LONDON BOROUGH OF ENFIELD v MS N SIVANANDAN [2005] UKEAT 0348_05_1209

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0348_05_1209Case No Appeal No. UKEAT/0348/05Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
LONDON BOROUGH OF ENFIELDAPPELLANTMS N SIVANANDANRESPONDENT
Before
His Honour Judge Peter ClarkDate 12 September 2005
[1]APPEARANCES For the Appellant MR CHRIS QUINN (Of Counsel) London Borough of Enfield Borough Solicitors Dept PO Box 50 Civic Centre Silver Street Enfield EN1 3XA For the Respondent MS N SIVANANDAN SUMMARY Practice and Procedure Post termination of employment discrimination/victimization. Earlier proceedings in ET struck out on grounds of Appellant's conduct of those proceedings. Whether fresh proceedings might to be struck out as raising issues which have, or ought to have been raised in earlier struck out proceedings. HIS HONOUR JUDGE PETER CLARK Judgment The issue in this Appeal, brought by the London Borough of Enfield (LBE) against part of the Judgment of a Chairman of Employment Tribunals, Mr I S Lamb, sitting alone at Stratford on 18 March 2005, is whether that Chairman ought, in law, to have struck out that part of the Claimant, Ms Sivanandan's Originating Application, presented to the Tribunal on 17 February 2004 (the present complaint), which alleged that LBE had discriminated against her and/or victimized her contrary to the Race Relations Act 1976 and the Sex Discrimination Act 1975 in refusing her access to a contractual grievance and disciplinary procedure in November 2003.[2]There is a long history of litigation between these parties stretching back to the Claimant's first Originating Application presented to the Stratford Tribunal on 10 March 1997 (the first complaint). That history is carefully set out and analyzed in the Court of Appeal judgment of Wall LJ delivered on 20 January 2005 in civil proceedings brought by the Claimant against LBE in the QBD of the High Court for breach of the contract of employment made between these parties. [2005] EWCA Civ 10 .[3]I should first isolate the procedural events which seem to me to be material to this appeal. The first complaint to the Tribunal named as Respondents(1) LBE,(2) The Executive Committee of Enfield Racial Equality Council (EREC) and(3) Ms Bhatia, Director of EREC. In that complaint the Claimant gave her dates of employment as 22 July 1996 until 11 December 1996. She identified her complaints as: 1. Racial discrimination and victimization, contrary to the 1976 Race Relations Act . 2. Unfair Dismissal (written Statement of employment particulars) 3. Breach of contract 4. Sex discrimination, contrary to the Sex Discrimination Act[4]In setting out particulars of those complaints she said, among other things:
"I believe that, after my dismissal, the EREC Director and EC continued to discriminate against me and victimize me, by not responding to my letters and complaints and not responding to the complaints of EREC clients and others who made enquiries or complaints about my dismissal. … I believe that there was unfair and unreasonable application of grievance and disciplinary procedures, breaches of principles of natural justice, and breaches of good employment and equal opportunities procedures and practices following my complaints about, amongst other matters, racial discrimination and victimization, to my detriment. I believe that I have been less favourably treated on grounds of my race and because I raised issues about racism, racial discrimination and victimization and because I intended to take action under the RRA, 1976. I believe that the acts and omissions of the Respondents constitute racial discrimination and victimization, contrary to the RRA, 1976."
