MR S MURALI v (1) DR H SEELEY (2) MR N HARRISON (3) THE SECRETARY OF STATE FOR HEALTH [2003] UKEAT 0679_02_2802

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0679_02_2802Case No Appeal No. EAT/0679/02/SM (amended 03/06/2003Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR S MURALIAPPELLANT(1) DR H SEELEY (2) MR N HARRISON (3) THE SECRETARY OF STATE FOR HEALTHRESPONDENTS
Before
His Honour Judge Ansell Mr P GammonDate 28 February 2003
[1]APPEARANCES For the Appellant MR S S MURALI THE APPELLANT IN PERSON For the Respondents MS KAREN STEYN (of Counsel) Instructed By: The Office of the Solicitor The Department of Health New Court Room 546A 48 Carey Street London WC2A 2LS JUDGE ANSELL : This appeal in which the Appellant, Mr Murali, has represented himself, if we may say so, with great clarity and with great vigour, has been brought against a decision of an Employment Tribunal held in February and March 2002, chaired by Miss Potter, which dealing with preliminary matters dismissed the Applicant's claim primarily on the grounds that it was res judicata . In the alternative, they said they would have struck it out on the grounds of it being scandalous, misconceived or vexatious, pursuant to the Tribunal Rules, and refused an application to amend the original application to include a claim of direct or indirect race discrimination in relation to what has been called "The Birmingham Declaration", and ordered the Applicant then (today's Appellant) to pay costs in the sum of £1,000 to the third Respondent, the Secretary of State for Health.[2]The whole history of this case has been very protracted and this is the third set of Tribunal proceedings in which the parties have been involved and we have been told there are subsequent applications still before the Tribunal. The Appellant clearly feels very bitter about the manner in which he has been treated. We, however, of course, have to deal with the matter, not in terms of bitterness or otherwise, but on the strict legal criteria that we have to adopt.[3]A brief history of the matter: Mr Murali is Indian by ethnic origin and in 1996 was categorised as a Type 2 Specialist Registrar Trainee in Urology. He had wanted to be categorised as a Type 1 Trainee, which would have enabled him to gain a Certificate of Completion of Specialist Training, which was a prerequisite in the new medical training system introduced in the mid-1990s, for him to eventually achieve a Consultant's position. It may well be that had he chosen the Type 2 course that would have also led to the same result, but we have had no evidence about that and we cannot make any findings.[4]Mr Murali was upset about that categorisation and he commenced the first Tribunal proceedings on 7 April 1998. The Tribunal struck out the claim on the basis that it was presented out of time. The key finding was that the alleged act of racial discrimination, which was apparently the refusal to put him on to the Type 1 course, had occurred on 10 September 1997, and that first Tribunal found that this "grading decision", as they called it, was a one-off act with continuing consequences rather than, as Mr Murali had been arguing, that it was a continuing act of discrimination.[5]In a subsequent hearing they refused to extend time on the just and equitable principle. He commenced second proceedings at the end of December 1998, alleging race discrimination, breach of contract and victimisation. The act of victimisation complained about was that he had again asked for a review of the classification decision and it was said that the refusal to grant that was contained in a letter of 30 November, which had been sent by the Respondents, indicating that the guide to Specialist Registrar Training of February 1998 does not provide for an appeal mechanism. So his complaint was that the receipt of that letter, rejecting any right to an appeal, gave rise to this further claim of victimisation.[6]The Tribunal at that stage, chaired by Mrs Prevezer on 27 March, effectively did not allow the matter to proceed on the grounds that there was not a fresh event. The matters complained of related back to the original decision of September 1997, and that complaint had been struck out, as it were, in the first proceedings and that Tribunal Decision concluded that the application was based on facts, which had been before the first Tribunal and raised the first matters.[7]The matter came before this Court before

Judge Peter Clark in January 2001 and he supported the Tribunal decision, saying that:

"We have no doubt that the Prevezer Employment Tribunal was entitled to conclude that the Appellant was simply going over old ground raising matters which could or should have been raised before the first Tribunal sitting."
[8]The matter went on as far as the Court of Appeal, and there was a full Court hearing before the Court of Appeal. Sedley LJ dealt with the whole issue of res judicata , making clear that there may well be a later event which makes the inference of discrimination stronger or even irresistible. He then said:
"We have to go on to consider whether the additional facts relied on, accepting that the earlier facts are not foreclosed can be aggregated with them, to in total bear the argument which it is sought to erect upon them."
