Appeal No.	EAT/1050/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 October 1999
Judgment delivered on 17 December 1999

Before
THE HONOURABLE MR JUSTICE HOLLAND
LORD DAVIES OF COITY CBE
MR T C THOMAS CBE

MISS R BONNA	APPELLANT

OXFORD CITY COUNCIL	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MISS K MONAGHAN
(of Counsel)
Johns & Saggar
193-195 Kentish Town Road
London
NW5 2JU	
For the Respondents	MISS S ASHTIANY
(Solicitor)
Morgan Cole
Apex Plaza
Forbury Road
Reading
RG1 1AX	

	MR JUSTICE HOLLAND:

Introduction

1.	This Appeal reflects the following chronology:

13th December 1993 - Miss. Bonna (who is black and of Nigerian origin) commenced employment with Oxford City Council as a Senior Assistant Solicitor.

17th November 1995 - By way of an IT1 she initiated a complaint against her employers and against a local Councillor, Carol Roberts, alleging racial harassment and discrimination.  The complaint was apparently triggered by a clash between Miss. Bonna and the Councillor at a Housing Committee Meeting on the 5th September 1995 although there was an intimation of some reliance on other earlier incidents.

14th April 1997 - By way of three IT1’s issued on this day Miss. Bonna made complaints against the Council alleging, respectively, racial victimisation, racial discrimination and sexual discrimination.  Each IT1 was accompanied by extensive particulars.  That relating to victimisation essentially complained of the steps taken by the Council in response to the complaint that founded the first IT1.  The particulars served with the complaints of discrimination were largely identical - she invoked the allocation of work to her following her return from maternity leave in February 1997 as reflecting racial, further or alternatively sexual discrimination

2nd February 1998 - Miss. Bonna stopped working so as to take leave and to prepare her case for the forthcoming Tribunal hearing.

23rd February 1998 to 27th March 1998 - All four complaints were heard by an Employment Tribunal held at Reading (referred to in argument as ‘the Hardwick Tribunal’ after the name of the chairman).  The hearing had been preceded by the production by Miss. Bonna of a thirty-six-page statement and evidence was received on some eight days.  It is apparent from the subsequently served Extended Reasons that an exceptionally patient Tribunal listened to evidence about a multitude of incidents covering the period from 13th December 1993 to the period following he return from maternity leave.  The picture painted by the Extended Reasons is of someone who could not countenance any rebuff, perceived or real, without perceiving a racial or sexual motive.

31st March 1998 - She terminated her employment before there was a return to work following her leave.

21st April 1988 - By way of a fifth IT1 Miss. Bonna initiated further complaints against the Council alleging racial discrimination and harassment;  sexual discrimination and harassment;  victimisation and constructive dismissal.  The IT1 is accompanied by a statement of particulars extending over some eight pages.  The bulk of the content again relates to the way that she was treated following her return from maternity leave.  Other allegations are however made -  to these we return later in this judgment.

22nd April 1998 - The Hardwick Tribunal promulgates its decision accompanied by extensive Extended Reasons.  Miss. Bonna loses on every issue and there are strong findings against her.

5th June 1998 - Mr. J.G. Hollow, a Chairman sitting alone at Reading dismissed the fifth complaint on an application by the Council - in essence finding that it was not justiciable.

2.	Miss. Bonna appeals against the latter ruling - it is our task to decide whether it reflected such an error of law as to justify quashing so as to allow the fifth complaint, or at least part of it, to go forward for a hearing.  Before us, Miss. Bonna had the advantage of representation by Miss. Monaghan and her submissions broadly fell under two heads.  We deal with such successively.

3.	Res Judicata.  The first tranche of submissions relate to the Chairman’s reliance upon the doctrine of res judicata. It is helpful to turn immediately to the relevant law.  This is conveniently introduced by reference to a decision of the Court of Appeal in the context of an appeal from the Employment Appeal Tribunal:  Divine - Borley v Brent London Borough Council (1998) ICR 886.  At 888 Simon Brown L.J. set the scene:

“The plea of res judicata encompasses three types of estoppel:  cause of action estoppel, issue estoppel in the strict sense, and issue estoppel in the wider sense - the sense that ordinarily precludes a person from bring fresh proceedings in respect of a matter which could and should have been litigated in earlier proceedings.  This wider form of issue estoppel has its origins in the judgment of Sir James Wigram V.C. in Henderson v Henderson (1843) 3 Hare 100, 155:
‘where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of   matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case.  The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time’.”