[5]The claims were resisted, LBE contending in their Notice of Appearance (ET3) lodged on 1 April 1997 that they were not the Claimant's employer.[6]A hearing took place before a Tribunal chaired by Mr Quinton Barry on 24 October 1997. One of the issues before that Tribunal for decision that day was, who was the Claimant's employer? The Tribunal determined that it was LBE, not EREC. I have read their reasons for that decision, promulgated on 21 November 1997. Paragraph 9 summarizes the Claimant's submissions. She argued that LBE was her employer, as did EREC. That submission was upheld. From that day to this the position has been that the Claimant was employed by LBE during her short employment which, again according to her first complaint, ended with her dismissal on 11 December 1996. She was employed as a Racial Equality Officer.[7]Directly following the Barry Tribunal's decision as to the correct employer, announced on 24 October 1997, the Claimant lost no time in directing her fire at LBE. She wrote to Mr Plank, Chief Executive , on 27 October, requesting her reinstatement. She complained that she had never been disciplined or dismissed by LBE.[8]That letter received a terse response. The Claimant has shown me Mr Plank's reply dated 28 October 1997. He stated:
"The Council has never considered you to be its employee and will await the written statement of the Tribunal's decision before deciding its reaction. Until then further correspondence on this matter would not be appropriate."
Undeterred, the Claimant has pursued her case against LBE to this day. She has had her setbacks in seeking what she passionately believes is justice.[9]In particular, on 5 September 2000 a Tribunal chaired by Ms V. Gay settled down to hear the first complaint over 35 days. However, proceedings came to an abrupt end on day 2, 6 September, when the Tribunal struck out the first complaint under the then Rule 13(2)(e) of the Employment Tribunal Rules of Procedure 1993. The Tribunal found, in reasons given for their decision promulgated on 13 September, that the Claimant's conduct during the hearing merited that draconian step. The EAT (Lindsay P presiding) agreed. Her appeal against the strike out was dismissed on 23 July 2002. Her application for permission to appeal against that order was refused by Mummery LJ at an oral hearing in the Court of Appeal on 8 October 2002.[10]Chronologically it was only two days later that the Claimant commenced her action in the QBD against LBE for breach of contract. In short, her claim was struck out in part by Master Leslie; both parties appealed the parts of the Master's decision adverse to them; Sir Edwin Jowett dismissed those appeals. Finally, in January this year, the Court of Appeal rejected the Claimant's challenge and upheld LBE's appeal. As a consequence, her High Court action stands dismissed. I should add for completeness that in September 1997 the Claimant had issued breach of contract proceedings in the County Court. She withdrew that claim in May 1998.[11]That brings me to the present complaint. Mr Lamb refused LBE's application to strike-out that part of her claim based on correspondence between the parties in November 2003. He properly proceeded on the basis of an assumption that what was set out in the Claimant's claim was correct. She there contended that LBE had discriminated against her and victimized her, contrary to both RRA and SDA , in refusing to give her access to her contractual grievance and disciplinary procedures. She relied, in particular, on letters from LBE dated 18 and 26 November 2003, refusing her access to those procedures. These were, she said, continuing acts of post-termination discrimination/victimization. She also advanced an alternative case based on the premise, contrary to what is contained in her first complaint and the express finding of Mr Barry's Tribunal as long ago as October 1997, that her employment with LBE was continuing at the date of presentation of the present complaint, a position which the Court of Appeal rejected in January this year (Wall LJ. paragraph 100) and which is not now maintained before me by the Claimant.[12]The background to those letters, on the Claimant's case, was that during the hearing before Master Leslie in the QBD proceedings on 13 November 2003 Counsel for LBE admitted that LBE was her employer and that the LBE disciplinary procedure was part of her contract of employment. The following day the Claimant wrote to LBE. Her requests for access to the Council's grievance and disciplinary procedures were refused.[13]She said, at paragraph 13 of her Particulars of Complaint:
"I believe that I would not have been repeatedly denied access to my contractual grievance and disciplinary procedures since the 21 st November 1997 ET decision, but for the fact I am an Asian woman, and but for the fact that I had carried out "protected acts", contrary to the 1976 RRA and the 1975 SDA."