He then went over the facts and he said that:
"The facts in this case did not make the second request that had been made, it was not a new request and did not make the refusal a fresh refusal and [he said] that to categorise the complaint because of the intervening proceedings as victimisation rather than race discrimination, is to fall foul of the principle of finality unless something new and distinct pointing to victimisation has emerged in the course of those intervening proceedings."
[9]So, effectively, the Court of Appeal were saying that there was nothing fresh in this case, everything pointed back to that original decision in September. Of course, Mr Murali has the grievance that the original matters have never been litigated upon in detail, but as the first Tribunal proceedings found that was unfortunately his fault, because he had failed to issue the proceedings within the time limit.[10]So what gives rise to these third set of proceedings? It arises, Mr Murali says, because following a meeting in June 1999, there was a minute which indicated that the Respondents' representatives, particularly Dr Seeley and Helena Feinestein, were saying that if Mr Murali believed that any doctors had been treated more favourably than him, they would be willing to assess the situation. In her words, it is said, "the door was being left open" and, therefore, it could be argued that the door was being left open for further complaints of discrimination or victimisation. Indeed, that is what has transpired, because on 22 July 2001 the Applicant wrote to Dr Seeley, referring to his earlier offer to reassess the situation and putting forward information he had just found out, within the previous few days, of a trainee called Mr Sabu Jacob, who had indeed been appointed through the Type 1 procedure, who he believed had effectively the same background and qualifications as the Applicant.[11]Dr Seeley replied on 24 July, indicating that he was about to retire as, I think, Dean of the Deanery, which is the academic body that covers the Postgraduate staff in that particular area, the South Thames area. He went on to say this:
"The Deanery maintains that you did not meet all the necessary criteria at the time of transition for entry to Type 1 Training and that you were correctly designated as following Type 2 Training. The Deanery is exploring the other issue you raise. You will understand, however, that we have a duty of confidentiality to named individuals."
Within six days of that letter, 30 July, these proceedings were commenced in which the Applicant claimed had been victimised under the Race Relations Act. The IT1 related once again to the failure to reclassity.[12]The Respondents contended that the application was vexatious and unreasonable in that it related, once again, back to the original refusal in 1997. I should have added that the Court of Appeal did refuse the appeal against the second Tribunal proceedings.[13]So that before the Tribunal in this case there was the principal issue, which they determined, as to whether the Applicant's complaint of victimisation on the grounds of race has no reasonable prospect of success and/or the Tribunal had no jurisdiction to determine it because of res judicata .[14]There was a further issue before them which was leave to amend the application to make reference to the Birmingham Declaration. Without wishing to go into too many details on that, it is dealt with in full by the Tribunal, but this arises because the original requirements for doctors to enter the Type 1 Training Programme related to them having what was known as "sufficient permit-free time available" for them to complete that training programme and those rules were altered in favour of persons coming into the country in March 1997.[15]It is said, however, that a document was produced, possibly by the Postgraduate Deans, known as "The Birmingham Directive", which indicated that, whilst this relaxation of the rules should have been back-dated to cover a person such as the Applicant in this case, in fact a decision was taken not to back-date it and a complaint was made about that Birmingham Declaration.[16]So those were the issues before the Tribunal. The Tribunal set out the applicable law and we remind ourselves of Section 2 of the Act that:
"Section 2 of the 1976 Act provides: (1) A person ('the discriminator') discriminates against another person ('the person victimised') in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has - (a) brought proceedings against the discriminator or any other person under this act."
