Mensah v Heatherwood & Wexham Park Hospitals NHS Trust & Ors

Employment litigation must attain finality. Issues already determined are res judicata and cannot be re-litigated. A claimant must generally raise all points in the earlier proceedings; points omitted from them cannot ordinarily support a later attempt. Unfair-dismissal and discrimination complaints are subject to a three-month time limit. A complaint brought 24 years after the events was plainly out of time, and the delay made a fair hearing impossible. Those considerations justified upholding the strike-out and refusing permission to appeal.

Mrs Mensah sought permission to appeal against an order of the Employment Appeal Tribunal dated 5 July 2002. At a preliminary hearing, the EAT directed that her appeal should proceed to a full hearing but upheld the striking out of one of three originating applications. That application concerned alleged unfair dismissal, race and sex discrimination, and victimisation arising from her dismissal as a midwife in 1978.

Earlier proceedings concerning the dismissal had been dismissed in 1979. An application to review that decision failed in 1993, and further proceedings issued in 1999 were struck out as frivolous or vexatious. The central issues were whether the earlier matters could be reopened because of alleged failures to consider European Community law and fair-hearing rights, and whether the very late claims could proceed.

Lord Justice Keene dismissed the application for permission to appeal. He held that the arguments advanced had no substance and, in any event, faced insuperable procedural difficulties.

1. Finality of litigation. To the extent that the complaints had already been raised in the 1979 or 1999 proceedings, they were res judicata. They had been determined and could not properly be re-litigated. To the extent that arguments had not been raised earlier, they should have been. A claimant must generally raise all desired points in the same proceedings and cannot ordinarily bring a second attempt after losing the first.
2. Alleged legal errors. The contentions concerning the Equal Treatment Directive 76/207/EEC, the alleged incomplete litigation of the 1978 unfair-dismissal claim, and the alleged failure to consider victimisation raised no arguable basis for reopening the matters. The complaints that the treatment of the reasons for removal from the Roll of Midwives, and the refusals to review the 1979 decision, breached Article 6 of the European Convention on Human Rights were likewise rejected.
3. Delay. Applications to an Employment Tribunal concerning unfair dismissal and discrimination were subject to a three-month time limit. The present complaint was brought 24 years after the relevant events. After such a period, a fair hearing would be impossible.
4. The EAT was therefore entirely right to uphold the strike-out. There was no prospect of a successful appeal. The application was dismissed, with no order for costs.

• Court of Appeal (Civil Division): dismissed the application for permission to appeal.
• Employment Appeal Tribunal: at a preliminary hearing on 5 July 2002, directed that the appeal should proceed to a full hearing but upheld the strike-out of one originating application.
• Employment Tribunal: struck out the relevant 2001 application insofar as it sought to re-litigate matters previously determined in 1979 and 1999.