British Airways Plc v Boyce
| Jurisdiction | Scotland |
| Judgment Date | 07 December 2000 |
| Docket Number | No 38 |
| Date | 07 December 2000 |
| Court | Court of Session (Inner House - Extra Division) |
EXTRA DIVISION
Employment—Discrimination—Race discrimination—Complaint of discrimination on grounds of race refused—Second application made in identical terms except emphasis now placed on discrimination on grounds of “national origins”—Whether res judicata—Race Relations Act 1976 (cap 74), sec 3(1)1
The Race Relations Act 1976 contains provisions against discrimination on “racial grounds” and, by sec 3(1) of the Act, these are defined as meaning “any of the following grounds, namely colour, race, nationality or ethnic or national origins”. On 12 August 1996 the respondent complained to an Industrial Tribunal seekinginter alia a declaration that the appellants had discriminated against him on the “grounds of his race”. In the body of the application emphasis was placed on the “ethnic origins” aspect of the definition in sec 3(1) and in the submissions made to the tribunal and to the Employment Appeal Tribunal it was a matter of concession that this was the only relevant aspect of the definition. The Tribunal and the Employment Appeal Tribunal refused the application and a further appeal to the Court of Session was abandoned. In July 1998, the respondent lodged a further application which gave rise to the appeal in the present case. The further application was in terms identical to the earlier application with the single exception that the emphasis was placed on the “national origins” aspect of the definition. The appellants pled res judicata. The Tribunal rejected that plea, but it was common ground before the Employment Appeal Tribunal that its reasons for doing so were unsupportable. The Employment Appeal Tribunal substituted its own reasoning for rejection of the plea, which was that the “media concludendi” of the two applications were different. The appellants appealed to the Court of Session.
Held (1) the change in emphasis from one part of the definition clause to another reflected no more than a different legal approach in support of the same underlying proposition and was accordingly not relevant to the test of what was res judicata (p 512B); (2) the principle underlying res judicata should be applied to proceedings before administrative tribunals such as those involved in the employment tribunal system, and in the tribunal system the media concludendi should in general be taken as covering everything in the legislation, both in its legal and its factual aspects, which was pertinent to the act or acts complained of (pp 514G–515C); (3) apart from special circumstances of a wholly unforeseen nature, or in a situation in which the Tribunal had made it clear that no final decision was intended, it should be presumed that an industrial tribunal, by its decision, had reached a proper judicial determination of the subject in question, which was the underlying requirement for a decree of absolvitor (p 515C); and appeal allowed and applicationdismissed.
Doubted whether there existed in Scotland a general discretionary power to prevent a multiplicity of proceedings as envisaged in Maclaren, Court of Session Practice and Mackay,Manual of Practice p 312 (p 514A–F).
Curtis v James Paterson (Darlington) Ltd (No 2)UNK [1974] IRLR 88 and Divine-Bortey v Brent London Borough CouncilICR [1998] ICR 886 followed. Methilhill Bowling Club v HunterUNK [1995] IRLR 232 disapproved.
Mark Boyce raised a complaint on 12 August 1996 to an Industrial Tribunal. Both the Tribunal and the Employment Appeal Tribunal refused his application and a further appeal to the Court of Session was later abandoned. Subsequently, in about
July 1998, Mark Boyce lodged a further application. The Tribunal and the Employment Appeal Tribunal rejected the appellant's plea of res judicata. The respondent appealed to the Court of Session.Cases referred to:
Barber v Staffordshire County CouncilICR [1996] ICR 379
BBC Scotland v SousterSC 2001 SC 458
Bruce v Duncan 26 November 1793, Hume's Decisions, 596
Curtis v James Paterson (Darlington) LtdUNK [1974] IRLR 88
Divine-Bortey v Brent London Borough CouncilICR [1998] ICR 886
Grahame v Secretary of State for ScotlandSC 1951 SC 368
Henderson v HendersonENR (1843) 3 Hare 100
Hoystead v Taxation CommissionersELR [1926] AC 155
Jones v Governing Body of Burdett Coutts SchoolUNK [1998] IRLR 521
Methilhill Bowling Club v HunterUNK [1995] IRLR 232
Stevenson v Pontifex & WoodUNK (1887) 15 R 125
Waydale Ltd v DHL Holdings (UK) LtdSC 1999 SLT 631 (OH) 2000 SC 172 (IH)
Textbooks etc referred to:
Mackay, Manual of Practice p 312
Maclaren, Court of Session Practice p 401
The cause called before an Extra Division comprising Lord Cameron of Lochbroom, Lord Marnoch and Lord Nimmo Smith for a hearing on the summar roll on 25, 27 and 28 September 2000 and 3, 4, 5 and 6 October 2000, at the same time as BBC Scotland v SousterSC 2001 SC 458.
At advising, on 7 December 2000, the opinion of the court was delivered by Lord Marnoch.
Opinion of the Court—[1] The Race Relations Act 1976 contains provisions against discrimination on “racial grounds” and, by sec 3(1) of the Act, these are defined as meaning “any of the following grounds, namely colour, race, nationality or ethnic or national origins”.
...
To continue reading
Request your trial
-
Mr G McKinlay v Royal Mail Group Ltd: 4103573/2020
...7. Staffordshire CC v Barber [1996] ICR 379 8. British Association for Shootings v Cokayne [2008] ICR 185 9. British Airways plc v Boyce 2001 SC 510 10. MacPhail: Sheriff Court Practice; 3rd Submissions for the Respondent 48. The respondent’s representative commenced by reiterating the Issu......
-
D.c. For Judicial Review Of A Decision To Return Him To Hospital Dated On Or About 8 December 2009 By Dr Ian Mitchell Nd A Decision Of The Mental Heal
...that the principle of res judicata, if not the terminology, has application to administrative tribunals [British Airways Plc v Boyce 2001 SC 510 at §§ 3, 4, 6-8]. The principle applies to relevant decisions of the MHTS. The decision made by the MHTS on 30 July 2009 was a decision that the a......
-
Quinton v Pierce
... ... Vodafone Group v Orange Personal Communications [1997] EMLR 84 ; British Airways Plc v Ryanair Ltd [2001] FSR 32 ; and Ajinomoto Sweeteners Europe SAS v Asda Stores Ltd ... ...
- Lynch v East Dunbartonshire Council [Employment Appeal Tribunal: Scotland]