Cusworth v British Gas Ltd. [2007] EWCA Civ 608

Case No A2/2007/0527[2007] EWCA Civ 608
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE PETER CLARK)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday, 7 th June 2007
Before
LORD JUSTICE MUMMERY
Between
CUSWORTHAppellantBRITISH GAS LTDRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
THE APPELLANT APPEARED IN PERSON. for in person for THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
Judgment
[1]This is a renewed application for permission to appeal and for an order for stay of execution in relation to a costs order that was made against Mr Cusworth by the Employment Tribunal. Mr Cusworth appears in person and he wants permission to appeal from the decision of the Employment Appeal Tribunal on 21 February 2007. The Employment Appeal Tribunal, HHJ Clarke sitting alone, dismissed Mr Cusworth’s appeal against the decision of the Employment Tribunal, which was notified to the parties on 13 July 2006. The chairman of the Employment Tribunal, sitting alone, Mr Kearsley, had dismissed the proceedings brought by Mr Cusworth against British Gas Services Limited and Centrica Plc, holding that the tribunal had no jurisdiction to hear the claim. The Employment Tribunal also made an order against Mr Cusworth to pay £2,000 in respect of the costs incurred by the respondents. As this is an employment case Mr Cusworth only has a right to appeal on a question of law arising from the decision of the Employment Tribunal or arising in the course of the proceedings before it. In order to obtain permission he also has to show that the appeal he proposes to bring has a real prospect of success. There is no point in appeals proceeding to a full hearing by three judges in this court if the court is of the view that there is no real prospect of the appeal succeeding. This is the only question I have to decide today: has Mr Cusworth got a real prospect of winning this appeal?[2]Wall LJ did not think so. He considered the application for permission on the papers and gave a decision on 17 April 2007 refusing both permission and a stay. He said this:
“I can detect no error of law in HHJ Clarke’s decision of 21 February 2007. Whilst an order for costs is unusual in the Employment Tribunal, the chairman explained why he was making it. HHJ Clarke explains why he is upholding it. There was no error of principle in either case.”
[3]In support of this application, Mr Cusworth submitted a helpful written summary of his arguments. During the course of his half hour submissions this morning he has referred extensively to the directives and the various decisions of the European Court of Justice in relation to equal pay that are contained in his bundle of authorities. The position is this: Mr Cusworth was employed for many years by British Gas Services as a service engineer or gas fitter going back to August 1971. Unfortunately there was an accident in January 1993. In September 1995 he was dismissed, but he was reinstated in January 1996 as a customer service adviser, from which position he resigned on 25 June 2001.[4]There is a history of previous proceedings between Mr Cusworth and his former employers. I am not concerned with those. I am only concerned with the two decisions made by the Employment Tribunal in July 2006, first dismissing his claim for want of jurisdiction and secondly, ordering him to pay £2,000 costs. These proceedings were issued by Mr Cusworth after I had dealt with an application for permission to appeal in a previous case. On 30 March 2006 he started fresh proceedings in the Employment Tribunal. Included in those proceedings was an equal pay claim. Those proceedings were commenced against this background: that on 4 January 2006 there had been a compromise agreement between him and his former employers settling outstanding claims that were listed in the schedule to the agreement, and there had been an equal pay claim which had been struck out on 10 January 2006 through Mr Cusworth’s failure to pay a deposit of £500 and a failure to file an expert’s report by a specified date.[5]Soon after the new proceedings were started on 30 March 2006 the respondent applied to have them struck out on grounds that the tribunal had no jurisdiction because the claims he was making were precluded under the terms of the compromise agreement and that the claims were out of time, that he had failed to lodge a grievance in respect of the claims and that he was precluded from pursuing the claims by virtue of the principle of issue estoppel. It was also contended that he should pay costs of the proceedings because they were misconceived. The conclusion reached by the Employment Tribunal was that the compromise agreement did not exclude his claim under the Equal Pay Act. So that was a decision in his favour, but the chairman of the tribunal went on to hold that the claim presented on 30 March 2006 was out of time and there was no power to dispense with the time limits. The Employment Tribunal chairman held that Mr Cusworth had not maintained his assertion that he had raised a grievance and therefore, notwithstanding his conclusion that the tribunal had no jurisdiction to hear the claim because it was out of time, he would have found that the tribunal would have had no jurisdiction because of the failure by Mr Cusworth to comply with the statutory grievance procedure. In those circumstances the tribunal chairman held that it was unnecessary to deal with the further point on issue estoppel.[6]As for costs, the tribunal chairman held that the claims made by Mr Cusworth for unlawful deduction of wages, breach of contract and sex discrimination were misconceived. They had been the subject of the compromise agreement. He had behaved unreasonably in pursuing those claims. It was for that reason that the tribunal chairman took what Wall LJ rightly described as the unusual step of making an order for costs against the applicant.