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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Banai v Royal Devon & Exeter Hospital (Wonford) [1994] UKEAT 47_91_2505 (25 May 1994) URL: http://www.bailii.org/uk/cases/UKEAT/1994/47_91_2505.html Cite as: [1994] UKEAT 47_91_2505 |
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At the Tribunal
Before
THE HONOURABLE MR JUSTICE MUMMERY (P)
MR D G DAVIES
MR K M YOUNG CBE
& 16 OTHERS - (SEE ATTACHED SCHEDULE)
Transcript of Proceedings
JUDGMENT
Revised
PA/47/91 Dr J Banai v Royal Devon & Exeter Hospital (Wonford)
EAT/135/90 Dr J Banai v Casella London Ltd
EAT/138/91 Dr J Banai v Bristol & Western Health Authority
(PRELIMINARY HEARINGS - EX PARTE)
EAT/497/90 Dr J Banai v Bournemouth Polytechnic (formerly Dorset Institute of Higher Education)
EAT/499/90 Dr J Banai v (1) East Dorset Health Authority (2) Poole Job Centre
EAT/61/91 Dr J Banai v Exeter Health Authority
EAT/66/91 Dr J Banai v (1) BDH Ltd (2) Sieger Ltd
EAT/195/91 Dr J Banai v Penny & Giles Controls Ltd
EAT/293/91 Dr J Banai v Christie Hospital & Holt Radium Institute
EAT/491/91 Dr J Banai v Revlon Group Ltd
EAT/547/91 Dr J Banai v Nuclear Electric Plc
EAT/573/91 Dr J Banai v Hampstead Health Authority
EAT/544/91 Dr J Banai v (1) Department of Social Security (2) Nova Contract Cleaners
EAT/551/91 Dr J Banai v General Medical Council
EAT/612/91 Dr J Banai v Science & Engineering Research Council
EAT/645/91 Dr J Banai v South West Thames Regional Health Authority
EAT/646/91 Dr J Banai v St Edward's RC VA School
APPEARANCES
For the Appellant NO APPEARANCE BY OR
REPRESENTATION ON
BEHALF OF THE
APPELLANT ON ANY CASE
For the Respondents NO APPEARANCE BY OR
REPRESENTATION ON
BEHALF OF THE
RESPONDENTS ON ANY CASE
MR JUSTICE MUMMERY (PRESIDENT): This is the first of 17 appeals listed to come on today. The Appellant in each case is Dr Julius Banai. There are a large number of different Respondents. The position on representation is that Dr Banai was notified of the listing of these appeals for today. The notification was sent to the address which he had given as his home, namely 43 Ringwood Road, Parkstone, Poole, Dorset. The letters which were sent were returned by the Royal Mail as undelivered for the reason that Dr Banai had gone away. The Tribunal has no other address for him and has no information as to his precise whereabouts. The appeals will therefore be determined in his absence.
None of the Respondents are represented on the appeals for reasons which will appear from the decisions which we give on each appeal. This is not surprising. The Respondents have already been put to expense in responding to Dr Banai's claims and quite understandably they do not wish to participate at any further cost to themselves in these proceedings.
Before going to the individual cases we will preface our decision by summarising the general background to the appeals.
Dr Banai was born in Hungary on 26 August 1953. He was of German ethnic origin. From 1953 to 1959 he lived in various parts of Hungary, depending on where his father was working at the time. From 1959 to 1971 he was educated in Budapest. In 1971 the family emigrated to West Germany. From 1971 to 1977 Dr Banai received further education and training in West Germany. He attended the University of Karlsruhe where he obtained qualifications in nuclear engineering. In 1978 he came to live in the United Kingdom where he has been resident since October of that year. From 1978 to 1984 he attended the University of Liverpool where he obtained a Master of Science Degree in Engineering in 1980. He did research into radiation shielding and in 1984 obtained a Ph.D in Gamma Ray Spectral Penetration. For a short period in 1984 and 1985 he worked for Impell Corporation at Risley, Warrington. On 1 September 1985 he obtained more permanent employment when he was appointed a research fellow in the Department of Physics at Birmingham University. His position was funded by the Central Electricity Generating Board, The United Kingdom Atomic Energy Authority and British Nuclear Fuels PLC. His work was at the Winfrith site of the Atomic Energy Authority. He left employment there when he resigned from his university post on 30 April 1987. Since then he has not had any stable employment. He has spent most of his time, it appears from these papers, making applications for employment with public sector employers, particularly health authorities and other parts of the National Health Service. His applications have been unsuccessful. His lack of success in applications has led to multiple applications to Industrial Tribunals, ranging between 60 and 70 in different parts of the country. In all of the proceedings there are allegations of racial discrimination. In some of the proceedings these are supplemented by allegations of sex discrimination. All the applications have failed. Many of them have been struck out as being frivolous or vexatious. The appeals before the Tribunal today are nearly all concerned with appeals from orders for striking out. The appeals fall into 3 categories. The first is an appeal against the refusal of the Registrar to extend Dr Banai's time for appealing. That is followed by 2 appeals which are full appeals following a preliminary hearing which allowed the matters to proceed to a full hearing. The remainder of the appeals are all preliminary hearings, ex parte, in which the task of the Tribunal is to decide whether Dr Banai's Notice of Appeal in each case raises an arguable point of law which should be allowed to proceed to a full hearing.