[14]The Chairman's reasoning in rejecting this part of LBE's strike-out application is principally contained at paragraph 19 of his Reasons, where he said:
"I turn now to the part of the claim which is in time, related to what happened in November 2003. The relevant legal principles are set out in the judgments of the House of Lords in the group of cases known as Rhvs-Harper v Relaxion Group [2003] IRLR 484 . Those principles were considered in the Shoebridge case to which I have referred. In essence, the law now provides that if there is a substantive connection between the discriminatory conduct and the employment relationship, then that may be unlawful discrimination, whenever the discriminatory conduct arises. It was contended by Mr Quinn that the period of time in this case made it impossible to reach a conclusion that there could be any such connection. However, paragraph 12 of the Shoebridge judgment shows that in the group of cases considered by the House of Lords the periods of time which had elapsed between termination of employment and the act complained of ranged between 29 months, 22 months, and 18 months. In the Shoebridge case itself, 14 months elapsed. It is clear that what matters is not the period of time which has elapsed, although that may have some evidential significance, but the nature of the act complained of and its connection to the employment. It is further clear that there is a range of acts which may constitute such discrimination. There may be a request for a reference which is given in unfavourable term, or is refused. There may be a voluntary comment, as was alleged to have happened in Shoebridge . There may also be some other aspect of a contract of employment, such as opportunity to have recourse to internal appeal or grievance procedures. There may be a failure to provide a benefit, which is either contractual or non-contractual, because the question which arises is whether the Claimant has been subjected to a detriment. Mr Quinn submitted that there were limits beyond which the Tribunal should not go related not only to the passage of time since the employment relationship ended in this case but also based upon the warnings in the House of Lords judgment of the risk of harassment of employers and the consequences of what they referred to as "long tail liability"
. I am fully alive to those dangers. Nevertheless, where the position is, as here, that the act complained of is in time in respect of the date of presentation of the Originating Application; and there is an allegation, which I must assume for present purposes to be true, that the discriminatory act. concerned relates back to the employment relationship; then it follows that the Claimant is entitled to have that complaint determined on its merits. The fact that there have been the previous proceedings which I have recited, and the passage of time, are not factors which should compel the Tribunal towards a disproportionate response by striking out the contents of the Originating Application in their entirety. Obviously, the request made in November was a repetition of a request made years previously, but it was triggered by a new event, the concession in the High Court proceedings, and is not therefore to be treated simply as mere repetition."[15]In this appeal Mr Quinn takes four points. The first, and in my view the most compelling submission is that the Chairman ought not to have permitted the Claimant to bring fresh Employment Tribunal proceedings raising a complaint which was, or ought to have been raised in the original Tribunal proceedings which were struck out in September 2000. In response, Ms Sivanandan contends that her post-termination discrimination claim was not raised in the first complaint, nor could it be since it relates to matters arising in November 2003, but even if that is wrong special or exceptional circumstances arise which justify her being permitted to bring the present complaint. The Chairman was right not to strike it out.[16]Those rival positions merit close scrutiny. First, did the Claimant raise the present complaint in her first complaint?[17]In my judgment she did. True it is that post-termination discrimination or victimization claims were not justiciable under the Race Relations Act 1976 on the case law as it then stood. Adekeye v The Post Office (No.2)[1997] IRLR 105 (CA). However that did not deter Ms Sivanandan from raising post-termination discrimination and victimization on the face of her first complaint, presciently as it now turns out in the light of the House of Lords decision in Rhys-Harper . She argues that any such claim was directed solely against EREC. However, both LBE and EREC were Respondents to her first complaint and from 24 October 1997 she knew, following the Barry Tribunal ruling, that it was LBE and not EREC who was her employer, as she had correctly argued at the Barry Tribunal hearing. It is also clear from correspondence, in particular her letter to Councillor Bond, a member of the Enfield Council, dated 16 January 1997 that even before presenting her first complaint to the Tribunal she believed, on advice, that LBE was her employer and that any disciplinary proceedings ought to be taken under Enfield's contractual procedures.