Appeal No. UKEATPA/0047/09/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 August 2009

Before
HIS HONOUR JUDGE McMULLEN QC

(SITTING ALONE)

MS H IYA-NYA	APPELLANT

BRITISH AIRWAYS PLC	RESPONDENT

Transcript of Proceedings

JUDGMENT

RULE 3(10) APPLICATION – APPELLANT ONLY

	APPEARANCES

For the Appellant	MS H IYA-NYA
(The Appellant in Person)	

SUMMARY
PRACTICE AND PROCEDURE:  Striking-out/dismissal
On remission by the EAT, the Employment Tribunal did not err when it heard evidence and then struck out the Claimant’s claims of dismissal and detriment contrary to Employment Rights Act 1996 s 44, following her complaints about health and safety. It noted her related claims for £20m against the Respondent and other defendants in the retail sector were struck out in the High Court, from which her appeal had no merit.

HIS HONOUR JUDGE McMULLEN QC

1.	This case is about the strike out of claims made by Miss Iya-Nya (the Claimant) against British Airways Plc (the Respondent).

Introduction
2.	It is an appeal by the Claimant in those proceedings against the judgment of an Employment Tribunal sitting at Watford, chaired by Employment Judge Manley, for reserved reasons on 14 December 2008.  The Claimant represented herself and was accompanied by her husband.  The Respondent was represented by counsel.

3.	The circumstances in which the hearing took place were determined by a judgment of Wilkie J and members on 17 January 2008, where the Claimant succeeded in an appeal.  The basis was that evidence at a PHR should have been given and heard.  The claim should be restored for a PHR, where evidence would be heard on the Claimant’s claims which are for dismissal and determent as a result of a acts relating to health and safety, contrary to Section 44 of the Employments Rights Act 1996.  The Claimant then went back to the Employment Tribunal, to the hearing which is the subject if the appeal.  She fared no better, for it rejected the claims which she had made and struck her out.

4.	She appeals. In Haritaki v South East England Development Agency UKEATPA/0006/08; paragraphs 1 to 13, I set out my approach to Rule 3.  It should be read with this judgment.  On the sift of the Notice of Appeal, in accordance with the Practice Direction 2004, HHJ Serota QC came to the following conclusions:

“The ET heard evidence and concluded as it was entitled to do on the evidence that the Claimant had not carried out any protected acts within toe meaning of ERA s.441.c, d or e.

It was also entitled to conclude on the material before it that even if she had done such acts her Claim stood no reasonable chance of success. That again was a finding open to the Employment Tribunal.
I find certain grounds impossible to understand and to link with the order and decision complained of, in this category I would place grounds f, g, h, j, k-o and p-r.
The Notice of Appeal discloses no reasonable grounds for bringing the appeal and is an abuse of the Appeal Tribunal's process.”

5.	I have more material than was available to Judge Serota and I make my own decision.  The question for me is whether any part of it has any reasonable prospect of success.

6.	Her application begins unpromisingly with a criticism that the Tribunal made “a finding of fact which I am appealing on points of law”.  She appeals against the finding that the claim had no reasonable prospect of success; the Employment Tribunal misunderstood her case and some other points of her case were not understood either (see her email of 22 May 2009).

7.	The Claimant has submitted a detailed skeleton argument supported by references to and citations from a number of authorities, including The Chief Constable of Tayside Police v Fisher EATS/0048/04, a judgment of Lord Johnston and members sitting in Edinburgh.

The issues
8.	The essential issues were defined by the Employment Tribunal: 
“Did the Claimant do any protected acts pursuant to Section 44 (1) (c) (ii), (d) or (e) Employment Rights Act 1996?
If so, do the Respondents establish that the Claimants have no reasonable prospect of success, so that they should be struck out?“

9.	During the course of this hearing, applications were made by the Claimant for disclosure and to amend the Notice of Appeal.  I refuse the former.  I am told that an application in similar terms had been made to the Employment Tribunal and refused.  There is no extant appeal against that refusal, now out of time, and I see no basis for the making of an order for the purposes of this appeal.  As to amendment of the Notice of Appeal to incorporate reference to authorities for the purposes of the present hearing, I have assumed that the grounds upon which the Claimant wishes to pursue the appeal are those in the amended Notice of Appeal.  If I were to allow this matter to go to a hearing I would have been minded to allow amendments.

