appeal

Mr Balamoody has represented himself before us. Making allowance for the difficulty faced by a layman in arguing points of law, which he must do if this appeal is to succeed, we have found his submissions to be discursive and repetitive. In particular, he has repeatedly argued that the acts of the Respondent are racially discriminatory. We have made clear throughout that we accept for the purposes of this appeal that all 4 complaints A-D raise arguable cases of discrimination under Part I of the 1976 Act. That is sufficient for the purposes of defeating a strike out claim or for obtaining leave to amend subject to questions of limitation. He does not have to prove the allegations at this stage. The real focus of the appeal is on whether he has raised any arguable case that those assumed acts of discrimination were unlawful under Part II of the Act.In that regard we have discerned the following relevant arguments:(1) As to complaint A, the Leahy Tribunal was correct in finding at paragraph 10 of their reasons dated 17 September 1996, that the Respondent acted as a qualifying body under section 12 of the 1976 Act in referring the fact of the Appellant's convictions to UKCC on 24 May 1994. The Appellant further submits that although UKCC is the body which grants and withdraws a nursing qualification, the Respondent showed disapproval of the Appellant's qualification as a nurse and that brings the Respondent within the section 12 definition. Miss Woolley, in paragraph 10 of her reasons dated 29 July 1997, reached the opposite view. Which is correct?We should say first that we have considered whether the Leahy Tribunal reached a decision on that issue which was binding on Miss Woolley. We have concluded that it did not for the following reasons:(a) the Leahy Tribunal's decision was first that the Appellant's claim was not time-barred and secondly that UKCC should be joined as second Respondent. Neither point required a finding on the application of section 12(1) to complaint A against the Respondent.(b) even if it could be said that such a finding was made by the Leahy Tribunal, it was an interlocutory, and not a final finding, such that the principles of res judicata and issue estoppel arose, but(c) in any event, the point goes to the Tribunal's jurisdiction to entertain the complaint and can be reconsidered at any time, whether by an Employment Tribunal or this EAT.Accordingly we must decide which view is correct.We unhesitatingly prefer the view taken by Miss Woolley. The act of reporting the Appellant's convictions to UKCC was not an act done by the Respondent in its capacity as a qualifying body. Only UKCC has the authority to withdraw the Appellant's nursing qualifications. Quite simply, for this purpose, the Respondent does not fall within section 12(1).Nor do sections 32 and 33 of the 1976 Act assist the Appellant. The complaint is not that the Respondent was acting as agent for UKCC in reporting the Appellant's convictions, but was the principal in so doing. Further, as the previous EAT found, UKCC were not acting unlawfully under the 1976 Act in entertaining that report by taking disciplinary proceedings against the Appellant. There was therefore no unlawful act by UKCC for which the Respondent could be held responsible as agent or as aider and abetter.(2) As to complaint B, we accept that in deregistering the Appellant's Home the Respondent was acting as a qualifying body under section 12(1)(c) of the 1976 Act. The question then is whether his complaint in relation to that act is excluded by the provisions of section 54(2). We are satisfied that it is. The act complained of is the deregistration of the Home. A statutory right of appeal in respect of that act lay to the Registered Homes Tribunal under section 34 of the 1984 Act. Indeed, the Appellant exercised that right of appeal, albeit unsuccessfully.The Leahy Tribunal took the view (reasons, paragraph 11) that the act for the purposes of section 54(2) was the act of racial discrimination. It was not. It was the act of deregistration. Further, we do not accept the view expressed by the Registered Homes Tribunal in its decision that it could not entertain the Appellant's grounds of appeal relating to victimisation and discrimination on the part of the Respondent. We cannot see why not. If a person appealed against deregistration to the Registered Homes Tribunal on the grounds that the Health Authority's decision was purely based on his race, it would be open to that Tribunal to allow the appeal. We cannot believe that any decision to deregister solely on that ground could be sustainable. Thus, again, we prefer the view taken by Miss Woolley in paragraph 10 of her reasons.In these circumstances we have concluded that complaints A and B are bound to fail, they are so manifestly misconceived that they have no prospect of success. They are frivolous. Miss Woolley was right to strike them out.(3) As to complaints C and D, again the conditions imposed by the Respondent as the regulatory body fell within section 12(1)(a) of the 1976 Act. Again the question is whether these complaints are excluded by the provisions of section 54(2).The Appellant submits, correctly, that the Respondent was in breach of sections 31-33 of the 1984 Act in failing to notify him as to the conditions to be imposed as to the number of patients and staffing levels before issuing the certificate of registration of the Home to the Appellant in May 1992. He further submits that those breaches prevented him from utilising the appeal procedure to the Registered Homes Tribunal provided for in section 34 of the 1984 Act. We reject that submission. First, because the Act plainly allows for an appeal against a decision of a Health Authority, exercising the registration powers delegated by the Secretary of State, including a decision to impose conditions on the grant of registration. Second, because he in fact raised these very complaints in his appeal to the Registered Homes Tribunal, and would have succeeded on them, but for the Tribunal's decision to uphold the Respondent's decision to deregister the Appellant as result of his misconduct.It follows in our judgment, that the proposed amendments to the Originating Application raising complaints C and D were hopeless, and leave was properly refused by Miss Woolley.(4) Finally, the Appellant complains that Miss Woolley failed to consider a further complaint by him in relation to the Respondent's refusal to register the Home for mental patients, whereas they have so registered the new white owner of the Home. That point is dealt with in paragraph 7 of Miss Woolley's reasons. The Appellant withdrew his application to amend to add this further complaint. In any event, the point is raised in a further Originating Application presented to the Employment Tribunal by the Appellant and dated 8 July 1997. That Originating Application was not before Miss Woolley on 11 July 1997 and has been stayed pending the outcome of this appeal.It follows, in our judgment, that there are no grounds in law for interfering with Miss Woolley's decision. Accordingly the appeal is dismissed.

Costs

Having delivered our judgment in this case, we have before us an application by Miss O' Rourke for the Respondent's costs in this appeal, limited to £500. We bear in mind that on an earlier occasion, a division of this Tribunal allowed the case through to a full hearing and we have also taken into account the Appellant's means. He is on benefit and we have seen a document which he lodged with the Tribunal showing that he is in debt to his Building Society. For those reasons, and those reasons only, we shall dismiss this application.