4.	In the subsequent judgments the Court of Appeal held that issue estoppel in both strict and wider senses applied to proceedings before Employment Tribunals.  There is a helpful passage in the judgment of Potter L.J. at 898:

“The basis of the rule in Henderson is the avoidance of multiplicity of litigation in relation to a particular subject or set of circumstances in order to avoid the prejudice to a defendant which inevitably results in terms of wasted time and cost, duplication of effort, dispersal of evidence and risk of inconsistent findings which are involved if different courts at different times are obliged   to examine the same substratum of fact which gives rise  to the subject of litigation.  The rule is justifiable and justified as a matter both of common sense and common justice between the parties and it is the aspects of prejudice which I have mentioned which will usually render a second bite of the cherry worthy of the description “abuse of process”.  They are essentially objective considerations to which the particular circumstances of the parties will generally be irrelevant;  hence the need for special circumstances if the full rigour of the rule is to be alleviated.”

5.	Turning to the ruling under appeal, the Chairman directed himself that the law was as stated above and then adverting to all but one of the allegations made by Miss. Bonna, held:

“8.  I have considered these matters and I have come to the conclusion that essentially what the applicant seeks to do is to re-litigate the same type of allegations which were before the Tribunal in February and March of this year.  Whether the doctrine of res judicata applies in its narrower sense to particular allegations, as the respondents say and whose argument I prefer, or whether in the wider sense, as the respondents also say, it seems to me that the issue is the same;  they were either allegations which were litigated or, alternatively, allegations which could and should have been litigated and I can see no reason why they could not have been brought before the Tribunal during the earlier proceedings.  So far as the allegations are contained in the various paragraphs that I have mentioned, they are not allegations which can now be proceeded with before this Tribunal.”

6.	On behalf of Miss. Bonna, Miss. Monaghan submits that in so holding the Chairman failed properly to apply the law to the case as was raised in the statement that accompanied the fifth IT1.  To follow her submission it is necessary to subject the complaint raised by the IT1 to some analysis.  This is not assisted by Miss. Bonna’s failure (surprising, given her profession) to utilise chronological order.  Seeking to achieve the latter, we identify the allegations as follows:

a.	Paragraph 15.  She complains that a referral to an occupational health specialist in May 1996 constituted victimisation inspired by the first IT1.

b.	Paragraph 4.  She complains of racial discrimination reflected in the allocation of work following her return from maternity leave in February 1997.  This allegation is further developed in paragraph 5.

c.	Paragraph 3.  She complains of “bullying, harassment, intimidation and victimisation” by an unnamed male manager following this same return from maternity leave.

d.	Paragraph 2.  She complains of sexual harassment from mid-February  1997 by a white male employee, essentially by following her whenever she went to the toilet.

e.	Paragraph 8.  She complains that dissemination within the office of explanations for her absences was discriminatory - again this is dated as from February 1997.

f.	Paragraph 21.  She complains that a failure by the Respondents to respond properly to her complaint of a conflict of interest in connection with a December 1997 disciplinary appeal hearing amounted to racial discrimination or victimisation.

g.	Paragraph 20.  She complains about the discriminatory effect of a change of procedure for dealing with Housing Benefit Review Boards in about December 1997 or January 1998.

h.	Paragraph 19.  She complains about the attitude of the Director of her department as evinced in a meeting with her on or about the 26th January 1998 concerning her recent representation of a complainant before an Industrial Tribunal.

i.	Paragraphs 12 and13.  She complains about the conduct of the Respondents following her application for compassionate leave in January 1998

j.	Paragraph 14.  She complains of the conduct of the Respondents in connection with the Hardwick Tribunal hearing:

“my employers got my former UNISON representative who had represented and assisted me at two previous grievances which were the subject of my Industrial Tribunal proceedings to give evidence against me.  I felt that this action by my employers was oppressive and amounted to intimidation and victimisation on account of my Industrial Tribunal proceedings.”

k.	Paragraph 16.  She makes further complaints about matters arising in or out of the hearing before the Hardwick Tribunal.

