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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Lakareber v. University of Portsmouth [1999] UKEAT 60_99_2304 (23 April 1999) URL: http://www.bailii.org/uk/cases/UKEAT/1999/60_99_2304.html Cite as: [1999] UKEAT 60_99_2304

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APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


JUDGE PETER CLARK: This is an appeal by Ms Lakareber against the decision of an Employment Tribunal sitting at Southampton (Chairman: Mr I A Edwards) on 27th November 1998, dismissing her complaint of racial discrimination against the respondent University and ordering her to pay the respondent's costs in the sum of £500, that costs order not to be enforced without further leave of the tribunal. That decision, with extended reasons, was promulgated on 1st December 1998.

Background

The appellant commenced her studies as a first year student on the University's BSc Pharmacy course in the academic year 1995-6. She completed the first year of the course successfully. At the end of the second year, the tribunal found, she failed components of her second year examinations. She resat, but then failed her resits.

In error, say the University, she was enrolled for the third year. When the error came to light she was told that she could not remain in Year 3. She appealed internally against that decision. Her appeal was dismissed on 22nd October 1997.

She then made application for judicial review of the University's decision not allow her to proceed to the third year. That application came before Forbes J on 7th May 1998. He dismissed the application on the ground that it was made out of time. He also commented on the merits of the application, stating that she was not qualified for the third year; the University had made every effort to help her pass the components on which she had been referred.

Undeterred, the appellant launched the present proceedings by an Originating Application presented to the Employment Tribunal on 13th May 1998 in which she alleged that the respondent, as a qualifying body within s. 12 of the Race Relations Act 1976, had unlawfully discriminated against her on racial grounds in that she was treated less favourably than other students, in that they and she were promoted to the third year, but she was then demoted.

Venue

Her complaint was presented to the London (North) Regional Office of Employment Tribunals., She lives in London. An order was made transferring the case to the Southampton Region, which covers the University site. Against that order she appealed to this tribunal. That appeal was dismissed by a division presided over by Lord Johnston on 12th October 1998.

The tribunal decision

At the hearing before the tribunal on 27th November 1998, the appellant did not appear but submitted written representations. The respondent appeared by Counsel.

Two preliminary points were taken by the respondent. First, that the complaint was out of time; secondly, that it was an abuse of process, in that substantially the same issues had been raised on the application for judicial review, and dismissed by Forbes J.

As to the time point, the tribunal held that the last date on which the alleged discrimination could have taken place was 22nd October 1997. Her complaint was therefore presented nearly four months out of time. No explanation was given for the delay; she had been advised by representatives throughout; the most recent being Dr Adoko, who has continued to give her assistance. In these circumstances the tribunal was not prepared to exercise its discretion under the just and equitable provision contained in s. 68(6) of the 1976 Act to extend time and dismissed the application on the ground that it was time-barred.

On the second issue, the respondent sought to argue that an issue estoppel arose by virtue of Forbes J's decision on the judicial review application in the High Court. The tribunal found that that application before them was an abuse of process, in that it raised almost identical matters to those raised in the judicial review proceedings, and was frivolous, in that it had no prospect of success whatsoever. Accordingly they also ordered that the application be struck out in accordance with Rule 13(2)(e) of the Employment Tribunal Rules of Procedure.

Having found that the appellant had acted frivolously and unreasonably, the respondent then applied for costs under Rule 12(1). The tribunal exercised its discretion under that Rule to award costs, assessed in the maximum permitted sum of £500, that order not to be enforced without further leave of the tribunal.

The Appeal

Ms Lakareber has appeared before us today in person and invites us to exercise such discretion as we have to allow this appeal to proceed to a full hearing with a view to her being able to continue this litigation.

Unfortunately, we do not have that width of discretion. Our jurisdiction is limited to correcting errors of law only.

We have considered the grounds of appeal contained in the Notice dated 5th December 1998, which had been settled by the appellant's adviser, Dr Adoko. The first two grounds deal with the limitation point. We can see no grounds for interfering with the tribunal's decision on this part of the case. No reasons were put forward for the delay in instituting these proceedings. The appellant was advised throughout, and we think that the tribunal were entitled not to exercise their discretion in favour of extending time and to dismiss the application on that ground.

Next, the grounds of appeal deal with the question whether or not an issue estoppel can arise where proceedings have been taken in the High Court for judicial review, bearing in mind that those proceedings do not necessarily involve consideration of racial bias, which is the material consideration in the Employment Tribunal proceedings. We are aware that there exists at the moment at debate as to whether or not an issue estoppel arises in these circumstances, particularly bearing in mind the case Anyanwu and Ebuzoeme v South Bank Students Union and South Bank University (FC2 1998/6776/3) which is currently awaiting determination by the Court of Appeal. However, we do not feel it necessary to embark on that debate. The position here is that the facts of this case, coupled with the fact that it was plainly commenced out of time, led the tribunal to conclude, permissibly we think, that it was a claim with no prospect of success. In these circumstances, they were entitled to describe the claim as 'frivolous' for the purpose of Rule 13(2)(e) and for the purpose of awarding costs under Rule 12(1).

The next point is that the tribunal ought to have considered the question of costs under Rule 7(4) and not Rule 12(1) of the Employment Tribunal Rules. That is simply incorrect. Rule 7 deals with the ordering of deposits at a pre-hearing review. Rule 12(1) is the appropriate Rule for awarding costs at the substantive hearing.

Finally, it is submitted that there is here a breach of the right to a fair trial under the European Convention on Human Rights as incorporated into the Human Rights Act 1998. The short answer is that the Human Rights Act has not come into force, so far as the relevant provisions are concerned, and the Convention is not directly enforceable in this Court. Having said that, we are quite satisfied that no point arises under either Article 6 or Article 17 referred to in the Notice of Appeal, and on its merits that argument must be dismissed.

It follows, in these circumstances, that we have concluded that this appeal raises no arguable point of law and consequently it must be dismissed.