Appeal No.	 EAT/711/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 July 1999

Before
THE HONOURABLE MR JUSTICE CHARLES
LORD GLADWIN OF CLEE CBE JP
MISS D WHITTINGHAM

MRS E MENSAH	APPELLANT

NORTHWICK PARK HOSPITAL & OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant

For the First and Fourth Respondents	IN PERSON

MRS L MILLIN
(of Counsel)
Messrs Capsticks
Solicitors
General Accident Building 
77-83 Upper Richmond Road
London SW15 2TT

For the Second, Third and Fifth Respondents	MR S CRAMSIE
(of Counsel)
Instructed By:
Ms N Gourgey
Messrs Eversheds
Solicitors
Senator House
85 Queen Victoria Street
London EC4V 4JL	

	MR JUSTICE CHARLES:	This is an appeal in respect of proceedings brought by Mrs Mensah against five Respondents.  

1	Mrs Mensah appeals against two decisions of the Employment Tribunal which were sent to the parties on respectively 5 May 1999 and 7 June 1999.  The first decision was a decision by a Chairman sitting alone, the second one was by a full Tribunal.  

2	The Respondents are separately represented and divide themselves into two groups.  The First and Fourth Respondents are represented by Mrs Millin.  The First Respondent is an employee of the Fourth Respondent, which is Northwick Park Hospital.  The Second, Third and Fifth Respondents are represented by Mr Cramsie, and my understanding is that the Second and Third Respondents are employees, or officers, of the Fifth Respondent, the Wolfson Institute of Health Sciences.

3	The first decision relates to Mrs Mensah’s claim described in the box in her IT1 as a “breach of EC Law”.  This decision affects all the Respondents and it was a decision by a Chairman sitting alone, that the Tribunal had no jurisdiction to hear that claim and therefore it should be struck out.  

4	Mrs Mensah explained to the Chairman of the Tribunal that this claim was an alleged breach of the European Convention on Human Rights.  To us she has explained that she is alleging a breach of that Convention and further, or alternatively, a breach of what she described as “the Social Chapter”.  One part of her grounds of appeal was that she was not given sufficient time before the Employment Tribunal in which to deal with this issue.  We reject that point on two grounds.  

5	First, we can see no unfairness in the way in which this matter was dealt with by the Employment Tribunal, particularly having regard to the fact that this was a claim identified by Mrs Mensah in her IT1 some considerable period before the hearing took place before the Employment Tribunal and therefore it is one which she had thought about and formulated.

6	Secondly, in our judgment, this point leads nowhere because on this appeal Mrs Mensah has had more than adequate time to consider and prepare her arguments as to the basis of this claim and the jurisdiction of the Employment Tribunal, and we are in a position to deal with it ourselves, even if we thought that she had been in any way disadvantaged before the Employment Tribunal through lack of time.

7	The claim that there has been a breach of EC law is an unparticularised claim but, as we understand it, is focused upon an alleged right that Mrs Mensah should be given access to education and/or training. As we understand the effect of the decision of the Employment Tribunal it is that it does not have jurisdiction to hear a free standing cause of action or complaint based upon what is described in the application as “a breach of EC law”.  For the purpose of analysis we divide the argument into two.

8	The first element of the argument is an alleged breach of the European Convention on Human Rights.  So far as that is concerned the Human Rights Act 1998 has not yet come into force and, as appears from, for example, R v Director of Public Prosecutions, Ex parte Kebilene [1999] 3 WLR 175, or indeed from a reading of the Human Rights Act itself, the European Convention of Human Rights is not yet part of our law.  Mrs Mensah has relied on Article 177 but that has no application to the European Convention on Human Rights.

9	Turning to her claim under what she describes as “the Social Chapter” which, as we understand it, describes European Community law dealt with by the European Court of Justice and thus coming into our law through the European Communities Act 1972.  The issue is whether or not a Directive, or some other piece of European Community law or legislation founds a free-standing right before the Employment Tribunal.  In our judgment it does not.  However this does not mean that if a Directive, or other piece of European Community law, has direct, or indirect, effect in respect of Mrs Mensah’s claim for racial discrimination and victimisation, it would be excluded from consideration by the Employment Tribunal.