PA/47/91 : Dr J Banai v Royal Devon & Exeter Hospital
With that introduction I turn to the first appeal which is an appeal to the President alone against the decision of the Registrar. The Registrar made an Order on 6 March 1991 by which she refused to extend Dr Banai's time for appealing. Dr Banai was dissatisfied with that decision and by a Notice of Appeal seeks to have the time extended. The Notice of Appeal is dated 12 March 1991. He states that the principal reason on which he seeks an extension of time is the discovery of relevant evidence, for example, good references for dismissed physicists, the interest of justice and personal hardship. He refers to a number of reported cases in support of his appeal.
It is not relevant on this appeal to go into any of the details of the unsuccessful application which Dr Banai made to the Industrial Tribunal at Exeter complaining of racial discrimination. The only question relevant on an application for extension of time is whether the Appellant has shown that there is a justifiable reason for not having put in his appeal within the 42 days allowed by the Employment Appeal Tribunal Rules. The cases establish that leave to extend the time is only granted in rare and exceptional cases. It has to be shown that there was not just an explanation for the appeal being out of time; there must be a good excuse. None is shown in this case. The Registrar came to the right decision in refusing to extend the time. The appeal of Dr Banai against the Registrar's Order is therefore dismissed.
EAT/135/90 : Dr J Banai v Casella London Ltd
This is the first of 2 full hearings before the Tribunal. The history of this matter is that Dr Banai presented a complaint to the Industrial Tribunal on 26 June 1989. He complained of racial discrimination to him as a job applicant. He complained that he had made unsuccessful job applications to the Respondents. The Respondents contested the claim alleging that his complaint of racial discrimination was totally spurious.
The Respondents applied for the originating application of Dr Banai to be struck out and an Order to that effect was made by the Chairman of the Industrial Tribunal held at Bedford on 18 September 1989. It is not necessary to go into the procedural history of what then occurred, save to say that the matter came to the Employment Appeal Tribunal which upheld on the appeal by the Respondents, Casella London Ltd, the original decision of the Chairman to strike out the proceedings.
There was subsequently an application by Dr Banai in January 1990 for a review of the Industrial Tribunal decision. That was refused. The Order which he seeks to appeal against is an Order which was made on 29 January 1990 and notified to the parties on the following day. By that Order Dr Banai's application was struck out and dismissed under Rule 12(2)(e) of the Industrial Tribunals (Rules of Procedure) Regulations 1985. Dr Banai was dissatisfied with that decision and he appealed by Notice of Appeal dated 8 March 1990.
The matter came before the Employment Appeal Tribunal on a preliminary hearing on 28 March 1990 and at that hearing the Tribunal, having heard Dr Banai in person, directed that the appeal should be allowed to proceed to a full hearing of the Employment Appeal Tribunal. This is the full hearing of the appeal. The members of the Tribunal have examined the papers in this case and are unable to detect in Dr Banai's Notice of Appeal any point of law relevant to an error which he alleges occurred in the decision of the Tribunal. The original decision of the Chairman was given on 18 September 1989 fully setting out the reasons for acceding to the Respondents' application to strike it out. That was a matter for the discretion of the Chairman of the Tribunal and there does not appear to be contained in that decision any error of law.
The appeal will therefore be dismissed.
EAT/138/91 : Dr J Banai v Bristol and Weston Health Authority
This is the full hearing of the second appeal. The appeal in this case is brought by Dr Banai by Notice of Appeal dated 14 March 1991 against a decision of the Industrial Tribunal held at Bristol on 8 February 1991 when the Chairman made an Order to strike out Dr Banai's originating application under Rule 12(2)(e) of the Regulations on the ground that it was vexatious. The full reasons were notified to the parties on 14 February 1991. In the course of his decision the Chairman made comments on the power of the Tribunal to strike out proceedings which are frivolous or vexatious. The Chairman stated in paragraph 3 that:
"The Tribunal takes judicial knowledge of the fact that the applicant [Dr Banai] made an application against the same respondent in November 1989 claiming racial discrimination and sex discrimination in respect of a job application made. That application was dismissed by the Tribunal with costs. I [the Chairman] am aware of the reasons given for that decision which included a finding that all the allegations made by the applicant were wrong and that some of them were "bordering on paranoia" indicating that the applicant was "bordering on being a vexatious litigant". The previous decision also finds, on the applicant's own evidence, that he had commenced between 70 and 74 applications over the past three years against various respondents all alleging racial discrimination and with 30 or so outstanding."
The Chairman went on to say, in a passage that may be relevant to a further decision I shall mention, in paragraph 5:
"It seems to me that there is a limit to the extent upon which an applicant can expect Tribunals to consider a large number of virtually identical cases. It is known to the Tribunal that all the cases which he has brought and have come to hearing have failed against the various respondents. In these circumstances I consider that the time has come when any further application of the same nature must be regarded as vexatious. The application is therefore dismissed."
