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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Ako v. Rothschild Asset Management Ltd & Ors [2000] UKEAT 103_00_3103 (31 March 2000) URL: http://www.bailii.org/uk/cases/UKEAT/2000/103_00_3103.html Cite as: [2000] UKEAT 103__3103, [2000] UKEAT 103_00_3103

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APPEARANCES

 

For the Appellant	MS K MONAGHAN (of Counsel) Commission for Racial Equality Elliott House 10/12 Allington Street London SW1


 


JUDGE PETER CLARK:

1. By an Originating Application presented to the Employment Tribunal on 18 June 1999 (case number 3201851/99) the Appellant, Ms Ako, complained of race discrimination during her employment between July 1993 and May 1999; unfair dismissal, in that she was unfairly selected for redundancy, and automatically unfair dismissal for a reason connected with the transfer of an undertaking under The Transfer of Undertakings (Protection of Employment) Regulations 1981.
2. She named as Respondent to those claims Rothschild Asset Management Ltd, the First Respondent only.
3. She then took advice from a complaints officer with the Commission for Racial Equality. As a result it was decided that the Appellant would lodge a fresh Originating Application naming both the First and Second Respondent (now Mellon Bank) and withdraw the first Originating Application. Consequently she wrote to the Employment Tribunal on 28 June, referring to case No. 3201851/99 saying:

"I write to withdraw my above application against Rothschild Asset Management Ltd.

Thank you.

Yours faithfully

Kate Ako."

4. On 2 July a Chairman considered the file in that case and promulgated a decision dismissing the first application on withdrawal.
5. At a subsequent hearing before an Employment Tribunal chaired by Ms V. Gay sitting at Stratford on 11 October 1999 that Tribunal accepted, as appears from paragraph 3 (ix) of their Extended Reasons promulgated with a decision dated 20 October 1999, that it was never the Appellant's intention not to proceed against the First Respondent. It was at all times her intention to substitute for the first Originating Application a second Originating Application, naming both the First and Second Respondents. That she did on 12 July (case No. 3202167/99).
6. Having been served with the second Originating Application, the First Respondent took the point that the Appellant was estopped from proceeding on that complaint against the First Respondent on the grounds that the same issues had been raised in the first complaint which had been dismissed by the Chairman's decision of 2 July.
7. The Gay Tribunal upheld that submission and dismissed the second Originating Application as against the First Respondent. It is against that decision that this appeal is brought.
8. In advancing the appeal today Ms Monaghan accepts that the proper procedural course to take was for the Appellant to apply for leave to amend the first Originating Application to add the Second Respondent. That was not done. Instead, without explanation, the Appellant wrote to the Tribunal simply withdrawing the first application.
9. The Appellant appeared in person before Ms Gay's Tribunal and on the arguments presented to that Tribunal the Tribunal concluded that they were bound by the Court of Appeal's reasoning in Staffordshire County Council v Barber [1996] ICR 379 to hold that a cause of action estoppel arose so that the Appellant would not be permitted to pursue the second application against the First Respondent.
10. On the face of it, it seems to us that that decision on the arguments presented to the Tribunal is difficult to fault. Ms Monaghan reserves her position as to the correctness of the Court of Appeal decision in Barber but as a matter of common law doctrine of stare decisis it is binding on this Tribunal as it was on the Employment Tribunal.
11. However, Ms Monaghan in her substituted grounds of appeal takes a point under Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms. The way she puts the case is that if Barber is correct, then there is an absolute bar on a party pursuing a claim following withdrawal and a decision by the Employment Tribunal dismissing the application in those circumstances.
12. We accept her submission that although the Human Rights Act 1998 does not come into force until 2 October 2000, it is right to consider whether there is any breach of the convention rights prior to that date: see Redman Bate v DDP, 23 July 1999 per Sedley J, as he then was.
13. At this preliminary hearing the question for us is whether the appeal is arguable. We are satisfied that the point ought to be argued at a full inter partes hearing and accordingly we shall allow the matter to proceed to a full hearing for that purpose.
14. There is a second separate point taken by Ms Monaghan, namely that in two respects the second Originating Application raises complaints about continuing acts of discrimination in relation to a failure to provide the Appellant with a form P45, or to provide her with a reference, which she contends survives the first Originating Application being struck out. That point also ought to be argued at the full hearing, although we anticipate there may be an argument on behalf of the First Respondent under the principle in Henderson v Henderson [1843] 3 Hare 100, that those complaints could and should have been brought in the original proceedings.
15. We direct that the full appeal be listed for one day, Category A. There will be exchange of skeleton arguments not less than 14 days before the date fixed for the full appeal hearing, copies of those skeleton arguments to be lodged with this Appeal Tribunal at the same time.