7.	Finally, in paragraphs 5, 6, 7, 9, 10, 11, 17, 18 and 22 she makes various complaints that are not seemingly tied to any specific dates.  It is   to be noted that paragraph 22 concludes:

“..... I felt unwanted by the Respondents and singled out for the treatment which I received because being the only black solicitor in the Respondents’ employment my face did not fit.  I felt that my life as an employee at the Respondents’ establishment was continually made so intolerable and unbearable that I could not continue to nor could I reasonably be expected to continue in my employment there.  I also felt that the employer-employee relationship had been so severely and continually undermined by my employers and that the implied terms of mutual trust and confidence had been breached by them to such a degree that I could not remain in their employment any longer.  Despite my complaints, nothing changed and instead the unacceptable treatment, harassment, victimisation and discriminatory treatment which I was being subjected to continued unabated.  If it was not one thing it was another.  I was afraid of being subjected to such further treatment and felt that the only way to break the cycle was to leave the employment of the Respondents.  On 1st April 1998, I formally handed in my notice left the employment of the Respondents summarily without notice and pleaded and plead constructive dismissal.”

8.	Miss. Monaghan’s submissions are in effect as follows:

a.	The Hardwick Tribunal was concerned with the issues raised by the first four IT1’s, that is, with issues that had arisen in the period ending 14th April 1997.

b.	Those IT1’s were not amended so as to widen their ambit but in any event any amendment could only be as at 14th April 1997.  There was procedurally no scope for amendment so as to cover events subsequent to the latter date.

c.	Pausing here, the Chairman was therefore wrong to exclude by reference to the res judicata doctrine complaints relating to the period post 14thApril 1997.

d.	Further and in any event, given that she did not resign until the Hardwick Tribunal hearing, her allegation of constructive dismissal was fresh and not the subject of any earlier ruling - and, as an allegation, that necessarily re-opened for fresh consideration in this new context all that preceded and allegedly led up to her resignation.

e.	The Chairman was therefore wrong to rule ‘res judicata’.

9.	Miss. Ashtiany’s submissions in response were to the effect that the Chairman had been right.  Any fresh hearing as initiated by the fifth IT1 would inevitably cover again that which had been ruled upon by the Hardwick Tribunal.  In reality Miss. Bonna was seeking to re-litigate the same issues and the Chairman was accordingly correct.

10.	Having considered these submissions and all the material put before us, we rule as follows:

(1)	The matters of complaint listed by us as j. and k. could not readily be excluded as res judicata but equally could not conceivably found fresh complaints.  If these points were ever to be argued it was either as the matters arose, that is, with the Hardwick Tribunal, or by way of appeal.  Had the Chairman struck them out as frivolous or vexatious he would have been plainly right and for that reason his decision with respect to such matters does not found an appeal.

(2)	Miss. Monaghan’s submissions would not appear to challenge the Chairman’s ruling so far as it covers the complaints listed by us as a. to e. inclusive - save to the extent that such may be resurrected by the allegation of constructive dismissal.  There was plainly scope for such matters to be covered under the IT1’s of the 14th April 1997 and it is apparent that their essential thrust was adjudicated upon by the Hardwick Tribunal, see paragraphs 67 and 68 of that Tribunal’s Extended Reasons.

(3)	What then of the remaining complaints, as listed by us?  Again leaving aside the constructive dismissal point, we have no doubt but that such fell foul of estoppel in the wider sense, that is, that none survive the Hardwick test.  As at the beginning of the Hardwick hearing all these remaining complaints had arisen and merely awaited expression.  Thereafter and over a prolonged period of time there was a full and thorough enquiry into the relationship between Miss. Bonna and the Council, in its turn leading to assessments of Miss. Bonna and the Council.  Thus, paragraph 69, “We record that we find not a scintilla of validity in the applicant’s allegations of unlawful discrimination and victimisation.  On the contrary we consider the respondent went to enormous lengths to treat the applicant with extreme consideration whereas in our view the applicant was overly sensitive to any suggestion of criticism.”  Again, paragraphs 70 and 71:

“70  The Tribunal was sad to see an applicant who has had the talent, drive and ability to qualify as a solicitor to present this myriad of allegations which we consider have no foundation.  One would expect more objectivity in a trained lawyer.  It was apparent to us that some of the applicant’s work was commendable, such as the eviction of the “neighbours from hell”, but other parts of her work were more mercurial and questionable.  She lacked the essential understanding of a big organisation.  Her advice to the housing committee on 5 September was both sloppy in that it had not been properly researched and naïve since she ought to have known that such stark advice to the councillors would provoke concern and anger.  We cannot understand how she cannot perceive the difference in the advice she tendered to the housing committee and the advice Mrs Irwin tendered.  The applicant seemed incapable of recognising how a big organisation and indeed a local authority works and the fact that councils are run through and by the authority of committees operated by elected members and those committees are served by officers such as the applicant.
71  We have no hesitation is dismissing the complaints against the first respondent and indeed those made at the hearing against its officers.  The management who appeared before us demonstrated a calm and even-handed approach to the applicant coupled with incredible patience in all the circumstances.”