10	It follows in our judgment, for slightly differing and extended reasons, that the conclusion reached by the Employment Tribunal that it, as a body conferred only with a statutory jurisdiction, has no jurisdiction to hear a free-standing claim based on what Mrs Mensah describes generically as EC law, is correct.

11	We therefore pass to the second decision.  This decision relates to the First and Fourth Respondents.  This decision is in two parts and appears at the beginning of the Extended Reasons in the following terms:

“The unanimous decision of the Tribunal is that the First Respondent and Fourth Respondents, namely Ms B Hopkins and Northwick Park Hospital are not in breach of section 12 of the Race Relations Act 1976 in that Northwick Park Hospital is not an authority or body which can confer an authorisation or qualification needed for or facilitating an engagement in a particular profession.
The Tribunal finds that had it not been for the reason set out above, the Tribunal would have had jurisdiction to hear the Applicant’s claim, the same, while not having been brought within three months, nevertheless it would have been just and equitable to hear the Applicant’s claim.”

12	As we understand the effect of that decision it is that the claim against the First and Fourth Respondents was dismissed and indeed that was the understanding of the parties before us.

13	In respect of that decision the First and Fourth Respondents have cross-appealed in respect of the decision that of the Employment Tribunal that they would have extended time, pursuant to section 68 of the Race Relations Act 1976, if they had concluded that there was a claim against the First and Fourth Respondents.  

14	We turn therefore to consider the section 12 point.  Section 12 is in the following terms:

“12(1)	It is unlawful for an authority or body which can confer an authorisation or qualification which is needed for, or facilitates, engagement in a particular profession or trade to discriminate against a person -
(a)	in the terms on which it is prepared to confer on him that authorisation or qualification; or
(b)	by refusing, or deliberately omitting to grant, his application for it; or
(c)	by withdrawing it from him or varying the terms on which he holds it.
(2)	In this section -
(a)	‘authorisation or qualification’ includes recognition, registration, enrolment, approval and certification;
(b)	‘confer’ includes renew or extend.
(3)	Subsection (1) does not apply to discrimination which is rendered unlawful by section 17 or 18.”

15	The reasoning of the Tribunal in respect of section 12 is set out in paragraph 10 to the end of the Extended Reasons, as follows:

“10	The Applicant claims that she was not allowed to get the qualification provided by the Fourth Respondent, Northwick Park, and Mrs Hopkins, as their employee, together with Thames Valley University and that in so doing they were preventing her from getting a qualification which consists of an authorisation or a qualification needed for or facilitating the engagement in a particular profession.
11	By the Applicant’s Originating Application it is clearly stated that the Applicant did not need the qualification which Thames Valley University and Northwick Park Hospital might have conferred upon her.
12	She says that it was suggested by the English National Board that she undertake a return to midwifery practice course.  That is the course operated by Thames Valley University and Northwick Park between them - the one providing a one-day academic course the other providing a four-day practical course.  
13	The Applicant says in her Originating Application:  ‘This is a course meant for midwives who have had a break in practice and who wish to enter midwifery practice, a break in practice being an absence of 5 years or more or a period of less than 12 weeks practice within that time’.  The Applicant went on to say:  ‘I do not fall within that category and so I felt I had been unfairly treated’.
14	A short time later in her Originating Application she says:  ‘I felt after a while perhaps it would be sensible, having not worked since January 1996, to consider this course.  In fact, I felt it would give me an opportunity to ascertain what it is that I am accused of’.
15	It is quite clear that the Applicant had not had a five year break in her nursing experience and therefore did not need the course to practise as a midwife.  She had an existing midwifery certificate which fully qualified her to obtain employment as midwife.
16	In those circumstances we find that the course that the Applicant was refused was not an authorisation or qualification which she needed for the engagement in her particular profession, namely midwifery.
17	Accordingly, we find that in this case the First and Fourth Respondents were not in breach of section 12 of the Race Relations Act 1976.
18	Ms Millen on behalf of the Respondents goes further and says that there were other ways in which the Applicant could have qualified as a midwife had it been necessary for her to do so, but our finding is that she did not need such qualification - she was already a midwife and therefore did not need the qualification which she felt that she should have had from Thames Valley University and the Northwick Park Hospital.
19	Accordingly, the Applicant’s case against the First and Fourth Respondents, namely Ms Hopkins and Northwick Park Hospital, fails and they are accordingly struck out as Respondents in this case.
20	As already stated, the Applicant would have been held to be within the jurisdiction of section 68 but it is not necessary to pursue that further now, the Applicant having failed against the First and Fourth Respondents for the reasons set out above.
21	The case is listed for a full merits hearing against the remaining Respondents for Monday, 6 September 1999 to 10 September 1999 in accordance with the notice already given to the parties at the Interlocutory Hearing on 5 May 1999 and confirmed by a letter of that date sent to the parties.”