Dr Banai was dissatisfied with that decision and appealed by a Notice of Appeal dated 14 March 1991. The matter was set down in the Employment Appeal Tribunal as a preliminary hearing along with a number of other appeals of a similar kind brought by Dr Banai. On 20 September 1991, all 4 appeals came on before the Employment Appeal Tribunal presided over by Mr Justice Wood. Three of the four appeals were dismissed, but the appeal in this case against the decision involving Bristol and Weston Health Authority was allowed to proceed to a full hearing with this direction:
"THE TRIBUNAL FURTHER ORDERS that the Treasury Solicitor be invited to appoint Counsel to act as Amicus Curiae".
In giving the Judgment of the Tribunal on all 4 appeals Mr Justice Wood said this in relation to the Bristol and Weston Health Authority appeal:
"The last case is one in which a learned Regional Chairman Mr Sara sitting at Bristol on the 8th February, 1991 "struck out" an application by Dr Banai under Rule 12(e), which is the "striking out" Rule, on the grounds that it was vexatious
Dr Banai did not attend nor was he represented. The Respondents The Bristol & Weston Health Authority, who were concerned in an earlier matter, in front of that Regional Tribunal, were represented by a Solicitor".
Mr Justice Wood referred to written representations from Dr Banai and to the decision of the Chairman, taking note of the fact that in November 1989 a similar application had been made by Dr Banai and dismissed with costs and the Chairman's comments that, in considering whether the matter was frivolous or vexatious, he was entitled to take into account the provisions of Section 42 of the Supreme Court Act 1981 and other matters connected with vexatious litigants under that Section.
The Tribunal concluded on this aspect of the case as follows:
"Those are matters which in our judgment need further argument. However, we see no reason why the Respondents, the Bristol and Weston Health Authority should incur further costs unless they particularly wish to attend on that occasion. In the circumstances and in the light of the very general approach of the learned Regional Chairman we shall ask the Treasury Solicitor to appoint an Amicus Curiae to argue the matter generally because it seems to us that there may be matters of general public interest in the light of the way in which the learned Chairman approached the matter."
A letter was then sent to the Treasury Solicitor informing him of the Order which had been made. A reply was sent naming Counsel who would appear as Amicus.
The matter has come on today for a full hearing. No Amicus has been instructed to attend, nor do we feel in the need of one to assist in the determination of this appeal in all the circumstances. The position is that the Chairman in his decision looked at the IT.1 presented to the Tribunal by Dr Banai and concluded that it was vexatious to pursue it. It is true that he referred to other matters which he considered relevant to the application to strike out, including the previous application and the general provisions of the Supreme Court Act relating to vexatious litigants.
In our view, the Chairman may have gone too far when he stated, as one of the reasons for his decision, that the point had been reached "when any further application of the same nature must be regarded as vexatious". The true position is that it is a matter of discretion in which it would be relevant for a Tribunal to take into account other similar cases brought by Dr Banai against the same authority or even, in our view, against other authorities. In our view, however, that observation of the Chairman does not mean that Dr Banai should succeed on this appeal. We have considered his IT.1 in which he makes his complaint of racial discrimination. All he stated in support of his case was that his job application had been unsuccessful because of the professional jealousy of a Miss Appleby and the rest of the Health Authority staff went to extraordinary efforts to help her to discriminate against his job application. He alleged in general terms that the circumstances of the contravention of the Race Relations Act and of the Sex Discrimination Act were similar to an earlier decision of this Tribunal - North West Thames Health Authority v Noone [1987] IRLR 357.
We agree with the observations made by the solicitors for the Health Authority in response to the IT.1 contained in a letter of 4 December 1990. The solicitors stated:
"We consider that the details of the Applicant's complaint are insufficiently precise to enable us to file the Notice of Appearance at this stage."
They had great difficulty in knowing what case they had to meet. In our view, the position is that Dr Banai did not give sufficient particulars in his IT.1 to begin to make out a case of discrimination. There is no point in this Tribunal throwing further expense upon the public by having an Amicus to assist the Tribunal when, in our view, no assistance is needed. We have come to the view that there was no error of law in the decision of the Chairman. That appeal will therefore be dismissed.
EAT/497/90 : Dr J Banai v Bournemouth Polytechnic (formerly Dorset Institute of Higher Education) (Preliminary Hearing - Ex Parte )
This is the first of the preliminary hearings in which we have to determine whether or not an arguable point of law is disclosed by the Notice of Appeal. The Notice of Appeal in this case is dated 10 September 1990. The appeal is against the decision of the Industrial Tribunal held at Southampton. The Industrial Tribunal sat on 21 June 1990 and notified its reasons to the parties on 1 August 1990.
The Tribunal ordered that the application should be struck out. Before doing so it heard evidence from Dr Banai. It heard submissions from the Respondents that the application was out of time or, alternatively, that there was no discrimination or victimisation against Dr Banai on the grounds of race or sex. The Tribunal set out the details in which the Respondents made their submissions that the case should be struck out.
There were a series of complaints starting with the complaint by Dr Banai that he had unsuccessfully applied for the position of a lecturer and that he had not been short-listed for the post. This was followed by other allegations relating to incidents alleged to have taken place in the Respondents' library. Those incidents were alleged to constitute harassment by 3 women. The Tribunal went on to consider the complaints in thorough detail and concluded that they could find no evidence whatsoever to support Dr Banai's contention that the reason why he was not short-listed, and why he was not offered the position of a lecturer in industrial and product design was because of discrimination or victimisation on the grounds of race.
