London Borough of Enfield v Sivanandan

JurisdictionEngland & Wales
JudgeSIR PETER GIBSON,LORD JUSTICE SEDLEY
Judgment Date05 May 2006
Neutral Citation[2006] EWCA Civ 724
CourtCourt of Appeal (Civil Division)
Docket NumberA2/2005/2162
Date05 May 2006

[2006] EWCA Civ 724

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

(HIS HONOUR JUDGE PETER CLARK)

Royal Courts of Justice

Strand

London, WC2

Before:

Lord Justice Sedley

Sir Peter Gibson

A2/2005/2162

London Borough of Enfield
Claimant/Respondent
and
Sivanandan
Defendant/Appellant

MS A CHUTE (instructed by Messrs Graham Bash & Co, London E5 9QH) appeared on behalf of the Appellant.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

Judgement

SIR PETER GIBSON
1

This is an application by Ms Sivanandan for permission to appeal from the order on 12 September 2005 of HHJ Peter Clark sitting alone in the EAT, by which he allowed an appeal by the London Borough of Enfield ("Enfield") from part of the decision of a chairman of an Employment Tribunal ("ET") in Stratford, Mr Lamb, sitting alone. By that part Mr Lamb refused Enfield's application to strike out one of the complaints made by Ms Sivanandan in an originating application presented by her to the ET on 17 February 2004 ("the 2004 proceedings") . That complaint was that Enfield had discriminated against her and/or victimised her contrary to the Race Relations Act 1976 ("the RRA") and the Sex Discrimination Act 1975 ("the SDA") in refusing her access to a contractual grievance and disciplinary procedure. The judge held that that complaint was an abuse of process as an attempt to relitigate a complaint which was or ought to have been raised in proceedings commenced by Ms Sivanandan before the ET on 10 March 1997 ("the 1997 proceedings") , but struck out in 2000.

2

The history of the dispute between Ms Sivanandan and Enfield is a lengthy one and much of it is set out in detail in the judgment of Wall LJ in London Borough of Enfield v Sivanandan [2005] EWCA Civ 10. I can therefore summarise the material events.

3

Ms Sivanandan was employed as a Racial Equality Officer from 22 July 1996 to 11 December 1996 when she was dismissed. There was some uncertainty as to who was her employer. In her IT1, she named in the box for the name and address of the "employer, other organisation or person against who the complaint is brought", three respondents, Enfield, the Enfield Racial Equality Council ("EREC") and the EREC Director, Ms Bhatia.

4

Although not a lawyer, Ms Sivandan appears to have completed the IT1 herself raising a large number of matters of complaint, some in somewhat generalised terms and many of the matters of complaint not being dated and not distinguishing between the respondents. Two complaints expressly refer to post-termination events. One was that the respondent acted unreasonably in the procedures adopted to suspend and dismiss, in the manner of her suspension and dismissal "and in relation to the complaints leading up to the decision to dismiss and thereafter". The other was that after her dismissal the EREC Director and Executive Committee continued to discriminate against her and victimised her. Among the other undated complaints is one that the respondents breached the contract of employment and varied it by providing her with incorrect information about grievance and disciplinary procedures, and that there was unfair and unreasonable application of grievance and disciplinary procedures.

5

Enfield contended that the employer of Ms Sivanandan was EREC, but an ET, of which Mr Barry was the Chairman, by a decision sent to the parties on 21 November 1997 held that EREC and Ms Sivanandan were right in their submissions that Enfield was her employer. That decision was not appealed.

6

A little earlier, on 8 September 1997, Ms Sivanandan issued a claim in the County Court against Enfield, alleging breaches of the RRA, not only in December 1996, when she was dismissed, but also thereafter. These were protective proceedings to guard against the risk that EREC might be found to be her employer in the 1997 proceedings. The claim alleged that there had been discrimination and victimisation by Enfield against her.

7

On 12 January 1998 Ms Sivanandan sent Enfield Amended Particulars of Claim in which she said that she had been employed by Enfield and that although she had under her contract a right to Enfield's grievance and disciplinary procedures, she had been dismissed under EREC's procedures and that her dismissal in breach of Enfield's procedures was therefore wrongful. Enfield then sought to strike out the County Court claim pointing out that the ET had held that it was her employer. On 12 May 1998, Ms Sivanandan was given permission to withdraw the claim but in fact it was never withdrawn.

8

To return to the 1997 proceedings, after much interlocutory activity, they came on for hearing on 5 September 2000, before an ET of which Miss Gay was the Chair. For that hearing Enfield's counsel produced an outline of the issues, which included the fact that Ms Sivanandan contended that Enfield had failed to follow its own grievance and disciplinary procedures which were a part of Ms Sivanandan's contract. The hearing was expected to last seven weeks, but on 6 September 2000 the ET struck out the proceedings because of Ms Sivanandan's conduct.

9

An appeal to the EAT failed and Mummery LJ refused permission to appeal to this court on 8 October 2002. Two days later Ms Sivanandan commenced proceedings in the Queen's Bench Division for breach of contract, claiming damages from Enfield as her employer. Again she pleaded that Enfield had not followed its contractual grievance and disciplinary procedures although they were part of her contract. Master Leslie struck out part of her claim but refused to strike out another part relating to breach of contract. On appeal by each of Ms Sivanandan and Enfield to the High Court, Sir Edwin Jowitt, sitting as a judge of the High...

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