Appeal No.	 EAT/259/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 March 2001

Before
HIS HONOUR JUDGE PETER CLARK
MR P R A JACQUES CBE
MR A E R MANNERS

DR J B ILANGARATNE	APPELLANT

1) BRITISH MEDICAL ASSOCIATION 2) DR R SMITH	RESPONDENT

Transcript of Proceedings

JUDGMENT

INTERLOCUTORY HEARING

Revised

	APPEARANCES

For the Appellant	THE APPELLANT 
IN PERSON	
For the Respondent	PAUL GILROY
(Of Counsel)
Instructed by
British Medical Association
Legal Department
BMA House
Tavistock Square
London  WC1H 9JP

JUDGE CLARK

1.	This is an appeal by Dr Ilangaratne, the Applicant in 2 cases currently proceeding in the Hull Employment Tribunal, against an interlocutory order made by a chairman alone, Mr Colin Grazin, in the second of those cases, by letter dated 22 February 2001, refusing the Applicant’s application for a pre Hearing Review in that case.

Background

2.	In 1997 the Applicant brought complaints, among other things, of racial discrimination and victimisation against the First Respondent, British Medical Association (BMA) (the original complaint).  Those complaints were dismissed by an Employment Tribunal sitting at London (N) on 5-6 October 1998.  A further complaint of disability discrimination brought by him at that time, the subject of an appeal to this Employment Appeal Tribunal, is not material to the present appeal.

3.	On 21 September 2000 he brought a complaint of racial discrimination/victimisation (case No 1806152/2000) against these 2 Respondents, the BMA and Dr Smith, who is the editor of the British Medical Journal (BMJ).  (The first complaint).

4.	On 21 January 2001 he issued a second complaint of victimisation under s2 of the Race Relations Act 1976 against these 2 Respondents (case No 1800502/2001).  The first and second complaints have been combined and are due to be heard on their merits on 4 April 2001 at Hull.

5.	On 21 February he made an application by letter to the Employment Tribunal requesting a Pre Hearing Review (PHR) under rule 7 of the Employment Tribunal Rules of Procedure 1993 in the second complaint.  He contended that, having seen the Respondents’ form ET3 in that case dated 16 February, the Respondents had no reasonable prospect of successfully defending his claim.

6.	That application was considered by the Chairman and refused.  His reasons for doing so, 
expressed in a letter dated 22 February, were as follows:

“Your faxed letter dated 21 February 2001, was referred to a Tribunal Chairman (Colin Grazin) who has refused your request for a Pre-Hearing Review directing that the matters relied upon by the Applicant are not conclusive of the allegation of unlawful race discrimination.  That decision will be for the full Tribunal after hearing all of the evidence.”

PHR

7.	The PHR procedure, contained in r7 of the 1993 Employment Tribunal Rules of Procedure, succeeded the former Pre Hearing Assessment procedure.  The material features are that at any time before the hearing of an Originating Application the Employment Tribunal may, on application by a party to the proceedings or of its own notion, order a PHR at which the forms IT1 and IT3 are considered together with any oral argument addressed by the parties at the PHR hearing (r7(1)).

8.	An application for a PHR may be refused by the Employment Tribunal (r7(2)).

9.	At a PHR, if convened, the question for the Employment Tribunal would be whether, in this case, the Respondents’ defence has no reasonable prospect of success (r7(4).  That means a higher degree of certainty of failure than that it is unlikely to succeed. 

10.	In the event that the Employment Tribunal finds, on the material mentioned above, that the Respondents’ defence falls below the threshold of prospects of success as formulated above, then the Employment Tribunal may order the Respondents to pay a deposit of up to currently £500 as a condition precedent to proceeding to a full hearing (r7(4)).  Failure to pay the deposit within the time limit of 21 days will lead to the Notice of Appearance being struck out. (r7(7)).  If the deposit is paid and the case proceeds to a full hearing at which the defence of the Respondents fails there will be costs implications for the unsuccessful Responents under r12(7) & (8).

11.	We should add that references to a tribunal in rule 7(2) & (4) include a Chairman sitting alone by virtue of r13(8).  Although r7(9) precludes a member of an Employment Tribunal, which conducted a PHR from sitting on the full hearing, having heard argument from the parties this morning we accept Mr Gilroy’s submission that a Chairman refusing a PHR under r7(2) is not conducting a PHR for the purposes of r7(9)  and is therefore not precluded simply by the rules from sitting on the full hearing.  There may of course be other objections to his sitting based on Article 6 of the European Convention of Human Rights or on any other general grounds of perceived bias.  That is not a matter which concerns us directly in this appeal but is a point worth bearing in mind in the event that any such complaint is made.