This is the so-called "protected Act provision" and effectively what that Act is saying is that, if a factor in the less favourable treatment is the fact that there have been previous proceedings brought, that is an act of victimisation. It does not have to be the only factor in the less favourable treatment, but the Courts have clearly established, through recent case law, that it has to have a substantial influence on their decision-making process.[17]Before that, however, the Tribunal in their conclusions, at paragraph 11, had to establish what the act of victimisation was. The Appellant today says that it has never been in any doubt, as far as his case is concerned; that it related to the so-called failure to review in July 2001 and the Tribunal pointed out difficulties, as far as that was concerned, because he had commenced these proceedings only six days after Dr Seeley's response and that response had, in its third paragraph, left open the issues raised regarding Sabu Jacob.[18]So the Tribunal's view, first of all, was that the failure to review could not amount to an act of victimisation, because there had, in fact, not yet been a failure to review when these proceedings were commenced. They then pointed to the only reason given by Dr Seeley in the letter of that time, which was the same reason that has been given all the way through, namely that he did not meet the requirements. On that issue the Tribunal, in our view correctly and indeed, it has not been challenged, held that this was res judicata , not because the facts had been adjudicated upon, but because the issue raised, namely the 1997 refusal, which was one which was effectively struck out in the first proceedings through the fact that it was not issued in time. It is that earlier striking out which effectively prevents every further attempt by Mr Murali to raise this issue again. The key paragraph, however, is paragraph 13 of the Decision and I read it out in its entirety. They said this:
"In case they were wrong as to the basis of the Applicant's claim the Tribunal considered the Applicant's claim on the broader basis, that he complained of the failure to carry out a detailed review by reference to the facts of Mr Jacob's case, as promised in June 1999, and to revert to the Applicant with a response. The Tribunal concluded that if they were considering the case on that broader basis, they would strike it out under Rule 15(2)(c) as misconceived as having no reasonable prospect of success because Mr Jacob was of the same racial group as the Applicant. There were clear reasons for his difference in treatment. He satisfied the three criteria of requisite qualifications, sufficient permit-free time to obtain a CCST and a position obtained in competition. The Applicant satisfied only one of those criteria, that of academic qualification."
[19]On the face of it, there appears to be an error of law in the interpretation by the Tribunal of Section 2 because, for the purposes of Section 2, the comparator is between the complainant who has done a protected act, in other words brought previous proceedings under the Race Relations Act, and a person who has not done the protected act. So, on the face of it, Mr Jacob was not a comparator under the Act. But, we understand that paragraph to say quite clearly that, what the Tribunal were saying was that the less favourable treatment was in no sense related to the fact that Mr Murali had brought these previous two proceedings, but was related simply to the fact that he did not match Mr Jacob's qualifications, in two out of the three key areas that were identified.[20]Thus the Tribunal were saying in paragraph 13, and we are quite satisfied as to their approach to the matter is that accepting Dr Seeley's letter as a refusal to review, rather than leaving the matter open, did not amount to less favourable treatment on the grounds of the protected act.[21]The Tribunal in fact took evidence in this case, albeit that it was at a preliminary hearing, and heard detailed evidence from Dr Seeley as well, as we understand it, from Mr Murali. Mr Murali had the opportunity to cross-examine Dr Seeley at that time. The evidence that Dr Seeley gave about the differences between Mr Jacob and the Appellant are clearly set out within the findings made by the Tribunal and, we refer particularly to paragraph 23(xxv) onwards, where they deal with the differences between the two.[22]We are quite satisfied that the Tribunal's approach and conclusions were correct in the matter. Primarily, they were not treating Dr Seeley's letter as a refusal to carry out review and, on that basis, they decided the issue quite properly on the res judicata issue.[23]But taking the alternative course, and taking a course which was, in any view, a generous view of Mr Murali's actions, that Dr Seeley's letter could be taken as a refusal to review, they held on a thorough review of the comparison with Mr Jacob that, insofar as there was any less favourable treatment in the refusal to review, that it was not in any way connected to any form of discrimination in relation to those previous proceedings, but simply as an analysis between him and Mr Jacob and, therefore, we cannot see any grounds to interfere with the Tribunal's decision, notwithstanding that there was, as we have indicated, one area of criticism with regard to the issue of comparator.[24]Finally, the application to amend to include the Birmingham Declaration. Again there was evidence before the Tribunal that the Birmingham Declaration was known to Mr Murali prior, certainly, to the second set of proceedings, because he in fact referred to it in his grounds of application. He now says that he did not understand the full import of the effect of the Birmingham Declaration. We cannot accept that. These matters were fully investigated by the Tribunal at the time and we can see, again, no grounds to interfere with their discretion, which was properly exercised by them.[25]For these reasons, therefore, we would dismiss this appeal. Application for Costs[26]We allow the appeal so the Costs Order stands. We can see no grounds to interfere with the Costs Order. Costs are, again, a matter for discretion of the Tribunal and the issue of costs was fully explored by them again and they deal with that in the final paragraph of their Decision, and particularly pointed out the warning that had been given to Mr Murali by the Court of Appeal that these proceedings could not resolve the grievances that he had. They took the view that there was no justification in him commencing the third set of proceedings and marked the matter by an order for costs, which must stand.[27]We cannot see that these matters disclose any arguable point of law and we would accordingly refuse permission to appeal the matter to the Court of Appeal.