Mensah, Application For Permission

Judicial review cannot be used to re-litigate employment tribunal claims or to bypass the statutory time limits and appeal routes governing them. A complaint about an Employment Tribunal’s decision must ordinarily be pursued through the statutory process, including appeal to the Employment Appeal Tribunal and, where arguable grounds exist, to the Court of Appeal. European authorities concerning discrimination did not remove the applicable domestic time limits where proceedings had been commenced in time. A question whether a bank worker was an employee was primarily factual and could not be reopened through fresh proceedings or judicial review. Where respondents were not the applicant’s employers, the Employment Tribunal lacked jurisdiction over claims against them.

The applicant sought permission to appeal from Elias J’s refusal of permission to apply for judicial review. The proposed reviews concerned several Employment Tribunal and Employment Appeal Tribunal decisions arising from disputes about her employment as a midwife, alleged discrimination, professional assistance, and the status of bank midwives.

The tribunals had dismissed or struck out the claims as out of time, previously adjudicated, frivolous or vexatious, and, in one case, outside the tribunal’s jurisdiction. The applicant argued that the claims raised new matters, that discrimination was continuing, that European law excluded time limits, and that she had been an employee. The central issue was whether those matters disclosed any arguable basis for judicial review or permission to appeal.

1. Permission refused. There was nothing in any of the three applications which provided an arguable basis for judicial review or an appeal from Elias J’s decision.
2. Employment claims had to be pursued within the statutory framework governing time limits and appeals. Judicial review was not an alternative means of challenging Employment Tribunal decisions, nor could it be used to reopen issues which had already been adjudicated. The proper route was through the Employment Appeal Tribunal and, where there were arguable grounds, the Court of Appeal.
3. The applicant’s reliance on European authorities, including Webb v Emo Air Cargo (UK) Ltd and Defrenne v Sabena, was misconceived. Those decisions did not establish that statutory time limits were generally unavailable. In Webb v Emo Air Cargo (UK) Ltd, the proceedings had been commenced in time; the delay resulted from the appellate process.
4. Whether the applicant was an employee when working as a bank midwife was principally a question of fact. Any challenge to that determination had to follow the statutory appeal route and could not be pursued through fresh proceedings or judicial review.
5. In the third application, the Employment Tribunal had no jurisdiction over claims against respondents by whom the applicant was not employed. The Tribunal was not under a duty to advise the applicant of any rights she might have against those parties.

• Court of Appeal (Civil Division): Permission to appeal from Elias J’s refusal of permission for judicial review was refused.
• High Court, Queen’s Bench Division (Administrative Court): Elias J refused the applicant permission to apply for judicial review on 5 October 2000.
• Employment Tribunal and Employment Appeal Tribunal: The underlying claims were dismissed or struck out, and related appeals or review applications were rejected.