The second complaint
12.	Looking at the forms IT1 and IT3, which were before the Chairman, the issues arising in this claim of victimisation appear to be as follows:

	(1)	Has the Applicant done a protected act or acts?
	He has brought complaints of racial discrimination against the BMA, and the first complaint against Dr Smith as well as the BMA.  Subject to any question as to whether those complaints were brought in good faith, a point not raised in the form IT3, he has fulfilled that requirement.

(2)	Has the Applicant been treated less favourably than a person who had not done the protected act?

(3)	Was that less favourable treatment by reason of his having done the protected act?  Motive is here irrelevant, as it is under s1 of the 1976 Act.  See Nagarajan v London Regional Transport (1999) ICR 877.

12.	The act complained of here by the Applicant is that he submitted an e-mail to the BMJ website on 24 December 2000, announcing that the Law Society had found that the BMA legal department had misled him and he had been awarded compensation of £400.  Although he received what appears to be a standard formal response, stating that it would be posted on the BMJ web-site within the next 24 hours, so long as it contributes to the topic under discussion, does not breach patient confidentiality and does not libel anyone, it was not in fact posted until 10 January 2001.  It is that delay in posting his communication which the Applicant contends amounts to an act of victimisation.

13.	In response, the Respondents say that they first had to check the accuracy of the Applicant’s e-mail; Christmas intervened; the Head of Legal Services Mr Hughes, of whom enquiry was made was on leave until 3 January.  He confirmed that what the Applicant said was accurate.  Thereafter it was posted on the web-site on 10 January, and they say instructions to do so were given before a chasing communication transmitted by the Applicant that day.

14.	It is denied by the Respondents that such delay as occurred was connected with his earlier complaints or that he was treated differently from anyone else.

15.	It is against this background that the chairman refused the application for a PHR.

Interlocutory appeals

16.	We accept that we have jurisdiction to entertain interlocutory appeals of this sort, as Dr Ilangaratne submits.  Employment Tribunals Act 1996 s21(1).  However, on such appeal we do not have a general power of review, as Mr Gilroy submits.  We must first discern an error of law before we can interfere with the Chairman’s order Medallion Holidays v Birch (1985) ICR 578; cf British Library v Palyza (1984) ICR 504.  Birch was approved by the Court of Appeal in Ashmore v BC Corporation (1990) IRLR 283.

17.	Consequently, the questions of law which will arise in a case such as this are helpfully formulated by Wood J in Adams & Raynor v W Sussex CC (1990) IRLR 215 as follows:

	(1)	was the order made within the powers given to the Employment Tribunal?

	(2)	has the discretion been exercised in accordance with guiding legal principles?

	(3)	can the exercise of discretion be attacked under Wednesbury principles, that is, that the Employment Tribunal failed to take into account relevant factors, took into account irrelevant factors took into account irrelevant factors or otherwise reached a conclusion which was perverse in the legal sense?

The Appeal

18.	Thus the first question is whether the Appellant has succeeded in establishing any error of law in the Chairman’s approach.

19.	Reverting to Wood J’s approach in Adams:

(1)	the Chairman has power to refuse the application for a PHR in this case under r7(2) and 13(8) of the Employment Tribunal rules.

(2)	we are unaware of any guiding legal principles for the exercise of discretion to order or refuse a PHR and have been referred to no authority on the point.  The nearest analogy that occurred to us is the Chairman’s power to dismiss a review application on the grounds that it has no reasonable prospect of success under r11(5).  However, as Mr Gilroy submits those words do not appear in r7(2) and we conclude that a Chairman has a wide discretion, particularly in circumstances where (a) a full merits hearing may be imminent and should not be delayed and (b) the outcome of a PHR hearing decides no substantive issue in the case.

(3)	was the exercise of the Chairman’s discretion in this case Wednesbury unreasonable?

20.	The Appellant submits that there was here an error of law in the Chairman’s reasoning.  He submits that it places too high a burden on an applicant requesting a PHR to require him to show that his allegation of unlawful racial discrimination on the face of his originating application is conclusive.  We accept that submission.  We think that the reasoning in that respect is defective.  The second reason which was given by the Chairman for his order was that the decision would be for the full Tribunal after hearing all of the evidence.  Of course, a PHR decides nothing substantively as we have indicated.  There will have to be a hearing even if a PHR is first heard and an order made for a party to pay a deposit as a condition of proceeding to the substantive hearing.

21.	Thus far we are with the Appellant.  However, Mr Gilroy advances an alternative submission to the effect that the Chairman has exercised his broad discretion in a way that is permissible given the state of the pleadings in this case.  Here we accept Mr Gilroy’s submission.  It seems to us that there are substantial issues of causation in the victimisation claim which render it impossible to say that the Respondents have no reasonable prospect of success in defending those claims.

22.	In these circumstances, for the reasons we have given, we are satisfied that the Chairman reached a permissible conclusion.  Even if the Chairman’s stated reasoning was wrong, his conclusion was plainly and unarguably right.  Dobie v Burns (1984) ICR 812.  Accordingly, we shall dismiss this appeal.