MRS E MENSAH v HEATHERWOOD & WEXHAM PARK HOSPITALS NHS TRUST & 6 OTHERS [2002] UKEAT 1393_01_0507

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 1393_01_0507

Case No Appeal No. EAT/1393/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS E MENSAHAPPELLANT

HEATHERWOOD & WEXHAM PARK HOSPITALS NHS TRUST & 6 OTHERSRESPONDENT

Before

Mr Justice Maurice Kay Mr D Norman Mrs R A Vickers

Date 5 July 2002

[1]APPEARANCES For the Appellant MR D O'DEMPSEY (of Counsel) Appearing under the Employment Law Appeal Advice Scheme MR JUSTICE MAURICE KAY: This is a preliminary hearing of Mrs Mensah's appeal. She is seeking to appeal from a decision of an Employment Tribunal which sat on 13 August 2001. She had a number of applications before the Tribunal under three originating processes.

[2]The Tribunal struck out all her claims pursuant to Rule 15(2) (c) of the 2001 Regulations. Rule 15(2) (c) provides for striking out on the grounds that an application is "scandalous, misconceived or vexatious" and we observe that "misconceived" is defined in Regulation 2 as including "having no reasonable prospect of success".

[3]Before us today Mrs Mensah has had the valuable assistance of Mr O'Dempsey under the ELAAS Scheme and we, and we are sure she, are very grateful to Mr O'Dempsey. The first point he seeks to take is a procedural point which arises in this way. The hearing in the Employment Tribunal had been directed by another Chairman at an earlier directions hearing. He had then directed that there be a preliminary hearing to decide on a number of matters including the question, whether Mrs Mensah has an entitlement to bring proceedings under the Race Relations Act 1976 against the Sixth and Seventh Respondents and whether the claims in this respect should be struck out as being scandalous, frivolous or vexatious "under the provisions of Rule 13 (2)(e)".

[4]At the time of that directions hearing the prevailing Regulations were still the 1993 Regulations, hence the language of and the reference to Rule 13(2) (e) which was in terms of "scandalous, frivolous or vexatious" rather than the amended version, which was in force by the time of the preliminary hearing which included the word "misconceived" defined as we have said.

[5]The directions for the preliminary hearing also required a pre-hearing review "under Rule 7 to consider the contents of the Applicant's Originating Application and whether or not the contentions of the Applicant have a reasonable prospect of success". The then prevailing Rule 7 was being referred to in relation to the power of a Tribunal upon a pre-hearing review to order that an Applicant pay a deposit not exceeding £150 as a condition of being permitted to continue, where the Tribunal concluded that there was no reasonable prospect of success.

[6]Mr O'Dempsey therefore makes the point that prior to 13 August, when the preliminary hearing took place, the only striking out that was on the agenda was that in relation to the Sixth and Seventh Respondents on the question whether the claims against them should be struck out, by reference to a lack of entitlement to bring them.

[7]It is clear that that part of the case was in the minds of the Employment Tribunal on the hearing because, in paragraph 3 of the Extended Reasons, it is recorded that at the beginning of the hearing:

"We made it clear that we would not only be considering whether or not an Order should be made pursuant to Rule 7 but also whether the Applicant's complaints might be struck out on the grounds that they were scandalous, misconceived or vexatious under the provisions of new Rule 15(2) (c)."

[8]There is nothing to gainsay the submission made on behalf of Mrs Mensah, but that was the first that she was to know of that proposal. Indeed, it seems that that was almost certainly the case. She was therefore at the Tribunal, as a litigant in person, suddenly confronted with a consideration of a strike out of her whole claim, rather than on the more narrow basis that had been originally envisaged.

[9]We agree with Mr O'Dempsey that that aspect of the matter is worthy of further consideration by the full Tribunal. There are other points to which he refers which we consider should remain before the Tribunal at a full hearing. For example, he draws attention to the fact that, in paragraph 18 of the Extended Reasons, a decision is made on the basis of the authority of Adekeye v The Post Office (No.2)

[1997] IRLR 105

. As is well known, that authority is the subject of current litigation, rather higher in the judicial hierarchy than this Employment Appeal Tribunal and it is within our knowledge that the House of Lords is to consider that issue in a number of cases to be determined before the end of this year.

[10]In our judgment that aspect of this case ought to be considered at a full hearing, if the House of Lords departs from Adekeye . It follows from that that we are indicating that the full hearing of this case should not take place before the House of Lords has decided Adekeye . We doubt that that will cause much additional delay. If the House of Lords has decided the appeal by January or thereabouts, that is probably only a month or two after this appeal would be heard in full in any event.

