Law report: Tribunal not bound to consider complaint

18 June 1998 Mensah v East Hertfordshire NHS Trust Court of Appeal (Lord Justice Peter Gibson, Lord Justice Henry and Sir Christopher Slade) 10 June 1998

AN INDUSTRIAL Tribunal was under no duty to consider, of its own motion, a pleaded complaint which was not pursued by the applicant at the hearing before it.

The Court of Appeal allowed the appeal of the East Hertfordshire NHS Trust against a decision of the Employment Appeal Tribunal, allowing the appeal of Esther Mensah against the dismissal by an Industrial Tribunal of her complaint that she had been discriminated against on racial grounds.

The applicant was a well qualified and experienced nurse and midwife of Ghanaian origin. Her complaint to the Industrial Tribunal, made in form IT1, related to the way in which a hospital operated by the trust had responded to her enquiries about vacancies in its midwifery and neonatal units. However, in form IT3, in which the trust gave notice of its intention to resist the application, no mention was made of vacancies in the neonatal unit, nor were such vacancies referred to at a hearing for directions. Neither side appealed against the outcome of the directions hearing.

The Industrial Tribunal unanimously dismissed the application. No reference was made in its extended reasons to the neonatal unit vacancies. The applicant appealed to the EAT on the ground, inter alia, that the question relating to the neonatal unit vacancies needed further investigation.

Her appeal was allowed on the basis that, under rule 9(3) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993, had the applicant not appeared at the hearing of her complaint, the Industrial Tribunal would have been required to examine with care the terms of her IT1 and any other documentation provided. They would thus have been required to apply their minds to, and adjudicate upon, the questions raised concerning the neonatal unit vacancies, and the applicant's position should not have been different or worse because she had appeared before the tribunal.

Gary Morton (Angela Sumeray, Harrow) for the claimant; Philip Reed (Osborne Clarke) for the Trust.

Lord Justice Peter Gibson said that the error of law identified by the EAT was that the Industrial Tribunal had failed to ensure that all matters contained within the IT1 had been dealt with or expressly abandoned by the applicant when it came to her giving evidence. That error depended on the existence of a duty on the Industrial Tribunal to hear every allegation in the originating application unless abandoned, and to act of its own motion even if the applicant did not support the allegation by evidence or argument.

There was no such duty in civil actions in the courts, even if the plaintiff was a litigant in person, and rule 9(3), on which the EAT had relied, did not provide a source for such a duty, since it was expressed to apply only where a party had failed to attend or be represented at the hearing. Furthermore, a long and consistent line of cases relating to unfair dismissal or redundancy gave no encouragement whatever to the existence of such a duty.

In the present case there had been a pre-hearing review to clarify the issues in the case. Had the applicant been unhappy about the outcome of the pre-hearing review, she could have appealed against it. Moreover, she had given evidence at the hearing of her application, and had chosen only to pursue her complaint about the midwifery unit. In those circumstances it could not properly be said that there had been a failure by the Industrial Tribunal to hear the originating application.

It was good practice for Industrial Tribunals to clarify with an applicant, particularly if unrepresented, the precise matters raised in the IT1 which were or were not to be pursued. It must, however, be for the judgment of the particular Industrial Tribunal whether of its own motion it should investigate any pleaded complaint which the applicant was not pursuing.

Suggested Topics
Arts and Entertainment
Performers drink tea at the Glastonbury festival in 2010

GlastonburyWI to make debut appearance at Somerset festival

Arts and Entertainment
Lena Headey as Cersei Lannister

TV reviewIt has taken seven episodes for Game of Thrones season five to hit its stride

Arts and Entertainment
Jesuthasan Antonythasan as Dheepan

FilmPalme d'Or goes to radical and astonishing film that turns conventional thinking about immigrants on its head

Arts and Entertainment
Måns Zelmerlöw performing

Eurovision
Arts and Entertainment
Graham Norton was back in the commentating seat for Eurovision 2015

Eurovision
Arts and Entertainment
The light stuff: Britt Robertson and George Clooney in ‘Tomorrowland: a World Beyond’
film review
Arts and Entertainment
Reawakening: can Jon Hamm’s Don Draper find enlightenment in the final ‘Mad Men’?
tv reviewNot quite, but it's an enlightening finale for Don Draper spoiler alert
Have you tried new the Independent Digital Edition apps?
Arts and Entertainment

ebooksNow available in paperback
Arts and Entertainment

ebooks
Arts and Entertainment
Breakfast Show’s Nick Grimshaw

Radio
Arts and Entertainment

Eurovision
Arts and Entertainment
'Youth' cast members Paul Dano, Jane Fonda, Harvey Keitel, Rachel Weisz, and Michael Caine pose for photographers at Cannes Film Festival
film
Arts and Entertainment
Adam West as Batman and Burt Ward and Robin in the 1960s Batman TV show

