Balamoody v United Kingdom Central Council For Nursing

An employment tribunal should not strike out a discrimination claim at the outset, before evidence is heard, merely because it considers that the claim has no reasonable prospect of success. The tribunal’s procedural powers do not confer that jurisdiction. Regulation 13(2) concerns scandalous, frivolous or vexatious conduct in the course of proceedings, while regulation 7 provides a separate deposit procedure. Where that reasoning gives the proposed appeal a real prospect of success, permission to appeal should be granted. Permission does not determine the merits of the appeal.

The appellant, of Mauritian origin, brought race-discrimination proceedings under sections 1 and 12 of the Race Relations Act 1976 after disciplinary proceedings led to his removal from the nursing register. The Employment Tribunal struck out his claim at a preliminary hearing without hearing evidence, treating it as frivolous, vexatious and an abuse of process. The Employment Appeal Tribunal dismissed his appeal on 5 December 2000. He applied to the Court of Appeal for permission to appeal, arguing that the tribunal had exceeded its powers under regulations 7 and 13(2) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993.

1. The application for permission to appeal was granted.
2. The Court of Appeal considered Care First Partnership Ltd v Roffey [2001] IRLR 85, in which it was held that an Employment Tribunal had no jurisdiction to strike out a claim at the start of the hearing, before evidence was heard, solely because the claim appeared to have no reasonable prospect of success.
3. That power did not arise from the tribunal’s general power to regulate its procedure. Regulation 13(2) applied to scandalous, frivolous or vexatious conduct in the course of proceedings. Regulation 7 concerned a pre-hearing review and the imposition of a deposit, with strike-out following non-payment. The tribunal had not proceeded under that deposit mechanism.
4. The newly reported authority gave the proposed appeal a real prospect of success on the ground that the Employment Tribunal might have had no power to dispose of the claim summarily in that manner. Granting permission did not mean that the appellant would necessarily succeed when the appeal was argued with both sides represented.

• Employment Appeal Tribunal: dismissed the appellant’s appeal against the Employment Tribunal’s strike-out order on 5 December 2000.
• Employment Tribunal: at a preliminary hearing, struck out the race-discrimination claim as frivolous, vexatious and an abuse of process; extended reasons were issued on 27 April 1999.
• Court of Appeal (Civil Division): granted permission to appeal.