MRS E M D MENSAH v 1) THE ROYAL COLLEGE OF MIDWIVES & OTHERS 2) THE NURSING & MIDWIFERY STAFFS NEGOTIATING COUNCIL [2000] UKEAT 1393_99_1906

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] EAT 1393_99_1906

Case No Appeal No. EAT/1393/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS E M D MENSAHAPPELLANT

1) THE ROYAL COLLEGE OF MIDWIVES & OTHERS 2) THE NURSING & MIDWIFERY STAFFS NEGOTIATING COUNCILRESPONDENT

Before

His Honour Judge J Altman Mr P R A Jacques

Date 19 June 2000

[1]APPEARANCES For the Appellant THE APPELLANT IS IN PERSON. HIS HONOUR JUDGE J ALTMAN: This is an appeal from the decision of the Employment Tribunal sitting at London (North) on 12 August 1999 and promulgated at 3 September 1999. It is also an appeal from the refusal of the full Tribunal in a decision wrongly dated on 12 August 1999 and promulgated on 2 September 1999 to review the original decision. Both matters come before us by way of preliminary hearing to determine whether there is a point of law, such as to enable this matter to be argued in full before the Employment Appeal Tribunal. This matter goes back a long way. Originally, the Appellant took proceedings against the West Middlesex University Hospitals NHS Trust, in relation to her contract of employment and unfair dismissal claim for an itemised pay slip and for pay in lieu of notice. She also took proceedings against them for racial discrimination and this was later varied to include claims for sex discrimination and equal pay, under the Sex Discrimination Act and under the Equal Pay Act.

[2]At the heart of that series of complaints was the issue as to whether or not the Appellant was an employee, or whether she was self-employed. The main contention, so it appears from the Notes of Appearance of the Respondents in these proceedings was that, whilst the Appellant was engaged as what was called a 'Bank Midwife' she had no fixed hours of work. Furthermore, the employer could not require the bank midwife to work for any particular session, nor could the bank midwife require the opportunity to work for any particular session or for any total number of hours, and remuneration, it appears, was dependent upon actually working.

[3]The Appellant worked in that capacity for the hospital trust but it was found that she was not an employee. No doubt the test of whether there is a "mutuality of obligation" was not made out on the basis of the facts that I have just outlined. On 23 July 1997 the claim for unfair dismissal, itemised pay slip and pay in lieu of notice were dismissed, on the preliminary issue, as to whether or not the Appellant was an employee. In February 1999 the discrimination claims were dismissed. The race discrimination complaint on its own terms and the sex discrimination complaint then being 3 years out of time. Those matters have been subject to challenge in a number of courts. The matter came before the Divisional Court of the Queen's Bench Division, initially for an application for leave to apply for judicial review, before Sullivan J. His decision was later upheld but it is important to quote that in refusing leave to apply for judicial review, the learned

judge said:

"I can find no basis for your contention that the conditions of service are unlawful. Complaints of this kind are more properly addressed to an Industrial Tribunal."

[4]However by then the Appellant was taking proceedings not against the National Health Trust but against the Nursing & Midwifery Staffs Negotiating Council. She has a sense of grievance, that she has never had a proper opportunity of employment and that being a 'Bank Midwife' gave her none of the secure features of an ordinary contract of employment, to which she felt she was entitled. And in many respects, because of the lack of jurisdiction of the various courts and Tribunals, the main substance of her grievance has never, to any great extent, been heard in court or Tribunal as a result. She has taken many proceedings to seek to achieve that result. In the light of those comments of Sullivan J., in due course proceedings were commenced against both the Royal College of Midwives and also the Nursing & Midwifery Staffs Negotiating Council and the matter came before the Employment Tribunal on 12 August 1999. And the Employment Tribunal considered the submission of the Respondents' that the claim should be dismissed as being vexatious on the grounds: 5."This cannot be a basis for a renewed Originating Application. It also appears from the Applicant's further and better particulars that she attempted to join the First and Second Respondents to the previous case and was unsuccessful." At the heart of the complaint that has been argued before us, the Appellant has reiterated that the Negotiating Council in particular, she would say, should have taken steps to protect the position of bank midwives, by way of ensuring they became employees; and that that was a matter of sex discrimination because there are far more women bank midwives than men. "It is clear that the Employment Tribunal has already adjudicated on all the matters the Applicant seeks to raise now." They then point out that the issue of fact as to whether or not the Appellant was an employee had already been determined and that she had not been discriminated against on grounds of race and that the claims for sex discrimination and claims under the Equal Pay Act were out of time. The Employment Tribunal then draws attention to the fact that the employment, which has given rise to the current complaints of the Appellant, came to an end in January 1996 and that therefore the matters before the Employment Tribunal were nearly three years out of time. The Employment Tribunal goes on to describe the current complaint as identical with the old one. First she complains that the decision of the Employment Tribunal did not specify in terms what parts of her current complaint had been adjudicated upon previously. We have read the decision carefully, but it is quite clear that the Employment Tribunal have referred to the fact that the questions as to whether or not she was an employee has been determined, and furthermore have considered whether or not, she was discriminated against on racial grounds. Secondly, we have considered whether or not the Respondents to these proceedings have effectively a case to answer in the grievance between the Appellant and the Hospital Trust because leave was refused to join these Respondents in those proceedings. The Appellant would say:

" Well, this is a different matter."

Her complaint is against these Respondents for not doing enough to make sure that she was an employee. Her contention however, had been that she was an employee.