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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bakshi v Consignia Plc & Anor [2002] EWCA Civ 1816 (21 November 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1816.html Cite as: [2002] EWCA Civ 1816

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice Strand London, WC2 Thursday, 21st November 2002

1. LORD JUSTICE SEDLEY: Mrs Bakshi comes before me in person this morning to apply for permission to appeal against a decision of the Employment Appeal Tribunal, with Judge Reid QC presiding, on 29th July 2002. That decision, given on a preliminary hearing of Mrs Bakshi's appeal from an employment tribunal, was that the appeal should be dismissed without the need for a full hearing on notice to the respondents.
2. The background to this particular case is quite a complicated one. Mrs Bakshi was a postwoman with the Post Office, now known as Consignia, the first respondent, from 1986. She became ill and went on sick leave in January 1996. She found herself driven in November 1996 to present a claim for sex discrimination against the Post Office. She continued to be unable to attend work, and after an interview in April 1997 was given notice of dismissal for that reason. Her employment terminated in May 1997, and in June 1997 she brought a further claim for disability discrimination. Both of those claims failed. It is not necessary for me to go into the reasons why, although Mrs Bakshi is perhaps entitled to feel that she was unfortunate to find those claims cut off without a full hearing.
3. During 1999 Mrs Bakshi learned that a fellow postman, Mr Singh, had been differently treated from her. He had been dismissed for failing to attend work, but it had then been recognised that he had been unfairly dismissed because he had not, at the pre-dismissal interview, been offered the option of retiring on medical grounds and taking with him a pension accelerated by, in his case, a great many years. Mrs Bakshi had been offered no such option. In February 2000 she lodged a further application, asserting that there had been racial discrimination as between her -- she is white -- and Mr Singh, who is Asian. She sought subsequently to amend the claim to add sex discrimination and disability discrimination. The claim was rejected and the amendments refused, apparently on the ground that the treatment of Mr Singh post-dated Mrs Bakshi's employment and could not found any of these claims, which moreover were out of time. Using the unfortunate language of the rules, the Tribunal concluded that the application was frivolous, vexatious and wholly unmeritorious.
4. I pause to say that in my experience nobody ever brings a claim of this sort frivolously. Having heard Mrs Bakshi today, I do not believe that this an adjective that ought ever properly to be applied to somebody like her who has a serious issue to raise and raises it as capably and moderately as she has done. It is the language of the rules, but it is language which we ought to have got rid of a long time ago. I move on from there because that application went cold and nothing before me today could revive it.
5. There was then correspondence conducted by Mrs Bakshi with the Post Office and the pension trustees, the second respondents, during September, October and November 2000. Within three months of all those letters she issued proceedings dated 19th December 2000, this time asserting victimisation contrary to the Sex Discrimination Act. What she asserted in her originating application was that the letter that she had been sent had failed to invite her to apply for medical retirement in 1997, in contrast to what had happened with Mr Singh and which I have recounted. The victimisation, she says, consisted in being deliberately refused access to ill-health benefits through the pension scheme, and in particular the continuance of that refusal in the correspondence in which she had sought to activate the grievance procedure but had got nowhere.
6. The Employment Tribunal, sitting at Reading on 20th August 2001, held this application against both respondents to have been misconceived. So far as the pension trustees were concerned, they had dealt with the matter on the medical evidence placed before them. It was also the view of the Tribunal that there was no jurisdiction under the legislation against the trustees and that the matter was one for the pensions ombudsman. In relation to Consignia, the first respondent, the Tribunal said -- and I am afraid that they were right to say -- that the essential matters of complaint were those that had happened in 1997 which, even if they had not been dealt with in earlier abortive proceedings, would have been too far back in time to have founded a complaint made in December 2000. The only additional matter in the Tribunal's view was the refusal of ill-health benefits. That they held could not found a claim for victimisation. It was against this that Mrs Bakshi appealed to the Employment Appeal Tribunal, pointing out that the refusal of benefits by the recent correspondence was a new issue that was not out of time.
7. The Employment Appeal Tribunal, in a decision which speaks for itself and which I will not attempt to summarise, upheld the decision of the Employment Tribunal. I have to consider the grounds of appeal which Mrs Bakshi has put forward, supported in a remarkably good and well written skeleton argument, which is partly hers and partly written with the help of Mr Peter Wallington who represented her before the Employment Appeal Tribunal under the Employment Law Appeal Advice Scheme. She submits, first, that the refusal of ill-health benefits is a new issue; secondly, that it arises out of correspondence within the three months prior to the application and, thirdly, that the Employment Tribunal had not given adequate or intelligible reasons why the claim could not proceed. (I am summarising the grounds crudely. They are much more fully put in the documents that I have mentioned.)
8. It is certainly true that a repetition of an act of discrimination starts time running afresh, but this case is not presented as the repetition of an act of discrimination. It is presented as a fresh act occurring in the third and fourth quarters of the year 2000 and an act of victimisation. Victimisation essentially means that a person is being detrimentally treated because of their previous assertion of their right not to be discriminated against or previous activity in that connection. It seems to me that the overwhelming difficulty that Mrs Bakshi would face at a full hearing of this application, accepting all the other points in her favour, would be the need to demonstrate in a convincing way that any errors which she could show -- and she may be able to show them -- in the way that the pension trustees and Consignia have dealt with her more recent claim was in effect a reprisal for her earlier assertion of her rights. Although when I asked about it today Mrs Bakshi said, yes, she could prove this, it is not enough to feel strongly that it is so and to show the Tribunal the history of the matter. There has to be either evidence which makes it clear that it is so or evidence from which it is proper to infer, even though it is not admitted, that the detriment has occurred because of the previous assertion of the employee's right not to be discriminated against. This, I am afraid, seems to me to be something which Mrs Bakshi is certainly going to fail on, even if everything else comes out in her favour, and in that sense it can be said that the application is misconceived.
9. I can understand why she is putting it in this way, because of the catastrophic previous history, not all of which appears by any means to be her fault, of earlier attempts to raise this real grievance in a legally acceptable form. Victimisation is the only cause of action which is left untried as between Mrs Bakshi and the Post Office. I do not blame her for trying, but it does matter that, if I were to give her permission to appeal, I would be letting her in for a risk on costs which could be financially ruinous to her for the rest of her life. Whereas in the jurisdictions below, the Employment Tribunal and the Employment Appeal Tribunal, a litigant is not penalised by being made to pay the other side's costs simply for losing, but only if they have misconducted themselves in some way, in this court for better or for worse the general rule is that the loser pays the winner's costs. If my assessment of the prospects of an appeal is right, any appeal that I gave Mrs Bakshi permission to bring would place her at a very high risk indeed of having to pay a five-figure sum to both respondents by way of costs. I mention this, not because it is a reason for refusing permission to appeal if there is an otherwise well-founded claim, but because it does show why this court looks with concern for a proposed appellant on the grounds of appeal. I would be doing Mrs Bakshi no favour in these circumstances if I were to allow her proposed appeal to go ahead because I think she would lose it and lose it very expensively. I have a great deal of sympathy with her in what she has encountered because, at bottom, what has never been adjudicated upon is the fact that she was not offered the option of early retirement as an alternative to dismissal where at least one other employee apparently was and did very well out of it. She is entitled to feel upset at that differential treatment and upset too that the legal processes for deciding whether it was open to redress at the hands of a tribunal have failed, for reasons that were quite possibly not of her making. But I cannot re-write history and I am afraid that for all those reasons, and in Mrs Bakshi's own interests, I am obliged to refuse permission to appeal.

Order: Application for permission to appeal refused; copy of transcribed judgment to be provided to the applicant at public expense.