A1/2000/3760

Neutral Citation Number: [2001] EWCA Civ 729
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

	Royal Courts of Justice
	Strand
	London WC2

	Monday, 14th May 2001
B e f o r e :

LORD JUSTICE MUMMERY

- - - - - - - - - - - - - - - - - - - - -

RENGASAMY BALAMOODY	Appellant/Applicant

-v-

UNITED KINGDOM CENTRAL COUNCIL FOR NURSING
MIDWIFERY AND HEALTH VISITING	Respondent

- - - - - - - - - - - - - - - - - - - - -

Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited
190 Fleet Street  London EC4A 2AG
Tel: 020 7421 4040  Fax: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -

The Applicant Appellant Mr Balamoody appeared in person.

The Respondent did not appear and was not represented.

- - - - - - - - - - - - - - - - - - - - -

J U D G M E N T
1.	LORD JUSTICE MUMMERY: This is an application for permission to appeal. It is made by Mr Balamoody in person. The proposed respondent to the appeal is the United Kingdom Central Council for Nursing, Midwifery and Health Visiting. The decision he wishes to appeal is that of the Employment Appeal Tribunal on 5th December 2000. The Employment Appeal Tribunal, for the reasons given on behalf of the tribunal by His Honour Judge Altman, dismissed Mr Balamoody's appeal against an order of the Employment Tribunal, made at a preliminary hearing, striking out his claim for race discrimination as frivolous, vexatious and an abuse of process. The extended reasons for the decision of the Employment Tribunal were given on 27th April 1999. 
2.	I need not examine the background facts which have given rise to the claim in any detail. I shall simply say this. Mr Balamoody is of Mauritian origin. He was the proprietor of a nursing home in Manchester called Hawthorn Villa Nursing Home. He was convicted in the Magistrates' Court on 28th April 1993 in relation to a failure to record the administration of drugs. In consequence of that conviction, proceedings were taken against him by the regulatory UKCC for Nursing, Midwifery and Health Visiting to strike him off the register of nurses. He was struck off by an order of 26th July 1996. His appeal against that order was unsuccessful. He has unsuccessfully made an application to be restored to the register. 
3.	It was those circumstances that led him to start proceedings in the Employment Tribunal in December 1998 for race discrimination. The claim was brought under sections 1 and 12 of the Race Relations Act 1976. 
4.	Mr Balamoody's principal complaint is that he has never had a proper hearing of his claim because the Employment Tribunal struck it out without hearing any evidence from him or giving him a chance to present his case. There was a hearing by the chairman sitting alone on 26th March 1999. The decision made was that the claim should be dismissed. It was made clear in the extended reasons sent to the parties on 27th April 1999 that the chairman had heard no evidence. There were simply submissions from the parties. The conclusion of the chairman was that Mr Balamoody was really complaining about unfair treatment by the Council rather than race discrimination. 
5.	It was pointed out that the tribunal had no jurisdiction to hear complaints of unfair treatment. The jurisdiction was confined to cases of race discrimination under section 12. But Mr Balamoody, though he sought to compare himself with white female nurses who remained on the register, had not raised an example of true comparable treatment. The actual comparator selected by Mr Balamoody was the white matron of Hawthorn Villa Nursing Home, Mrs Lehman. The chairman concluded that Mrs Lehman was not a true comparator. It was also held that there was no relevant hypothetical comparator. The chairman concluded that, in the absence of any true comparators, Mr Balamoody had raised no prima facie case of race discrimination. His claim was frivolous because it had no substance. The pursuance of it would be an abuse of process. It was stated, in paragraph 9, that, in the interests of justice, his claim should be struck out as frivolous, in that it had no chance of success, and as an abuse of process. 
6.	Mr Balamoody submitted that there was an error by the Employment Tribunal in the exercise of its powers under regulation 7 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 and under regulation 13(2). The tribunal, he said, had misinterpreted and misapplied its powers, having heard no evidence, to deprive him of the right to present his case. He also said that the Employment Appeal Tribunal was in error in failing to correct the error of law in the decision of the Employment Tribunal. 
7.	The particular authority which Mr Belamoody has drawn to my attention has persuaded me that this is a case which should go for a full hearing in this Court. He cited the recently reported decision of the Court of Appeal in Care First Partnership Ltd v Roffey [2001] IRLR 85. In that case the Court of Appeal held that the Employment Tribunal has no jurisdiction to strike out the claims of applicants at the start of the hearing on the ground that they stand no reasonable prospect of success. The Employment Tribunal has no power to strike out an application prior to evidence being heard because it has no reasonable prospect of success. Such a power is not conferred under the power of a tribunal to regulate its own procedure. It did not come within rule 13(2), which was applicable to cases where there was scandalous, frivolous or vexatious conduct in the course of the proceedings. It did not come within regulation 7, which governed the holding of a pre-hearing review at which a tribunal could require payment of a deposit as a condition of being permitted to take part in the proceedings. There was then a power to strike out in the event of failure to pay the deposit within the requisite period. The tribunal in this case had not acted under that regulation, but had purported to act under regulation 13. 
8.	I am satisfied, having regard to the decision in that case (which was not available to the Employment Tribunal at the time it made the order or to the Employment Appeal Tribunal at the time when it decided the appeal) that there is a real prospect of this appeal succeeding on the ground that the Employment Tribunal had no power to deal with this case in the summary way that it did by a strike-out order. 
9.	I should make it clear that my decision does not mean that Mr Balamoody will necessarily win this appeal. All I am deciding is that he has a real prospect of winning and that, when the matter is argued out by both sides, this Court may be persuaded that the Employment Tribunal and the Employment Appeal Tribunal did not take the correct course. 
10.	However, the case of Care First Partnership raises a sufficient doubt in my mind to justify permission being granted. 
Order: application for permission to appeal granted.