The Tribunal was satisfied that the reason why the Respondents had not short-listed Dr Banai was as set out in their letter. The Applicant himself admitted that, although he felt he had other qualifications and experience, he did not have the qualifications and experience required by the Respondents.
They then considered the questions of alleged harassment. The Tribunal concluded that those complaints were frivolous or vexatious. There was no evidence to support any of his contentions that he had been discriminated against on the grounds of sex or race. The Tribunal concluded that he had failed to present a complaint in time and did not accept reasons put forward by him as ones which, in the circumstances, made it just and equitable to extend the period of time for his Originating Application. So, even if the application had not been dismissed on the grounds that it was frivolous and vexatious, the Tribunal would have found that it was out of time under both the Sex Discrimination Act and the Race Relations Act.
The decision of the Tribunal was, in our view, correct in law and the Notice of Appeal put in by Dr Banai does not show there was any error of law. We would add that one only needs to consider the IT.1 submitted by Dr Banai to realise how confused and unfounded his allegations are. The appeal is dismissed.
EAT/499/90 : Dr J Banai v (1) East Dorset Health Authority (2) Poole Job Centre - (Preliminary Hearing - Ex Parte)
This is an appeal against the decision of the Industrial Tribunal held at Southampton. For reasons notified to the parties on 1 August 1990 the Tribunal unanimously decided that Dr Banai's application based on sex and race discrimination should be struck out. Dr Banai was dissatisfied with the decision and appealed by Notice of Appeal dated 10 September 1990. In a detailed decision the Tribunal considered the complaints made by Dr Banai. They heard evidence from him. The Respondents' case was that the application was out of time and that there was no discrimination or victimisation against him on the grounds of race or sex.
The Tribunal went through the details of the advertisements which had been seen by Dr Banai for a senior grade physicist and a medical physics technician. He gave evidence of how he obtained the application form and of the events which gave rise to his complaint. The Tribunal, having considered the evidence, concluded that, so far as those two posts were concerned, there was no evidence whatsoever to suggest that he was not short-listed for either post, or selected for either post because of discrimination on the grounds of race or sex. The Tribunal stated the position was simply that he was not qualified for those positions.
The Tribunal dealt with an argument advanced by Dr Banai that another part of his application should not be dismissed on the grounds that it was frivolous or vexatious. But the Tribunal came to the clear conclusion from their findings that there was no evidence to support his contentions of discrimination and that, in those circumstances, the application should be struck out.
The Tribunal also dealt with the position whether his applications were within time and concluded that they were not. Even if the application had not been struck out on the grounds that it was frivolous and vexatious under Rule 12(2)(e), they would find the application was out of time. The Tribunal went on to consider his complaints against the other Respondent and came to similar conclusions. They ordered the applications to be struck out and also held that the applications were out of time and that it would not be just and equitable to extend the time for making the complaint.
We have been unable to find in the decision or in Dr Banai's Notice of Appeal any flaw in the legal basis of the decision. There is no jurisdiction to entertain this appeal. There is nothing arguable about it which would deserve the matter going to a full hearing. We would dismiss that appeal.
EAT/61/91 : Dr J Banai v Exeter Health Authority (Preliminary Hearing - Ex Parte)
This appeal is dated 29 January 1991. The appeal is against the decision of the Industrial Tribunal held at Exeter on 11 September 1990. For reasons notified to the parties on 19 September the Tribunal made a preliminary ruling as to whether the application was in time. The unanimous decision of the Tribunal was that, although the application was presented out of time, it was just and equitable to entertain it. The substantive hearing took place on 2 January, also at Exeter. For reasons notified to the parties on 7 January 1991 the Tribunal unanimously decided that the application should be dismissed. Dr Banai was ordered to pay £872 to the Respondents in respect of their costs.
Like the cases already mentioned, the complaint was of race and sex discrimination. He complained of direct discrimination on the grounds that he was an immigrant, and indirect racial and sex discrimination because of the operation of what he alleged to be an age bar. The Tribunal set out the relevant facts relating to the application which Dr Banai had made for jobs to the Exeter Health Authority for the post of a medical physicist. The application had been unsuccessful. After reviewing the evidence and the allegations made by Dr Banai, the Tribunal concluded that he had failed to establish his case. There were no reasonable inferences to be drawn which would lead them to the conclusion that there was any racial or sex discrimination against him. His application was rejected, as was his claim that he had been victimised because of his previous Industrial Tribunal case against the same Respondents. The Tribunal concluded that he had acted frivolously, vexatiously or unreasonably, that he had never had any evidence, nor were there any inferences that he could reasonably expect to be drawn. That finding was the basis of their Order that he should pay costs in the sum of £872.
In our view, the Tribunal came to the correct decision on the basis of the findings of fact made by them. There is no error of law revealed in the decision or identified in the Notice of Appeal. There is nothing arguable which deserves a full hearing. The appeal will be dismissed at this preliminary stage.