16	The focus of that reasoning, as we understand it, was that the Fourth Respondents did not confer an authorisation or qualification which Mrs Mensah needed.  That reasoning did not focus on the ability of the Fourth Respondent to confer any such authorisation, or the issue whether or not it would facilitate engagement in a particular profession or trade, nor indeed did it focus on whether the matters set out in section 12 (1)(a) to (c) were matters about which Mrs Mensah was complaining in her IT1.

17	In their argument the First and Fourth Respondents have referred us to the case of Tattari v Private Patients Plan Ltd [1997] IRLR 586 and the reference in Harvey to which that case is referred, which indicates that section 12 is directed primarily to professional bodies and the terms on which they confer authorisation or qualification.  

18	In our judgment the reasoning and approach of the Employment Tribunal does not consider all aspects of section 12 and by focusing simply on the aspect of it relating to “need” the Employment Tribunal can be said to have made an error of law.  

19	But of greater difficulty, as we see it, is that the Employment Tribunal have erred in law in not going on to consider whether section 13 or section 17 of the Race Relations Act apply.  

20	In this context we will now cite section 13 which is in the following terms:

“13(1)	It is unlawful, in the case of an individual seeking or undergoing training which would help fit him for any employment, for any person who provides, or makes arrangements for the provision of, facilitates for such training to discriminate against him - 
(a)	in the terms on which that person affords him access to any training course or other facilities concerned with such training; or 
(b)	by refusing or deliberately omitting to afford him such access; or 
(c)	by terminating his training; or
(d)	by subjecting him to any detriment during the course of his training.
(2)	Subsection (1) does not apply to -
(a)	discrimination which is rendered unlawful by section 4(1) or (2) or section 17 or 18; or
(b)	discrimination which would be rendered unlawful by any of those provisions but for the operation of any other provision of this Act.”

We will not cite section 17 which is directed to the provision of education.

21	When one stands back and reads the IT1 and section 13 it seems that what Mrs Mensah is in fact complaining about in these proceedings is encompassed within section 13(1)(a) or (b).  It therefore seems to us that whether or not:
	(i)	the conclusion of the Employment Tribunal was right on section 12, or 
	(ii)	a different analysis of section 12 would lead to the same result, 
the Employment Tribunal have erred in law in effectively dismissing the claim against the First and Fourth Respondents without having taken into account the question whether section 13, or possibly section 17, forms a basis for Mrs Mensah’s claim against them. 

22	In part this is an argument which flows from Mrs Mensah’s argument that the Employment Tribunal failed to consider the relationship between the Respondents but more importantly, in our judgment, it is a failure to go on to consider the applicability of section 13, or possibly section 17. 

23	For this reason in dismissing the claim against the First and Fourth Respondents we find that the Employment Tribunal erred in law.  

24	It is not open to us as an appellate body to go into the issue today as to whether or not there is a claim within the ambit of sections 13 or 17 and we therefore have to remit these proceedings to the Employment Tribunal.

25	That leaves the issue relating to the extension of time under section 68.  

26	As to that, the First and Fourth Respondents put their appeal, as we understand it, on three grounds.  First, that the Employment Tribunal erred in law in applying the test incorrectly.  Second, that they did not properly explain their reasons and third, in any event, if they had applied the test correctly their conclusion was perverse.  In this context we were referred to the case of British Coal Corporation v Keeble [1997] IRLR 336 which was dealing with the equivalent section in relation to sex discrimination and in which an analogy was drawn to section 33 of the Limitation Act.  

