The claimant had been struck from the register of nurses after convictions arising from failures of his staff at his nursing home with regard to drug management. He had then brought claims of unlawful race discrimination against the health authority and against the respondent. Those claims had been dismissed as frivolous, no valid comparator having been provided. The appellant said that the tribunal should have heard his evidence before deciding that his claim was frivolous.
Held: The appeal was allowed and the case remitted. The court approved and applied the decision in Moore. The decision to strike out a claim was an exercise of discretion which should be disturbed only for an error of law or manifest unreasonableness. However the case might have proceeded on the basis of a hypothetial comparator. His complaint was not of the unfairness of the respondent’s decision but as to its unlawfulness being, he said, based on racial grounds. It was incumbent on the tribunal to construct an hypothetical comparator. The tribunal and appeal tribunal had lost sight of the fundamental claim.
Henry LJ, Ward LJ, Sir Christopher Slade
[2001] EWCA Civ 2097, [2002] IRLR 288, [2002] ICR 646
Bailii
Nursing Homes and Mental Nursing Homes Regulations 1984 15(3), Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 13(2), Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 15(2), Race Relations Act 1976 1(1) 2 3(4)
England and Wales
Citing:
Appeal from – Balamoody v Manchester Health Authority EAT 12-Nov-2001
The Tribunal heard a preliminary application in a claim for unlawful race discrimination. Earlier applications had been struck out. This second set of applications had been struck out as frivolous by the Tribunal on the basis that they were not new . .
See Also – Balamoody v United Kingdom Central Council; Balamoody v Manchester City Magistrates’ Court Admn 10-Jun-1998
The applicant had been convicted of offences relating to the management of his nursing home, and had been struck off the Register of Nurses.
Held: It was no defence to the criminal charges that a member of staff had failed in her duties. The . .
See Also – Balamoody v Manchester Health Authority EAT 2-Mar-1999
The claimant appealed against orders striking out his complaint of unlawful racial discrimination. He had owned a nursing home regulated by the respondent authority. A senior white employee had broken regulations regarding safekeeping of drugs, but . .
See Also – Balamoody v UkCC for Nursing Midwifery and Home Visitors EAT 5-Dec-2000
The claimant’s claim of unlawful race discrimination had been dismissed as an abuse of process by the EAT. The Tribunal now considered whether the EAT had power to make such a decision.
Held: The 1993 Regulations were more generous to . .
Leave Given – Balamoody v United Kingdom Central Council for Nursing CA 14-May-2001
The applicant sought leave to appeal against a decision disallowing his complaint at his claim for race discrimination being struck out as scandalous, frivolous or vexatious. He said that the Tribunal had dismissed his claim without giving him . .
See Also – Balamoody v Manchester Health Authority EAT 12-Nov-2001
The Tribunal heard a preliminary application in a claim for unlawful race discrimination. Earlier applications had been struck out. This second set of applications had been struck out as frivolous by the Tribunal on the basis that they were not new . .
Cited – Care First Partnership Ltd v Roffey and Others CA 22-Nov-2000
An employment tribunal had no power to dismiss a claim as without a reasonable prospect of success before it was begun to be heard. The power to regulate its own hearings did not include such a power, and the power to dismiss a claim as frivolous or . .
Cited – Attorney General of the Duchy of Lancaster v London and North Western Railway Company 1892
Lindley LJ described the basis of rules allowing a case to be struck out for being ‘scandalous, frivolous or vexatious’, ‘It appears to me that the object of the rule [Order XXV, rule 4] is to stop cases which ought not to be launched -cases which . .
Cited – Dyson v Attorney General CA 1911
Fletcher Moulton LJ considered the rule allowing a case to be struck out as an abuse of process: ‘Now it is unquestionable that, both under the inherent power of the Court and also under a specific rule to that effect made under the Judicature Act, . .
Cited – E T Marler Limited v Robertson NIRC 1974
A frivolous claim is one that has no substance in it and is bound to fail or on the face of it is so manifestly misconceived that it has no prospect of success: ‘If the employee knows that there is no substance in his claim and that it is bound to . .
Cited – Mulvaney v London Transport Executive 1981
Slynn J considered the power of a tribunal to strike out a case: ‘These cases are not easy. There may well be instances where a tribunal can say, on the face of the application and the reply, that a case is so misconceived that it ought not to be . .
Cited – Kelly v Ingersoll-Rand Co Ltd 1982
Browne-Wilkinson J noted that the Employment Tribunals operate under their own rules and said: ‘It is to be remembered that industrial tribunals are statutory bodies whose powers are exclusively conferred and regulated by statute. They have no . .
Cited – Medallion Holidays Ltd v Birch 1985
The Chairman of the Industrial Tribunal had struck out the employers’ Notice of Appearance for failure to comply with an order for particulars. Hld: The employers’ appeal to the EAT was dismissed. The court considered a strike out of an application . .
Approved – Ashmore v British Coal Corporation CA 1990
The plaintiff was one of many female employees who complained to the industrial tribunal that she was paid less by the defendant than her male counterparts. Sample cases were selected for trial and the others stayed pending a decision. It was an . .
Cited – The Chief Constable of West Yorkshire v Vento EAT 8-Jun-2000
EAT A claim was made for sex discrimination. The tribunal considered the approach to be taken in the absence of a real comparator.
Held: The tribunal had been correct to construct an hypothetical . .
Cited – Swiggs and others v Nagarajan HL 15-Jul-1999
Bias may not be intentional
The applicant claimed that he had been denied appointment to a job with London Regional Transport because he had brought a number of previous race discrimination claims against it or associated companies. An industrial tribunal had upheld his claim . .
Cited – Chief Constable of West Yorkshire Police v Khan HL 11-Oct-2001
The claimant was a police sergeant. After many years he had not been promoted. He began proceedings for race discrimination. Whilst those were in course, he applied for a post elsewhere. That force wrote to his own requesting a reference. In the . .
Cited by:
See Also – Ballamoody v Nursing and Midwifery Council EAT 4-Jun-2003
. .
Lists of cited by and citing cases may be incomplete.
Employment, Discrimination, Litigation Practice
Leading Case
Updated: 01 November 2021; Ref: scu.218588