EAT/66/91 : Dr J Banai v (1) B D H Ltd (2) Sieger Ltd (Preliminary Hearing -
Ex Parte )
This appeal is dated 25 January 1991. It is an appeal against a decision of the Industrial Tribunal held at Southampton on 5 December 1990 when it considered two originating applications taken out by Dr Banai. For full reasons notified to the parties on 10 January 1991 the Industrial Tribunal ordered the 2 applications to be struck out as frivolous. The complaints, as before, were of discrimination. The Tribunal set out the details of the complaints under the Sex Discrimination Act and Race Relations Act. They dealt with the factual position in detail and stated their conclusions in paragraph 47 of the decision. The Tribunal concluded that, on the submissions of Dr Banai, upon perusal of the case papers and on consideration of the cases to which he had referred, the case brought against BDH Ltd in respect of alleged discrimination and against Sieger Ltd in respect of other acts of discrimination were out of time under the relevant provisions of each Act. They also held that the striking out order was appropriate. They considered authorities which were relied upon by Dr Banai and stated this:
"The facts as presented to us by the applicant show to us very clearly and conclusively that the complaints have no foundation whatever by way of sex or race discrimination. There is no prima facie case at all. The claims made by both applications are manifestly misconceived and can have no prospect of success. We find from the facts that the claims are frivolous and that it would be an abuse of the procedure of the Tribunal to proceed with them. They are based on age discrimination which is not unlawful in the UK and alleged "dirty gossips" and other matters which are not capable of constituting justifiable claims."
We are unable to find in the full reasons given by the Tribunal or in the Notice of Appeal submitted by Dr Banai on 25 January 1991, any error of law which would be arguable at a full hearing. The appeal will be dismissed at this preliminary stage.
EAT/195/91 : Dr J Banai v Penny & Giles Controls Ltd (Preliminary Hearing
Ex Parte)
This appeal is dated 26 April 1991. The appeal is against a decision of the Industrial Tribunal held at Southampton on 13 March 1991. For reasons notified to the parties on 28 March 1991 the Tribunal, having decided that the application was presented in time, went on to decide that the application should be struck out as vexatious under Rule 12(2)(e) of the Industrial Tribunal Rules.
The Tribunal, in their reasons, set out the complaints made by Dr Banai of race and age discrimination, as well as sex discrimination. They pointed out how he made an application for the position of a test technician and assembler, but was not invited for an interview. There were a substantial number of applicants. A short list was taken. He was not on the short list. The Tribunal said the case was as simple as that:
"There is no possible reason to conclude that it has anything to do with sex discrimination, race discrimination or any other sort of discrimination. Should this case proceed to a hearing, we can see no possible basis on which a Tribunal can draw any inference in favour of the applicant's claim and now that the information has been provided by the respondent's solicitors, and we are aware that that was not provided at the date of the application, we consider that to continue with these proceedings would be vexatious".
They therefore struck it out. There is nothing in the reasons given by the Tribunal for the order it made or in Dr Banai's Notice of Appeal which reveals an arguable error of law in the decision. The appeal will be dismissed at this preliminary stage.
EAT/293/91 : Dr J Banai v Christie Hospital & Holt Radium Institute
(Preliminary Hearing - Ex Parte)
This is an appeal dated 28 May 1991 against the decision of the Industrial Tribunal held at Manchester, on 3 and 17 May 1989. The Tribunal, for the reasons notified to the parties on 7 June 1989, made preliminary rulings that certain complaints of racial discrimination made by Dr Banai were within the time limits specified by the Race Relations Act. The other complaints were outside the period and the Tribunal did not consider it just and equitable to consider them.
The complaints which were allowed to proceed were dealt with by the Industrial Tribunal sitting at Manchester on 18 April 1991. For full reasons notified on 17 May 1991 the Tribunal unanimously decided that Dr Banai had not suffered victimisation or racial discrimination as alleged. His case was therefore dismissed. The Tribunal set out the history of the matter giving rise to the complaint. The complaint originated in an application for a position at the Christie Hospital which he had made in December 1988. That was coupled with a claim of a similar kind relating to an application for a position at the same hospital in September 1988.
The Tribunal referred to the earlier history of the proceedings. Having investigated all the facts the Tribunal came to this conclusion:
"After full consideration of the matter the Tribunal were of the unanimous opinion that there had been no racial discrimination by way of victimisation or otherwise under the provisions of the Race Relations Act 1976 accorded to the applicant. It was clear to the Tribunal on the evidence that whilst the applicant's qualifications were extremely impressive they were nevertheless not appropriate or suitable for the position which was offered by the respondent nor in the opinion of the respondent was the applicant a suitable person in their opinion to be placed in their career structure and also to undergo long rigorous training which would be required. The Tribunal found on the evidence of Miss Nuttall that this latter decision was completely within the normal capability of herself and her colleagues when selecting persons for shortlisting for these positions and in all the circumstances therefore the Tribunal unanimously concluded that the applicant's claim failed."
The Tribunal declined to make an Order for costs against the applicant.
The appeal is against that decision. We are unable to detect in the Notice of Appeal or in the decision itself an arguable error of law which would justify this matter proceeding to a full hearing. The appeal will be dismissed.
EAT/491/91 : Dr J Banai v Revlon Group (Preliminary Hearing - Ex Parte)
By the Notice of Appeal dated 22 August 1991 Dr Banai appeals against a decision of the Industrial Tribunal held at Southampton on 12 August 1991. For the full reasons notified to the parties on 20 August the Tribunal decided that Dr Banai's complaint of racial and sex discrimination should be struck out as frivolous and vexatious under the provisions of Rule 12(2)(e) of the Industrial Tribunal (Rules of Procedure) Regulations 1985.