[7]Mr Cusworth sought a review of the decision, but that was refused. He then sought to appeal to the Employment Appeal Tribunal. That was dismissed on paper for reasons given by HHJ McMullen QC. It was then the hearing before HHJ Clarke, which I have mentioned, and that took place in the absence of Mr Cusworth, but detailed reasons were given by HHJ Clarke for his decision; he said that there was no error of law on the limitation point. The House of Lords had held in Preston No. 2 [2001] Industrial Cases Reports that the six-month limitation period and section 24 of the Equal Pay Act 1970 was not a breach of the Community Law Principle of Equivalence. Mr Cusworth did not rely on the amendments that had been inserted into the legislation in section 2(Z)(a) and therefore there was no answer in domestic or European law to the limitation defence which had been raised by the respondent and upheld by the Employment Tribunal.[8]Similarly there was no error of law on the tribunal finding that it did not have jurisdiction because of Mr Cusworth’s failure to invoke the grievance procedure. The Appeal Tribunal went on to say that the issue estoppel point was also correct, so that, even if there was jurisdiction in the tribunal, there was no point in remitting the case for determination since the matter had already been effectively compromised. So there was no error in the substantive decision and the Employment Appeal Tribunal went on to hold that there was no error of principle in the decision to make an order for costs against him in respect of the claims that he was making and were held to be misconceived. In his grounds of appeal to this court Mr Cusworth, who has clearly done a great deal of research into this, with I think the help of his daughter, has given the court a lot of information about relevant European Community Law claiming that, quite rightly, where there is a conflict, it takes precedence over domestic law. He says that the Employment Tribunal and the Employment Appeal Tribunal had not applied the applicable law, which is article 141 – formerly 119 -- of the Treaty and in the directives which he has cited to me being 86/378 articles 3 and 4; directive 96/97 relating to time limits, in particular article 37, directive 75/117 and 76/217. He has also referred to many of the leading cases in the European Court of Justice: Barber, Defrenne, Naves, Preston and others. He says that the Employment Tribunal and the Employment Appeal Tribunal were in error in failing to apply the directives and the equal pay provision of the treaty, as interpreted by the Court of Justice, and had denied him access to benefits to which he was entitled.[9]He emphasised to me that he was dealing, in this case, with claims to benefits, not with a claim of a right to join the scheme. As I have already mentioned, he says that the order for costs was wrong in law and he wants a stay of execution of that should I grant permission to appeal. He submits that the tribunals below have been trapped in their narrow consideration of the law by reference only the Equal Pay Act 1970 and, to the extent that that is incompatible with article 141 and the other provisions of European Community Law, they were in error in not giving effect to them.[10]I have considered these arguments which I have read in the skeleton argument and I have listened to Mr Cusworth’s submissions. They are very much the same submissions that he made in the tribunals below. Mr Cusworth will be disappointed to learn that I have reached the same conclusions as the Employment Tribunal and the Employment Appeal Tribunal -- there is no jurisdiction in them to hear his claims. The claims that were misconceived cannot be heard -- that is, relating to deduction from wages and so on -- because they are the subject of the compromise. Once you compromise the case you are prevented by the compromise and by doctrines of estoppel from re-opening the matter. As far as the equal pay claim is concerned, although it was not the subject of the compromise, it is outside the time limits which apply. The position is that the tribunals apply the provisions of the Equal Pay Act. They only disapply those provisions if they are incompatible with the provisions of European Community Law. As was held in Preston there is no incompatibility in relation to the time limits which are provided for in this respect in the Equal Pay Act.[11]For those reasons I have reached the view that there is no real prospect of this appeal succeeding on the substantive point. I have given careful consideration to the order for costs. There is power in a tribunal to make an order for costs against an unsuccessful claimant. It is not often exercised, but there is power to exercise it in the cases where the claims which are brought are misconceived. In my view, the Court of Appeal would only interfere with the discretion exercised by the chairman of the Tribunal if it was demonstrated that there was some error of legal principle involved in the exercise of the discretion or if it could be said that the order that was made in the sum that was made was plainly wrong. I do not think that can be said in this case. It is quite clear that a number of claims were taken by Mr Cusworth to the Tribunal which stood absolutely no hope of success, because he had entered into a compromise which covered them, and it was not a proper use of the tribunal’s procedures to seek to re-litigate claims which had been already compromised.[12]The chairman made it clear that the costs order was in respect of those compromised claims; it was not in respect of the equal pay claim, which was not compromised, but was shut out by the provisions of the Equal Pay Act itself because of the limitation period specified in this Act and invoked by way of defence by the respondent.[13]I am grateful to Mr Cusworth for the help he has given in his references to the legal points, but for the reasons I have given I have come to the conclusion that there is no arguable point of law raised by the decision of the Employment Tribunal, either on his right to bring the claim or on the costs order, and I therefore refuse the application.

Order

Application refused.