Comics
Arts and Entertainment
I am flute: Azeem Ward and his now-famous instrument
music
Arts and Entertainment
A glass act: Dr Chris van Tulleken (left) and twin Xand get set for their drinking challenge
TV review
Arts and Entertainment
MIA perform at Lovebox 2014 in London Fields, Hackney

music
Arts and Entertainment
Finnish punk band PKN hope to enter Eurovision 2015 and raise awareness for Down's Syndrome

eurovision
Arts and Entertainment
William Shakespeare on the cover of John Gerard's The Herball or Generall Historie of Plantes

books
Arts and Entertainment

Game of Thrones review
Arts and Entertainment
Grayson Perry dedicates his Essex home to Julie

Potter's attempt to create an Essex Taj Mahal was a lovely treat

tv
Arts and Entertainment
A scene from the original Swedish version of the sci-fi TV drama ‘Real Humans’
tv
Arts and Entertainment
Hugh Keays-Byrne plays Immortan Joe, the terrifying gang leader, in the new film
filmActor who played Toecutter returns - but as a different villain in reboot
Arts and Entertainment
Charlize Theron as Imperator Furiosa in Mad Max: Fury Road
film
Arts and Entertainment
Jessica Hynes in W1A
tvReview: Perhaps the creators of W1A should lay off the copy and paste function spoiler alert
Arts and Entertainment
Power play: Mitsuko Uchida in concert

classical
Arts and Entertainment
Dangerous liaisons: Dominic West, Jake Richard Siciliano, Maura Tierney and Leya Catlett in ‘The Affair’ – a contradictory drama but one which is sure to reel the viewers in
TV review
Arts and Entertainment
Richard Herring, pictured performing at the Edinburgh Fringe Festival two years ago
comedy
Arts and Entertainment
Music freak: Max Runham in the funfair band
theatre
Arts and Entertainment
film 'I felt under-used by Hollywood'
Latest stories from i100
Have you tried new the Independent Digital Edition apps?

ES Rentals

    Independent Dating
    and  

    By clicking 'Search' you
    are agreeing to our
    Terms of Use.

    Abuse - and the hell that came afterwards

    Abuse - and the hell that follows

    James Rhodes on the extraordinary legal battle to publish his memoir
    Why we need a 'tranquility map' of England, according to campaigners

    It's oh so quiet!

    The case for a 'tranquility map' of England
    'Timeless fashion': It may be a paradox, but the industry loves it

    'Timeless fashion'

    It may be a paradox, but the industry loves it
    If the West needs a bridge to the 'moderates' inside Isis, maybe we could have done with Osama bin Laden staying alive after all

    Could have done with Osama bin Laden staying alive?

    Robert Fisk on the Fountainheads of World Evil in 2011 - and 2015
    New exhibition celebrates the evolution of swimwear

    Evolution of swimwear

    From bathing dresses in the twenties to modern bikinis
    Sun, sex and an anthropological study: One British academic's summer of hell in Magaluf

    Sun, sex and an anthropological study

    One academic’s summer of hell in Magaluf
    From Shakespeare to Rising Damp... to Vicious

    Frances de la Tour's 50-year triumph

    'Rising Damp' brought De la Tour such recognition that she could be forgiven if she'd never been able to move on. But at 70, she continues to flourish - and to beguile
    'That Whitsun, I was late getting away...'

    Ian McMillan on the Whitsun Weddings

    This weekend is Whitsun, and while the festival may no longer resonate, Larkin's best-loved poem, lives on - along with the train journey at the heart of it
    Kathryn Williams explores the works and influences of Sylvia Plath in a new light

    Songs from the bell jar

    Kathryn Williams explores the works and influences of Sylvia Plath
    How one man's day in high heels showed him that Cannes must change its 'no flats' policy

    One man's day in high heels

    ...showed him that Cannes must change its 'flats' policy
    Is a quiet crusade to reform executive pay bearing fruit?

    Is a quiet crusade to reform executive pay bearing fruit?

    Dominic Rossi of Fidelity says his pressure on business to control rewards is working. But why aren’t other fund managers helping?
    The King David Hotel gives precious work to Palestinians - unless peace talks are on

    King David Hotel: Palestinians not included

    The King David is special to Jerusalem. Nick Kochan checked in and discovered it has some special arrangements, too
    More people moving from Australia to New Zealand than in the other direction for first time in 24 years

    End of the Aussie brain drain

    More people moving from Australia to New Zealand than in the other direction for first time in 24 years
    Meditation is touted as a cure for mental instability but can it actually be bad for you?

    Can meditation be bad for you?

    Researching a mass murder, Dr Miguel Farias discovered that, far from bringing inner peace, meditation can leave devotees in pieces
    Eurovision 2015: Australians will be cheering on their first-ever entrant this Saturday

    Australia's first-ever Eurovision entrant

    Australia, a nation of kitsch-worshippers, has always loved the Eurovision Song Contest. Maggie Alderson says it'll fit in fine