The complaint brought by Dr Banai was that he had been subject to discrimination. In their Notice of Appearance the Respondents, Revlon Group Ltd, said that they had interviewed Dr Banai for a position as a temporary assembly operative on 19 June 1990. The view taken was that he would not fit in to the working environment on the assembly lines. He was offered an interview for the position of export despatch operator. In the interview he was found to be unsatisfactory. Subsequently Dr Banai informed Revlon Group that he did not wish to be considered for the job because of physical exertion and low pay. He did insist, however, that he should be considered for the earlier job that he had applied as the assembly operative job.
Various allegations were made by Dr Banai about discrimination. The Tribunal considered the papers, listened to Dr Banai's evidence and unanimously concluded that there was no fact or substance in his complaints; that the reason for his rejection for employment had nothing to do with discrimination against him and that the allegations he made had existed only in his mind. For those reasons a Striking Out Order was made.
We have considered the full reasons and the points that are set out in Dr Banai's Notice of Appeal. There is no error of law on the part of the Tribunal in its decision. There is no point in this matter proceeding to a full hearing. The appeal is accordingly dismissed.
EAT/547/91 : Dr J Banai -v Nuclear Electric PLC (Preliminary Hearing - Ex Parte)
This is an appeal by Dr Banai against the decision of the Industrial Tribunal held at London South on 24 July 1991. The Tribunal notified the full reasons for the decision on 9 August 1991 and Dr Banai's Notice of Appeal is dated 21 August 1991.
The unanimous decision of the Tribunal was that his complaint of unlawful racial discrimination failed and should be dismissed. He was ordered to contribute the sum of £1,000 towards the costs of the Respondent. It was another case of Dr Banai complaining of unlawful discrimination on the grounds of race and victimisation because of previous Industrial Tribunal applications. The complaint was in respect of a failure to shortlist him for an interview for the vacant post of a Dosimetry Database Engineer.
The Tribunal examined the evidence to see if there was anything in support of the alleged direct racial discrimination and victimisation complaints in respect of the failure to shortlist him. The Tribunal stated correctly that it is always for the applicant to make out his or her case. Complaints often have to be dealt with on the basis of what are the proper inferences to be drawn from the primary facts. The Tribunal commented that Dr Banai put no evidence before them beyond his own supposition. He had made no effort to submit a Race Relations Act Questionnaire. He did not seek to ensure that the Tribunals ordered production of information about other candidates at the time when such information would have been available. The Tribunal said there was no evidence from which they could draw the necessary inference in his favour. It could be clearly seen, in their view, that his obvious over-qualification for the post was just as likely to have caused his rejection as any other factor. In those circumstances it was inevitable that the claim should be dismissed.
The Respondent applied for costs. In ordering the sum of £1,000 costs the Tribunal expressed this view that there had been repeated failures on the part of Dr Banai in his applications to Tribunals following his unsuccessful attempts to obtain employment. In each case he alleged racial or age grounds. They commented:
"Many applications have been struck out either in these tribunals or before the Employment Appeal Tribunal and the applicant accepted that he has said on previous occasions that he will apply for jobs and make applications to these tribunals when they are refused. He does so seemingly without thought of proof of his allegations which the employer has had to do his best to meet and this case, as no doubt many others, would seem to have no merit even upon superficial examination. The applicant's intention appears to be to wear down employers by these tactics and to cause expense, both to them and to the public purse. Furthermore, he was warned at a pre-hearing assessment that this case was unlikely to succeed and that he would be liable for costs if he continued. The applicant may be unemployed but his behaviour cannot be allowed to continue unsanctioned."
We have examined the decision of the Tribunal and the Notice of Appeal. There is no arguable point of law raised for the determination of this Tribunal and accordingly that appeal will be dismissed.
EAT/573/91 : Dr J Banai v Hampstead Health Authority (Preliminary Hearing -
Ex Parte)
The Notice of Appeal in this case is dated 27 January 1990 and seeks to appeal a decision of the Industrial Tribunal notified to the parties on 19 December 1989. The hearing had taken place on 25 October 1989.
The Tribunal unanimously stated that its decision was that the application should be dismissed. Dr Banai was ordered to pay £600 costs. His complaint was that the Respondent Health Authority had been guilty of victimisation and/or indirect racial discrimination within the meaning of the 1976 Act. The Authority denied discrimination. At the hearing Dr Banai appeared in person and the Respondents were represented by their Personnel Manager.
The Tribunal considered the facts of the case prefacing their review of the facts by general observations about Dr Banai's many applications for employment in various public sector employment, mostly the National Health Service. The Tribunal said:
"All of those applications have been unsuccessful, and Dr Banai made some 60 to 70 applications to the Industrial Tribunals in various parts of the country alleging racial discrimination. None of those applications have been successful either."
The Tribunal referred to the applications which had been made and to the evidence in relation to the posts for which Dr Banai sought employment. The Tribunal stated its conclusions that Dr Banai was not selected because other candidates were more suitable for the job, having regard to Dr Banai's CV and his application form.
The Tribunal referred to the fact that, in their view, it had been unreasonable for Dr Banai to continue with the proceedings after he had received a warning about costs at a pre-hearing assessment. They ordered him to pay £600 costs.
