MR R BALAMOODY v UKCC FOR NURSING MIDWIFERY & HOME VISITORS [1999] UKEAT 744_99_1510

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 744_99_1510Case No Appeal No. EAT/744/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR R BALAMOODYAPPELLANTUKCC FOR NURSING MIDWIFERY & HOME VISITORSRESPONDENT
Before
His Honour Judge Altman Mr J A Scouller Mr N D WillisDate 15 October 1999
[1]APPEARANCES For the Appellant Mr Giffin of Counsel (ELAAS) JUDGE ALTMAN: This is an appeal from the decision of a Chairman sitting alone in the Employment Tribunal at Manchester on the 26 March 1999. On that occasion the application of the Appellant on the basis of discrimination by reason of race was dismissed.[2]In the extended reasons, the Chairman set out the basis of the claim in the following terms:
"This case came before me to decide whether or not the applicants claim should be struck out as frivolous and/or vexatious and if the claim was not so struck out, for the purpose of a pre-hearing review, to determine whether any allegation made by the [Appellant] has no reasonable prospect of success"
. Having examined the arguments and written documents but not having heard any evidence the Chairman concluded "it is in the interests of justice that the Appellants claim be struck out on the basis that it is frivolous in that it has no chance of success and it is an abuse of process".[3]The brief background to the application was that the Appellant was the owner of a Nursing Home in 1992. In 1993 he was convicted of criminal charges; we assume, although it was not expressly stated, that they impinged upon his alleged running of the Nursing Home. He had working at the home a white matron whom he has alleged was guilty of the offences with which he was charged. In 1996 the Appellant was reported to the Respondents and struck off the register of Nurses and two years later the Respondents informed the Appellant that they had found that the white matron herself was not guilty of misconduct. The appellant says this was unfair and discriminatory because he was struck off and she was not.[4]In 1997 and 1998, the Respondents refused to restore the Appellant to the Register. The Appellant produced reports relating to Nurses who had not been struck off for alleged misconduct and a particular high profile case of Nurse who had not also been struck off. And he alleged that his treatment was as a result of discrimination on ground of race. The Employment Tribunal considered certain aspects of the law in relation to race discrimination and pointed out the need to show that the Appellant was treated less favourably on the ground of race. The Chairman recognised the need for an actual or hypothetical comparator, and there may be some argument on the decision as to whether or not in evaluating the case the Chairman considered the possibility of a hypothetical comparator. She certainly found the suggestion of nurses mentioned in newspaper reports and the high profile nurse to which I referred clearly to be not capable of being comparators. She then concluded in the following words "in the absence of any true comparators the applicant raises no prima facie case of race discrimination. His claim is frivolous in that it has no substance".[5]She then went on to find that it was also an abuse of process. That seems to be because the comparators suggested would have involved a vague and wide reaching investigation of the treatment by the Respondents of many of their disciplinary processes. The Chairman concluded by suggesting that the Appellant was asking the Tribunal to substitute their view for that of the Respondent's so as to decide that the comparators should have been struck off or that the Appellant should have been restored to the register. It was pointed out that that was not the function of the Tribunal.[6]We are grateful to Mr Giffin for undertaking to present this appeal to us. It seems to us that certain points of law arise which merit consideration in full by the Employment Appeal Tribunal. The first is this. We couch our findings advisedly in the following way, because this is a preliminary hearing. It is arguable that an Employment Appeal Tribunal has no jurisdiction to strike out a claim because it has no chance of success. The only comparable power is the power to order a deposit of £150 where the Tribunal believes that there is no or little prospect of success. The striking out only follows on non-payment of such a sum of money.[7]Secondly it seems to us arguable that an evaluation that a claim has no chance of success without consideration of the evidence is not properly to be described as frivolous so as to lead to striking out. That seems to us, arguably to be the case particularly in the area of race discrimination where inferences can be drawn from the absence of evidence from an unsatisfactory explanation and it is therefore arguable that it is difficult to come to a conclusion of frivolity without examining the evidence in a full hearing.[8]Also it seems to us arguable that to present a case in a way that appears to be inviting a Tribunal to substitute it's own view is not an abuse of the process unless it can be shown that that is all that an Applicant is seeking to do. That was really an interpretation of the Chairman, and it seems to us that point is also arguable. It is also arguable it seems to us that, even if the lack of success can in principle be a ground for striking out on the basis that a claim is frivolous, or the request to substitute a Tribunal's view can be a ground for striking out on the basis that it is an abuse, the way in which the Tribunal approached those questions in this case is also arguably open to challenge. Whilst the Chairman clearly dealt with the applicability of the actual comparators, the question of a hypothetical comparator was arguably not specifically dealt so as to constitute an error of law.[9]We also find that it may be that there are preliminary issues as to jurisdiction to be considered in relation to the original striking off the register, because of the passage of time, and consideration as to whether any claim should be confined to the subsequent refusals to restore to the register. And it may be that in the event that this appeal may be allowed the parties may wish to give consideration to the sort of very stringent directions restricting areas of evidence that may be appropriate consequently. We say that only by way of assistance because we have no knowledge of how this matter will be concluded by the full body of the Employment Appeal Tribunal. We only suggest that the parties are forearmed in that respect.[10]Accordingly this matter will be listed for hearing in full before the Employment Appeal Tribunal. It will be listed for ½ day, Category C. Skeleton arguments are to be submitted not less than 14 days before the hearing.