27	A starting point for the exercise of this discretion is, of course, the section itself and shortly after the equivalent sections in the Sex Discrimination and the Race Discrimination Acts were enacted they were dealt with by this Tribunal in the case of Hutchison v Westward Television Ltd [1977] ICR 279 (which again concerned the equivalent provisions of the Sex Discrimination Act).  Going to the judgment at page 282, between letters B and D, this Tribunal said this:

“The formula provided by section 76(5) by which an application to extend time has to be judged is a new one, and it very sensibly gives the industrial tribunal a wide discretion to do what it thinks is just and equitable in the circumstances.  Those are very wide words.  They entitle the industrial tribunal to take into account anything which it judges to be relevant.  We doubt whether industrial tribunals would get much assistance in exercising that jurisdiction by being referred to cases decided on other tests under other statutes.  We do not go so far as to say that they are always and in all circumstances irrelevant, but we would deprecate these very simple, wide words becoming encrusted by the barnacles of authority.  The industrial tribunal is to do what it thinks is fair in the circumstances.
In that connection and going back for a moment to the first point, it is for the tribunal to say how far they think it is necessary to look at the circumstances of the matter complained of.  No doubt they will want to know what it is all about; they may want to form some fairly rough idea as to whether it is a strong complaint or a weak complaint, and so on.  Certainly it is not required at that stage to try the complaint.
The third thing which we have to say about section 76(5) is this.  Because it is such a wide discretion conferred upon an industrial tribunal, the task which an appellant has in such a case is a heavy one.  Really he must show, if he is to succeed on appeal, that the industrial tribunal demonstrably took a wrong approach to the matter, or that they took into account facts which they ought not to have done, or that they failed to take into account facts which they should have done, or, as a last resort which is always open upon an appeal, that the decision was so unreasonable in all the circumstances that no reasonably instructed tribunal could have reached it.”

28	It is of note that in the later decision in the British Coal Corporation case indicates that some assistance has been taken from authorities in different fields and that the Hutchison case has been built on in the cases over the period that has passed between 1977 and now.   

 29	The approach of the Employment Tribunal to an extension of time is to be found in paragraphs 4 to 8 of the Extended Reasons.  They are as follows:

“4	Dealing with the second issue first, the Applicant agrees that the act of which she complained occurred on 7 October 1998 when she spoke to Ms B Hopkins who told her that the Applicant had not been granted a place on a maternity midwifery course.
5	The Applicant says that she did not at that time feel it necessary to bring Industrial Tribunal proceedings against the Northwick Park Hospital because she had already commenced such proceedings against Thames Valley University.
6	She says also that at that time she was being harassed by her landlord Social Services and other people and she was dealing with Industrial Tribunal matters arising out of a claim for unfair dismissal; further, she was heavily occupied in appealing to the Court of Appeal in respect of some of the above matters.
7	The Tribunal has referred us to a case in the Industrial Tribunal (as it then was) on 13 March 1990.  That is a case which, while not binding upon this Tribunal, nevertheless must be persuasive.  However, it is clearly quite different from the case that Mrs Mensah brings in that in that case (the case of Singh v London Borough of Ealing) the employers, the Respondents, failed to provide information which clearly left the Applicant without what was needed to pursue the matter and in that case the Chairman and Members recorded the decision that it was the delay in providing the information that led to the Applicant not bringing her case in time.
8	In this case the Fourth Respondents did nothing whatsoever to perpetuate that situation.  Nevertheless, in the light of the proviso in respect of section 68 and in particular section 68(6), the Tribunal feels that it is just and equitable to allow this case to proceed.  Indeed, it would have proceeded had it not been the finding of this Tribunal in respect of the first of the matters with which it was concerned, namely whether Northwick Park Hospital and the First Respondent, Mrs Hopkins, come within section 12 of the Race Relations Act 1976.”

30	In our judgment the approach to the case referred to there of Singh v London Borough of Ealing is an odd one, in that the Tribunal seem to be taking the inconsistent approach of saying that it is a case which is distinguishable from the one that was before them but nonetheless of relying upon it.  It also seems to us, reading those paragraphs, that either:
	(a) 	the Tribunal have erred in law in not taking the “in all the circumstances approach” advocated in the 1977 case of Hutchison v Westward Television Television and the much more recent case of British Coal Corporation v Keeble which the statute requires them to take.  In particular they have not had regard in general terms to the nature and strength of Mrs Mensah’s case, or to the balance of hardship.  We identify those as two of the relevant circumstances but it is undoubtedly a section under which Employment Tribunals have to have regard to “all the circumstances”, or
	(b)	have failed to properly explain how they have taken all the circumstances into account.