It is relevant to observe that in that case it appears that Dr Banai had been out of time for bringing his appeal to this Tribunal. By an Order dated 18 April 1990 an application for extension of time was considered by the Registrar and was refused. Dr Banai then appealed to the President, Mr Justice Wood. He ordered that the appeal against the Registrar's Order should be allowed. At that hearing on 20 September 1991 the President ordered that the time for filing the Notice of Appeal should be extended until 31 January 1990.
Despite the consideration that the matter must have received on the application for extension of time we are of the view that there is no point of law raised in this appeal. On the application for extension the President of the Tribunal would not have been concerned with the merits of the appeal. His concern would have been whether there was a justifiable excuse for not having brought the appeal within the 6 weeks time limit.
We have considered the full reasons given by the Industrial Tribunal for their decision. We cannot find any error of law in their decision, nor is one identified in the Notice of Appeal. There is no point in this matter proceeding to a full hearing. The appeal is dismissed.
EAT/544/91 : Dr Banai v (1) Department of Social Security (2) Nova Contract Cleaners (Preliminary Hearing - Ex Parte)
This is an appeal against the decision of the Industrial Tribunal held at Southampton on 12 August 1991. For full reasons notified to the parties on 20 August 1991 the Tribunal struck out Dr Banai's complaint as being frivolous and vexatious. The Order was made under the provisions of the Industrial Tribunal Rule 12(2)(e).
The Order was made on a preliminary hearing. The Tribunal referred to the complaint of racial discrimination and sex discrimination and to the Respondents' Notice of Appearance and supporting documents. The case arose again out of an application by Dr Banai for a position. That application was unsuccessful. The position in question was that of a temporary assembly operative. The Tribunal referred to the interview that Dr Banai had and to the allegations made by Dr Banai subsequently. The allegations were denied by the Respondents. Their response was that they operated in a competitive market for temporary labour and the only bars they have in regard to employment in this category relate to health or previous behaviour records.
The Tribunal stated that they considered all the papers in the case and listened to Dr Banai. They unanimously came to the conclusion that there was no factual substance to his complaints. The reasons for his rejection for employment had nothing to do with any discrimination against him. The complaint was struck out.
Dr Banai was dissatisfied with the decision. His Notice of Appeal was dated 18 September 1991. We have examined the decision which he has appealed against and the grounds of appeal stated in the notice. We are unable to find any arguable point of law on the appeal which would justify this matter going to a full hearing. The appeal is dismissed at this preliminary stage.
EAT/551/91 : Dr J Banai v General Medical Council (Preliminary Hearing - Ex Parte)
This appeal by Dr Banai raises a different point from those in the previous appeals. The appeal by notice dated 15 August 1991 is against a decision of the Industrial Tribunal held at London South on 25 April 1991. For reasons notified to the parties on 8 July 1991 the Tribunal decided that the application should be dismissed as vexatious and/or frivolous and that he should pay to the General Medical Council who were the Respondents, the sum of £2,310 in respect of their costs. The complaint was one of racial and sexual discrimination. The complaint was against the General Medical Council, but apparently arose out of treatment complained of by Dr Banai at the hands of a Dr G B Green, the medical officer for Dr Banai's employers when he was working at the Atomic Energy Authority at Winfrith Atomic Energy Establishment.
An opinion had been given by Dr Green that it was in the best interests both of Dr Banai, his present colleagues and the Authority in general, if his position was terminated as soon as possible. That was the period during which Dr Banai was a Birmingham University Research Fellow working at Winfrith. Dr Banai appears to consider that there was an act of racial discrimination against him by the authorities at Winfrith.
Complaints were made by Dr Banai about his treatment. He started to write letters to the General Medical Council. It was explained to him that the Council was not in a position to intervene in his case. The position taken by the General Medical Council about Dr Banai's complaints is clearly set out in the Notice of Appearance put in by the General Medical Council Solicitors. The Council explained that they resisted the complaint of discrimination which appeared to be founded on the letter of Dr Green which we have mentioned and the response of the Council to a complaint made by Dr Banai to the Council about Dr Green. The points taken by the General Medical Council were that the application was out of time, that there was no justification for granting an extension and that the complaints seemed to suggest that the Council aided unlawful acts committed by Dr Green. It was not, however, suggested by Dr Banai that the Council had any knowledge of the acts of Dr Green or had assisted him in the steps that he took. The Council had no knowledge and played no part in such steps as may had been taken by Dr Green which affected Dr Banai.
The General Medical Council pointed out what its statutory functions were and reasoned to the conclusion that it never had any relationship with or contact with Dr Banai, other than to receive his complaint about Dr Green. In those circumstances the Tribunal had no jurisdiction to deal with the complaint against the Council and ought to strike out the complaint.
The submissions made on behalf of the General Medical Council were accepted by the Tribunal. The Tribunal held that they had no jurisdiction to deal with the complaint against the Council. The application was dismissed as frivolous and vexatious.
The Notice of Appeal seeks to challenge that decision, but we are unable to find, in the Notice of Appeal or in the decision, any arguable point of law which would justify this matter proceeding to a full hearing. At this preliminary stage, the appeal will be dismissed.