[18]She submits that it was not until the hearing before Master Leslie on 13 November 2003 that, following Counsel for LBE's acceptance that she was employed by Enfield and their contractual grievance and disciplinary procedures applied to that employment, that she realized that was the case. However, it is absolutely clear to me that from January 1997 it was her case that she was entitled to be dealt with under those procedures. Whilst I accept, for present purposes, that the position taken by LBE was incorrect as a matter of law I am equally satisfied that the Claimant did not alter her position as a result of the case advanced by Enfield. She has maintained it consistently since 1997. In these circumstances I am not persuaded that the exchange of correspondence in November 2003 raised any new state of affairs. As the Chairman said (Reasons paragraph 19), obviously the request made in November was a repetition of a request made years previously. Where I part company with his analysis is his view that it was not a mere repetition as a result of the concession by counsel in the High Court proceedings. In my judgment it was a pure repetition prompted by the position then taken on LBE's behalf; however nothing said by LBE prior to the hearing before Master Leslie had deflected the Claimant from her original request.[19]Nor can it properly be argued by the Claimant that she was in doubt as to her employment status following the Barry Tribunal ruling. That she was alive to the effect of that ruling is clear from her letter to the Chief Executive, Mr Plank, dated 27 October 1997.[20]In these circumstances, by the time of the Gay Tribunal on 5 September 2000 I am satisfied that the present complaint was before that Tribunal and was struck out on grounds of her conduct during those proceedings on 19 September 2000.[21]It is also clear that even if she had not raised a complaint of post-termination discrimination and victimization prior to 5 September 2000 she ought to have done. True it is that her right to do so was not clear until the subsequent House of Lords decision in Rhys-Harper . However, the House of Lords then revealed the law as it had always been. That is not a ground for contending that dismissal of her first complaint ought not to include a claim of post-termination discrimination and/or victimization applying the approach of the Court of Appeal in Biggs v Somerset County Council [1996] ICR 364 and the case of Staffordshire County Council v Barber [1996] ICR 379, decided by the same constitution of the Court of Appeal, referred to in the judgment of Wall LJ in the High Court proceedings between these parties (paragraph 103).[22]Ms Sivanandan submitted , without referring to any relevant authority, that Biggs and Barber ought not to be applied since they preceded the Human Rights Act 1998 . I cannot accept that proposition. I can see nothing in those decisions which offends the right to a fair trial under Article 6 ECHR.[23]Similarly, I am not persuaded that the principle that a party must bring the whole of her case before the court or tribunal, dating back to Henderson v Henderson [1843] 3 Hare 100 (CA), invoked in this jurisdiction by the Court of Appeal in Devine-Bortey v London Borough of Brent [1998] IRLR 526, ought not to apply on the facts of the present case. This is not analogous to the position in Sajid v Sussex Muslim Society [2002] IRLR 113 (CA), where the Claimant withdrew his claim of breach of contract in the Employment Tribunal, as he made clear, so as to pursue it in the High Court, where jurisdiction was unlimited. Further, Devine v Bortey was not referred to in the speeches in the H.L in Johnson v Gore Wood [2001] IAER 481, to which Ms Sivanandan has referred me. I approach the present case on the basis of a 'merits-based judgment' favoured by Lord Bingham in that case.[24]It should be remembered that the Claimant's post-termination claim was not struck out by the Gay Tribunal on its merits or lack of merit cf. Jiad v Byford [2003] IRLR 232 . It was struck out as a result of the Claimant's conduct of the proceedings. Whilst her conduct then is a matter of regret to the Claimant now (and has certainly not been replicated in the courteous presentation of her case before me) the whole of her claims including, in my judgment, the present claim which was or ought to have been before the Gay Tribunal were struck out, as Wall LJ observed in the High Court appeal (paragraphs 110, 114).