The facts
10.	The central issue against the Claimant upon which she could not succeed is contained in the conclusions of the Tribunal at paragraph 10 onwards.  The Claimant had been engaged by British Airways since 1985 and in 1990, 1991, 2000 and 2001 had raised Health and Safety issues and, therefore, she was protected by Section 44.  Her career with the Respondent terminated by notice on 28 April 2006.  She signed a compromise agreement.  It looks as though this did not meet the industry standard, as I described it in Palihakkara v British Telecommunications Plc UK EAT 0185/06; for it did not preclude her bringing claims related to protected acts.  Although the Claimant’s claims were affected by a compromise agreement with payments to her and pension payments, other claims were exigible, including this.

11.	The Claimant is prolific in her litigation, for the Employment Tribunal cites at paragraph 5.15-16 her dissatisfaction with British Airways and she has launched High Court proceedings against it, Tesco, BAA and Waitrose, which the Claimant holds to be in some way connected with her employment at British Airways.  The Tribunal noted that she was claiming £20 million from the Defendants in those claims, that they had been struck out, and an appeal to the Court of Appeal failed, apparently on the papers as being wholly without merit.  I am told today that the Claimant has consolidated those claims.  She is still running claims against those four defendants and she does not seek the £20 million which she did at one stage.  Those matters, however, do not strictly arise in this appeal but the Tribunal felt that they give a fuller picture of the Claimant’s claim.  

Conclusions
12.	The Employment Tribunal applied the law in relation to strike out and there is no dispute before me at the moment as to whether the Tribunal used the correct Rule (that is Rule 18.7) and whether the application in this case was correct.

13.	The Tribunal found against the Claimant essentially on three grounds.  The fatal finding is at paragraph 14 where it says this:
“However, for completeness, we have considered what the position would be if she had been able to satisfy us, which she has not, that she had carried out the protected acts as set out in Section 44.  We considered, as we heard some evidence, the detriments about which she complains.  We are not in a position to say whether those incidents occurred or not as we have not heard evidence about them.  What we did hear some evidence about is the cause or connection between those alleged detriments and the issues raised in 1990/91 and 2000/01.  The Claimant could indicate to us no link between the raising of those concerns by her and the later alleged detriments.  None of the individuals appeared to have been involved in the grievance and the alleged detriments as she accepted with at least one alleged detriment.  She gave no evidence whatsoever that showed us a cause or link except to state, in broad terms, that having raised the grievance she was somehow ‘labelled’ by the Respondent and that led to the mistreatment she complains about.”  

14.	Thus, even if she had made out her claims under Section 44(1) she could not have succeeded.  The Tribunal found against her because she did not have a reasonable belief that the matters of which she complained were connected to her work and on the facts there was no danger to her. This is a fact sensitive area in my judgment.

15.	The Claimant feels very strongly that she was in an environment which was extremely hostile and she explained her approach to health and safety issues but again, with respect to her, these are matters of fact for an Employment Tribunal to determine.  It held that there was no reasonable prospect that she could succeed. Further they were raised too late and discretion would not be exercised in her favour.

16.	In those circumstances, I form a view which is the same as HHJ Serota QC.  This case was properly reconsidered by a fresh Tribunal on remission from the EAT with evidence as directed by the EAT.  I appreciate that these days strike out is rare but the Employment Tribunal does have such power, and this is a proper case. There is no suggestion that the Employment Tribunal did not follow the principles in Blockbuster, [2006] IRLR 630 CA, Ezsias [2007] IRLR 603 CA and Abegaze [2009] EWCA Civ 96. It has discharged its function as required, it has made proper findings which are highly fact sensitive and I see no error in its judgment. 

17.	I dismiss the application and, in effect, the substantive appeal in this case is dismissed. When I advised of her rights, the Claimant said she did not apply for permission to appeal to the Court of Appeal.