EAT/612/91 : Dr J Banai v Science & Engineering Research Council
(Preliminary Hearing - Ex Parte)
Dr Banai's next appeal is against a decision of the Chairman sitting alone at Bristol on 24 October 1989. The Chairman gave a full decision setting out his reasons for deciding that the Originating Application should be struck out. The decision was sent to the parties on 16 November 1989. The Notice of Appeal by Dr Banai is dated 22 December 1989.
The complaints in the Originating Application were of racial discrimination by way of victimisation or indirect racial discrimination. The Chairman observed that it was one of 72 applications which Dr Banai had made against numerous Respondents. The Chairman commented:
"It is perhaps significant that the applicant has duplicated the word "Racial Discrimination by way of victimisation and/or" and his name, address, date of birth and "Job applicant" in the form of Originating Application which indicates that he proposes before applying for a job that he will present an Originating Application if he is unsuccessful in obtaining it. That gives some indication of the attitude which the applicant is adopting. However, having said that, I am mindful that there is always the possibility that an application may have merits in spite of the applicant "crying wolf" too often. I have therefore listened to what the applicant has said with great care."
The Chairman noted that the Respondents had filed a Notice of Appearance resisting the claim and asserting that the application was frivolous and vexatious.
In his decision the Chairman referred to the advertisement for the job to the application made by Dr Banai and the criteria for shortlisting. He referred to the applicant's CV and reference from his previous employer and to the notes issued to interview panels. The Chairman referred to the points made by the Respondents in their Notice of Appearance. The Respondents did not attend the hearing and asked the Tribunal to consider the Notice of Appearance and accompanying documents.
The Chairman considered Dr Banai's claim that the Respondents were only shortlisting younger men and that was indirect discrimination as a substantially smaller proportion of qualified persons at his racial group would be able to comply than the proportion of similarly qualified persons of a different racial group. The Chairman commented that the applicant was quite unable to develop his argument and concluded as follows:
"I consider that the applicant is pursuing a policy of presenting Originating Applications against anyone who refuses to interview him. He is doing it vexatiously in order to try and force employers to employ him. In any event his application in this case is frivolous. I strike out his Originating Application."
In our view that was a correct decision for the reasons set out by the Chairman. We are unable to find any arguable point of law either in the decision or in the Notice of Appeal. The case should not proceed to a full hearing. The appeal will be dismissed at this stage.
EAT/645/91 : Dr J Banai v South West Thames Regional Health Authority
(Preliminary Hearing - Ex Parte)
This is an appeal by Dr Banai. It is dated 4 November 1991. The appeal is against a decision of the Industrial Tribunal held at London South on 24 September 1991. For reasons notified to the parties on 18 October the Tribunal decided to strike out Dr Banai's application. They directed that the application as amended be listed for a pre-hearing assessment.
The Tribunal referred to the complaint under the Race Relations Act and to the claim by the Respondents that it should be struck out on the grounds that it was vexatious and frivolous and also for non-compliance with an Order of the Tribunal dated 2 July 1991 for the provision of further particulars of his Originating Application. Dr Banai responded to the application to strike out. His arguments were summarised in paragraph 2 of the decision. As appears from the concluding paragraph Dr Banai's amended application was to be listed for a pre-hearing assessment. His appeal seems to be against that decision, which was not a final decision of his case.
That seems to indicate to this Tribunal that Dr Banai was not only adopting a policy of suing every prospective employer who denied him an interview or an appointment, but that he was also seeking to appeal to this Tribunal any and every kind of decision made by an Industrial Tribunal, even though it may not have been prejudicial to his interests. Instead of letting the matter go forward for a pre-hearing assessment, Dr Banai adopted the futile course of seeking to appeal that order. It was obviously the right order to make in the circumstances. It is not vitiated by any error of law revealed in the decision or in the Notice of Appeal. There is no arguable point of law for a full hearing by a Tribunal. The appeal will be dismissed at this stage.
EAT/646/91 : Dr J Banai v St Edwards RC VA School (Preliminary Hearing -
Ex Parte)
This is the last of Dr Banai's numerous listed appeals. His appeal in this case is by a notice dated 6 November 1991. It is an appeal against a decision of the Industrial Tribunal held at Southampton on 21 October 1991. For reasons notified to the parties on 23 October 1991 Dr Banai's complaint of racial discrimination was struck out as frivolous and vexatious.
The Tribunal referred to the IT.1 in which Dr Banai ventilated his complaint about the manner in which his reply to a newspaper advertisement by the Respondents for a school cleaner had been dealt with. His complaint was that the position either had not been filled, contrary to what he was told it was when he applied for it, or that the Respondents had been negligent in filling the post before waiting to see if someone from an ethnic minority applied for the vacancy. He concluded that he had either been discriminated against or victimised on account of his race.
The Respondents were not represented at the hearing, but they did put in an IT.3 stating that the successful applicant was a female who, prior to Dr Banai contacting them, had been interviewed, offered and accepted the job. Dr Banai was only one of four or five applicants who had been told that the vacancy was filled.
The Tribunal considered the complaints and found that there was no basis for the allegations of racial or other discrimination. They unanimously decided that his claim alleging racial discrimination was frivolous and vexatious and should not be permitted to proceed to a full hearing. The Order striking it out was clearly correct. There is no error of law in the full reasons. No arguable point of law is identified in the Notice of Appeal. At this preliminary stage his appeal will be dismissed.