[25]Nor am I persuaded that exceptional circumstances exist which would allow the present claim to proceed. Specifically, I reject Ms Sivanandan's submission that all or any of the following factors amounted to special circumstances. First, that the law as to post-termination discrimination/victimization was not made clear until the EAT decision in Coote v Granada Hospitality Ltd (No.2) [1999] IRLR 452. In fact, the true position was not made clear until the House of Lords decision in Rhys-Harper . However that does not assist the Claimant; see Biggs and Barber . Secondly, I do not accept that the Claimant was materially misled to the extent that she altered her position as a result of LBE maintaining the position that their disciplinary and grievance procedures did not apply until, on her case, 13 November 2003. Thirdly, although she raises her ill-health from January 1998 as a factor, it does not appear to have caused her to deviate from her persistent pursuit of this litigation in all its forms against LBE from 1997 until the present.[26]In these circumstances I return to the Judgment now under appeal. I have been shown LBE's written strike-out application dated 22 February 2005 which was before the Chairman, Mr Lamb, when he reserved his judgment following the hearing on 18 March 2005. Paragraph 21 of that application contended that the second Tribunal claim was an abuse of process for the reasons there set out.[27]In my judgment the Chairman's reasons do not address that submission in paragraph 19. Ms Sivanandan has referred me to paragraph 7(2), where the Chairman said:
"Any claims of discrimination, direct or by way of victimisation, and any other complaints about her employment, insofar as any such complaints or alleged acts of discrimination occurred prior to 10 March 1997 have been determined. The 1997 Originating Application refers to acts which" occurred after the dismissal. Quite apart from the applicable principles related to post-employment acts of discrimination, to which I refer later in these reasons, it is well established that where an act is complained of which occurs after an Originating Application, or claim, has been presented, then it must be made the subject of a fresh claim, and cannot be added into the pending case by way of amendment. It must be raised by way of a fresh claim."
[28]I respectfully agree with those propositions. Where I part company with the Chairman is in his conclusion that the present complaint raises any new allegation which was not contained in the first complaint, or if not, which ought to have been raised during the Gay Tribunal hearing, had it not been shortened by the Claimant's conduct of those proceedings.[29]For these reasons I uphold Mr Quinn's first ground of appeal. In my judgment the present complaint is an abuse of process. It is an attempt to re-litigate a complaint which was, or ought to have been raised in the first complaint which has been struck out. It is not a question of proportionality, as the Chairman held. The present claim ought to have been struck out as an attempt to re-litigate a decided issue. That is quite different from saying that it should be struck out on its merits cf. Anyanwu v South Bank University [2001] ICR 391 .[30]That is sufficient to determine this appeal. However, for completeness, I should deal shortly with Mr Quinn's three remaining grounds of appeal. Secondly, he relies on the Court of Appeal's strike-out decision in the High Court proceedings, which he contends involved a closely-related claim. I agree that the factual matrix in that claim is similar, but the true basis, in my judgment, for striking out the present complaint is that advanced under the first ground of appeal.[31]Thirdly, he submits that the present case is distinguishable from the facts in Rhys-Harper and Shoebridge , on which the Chairman relied in paragraph 19 of his reasons. I accept that the course of action in the present complaint arises not from a separate event subsequent to the Claimant's dismissal, such as a reference, but in the failure to allow her a post-dismissal contractual appeal. However the real distinction, in my judgment, is that in the present case the cause of action was dismissed by way of strike-out. That was not the position in Rhys-Harper or Shoebridge .[32]Finally, Mr Quinn submits that the Claimant ought not to be permitted a second bite of the cherry. He emphasizes the need for finality in litigation which, in the present case, has gone on for 8 years, relying on the judgment of Mummery LJ in Sajid paragraph 13 and the observation by Chadwick LJ in Securum Finance Ltd v Ashton [2001] Ch.291, 309, that:
"In exercising its discretion as to whether to strike out the second action, that court should start with the assumption that if a party has had one action struck out for abuse of process some special reason has to be identified to justify a second action being allowed to proceed."
[33]For the reasons given earlier I respectfully agree that the Chairman ought to have started with that assumption and, in my judgment, no special reason for allowing the second action to proceed having been made out, he ought to have struck out the present complaint.[34]Accordingly I shall allow the appeal and strike-out the present complaint.