Appeal No.	 EAT/234/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 October 1998

Before
HIS HONOUR JUDGE PETER CLARK
MR I EZEKIEL
MR P R A JACQUES CBE

MRS R I KING	APPELLANT

DORSET COUNTY COUNCIL	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	MR MICHEL KALLIPETIS QC	

	JUDGE PETER CLARK:	This is an appeal by Mrs King against a decision of a Chairman, Mr J R Hardwick, sitting alone at the Southampton Industrial Tribunal on 16th December 1997, to strike out her Originating Application complaining of sex discrimination and breach of contract against the respondent, Dorset County Council, on the grounds that it is frivolous and vexatious. Extended reasons for that decision are dated 9th January 1998.

	The material Originating Application, presented on 17th October 1997, is the twelfth in a sequence of 13 Originating Applications which Mrs King has presented to the Industrial Tribunal alleging, variously, unfair dismissal, sex discrimination, unjustifiable discipline and now breach of contract against a combination of three respondents, Dorset County Council, Bournemouth University and UNISON (formerly NALGO) the trade union to which she belonged. 

	The background to her many complaints is that on 1st June 1987 she commenced employment with Dorset County Council in the Social Services Department as Manager of Boscombe Priory, a Day Centre for people recovering from mental illness. Her employment was terminated on 1st May 1993 on grounds of redundancy according to Dorset County Council. Prior to her dismissal she had been seconded to study for a diploma in social work at Bournemouth University. She was referred in her second year. In 1993 Dorset County Council withdrew support for her because of what was perceived as her approach to that course, which was a mixture of academic study at the University and practical training through her employment with Dorset County Council.

	Her first three Originating Applications were dated 23rd July 1993, 20th June 1997 and 17th June 1994. The first complaint came on for hearing in June 1994, but was aborted because it turned out that the Chairman, Mr Edwards, was sitting with two employer nominated panel members. That hearing was relisted for 10th to 21st October 1994. Before the rehearing took place the appellant withdrew her first three complaints. They were duly dismissed on withdrawal.

	The next eight complaints were each struck out. 

	That brings us to the twelfth, material complaint. The nature of her case in this complaint is that in July 1997 she applied for the post of Manage, Mental Health Residential and Day Care Unit, South Dorset, advertised in the local press. She was unsuccessful. Based on her failure to be interviewed for or appointed to that post she commenced the present proceedings.

	It was apparent to the Chairman, Mr Hardwick, as it has become to us, that the appellant was seeking to use her failed application for the post advertised in July 1997 to re-open questions of sex discrimination and breach of contract dating back to her original period of employment with Dorset County Council and its termination in May 1993. Among other grounds for striking out this complaint under Rule 13(2)(d) of the Industrial Tribunal Rules of Procedure, the Chairman held that the issues raised in this complaint were res judicata.

	To that Mrs King seeks to argue through Mr Kallipetis QC, who appears on her behalf today under the ELAAS pro bono scheme, that there has been no concluded determination of those issues. The original hearing before what was then an Industrial Tribunal in June 1994 was aborted; the further hearing scheduled for October 1994 did not take place. Striking out her applications at preliminary hearings without consideration of the facts is a denial of justice and a breach of Article 6 of the European Convention on Human Rights, still to be incorporated into English law.

	We think that that submission is misconceived. The doctrine of res judicata or cause of action issue estoppel applies to an order dismissing proceedings on withdrawal by the applicant. See Barber v Staffordshire County Council [1996] IRLR 209. The power to strike out a claim which seeks to relitigate factual issues between the same parties in an appropriate case has been upheld by the Court of Appeal in Ashmore v British Coal Corporation [1990] ICR 485.

	It may be otherwise where there is an explanation as to why the first complaint was withdrawn. See Mulvaney v London Transport Executive [1981] ICR 351. Here, Mrs King contends that she withdrew her first three complaints because the then Regional Chairman, Mr Rich, “inferred a bribe”, to use her expression, at a preliminary hearing held on 30th September 1994, to lose her original claim for unfair dismissal and sex discrimination and win a victimisation claim under the Sex Discrimination Act against both her employers, Dorset County Council, and her trade union, UNISON. We have investigated that claim with Mr Kallipetis, and we have to say that we find it incredible, not least because the respondents were present at the hearing before Mr Rich, and would no doubt have had something to say about a promise by the Regional Chairman that prospective claims by the appellant would succeed before they had been heard, and secondly, because no mention of such a suggestion is made in the appellant’s letters of 4th and 5th October 1994 withdrawing the first three complaints.

	It is right to say that Mrs King has complained of injustice throughout these lengthy proceedings. Dealing with the instant complaint, she alleges that the present Regional Chairman, Mr Edwards, personally influenced Mr Hardwick’s judgment in this case. Her conspiracy theory is fuelled by the fact that Mr Edwards and Mr Hardwick were both sitting at the Southampton Industrial Tribunal on 16th December 1997, and it appears that both took breaks during the course of the morning which overlapped in time. Hence, she contends, the opportunity existed for them to speak together and for Mr Edwards to influence Mr Hardwick’s judgment against the appellant. That allegation is raised in an affidavit sworn by her in this appeal on 23rd February 1998.

	Mr Hardwick has commented on that affidavit by letter dated 2nd April 1998 He states, in terms, that he did not speak with Mr Edwards during the break in proceedings but remained in his tribunal room after the parties had withdrawn and considered the matter before ruling on it. We accept what he has said and reject that conspiracy theory.

	The further grounds of appeal specifically addressed to us by Mr Kallipetis are these. First that the Chairman, Mr Hardwick, misunderstood or misapplied the provisions of ss. 13 and 14 of the Sex Discrimination Act 1975 when he held at paragraph 30 of his written reasons that Dorset County Council is not a qualifying body within s. 13, nor a person concerned with the provision of vocational training within s. 14. Her case is that by refusing to consider her for appointment to the post advertised in July 1997, Dorset County Council has discriminated against her under either ss. 13 or 14 of the Act. We reject that submission. In our view the only relevant qualifying body for the purposes of s. 13 in the context of this case, is Bournemouth University; further we are satisfied that Dorset County Council does not, by providing the practical element of the relevant course inducted by that University, fall within the definition of s. 14.

	The remaining submissions relate to the appellant’s treatment by Dorset County Council in relation to her pension since her dismissal in May 1993. At that time her years’ of service were enhanced by 10 years to age 61 (she was 51 at the time of dismissal) but not age 65. Secondly, she has lost the final salary which she would have been enjoying for pensionable pay purposes as a result of not being re-appointed in July 1997, and thirdly, that each time she receives a pension payment she is being discriminated against on grounds of her sex for limitation purposes.

	We return to our earlier finding that the Chairman was entitled to conclude that the instant complaint, based notionally on the job application in July 1997, is merely a device to allow her to seek re-open matters of complaint which arose on the termination of her employment in May 1993. In our judgment, that simply will not do.

	In all the circumstances, despite the careful way in which the appellant has expressed herself in her detailed skeleton argument, augmented by the usual skill and clarity with which the oral argument has been developed by Mr Kallipetis, we have concluded that this appeal raises no arguable point of law to go forward to a full appeal hearing and consequently it must be dismissed at this preliminary stage.