(4)	Turning to the guidance given by Henderson, all these complaints were such “which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.”

(5)	Does the new complaint of constructive dismissal invite any re-appraisal given that the employment did not terminate until after the Hardwick hearing?  We think not.  As at the beginning of that hearing she had ceased her attendance at work and her case for regarding herself as constructively dismissed - if valid - had effectively to be complete.  The Hardwick Tribunal could hardly have avoided making findings that the Council had evinced an intention not to be bound by her contract of employment if such a case had any validity.  As it was, their findings as cited above are wholly inconsistent with any such proposition but reflect the fact that that Tribunal did or should have taken into account everything that bears upon ‘constructive dismissal or no’.  We write ‘did’ out of deference to the wide range of evidence received by that Tribunal;  and ‘should’ out of deference to that part of the guidance given by Henderson already cited above.

f.	For the foregoing reasons the first tranche of Miss. Monaghan’s submissions is rejected.

11.	The Failure to give a Reference.  This second part of the submissions related to paragraph 9 of the Chairman’s Extended Reasons:

“9  One remaining allegation is of victimisation.  This is set out in paragraph 23 of the Originating Application. It arises, says the applicant, in this way.  She resigned summarily on 1 April 1998 and on that date ceased to be an employee.  A few days later, she alleges that a recruitment consultant acting on her behalf approached the respondents’ Head of Legal Services requesting a reference.  After some delay the applicant herself pursued the matter and spoke to the Director on the telephone on about 16th April.  She alleges that during a telephone call the director told her that he would not be prepared to provide her with a reference since he did not consider it appropriate to do so because she had taken proceedings against the respondents in the Tribunal and because she had resigned.  I  do not know whether, and if so to what extent those matters or any of them are admitted by the respondents.  Presumably they are all denied since that appears to be the position from the Notice of Appearance.  If the facts are as the applicant says, it may be that they are capable of amounting to victimisation.  The Race Relations Act 1976 defines the circumstances in which discrimination may occur.  It defines discrimination in the way it may occur either directly or indirectly in Section 1.  Section 2 defines victimisation and sets out the way in which that may arise, but victimisation is a form of discrimination.  The Act then applies discrimination to various fields such as employment, contract workers, partnerships, employment agencies, trade unions and the like.  Section 4 renders it unlawful to discriminate against an employee in his employment and it matters not whether that discrimination is direct, indirect or by way of victimisation.  On the face of the applicant’s allegation, the refusal to supply her with a reference, if amounting to victimisation, came at a time when she was no longer an employee.  The respondents have referred me to the decision of the Court of Appeal in The Post Office v Adekeye (1997) ICR 110 in which it was  held that discrimination could not occur in relation to a person who had been, but who had ceased to be, an employee at the time of the alleged discriminatory act.  So it is with this applicant and the allegations contained in paragraph 23 cannot, in my judgment, found a claim of discrimination by way of victimisation.”

12.	Submits Miss. Monaghan, here there is an error of law:  since the decision in Adekeye - and since the Chairman’s ruling - further authority has served to establish that an ex-employee may pursue a complaint of victimisation.  Miss Ashtiany agrees - and, for that matter, so do we.  What Miss Monaghan submits is that the appeal against this part of the ruling should be allowed so that there can be a merits hearing.  We are unable to agree.  Given the operation of the res judicata hearing any such further hearing can only proceed on the basis of the findings of the Hardwick Tribunal.  Given such findings, how could the failure to provide Miss. Bonna with a reference amount to treatment that is “less favourable”, see Section 2(1) Race Relations Act1976?  Her complaint can only be put on the basis that with an inevitably unfavourable reference she would be as well treated as any comparator and absent such a reference she is less favourably treated.  To this Tribunal, any such case can be condemned as frivolous, see Rule 13(2)(d), Schedule 2 Employment Tribunal (Constitution etc) Regulations 1993, and we firmly decline to foist this further complaint on the Hardwick Tribunal (for the notion of reference to a freshly constituted Tribunal is absurd) all at public expense.

Conclusion.  This appeal must be dismissed.