[11]Mr O'Dempsey next complains about the way in which the Employment Tribunal held various historical matters against Mrs Mensah. He referred first of all to paragraph 7 of the Extended Reasons where reliance was placed on a judicial finding in the Brentford County Court, in the course of a personal injury action which Mrs Mensah had taken against the Sixth Respondent. The judge in Brentford County Court had performed an adverse view of Mrs Mensah's credibility, Mr O'Dempsey complains that that was not appropriate material for considering whether her present case should be struck out or not. He also adds to that the extent to which the Employment Tribunal took into account the litigation history between Mrs Mensah and the current Trust Respondents.

[12]Mrs Mensah has been involved in discrimination legislation and employment litigation in one form or another with one or other of these Trusts for several years and, if the history is correctly set out in the Extended Reasons, she has met with a conspicuous lack of success, both at the level of Employment Tribunals and in the Court of Appeal. In our judgment it was not inappropriate for the Employment Tribunal to have an eye on that history, although it would be wrong if it were to be seen as some kind of bar in itself in relation to a litigant, who is not in law categorised as a vexatious litigant.

[13]Dealing with both the County Court point and the historical point, we consider that there is something there for further consideration, although we are far from persuaded that the history was given any more importance than the Tribunal was entitled to give it.

[14]There are other aspects of the case referred to by Mr O'Dempsey which goes some way to supporting the proposition that the strike out may have been over-precipitous, but this is not a case that would have turned exclusively on the credibility of Mrs Mensah in any event. If it ran its course it would ultimately be a case of whether or not an inference should be drawn, in the light of any explanations proffered for any treatment found to be less favourable, there are aspects of the matter which might have assisted Mrs Mensah in that regard. We refer, in particular, to a failure to respond to a Race Relations Questionnaire and to the undisputed fact that in relation to later matters one of the Respondents wrote to Mrs Mensah explaining a particular decision by reference to the feeling that Mrs Mensah "would not fit into the team": see page 42 of the bundle. That expression is there explained and if that explanation were accepted it is likely that Mrs Mensah's claim of discrimination would not succeed.

[15]However, it seems to us that that is a piece of evidence which would call for evaluation and does not appear to have played any part in the proceedings on the strike out. It seems that Mrs Mensah had specifically requested for statistics about the ethnic mix of the employees but these were never provided.

[16]The matters we have referred to so far are all matters which dispose us to the view that the matter now ought to proceed to a full hearing.

[17]There are some aspects of the case which we put into a different category. In paragraph 27 of the Extended Reasons the Employment Tribunal struck out Originating Application No.2700910/01, on the basis that it was an attempt to re-litigate matters previously decided in the Employment Tribunal in 1979 and 1999. We agree with that finding and we would not permit that aspect of the case to go further.

[18]We have hesitated on the question of the claim under the Disability Discrimination Act 1995 . The claim of Mrs Mensah is to the effect that a decision was made against her because of her perceived "aggression". Her case is that any perceived aggression was a symptom of underlying medical conditions which were related to stress and/or paranoia or a paranoid condition and that these were matters well known to the Seventh Respondent. It is then attempted to classify that as a disability to contend less favourable treatment and to call for a justification. We have pondered whether there is any purpose in preserving this part of her claim because it is our unanimous view that, taken at its highest, Mrs Mensah's disability claim in these proceedings faces very great difficulties. We have decided not to foreclose it at this stage, perhaps from an excess of generosity, partly because of Mr O'Dempsey's careful arguments on the Act and partly because of the point he makes about strike out of the disability claim not being on the agenda on the occasion of the original Decision. Accordingly, we shall, with considerable reluctance, allow it to go forward.

[19]It follows from all this that the matter will proceed to a full hearing. We would not wish Mrs Mensah to depart with any feelings of optimism about the long-term prospects of this litigation. It seems to us that she has mountains to climb and that some of them are of Himalayan proportions.

[20]We would also hope that Mr O'Dempsey feels able to assist in one further regard and that would be by the drafting of an amended Notice of Appeal to reflect what we have said in this judgment and, indeed, what he has said by way of submission, because the documentation prior to today was prepared entirely by Mrs Mensah, and we mean no discourtesy to her when we say that, in its present form, it would be far less helpful to our successors than something drafted by Mr O'Dempsey.