_______________________

Case No: A2/2009/2565

Neutral Citation Number: [2010] EWCA Civ 970

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, WC2A 2LL

Date: Friday, 16 July 2010

Before:

LORD JUSTICE MUMMERY

• - - - - - - - - - - - - - - - - - - - -

Between:

HAKIM (Appellant)

- and -

ITALIA CONTI ACADEMY OF THEATRE AND ARTS (Respondent)

• - - - - - - - - - - - - - - - - - - - -

(DAR Transcript of

WordWave International Limited

A Merrill Communications Company

165 Fleet Street, London EC4A 2DY

Tel No: 020 7404 1400 Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

• - - - - - - - - - - - - - - - - - - - -

The Appellant did not appear and was not represented.

The Respondent did not appear and was not represented.

• - - - - - - - - - - - - - - - - - - - -

Judgment

(As Approved by the Court)

Crown Copyright ©

Lord Justice Mummery:

1. This is a renewed application for permission to appeal. There are also applications for an extension of time in which to appeal, for a stay of proceedings and for an injunction. The application for permission relates to the decision of the Employment Appeal Tribunal on 4 November 2009 to dismiss the appeal of the applicant, Mr Hakim. He was appealing to the EAT against the decision of the employment tribunal on 2 October 2008 that there was no jurisdiction to entertain his discrimination claim.

1. Mr Hakim then attempted to appeal to this court. and I dealt with the matter on the papers on 5 May 2010. I refused permission to appeal and an extension of time on the grounds that there was no real prospect of the appeal succeeding.

1. This is the oral hearing of the renewed application. It is now 10.15. The matter was listed for hearing at 10.00. Nobody has turned up, neither Mr Hakim nor anyone to represent him. Attempts to contact him on the telephone failed. The Civil Appeals Office has received no notification from him of any inability on his part to turn up for the hearing. He was sent a letter dated 17 May 2010 informing him that his application would be heard in the Royal Courts of Justice today. He was told he would not receive any further notice of the hearing date and he was also told that he either ought to check the Daily Cause List on the Internet if he had access to it, or, if he did not have Internet access, to telephone the Civil Appeals Office after 2.30 on the working day before the hearing in order to obtain details of the hearing. In the absence of the applicant, I will deal with this matter on the papers.

1. In brief, the position is that Mr Hakim enrolled as a student on a BA Honours course in acting with the respondent institution, which is called the Italia Conti Academy of Theatre Arts. He failed the first-year course twice. He was suspended and was excluded. He then sought to bring claims for race discrimination, sex discrimination, disability discrimination, age discrimination and religious belief discrimination. There was a pre-hearing review of his proceedings in the employment tribunal before Employment Judge Hall-Smith, London South on 8 July. The purpose of the pre-hearing review was to determine jurisdictional questions, in particular, as he had brought the case in the employment tribunal, whether he was an employee of the respondent and, even if he was not, whether the respondent was providing vocational training under section 13 of the Race Relations Act 1976.

1. The Employment Judge found that Mr Hakim was not an employee. He was a student who failed the course. The employment judge accepted the evidence of the respondent's course director that the degree course was not a vocational course for the purposes of section 13 of the 1976 Act. In fact, Mr Hakim had pleaded in other proceedings that he is bringing in the county court that the respondent institution was an educational establishment within the meaning of section 17 of the 1976 Act. The effect of the Employment Judge's ruling was that his claim ought to remain in the county court and that there was no jurisdiction in the Employment Tribunal to hear this claim, as he was not an employee and he was not on a vocational course.

1. Those rulings were upheld by His Honour Judge Peter Clark in the Employment Appeal Tribunal. He held that there was no error of law in the approach to the jurisdictional question taken by the employment judge. The Employment Judge correctly accepted the submission that had been made on behalf of the respondent that, where a particular establishment falls within section 17, as was accepted by both parties in the county court proceedings, then the jurisdiction of the employment tribunal was excluded. The case of Wolfson Institute & Others v Mensah UKEAT 24_00_2001, a decision of Charles J, is in point.

1. In my judgment, despite all the detailed submissions which have been made by Mr Hakim in writing, he has failed to provide an answer to these legal points. He has submitted very lengthy written submissions to the court, but they do not in my opinion establish that the employment tribunal had any jurisdiction to entertain these claims. If he has a discrimination claim, for example under the Race Relations Act 1976, it seems to me that it is a matter for the county court in which he has already issued proceedings. He cannot bring proceedings in the employment tribunal if he is not an employee and if the respondent is not providing a vocational course.

1. In those circumstances, I do not think that this appeal has any real prospect of success.

1. I have proceeded with it in the absence of the applicant for two reasons. First, it is clear to me that he has had notice of this hearing this morning and he has not turned up or given any prior warning that he is unable to turn up. Secondly, even if he did turn up, I do not think there is anything that he could usefully add to what he has already said in writing which would answer the legal difficulties on jurisdiction which stand in the way of his pursuing his claims. For those reasons the application is refused.

1. I would also refuse the other applications for an extension of time for a stay and for injunction. Those matters do not arise if there are no longer going to be any proceedings in this court.

Order: Applications refused