31	We are therefore satisfied that in their approach the Employment Tribunal have either erred in law or have failed to provide adequate reasons for their conclusion, having regard to the guidance given as to that in, for example,  the Meek decision.  

32	It is therefore unnecessary for us to consider the alternative argument based on perversity and indeed inappropriate for us to do so because that only arises if we had reached the conclusion that the Tribunal were applying the correct test.  If we had reached that conclusion as the Hutchison case shows, it would be extremely difficult for the Fourth Respondents to show perversity.  

33	Accordingly, for the reasons we have given, we allow the cross-appeal against the decision to extend time.  Again we are not in a position to reach a conclusion ourselves, as to whether time should or should not be extended, and that is a matter which, in our judgment, will have to be dealt with again by the Employment Tribunal.

34	The consequences of the conclusions we have reached are therefore as follows:  
	(a)	the decision of the Employment Tribunal to strike out Mrs Mensah’s claim described as a breach of EC Law stands and that claim therefore is no longer a part of these proceedings; 
	(b)	the decision of the Employment Tribunal to the effect that the matter is dismissed against the First and Fourth Respondents and they no longer remain Respondents is set aside; and 
	(c)	the decision of the Employment Tribunal, which is an obiter, or alternative, expression of opinion that they would have extended time if they had thought there was a claim against the First and Fourth Respondents is set aside.
That leaves the position as it was before the second decision of the full Tribunal, the reasons for which were sent to the parties on 7 June.  

35	We therefore remit the case back to the Employment Tribunal and direct that it is to be heard by a differently constituted Tribunal to that which heard the case on 12 May.  

36	We record that has been indicated to us that points as to jurisdiction may be raised on behalf of the Second, Third and Fifth Respondents.  It may also be that further points of jurisdiction will be raised by the First and Fourth Respondents.  

37	We would urge the parties to consider whether or not it would be appropriate to seek a directions hearing.  

38	We would also like to record that we have been given considerable assistance by the Respondents in identifying the training and educational courses that they could provide to Mrs Mensah.  I am aware that this is not Mrs Mensah’s first visit to the Employment Tribunal or the Employment Appeal Tribunal.  One of the problems that I have come across, so far as she is concerned, is that she has not been selected for a full-time post for which she has applied on the basis of capability and it has been indicated to her that she should undergo a course of further training, or further assessment.

39	It has been of assistance to us in understanding this case to consider the additional information as to what is, or can be, provided by these Respondents by way of training and assessment.  I would hope that when the matter goes back before the Employment Tribunal they are provided, in writing, with a clear explanation as to the extent and nature of the education and training that is offered and as much information as the Respondents are able to give them as to the type of education and training that Mrs Mensah would qualify for.  It is not helpful for an Employment Tribunal to be faced with Mrs Mensah as a litigant in person, saying that she has not been selected for full-time employment because she needs further training assessment or supervision and bodies that can provide education and assessment not to provide full and detailed and documented information to the Employment Tribunal, so that they can see whether or not the two can match up.

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Costs Application

1	The Second, Third and Fifth Respondents have made an application for costs.  That is based on Rule 34 of our Rules.  The thrust of that submission is that the appeal in respect of the “breach of EC law” point was always hopeless and that on 20 July 1999 Eversheds, the Solicitors acting for those Respondents, had written to Mrs Mensah inviting her to abandon that appeal and if she did not, they would seek costs against her.  

2	The first point is that it was not until 20 July that they wrote that letter.  The second point seems to us is that if that submission is right, there was effectively no need for the Second, Third and Fifth Respondents to be separately represented and they could simply have invited the First and Fourth Respondents to make the points, which were helpfully set out in the skeleton which had by then been prepared by Counsel for the Second, Third and Fifth Respondents, or simply to provide a short skeleton if they thought that appropriate.

3	We agree that the appeal had little or no realistic chance of success but in the circumstances of this case, although we accept there are arguments that might lead to the conclusion that Mrs Mensah’s conduct in bringing the proceedings could be classified as unreasonable, in our overall discretion we do not think it appropriate to make an order against Mrs Mensah for the costs of the Second, Third and Fifth Respondents, who in our judgment could have taken easily available practical steps to minimise or avoid the costs that they have incurred in respect of this appeal.  

4	That does not mean that Mrs Mensah does not remain at risk in the future if she pursues litigation unreasonably against parties in Employment Tribunal or this Tribunal.