Balamoody v United Kingdom Central Council for Nursing, Midwifery and Health Visiting

Under regulation 13(2)(d) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993, a claim could be struck out as frivolous or vexatious only where it had no substance whatever and was bound to fail. That threshold was higher than a finding that a claim had no reasonable prospect of success.

In a direct discrimination claim, an actual comparator need not be available. Where the pleaded complaint and evidence permit it, the tribunal must construct and apply an appropriate hypothetical comparator under section 3(4) of the Race Relations Act 1976. It may draw inferences from actual cases which are not identical but are sufficiently similar. A discrimination claim should not be struck out where the material arguably warrants investigation into whether race was a significant conscious or subconscious cause of the treatment.

The appellant, a Mauritian nurse, had been removed from the professional register after convictions relating to the operation of his nursing home and the administration or recording of drugs. His applications for restoration to the register were refused.

He brought proceedings alleging direct racial discrimination and victimisation by the Council. He relied principally on the Council’s treatment of a white matron and on press reports concerning other nurses. The Employment Tribunal struck out the claim as frivolous and an abuse of process. The Employment Appeal Tribunal dismissed his appeal.

On his appeal to the Court of Appeal, the issues were whether the former procedural rules permitted strike-out on the basis adopted, and whether the Tribunal had erred by not considering a hypothetical comparator in relation to the refusal to restore him to the register.

1. Appeal allowed unanimously. Lord Justice Ward gave the leading judgment. Sir Christopher Slade and Lord Justice Henry agreed. The Employment Tribunal’s decision was quashed and the case was remitted.

2. The Court upheld the legal threshold applied under regulation 13(2)(d) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993. A claim could be frivolous or vexatious where it had no substance whatever, was utterly hopeless and was bound to fail. That was distinct from the lower standard of having no reasonable prospect of success, for which regulation 7(4) provided a deposit procedure. A frivolous or vexatious application could also include an abuse of process. Care First Partnership Ltd v Roffey [2001] IRLR 85 did not preclude strike-out under regulation 13(2)(d), since it concerned an attempted use of regulation 13(1) to create a different no-reasonable-prospect jurisdiction.

3. However, both tribunals erred in treating the complaint as confined to the non-comparable treatment of Mrs Letham. The properly identified issue was whether the Council’s refusal to restore the appellant to the register was racially discriminatory. Mrs Letham and the nurses mentioned in press reports were not actual comparators: they had not been struck off and were not seeking restoration in materially similar circumstances.

4. Under sections 1(1) and 3(4) of the Race Relations Act 1976, it was nevertheless necessary to consider a hypothetical comparator: at minimum, a white nurse who had been removed for misconduct and was seeking restoration. The Tribunal had to assess all the available circumstances to decide whether there was material from which less favourable treatment on racial grounds could be inferred. It could use non-identical but relevant actual cases when constructing that comparison, consistently with Chief Constable of West Yorkshire v Vento [2001] IRLR 124.

5. The seriousness and age of the misconduct, the severe and open-ended removal from the register, the absence of informative reasons for the second refusal, and the Council’s dealings with the appellant were capable of requiring investigation. The Court made no finding that discrimination or victimisation had occurred. It held only that the claim was not bound to fail and that striking it out was inappropriate.

6. On remittal, the Tribunal could also consider whether the victimisation claim was open to the appellant. The relevant comparison would be with similarly situated applicants for restoration who had not done the protected act. The Tribunal was to determine the merits without treating the Court’s observations as findings of fact.

1. Court of Appeal (Civil Division): Allowed the appeal in [2001] EWCA Civ 2097, quashed the Employment Tribunal decision and remitted the claim to that Tribunal.

2. Employment Appeal Tribunal: On 5 December 2000, dismissed the appellant’s appeal and upheld the strike-out.

3. Employment Tribunal: On 27 April 1999, struck out the race-discrimination claim as frivolous and an abuse of process.